-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, JpY6SK+I7yLJ4yyu+7+OAJRlR18yUMur5BuVMc3YFd/C5VMG3F7qWgGU4Q4pMc5B tPNv///r7X1wg+73Auz1Cw== 0000893220-00-000545.txt : 20000428 0000893220-00-000545.hdr.sgml : 20000428 ACCESSION NUMBER: 0000893220-00-000545 CONFORMED SUBMISSION TYPE: U5S PUBLIC DOCUMENT COUNT: 43 CONFORMED PERIOD OF REPORT: 20000331 FILED AS OF DATE: 20000427 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CONECTIV CENTRAL INDEX KEY: 0001029590 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC & OTHER SERVICES COMBINED [4931] IRS NUMBER: 510377417 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: U5S SEC ACT: SEC FILE NUMBER: 001-13895 FILM NUMBER: 609943 BUSINESS ADDRESS: STREET 1: 800 KING STREET P O BOX 231 CITY: WILMINGTON STATE: DE ZIP: 19899 BUSINESS PHONE: 3024293114 MAIL ADDRESS: STREET 1: 800 KING ST STREET 2: P O BOX 231 CITY: WILMINGTON STATE: DE ZIP: 19899 U5S 1 CONECTIV, INC. FORM U5S 1 - -------------------------------------------------------------------------------- CONECTIV ---------------------- FORM U5S ANNUAL REPORT TO SECURITIES AND EXCHANGE COMMISSION --------------- FOR THE YEAR 1999 - -------------------------------------------------------------------------------- 2 TABLE OF CONTENTS
ITEM PAGE REF. - ---- --------- 1 System Companies and Investments Therein as of December 31, 1999 1 2 Acquisitions or Sales of Utility Assets 3 3 Issue, Sale, Pledge, Guarantee or Assumption of System Securities 4 4 Acquisition, Redemption or Retirement of System Securities 5 5 Investments in Securities of Nonsystem Companies 7 6 Officers and Directors 8 7 Contributions and Public Relations 28 8 Service, Sales and Construction Contracts 29 9 Wholesale Generators and Foreign Utility Companies 29 10 Financial Statements and Exhibits 30 Consolidating Financial Statements F-1 to F-4 Signature of Registrant's Officer 32 Exhibits: SEC Act of 1934 Reports A Corporate Organization & By-Laws B Indentures or Contracts C Tax Allocation Agreement D Other Documents Prescribed by Rule or Order E Report of Independent Public Accountants F Financial Data Tables G Organizational Chart of Exempt Wholesale Generators or Foreign Utility Holding Companies H Financial Statements Regarding Exempt Wholesale Generators or Foreign Utility Holding Companies I
3 ITEM 1. SYSTEM COMPANIES AND INVESTMENT THEREIN AS OF DECEMBER 31, 1999
NUMBER OF COMMON % OF OWNER'S SHARES VOTING ISSUER BOOK BOOK VALUE NAME OF COMPANY OWNED POWER VALUE ($000) ($000) - ----------------------------------------------------------------------------------------------------------------------------- CONECTIV (a) Atlantic City Electric Company (ACE) 18,320,937 100 677,849 677,849 ACE REIT, Inc (ACE REIT) (b) 1,000 100 102 102 Atlantic Capital I (ACE Capital I) N/A 100 2,165 2,165 Atlantic Capital II (ACE Capital II) N/A 100 773 773 Atlantic Generation, Inc. (AGI) (c) 100 100 39,212 39,212 Binghamton General, Inc. (BING GEN) 100 100 252 252 Binghamton Limited, Inc. (BING LTD) 100 100 468 468 Pedrick General., Inc. (PED GEN) 100 100 9,819 9,819 Vineland General, Inc. (VINE LTD) 100 100 3,951 3,951 Vineland Limited, Inc. (VINE GEN) 100 100 400 400 Atlantic Southern Properties, Inc. (ASP) 100 100 906 906 Conectiv Atlantic Generation, L.L.C * * * * Conectiv Brands, Inc. * * * * Conectiv Communications, Inc. (CCI) (d) 1,000 100 2,845 2,845 Conectiv Communications of Virginia, Inc.(CCV) (e) 1,000 100 -- -- Conectiv Energy Holding Company * * * * Conectiv Energy, Inc. (Conectiv Energy) 1,000 100 80 80 Conectiv Energy Supply, Inc. (CES) 1,000 100 14,574 14,574 Conectiv Operating Services Company (COSC) 1,000 100 6,339 6,339 Conectiv Resource Partners, Inc. (CRP) 1,000 100 (130) (130) Conectiv Services, Inc. (CSI) 1,000 100 12,460 12,460 Conectiv Plumbing LLC (Plumbing) 1,000 100 6,628 6,628 Conectiv Thermal Systems, Inc. (CTS) (f) 100 100 8,079 8,079 Atlantic Jersey Thermal Systems, Inc. (AJTS) 100 100 11 11 Atlantic-Pacific Glendale, L.L.C. (AP Glendale) N/A 50 3,270 3,270 Atlantic-Pacific Las Vegas, LLC (AP Las Vegas) N/A 50 38,120 38,120 ATS Operating Services, Inc. (ATS Operating) 50 100 -- -- Thermal Energy Limited Partnership (TELP) N/A 100 6,977 6,977 Enerval, L.L.C. (Enerval) N/A 100 (654) (654) Conectiv Solutions, LLC (Solutions) (g) N/A 100 36,359 36,359 ATE Investment, Inc. (ATE) (h) 100 100 54,491 54,491 King Street Assurance Ltd. (KSA) (i) 120,000 100 49,914 49,914 Millennium Account Services, LLC (MAS) N/A 50 279 279 Delmarva Capital Investments, Inc. (DCI) (j) 1,000 100 21,812 21,812 DCI I, Inc. (DCI I) 1,000 100 (4,430) (4,430) DCI II, Inc. (DCI II) 1,000 100 4,337 4,337 DCTC-Burney, Inc. (Burney) (k) 1,000 100 12,539 12,539 Delmarva Power & Light Company (DPL) 1,000 100 676,081 676,081 Conectiv Delmarva Generation, Inc. (CDG) (l) 1,000 100 102 102 Delmarva Financing I (DPL Financing) N/A 100 2,165 2,165 Delmarva Services Company (DSC) (m) 1,000 100 8,549 8,549
* Inactive company (1) 4 ITEM 1. Continued. NOTES ($ in Thousands): (a) Conectiv owns 1,875,000 shares of Class D Preferred Stock, which is convertible, under certain terms and conditions, into approximately 5.6% of the outstanding common stock of EMAX Solutions Partners, Inc., a Delaware corporation that helps pharmaceutical companies manage reagent and compound inventories. As of December 31, 1999, the book value was $840. Conectiv also owns an approximate 1.5% limited partnership interest in Tech Leaders II, a Delaware limited partnership that invests in energy and technology companies. As of December 31, 1999, the book value was $1,329. (b) ACE REIT is a Delaware Corporation incorporated on March 12, 1998 to hold real estate investments. (c) AGI owns a 4.9% limited partnership interest in Energy Investors Fund III, L.P. (Project Finance Fund), a Delaware limited partnership that invests in independent power production facilities. As of December 31, 1999, the book value was $3,294. (d) CCI owns 55,161 unregistered shares, or approximately 1% of the outstanding shares, of D&E Communications, Inc., a Pennsylvania corporation and publicly-held telecommunications company that holds a broadband PCS license. As of December 31, 1999, the book value was $1,048. (e) CCV is a Virginia corporation incorporated on November 12, 1999 to provide telecommunications services in Virginia. (f) CTS holds a 50% interest in AP Glendale, a Delaware limited liability company formed to construct, own and operate integrated energy facilities. The book value as of December 31, 1999 was $3,270. CTS holds a 50% interest in AP Las Vegas, a Delaware limited liability company formed to finance, own and operate integrated energy facilities. The book value as of December 31, 1999 was $38,120. (g) Solutions holds a 50% interest in MAS, a Delaware limited liability company formed on January 1, 1999 to provide meter reading services in southern New Jersey. The book value as of December 31, 1999 was $279. (h) ATE owns 160 shares of common stock of Black Light Power, Inc., a development stage company that is engaged in hydrogen based energy production. As of December 31, 1999, the book value was $240. (i) KSA is a Bermuda corporation incorporated on April 4, 1999 to provide reinsurance associated with risks of warranties issued for heating, ventilation and cooling equipment. KSA owns a 94% limited partnership interest in EnerTech Capital Partners L.P., a limited partnership that invests in and supports a variety of energy technology growth companies. The book value as of December 31, 1999 was $25,101. At December 31, 1999, KSA held an approximate 30% limited partnership interest in EnerTech Capital Partners II L.P., a limited partnership that invests in and supports a variety of energy technology growth companies. The book value as of December 31, 1999 was $1,500. (j) DCI holds a 4.7% limited partnership interest in Luz Solar Partners, Ltd. IV which owns a solar powered generating station. The book value as of December 31, 1999, was $1,337. DCI owns a 27.5% limited partnership interest in UAH-Hydro Kennebec, L.P., a New York limited partnership which owns a hydro-electric project. The book value as of December 31, 1999, was $1,746. (2) 5 (k) Forest Products, L.P. is a Delaware limited partnership in which Burney is the sole 1% general partner, and which is a general partner in Burney Forest Products, A Joint Venture. Burney Forest Products, A Joint Venture, is a California general partnership which is owned by Burney and Forest Products, L.P. The partnership owns a wood-burning qualifying facility in Burney, CA. Burney's total direct and indirect ownership interest is 45%. The book value as of December 31, 1999, was $4,505. (l) CDG, formerly known as DPL REIT, Inc., is a Delaware corporation incorporated on March 12, 1998 to hold real estate investments. (m) As of December 31, 1999, DSC held 127,750 shares (or 2.5%) of the common stock of Chesapeake Utilities Corporation, a publicly traded utility company with gas utility operations in Delaware, Maryland and Florida. As of December 31, 1999, the book value was $1,571. ITEM 2. ACQUISITIONS OR SALES OF UTILITY ASSETS
BRIEF DESCRIPTION OF NAME OF COMPANY TRANSACTION CONSIDERATION EXEMPTION - --------------- ------------------------- ------------- --------- Delmarva Power & Sale of Dupont Substation Light Seaford, Delaware $3,804,200 44(b)
(3) 6 ITEM 3. ISSUES, SALE, PLEDGE, GUARANTEE OR ASSUMPTION OF SYSTEM SECURITIES DURING 1999
PRINCIPAL AMOUNT OR STATED VALUE ------------ NAME OF COMPANY PLEDGED, NAME OF ISSUER ISSUING, SELLING, PLEDGING ISSUED AND GUARANTEED, AND GUARANTEEING, OR SOLD OR ASSUMED DATE OF PROCEEDS TITLE OF ISSUE ASSUMING SECURITIES ($000) ($000) TRANSACTION ($000) -------------- ------------------- ------ ------ ----------- ------ DPL Variable Rate Tax-Exempt Pollution Control Bonds DPL 22,330 7/1/99 22,330 Variable Rate Tax-Exempt Pollution Control Bonds DPL 11,000 7/1/99 11,000 ACE 5.47% Short Term Notes due 3/10/00 ACE 30,000 6/14/99 30,000 ACE Credit Facility ACE 228,500 12/28/99 228,500 Various Surety Bonds Various 98,462 Various n/a
NAME OF ISSUER AND COMMISSION TITLE OF ISSUE AUTHORIZATION -------------- ------------- DPL Variable Rate Tax-Exempt Pollution Control Bonds Rule 52 Variable Rate Tax-Exempt Pollution Control Bonds Rule 52 ACE 5.47% Short Term Notes due 3/10/00 Rule 52 ACE Credit Facility Rule 52 Various Surety Bonds Rule 45
The above do not include guarantees of system companies which have been authorized by Commission order under the Public Utility Holding Company Act of 1935 and which are subject to Rule 24 certificate filing requirements. (4) 7 ITEM 4. ACQUISITION, REDEMPTION OR RETIREMENT OF SYSTEM SECURITIES DURING 1999
PRINCIPAL AMOUNT COMPANY ACQUIRING REDEEMED AND EXTINGUISHMENT (E) NAME OF ISSUER AND REDEEMING OR RETIRED DATE OF CONSIDERATION OR HELD FOR FURTHER COMMISSION TITLE OF ISSUE RETIRING SECURITIES ($000) TRANSACTION ($000) DISPOSITION (D) AUTHORIZATION -------------- ------------------- ------ ----------- ------ --------------- ------------- DP&L 7.50% Medium Term Notes DPL 30,000 (a) 5/1/99 30,000 E Rule 42 6.95% First Mortgage Bonds DPL 1,187 (b) 6/1/99 1,187 E Rule 42 7.3% Pollution Control Bonds DPL 22,330 (c) 9/1/99 23,000 E Rule 42 7.5% Pollution Control Bonds DPL 11,000 (d) 10/1/99 11,220 E Rule 42 7.25% Tax exempt DPL 50 12/1/99 50 E Rule 42 7.125% Tax exempt DPL 50 12/1/99 50 E Rule 42
(a) All $30,000,000 7.5% Series MTN's due on May 1, 1999 were retired on May 1, 1999 at a cost of $30,000,000, plus $1,125,000 accrued Interest (b) Sinking Fund payment of $1,186,800 was made on June 1, 1999 as per the Prospectus Supplement dated February 3, 1995 for the issuance of $25,800,000 of 6.95% Amortizing Bonds due June 1, 2008 (c) $22,330,000 of the 7.3% PC DEDA bonds due on 9/1/2015 were retired on September 1, 1999 at a cost of $22,999,999 plus $815,045 accrued interest (d) $11,000,000 of the 7.5% PC DEDA bonds due on 10/1/17 were redeemed on October 1, 1999 at a cost of $11,220,000 plus accrued interest of 412,500. ACE 7.54% Medium Term Notes ACE 4,000 (a) 5/19/99 4,000 E Rule 42 7.52% Medium Term Notes ACE 26,000 (b) 5/19/99 26,000 E Rule 42 7.0% First Mortgage Bonds ACE 4,000 (c) 6/8/99 3,995 E Rule 42 7.52% First Mortgage Bonds ACE 8,500 (d) 6/11/99 8,490 E Rule 42 6.625% First Mortgage Bonds ACE 6,400 (e) 6/14/99 6,373 E Rule 42 6.375%Pollution Control Bonds ACE 75 12/1/99 75 E Rule 42
(a) All 4,000,000 7.54% Medium Term Notes due on May 15, 1999 were retired on May 15, 1999 At a cost of $4,000,000, plus $150,800 accrued Interest (b) All $26,000,000 7.25% Medium Term Notes due on May 19, 1999 were retired on May 19, 1999 At a cost of $2,500,000, plus $90,625 accrued Interest (c) $4,000,000 of the First Mortgage Bonds due 9/1/23 were redeemed on June 9, 1999 at a cost of $3,995,000 plus accrued interest of $76,222.22 (d) $8,500,000 of the First Mortgage Bonds due 9/1/23 were redeemed on June 11, 1999 at a cost of $8,489,375 plus accrued interest of $165,277.78 (e)$6,400,000 of the First Mortgage Bonds due 8/1/13 were redeemed on June 14, 1999 at a cost of 6,373,120 plus accrued interest of $156,644.44 (5) 8 ITEM 4 (CONTINUED)
COMPANY ACQUIRING EXTINGUISHMENT (E) NAME OF ISSUER AND REDEEMING OR SHARES DATE OF CONSIDERATION OR HELD FOR FURTHER COMMISSION TITLE OF ISSUE RETIRING SECURITIES ACQUIRED TRANSACTION ($000) DISPOSITION (D) AUTHORIZATION -------------- ------------------- -------- ----------- ------ --------------- ------------- Conectiv Common Stock Conectiv 1,670,000 various 31,397 E Rule 42 Conectiv Common Stock Conectiv 1,060 various 24 D Rule 42 Conectiv Common Stock Conectiv 12,768,215 Jun-99 345,610 E Rule 42 Conectiv Class A Common Stock Conectiv 818,297 Jun-99 13,366 E Rule 42
(6) 9 ITEM 5. INVESTMENTS IN SECURITIES OF NONSYSTEM COMPANIES The aggregate amount of investments at December 31, 1999, in persons operating in the system's retail area are shown below. Please refer to the footnotes to Item 1 for a description of other investments in nonsystem companies.
AGGREGATE AMOUNT OF INVESTMENTS NUMBER OF NAME OF IN PERSONS (ENTITIES) OPERATING IN PERSONS DESCRIPTION OF SYSTEM COMPANY RETAIL SERVICE AREA OF OWNER ($000) (ENTITIES) PERSONS OR ENTITIES - -------------- ----------------------------------- ---------- ------------------------- ACE (1) 351 (3) Retail Company Securities DPL (1) 250 (8) Retail Company Securities
(1) All of DPL's and ACE's investments in securities represent bankruptcy distributions applicable to obligations of customers incurred in the ordinary course of business (7) 10 ITEM 6. OFFICERS AND DIRECTORS Part I. Names, principal business address and positions held as of December 31, 1999. The names and positions held as of December 31, 1999 of the officers and directors of System companies is presented in the tables on the pages that follow. The principal business address of each officer and director is: 800 King Street Wilmington, Delaware 19899 The symbols used to indicate the positions held by officers and directors are shown in the position symbol key as follows: POSITION KEY CODE ------------------------------------- AS - Assistant Secretary AT - Assistant Treasurer C - Controller CB - Chairman of the Board CEO - Chief Executive Officer CFO - Chief Financial Officer COO - Chief Operating Officer D - Director EVP - Executive Vice President GC - General Counsel GM -General Manager P - President S - Secretary SVP - Senior Vice President T - Treasurer VC - Vice Chairman VP - Vice President (8) 11 Item 6, Part 1 Continued
ATE ACE AGI AJTS ASP ATS BING GEN BING LTD CONECTIV CCI -------- ---------- -------- -------- ---------- -------- -------- -------- ---------- -------- Arturo F. Agra VP,AT,AS VP,AT,AS VP,AT,AS VP,AT,AS VP,AT,AS Robert L. Aveyard VP John Bagnell AS Larry J. Bainter VP Frank Balotti D David Blake VP Roberta S. Brown VP VP Robert D. Burris D Donald E. Cain VP Robert W. Carr VP Skip M. Castaldi VP Peter F. Clark GC GC G.Edwin Collier Howard E. Cosgrove CB,CEO,D CB,CEO,P,D CB,CEO,D CB,CEO,D CB,CEO,P,D CB,CEO,D CB,CEO,D CB,CEO,D CB,CEO,P,D CB,CEO,D Diana C. DeAngelis AS AS AS AS AS AS AS AS AS AS Frank E. DiCola VP,COO VP,COO VP VP VP Audrey K. Doberstein D Richard J. Donnelly Moira K. Donoghue S,D S S,D S,D S,D S,D S,D S,D S S,D David J. Doyle Barry R. Elson P EVP,D EVP Michael B. Emery D Stacey L. Evans Robert H. Fiedler VP VP Christopher Frechette
CCV -------- Arturo F. Agra Robert L. Aveyard John Bagnell Larry J. Bainter Frank Balotti David Blake Roberta S. Brown Robert D. Burris Donald E. Cain Robert W. Carr Skip M. Castaldi Peter F. Clark G.Edwin Collier Howard E. Cosgrove CB,CEO,D Diana C. DeAngelis AS Frank E. DiCola Audrey K. Doberstein Richard J. Donnelly Moira K. Donoghue S,D David J. Doyle Barry R. Elson Michael B. Emery Stacey L. Evans Robert H. Fiedler Christopher Frechette
(9) 12 Item 6, Part 1 Continued
CDG CES COSC CRP CSI CTS DCI I DCI II BURNEY DCI -------- -------- -------- ---------- -------- -------- ---------- ---------- -------- ---------- Arturo F. Agra VP,AT,AS VP,AT,AS VP,AT,AS VP,AT,AS Robert L. Aveyard VP John Bagnell Larry J. Bainter VP Frank Balotti David Blake VP Roberta S. Brown Robert D. Burris Donald E. Cain VP Robert W. Carr VP VP Skip M. Castaldi Peter F. Clark G.Edwin Collier AS Howard E. Cosgrove CB,CEO,D CB,CEO,D CB,CEO,D CB,CEO,P,D CB,CEO,D CB,CEO,D CB,CEO,P,D CB,CEO,P,D CB,CEO,D CB,CEO,P,D Diana C. DeAngelis AS AS AS AS AS AS AS AS AS Frank E. DiCola VP VP VP Audrey K. Doberstein Richard J. Donnelly AS Moira K. Donoghue S,D S,D S,D S S,D S,D S,D S,D S,D S,D David J. Doyle Barry R. Elson EVP,D P Michael B. Emery Stacey L. Evans AS Robert H. Fiedler Christopher Frechette AS
DPL ---------- Arturo F. Agra Robert L. Aveyard John Bagnell Larry J. Bainter Frank Balotti David Blake Roberta S. Brown VP Robert D. Burris Donald E. Cain Robert W. Carr Skip M. Castaldi Peter F. Clark GC G.Edwin Collier Howard E. Cosgrove CB,CEO,P,D Diana C. DeAngelis AS Frank E. DiCola Audrey K. Doberstein Richard J. Donnelly Moira K. Donoghue S David J. Doyle Barry R. Elson EVP,D Michael B. Emery Stacey L. Evans Robert H. Fiedler VP Christopher Frechette
(10) 13 Item 6, Part 1 Continued
DSC KSA PED GEN VIN GEN VIN LTD CEI SOLUTIONS - ------------------ ---------- ---------- -------- -------- -------- -------- --------- Arturo F. Agra VP,AT,AS VP,AT,AS VP,AT,AS VP VP,AT,AS Robert L. Aveyard John Bagnell Larry J. Bainter Frank Balotti David Blake Roberta S. Brown Robert D. Burris Donald E. Cain Robert W. Carr VP,GM,COO Skip M. Castaldi Peter F. Clark G.Edwin Collier Howard E. Cosgrove CB,CEO,P,D CB,CEO,P,D CB,CEO,D CB,CEO,D CB,CEO,D CB,CEO,D CB,CEO,D Diana C. DeAngelis AS AS AS AS AS AS Frank E. DiCola VP VP VP Audrey K. Doberstein Richard J. Donnelly Moira K. Donoghue S,D AS,D S,D S,D S,D S S,D David J. Doyle D Barry R. Elson D Michael B. Emery Stacey L. Evans Robert H. Fiedler Christopher Frechette
(11) 14 Item 6, Part 1 Continued
ATE ACE AGI AJTS ASP ATS BING GEN BING LTD CONECTIV CCI CCV CDG --- --- --- ---- --- --- -------- -------- -------- --- --- --- Sarah I. Gore D Barbara S. Graham SVP SVP,D SVP SVP SVP SVP SVP SVP SVP SVP SVP SVP Andrei M. Grecu Nina J. Hertz AS AS AS AS AS AS AS AS Hudson P. Hoen III VP Cyrus H. Holley D George C. Hunt Frederick Hutchinson Jerrold L. Jacobs VC,D James B. Jacoby Donna Johns AT,AS AT,AS AT,AS Donna Kinzel AT AT Albert F. Kirby John. W. Land VP VP VP James P. Lavin C C C C C C C C C C C C James M. MacDonald J. David McCann VP VP Richard B. McGlynn D Thomas A. McHugh Elizabeth M. Miller AS AS AS AS Bernard J. Morgan D Wayne Morgan Dean Musser I.S. Outerbridge James E. Parrish VP
(12) 15 Item 6, Part 1 Continued
CES COSC CRP CSI CTS DCI I DCI II BURNEY DCI DPL DSC KSA --- ---- --- --- --- ----- ------ ------ --- --- --- --- Sarah I. Gore Barbara S. Graham SVP SVP SVP,D SVP SVP SVP SVP,D SVP SVP SVP,D SVP VP Andrei M. Grecu AS Nina J. Hertz AS AS AS Hudson P. Hoen III VP Cyrus H. Holley George C. Hunt Frederick Hutchinson AS Jerrold L. Jacobs GM James B. Jacoby Donna Johns AT,AS Donna Kinzel AT Albert F. Kirby VP John. W. Land VP VP VP VP James P. Lavin C C C C C C C C C C C C James M. MacDonald D (Alt.) J. David McCann Richard B. McGlynn Thomas A. McHugh AS Elizabeth M. Miller AS AS AS AS AS AS AS AS Bernard J. Morgan Wayne Morgan AS Dean Musser I.S. Outerbridge S James E. Parrish SVP,COO
(13) 16 Item 6, Part 1 Continued
PED GEN VIN GEN VIN LTD CEI SOLUTIONS ------- ------- ------- --- --------- Sarah I. Gore Barbara S. Graham SVP SVP SVP SVP,D SVP Andrei M. Grecu Nina J. Hertz AS AS AS AS Hudson P. Hoen III Cyrus H. Holley George C. Hunt VP Frederick Hutchinson Jerrold L. Jacobs James B. Jacoby Donna Johns Donna Kinzel Albert F. Kirby John. W. Land James P. Lavin C C C C C James M. MacDonald J. David McCann Richard B. McGlynn Thomas A. McHugh Elizabeth M. Miller AS Bernard J. Morgan Wayne Morgan Dean Musser VP I.S. Outerbridge James E. Parrish
(14) 17 Item 6, Part 1 Continued
ATE ACE AGI AJTS ASP ATS BING GEN BING LTD CONECTIV CCI --------- --------- --------- --------- --------- --------- --------- --------- -------- --------- Michael J. Ratchford VP Philip S. Reese VP,T VP,T VP,T VP,T VP,T VP,T VP,T VP,T VP,T VP,T Joseph M. Rigby VP VP Richard B. Robertson VP P,COO Timothy J. Sanborn Mark J. Schaefer Lonnie C. Scott VP VP Susan S. Seipel Thomas E. Shaw EVP,D P P P P P EVP Brian M. Shivery Janet L. Shorter William H. Spence VP VP Leslie Thomas-Dawson Louis A. Tonelli Richard H. Treml Eileen K. Unger John C. van Roden Jr. SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO SVP,CFO,D Gregory M. Warshaw Mack J. Wathen AT,AS James C. Weller VP VP VP VP VP VP Nathan L. Wilson AS
CCV --------- Michael J. Ratchford Philip S. Reese VP,T Joseph M. Rigby Richard B. Robertson P,COO Timothy J. Sanborn Mark J. Schaefer Lonnie C. Scott Susan S. Seipel Thomas E. Shaw Brian M. Shivery Janet L. Shorter William H. Spence Leslie Thomas-Dawson Louis A. Tonelli Richard H. Treml Eileen K. Unger John C. van Roden Jr. SVP,CFO,D Gregory M. Warshaw Mack J. Wathen James C. Weller Nathan L. Wilson
(15) 18 Item 6, Part 1 Continued
CDG CES COSC CRP CSI CTS DCI I DCI II BURNEY DCI --------- --------- --------- --------- --------- --------- --------- --------- --------- --------- Michael J. Ratchford Philip S. Reese VP,T VP,T VP,T VP,T VP,T VP,T VP,T VP,T VP,T Joseph M. Rigby Richard B. Robertson Timothy J. Sanborn VP Mark J. Schaefer Lonnie C. Scott VP Susan S. Seipel VP,D Thomas E. Shaw P P P EVP,D P P Brian M. Shivery AS Janet L. Shorter William H. Spence VP Leslie Thomas-Dawson AS,D Louis A. Tonelli AT Richard H. Treml AS Eileen K. Unger John C. van Roden Jr. SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D Gregory M. Warshaw VP Mack J. Wathen James C. Weller VP VP VP Nathan L. Wilson AS
DPL --------- Michael J. Ratchford Philip S. Reese VP,T Joseph M. Rigby VP Richard B. Robertson Timothy J. Sanborn Mark J. Schaefer Lonnie C. Scott VP Susan S. Seipel Thomas E. Shaw EVP,D Brian M. Shivery Janet L. Shorter William H. Spence VP Leslie Thomas-Dawson Louis A. Tonelli Richard H. Treml Eileen K. Unger John C. van Roden Jr. SVP,CFO,D Gregory M. Warshaw Mack J. Wathen AT,AS James C. Weller VP Nathan L. Wilson AS
(16) 19 Item 6, Part 1 Continued
DSC KSA PED GEN VIN GEN VIN LTD CEI SOLUTIONS --------- --------- --------- --------- --------- ------- --------- Michael J. Ratchford Philip S. Reese VP,T VP,T VP,T VP,T VP,T VP,T VP,T Joseph M. Rigby Richard B. Robertson Timothy J. Sanborn Mark J. Schaefer VP Lonnie C. Scott Susan S. Seipel Thomas E. Shaw P P P P,D P Brian M. Shivery Janet L. Shorter AS William H. Spence VP Leslie Thomas-Dawson Louis A. Tonelli Richard H. Treml Eileen K. Unger VP John C. van Roden Jr. SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO SVP,CFO,D Gregory M. Warshaw Mack J. Wathen James C. Weller VP VP VP VP Nathan L. Wilson
(17) 20 ITEM 6. OFFICERS AND DIRECTORS (Continued) PART II. FINANCIAL CONNECTIONS OF DIRECTORS AND EXECUTIVE OFFICERS AS OF DECEMBER 31, 1999 See Item 6, Part III (a) below. PART III (a). COMPENSATION OF OFFICERS AND DIRECTORS PERSONNEL & COMPENSATION COMMITTEE REPORT COMPENSATION PHILOSOPHY Our philosophy is to: - Link compensation to business strategies and results - Align the compensation of executives with the long-term interests of stockholders - Motivate executives to exceed the challenging objectives the Board has established for Conectiv, and - Create urgency for success in an increasingly competitive business environment. The Committee has designed an executive compensation program that: - Provides total compensation emphasizing long-term performance that creates stockholder value - Facilitates a rapid transition to a competitive business environment - Reflects the challenging market conditions for attracting and retaining high-quality executives and ensures that executives have a continuing personal financial stake in Conectiv's long-term success, and - Creates significant levels of executive stock ownership. EXECUTIVE TOTAL COMPENSATION PROGRAM PROGRAM ELEMENTS - Base pay that reflects job responsibilities and individual performance against goals - Annual performance-based variable pay - Long-term variable compensation tied directly to stockholder value - Special grants for alignment and retention purposes. The program uses performance measures directly related to shareholder total return. In addition to these measures, shareholder total return is viewed in light of conditions in the deregulating utility industry, industries in which Conectiv is developing new businesses, the general economy and the stock market. TOTAL COMPENSATION AND MARKET TARGETS. The program provides total compensation that is competitive with companies similar in revenue size to Conectiv, in a blend of utility and industrial markets. Total compensation levels and opportunities are determined by Conectiv's Personnel & Compensation Committee, in consultation with Watson Wyatt, a leading executive compensation consulting firm. Watson Wyatt uses their experience, knowledge of Conectiv and its industries, and published compensation data to define competitive levels of total compensation targeted at the median of the market. To strengthen the tie to stockholder value, base pay is generally set somewhat below the market target, and targets for the annual and long-term variable elements are set above the market targets.(1) - -------- (1) At least 30 of the companies in the Dow Jones Electric Utility Index and 19 of the companies in the S&P 500 index participate in at least one of the survey sources used by Watson Wyatt. (18) 21 BASE PAY reflects the job responsibilities, experience and annual performance of individual executives and of Conectiv, and compensation for comparable positions at other companies. The Committee reviews base pay annually and adjusts it for individual and corporate performance. 1999 COMMITTEE ACTION ON BASE PAY. The Committee set base pay for the five-named executive officers that in aggregate is slightly below the median market targets. In setting Mr. Cosgrove's base pay, the Committee considered the results achieved by Conectiv, including the successful merger that created Conectiv, the startup and expansion of new businesses, and Mr. Cosgrove's leadership in setting a new direction for Conectiv in the deregulating utility market. The Committee determined that this initial success was adequately rewarded in base pay and set his 1999 base pay at $600,000, the same level as in 1998 and at the level of the 1999 median market target. 2000 COMMITTEE ACTION ON BASE PAY FOR MR. COSGROVE. The Committee continues to believe that Mr. Cosgrove's leadership is best rewarded through compensation linked directly to shareholder value rather than base pay. Therefore, his base pay remains at $600,000 for 2000, the same level as in 1998 and 1999. A portion of the amount by which Mr. Cosgrove's salary could have been increased based on market data was used instead to increase his 2000 grant of long-term incentives to further align his interests with those of Stockholders. ANNUAL VARIABLE PAY is designed to motivate executives to achieve "stretch" financial, planning, and operating goals and to increase the sense of urgency to deliver significant performance levels. Goals and annual variable pay opportunities are set for each executive at the beginning of the year. Opportunities are set at or above the median of competitive companies and are related to line of business and corporate performance. Participants may earn awards from 0% to 150% of the preset target. For the highest paid officers, this can mean awards from 0% to between 60% and 75% of base pay. Awards are made only if Conectiv achieves earnings targets approved by the Committee. PARTIAL AWARD IN STOCK. Twenty percent of annual awards are paid in Restricted Stock Units ("RSU's") under the Management Stock Purchase Plan ("MSPP") at a 20% discount to the fair market value of Conectiv Common Stock. Each RSU is a proxy for one share of Common Stock, has a value equal to one share, and earns dividends at the same rate as one share. RSU's cannot be sold or used for three years from the date acquired, and are distributed in Conectiv Common Stock at the end of that period. Participants can purchase additional RSU's up to a maximum of 50% of their annual award. MR. COSGROVE'S AWARD FOR 1998. Mr. Cosgrove was eligible to earn between 0% and 150% of his target opportunity of $300,000 (50% of his 1998 base pay). The Committee originally intended that earning this award would depend entirely on company financial performance on three measures set by the Committee at the beginning of the year, on the assumption that the merger that created Conectiv would close at the beginning of 1998. These measures were consolidated corporate earnings, cash flow and cash flow return on capital employed. The merger closed instead on March 1, 1998, when the final regulatory approval was received. This made it extremely difficult to obtain reliable information to determine performance against the second and third measures. In 1999, the Committee instead based Mr. Cosgrove's award entirely on corporate earnings. 1998 corporate earnings met the target level adjusted by the Committee for unexpected merger impacts, resulting in a payout of 100% of the target, or $300,000. 1998 AWARDS FOR OTHER NAMED EXECUTIVE OFFICERS. 1998 awards for Messrs. Shaw and Elson and Mrs. Graham made in 1999 totaled $386,400. These awards were based, as was Mr. Cosgrove's, on corporate earnings and on the performance of the business areas managed by those officers. OPPORTUNITIES FOR 1999. In setting performance measures for these awards, the Committee considered the industry restructuring and regulatory issues that Conectiv would address during 1999 and how their resolution might affect earnings. The Committee decided that earnings before interest and taxes ("EBIT") provided the best measure of Conectiv's performance for that year and adopted an EBIT target for all named executive officers. Consistent with this, the Committee also modified the payout opportunities by setting maximum and minimum (19) 22 payout levels relative to the new EBIT target. The maximum payout occurs at 105% of the EBIT target and the minimum payout or threshold occurs at 90% of the EBIT target. The Committee also reserved the ability to adjust the EBIT target after the full impact of industry deregulation on Conectiv's earnings was known. The Committee has not yet determined 1999 awards for the named executive officers. LONG-TERM VARIABLE COMPENSATION aligns the interests of executives with those of Stockholders by linking a significant portion of an executive's total compensation opportunities to the performance of Conectiv Common Stock. To that end, grant levels are generally above market target. Grants may include some or all of the following: NON-QUALIFIED STOCK OPTIONS which give the executive the right to acquire Common Stock at the grant price of the option, which in all cases is the fair market value of the Common Stock on the day of grant. Options have value to the executive in direct relation to increases in share price above grant price. DIVIDEND EQUIVALENT UNITS which provide the executive with income equivalent to the dividend on Conectiv Common Stock. These "DEU's" have value to the executive in direct relation to the amount of that dividend. The combination of options and DEU's help to focus executives on the blend of stock price and dividend growth that creates the most value to Stockholders. PERFORMANCE ACCELERATED RESTRICTED STOCK which vests as unrestricted Common Stock seven years after grant and will vest earlier if (for 1999 grants) pre-determined levels of Total Shareholder Return ("TSR") are met. If early vesting doesn't occur for the highest paid executives, vesting will occur after seven years only if TSR is at or above the level produced by the stock price and dividends on the date of the grant. "PARS" have their greatest value to the executive when vesting accelerates. PERFORMANCE ACCELERATED STOCK OPTIONS, another form of non-qualified stock option, vest 9 1/2 years and expire 10 years after grant. These "PASO's" will vest earlier if share price reaches predetermined levels. PASO's have little value to executives unless vesting accelerates as a result of increased share price. 1999 GRANTS. Based on Watson Wyatt data and recommendations, the Committee set targets as a percentage of base salary for each of the named executive officers to continue to strengthen focus on total shareholder value and competitive total compensation. Targets were converted to actual grants using the Black-Scholes method for options and time and forfeiture discount methods for the other types of grants. All named executive officers received grants of options, DEU's and PARS for 1999. 1999 SPECIAL GRANTS OF RESTRICTED STOCK AND PASO'S. From time to time, the Committee makes special grants to address specific business needs. During 1999, the Committee made grants of restricted stock to Mr. Elson (8000 shares) and Mr. Shaw (8000 shares) to encourage their continued employment with Conectiv; the grants lapse if they leave prior to four years from the date of the grant. The Committee also granted 150,000 shares of PASO's to Mr. van Roden, following his employment as Senior Vice President and Chief Financial Officer. OPTION GRANTS FOR OTHER KEY EMPLOYEES. In addition, the Committee authorized Mr. Cosgrove to make grants of up to 100,000 shares of options to purchase Common Stock to other key employees to increase their focus and motivation and encourage their continued employment with Conectiv. (20) 23 EXECUTIVE AND DIRECTOR STOCK OWNERSHIP GUIDELINES In 1998, the Committee established the following guidelines, consistent with its belief in the value to Stockholders of a strong link between the interests of Directors and executives and those of Stockholders.
----------------------- ------------------------- MULTIPLE BY - ---------------------------------------- ----------------------- ------------------------- CHAIRMAN AND CHIEF EXECUTIVE OFFICER 5 times base pay 2003 - ---------------------------------------- ----------------------- ------------------------- SENIOR EXECUTIVES 3 times base pay 2003 - ---------------------------------------- ----------------------- ------------------------- VICE PRESIDENTS, GENERAL MANAGERS, OTHER MEMBERS OF MANAGEMENT 1 - 2 times base pay 2003 - ---------------------------------------- ----------------------- ------------------------- BOARD OF DIRECTORS 3 times annual retainer 3 years after election to Board - ---------------------------------------- ----------------------- -------------------------
RESPONSE TO IRS LIMITS ON DEDUCTIBILITY OF COMPENSATION Section 162(m) of the Internal Revenue Code limits the deduction of certain forms of compensation above $1,000,000 paid to a highly compensated executive. The Committee tries to structure executive compensation to minimize the amount of compensation that is not deductible. The Committee believes, however, that this limitation should not compromise Conectiv's ability to create compensation programs that support the business strategy and attract and retain the executive talent required for success. As a result, there may at times be some compensation that is not deductible for federal income tax purposes. Following a review of current plans and practices, the Committee believes that no part of the executive compensation program is not deductible under the terms of this section. PERSONNEL & COMPENSATION COMMITTEE: Sarah I. Gore, Chair Michael B. Emery Richard B. McGlynn Bernard J. Morgan PERSONNEL & COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION The Personnel & Compensation Committee is comprised solely of non-employee Directors. Logical Business Solutions, which is owned by Mr. Emery's son-in-law, Paul Kleiman, had contracts with Conectiv Resource Partners, Inc., a subsidiary of Conectiv, with a gross value of $239,000 during 1999, for information technology consulting services. There are no other Personnel & Compensation Committee interlocks. (21) 24 EXECUTIVE COMPENSATION TABLE 1- SUMMARY COMPENSATION TABLE
- ------------------------------------------------------------------------------------------------------------------------------------ Variable Restricted Securities LTIP All Other Year Annualized Compensation Other Annual Stock Underlying Payouts Compensation NAME AND PRINCIPAL POSITION (1) Salary (Bonus) (2) Compensation Awards (3) Options (4) (5) - -------------------------------------- ---- ---------- ------------ ------------ ---------- ---------- -------- ------------ H.E. Cosgrove, Chairman of the Board, 1999 $600,000 --- 0 $187,500 57,000 --- $18,204 President and Chief Executive Officer 1998 $600,000 $150,000 0 0 360,000 $572,134 $12,329 - -------------------------------------- ---- ---------- ------------ ------------ ---------- ---------- -------- ------------ T. S. Shaw, Executive Vice President 1999 $325,000 --- 0 $291,500 26,000 --- $8,258 1998 $325,000 $78,000 0 0 170,000 $155,267 $9,478 - -------------------------------------- ---- ---------- ------------ ------------ ---------- ---------- -------- ------------ B. R. Elson, Executive Vice President 1999 $325,000 --- 0 $259,000 26,000 --- $6,116 1998 $325,000 $78,000 0 0 170,000 $21,560 $4,074 - -------------------------------------- ---- ---------- ------------ ------------ ---------- ---------- -------- ------------ J. C. van Roden, Jr., Senior Vice 1999 $250,000 --- 0 0 170,000 --- $8,342 President/Chief Financial Officer (6) 1998 $17,686 --- 0 0 --- --- --- - -------------------------------------- ---- ---------- ------------ ------------ ---------- ---------- -------- ------------ B.S. Graham, Senior Vice President 1999 $250,000 --- 0 $62,750 14,000 --- $7,504 1998 $250,000 $50,200 0 0 170,000 $155,267 $5,308 - ------------------------------------------------------------------------------------------------------------------------------------
1. The 1998 merger involving Atlantic Energy, Inc. and Delmarva Power & Light Company was effective as of March 1, 1998. Accordingly, except for Mr. Van Roden, 1998 salary is shown as an annualized amount. Mr. Van Roden joined Conectiv on November 30,1998 and 1998 salary shown is his actual salary. Other 1998 items of compensation reflect full calendar 1998 compensation received from Conectiv or Delmarva Power & Light Company. 2. The 1999 bonus, which is an annual variable award, has not yet been determined. The 1999 target award is 50% of salary for Mr. Cosgrove, 45% for Messrs. Elson and Shaw, 40% for Mr. van Roden and Mrs. Graham. For 1998, the dollar value of the bonus reported above has been reduced by the portion of the bonus deferred and reported above as a 1999 Restricted Stock Award as follows: H. E. Cosgrove ($300,000 bonus with $150,000 purchasing Restricted Stock Units ("RSU's")); T.S. Shaw ($156,000 bonus with $78,000 purchasing RSU's); B. R. Elson ($130,000 bonus with $52,000 purchasing RSU's); B. S. Graham ($100,400 bonus with $50,200 purchasing RSU's). 3. A mandatory 20% of the bonus (reported in this Table as "Variable Compensation") and any additional portion of the bonus that an executive elects to defer (up to an additional 30%) is deferred for at least three years under the Management Stock Purchase Program ("MSPP") and used to purchase RSU's at a 20% discount. The dollar value of RSU's deferred under MSPP in 1999 (inclusive of the discounted portion), based on the fair market value at the award date, was: H. E. Cosgrove ($187,500, of which $37,500 is the discount); T.S. Shaw ($97,500, of which $19,500 is the discount); B. R. Elson ($65,000, of which $13,000 is the discount); B. S. Graham ($62,750, of which $12,550 is the discount). In addition, Messrs. Shaw and Elson each received in 1999 an 8,000 share award of Restricted Stock valued at $194,000, based on a fair market value of $24.25 per share of Common stock on the award date. One-half of the awards to Messrs. Shaw and Elson vest after three years, the balance after four years. Dividends accrue and are paid as the awards vest. The RSU awards do not vest in under three years but do accrue dividends. At the end of 1999, the number and value of the aggregate restricted stock holdings (including RSUs, PARS and special grants of the individuals identified in the Summary Compensation Table was as follows: for Mr. Cosgrove, 28,298 restricted stock holdings values at $475,757; for Mr. Shaw, 21,149 restricted stock holdings valued at $445,067; for Mr. Elson, 19,397 restricted stock holdings values at $385,605; for Mr. van Roden, 3,000 restricted stock holdings valued at $50,438; and for Mrs. Graham, 9,779 restricted stock holdings valued at $164,410. 4. During 1998 all restrictions lapsed on the performance-based restricted stock granted in 1995 and 1996 under the Delmarva LTIP due to the merger involving Delmarva and Atlantic Energy. Under the "change in control" provisions, the awards fully vested resulting in a payout to Mr. Cosgrove of 21,160 shares (11,570 for 1995 and 9,950 for 1996) valued at $454,940; to Mr. Shaw of 5,450 shares (2,870 for 1995 and 2,580 for 1996) valued at $117,175; and to Mrs. Graham of 5,540 shares (2,870 for 1995 and 2,580 for 1996) valued at $117,175. Shares were valued at $21.50 at the time of payout. Dividends on shares of restricted stock and dividend equivalents are accrued at the same rate as that paid to all holders of Common Stock. As of December 31, 1998, Mr. Cosgrove held 45,520 shares of restricted stock (22) 25 5. (35,520 for 1997 and 10,000 for 1998) and 30,000 Dividend Equivalent Units ("DEU's"); Mr. Elson held 4,000 shares of restricted stock for 1998 and 10,000 DEU's; Mr. Shaw held 12,010 shares of restricted stock (8,010 for 1997 and 4,000 for 1998) and 10,000 DEU's; Mrs. Graham held 12,010 shares of restricted stock (8,010 for 1997 and 4,000 for 1998) and 10,000 DEU's. Holders of restricted stock are entitled to receive dividends as declared. 6. "All Other Compensation" includes the following for 1999: For Mr. Cosgrove, $3,000 in Company matching contributions to the Savings and Investment Plan, $15,000 in Company matching contributions to the Deferred Compensation Plan and $204 in term life insurance premiums paid by Conectiv. For Mr. Shaw, $3,104 in Company matching contributions to the Savings and Investment Plan, $4,950 in Company matching contribution to the Deferred Compensation Plan and $204 in term life insurance premiums paid by Conectiv. For Mrs. Graham, $4,800 in Company matching contributions to the Savings and Investment Plan, $2,500 in Company matching contributions to the Deferred Compensation Plan and $204 in term life insurance premiums paid by Conectiv. For Mr. Elson, $4,800 in Company matching contributions to the Savings and Investment Plan and $1,316 in term life insurance premiums paid by Conectiv. For Mr. van Roden, $4,800 in Company matching contributions to the Savings and Investment Plan, $2,814 in Company matching contributions to the Deferred Compensation Plan and $728 in term life insurance premiums paid by Conectiv. 7. Mr. van Roden was elected Senior Vice President and Chief Financial Officer as of January 4, 1999. TABLE 2 - OPTION GRANTS IN LAST FISCAL YEAR (1)
NUMBER OF % OF TOTAL SECURITIES OPTIONS UNDERLYING GRANTED TO EXERCISE GRANT DATE OPTIONS EMPLOYEES IN PRICE EXPIRATION PRESENT NAME GRANTED (#) FISCAL YEAR ($/SH) DATE VALUE (4) ---- ----------- ----------- ------ ---- --------- H. E. Cosgrove 57,000 (2) 11% $24.25 1/4/09 $114,969 B. R. Elson 26,000 (2) 5% $24.25 1/4/09 $52,442 T. S. Shaw 26,000 (2) 5% $24.25 1/4/09 $52,442 J. C. van Roden 20,000 (2) 4% $24.25 1/4/09 $40,340 150,000 (3) 29% $24.25 1/4/09 $178,050 B. S. Graham 14,000 (2) 3% $24.25 1/4/09 $28,238
1. Currently, Conectiv does not grant stock appreciation rights. 2. Denotes Nonqualified Stock Options ("NQSO's"). One-half vest and are exercisable at end of second year from date of grant. Second one-half vest and are exercisable at end of third year from date of grant. 3. Denotes Performance Accelerated Stock Options ("PASO's") granted on a one-time basis. PASO's have a ten-year term and vest and are first exercisable 9 and 1/2 years from date of grant without regard to stock price performance. Exercise date will accelerate for favorable stock price performance (i.e. first 1/3, second 1/3 and third 1/3 of PASO's vest after stock trades at $26, $28 or $30 per share, respectively, for ten consecutive trading days). PASO's must be held for three years from date of grant before they can be exercised. 4. Determined using the Black-Scholes model, incorporating the following material assumptions and adjustments: (a) exercise price of $24.25, equal to the Fair Market Value ("FMV") as of date of grant; (b) an option term of ten years; (c) risk-free rate of return of 5.6%; (d) volatility of 16.0%; and (e) dividend yield of 6.4%. For valuation purposes, PASO's are valued as a premium-priced stock option as of the date of grant with an exercise price of $30 on a FMV of $24.25. (23) 26 TABLE 3 - AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR AND FY-END OPTION VALUES
NAME SHARES VALUE NUMBER OF SECURITIES VALUE OF UNEXERCISED IN- ---- ACQUIRED REALIZED ($) (1) UNDERLYING UNEXERCISED THE-MONEY ON EXERCISE (#) ---------------- OPTIONS AT FY-END (2) OPTIONS AT FY-END (1) --------------- EXERCISABLE/UNEXERCISABLE (#) EXERCISABLE/UNEXERCISABLE($) ----------------------------- ---------------------------- H. E. Cosgrove 0 $0 14,400 / 417,000 $0 /$0 B. R. Elson 0 0 0 / 196,000 0 / 0 T. S. Shaw 0 0 0 / 196,000 0 / 0 J. C. van Roden 0 0 0 / 170,000 0 / 0 B. S. Graham 0 0 0 / 184,000 0 / 0
1. The closing price for Conectiv Common Stock on the New York Stock Exchange on December 31, 1999 was $16.8125. Option value would be based on the difference between grant price (i.e., closing price shown above) and exercise price, multiplied by the number of options exercised. 2. 14,400 stock options of Mr. Cosgrove are currently exercisable. None of the remaining options may be exercised earlier than two years from date of grant for NQSO and nine and 1/2 years from date of grant for PASO's (subject to accelerated vesting for certain levels of stock price performance). TABLE 4 - LONG-TERM INCENTIVE PLANS - AWARDS IN LAST FISCAL YEAR
NAME NUMBER OF RESTRICTED PERFORMANCE PERIOD - ---- SHARES/DIVIDEND UNTIL MATURATION EQUIVALENT UNITS (#) (1) OR PAYOUT (2) ------------------------ ------------- H.E. Cosgrove 8,500 shares/28,500 units 1/4/06 B. R. Elson 4,000 shares/13,000 units 1/4/06 T. S. Shaw 4,000 shares/13,000 units 1/4/06 J. C. van Roden 3,000 shares/10,000 units 1/4/06 B. S. Graham 2,500 shares/7,000 units 1/4/06
1. In addition, Mr. Cosgrove held 35,520 performance shares (valued at $597,180) and Mr. Shaw and Mrs. Graham each held 8,010 performance shares (valued at $134,668) from a 1997 award with a four-year performance cycle under the former Delmarva Power Long Term Incentive Plan. These are pre-existing awards as reported in the 1999 Proxy Statement and valued at the share price of Common Stock on December 31, 1999. 2. Awards of Restricted Shares (Performance Accelerated Restricted Stock or "PARS") and Dividend Equivalent Units ("DEU's") were made to the five named executive officers on January 4, 1999. The payout of PARS may potentially be "performance accelerated". Restrictions may lapse and vesting may accelerate any time after 3 years (i.e., after January 4, 2002) upon achievement of pre-determined levels of total return to shareholders. Otherwise, restrictions lapse after 7 years (i.e., January 4, 2006), provided that at least a defined level of average, total return to shareholders is achieved. As of December 31, 1999, Mr. Cosgrove's 8,500 PARS were valued at $142,906, Messrs. Elson and Shaw's 4,000 PARS were valued at $67,250, Mr. van Roden's 3,000 PARS were valued at $50,438 and Mrs. Graham's 2,500 PARS were valued at $42,032. These values for PARS are based on the December 31, 1999 closing stock price of $16.8125 per share of Common Stock. One DEU equals the regular quarterly dividend paid on one share of Conectiv Common Stock. The DEU's shown are payable in cash for eight quarters over a two year period ending with the DEU payable January 31, 2001. At that point, the 1999 DEU award lapses. (24) 27 PENSION PLAN The Conectiv Retirement Plan includes the Cash Balance Pension Plan and grandfathered provisions relating to the Delmarva Retirement Plan and the Atlantic Retirement Plan that apply to employees who had either 20 years of service or were age 50 on the effective date of the Cash Balance Pension Plan (January 1, 1999). Certain executives whose benefits from the Conectiv Retirement Plan are limited by the application of federal tax laws also receive benefits from the Supplemental Executive Retirement Plan. CASH BALANCE PENSION PLAN The named executive officers participate in the Conectiv Retirement Plan and earn benefits that generally become vested after five years of service. Annually, a recordkeeping account in a participant's name is credited with an amount equal to a percentage of the participant's total pay, including base salary, overtime and bonuses, depending on the participant's age at the end of the plan year, as follows:
% OF AGE AT END OF PLAN YEAR PAY ----------------------- --- Under 30 .................................. 5 30 to 34 .................................. 6 35 to 39 .................................. 7 40 to 44 .................................. 8 45 to 49 .................................. 9 50 and over ............................. 10
These accounts also receive interest credits based on average U.S. Treasury Bill rates for the year. In addition, certain annuity benefits earned by participants under the former Delmarva and Atlantic Retirement Plans are fully protected as of December 31, 1998, and were converted to an equivalent cash amount and included in each participant's initial cash balance account. When a participant terminates employment, the amount credited to his or her account is converted into an annuity or paid in a lump sum. SUPPLEMENTAL RETIREMENT BENEFITS Supplemental retirement benefits are provided to certain employees, including each executive officer, whose benefits under the Conectiv Retirement Plan are limited by type of compensation or amount under federal tax laws and regulations. ESTIMATED RETIREMENT BENEFITS PAYABLE TO NAMED EXECUTIVE OFFICERS The following table shows the estimated retirement benefits, including supplemental retirement benefits under the plans applicable to the named executive officers, which would be payable if he or she were to retire at normal retirement age (65), expressed in the form of a lump sum payment. Years of service credited to each named executive officer as of his or her normal retirement date are as follows: Mr. Cosgove, 42; Ms. Graham, 30; Mr. Shaw, 40; Mr. Elson, 16 (8 of which are additional years of service for purposes of the supplemental retirement benefits), and Mr. van Roden, 15.
NAME YEAR OF 65TH BIRTHDAY LUMP SUM VALUE ---- --------------------- -------------- H. E. Cosgrove ................ 2008 $4,066,000 B. S. Graham .................. 2013 1,763,000(l) T. S. Shaw .................... 2012 2,289,000 B. R. Elson ................... 2006 957,000 J. C. van Roden................ 2014 597,000(1)
(1) Amounts include (i) interest credits for cash balances projected to be 6.26% per annum on annual salary credits and prior service balances, if any, and (ii) accrued benefits as of December 31, 1999 under retirement plans then applicable to the named executive officer. Benefits are not subject to any offset for Social Security payments or other offset amounts and assume no future increases in base salary or total pay. (25) 28 Under the Conectiv Retirement Plan's grandfather provisions, employees who participated in the Delmarva or Atlantic Retirement Plans and who met certain age and service requirements as of December 31, 1998, will have retirement benefits for all years of service up to retirement calculated according to their original benefit formula. This benefit will be compared to the cash balance account and the employee will receive whichever is greater. Estimated benefits are based on the Delmarva Retirement Plan for Messrs. Cosgrove, Shaw and Elson and the Cash Balance Pension Plan for Mrs. Graham (whose benefits under the Cash Balance Pension Plan exceed the benefits under the Delmarva Retirement Plan) and Mr. van Roden (who was not grandfathered into the Delmarva Retirement Plan). The amount of benefit under such grandfathering is illustrated in the following table: DELMARVA RETIREMENT PLAN PENSION PLAN TABLE ANNUAL RETIREMENT BENEFITS IN SPECIFIED REMUNERATION AND YEARS OF SERVICE CLASSIFICATIONS
AVERAGE ANNUAL EARNINGS FOR THE 5 CONSECUTIVE YEARS OF EARNINGS THAT RESULT IN THE HIGHEST AVERAGE 15 YRS. 20 YRS. 25 YRS. 30 YRS. 35 YRS. - ----------------------------- ------- ------- ------- ------- ------- $300,000(1) 70,500 94,000 117,500 141,000(2) 164,500(2) 400,000(1) 94,500 126,000 157,500 189,000(2) 220,500(2) 500,000(1) 118,500 158,000(2) 197,500(2) 237,000(2) 276,500(2) 600,000(1) 142,500(2) 190,000(2) 237,500(2) 285,000(2) 332,500(2) 700,000(1) 166,500(2) 222,000(2) 277,500(2) 333,000(2) 388,500(2) 800,000(1) 190,500(2) 254,000(2) 317,500(2) 381,000(2) 444,500(2)
(1) Effective January 1, 1999, annual compensation recognized may not exceed $160,000. (2) For 1999, the annual limit on annual benefits is $130,000. Benefits are payable in the form of a 50% joint and surviving spouse annuity or lump sum. Earnings include base salary, overtime and bonus. CHANGE IN CONTROL SEVERANCE AGREEMENTS AND OTHER PROVISIONS RELATING TO POSSIBLE CHANGE IN CONTROL Conectiv has entered into change in control severance agreements with Messrs. Cosgrove, Elson, Shaw, and van Roden and Mrs. Graham and one other senior executive. The agreements are intended to encourage the continued dedication of Conectiv's senior management team. The agreements provide potential benefits for these executives upon actual or constructive termination of employment (other than for cause) following a change in control of Conectiv, as defined in the agreements. Each affected executive would receive a severance payment equal to three times base salary and bonus, medical, dental, vision, group life and disability benefits for three years after termination of employment, and a cash payment equal to the actuarial equivalent of accrued retirement pension credits equal to 36 months of additional service. In the event of a change in control, the Variable Compensation Plan provides that outstanding options become exercisable in full immediately, all conditions to the vesting of PARS are deemed satisfied and shares will be fully vested and nonforfeitable, DEU's will become fully vested and be immediately payable, variable compensation deferred under the Management Stock Purchase Program will be immediately distributed, and payment of variable compensation, if any, for the current year will be decided by the Personnel & Compensation Committee. For the Deferred Compensation Plan, this Committee may decide to distribute all deferrals in cash immediately or continue the deferral elections of participants, in which case Conectiv will fully fund a "springing rabbi trust" to satisfy the obligations. An independent institutional trustee will maintain any trust established by reason of this provision. (26) 29 ITEM 6, PART III (b). SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS, DIRECTORS AND MANAGEMENT. The following table shows the number of shares of Conectiv Common Stock and Class A Common Stock beneficially owned as of December 31, 1999 by: - - Each person or company that we know beneficially owns more than 5% of the outstanding shares of Common Stock or Class A Common Stock; - - Each member of and nominee to the Board of Directors; - - Each Executive Officer of Conectiv whose compensation is listed in the Summary Compensation Table in Item 6, Part III (a) above; - - The Directors and Executive Officers as a group.
- ------------------------------------------ ------------------- ------------------- SHARES OF SHARES OF CLASS A COMMON STOCK (1)(2) COMMON STOCK (1)(2) - ------------------------------------------ ------------------- ------------------- Nominees for Director: Class 1 - Term Expiring in 2002 Cyrus H. Holley 4,098 724 Class II - Term Expiring in 2003 Robert D. Burris 3,352 0 Sarah I. Gore 3,954 0 George F. MacCormack 1,000 0 - ------------------------------------------ ------------------- ------------------- - ------------------------------------------ ------------------- ------------------- Incumbent Directors: Class 1 - Term Expiring in 2002 R. Franklin Balotti 5,922 0 Richard B. McGlynn 3,603 522 Class III - Term Expiring in 2001 Howard E. Cosgrove 121,937 (3)(4) 0 Audrey K. Doberstein 5,378 0 Bernard J. Morgan 5,504 618 - ------------------------------------------ ------------------- ------------------- - ------------------------------------------ ------------------- ------------------- Retiring Directors: Class II - Term Expiring at 2000 Annual Meeting Michael B. Emery 5,549 0 Jerrold L. Jacobs 5,532 922 - ------------------------------------------ ------------------- ------------------- - ------------------------------------------ ------------------- ------------------- Other Executive Officers: Barry E. Elson, Executive Vice President 21,446 (4) 0 Barbara S. Graham, Senior Vice President 30,911 (3)(4) 0 Thomas S. Shaw, Executive Vice President 43,500 (3)(4) 0 John C. van Roden, Senior Vice President 6,855 (4) 0 and Chief Financial Officer - ------------------------------------------ ------------------- -------------------
As of December 31, 1999, all current Directors and executive officers as a group (14 persons) owned beneficially 267,541 shares of Common Stock, representing 0.31% of the shares of Common Stock outstanding and 2,786 shares of Class A Common Stock, representing 0.05% of the shares of Class A Common Stock outstanding. Conectiv is not aware of any person or company that beneficially owns more than 5% of the outstanding shares of Common Stock or Class A Common Stock. (27) 30 NOTES (1) Each of the individuals listed beneficially owned less than 1% of Conectiv's outstanding Common Stock (including Common Stock and Class A Common Stock.) (2) Includes shares owned beneficially by Mr. Cosgrove and Mr. Jacobs and other executive officers of Conectiv pursuant to the Conectiv Savings and Investment Plan (including Payroll-Based Employee Stock Ownership Plan and Employee Stock Ownership Plan), Deferred Compensation Plan and Conectiv Incentive Compensation Plan. (3) Includes 35,520, 8,010 and 8,010 shares of performance-based restricted stock for Messrs. Cosgrove and Shaw and Mrs. Graham, respectively, granted under the Long-Term Incentive Plan of Delmarva Power & Light Company, which was adopted by the Conectiv Board of Directors. The number of shares actually earned will depend on the Total Shareholder Return (stock price appreciation and dividends paid) of Delmarva from January 1997 through February 1998 and of Conectiv from March 1998 through the end of the four-year performance cycle in December 2000, relative to the Edison Electric Institute electric utility peer group. (4) Includes 18,500 shares for Mr. Cosgrove, 8,000 shares each for Messrs. Shaw and Elson, 6,500 shares for Mrs. Graham and 3,000 shares for Mr. van Roden of Performance Accelerated Restricted Stock ("PARS"). The number of shares actually earned will depend on meeting pre-determined financial performance measures related to shareholder value at the end of the seven- year restriction period. ITEM 6, PART III(c). CONTRACTS AND TRANSACTIONS. See Item 6, Part III (a) above ITEM 6, PART III(d). INDEBTEDNESS. See Item 6, Part III (a) above ITEM 6, PART III(e). PARTICIPATION IN BONUS AND PROFIT SHARING ARRANGEMENT. See Item 6, Part III (a) above ITEM 6, PART III(f). DIRECTORS AND OFFICERS RIGHTS TO INDEMNITY. Provisions for indemnification of directors and executive officers are included in the Certificate of Incorporation or By-Laws in accordance with applicable laws. Insurance is purchased for all the Registrant's directors and executive officers, plus the directors and officers of the subsidiary companies. This insurance also indemnifies the Registrant and its subsidiary companies against any amounts paid by them as allowed by corporate law or By-laws of the Registrant to covered directors and executive officers. ITEM 7. CONTRIBUTIONS AND PUBLIC RELATIONS PART I. Expenditures for any political party, candidate for public office or holder of such office, or any committee or agent therefor. None. (28) 31 PART II. Expenditures for any citizens group or public relations counsel.
- -------- ---------------------- -------------- -------- -------- NAME OF ACCOUNTS COMPANY NAME OF RECIPIENT PURPOSE CHARGED AMOUNT - -------- ---------------------- -------------- -------- -------- General public relations Admin. & Conectiv Stanton Communications consulting Gen. $328,500 - -------- ---------------------- -------------- -------- --------
ITEM 8. SERVICE, SALES AND CONSTRUCTION CONTRACTS PART I. Intercompany Contracts. None PART II. System contracts to purchase goods or services from any affiliate (other than a System company) or a company in which any director or executive officer is a partner or owns 5% or more of any class of equity securities. None. PART III. System contracts with others on a continuing basis for management, supervisory, or financial advisory review. None. ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES Burney, an indirect subsidiary of Conectiv, holds a 45% direct and indirect interest in Burney Forest Products, A Joint Venture, which is an EWG. Conectiv Energy, also an EWG, is in the process of developing two new combustion turbine generation facilities. As of December 31, 1999, Conectiv's investment in EWGs totaled $18.7 million. (29) 32 ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS
Page Ref -------- CONSOLIDATING FINANCIAL STATEMENTS CONSOLIDATING STATEMENT OF INCOME FOR THE YEAR ENDED DECEMBER 31, 1999 Conectiv and Subsidiaries F-1A Delmarva Power and Light Company and Subsidiaries F-1B Atlantic City Electric Company and Subsidiaries F-1C Delmarva Capital Investments, Inc. and Subsidiaries F-1D Conectiv Energy Supply, Inc. and Subsidiary F-1E Conectiv Services, Inc. and Subsidiaries F-1F Conectiv Thermal Systems, Inc. and Subsidiaries F-1G Conectiv Solutions LLC and Subsidiaries F-1H Atlantic Generation, Inc. and Subsidiaries F-1I CONSOLIDATING BALANCE SHEET AS OF DECEMBER 31, 1999 Conectiv and Subsidiaries F-2A Delmarva Power and Light Company and Subsidiaries F-2B Atlantic City Electric Company and Subsidiaries F-2C Delmarva Capital Investments, Inc. and Subsidiaries F-2D Conectiv Energy Supply, Inc. and Subsidiary F-2E Conectiv Services, Inc. and Subsidiaries F-2F Conectiv Thermal Systems, Inc. and Subsidiaries F-2G Conectiv Solutions LLC and Subsidiaries F-2H Atlantic Generation, Inc. and Subsidiaries F-2I CONSOLIDATING STATEMENT OF CASH FLOWS FOR THE YEAR ENDED DECEMBER 31, 1999 Conectiv and Subsidiaries F-3A Delmarva Power and Light Company and Subsidiaries F-3B Atlantic City Electric Company and Subsidiaries F-3C Delmarva Capital Investments, Inc. and Subsidiaries F-3D Conectiv Energy Supply, Inc. and Subsidiary F-3E Conectiv Services, Inc. and Subsidiaries F-3F Conectiv Thermal Systems, Inc. and Subsidiaries F-3G Conectiv Solutions LLC and Subsidiaries F-3H Atlantic Generation, Inc. and Subsidiaries F-3I CONSOLIDATING STATEMENT OF RETAINED EARNINGS FOR THE YEAR ENDED DECEMBER 31, 1999 Conectiv and Subsidiaries F-4A Delmarva Power and Light Company and Subsidiaries F-4B Atlantic City Electric Company and Subsidiaries F-4C Delmarva Capital Investments, Inc. and Subsidiaries F-4D Conectiv Energy Supply, Inc. and Subsidiary F-4E Conectiv Services, Inc. and Subsidiaries F-4F Conectiv Thermal Systems, Inc. and Subsidiaries F-4G Conectiv Solutions LLC and Subsidiaries F-4H Atlantic Generation, Inc. and Subsidiaries F-4I
33 ITEM 10. Continued Consolidated Notes 1 through 26, pages II-33 through II-74, to the Consolidated Financial Statements of Conectiv's 1999 Form 10-K filed on March 29, 2000 is incorporated herein by reference. Consolidated Notes 1 through 23, pages II-23 through II-45, to the Consolidated Financial Statements of Atlantic City Electric Company's 1999 Form 10-K filed on March 29, 2000 is incorporated herein by reference. Consolidated Notes 1 through 23, pages II-23 through II-47 to the Consolidated Financial Statements of Delmarva Power & Light Company's 1999 Form 10-K filed on March 29, 2000 is incorporated herein by reference. 34 Conectiv and Subsidiaries Consolidating Statement of Income For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations Total Reclasses & Conectiv DPL ACE Conectiv Consolidations Parent Consolidated Consolidated ----------- -------------- ----------- ------------ ------------- OPERATING REVENUES Electric $ 2,459,970 $ -- $ -- $ 1,391,429 $ 1,068,541 Gas 816,245 (27,699) -- 810,573 -- Other services 468,682 (286,600) -- 33,521 8,044 ----------- ----------- ----------- ----------- ----------- $ 3,744,897 (314,298) -- 2,235,523 1,076,585 ----------- ----------- ----------- ----------- ----------- OPERATING EXPENSES Electric fuel and purchased power 952,348 -- -- 645,594 306,753 Gas purchased 754,990 (27,268) -- 754,990 -- Other services' cost of sales 374,918 (26,653) -- 24,805 -- Purchased electric capacity 216,444 -- -- 42,815 173,628 Special charges 105,648 -- -- 10,504 12,301 Operation and maintenance 634,966 (265,588) 1,732 271,693 253,970 Depreciation and amortization 271,348 7,073 -- 128,927 113,714 Taxes other than income taxes 88,646 -- 271 41,934 44,288 ----------- ----------- ----------- ----------- ----------- 3,399,308 (312,436) 2,003 1,921,262 904,655 ----------- ----------- ----------- ----------- ----------- OPERATING INCOME 345,589 (1,862) (2,003) 314,262 171,931 ----------- ----------- ----------- ----------- ----------- OTHER INCOME Allowance for equity funds used during construction 2,461 -- -- 1,677 783 Other income 68,421 (67,851) 513 4,441 7,929 Minority interest inc. or exp. -- (1,755) -- -- -- Equity in consol subs 0 (117,506) 129,209 -- -- ----------- ----------- ----------- ----------- ----------- 70,881 (187,113) 129,722 6,118 8,712 ----------- ----------- ----------- ----------- ----------- INTEREST EXPENSE Interest charges 182,821 -- 22,557 78,754 60,562 Allowance for borrowed funds used during construction and capitalized interest (5,639) -- -- (1,562) (809) ----------- ----------- ----------- ----------- ----------- 177,183 -- 22,557 77,193 59,753 ----------- ----------- ----------- ----------- ----------- PREFERRED STOCK DIVIDEND REQUIREMENTS OF SUBSIDIARIES 19,894 6,572 -- 5,687 7,634 ----------- ----------- ----------- ----------- ----------- INCOME BEFORE INCOME TAXES AND EXTRAORDINARY ITEM 219,394 (195,547) 105,162 237,500 113,256 INCOME TAXES, EXCLUDING INCOME TAXES APPLICABLE TO EXTRAORDINARY ITEM 105,816 (25,588) (8,416) 95,321 49,326 ----------- ----------- ----------- ----------- ----------- INCOME BEFORE EXTRAORDINARY ITEM 113,578 (169,959) 113,578 142,179 63,930 EXTRAORDINARY ITEM (311,718) 311,718 (311,718) (253,622) (58,095) ----------- ----------- ----------- ----------- ----------- NET INCOME (LOSS) (198,140) 141,759 (198,140) (111,443) 5,835 ----------- ----------- ----------- ----------- ----------- DIVIDENDS ON PREFERRED STOCK -- (6,572) 4,440 2,132 ----------- ----------- ----------- ----------- ----------- EARNINGS APPLICABLE TO COMMON STOCK (198,140) 148,331 (198,140) (115,883) 3,703 =========== =========== =========== =========== =========== EARNINGS (LOSS) APPLICABLE TO: Common stock Income before extraordinary item $ 106,639 Extraordinary item, net of income taxes (295,161) ----------- $ (188,522) Class A common stock Income before extraordinary item $ 6,939 Extraordinary item, net of income taxes (16,557) =========== $ (9,618) ===========
* CONFIDENTIAL TREATMENT REQUESTED F-1A Page 1 of 3 35 Conectiv and Subsidiaries Consolidating Statement of Income For the Year Ended December 31, 1999 (Dollars in Thousands)
DCI* CES* Consolidated Consolidated ASP* DSC* ------------ ------------ ------------ ------------- OPERATING REVENUES Electric $ - Gas - Other services - ------------ ------------ ------------ ------------- ------------ ------------ ------------ ------------- OPERATING EXPENSES Electric fuel and purchased power - Gas purchased - Other services' cost of sales - Purchased electric capacity - Special charges - Operation and maintenance (1,902) Depreciation and amortization 394 Taxes other than income taxes 95 ------------ ------------ ------------ ------------- (1,412) ------------ ------------ ------------ ------------- OPERATING INCOME 1,412 ------------ ------------ ------------ ------------- OTHER INCOME Allowance for equity funds used during construction - Other income 130 Minority interest inc. or exp. - Equity in consol subs - ------------ ------------ ------------ ------------- 130 ------------ ------------ ------------ ------------- INTEREST EXPENSE Interest charges 260 Allowance for borrowed funds used during construction and capitalized interest - ------------ ------------ ------------ ------------- 260 ------------ ------------ ------------ ------------- PREFERRED STOCK DIVIDEND REQUIREMENTS OF SUBSIDIARIES - ------------ ------------ ------------ ------------- INCOME BEFORE INCOME TAXES AND EXTRAORDINARY ITEM 1,283 INCOME TAXES, EXCLUDING INCOME TAXES APPLICABLE TO EXTRAORDINARY ITEM 484 ------------ ------------ ------------ ------------- INCOME BEFORE EXTRAORDINARY ITEM 798 EXTRAORDINARY ITEM - ------------ ------------ ------------ ------------- NET INCOME (LOSS) 798 ------------ ------------ ------------ ------------- DIVIDENDS ON PREFERRED STOCK ------------ ------------ ------------ ------------- EARNINGS APPLICABLE TO COMMON STOCK 798 ============ ============ ============ =============
EARNINGS (LOSS) APPLICABLE TO: Common stock Income before extraordinary item Extraordinary item, net of income taxes Class A common stock Income before extraordinary item Extraordinary item, net of income taxes
CSI* Consolidated CCI* ------------ ---------- OPERATING REVENUES Electric Gas Other services ------------ ---------- ------------ ---------- OPERATING EXPENSES Electric fuel and purchased power Gas purchased Other services' cost of sales Purchased electric capacity Special charges Operation and maintenance Depreciation and amortization Taxes other than income taxes ------------ ---------- ------------ ---------- OPERATING INCOME ------------ ---------- OTHER INCOME Allowance for equity funds used during construction Other income Minority interest inc. or exp. Equity in consol subs ------------ ---------- ------------ ---------- INTEREST EXPENSE Interest charges Allowance for borrowed funds used during construction and capitalized interest ------------ ---------- ------------ ---------- PREFERRED STOCK DIVIDEND REQUIREMENTS OF SUBSIDIARIES ------------ ---------- INCOME BEFORE INCOME TAXES AND EXTRAORDINARY ITEM INCOME TAXES, EXCLUDING INCOME TAXES APPLICABLE TO EXTRAORDINARY ITEM ------------ ---------- INCOME BEFORE EXTRAORDINARY ITEM EXTRAORDINARY ITEM ------------ ---------- NET INCOME (LOSS) ------------ ---------- DIVIDENDS ON PREFERRED STOCK ------------ ---------- EARNINGS APPLICABLE TO COMMON STOCK ============ ==========
EARNINGS (LOSS) APPLICABLE TO: Common stock Income before extraordinary item Extraordinary item, net of income taxes Class A common stock Income before extraordinary item Extraordinary item, net of income taxes * CONFIDENTIAL TREATMENT REQUESTED F-1A Page 2 of 3 36 Conectiv and Subsidiaries Consolidating Statement of Income For the Year Ended December 31, 1999 (Dollars in Thousands)
Solutions* AGI* Conectiv* Consolidated CRP* Consolidated Energy ------------ --------- ------------ -------- OPERATING REVENUES Electric $ - Gas - Other services 253,145 ------------ --------- ------------ -------- 253,145 ------------ --------- ------------ -------- OPERATING EXPENSES Electric fuel and purchased power - Gas purchased - Other services' cost of sales - Purchased electric capacity - Special charges - Operation and maintenance 241,960 Depreciation and amortization 7,194 Taxes other than income taxes 202 ------------ --------- ------------ -------- 249,356 ------------ --------- ------------ -------- OPERATING INCOME 3,789 ------------ --------- ------------ -------- OTHER INCOME Allowance for equity funds used during construction - Other income 213 Minority interest inc. or exp. - Equity in consol subs - ------------ --------- ------------ -------- 213 ------------ --------- ------------ -------- INTEREST EXPENSE Interest charges 4,710 Allowance for borrowed funds used during construction and capitalized interest (709) ------------ --------- ------------ -------- 4,001 ------------ --------- ------------ -------- PREFERRED STOCK DIVIDEND REQUIREMENTS OF SUBSIDIARIES - ------------ --------- ------------ -------- INCOME BEFORE INCOME TAXES AND EXTRAORDINARY ITEM 0 INCOME TAXES, EXCLUDING INCOME TAXES APPLICABLE TO EXTRAORDINARY ITEM 105 ------------ --------- ------------ -------- INCOME BEFORE EXTRAORDINARY ITEM (105) EXTRAORDINARY ITEM - ------------ --------- ------------ -------- NET INCOME (LOSS) (105) ------------ --------- ------------ -------- DIVIDENDS ON PREFERRED STOCK ------------ --------- ------------ -------- EARNINGS APPLICABLE TO COMMON STOCK (105) ============ ========= ============ ========
EARNINGS (LOSS) APPLICABLE TO: Common stock Income before extraordinary item Extraordinary item, net of income taxes Class A common stock Income before extraordinary item Extraordinary item, net of income taxes * CONFIDENTIAL TREATMENT REQUESTED F-1A Page 3 of 3 37 Delmarva Power and Light and Subsidiaries Consolidating Statement of Income For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Total DPL Reclasses & DPL DPL Consolidated Consol. Entries Parent Financing ------------ --------------- ---------- --------- OPERATING REVENUES Electric 1,391,429 -- 1,391,429 -- Gas 810,573 -- 810,573 -- Other services 33,521 -- 33,521 -- ---------- ---------- ---------- ---------- 2,235,523 -- 2,235,523 -- ---------- ---------- ---------- ---------- OPERATING EXPENSES Electric fuel and purchased power 645,594 -- 645,594 -- Gas purchased 754,990 -- 754,990 -- Other services' cost of sales 24,805 -- 24,805 -- Purchased electric capacity 42,815 -- 42,815 -- Special charges 10,504 -- 10,504 -- Operation and maintenance 271,693 -- 271,693 -- Depreciation and amortization 128,927 -- 128,927 -- Taxes other than income taxes 41,934 -- 41,934 -- ---------- ---------- ---------- ---------- 1,921,262 -- 1,921,262 -- ---------- ---------- ---------- ---------- OPERATING INCOME 314,261 -- 314,261 -- ---------- ---------- ---------- ---------- OTHER INCOME Allowance for equity funds used during construction 1,677 -- 1,677 -- Other income 4,441 (5,863) 4,617 5,688 Minority interest inc. or exp -- -- -- -- Equity in consol subs -- -- -- -- ---------- ---------- ---------- ---------- 6,118 (5,863) 6,294 5,688 ---------- ---------- ---------- ---------- INTEREST EXPENSE Interest charges 78,754 (5,863) 84,618 -- Allowance for borrowed funds used during construction and capitalized interest (1,562) -- (1,562) -- ---------- ---------- ---------- ---------- 77,192 (5,863) 83,055 -- ---------- ---------- ---------- ---------- PREFERRED STOCK DIVIDEND REQUIREMENTS OF SUBSIDIARIES 5,687 -- -- 5,687 ---------- ---------- ---------- ---------- INCOME BEFORE INCOME TAXES AND EXTRAORDINARY ITEM 237,500 -- 237,500 0 INCOME TAXES, EXCLUDING INCOME TAXES APPLICABLE TO EXTRAORDINARY ITEM 95,321 -- 95,321 -- ---------- ---------- ---------- ---------- INCOME BEFORE EXTRAORDINARY ITEM 142,179 -- 142,179 0 EXTRAORDINARY ITEM (253,622) -- (253,622) -- ---------- ---------- ---------- ---------- NET INCOME (LOSS) (111,443) -- (111,443) 0 ---------- ---------- ---------- ---------- DIVIDENDS ON PREFERRED STOCK 4,440 -- 4,440 -- ---------- ---------- ---------- ---------- EARNINGS APPLICABLE TO COMMON STOCK (115,883) -- (115,883) 0 ========== ========== ========== ==========
EARNINGS (LOSS) APPLICABLE TO: Common stock Income before extraordinary item Extraordinary item, net of income taxes Class A common stock Income before extraordinary item Extraordinary item, net of income taxes F-1B 38 Atlantic City Electric Company and Subsidiaries Consolidating Statement of Income For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Total ACE Reclasses & ACE ACE ACE Consolidated Consol. Entries Parent Capital I Capital II ------------ -------------- --------- ---------- ---------- OPERATING REVENUES Electric 1,068,541 -- 1,068,541 -- -- Gas -- -- -- -- -- Other services 8,044 -- 8,044 -- -- ---------- ---------- ---------- ---------- ---------- 1,076,585 -- 1,076,585 -- -- ---------- ---------- ---------- ---------- ---------- OPERATING EXPENSES Electric fuel and purchased power 306,753 -- 306,753 -- -- Gas purchased -- -- -- -- -- Other services' cost of sales -- -- -- -- -- Purchased electric capacity 173,628 -- 173,628 -- -- Special charges 12,301 -- 12,301 -- -- Operation and maintenance 253,970 -- 253,970 -- -- Depreciation and amortization 113,714 -- 113,714 -- -- Taxes other than income taxes 44,288 -- 44,288 -- -- ---------- ---------- ---------- ---------- ---------- 904,654 -- 904,654 -- -- ---------- ---------- ---------- ---------- ---------- OPERATING INCOME 171,931 -- 171,931 -- -- ---------- ---------- ---------- ---------- ---------- OTHER INCOME Allowance for equity funds used during construction 783 -- 783 -- -- Other income 7,929 (7,854) 8,149 5,775 1,859 Minority interest inc. or exp -- -- -- -- -- Equity in consol subs -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- 8,712 (7,854) 8,933 5,775 1,859 ---------- ---------- ---------- ---------- ---------- INTEREST EXPENSE Interest charges 60,562 (7,854) 68,417 -- -- Allowance for borrowed funds used during construction and capitalized interest (809) -- (809) -- -- ---------- ---------- ---------- ---------- ---------- 59,753 (7,854) 67,608 -- -- ---------- ---------- ---------- ---------- ---------- PREFERRED STOCK DIVIDEND REQUIREMENTS OF SUBSIDIARIES 7,634 -- -- 5,775 1,859 ---------- ---------- ---------- ---------- ---------- INCOME BEFORE INCOME TAXES AND EXTRAORDINARY ITEM 113,255 -- 113,255 -- 0 INCOME TAXES, EXCLUDING INCOME TAXES APPLICABLE TO EXTRAORDINARY ITEM 49,326 -- 49,326 -- -- ---------- ---------- ---------- ---------- ---------- INCOME BEFORE EXTRAORDINARY ITEM 63,930 -- 63,930 -- 0 EXTRAORDINARY ITEM (58,095) -- (58,095) -- -- ---------- ---------- ---------- ---------- ---------- NET INCOME (LOSS) 5,835 -- 5,835 -- 0 ---------- ---------- ---------- ---------- ---------- DIVIDENDS ON PREFERRED STOCK 2,132 -- 2,132 -- -- ---------- ---------- ---------- ---------- ---------- EARNINGS APPLICABLE TO COMMON STOCK 3,703 -- 3,703 -- 0 ========== ========== ========== ========== ==========
EARNINGS (LOSS) APPLICABLE TO: Common stock Income before extraordinary item Extraordinary item, net of income taxes Class A common stock Income before extraordinary item Extraordinary item, net of income taxes F-1C 39 Delmarva Capital Investments, Inc. and Subsidiaries* Consolidating Statement of Income For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations Total DCI Reclasses & DCI Consolidated Consol. Entries Parent DCI I ------------ --------------- ----------- ------------ OPERATING REVENUES Electric Gas Other services ------------ ------------ ------------ ------------- OPERATING EXPENSES Electric fuel and purchased power Gas purchased Other services' cost of sales Purchased electric capacity Special charges Operation and maintenance Depreciation and amortization Taxes other than income taxes ------------ ------------ ------------ ------------- ------------ ------------ ------------ ------------- OPERATING INCOME ------------ ------------ ------------ ------------- OTHER INCOME Allowance for equity funds used during construction Other income Minority interest inc. or exp. Equity in consol subs ------------ ------------ ------------ ------------- ------------ ------------ ------------ ------------- INTEREST EXPENSE Interest charges Allowance for borrowed funds used during construction and capitalized interest ------------ ------------ ------------ ------------- PREFERRED STOCK DIVIDEND REQUIREMENTS OF SUBSIDIARIES INCOME BEFORE INCOME TAXES AND EXTRAORDINARY ITEM INCOME TAXES, EXCLUDING INCOME TAXES APPLICABLE TO EXTRAORDINARY ITEM ------------ ------------ ------------ ------------- INCOME BEFORE EXTRAORDINARY ITEM EXTRAORDINARY ITEM ------------ ------------ ------------ ------------- NET INCOME (LOSS) ------------ ------------ ------------ ------------- DIVIDENDS ON PREFERRED STOCK ------------ ------------ ------------ ------------- EARNINGS APPLICABLE TO COMMON STOCK ============ ============ ============ ============= EARNINGS (LOSS) APPLICABLE TO: Common stock Income before extraordinary item Extraordinary item, net of income taxes Class A common stock Income before extraordinary item Extraordinary item, net of income taxes
DCI II Burney ------------ ---------- OPERATING REVENUES Electric Gas Other services ------------ ---------- OPERATING EXPENSES Electric fuel and purchased power Gas purchased Other services' cost of sales Purchased electric capacity Special charges Operation and maintenance Depreciation and amortization Taxes other than income taxes ------------ ---------- ------------ ---------- OPERATING INCOME ------------ ---------- OTHER INCOME Allowance for equity funds used during construction Other income Minority interest inc. or exp. Equity in consol subs ------------ ---------- ------------ ---------- INTEREST EXPENSE Interest charges Allowance for borrowed funds used during construction and capitalized interest ------------ ---------- PREFERRED STOCK DIVIDEND REQUIREMENTS OF SUBSIDIARIES INCOME BEFORE INCOME TAXES AND EXTRAORDINARY ITEM INCOME TAXES, EXCLUDING INCOME TAXES APPLICABLE TO EXTRAORDINARY ITEM ------------ ---------- INCOME BEFORE EXTRAORDINARY ITEM EXTRAORDINARY ITEM ------------ ---------- NET INCOME (LOSS) ------------ ---------- DIVIDENDS ON PREFERRED STOCK ------------ ---------- EARNINGS APPLICABLE TO COMMON STOCK ============ ========== EARNINGS (LOSS) APPLICABLE TO: Common stock Income before extraordinary item Extraordinary item, net of income taxes Class A common stock Income before extraordinary item Extraordinary item, net of income taxes
* CONFIDENTIAL TREATMENT REQUESTED F-1D 40 Conectiv Energy Supply, Inc. and Subsidiaries* Consolidating Statement of Income For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Conectiv Total CES Reclasses & Energy Consolidated Consol. Entries Parent COSC ------------- --------------- ---------- ---------- OPERATING REVENUES Electric Gas Other services ------------- --------------- ---------- ---------- ------------- --------------- ---------- ---------- OPERATING EXPENSES Electric fuel and purchased power Gas purchased Other services' cost of sales Purchased electric capacity Special charges Operation and maintenance Depreciation and amortization Taxes other than income taxes ------------- --------------- ---------- ---------- ------------- --------------- ---------- ---------- OPERATING INCOME ------------- --------------- ---------- ---------- OTHER INCOME Allowance for equity funds used during construction Other income Minority interest inc. or exp. Equity in consol subs ------------- --------------- ---------- ---------- ------------- --------------- ---------- ---------- INTEREST EXPENSE Interest charges Allowance for borrowed funds used during construction and capitalized interest ------------- --------------- ---------- ---------- ------------- --------------- ---------- ---------- PREFERRED STOCK DIVIDEND REQUIREMENTS OF SUBSIDIARIES ------------- --------------- ---------- ---------- INCOME BEFORE INCOME TAXES AND EXTRAORDINARY ITEM INCOME TAXES, EXCLUDING INCOME TAXES APPLICABLE TO EXTRAORDINARY ITEM ------------- --------------- ---------- ---------- INCOME BEFORE EXTRAORDINARY ITEM EXTRAORDINARY ITEM ------------- --------------- ---------- ---------- NET INCOME (LOSS) ------------- --------------- ---------- ---------- DIVIDENDS ON PREFERRED STOCK ------------- --------------- ---------- ---------- EARNINGS APPLICABLE TO COMMON STOCK ============= =============== ========== ========== EARNINGS (LOSS) APPLICABLE TO: Common stock Income before extraordinary item Extraordinary item, net of income taxes Class A common stock Income before extraordinary item Extraordinary item, net of income taxes
* CONFIDENTIAL TREATMENT REQUESTED F-1E 41 Conectiv Services, Inc. and Subsidiaries Consolidating Statement of Income For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Total CSI Reclasses & Consolidated Consol. Entries CSI ------------ --------------- --------- OPERATING REVENUES Electric Gas Other services ------------ --------------- --------- ------------ --------------- --------- OPERATING EXPENSES Electric fuel and purchased power Gas purchased Other services' cost of sales Purchased electric capacity Special charges Operation and maintenance Depreciation and amortization Taxes other than income taxes ------------ --------------- --------- ------------ --------------- --------- OPERATING INCOME ------------ --------------- --------- OTHER INCOME Allowance for equity funds used during construction Other income Minority interest inc. or exp. Equity in consol subs ------------ --------------- --------- ------------ --------------- --------- INTEREST EXPENSE Interest charges Allowance for borrowed funds used during construction and capitalized interest ------------ --------------- --------- ------------ --------------- --------- PREFERRED STOCK DIVIDEND REQUIREMENTS OF SUBSIDIARIES ------------ --------------- --------- INCOME BEFORE INCOME TAXES AND EXTRAORDINARY ITEM INCOME TAXES, EXCLUDING INCOME TAXES APPLICABLE TO EXTRAORDINARY ITEM ------------ --------------- --------- INCOME BEFORE EXTRAORDINARY ITEM EXTRAORDINARY ITEM ------------ --------------- --------- NET INCOME (LOSS) ------------ --------------- --------- DIVIDENDS ON PREFERRED STOCK ------------ --------------- --------- EARNINGS APPLICABLE TO COMMON STOCK ============ =============== =========
EARNINGS (LOSS) APPLICABLE TO: Common stock Income before extraordinary item Extraordinary item, net of income taxes Class A common stock Income before extraordinary item Extraordinary item, net of income taxes
CTS Plumbing Consolidated ENERVAL -------- ------------ ------- OPERATING REVENUES Electric Gas Other services -------- ------------ ------- -------- ------------ ------- OPERATING EXPENSES Electric fuel and purchased power Gas purchased Other services' cost of sales Purchased electric capacity Special charges Operation and maintenance Depreciation and amortization Taxes other than income taxes -------- ------------ ------- -------- ------------ ------- OPERATING INCOME -------- ------------ ------- OTHER INCOME Allowance for equity funds used during construction Other income Minority interest inc. or exp. Equity in consol subs -------- ------------ ------- -------- ------------ ------- INTEREST EXPENSE Interest charges Allowance for borrowed funds used during construction and capitalized interest -------- ------------ ------- -------- ------------ ------- PREFERRED STOCK DIVIDEND REQUIREMENTS OF SUBSIDIARIES -------- ------------ ------- INCOME BEFORE INCOME TAXES AND EXTRAORDINARY ITEM INCOME TAXES, EXCLUDING INCOME TAXES APPLICABLE TO EXTRAORDINARY ITEM -------- ------------ ------- INCOME BEFORE EXTRAORDINARY ITEM EXTRAORDINARY ITEM -------- ------------ ------- NET INCOME (LOSS) -------- ------------ ------- DIVIDENDS ON PREFERRED STOCK -------- ------------ ------- EARNINGS APPLICABLE TO COMMON STOCK ======== ============ =======
EARNINGS (LOSS) APPLICABLE TO: Common stock Income before extraordinary item Extraordinary item, net of income taxes Class A common stock Income before extraordinary item Extraordinary item, net of income taxes * CONFIDENTIAL TREATMENT REQUESTED F-1F 42 Conectiv Thermal Systems, Inc. and Subsidiaries Consolidating Statement of Income For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Total CTS Reclasses & CTS Consolidated Consol. Entries Parent ------------ --------------- ----------- OPERATING REVENUES Electric Gas Other services ------------ --------------- ----------- ------------ --------------- ----------- OPERATING EXPENSES Electric fuel and purchased power Gas purchased Other services' cost of sales Purchased electric capacity Special charges Operation and maintenance Depreciation and amortization Taxes other than income taxes ------------ --------------- ----------- ------------ --------------- ----------- OPERATING INCOME ------------ --------------- ----------- OTHER INCOME Allowance for equity funds used during construction Other income Minority interest inc. or exp. Equity in consol subs ------------ --------------- ----------- ------------ --------------- ----------- INTEREST EXPENSE Interest charges Allowance for borrowed funds used during construction and capitalized interest ------------ --------------- ----------- ------------ --------------- ----------- PREFERRED STOCK DIVIDEND REQUIREMENTS OF SUBSIDIARIES ------------ --------------- ----------- INCOME BEFORE INCOME TAXES AND EXTRAORDINARY ITEM INCOME TAXES, EXCLUDING INCOME TAXES APPLICABLE TO EXTRAORDINARY ITEM ------------ --------------- ----------- INCOME BEFORE EXTRAORDINARY ITEM EXTRAORDINARY ITEM ------------ --------------- ----------- NET INCOME (LOSS) ------------ --------------- ----------- DIVIDENDS ON PREFERRED STOCK ------------ --------------- ----------- EARNINGS APPLICABLE TO COMMON STOCK ============ =============== ===========
EARNINGS (LOSS) APPLICABLE TO: Common stock Income before extraordinary item Extraordinary item, net of income taxes Class A common stock Income before extraordinary item Extraordinary item, net of income taxes
ATS Operations AJTS TELP ---------- ---------- --------- OPERATING REVENUES Electric Gas Other services ---------- ---------- --------- ---------- ---------- --------- OPERATING EXPENSES Electric fuel and purchased power Gas purchased Other services' cost of sales Purchased electric capacity Special charges Operation and maintenance Depreciation and amortization Taxes other than income taxes ---------- ---------- --------- ---------- ---------- --------- OPERATING INCOME ---------- ---------- --------- OTHER INCOME Allowance for equity funds used during construction Other income Minority interest inc. or exp. Equity in consol subs ---------- ---------- --------- ---------- ---------- --------- INTEREST EXPENSE Interest charges Allowance for borrowed funds used during construction and capitalized interest ---------- ---------- --------- ---------- ---------- --------- PREFERRED STOCK DIVIDEND REQUIREMENTS OF SUBSIDIARIES ---------- ---------- --------- INCOME BEFORE INCOME TAXES AND EXTRAORDINARY ITEM INCOME TAXES, EXCLUDING INCOME TAXES APPLICABLE TO EXTRAORDINARY ITEM ---------- ---------- --------- INCOME BEFORE EXTRAORDINARY ITEM EXTRAORDINARY ITEM ---------- ---------- --------- NET INCOME (LOSS) ---------- ---------- --------- DIVIDENDS ON PREFERRED STOCK ---------- ---------- --------- EARNINGS APPLICABLE TO COMMON STOCK ========== ========== =========
EARNINGS (LOSS) APPLICABLE TO: Common stock Income before extraordinary item Extraordinary item, net of income taxes Class A common stock Income before extraordinary item Extraordinary item, net of income taxes * CONFIDENTIAL TREATMENT REQUESTED F-1G 43 Conectiv Solutions, Inc. and Subsidiaries Consolidating Statement of Income For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Total Solutions Reclasses & Solutions ATE Consolidated Consol. Entries Parent Consolidated ------------ --------------- --------- ------------- OPERATING REVENUES Electric Gas Other services ------------ --------------- --------- ------------- ------------ --------------- --------- ------------- OPERATING EXPENSES Electric fuel and purchased power Gas purchased Other services' cost of sales Purchased electric capacity Special charges Operation and maintenance Depreciation and amortization Taxes other than income taxes ------------ --------------- --------- ------------- ------------ --------------- --------- ------------- OPERATING INCOME ------------ --------------- --------- ------------- OTHER INCOME Allowance for equity funds used during construction Other income Minority interest inc. or exp. Equity in consol subs ------------ --------------- --------- ------------- ------------ --------------- --------- ------------- INTEREST EXPENSE Interest charges Allowance for borrowed funds used during construction and capitalized interest ------------ --------------- --------- ------------- ------------ --------------- --------- ------------- PREFERRED STOCK DIVIDEND REQUIREMENTS OF SUBSIDIARIES ------------ --------------- --------- ------------- INCOME BEFORE INCOME TAXES AND EXTRAORDINARY ITEM INCOME TAXES, EXCLUDING INCOME TAXES APPLICABLE TO EXTRAORDINARY ITEM ------------ --------------- --------- ------------- INCOME BEFORE EXTRAORDINARY ITEM EXTRAORDINARY ITEM ------------ --------------- --------- ------------- NET INCOME (LOSS) ------------ --------------- --------- ------------- DIVIDENDS ON PREFERRED STOCK ------------ --------------- --------- ------------- EARNINGS APPLICABLE TO COMMON STOCK ============ =============== ========= =============
EARNINGS (LOSS) APPLICABLE TO: Common stock Income before extraordinary item Extraordinary item, net of income taxes Class A common stock Income before extraordinary item Extraordinary item, net of income taxes
King St. Elimination ATE Assurance ATE/King St. ---------- --------- ------------ OPERATING REVENUES Electric Gas Other services ---------- --------- ------------ ---------- --------- ------------ OPERATING EXPENSES Electric fuel and purchased power Gas purchased Other services' cost of sales Purchased electric capacity Special charges Operation and maintenance Depreciation and amortization Taxes other than income taxes ---------- --------- ------------ ---------- --------- ------------ OPERATING INCOME ---------- --------- ------------ OTHER INCOME Allowance for equity funds used during construction Other income Minority interest inc. or exp. Equity in consol subs ---------- --------- ------------ ---------- --------- ------------ INTEREST EXPENSE Interest charges Allowance for borrowed funds used during construction and capitalized interest ---------- --------- ------------ ---------- --------- ------------ PREFERRED STOCK DIVIDEND REQUIREMENTS OF SUBSIDIARIES ---------- --------- ------------ INCOME BEFORE INCOME TAXES AND EXTRAORDINARY ITEM INCOME TAXES, EXCLUDING INCOME TAXES APPLICABLE TO EXTRAORDINARY ITEM ---------- --------- ------------ INCOME BEFORE EXTRAORDINARY ITEM EXTRAORDINARY ITEM ---------- --------- ------------ NET INCOME (LOSS) ---------- --------- ------------ DIVIDENDS ON PREFERRED STOCK ---------- --------- ------------ EARNINGS APPLICABLE TO COMMON STOCK ========== ========= ============
EARNINGS (LOSS) APPLICABLE TO: Common stock Income before extraordinary item Extraordinary item, net of income taxes Class A common stock Income before extraordinary item Extraordinary item, net of income taxes * CONFIDENTIAL TREATMENT REQUESTED F-1H 44 Atlantic Generation, Inc. and Subsidiaries Consolidating Statement of Income For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Total AGI Reclasses & AGI Consolidated Consol. Entries Parent Vin LTD ------------ --------------- -------- ------- OPERATING REVENUES Electric Gas Other services ------------ --------------- -------- ------- ------------ --------------- -------- ------- OPERATING EXPENSES Electric fuel and purchased power Gas purchased Other services' cost of sales Purchased electric capacity Special charges Operation and maintenance Depreciation and amortization Taxes other than income taxes ------------ --------------- -------- ------- ------------ --------------- -------- ------- OPERATING INCOME ------------ --------------- -------- ------- OTHER INCOME Allowance for equity funds used during construction Other income Minority interest inc. or exp. Equity in consol subs ------------ --------------- -------- ------- ------------ --------------- -------- ------- INTEREST EXPENSE Interest charges Allowance for borrowed funds used during construction and capitalized interest ------------ --------------- -------- ------- ------------ --------------- -------- ------- PREFERRED STOCK DIVIDEND REQUIREMENTS OF SUBSIDIARIES ------------ --------------- -------- ------- INCOME BEFORE INCOME TAXES AND EXTRAORDINARY ITEM INCOME TAXES, EXCLUDING INCOME TAXES APPLICABLE TO EXTRAORDINARY ITEM ------------ --------------- -------- ------- INCOME BEFORE EXTRAORDINARY ITEM EXTRAORDINARY ITEM ------------ --------------- -------- ------- NET INCOME (LOSS) ------------ --------------- -------- ------- DIVIDENDS ON PREFERRED STOCK ------------ --------------- -------- ------- EARNINGS APPLICABLE TO COMMON STOCK ============ =============== ======== =======
EARNINGS (LOSS) APPLICABLE TO: Common stock Income before extraordinary item Extraordinary item, net of income taxes Class A common stock Income before extraordinary item Extraordinary item, net of income taxes
Vin Gen Bing LTD Bing Gen Ped Gen ------- -------- -------- -------- OPERATING REVENUES Electric Gas Other services ------- -------- -------- -------- ------- -------- -------- -------- OPERATING EXPENSES Electric fuel and purchased power Gas purchased Other services' cost of sales Purchased electric capacity Special charges Operation and maintenance Depreciation and amortization Taxes other than income taxes ------- -------- -------- -------- ------- -------- -------- -------- OPERATING INCOME ------- -------- -------- -------- OTHER INCOME Allowance for equity funds used during construction Other income Minority interest inc. or exp. Equity in consol subs ------- -------- -------- -------- ------- -------- -------- -------- INTEREST EXPENSE Interest charges Allowance for borrowed funds used during construction and capitalized interest ------- -------- -------- -------- ------- -------- -------- -------- PREFERRED STOCK DIVIDEND REQUIREMENTS OF SUBSIDIARIES ------- -------- -------- -------- INCOME BEFORE INCOME TAXES AND EXTRAORDINARY ITEM INCOME TAXES, EXCLUDING INCOME TAXES APPLICABLE TO EXTRAORDINARY ITEM ------- -------- -------- -------- INCOME BEFORE EXTRAORDINARY ITEM EXTRAORDINARY ITEM ------- -------- -------- -------- NET INCOME (LOSS) ------- -------- -------- -------- DIVIDENDS ON PREFERRED STOCK ------- -------- -------- -------- EARNINGS APPLICABLE TO COMMON STOCK ======= ======== ======== ========
EARNINGS (LOSS) APPLICABLE TO: Common stock Income before extraordinary item Extraordinary item, net of income taxes Class A common stock Income before extraordinary item Extraordinary item, net of income taxes * CONFIDENTIAL TREATMENT REQUESTED F-1I 45 Conectiv and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 1999 (Dollars in Thousands)
ELIMINATIONS TOTAL RECLASSES & CONECTIV DPL ACE CONECTIV CONSOLIDATIONS PARENT CONSOLIDATED CONSOLIDATED ---------- -------------- ---------- ------------ ------------ ASSETS CURRENT ASSETS Cash and cash equivalents 56,239 -- 3,960 648 7,924 Dividends receivable from subsidiaries -- (23,536) 23,536 Accounts receivable 556,027 (9,165) 600 315,169 137,379 Allowance for Doubtful Accounts (11,564) -- -- (6,479) (3,500) Intercompany Loan Receivable (Money Pool) -- (280,245) 136,456 13,473 73,532 Inventories, at average cost Fuel (coal, oil and gas) 65,360 -- -- 45,686 19,598 Materials and supplies 58,177 -- -- 31,855 8,890 Prepaid New Jersey sales and excise taxes (2,048) -- -- -- (2,048) Deferred energy supply costs 8,612 -- -- 8,612 -- Other prepayments 20,295 -- -- 14,152 2,223 Taxes Receivable 15,584 (72,899) -- -- 88,483 Deferred income taxes, net 25,176 (1,842) 1,838 18,935 6,245 ---------- ---------- ---------- ---------- ---------- 791,857 (387,687) 166,390 442,050 338,726 ---------- ---------- ---------- ---------- ---------- INVESTMENTS Investment in leveraged leases 72,161 -- -- -- -- Funds held by trustee 173,247 -- -- 67,896 105,268 Investment in Consolidated Companies 205 (1,655,702) 1,647,529 103 103 Notes receivalbe from subsidiary companies -- (151,178) 151,178 -- Other investments 100,559 (2,383) 5,675 1,512 0 ---------- ---------- ---------- ---------- ---------- 346,172 (1,809,263) 1,804,382 69,510 105,371 ---------- ---------- ---------- ---------- ---------- PROPERTY, PLANT AND EQUIPMENT Electric generation 1,571,556 -- -- 1,314,657 256,899 Electric transmission and distribution 2,633,375 -- -- 1,398,574 1,224,644 Gas transmission and distribution 265,708 -- -- 265,708 -- Other electric and gas facilities 405,303 -- -- 202,953 128,388 Telecommunications, thermal systems, and other property, plant, and equipment 238,229 (1) -- 5,469 5,772 ---------- ---------- ---------- ---------- ---------- 5,114,170 (1) -- 3,187,361 1,615,703 Less: Accumulated depreciation 2,097,529 -- -- 1,434,597 626,080 ---------- ---------- ---------- ---------- ---------- Net plant in service 3,016,641 (1) -- 1,752,763 989,623 Construction work-in-progress 199,390 1 -- 64,747 46,025 Leased nuclear fuel, at amortized cost 55,983 25,592 30,391 Goodwill, net 369,468 275,792 -- 69,850 -- ---------- ---------- ---------- ---------- ---------- 3,641,482 275,792 -- 1,912,953 1,066,039 ---------- ---------- ---------- ---------- ---------- DEFERRED CHARGES AND OTHER ASSETS Recoverable stranded costs 1,030,049 -- -- 41,775 988,273 Deferred recoverable income taxes 93,853 -- -- 71,986 21,867 Unrecovered purchased power costs 28,923 -- -- -- 28,923 Unrecovered New Jersey state excise tax 22,567 -- -- -- 22,567 Deferred debt refinancing costs 21,113 -- -- 7,538 13,574 Deferred other postretirement benefit costs 32,479 -- -- -- 32,479 Prepaid employee benefits costs 35,005 (89,606) -- 129,962 -- Unamortized debt expense 28,045 -- 1,477 11,106 14,197 License fees 23,331 -- -- -- -- Other 41,450 460 297 17,904 19,818 ---------- ---------- ---------- ---------- ---------- 1,356,814 (89,146) 1,774 280,272 1,141,699 ---------- ---------- ---------- ---------- ---------- TOTAL ASSETS 6,136,325 (2,010,304) 1,972,546 2,704,785 2,651,834 ========== ========== ========== ========== ==========
F-2A Page 1 0f 6 46 Conectiv and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 1999 (Dollars in Thousands)
DCI * CES* CONSOLIDATED CONSOLIDATED ASP* ------------ ------------ ------------ ASSETS CURRENT ASSETS Cash and cash equivalents Dividends receivable from subsidiaries Accounts receivable Allowance for Doubtful Accounts Intercompany Loan Receivable (Money Pool) Inventories, at average cost Fuel (coal, oil and gas) Materials and supplies Prepaid New Jersey sales and excise taxes Deferred energy supply costs Other prepayments Taxes Receivable Deferred income taxes, net ---------------- ---------------- ---------------- ---------------- ---------------- ---------------- INVESTMENTS Investment in leveraged leases Funds held by trustee Investment in Consolidated Companies Notes receivalbe from subsidiary companies Other investments ---------------- ---------------- ---------------- ---------------- ---------------- ---------------- PROPERTY, PLANT AND EQUIPMENT Electric generation Electric transmission and distribution Gas transmission and distribution Other electric and gas facilities Telecommunications, thermal systems, and other property, plant, and equipment ---------------- ---------------- ---------------- Less: Accumulated depreciation ---------------- ---------------- ---------------- Net plant in service Construction work-in-progress Leased nuclear fuel, at amortized cost Goodwill, net ---------------- ---------------- ---------------- ---------------- ---------------- ---------------- DEFERRED CHARGES AND OTHER ASSETS Recoverable stranded costs Deferred recoverable income taxes Unrecovered purchased power costs Unrecovered New Jersey state excise tax Deferred debt refinancing costs Deferred other postretirement benefit costs Prepaid employee benefits costs Unamortized debt expense License fees Other ---------------- ---------------- ---------------- ---------------- ---------------- ---------------- TOTAL ASSETS ================ ================ ================ CSI * DSC* Consolidated ------------ ------------ ASSETS CURRENT ASSETS Cash and cash equivalents - Dividends receivable from subsidiaries Accounts receivable 155 Allowance for Doubtful Accounts - Intercompany Loan Receivable (Money Pool) 2,460 Inventories, at average cost Fuel (coal, oil and gas) - Materials and supplies - Prepaid New Jersey sales and excise taxes Deferred energy supply costs - Other prepayments - Taxes Receivable - Deferred income taxes, net ---------------- ---------------- 2,615 ---------------- ---------------- INVESTMENTS Investment in leveraged leases - Funds held by trustee - Investment in Consolidated Companies - Notes receivalbe from subsidiary companies Other investments 1,571 ---------------- ---------------- 1,571 ---------------- ---------------- PROPERTY, PLANT AND EQUIPMENT Electric generation - Electric transmission and distribution - Gas transmission and distribution - Other electric and gas facilities - Telecommunications, thermal systems, and other property, plant, and equipment 15,479 ---------------- ---------------- 15,479 Less: Accumulated depreciation 5,128 ---------------- ---------------- Net plant in service 10,350 Construction work-in-progress - Leased nuclear fuel, at amortized cost - Goodwill, net - ---------------- ---------------- 10,350 ---------------- ---------------- DEFERRED CHARGES AND OTHER ASSETS Recoverable stranded costs - Deferred recoverable income taxes - Unrecovered purchased power costs - Unrecovered New Jersey state excise tax - Deferred debt refinancing costs - Deferred other postretirement benefit costs - Prepaid employee benefits costs - Unamortized debt expense 32 License fees - Other 43 ---------------- ---------------- 76 ---------------- ---------------- TOTAL ASSETS 14,611 ================ ================
F-2A Page 2 of 6 47 Conectiv and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 1999 (Dollars in Thousands)
Solutions* CCI* Consolidated CRP* ---------------- ---------------- ---------------- ASSETS Current Assets Cash and cash equivalents 407 Dividends receivable from subsidiaries Accounts receivable 39,694 Allowance for Doubtful Accounts - Intercompany Loan Receivable (Money Pool) - Inventories, at average cost Fuel (coal, oil and gas) - Materials and supplies - Prepaid New Jersey sales and excise taxes Deferred energy supply costs - Other prepayments 1,193 Taxes Receivable - Deferred income taxes, net ---------------- ---------------- ---------------- 41,294 ---------------- ---------------- ---------------- Investments Investment in leveraged leases - Funds held by trustee - Investment in Consolidated Companies - Notes receivalbe from subsidiary companies Other investments - ---------------- ---------------- ---------------- - ---------------- ---------------- ---------------- Property, Plant and Equipment Electric generation - Electric transmission and distribution 10,157 Gas transmission and distribution - Other electric and gas facilities 73,962 Telecommunications, thermal systems, and other property, plant, and equipment - ---------------- ---------------- ---------------- 84,119 Less: Accumulated depreciation 6,537 ---------------- ---------------- ---------------- Net plant in service 77,582 Construction work-in-progress 8,286 Leased nuclear fuel, at amortized cost - Goodwill, net - ---------------- ---------------- ---------------- 85,867 ---------------- ---------------- ---------------- Deferred Charges and Other Assets Recoverable stranded costs - Deferred recoverable income taxes - Unrecovered purchased power costs - Unrecovered New Jersey state excise tax - Deferred debt refinancing costs - Deferred other postretirement benefit costs - Prepaid employee benefits costs (4,295) Unamortized debt expense - License fees - Other (59) ---------------- ---------------- ---------------- (4,354) ---------------- ---------------- ---------------- Total Assets 122,807 ================ ================ ================ AGI * Conectiv * Consolidated Energy ---------------- ---------------- ASSETS Current Assets Cash and cash equivalents Dividends receivable from subsidiaries Accounts receivable Allowance for Doubtful Accounts Intercompany Loan Receivable (Money Pool) Inventories, at average cost Fuel (coal, oil and gas) Materials and supplies Prepaid New Jersey sales and excise taxes Deferred energy supply costs Other prepayments Taxes Receivable Deferred income taxes, net ---------------- ---------------- ---------------- ---------------- Investments Investment in leveraged leases Funds held by trustee Investment in Consolidated Companies Notes receivalbe from subsidiary companies Other investments ---------------- ---------------- ---------------- ---------------- Property, Plant and Equipment Electric generation Electric transmission and distribution Gas transmission and distribution Other electric and gas facilities Telecommunications, thermal systems, and other property, plant, and equipment ---------------- ---------------- Less: Accumulated depreciation ---------------- ---------------- Net plant in service Construction work-in-progress Leased nuclear fuel, at amortized cost Goodwill, net ---------------- ---------------- ---------------- ---------------- Deferred Charges and Other Assets Recoverable stranded costs Deferred recoverable income taxes Unrecovered purchased power costs Unrecovered New Jersey state excise tax Deferred debt refinancing costs Deferred other postretirement benefit costs Prepaid employee benefits costs Unamortized debt expense License fees Other ---------------- ---------------- ---------------- ---------------- Total Assets ================ ================
F - 2A Page 3 of 6 48 Conectiv and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations Total Reclasses & Conectiv Conectiv Consolidations Parent ---------------- ---------------- ----------------- CURRENT LIABILITIES Short-term debt 579,688 - 549,685 Long-term debt due within one year 48,937 1,317 - Variable rate demand bonds 158,430 - - Intercompany Loan Payable (Money Pool) - (410,073) - Accounts payable 307,764 (21,223) - Taxes accrued - (72,899) 8,231 Interest accrued 41,137 (1,838) - Dividends payable 27,545 (24,517) 25,983 Deferred energy supply costs 46,375 42,647 - Current capital lease obligation 28,715 - - Above-market purchased energy contracts - - and other electric restructuring liabilities 41,101 - - Other 89,215 25 474 ---------------- ---------------- ----------------- 1,368,907 (486,562) 584,373 ---------------- ---------------- ----------------- DEFERRED CREDITS AND OTHER LIABILITIES Other postretirement benefits obligation 96,388 31,083 - Deferred income taxes, net 730,988 (82,457) - Deferred investment tax credits 74,431 - - Regulatory liability for New Jersey income tax benefit 49,262 - - Above-market purchased energy contracts and other electric restructuring liabilities 119,704 (42,646) - Deferred gain on termination of purchased energy contract 70,849 70,849 - Minority Interest Liability - (8,174) - Long-term capital lease obligation 30,395 - - Other 47,447 - ---------------- ---------------- ----------------- 1,219,464 (31,345) - ---------------- ---------------- ----------------- CAPITALIZATION Common stock: $0.01 per share par value 150,000,000 shares authorized; shares outstanding - - 86,173,169 in 1999, and 100,516,768 in 1998 863 (54,981) 863 Class A common stock, $0.01 par value; 10,000,000 shares authorized; shares outstanding - - 5,742,315 in 1999, 6,560,612 in 1998 57 - 57 Additional paid-in capital - - common stock 1,085,060 (1,235,897) 1,085,060 Additional paid-in capital - - Class A common stock 93,738 93,738 Retained (deficit) earnings (36,472) (200,202) (36,472) --------------- ---------------- ----------------- 1,143,246 (1,491,080) 1,143,246 Treasury shares, at cost: 167,513 shares in 1999; 185,030 shares in 1998 (3,446) - (3,446) Unearned compensation (1,627) - (1,627) --------------- ---------------- ----------------- Total common stockholders' equity 1,138,173 (1,491,080) 1,138,173 Preferred stock of subsidiaries: Not subject to mandatory redemption 95,933 (23,950) - Subject to mandatory redemption 188,950 23,950 - Long-term debt 2,124,898 (1,317) 250,000 --------------- ---------------- ----------------- 3,547,954 (1,492,398) 1,388,173 --------------- ---------------- ----------------- --------------- ---------------- ----------------- TOTAL CAPITALIZATION AND LIABILITIES 6,136,325 (2,010,304) 1,972,546 =============== ================ ================= DPL ACE Consolidated Consolidated --------------- ---------------- CURRENT LIABILITIES Short-term debt - 30,000 Long-term debt due within one year 1,545 46,075 Variable rate demand bonds 104,830 22,600 Intercompany Loan Payable (Money Pool) - - Accounts payable 207,073 61,188 Taxes accrued 31,621 - Interest accrued 20,160 20,182 Dividends payable 7,027 19,052 Deferred energy supply costs - 3,728 Current capital lease obligation 12,495 15,480 Above-market purchased energy contracts and other electric restructuring liabilities 33,109 7,992 Other 26,226 29,845 --------------- ---------------- 444,086 256,142 --------------- ---------------- DEFERRED CREDITS AND OTHER LIABILITIES Other postretirement benefits obligation - 62,484 Deferred income taxes, net 341,748 389,594 Deferred investment tax credits 34,823 39,608 Regulatory liability for New Jersey income tax benefit - 49,262 Above-market purchased energy contracts and other electric restructuring liabilities 102,781 59,568 Deferred gain on termination of purchased energy contract - - Minority Interest Liability - - Long-term capital lease obligation 14,175 14,911 Other 14,079 22,381 --------------- ---------------- 507,606 637,809 --------------- ---------------- CAPITALIZATION Common stock: $0.01 per share par value 150,000,000 shares authorized; shares outstanding - - 86,173,169 in 1999, and 100,516,768 in 1998 2 54,963 Class A common stock, $0.01 par value; 10,000,000 shares authorized; shares outstanding - - 5,742,315 in 1999, 6,560,612 in 1998 - - Additional paid-in capital - - common stock 528,893 493,007 Additional paid-in capital - - Class A common stock - - Retained (deficit) earnings 147,288 129,981 --------------- ---------------- 676,183 677,951 Treasury shares, at cost: 167,513 shares in 1999; 185,030 shares in 1998 - - Unearned compensation - - --------------- ---------------- Total common stockholders' equity 676,183 677,951 Preferred stock of subsidiaries: Not subject to mandatory redemption 89,703 30,181 Subject to mandatory redemption 70,000 95,000 Long-term debt 917,207 954,752 --------------- ---------------- 1,753,093 1,757,884 --------------- ---------------- --------------- ---------------- TOTAL CAPITALIZATION AND LIABILITIES 2,704,785 2,651,834 =============== ================
*CONFIDENTIAL TREATMENT REQUESTED F - 2A Page 4 of 6 49 Conectiv and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 1999 (Dollars in Thousands)
DCI * CES* Consolidated Consolidated ASP* ---------------- ---------------- ---------------- Current Liabilities Short-term debt Long-term debt due within one year Variable rate demand bonds Intercompany Loan Payable (Money Pool) Accounts payable Taxes accrued Interest accrued Dividends payable Deferred energy supply costs Current capital lease obligation Above-market purchased energy contracts and other electric restructuring liabilities Other ---------------- ---------------- ---------------- ---------------- ---------------- ---------------- Deferred Credits and Other Liabilities Other postretirement benefits obligation Deferred income taxes, net Deferred investment tax credits Regulatory liability for New Jersey income tax benefit Above-market purchased energy contracts and other electric restructuring liabilities Deferred gain on termination of purchased energy contract Minority Interest Liability Long-term capital lease obligation Other ---------------- ---------------- ---------------- ---------------- ---------------- ---------------- Capitalization Common stock: $0.01 per share par value 150,000,000 shares authorized; shares outstanding -- 86,173,169 in 1999, and 100,516,768 in 1998 Class A common stock, $0.01 par value; 10,000,000 shares authorized; shares outstanding -- 5,742,315 in 1999, 6,560,612 in 1998 Additional paid-in capital -- common stock Additional paid-in capital -- Class A common stock Retained (deficit) earnings ---------------- ---------------- ---------------- Treasury shares, at cost: 167,513 shares in 1999; 185,030 shares in 1998 Unearned compensation ---------------- ---------------- ---------------- Total common stockholders' equity Preferred stock of subsidiaires: Not subject to mandatory redemption Subject to mandatory redemption Long-term debt ---------------- ---------------- ---------------- ---------------- ---------------- ---------------- ---------------- ---------------- ---------------- Total Capitalization and Liabilities ================ ================ ================ CSI * DSC* Consolidated ---------------- ---------------- Current Liabilities Short-term debt - Long-term debt due within one year - Variable rate demand bonds - Intercompany Loan Payable (Money Pool) - Accounts payable 1 Taxes accrued (99) Interest accrued - Dividends payable Deferred energy supply costs - Current capital lease obligation - Above-market purchased energy contracts and other electric restructuring liabilities - Other - ---------------- ---------------- (98) ---------------- ---------------- Deferred Credits and Other Liabilities Other postretirement benefits obligation - Deferred income taxes, net 2,724 Deferred investment tax credits - Regulatory liability for New Jersey income tax benefit - Above-market purchased energy contracts and other electric restructuring liabilities - Deferred gain on termination of purchased energy contract - Minority Interest Liability - Long-term capital lease obligation - Other - ---------------- ---------------- 2,724 ---------------- ---------------- Capitalization Common stock: $0.01 per share par value 150,000,000 shares authorized; shares outstanding - - 86,173,169 in 1999, and 100,516,768 in 1998 1 Class A common stock, $0.01 par value; 10,000,000 shares authorized; shares outstanding - - 5,742,315 in 1999, 6,560,612 in 1998 - Additional paid-in capital - - common stock 5,097 Additional paid-in capital - - Class A common stock - Retained (deficit) earnings 3,451 ---------------- ---------------- 8,549 Treasury shares, at cost: 167,513 shares in 1999; 185,030 shares in 1998 - Unearned compensation - ---------------- ---------------- Total common stockholders' equity 8,549 Preferred stock of subsidiaires: Not subject to mandatory redemption - Subject to mandatory redemption - Long-term debt 3,437 ---------------- ---------------- 3,437 ---------------- ---------------- ---------------- ---------------- Total Capitalization and Liabilities 14,611 ================ ================
*CONFIDENTIAL TREATMENT REQUESTED F - 2A Page 5 of 6 50 Conectiv and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 1999 (Dollars in Thousands)
Solutions* CCI* Consolidated CRP* --------------- --------------- --------------- Current Liabilities Short-term debt - Long-term debt due within one year Variable rate demand bonds Intercompany Loan Payable (Money Pool) 85,030 Accounts payable 15,180 Taxes accrued (4,668) Interest accrued 1,253 Dividends payable Deferred energy supply costs - Current capital lease obligation - Above-market purchased energy contracts and other electric restructuring liabilities - Other 15,914 --------------- --------------- --------------- 112,709 --------------- --------------- --------------- Deferred Credits and Other Liabilities Other postretirement benefits obligation 2,496 Deferred income taxes, net 7,695 Deferred investment tax credits - Regulatory liability for New Jersey income tax benefit - Above-market purchased energy contracts and other electric restructuring liabilities - Deferred gain on termination of purchased energy contract - Minority Interest Liability - Long-term capital lease obligation - Other 37 --------------- --------------- --------------- 10,228 --------------- --------------- --------------- Capitalization Common stock: $0.01 per share par value 150,000,000 shares authorized; shares outstanding -- 86,173,169 in 1999, and 100,516,768 in 1998 1 Class A common stock, $0.01 par value; 10,000,000 shares authorized; shares outstanding -- 5,742,315 in 1999, 6,560,612 in 1998 - Additional paid-in capital -- common stock - Additional paid-in capital -- Class A common stock - Retained (deficit) earnings (131) --------------- --------------- --------------- (130) Treasury shares, at cost: 167,513 shares in 1999; 185,030 shares in 1998 - Unearned compensation - --------------- --------------- --------------- Total common stockholders' equity (130) Preferred stock of subsidiaires: Not subject to mandatory redemption - Subject to mandatory redemption - Long-term debt - --------------- --------------- --------------- - --------------- --------------- --------------- --------------- --------------- --------------- Total Capitalization and Liabilities 122,807 =============== =============== =============== AGI * Conectiv * Consolidated Energy --------------- --------------- Current Liabilities Short-term debt Long-term debt due within one year Variable rate demand bonds Intercompany Loan Payable (Money Pool) Accounts payable Taxes accrued Interest accrued Dividends payable Deferred energy supply costs Current capital lease obligation Above-market purchased energy contracts and other electric restructuring liabilities Other --------------- --------------- --------------- --------------- Deferred Credits and Other Liabilities Other postretirement benefits obligation Deferred income taxes, net Deferred investment tax credits Regulatory liability for New Jersey income tax benefit Above-market purchased energy contracts and other electric restructuring liabilities Deferred gain on termination of purchased energy contract Minority Interest Liability Long-term capital lease obligation Other --------------- --------------- --------------- --------------- Capitalization Common stock: $0.01 per share par value 150,000,000 shares authorized; shares outstanding -- 86,173,169 in 1999, and 100,516,768 in 1998 Class A common stock, $0.01 par value; 10,000,000 shares authorized; shares outstanding -- 5,742,315 in 1999, 6,560,612 in 1998 Additional paid-in capital -- common stock Additional paid-in capital -- Class A common stock Retained (deficit) earnings --------------- --------------- Treasury shares, at cost: 167,513 shares in 1999; 185,030 shares in 1998 Unearned compensation --------------- --------------- Total common stockholders' equity Preferred stock of subsidiaires: Not subject to mandatory redemption Subject to mandatory redemption Long-term debt --------------- --------------- --------------- --------------- --------------- --------------- Total Capitalization and Liabilities =============== ===============
*CONFIDENTIAL TREATMENT REQUESTED F - 2A Page 6 0f 6 51 Delmarva Power and Light and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Total DPL Reclasses & DPL DPL Consolidated Consol. Entries Parent Financing ------------ --------------- ------ --------- ASSETS CURRENT ASSETS Cash and cash equivalents 648 -- 648 -- Accounts receivable 315,169 -- 315,169 -- Allowance for Doubtful Accounts (6,479) -- (6,479) -- Intercompany Loan Receivable (Money Pool) 13,473 -- 13,473 -- Inventories, at average cost Fuel (coal, oil and gas) 45,686 -- 45,686 -- Materials and supplies 31,855 -- 31,855 -- Prepaid New Jersey sales and excise taxes -- -- -- -- Deferred energy supply costs 8,612 -- 8,612 -- Other prepayments 14,152 -- 14,152 -- Taxes Receivable -- -- -- -- Deferred income taxes, net 18,935 -- 18,935 -- ---------- ---------- ---------- ---------- 442,050 -- 442,050 -- ---------- ---------- ---------- ---------- INVESTMENTS Investment in leveraged leases -- -- -- -- Funds held by trustee 67,896 -- 67,896 -- Investment in Consolidated Companies 103 (74,330) 2,268 72,165 Other investments 1,512 -- 1,512 -- ---------- ---------- ---------- ---------- 69,510 (74,330) 71,675 72,165 ---------- ---------- ---------- ---------- PROPERTY, PLANT AND EQUIPMENT Electric generation 1,314,657 -- 1,314,657 -- Electric transmission and distribution 1,398,574 -- 1,398,574 -- Gas transmission and distribution 265,708 -- 265,708 -- Other electric and gas facilities 202,953 -- 202,953 -- Telecommunications, thermal systems, and other property, plant, and equipment 5,469 -- 5,469 -- ---------- ---------- ---------- ---------- 3,187,361 -- 3,187,361 -- Less: Accumulated depreciation 1,434,597 -- 1,434,597 -- ---------- ---------- ---------- ---------- Net plant in service 1,752,763 -- 1,752,763 -- ---------- ---------- ---------- ---------- Construction work-in-progress 64,747 -- 64,747 -- Leased nuclear fuel, at amortized cost 25,592 -- 25,592 -- Goodwill, net 69,850 -- 69,850 -- ---------- ---------- ---------- ---------- 1,912,953 -- 1,912,953 -- ---------- ---------- ---------- ---------- DEFERRED CHARGES AND OTHER ASSETS Recoverable stranded costs 41,775 -- 41,775 -- Deferred recoverable income taxes 71,986 -- 71,986 -- Unrecovered purchased power costs -- -- -- -- Unrecovered New Jersey state excise tax -- -- -- -- Deferred debt refinancing costs 7,538 -- 7,538 -- Deferred other postretirement benefit costs -- -- -- -- Prepaid employee benefits costs 129,962 -- 129,962 -- Unamortized debt expense 11,106 -- 11,106 -- License fees -- -- -- -- Other 17,904 -- 17,904 -- ---------- ---------- ---------- ---------- 280,272 -- 280,272 -- ---------- ---------- ---------- ---------- TOTAL ASSETS 2,704,785 (74,330) 2,706,950 72,165 ========== ========== ========== ==========
F - 2B Page 1 of 2 52 Delmarva Power and Light and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Total DPL Reclasses & DPL DPL Consolidated Consol. Entries Parent Financing ------------ --------------- ------ --------- CURRENT LIABILITIES Short-term debt -- -- -- -- Long-term debt due within one year 1,545 -- 1,545 -- Variable rate demand bonds 104,830 -- 104,830 -- Accounts payable 207,073 -- 207,073 -- Taxes accrued 31,621 -- 31,621 -- Interest accrued 20,160 -- 20,160 -- Dividends payable 7,027 -- 7,027 -- Deferred energy supply costs -- -- -- -- Current capital lease obligation 12,495 -- 12,495 -- Above-market purchased energy contracts and other electric restructuring liabilities 33,109 -- 33,109 -- Other 26,226 -- 26,226 -- ---------- ---------- ---------- ---------- 444,086 -- 444,086 -- ---------- ---------- ---------- ---------- DEFERRED CREDITS AND OTHER LIABILITIES Other postretirement benefits obligation -- -- -- -- Deferred income taxes, net 341,748 -- 341,748 -- Deferred investment tax credits 34,823 -- 34,823 -- Regulatory liability for New Jersey income tax benefit -- -- -- -- Above-market purchased energy contracts and other electric restructuring liabilities 102,781 -- 102,781 -- Deferred gain on termination of purchased energy contract -- -- -- -- Minority Interest Liability -- -- -- -- Long-term capital lease obligation 14,175 -- 14,175 -- Other 14,079 -- 14,079 -- ---------- ---------- ---------- ---------- 507,606 -- 507,606 -- ---------- ---------- ---------- ---------- CAPITALIZATION Common stock: $0.01 per share par value 150,000,000 shares authorized; shares outstanding - - 86,173,169 in 1999, and 100,516,768 in 1998 2 (2,165) 2 2,165 Class A common stock, $0.01 par value; 10,000,000 shares authorized; shares outstanding - - 5,742,315 in 1999, 6,560,612 in 1998 -- -- -- -- Additional paid-in capital - - common stock 528,893 -- 528,893 -- Additional paid-in capital - - Class A common stock -- -- -- -- Retained (deficit) earnings 147,288 -- 147,288 -- ---------- ---------- ---------- ---------- 676,183 (2,165) 676,183 2,165 Treasury shares, at cost: 167,513 shares in 1999; 185,030 shares in 1998 -- -- -- -- Unearned compensation -- -- -- -- ---------- ---------- ---------- ---------- Total common stockholders' equity 676,183 (2,165) 676,183 2,165 Preferred stock of subsidiaires: Not subject to mandatory redemption 89,703 -- 89,703 -- Subject to mandatory redemption 70,000 -- -- 70,000 Advances from Associated Companies -- (72,165) 72,165 Long-term debt 917,207 -- 917,207 -- ---------- ---------- ---------- ---------- 1,076,910 (72,165) 1,079,075 70,000 ---------- ---------- ---------- ---------- ---------- ---------- ---------- ---------- TOTAL CAPITALIZATION AND LIABILITIES 2,704,785 (74,330) 2,706,950 72,165 ========== ========== ========== ==========
F - 2B Page 2 of 2 53 Atlantic City Electric Company and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Total ACE Reclasses & ACE ACE ACE Consolidated Consol. Entries Parent Capital I Capital II ------------ --------------- ------ --------- ---------- ASSETS Current Assets Cash and cash equivalents 7,924 -- 7,924 -- -- Accounts receivable 137,379 -- 137,379 -- -- Allowance for Doubtful Accounts (3,500) -- (3,500) -- -- Intercompany Loan Receivable (Money Pool) 73,532 -- 73,532 -- -- Inventories, at average cost Fuel (coal, oil and gas) 19,598 -- 19,598 -- -- Materials and supplies 8,890 -- 8,890 -- -- Prepaid New Jersey sales and excise taxes (2,048) -- (2,048) -- -- Deferred energy supply costs -- -- -- -- -- Other prepayments 2,223 -- 2,223 -- -- Taxes Receivable 88,483 -- 88,483 -- -- Deferred income taxes, net 6,245 -- 6,245 -- -- ---------- ---------- ---------- ---------- ---------- 338,726 -- 338,726 -- -- ---------- ---------- ---------- ---------- ---------- Investments Investment in leveraged leases -- -- -- -- -- Funds held by trustee 105,268 -- 105,268 -- -- Investment in Consolidated Companies 103 (100,876) 3,041 72,165 25,773 Other investments 0 -- 0 -- -- ---------- ---------- ---------- ---------- ---------- 105,371 (100,876) 108,309 72,165 25,773 ---------- ---------- ---------- ---------- ---------- Property, Plant and Equipment Electric generation 256,899 -- 256,899 -- -- Electric transmission and distribution 1,224,644 -- 1,224,644 -- -- Gas transmission and distribution -- -- -- -- -- Other electric and gas facilities 128,388 -- 128,388 -- -- Telecommunications, thermal systems, and other property, plant, and equipment 5,772 -- 5,772 -- -- ---------- ---------- ---------- ---------- ---------- 1,615,703 -- 1,615,703 -- -- Less: Accumulated depreciation 626,080 -- 626,080 -- -- ---------- ---------- ---------- ---------- ---------- Net plant in service 989,623 -- 989,623 -- -- ---------- ---------- ---------- ---------- ---------- Construction work-in-progress 46,025 -- 46,025 -- -- Leased nuclear fuel, at amortized cost 30,391 -- 30,391 -- -- Goodwill, net -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- 1,066,039 -- 1,066,039 -- -- ---------- ---------- ---------- ---------- ---------- Deferred Charges and Other Assets Recoverable stranded costs 988,273 -- 988,273 -- -- Deferred recoverable income taxes 21,867 -- 21,867 -- -- Unrecovered purchased power costs 28,923 -- 28,923 -- -- Unrecovered New Jersey state excise tax 22,567 -- 22,567 -- -- Deferred debt refinancing costs 13,574 -- 13,574 -- -- Deferred other postretirement benefit costs 32,479 -- 32,479 -- -- Prepaid employee benefits costs -- -- -- -- -- Unamortized debt expense 14,197 -- 14,197 -- -- License fees -- -- -- -- -- Other 19,818 -- 19,818 -- -- ---------- ---------- ---------- ---------- ---------- 1,141,698 -- 1,141,698 -- -- ---------- ---------- ---------- ---------- ---------- Total Assets 2,651,834 (100,876) 2,654,772 72,165 25,773 ========== ========== ========== ========== ==========
F - 2C Page 1 of 2 54 Atlantic City Electric Company and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Total ACE Reclasses & ACE ACE ACE Consolidated Consol. Entries Parent Capital I Capital II ------------ --------------- ------ --------- ---------- Current Liabilities Short-term debt 30,000 -- 30,000 -- -- Long-term debt due within one year 46,075 -- 46,075 -- -- Variable rate demand bonds 22,600 -- 22,600 -- -- Accounts payable 61,188 -- 61,188 -- -- Taxes accrued -- -- -- -- -- Interest accrued 20,182 -- 20,182 -- -- Dividends payable 19,052 -- 19,052 -- -- Deferred energy supply costs 3,728 -- 3,728 -- -- Current capital lease obligation 15,480 -- 15,480 -- -- Above-market purchased energy contracts and other electric restructuring liabilities 7,992 -- 7,992 -- -- Other 29,845 -- 29,845 -- -- ---------- ---------- ---------- ---------- ---------- 256,142 -- 256,142 -- -- ---------- ---------- ---------- ---------- ---------- Deferred Credits and Other Liabilities Other postretirement benefits obligation 62,484 -- 62,484 -- -- Deferred income taxes, net 389,594 -- 389,594 -- -- Deferred investment tax credits 39,608 -- 39,608 -- -- Regulatory liability for New Jersey income tax benefit 49,262 -- 49,262 -- -- Above-market purchased energy contracts and other electric restructuring liabilities 59,568 -- 59,568 -- -- Deferred gain on termination of purchased energy contract -- -- -- -- -- Minority Interest Liability -- -- -- -- -- Long-term capital lease obligation 14,911 -- 14,911 -- -- Other 22,381 -- 22,381 -- -- ---------- ---------- ---------- ---------- ---------- 637,808 -- 637,808 -- -- ---------- ---------- ---------- ---------- ---------- Capitalization Common stock: $0.01 per share par value 150,000,000 shares authorized; shares outstanding - - 86,173,169 in 1999, and 100,516,768 in 1998 54,963 (2,938) 54,963 2,165 773 Class A common stock, $0.01 par value; 10,000,000 shares authorized; shares outstanding - - 5,742,315 in 1999, 6,560,612 in 1998 -- -- -- -- -- Additional paid-in capital - - common stock 493,007 -- 493,007 -- -- Additional paid-in capital - - Class A common stock -- -- -- -- -- Retained (deficit) earnings 129,981 -- 129,981 -- -- ---------- ---------- ---------- ---------- ---------- 677,951 (2,938) 677,951 2,165 773 Treasury shares, at cost: 167,513 shares in 1999; 185,030 shares in 1998 -- -- -- -- -- Unearned compensation -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- Total common stockholders' equity 677,951 (2,938) 677,951 2,165 773 Preferred stock of subsidiaires: Not subject to mandatory redemption 30,181 -- 30,181 -- -- Subject to mandatory redemption 95,000 -- -- 70,000 25,000 Advances from Associated Companies 0 (97,938) 97,938 Long-term debt 954,752 -- 954,752 -- -- ---------- ---------- ---------- ---------- ---------- 1,079,933 (97,938) 1,082,871 70,000 25,000 ---------- ---------- ---------- ---------- ---------- ---------- ---------- ---------- ---------- ---------- Total Capitalization and Liabilities 2,651,834 (100,876) 2,654,772 72,165 25,773 ========== ========== ========== ========== ==========
F - 2C Page 2 of 2 55 Delmarva Capital Investments, Inc. and Subsidiaries* Consolidating Balance Sheet For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Total DCI Reclasses & DCI Consolidated Consol. Entries Parent ------------ -------------- ------ ASSETS Current Assets Cash and cash equivalents Accounts receivable Allowance for Doubtful Accounts Intercompany Loan Receivable (Money Pool) Inventories, at average cost Fuel (coal, oil and gas) Materials and supplies Prepaid New Jersey sales and excise taxes Deferred energy supply costs Other prepayments Taxes Receivable Deferred income taxes, net ------------- ------------ ------------ ------------- ------------ ------------ Investments Investment in leveraged leases Funds held by trustee Investment in Consolidated Companies Other investments ------------- ----------- ------------ ------------- ------------ ------------ Property, Plant and Equipment Electric generation Electric transmission and distribution Gas transmission and distribution Other electric and gas facilities Telecommunications, thermal systems, and other property, plant, and equipment ------------- ------------ ------------ Less: Accumulated depreciation ------------- ------------ ------------ Net plant in service ------------- ------------ ------------ Construction work-in-progress Leased nuclear fuel, at amortized cost Goodwill, net ------------- ------------ ------------ ------------- ------------ ------------ Deferred Charges and Other Assets Recoverable stranded costs Deferred recoverable income taxes Unrecovered purchased power costs Unrecovered New Jersey state excise tax Deferred debt refinancing costs Deferred other postretirement benefit costs Prepaid employee benefits costs Unamortized debt expense License fees Other ------------- ------------ ------------ ------------- ------------ ------------ Total Assets ============= ============ ============ DCI I DCI II Burney ----- ------ ------ ASSETS Current Assets Cash and cash equivalents Accounts receivable Allowance for Doubtful Accounts Intercompany Loan Receivable (Money Pool) Inventories, at average cost Fuel (coal, oil and gas) Materials and supplies Prepaid New Jersey sales and excise taxes Deferred energy supply costs Other prepayments Taxes Receivable Deferred income taxes, net ------------ ------------ ----------- ------------ ------------ ------------ Investments Investment in leveraged leases Funds held by trustee Investment in Consolidated Companies Other investments ------------ ------------ ------------ ------------ ------------ ------------ Property, Plant and Equipment Electric generation Electric transmission and distribution Gas transmission and distribution Other electric and gas facilities Telecommunications, thermal systems, and other property, plant, and equipment ------------ ------------ ------------ Less: Accumulated depreciation ------------ ------------ ------------ Net plant in service ------------ ------------ ------------ Construction work-in-progress Leased nuclear fuel, at amortized cost Goodwill, net ------------ ------------ ------------ ------------ ------------ ------------ Deferred Charges and Other Assets Recoverable stranded costs Deferred recoverable income taxes Unrecovered purchased power costs Unrecovered New Jersey state excise tax Deferred debt refinancing costs Deferred other postretirement benefit costs Prepaid employee benefits costs Unamortized debt expense License fees Other ------------ ------------ ------------ ------------ ------------ ------------ Total Assets ============ ============ ============
F - 2D Page 1 of 2 56 Delmarva Capital Investments, Inc. and Subsidiaries' Consolidating Balance Sheet For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Total DCI Reclasses & DCI Consolidated Consol. Entries Parent DCI I DCI II Burney ------------ --------------- ------ ----- ------ ------ CURRENT LIABILITIES Short-term debt Long-term debt due within one year Variable rate demand bonds Intercompany Loan Payable (Money Pool) Accounts payable Taxes accrued Interest accrued Dividends payable Deferred energy supply costs Current capital lease obligation Above-market purchased energy contracts and other electric restructuring liabilities Other ------------ --------------- ------ ----- ------ ------ ------------ --------------- ------ ----- ------ ------ DEFERRED CREDITS AND OTHER LIABILITIES Other postretirement benefits obligation Deferred income taxes, net Deferred investment tax credits Regulatory liability for New Jersey income tax benefit Above-market purchased energy contracts and other electric restructuring liabilities Deferred gain on termination of purchased energy contract Minority Interest Liability Long-term capital lease obligation Other ------------ --------------- ------ ----- ------ ------ ------------ --------------- ------ ----- ------ ------ CAPITALIZATION Common stock: $0.01 per share par value 150,000,000 shares authorized; shares outstanding - - 86,173,169 in 1999, and 100,516,768 in 1998 Class A common stock, $0.01 par value; 10,000,000 shares authorized; shares outstanding - - 5,742,315 in 1999, 6,560,612 in 1998 Additional paid-in capital - - common stock Additional paid-in capital - - Class A common stock Retained (deficit) earnings ------------ --------------- ------ ----- ------ ------ Treasury shares, at cost: 167,513 shares in 1999; 185,030 shares in 1998 Unearned compensation ------------ --------------- ------ ----- ------ ------ Total common stockholders' equity Preferred stock of subsidiaries: Not subject to mandatory redemption Subject to mandatory redemption Advances from Associated Companies Long-term debt ------------ --------------- ------ ----- ------ ------ ------------ --------------- ------ ----- ------ ------ ------------ --------------- ------ ----- ------ ------ TOTAL CAPITALIZATION AND LIABILITIES ============ =============== ====== ===== ====== ======
*CONFIDENTIAL TREATMENT REQUESTED F-2D Page 2 Of 2 57 Conectiv Energy Supply, Inc. and Subsidiaries* Consolidating Balance Sheets For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Conectiv Total CES Reclasses & Energy Consolidated Consol. Entries Parent COSC -------------- --------------- --------------- --------------- ASSETS CURRENT ASSETS Cash and cash equivalents Accounts receivable Allowance for Doubtful Accounts Intercompany Loan Receivable (Money Pool) Inventories, at average cost Fuel (coal, oil and gas) Materials and supplies Prepaid New Jersey sales and excise taxes Deferred energy supply costs Other prepayments Taxes Receivable Deferred income taxes, net -------------- --------------- --------------- --------------- -------------- --------------- --------------- --------------- INVESTMENTS Investment in leveraged leases Funds held by trustee Investment in Consolidated Companies Other investments -------------- --------------- --------------- --------------- -------------- --------------- --------------- --------------- PROPERTY, PLANT AND EQUIPMENT Electric generation Electric transmission and distribution Gas transmission and distribution Other electric and gas facilities Telecommunications, thermal systems, and other property, plant, and equipment -------------- --------------- --------------- --------------- Less: Accumulated depreciation -------------- --------------- --------------- --------------- Net plant in service -------------- --------------- --------------- --------------- Construction work-in-progress Leased nuclear fuel, at amortized cost Goodwill, net -------------- --------------- --------------- --------------- -------------- --------------- --------------- --------------- DEFERRED CHARGES AND OTHER ASSETS Recoverable stranded costs Deferred recoverable income taxes Unrecovered purchased power costs Unrecovered New Jersey state excise tax Deferred debt refinancing costs Deferred other postretirement benefit costs Prepaid employee benefits costs Unamortized debt expense License fees Other -------------- --------------- --------------- --------------- -------------- --------------- --------------- --------------- TOTAL ASSETS ============== =============== =============== ===============
F-2E Page 1 Of 2 58 Conectiv Energy Supply, Inc. and Subsidiaries* Consolidating Balance Sheets For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Conectiv Total CES Reclasses & Energy Consolidated Consol. Entries Parent COSC -------------- --------------- --------------- --------------- CURRENT LIABILITIES Short-term debt Long-term debt due within one year Variable rate demand bonds Intercompany Loan Payable (Money Pool) Accounts payable Taxes accrued Interest accrued Dividends payable Deferred energy supply costs Current capital lease obligation Above-market purchased energy contracts and other electric restructuring liabilities Other -------------- --------------- --------------- --------------- -------------- --------------- --------------- --------------- DEFERRED CREDITS AND OTHER LIABILITIES Other postretirement benefits obligation Deferred income taxes, net Deferred investment tax credits Regulatory liability for New Jersey income tax benefit Above-market purchased energy contracts and other electric restructuring liabilities Deferred gain on termination of purchased energy contract Minority Interest Liability Long-term capital lease obligation Other -------------- --------------- --------------- --------------- -------------- --------------- --------------- --------------- CAPITALIZATION Common stock: $0.01 per share par value 150,000,000 shares authorized; shares outstanding - - 86,173,169 in 1999, and 100,516,768 in 1998 Class A common stock, $0.01 par value; 10,000,000 shares authorized; shares outstanding - - 5,742,315 in 1999, 6,560,612 in 1998 Additional paid-in capital - - common stock Additional paid-in capital - - Class A common stock Retained (deficit) earnings -------------- --------------- --------------- --------------- Treasury shares, at cost: 167,513 shares in 1999; 185,030 shares in 1998 Unearned compensation -------------- --------------- --------------- --------------- Total common stockholders' equity Preferred stock of subsidiaires: Not subject to mandatory redemption Subject to mandatory redemption Advances from Associated Companies Long-term debt -------------- --------------- --------------- --------------- -------------- --------------- --------------- --------------- -------------- --------------- --------------- --------------- TOTAL CAPITALIZATION AND LIABILITIES ============== =============== =============== ===============
*CONFIDENTIAL TREATMENT REQUESTED F-2E Page 2 Of 2 59 Conectiv Services, Inc. and Subsidiaries* Consolidating Balance Sheet For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Total CSI Reclasses & CTS Consolidated Consol. Entries CSI Plumbing Consolidated ENERVAL ------------ --------------- --- -------- ------------ ------- ASSETS CURRENT ASSETS Cash and cash equivalents Accounts receivable Allowance for Doubtful Accounts Intercompany Loan Receivable (Money Pool) Inventories, at average cost Fuel (coal, oil and gas) Materials and supplies Prepaid New Jersey sales and excise taxes Deferred energy supply costs Other prepayments Taxes Receivable Deferred income taxes, net ------------ --------------- --- -------- ------------ ------- ------------ --------------- --- -------- ------------ ------- INVESTMENTS Investment in leveraged leases Funds held by trustee Investment in Consolidated Companies Other investments ------------ --------------- --- -------- ------------ ------- ------------ --------------- --- -------- ------------ ------- PROPERTY, PLANT AND EQUIPMENT Electric generation Electric transmission and distribution Gas transmission and distribution Other electric and gas facilities Telecommunications, thermal systems, and other property, plant, and equipment ------------ --------------- --- -------- ------------ ------- Less: Accumulated depreciation ------------ --------------- --- -------- ------------ ------- Net plant in service ------------ --------------- --- -------- ------------ ------- Construction work-in-progress Leased nuclear fuel, at amortized cost Goodwill, net ------------ --------------- --- -------- ------------ ------- ------------ --------------- --- -------- ------------ ------- DEFERRED CHARGES AND OTHER ASSETS Recoverable stranded costs Deferred recoverable income taxes Unrecovered purchased power costs Unrecovered New Jersey state excise tax Deferred debt refinancing costs Deferred other postretirement benefit costs Prepaid employee benefits costs Unamortized debt expense License fees Other ------------ --------------- --- -------- ------------ ------- ------------ --------------- --- -------- ------------ ------- TOTAL ASSETS ============ =============== === ======== ============ =======
F-2F Page 1 Of 2 60 Conectiv Services, Inc. and Subsidiaries* Consolidating Balance Sheet For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Total CSI Reclasses & CTS Consolidated Consol. Entries CSI Plumbing Consolidated ENERVAL ------------ --------------- --- -------- ------------ ------- CURRENT LIABILITIES Short-term debt Long-term debt due within one year Variable rate demand bonds Intercompany Loan Payable (Money Pool) Accounts payable Taxes accrued Interest accrued Dividends payable Deferred energy supply costs Current capital lease obligation Above-market purchased energy contracts and other electric restructuring liabilities Other ------------ --------------- --- -------- ------------ ------- ------------ --------------- --- -------- ------------ ------- DEFERRED CREDITS AND OTHER LIABILITIES Other postretirement benefits obligation Deferred income taxes, net Deferred investment tax credits Regulatory liability for New Jersey income tax benefit Above-market purchased energy contracts and other electric restructuring liabilities Deferred gain on termination of purchased energy contract Minority Interest Liability Long-term capital lease obligation Other ------------ --------------- --- -------- ------------ ------- ------------ --------------- --- -------- ------------ ------- CAPITALIZATION Common stock: $0.01 per share par value 150,000,000 shares authorized; shares outstanding - - 86,173,169 in 1999, and 100,516,768 in 1998 Class A common stock, $0.01 par value; 10,000,000 shares authorized; shares outstanding - - 5,742,315 in 1999, 6,560,612 in 1998 Additional paid-in capital - - common stock Additional paid-in capital - - Class A common stock Retained (deficit) earnings ------------ --------------- --- -------- ------------ ------- Treasury shares, at cost: 167,513 shares in 1999; 185,030 shares in 1998 Unearned compensation ------------ --------------- --- -------- ------------ ------- Total common stockholders' equity Preferred stock of subsidiaries: Not subject to mandatory redemption Subject to mandatory redemption Advances from Associated Companies Long-term debt ------------ --------------- --- -------- ------------ ------- ------------ --------------- --- -------- ------------ ------- ------------ --------------- --- -------- ------------ ------- TOTAL CAPITALIZATION AND LIABILITIES ============ =============== === ======== ============ =======
*CONFIDENTIAL TREATMENT REQUESTED F-2F Page 2 Of 2 61 Conectiv Thermal Systems, Inc. and Subsidiaries* Consolidating Balance Sheet For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Total CTS Reclasses & CTS ATS Consolidated Consol. Entries Parent Operations AJTS TELP ------------ --------------- -------- ---------- ------ ------ ASSETS CURRENT ASSETS Cash and cash equivalents Accounts receivable Allowance for Doubtful Accounts Intercompany Loan Receivable (Money Pool) Inventories, at average cost Fuel (coal, oil and gas) Materials and supplies Prepaid New Jersey sales and excise taxes Deferred energy supply costs Other prepayments Taxes Receivable Deferred income taxes, net ------------ --------------- -------- ---------- ------ ------ ------------ --------------- -------- ---------- ------ ------ INVESTMENTS Investment in leveraged leases Funds held by trustee Investment in Consolidated Companies Other investments ------------ --------------- -------- ---------- ------ ------ ------------ --------------- -------- ---------- ------ ------ PROPERTY, PLANT AND EQUIPMENT Electric generation Electric transmission and distribution Gas transmission and distribution Other electric and gas facilities Telecommunications, thermal systems, and other property, plant, and equipment ------------ --------------- -------- ---------- ------ ------ Less: Accumulated depreciation ------------ --------------- -------- ---------- ------ ------ Net plant in service ------------ --------------- -------- ---------- ------ ------ Construction work-in-progress Leased nuclear fuel, at amortized cost Goodwill, net ------------ --------------- -------- ---------- ------ ------ ------------ --------------- -------- ---------- ------ ------ DEFERRED CHARGES AND OTHER ASSETS Recoverable stranded costs Deferred recoverable income taxes Unrecovered purchased power costs Unrecovered New Jersey state excise tax Deferred debt refinancing costs Deferred other postretirement benefit costs Prepaid employee benefits costs Unamortized debt expense License fees Other ------------ --------------- -------- ---------- ------ ------ ------------ --------------- -------- ---------- ------ ------ TOTAL ASSETS ============ =============== ======== ========== ====== ======
F-2G Page 1 Of 2 62 Conectiv Thermal Systems, Inc. and Subsidiaries* Consolidating Balance Sheet For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Total CTS Reclasses & CTS ATS Consolidated Consol. Entries Parent Operations AJTS TELP ------------ --------------- -------- ---------- ------ ------ CURRENT LIABILITIES Short-term debt Long-term debt due within one year Variable rate demand bonds Intercompany Loan Payable (Money Pool) Accounts payable Taxes accrued Interest accrued Dividends payable Deferred energy supply costs Current capital lease obligation Above-market purchased energy contracts and other electric restructuring liabilities Other ------------ --------------- -------- ---------- ------ ------ ------------ --------------- -------- ---------- ------ ------ DEFERRED CREDITS AND OTHER LIABILITIES Other postretirement benefits obligation Deferred income taxes, net Deferred investment tax credits Regulatory liability for New Jersey income tax benefit Above-market purchased energy contracts and other electric restructuring liabilities Deferred gain on termination of purchased energy contract Minority Interest Liability Long-term capital lease obligation Other ------------ --------------- -------- ---------- ------ ------ ------------ --------------- -------- ---------- ------ ------ CAPITALIZATION Common stock: $0.01 per share par value 150,000,000 shares authorized; shares outstanding - - 86,173,169 in 1999, and 100,516,768 in 1998 Class A common stock, $0.01 par value; 10,000,000 shares authorized; shares outstanding - - 5,742,315 in 1999, 6,560,612 in 1998 Additional paid-in capital - - common stock Additional paid-in capital - - Class A common stock Retained (deficit) earnings ------------ --------------- -------- ---------- ------ ------ Treasury shares, at cost: 167,513 shares in 1999; 185,030 shares in 1998 Unearned compensation ------------ --------------- -------- ---------- ------ ------ Total common stockholders' equity Preferred stock of subsidiaries: Not subject to mandatory redemption Subject to mandatory redemption Advances from Associated Companies Long-term debt ------------ --------------- -------- ---------- ------ ------ ------------ --------------- -------- ---------- ------ ------ ------------ --------------- -------- ---------- ------ ------ TOTAL CAPITALIZATION AND LIABILITIES ============ =============== ======== ========== ====== ======
*CONFIDENTIAL TREATMENT REQUESTED F-2G Page 2 Of 2 63 Conectiv Solutions, Inc. and Subsidiaries* Consolidating Balance Sheet For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Total Solutions Reclasses & Solutions ATE King St. Elimination Consolidated Consol. Entries Parent Consolidated ATE Assurance ATE/King St. --------------- --------------- --------- ------------ --- --------- ------------ ASSETS CURRENT ASSETS Cash and cash equivalents Accounts receivable Allowance for Doubtful Accounts Intercompany Loan Receivable (Money Pool) Inventories, at average cost Fuel (coal, oil and gas) Materials and supplies Prepaid New Jersey sales and excise taxes Deferred energy supply costs Other prepayments Taxes Receivable Deferred income taxes, net --------------- --------------- --------- ------------ --- --------- ------------ --------------- --------------- --------- ------------ --- --------- ------------ INVESTMENTS Investment in leveraged leases Funds held by trustee Investment in Consolidated Companies Other investments --------------- --------------- --------- ------------ --- --------- ------------ --------------- --------------- --------- ------------ --- --------- ------------ PROPERTY, PLANT AND EQUIPMENT Electric generation Electric transmission and distribution Gas transmission and distribution Other electric and gas facilities Telecommunications, thermal systems, and other property, plant, and equipment --------------- --------------- --------- ------------ --- --------- ------------ Less: Accumulated depreciation --------------- --------------- --------- ------------ --- --------- ------------ Net plant in service --------------- --------------- --------- ------------ --- --------- ------------ Construction work-in-progress Leased nuclear fuel, at amortized cost Goodwill, net --------------- --------------- --------- ------------ --- --------- ------------ --------------- --------------- --------- ------------ --- --------- ------------ DEFERRED CHARGES AND OTHER ASSETS Recoverable stranded costs Deferred recoverable income taxes Unrecovered purchased power costs Unrecovered New Jersey state excise tax Deferred debt refinancing costs Deferred other postretirement benefit costs Prepaid employee benefits costs Unamortized debt expense License fees Other --------------- --------------- --------- ------------ --- --------- ------------ --------------- --------------- --------- ------------ --- --------- ------------ TOTAL ASSETS =============== =============== ========= ============ === ========= ============
F-2H Page 1 Of 2 64 Conectiv Solutions, Inc. and Subsidiaries* Consolidating Balance Sheet For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Total Solutions Reclasses & Solutions ATE King St. Elimination Consolidated Consol. Entries Parent Consolidated ATE Assurance ATE/King St. --------------- --------------- --------- ------------ --- --------- ------------ CURRENT LIABILITIES Short-term debt Long-term debt due within one year Variable rate demand bonds Intercompany Loan Payable (Money Pool) Accounts payable Taxes accrued Interest accrued Dividends payable Deferred energy supply costs Current capital lease obligation Above-market purchased energy contracts and other electric restructuring liabilities Other --------------- --------------- --------- ------------ --- --------- ------------ --------------- --------------- --------- ------------ --- --------- ------------ DEFERRED CREDITS AND OTHER LIABILITIES Other postretirement benefits obligation Deferred income taxes, net Deferred investment tax credits Regulatory liability for New Jersey income tax benefit Above-market purchased energy contracts and other electric restructuring liabilities Deferred gain on termination of purchased energy contract Minority Interest Liability Long-term capital lease obligation Other --------------- --------------- --------- ------------ --- --------- ------------ --------------- --------------- --------- ------------ --- --------- ------------ CAPITALIZATION Common stock: $0.01 per share par value 150,000,000 shares authorized; shares outstanding - - 86,173,169 in 1999, and 100,516,768 in 1998 Class A common stock, $0.01 par value; 10,000,000 shares authorized; shares outstanding - - 5,742,315 in 1999, 6,560,612 in 1998 Additional paid-in capital - - common stock Additional paid-in capital - - Class A common stock Retained (deficit) earnings --------------- --------------- --------- ------------ --- --------- ------------ Treasury shares, at cost: 167,513 shares in 1999; 185,030 shares in 1998 Unearned compensation --------------- --------------- --------- ------------ --- --------- ------------ Total common stockholders' equity Preferred stock of subsidiaries: Not subject to mandatory redemption Subject to mandatory redemption Advances from Associated Companies Long-term debt --------------- --------------- --------- ------------ --- --------- ------------ --------------- --------------- --------- ------------ --- --------- ------------ --------------- --------------- --------- ------------ --- --------- ------------ TOTAL CAPITALIZATION AND LIABILITIES =============== =============== ========= ============ === ========= ============
*CONFIDENTIAL TREATMENT REQUESTED F-2H Page 2 Of 2 65 Atlantic Generation, Inc. and Subsidiaries* Consolidating Balance Sheet For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Total AGI Reclasses & AGI Consolidated Consol. Entries Parent Vin LTD -------------- --------------- -------- --------- ASSETS CURRENT ASSETS Cash and cash equivalents Accounts receivable Allowance for Doubtful Accounts Intercompany Loan Receivable (Money Pool) Inventories, at average cost Fuel (coal, oil and gas) Materials and supplies Prepaid New Jersey sales and excise taxes Deferred energy supply costs Other prepayments Taxes Receivable Deferred income taxes, net -------------- --------------- -------- --------- -------------- --------------- -------- --------- INVESTMENTS Investment in leveraged leases Funds held by trustee Investment in Consolidated Companies Other investments -------------- --------------- -------- --------- -------------- --------------- -------- --------- PROPERTY, PLANT AND EQUIPMENT Electric generation Electric transmission and distribution Gas transmission and distribution Other electric and gas facilities Telecommunications, thermal systems, and other property, plant, and equipment -------------- --------------- -------- --------- Less: Accumulated depreciation -------------- --------------- -------- --------- Net plant in service -------------- --------------- -------- --------- Construction work-in-progress Leased nuclear fuel, at amortized cost Goodwill, net -------------- --------------- -------- --------- -------------- --------------- -------- --------- DEFERRED CHARGES AND OTHER ASSETS Recoverable stranded costs Deferred recoverable income taxes Unrecovered purchased power costs Unrecovered New Jersey state excise tax Deferred debt refinancing costs Deferred other postretirement benefit costs Prepaid employee benefits costs Unamortized debt expense License fees Other -------------- --------------- -------- --------- -------------- --------------- -------- --------- TOTAL ASSETS ============== =============== ======== =========
F-2I Page 1 Of 4 66 Atlantic Generation, Inc. and Subsidiaries* Consolidating Balance Sheet For the Year Ended December 31, 1999 (Dollars in Thousands)
Vin Gen Bing LTD Bing Gen Ped Gen ----------- ------------ ------------ ------------ ASSETS CURRENT ASSETS Cash and cash equivalents Accounts receivable Allowance for Doubtful Accounts Intercompany Loan Receivable (Money Pool) Inventories, at average cost Fuel (coal, oil and gas) Materials and supplies Prepaid New Jersey sales and excise taxes Deferred energy supply costs Other prepayments Taxes Receivable Deferred income taxes, net ----------- ------------ ------------ ------------ ----------- ------------ ------------ ------------ INVESTMENTS Investment in leveraged leases Funds held by trustee Investment in Consolidated Companies Other investments ----------- ------------ ------------ ------------ ----------- ------------ ------------ ------------ PROPERTY, PLANT AND EQUIPMENT Electric generation Electric transmission and distribution Gas transmission and distribution Other electric and gas facilities Telecommunications, thermal systems, and other property, plant, and equipment ----------- ------------ ------------ ------------ Less: Accumulated depreciation ----------- ------------ ------------ ------------ Net plant in service ----------- ------------ ------------ ------------ Construction work-in-progress Leased nuclear fuel, at amortized cost Goodwill, net ----------- ------------ ------------ ------------ ----------- ------------ ------------ ------------ DEFERRED CHARGES AND OTHER ASSETS Recoverable stranded costs Deferred recoverable income taxes Unrecovered purchased power costs Unrecovered New Jersey state excise tax Deferred debt refinancing costs Deferred other postretirement benefit costs Prepaid employee benefits costs Unamortized debt expense License fees Other ----------- ------------ ------------ ------------ ----------- ------------ ------------ ------------ TOTAL ASSETS =========== ============ ============ ============
F-2I Page 2 Of 4 67 Atlantic Generation, Inc. and Subsidiaries* Consolidating Balance Sheet For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Total AGI Reclasses & AGI Consolidated Consol. Entries Parent Vin LTD -------------- --------------- -------- --------- CURRENT LIABILITIES Short-term debt Long-term debt due within one year Variable rate demand bonds Intercompany Loan Payable (Money Pool) Accounts payable Taxes accrued Interest accrued Dividends payable Deferred energy supply costs Current capital lease obligation Above-market purchased energy contracts and other electric restructuring liabilities Other -------------- --------------- -------- --------- -------------- --------------- -------- --------- DEFERRED CREDITS AND OTHER LIABILITIES Other postretirement benefits obligation Deferred income taxes, net Deferred investment tax credits Regulatory liability for New Jersey income tax benefit Above-market purchased energy contracts and other electric restructuring liabilities Deferred gain on termination of purchased energy contract Minority Interest Liability Long-term capital lease obligation Other -------------- --------------- -------- --------- -------------- --------------- -------- --------- CAPITALIZATION Common stock: $0.01 per share par value 150,000,000 shares authorized; shares outstanding - - 86,173,169 in 1999, and 100,516,768 in 1998 Class A common stock, $0.01 par value; 10,000,000 shares authorized; shares outstanding - - 5,742,315 in 1999, 6,560,612 in 1998 Additional paid-in capital - - common stock Additional paid-in capital - - Class A common stock Retained (deficit) earnings -------------- --------------- -------- --------- Treasury shares, at cost: 167,513 shares in 1999; 185,030 shares in 1998 Unearned compensation -------------- --------------- -------- --------- Total common stockholders' equity Preferred stock of subsidiaries: Not subject to mandatory redemption Subject to mandatory redemption Advances from Associated Companies Long-term debt -------------- --------------- -------- --------- -------------- --------------- -------- --------- -------------- --------------- -------- --------- TOTAL CAPITALIZATION AND LIABILITIES ============== =============== ======== =========
*CONFIDENTIAL TREATMENT REQUESTED F-2I Page 3 Of 4 68 Atlantic Generation, Inc. and Subsidiaries* Consolidating Balance Sheet For the Year Ended December 31, 1999 (Dollars in Thousands)
Vin Gen Bing LTD Bing Gen Ped Gen ----------- ------------ ------------ ------------ CURRENT LIABILITIES Short-term debt Long-term debt due within one year Variable rate demand bonds Intercompany Loan Payable (Money Pool) Accounts payable Taxes accrued Interest accrued Dividends payable Deferred energy supply costs Current capital lease obligation Above-market purchased energy contracts and other electric restructuring liabilities Other ----------- ------------ ------------ ------------ ----------- ------------ ------------ ------------ DEFERRED CREDITS AND OTHER LIABILITIES Other postretirement benefits obligation Deferred income taxes, net Deferred investment tax credits Regulatory liability for New Jersey income tax benefit Above-market purchased energy contracts and other electric restructuring liabilities Deferred gain on termination of purchased energy contract Minority Interest Liability Long-term capital lease obligation Other ----------- ------------ ------------ ------------ ----------- ------------ ------------ ------------ CAPITALIZATION Common stock: $0.01 per share par value 150,000,000 shares authorized; shares outstanding - - 86,173,169 in 1999, and 100,516,768 in 1998 Class A common stock, $0.01 par value; 10,000,000 shares authorized; shares outstanding - - 5,742,315 in 1999, 6,560,612 in 1998 Additional paid-in capital - - common stock Additional paid-in capital - - Class A common stock Retained (deficit) earnings ----------- ------------ ------------ ------------ Treasury shares, at cost: 167,513 shares in 1999; 185,030 shares in 1998 Unearned compensation ----------- ------------ ------------ ------------ Total common stockholders' equity Preferred stock of subsidiaries: Not subject to mandatory redemption Subject to mandatory redemption Advances from Associated Companies Long-term debt ----------- ------------ ------------ ------------ ----------- ------------ ------------ ------------ ----------- ------------ ------------ ------------ TOTAL CAPITALIZATION AND LIABILITIES =========== ============ ============ ============
*CONFIDENTIAL TREATMENT REQUESTED F-2I Page 4 Of 4 69 Conectiv and Subsidiaries Consolidating Statement of Cash Flows For the Year Ended December 31, 1999 (Dollars in Thousands)
ELIMINATIONS TOTAL RECLASSES & CONECTIV DPL CONECTIV CONSOLIDATIONS PARENT CONSOLIDATED --------- --------- --------- --------- CASH FLOWS FROM OPERATING ACTIVITIES Net income (loss) ($198,140) $ 141,758 ($198,140) ($111,443) Adjustments to reconcile net income (loss) to net cash provided by operating activities Deferred recoverable purchased power contract termination payment (228,500) -- Distribution from partnership in excess of recognized earnings 70,849 70,849 -- -- Equity in loss / (earnings) of subsidiaries -- (182,506) 182,506 Extraordinary item (net of tax) 311,718 -- -- 253,622 Special charges 105,648 -- -- 10,504 Depreciation and amortization 294,902 12,252 -- 139,337 Allowance for equity funds used during construction (2,461) (784) -- (1,677) Investment tax credit adjustments, net (5,094) -- -- (2,559) Deferred income taxes, net 44,752 (21,839) -- 32,079 Deferred energy supply costs -- (23,844) -- -- Unrecovered state excise tax -- (13,027) -- -- Net change in: -- -- -- Accounts receivable (92,952) 92,609 9,742 (50,266) Inventories (14,753) 2 -- (2,480) Prepaid New Jersey sales and excise taxes 22,216 -- -- -- Accounts payable 61,561 10,626 -- 27,686 Taxes payable -- 69,454 (4,476) -- Other current assets & liabilities(1) (57,366) (53,495) (2,992) (4,262) Dividends received from subsidiaries -- (135,691) 135,691 -- Other, net (2,211) 14,534 2,383 (43,711) --------- --------- --------- --------- Net cash provided by operating activities $ 310,169 ($ 19,102) $ 124,714 $ 246,830 --------- --------- --------- --------- CASH FLOWS FROM INVESTING ACTIVITIES Acquisition of businesses, net of cash acquired (17,138) (1,939) -- -- Intercompany loan receivable/payable -- (98,413) (31,678) (13,473) Capital expenditures (320,395) (17,112) -- (87,903) Investments in partnerships (23,570) (53) -- Deposits to nuclear decommissioning trust funds (5,880) -- -- (2,667) Decrease in bond proceeds held in trust funds 12,449 1,120 -- -- Decrease in investment in leveraged leases 8,242 1,816 -- -- Other, net 1,826 (5,151) 142 283 --------- --------- --------- --------- Net cash used by investing activities (344,465) (119,733) (31,536) (103,760) --------- --------- --------- --------- CASH FLOWS FROM FINANCING ACTIVITIES Common dividends paid (135,134) 135,691 (135,134) (76,369) Preferred dividends paid -- 6,908 -- (4,087) Capital contributions -- -- (39,017) -- Common stock issued 68 -- 68 -- Common stock redeemed (390,397) -- (390,397) -- Preferred securities issued -- -- -- -- Preferred securities redeemed -- -- -- -- Long-term debt issued 478,500 -- 250,000 -- Long-term debt redeemed (133,218) (75) -- (64,617) Variable rate demand bonds issued 33,330 -- -- 33,330 Variable rate demand bonds redeemed -- -- -- -- Principal portion of capital lease payments (23,554) -- -- (10,410) Net change in short-term debt 203,627 -- 210,685 (21,700) Cost of issuances and refinancings (8,571) (3,904) (4,114) (330) --------- --------- --------- --------- Net cash used by financing activities 24,652 138,620 (107,909) (144,183) --------- --------- --------- --------- Net change in cash and cash equivalents (9,645) (215) (14,731) (1,113) Beginning of year cash and cash equivalents $ 65,884 215 $ 18,691 $ 1,761 --------- --------- --------- --------- End of year cash and cash equivalents 56,239 -- 3,960 648 ========= ========= ========= =========
(1) Other than debt and deferred income taxes classified as current. *CONFIDENTIAL TREATMENT REQUESTED F - 3A Page 1 Of 3
ACE CONSOLIDATED - -------------------------------------------------------------- --------- CASH FLOWS FROM OPERATING ACTIVITIES Net income (loss) $ 5,835 Adjustments to reconcile net income (loss) to net cash provided by operating activities Deferred recoverable purchased power contract termination payment (228,500) Distribution from partnership in excess of recognized earnings Equity in loss / (earnings) of subsidiaries Extraordinary item (net of tax) 58,095 Special charges 12,301 Depreciation and amortization 126,857 Allowance for equity funds used during construction -- Investment tax credit adjustments, net (2,534) Deferred income taxes, net 71,897 Deferred energy supply costs 23,844 Unrecovered state excise tax 13,027 Net change in: Accounts receivable (22,644) Inventories (7,949) Prepaid New Jersey sales and excise taxes 22,216 Accounts payable 7,921 Taxes payable (111,399) Other current assets & liabilities(1) (3,796) Dividends received from subsidiaries -- Other, net 1,500 --------- Net cash provided by operating activities ($ 33,329) --------- CASH FLOWS FROM INVESTING ACTIVITIES Acquisition of businesses, net of cash acquired Intercompany loan receivable/payable (73,532) Capital expenditures (48,931) Investments in partnerships Deposits to nuclear decommissioning trust funds (3,213) Decrease in bond proceeds held in trust funds -- Decrease in investment in leveraged leases -- Other, net 4,070 --------- Net cash used by investing activities (121,606) --------- CASH FLOWS FROM FINANCING ACTIVITIES Common dividends paid (59,321) Preferred dividends paid (2,821) Capital contributions -- Common stock issued -- Common stock redeemed -- Preferred securities issued -- Preferred securities redeemed -- Long-term debt issued 228,500 Long-term debt redeemed (48,900) Variable rate demand bonds issued -- Variable rate demand bonds redeemed -- Principal portion of capital lease payments (13,143) Net change in short-term debt 30,000 Cost of issuances and refinancings (223) --------- Net cash used by financing activities 134,091 --------- Net change in cash and cash equivalents (20,843) Beginning of year cash and cash equivalents $ 28,767 --------- End of year cash and cash equivalents 7,924 =========
(1) Other than debt and deferred income taxes classified as current. *CONFIDENTIAL TREATMENT REQUESTED F - 3A Page 1 Of 3 70 Conectiv and Subsidiaries Consolidating Statement of Cash Flows For the Year Ended December 31, 1999 (Dollars in Thousands)
DCI * CES* CONSOLIDATED CONSOLIDATED ASP* DSC* --------- --------- ------------- -------------- CASH FLOWS FROM OPERATING ACTIVITIES Net income (loss) $ 798 Adjustments to reconcile net income (loss) to net cash provided by operating activities Deferred recoverable purchased power contract termination payment Distribution from partnership in excess of recognized earnings Equity in loss / (earnings) of subsidiaries Extraordinary item (net of tax) Special charges Depreciation and amortization 394 Allowance for equity funds used during construction Investment tax credit adjustments, net Deferred income taxes, net 125 Deferred energy supply costs Unrecovered state excise tax Net change in: Accounts receivable (234) Inventories -- Prepaid New Jersey sales and excise taxes -- Accounts payable -- Taxes payable 17 Other current assets & liabilities(1) -- Dividends received from subsidiaries -- Other, net (22) --------- --------- ------------- --------------- Net cash provided by operating activities $ 1,078 --------- --------- ------------- --------------- CASH FLOWS FROM INVESTING ACTIVITIES Acquisition of businesses, net of cash acquired Intercompany loan receivable/payable (75) Capital expenditures -- Investments in partnerships Deposits to nuclear decommissioning trust funds -- Decrease in bond proceeds held in trust funds -- Decrease in investment in leveraged leases -- Other, net -- ------------- --------------- --------- --------- ------------- --------------- Net cash used by investing activities (75) --------- --------- ------------- --------------- CASH FLOWS FROM FINANCING ACTIVITIES Common dividends paid -- Preferred dividends paid -- Capital contributions -- Common stock issued -- Common stock redeemed -- Preferred securities issued -- Preferred securities redeemed -- Long-term debt issued -- Long-term debt redeemed (1,004) Variable rate demand bonds issued -- Variable rate demand bonds redeemed -- Principal portion of capital lease payments -- Net change in short-term debt -- Cost of issuances and refinancings -- --------- --------- ------------- --------------- Net cash used by financing activities (1,004) --------- --------- ------------- --------------- Net change in cash and cash equivalents 0 Beginning of year cash and cash equivalents $ 0 --------- --------- ------------- --------------- End of year cash and cash equivalents 0 ========= ========= ============= ===============
CSI * CONSOLIDATED ---------------- CASH FLOWS FROM OPERATING ACTIVITIES Net income (loss) Adjustments to reconcile net income (loss) to net cash provided by operating activities Deferred recoverable purchased power contract termination payment Distribution from partnership in excess of recognized earnings Equity in loss / (earnings) of subsidiaries Extraordinary item (net of tax) Special charges Depreciation and amortization Allowance for equity funds used during construction Investment tax credit adjustments, net Deferred income taxes, net Deferred energy supply costs Unrecovered state excise tax Net change in: Accounts receivable Inventories Prepaid New Jersey sales and excise taxes Accounts payable Taxes payable Other current assets & liabilities(1) Dividends received from subsidiaries Other, net ---------------- Net cash provided by operating activities ---------------- CASH FLOWS FROM INVESTING ACTIVITIES Acquisition of businesses, net of cash acquired Intercompany loan receivable/payable Capital expenditures Investments in partnerships Deposits to nuclear decommissioning trust funds Decrease in bond proceeds held in trust funds Decrease in investment in leveraged leases Other, net ---------------- ---------------- Net cash used by investing activities ---------------- CASH FLOWS FROM FINANCING ACTIVITIES Common dividends paid Preferred dividends paid Capital contributions Common stock issued Common stock redeemed Preferred securities issued Preferred securities redeemed Long-term debt issued Long-term debt redeemed Variable rate demand bonds issued Variable rate demand bonds redeemed Principal portion of capital lease payments Net change in short-term debt Cost of issuances and refinancings ---------------- Net cash used by financing activities ---------------- Net change in cash and cash equivalents Beginning of year cash and cash equivalents ---------------- End of year cash and cash equivalents ================
(1) Other than debt and deferred income taxes classified as current. *CONFIDENTIAL TREATMENT REQUESTED F - 3A Page 2 Of 3 71 Conective and Subsidiaries Consolidating Statement of Cash Flows For the Year Ended December 31, 1999 (Dollars in Thousands)
SOLUTIONS* AGI * CCI* CONSOLIDATED CRP* CONSOLIDATED ---------------- ------------ -------- ------------- CASH FLOWS FROM OPERATING ACTIVITIES Net income (loss) ($105) Adjustments to reconcile net income (loss) to net cash provided by operating activities Deferred recoverable purchased power contract termination payment Distribution from partnership in excess of recognized earnings Equity in loss / (earnings) of subsidiaries Extraordinary item (net of tax) Special charges Depreciation and amortization 5,926 Allowance for equity funds used during construction Investment tax credit adjustments, net Deferred income taxes, net 6,350 Deferred energy supply costs Unrecovered state excise tax Net change in: Accounts receivable (4,834) Inventories -- Prepaid New Jersey sales and excise taxes -- Accounts payable (7,686) Taxes payable Other current assets & liabilities(1) 5,060 Dividends received from subsidiaries -- Other, net 7,006 ---------------- ------------ -------- ------------- Net cash provided by operating activities $27,089 ---------------- ------------ -------- ------------- CASH FLOWS FROM INVESTING ACTIVITIES Acquisition of businesses, net of cash acquired Intercompany loan receivable/payable 47,886 Capital expenditures (74,455) Investments in partnerships Deposits to nuclear decommissioning trust funds -- Decrease in bond proceeds held in trust funds -- Decrease in investment in leveraged leases -- Other, net -- ---------------- ------------ -------- ------------- Net cash used by investing activities (26,567) ---------------- ------------ -------- ------------- CASH FLOWS FROM FINANCING ACTIVITIES Common dividends paid -- Preferred dividends paid -- Capital contributions -- Common stock issued -- Common stock redeemed -- Preferred securities issued -- Preferred securities redeemed -- Long-term debt issued -- Long-term debt redeemed -- Variable rate demand bonds issued -- Variable rate demand bonds redeemed -- Principal portion of capital lease payments -- Net change in short-term debt -- Cost of issuances and refinancings -- ---------------- ------------ -------- ------------- Net cash used by financing activities -- ---------------- ------------ -------- ------------- Net change in cash and cash equivalents 522 Beginning of year cash and cash equivalents ($114) ---------------- ------------ -------- ------------- End of year cash and cash equivalents 407 =============== ============ ======== =============
CONECTIV * ENERGY --------- CASH FLOWS FROM OPERATING ACTIVITIES Net income (loss) Adjustments to reconcile net income (loss) to net cash provided by operating activities Deferred recoverable purchased power contract termination payment Distribution from partnership in excess of recognized earnings Equity in loss / (earnings) of subsidiaries Extraordinary item (net of tax) Special charges Depreciation and amortization Allowance for equity funds used during construction Investment tax credit adjustments, net Deferred income taxes, net Deferred energy supply costs Unrecovered state excise tax Net change in: Accounts receivable Inventories Prepaid New Jersey sales and excise taxes Accounts payable Taxes payable Other current assets & liabilities(1) Dividends received from subsidiaries Other, net ------------- Net cash provided by operating activities ------------- CASH FLOWS FROM INVESTING ACTIVITIES Acquisition of businesses, net of cash acquired Intercompany loan receivable/payable Capital expenditures Investments in partnerships Deposits to nuclear decommissioning trust funds Decrease in bond proceeds held in trust funds Decrease in investment in leveraged leases Other, net ------------- Net cash used by investing activities ------------- CASH FLOWS FROM FINANCING ACTIVITIES Common dividends paid Preferred dividends paid Capital contributions Common stock issued Common stock redeemed Preferred securities issued Preferred securities redeemed Long-term debt issued Long-term debt redeemed Variable rate demand bonds issued Variable rate demand bonds redeemed Principal portion of capital lease payments Net change in short-term debt Cost of issuances and refinancings ------------- Net cash used by financing activities ------------- Net change in cash and cash equivalents Beginning of year cash and cash equivalents ------------- End of year cash and cash equivalents ==============
(1) Other than debt and deferred income taxes classified as current. *CONFIDENTIAL TREATMENT REQUESTED F - 3A Page 3 Of 3 72 Conective and Subsidiaries Consolidating Statement of Cash Flows For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Reclasses & Total DPL Consol. DPL DPL Consolidated Entries Parent Financing ---------------- ------------- ------------ ---------- CASH FLOWS FROM OPERATING ACTIVITIES Net income (loss) ($111,443) $0 ($111,443) $0 Adjustments to reconcile net income (loss) to net cash provided by operating activities Deferred recoverable purchased power contract termination payment - - - - Distribution from partnership in excess of recognized earnings - - - - Equity in loss / (earnings) of subsidiaries - - Extraordinary item (net of tax) 253,622 - 253,622 - Special charges 10,504 - 10,504 - Depreciation and amortization 139,337 - 139,337 - Allowance for equity funds used during construction (1,677) - (1,677) - Investment tax credit adjustments, net (2,559) - (2,559) - Deferred income taxes, net 32,079 - 32,079 - Deferred energy supply costs - - - - Unrecovered state excise tax - - - - Net change in: - - - - Accounts receivable (50,266) - (50,266) - Inventories (2,480) - (2,480) - Prepaid New Jersey sales and excise taxes - - - - Accounts payable 27,686 - 27,686 - Taxes payable - - - - Other current assets & liabilities (1) (4,262) - (4,262) - Dividends received from subsidiaries - - - - Other, net (43,711) - (43,711) - ---------------- ------------- ------------ ---------- Net cash provided by operating activities $246,830 $0 $246,830 $0 ---------------- ------------- ------------ ---------- CASH FLOWS FROM INVESTING ACTIVITIES Acquisition of businesses, net of cash acquired - - - - Intercompany loan receivable/payable (13,473) - (13,473) - Capital expenditures (87,903) - (87,903) - Investments in partnerships - - Deposits to nuclear decommissioning trust funds (2,667) - (2,667) - Decrease in bond proceeds held in trust funds - - - - Decrease in investment in leveraged leases - - - - Other, net 283 - 283 - ---------------- ------------- ------------ ---------- Net cash used by investing activities (103,760) - (103,760) - ---------------- ------------- ------------ ---------- CASH FLOWS FROM FINANCING ACTIVITIES Common dividends paid (76,369) - (76,369) - Preferred dividends paid (4,087) - (4,087) - Capital contributions - - - - Common stock issued - - - - Common stock redeemed - - - - Preferred securities issued - - - - Preferred securities redeemed - - - - Long-term debt issued - - - - Long-term debt redeemed (64,617) - (64,617) - Variable rate demand bonds issued 33,330 - 33,330 - Variable rate demand bonds redeemed - - - - Principal portion of capital lease payments (10,410) - (10,410) - Net change in short-term debt (21,700) - (21,700) - Cost of issuances and refinancings (330) - (330) - ---------------- ------------- ------------ ---------- Net cash used by financing activities (144,183) - (144,183) - ---------------- ------------- ------------ ---------- Net change in cash and cash equivalents (1,113) - (1,113) - Beginning of year cash and cash equivalents $1,761 $0 $1,761 $0 ---------------- ------------- ------------ ---------- End of year cash and cash equivalents 648 - 648 - ================ ============= ============ ==========
(1) Other than debt and deferred income taxes classified as current. F-3B 73 Atlantic City Electric Company and Subsidiaries Consolidating Statement of Cash Flows For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Reclasses & Total ACE Consol. ACE ACE ACE Consolidated Entries Parent Capital I Capital II --------- --------- --------- --------- --------- CASH FLOWS FROM OPERATING ACTIVITIES Net income (loss) $ 5,835 $ 0 $ 5,835 $ 0 $ 0 Adjustments to reconcile net income (loss) to net cash provided by operating activities Deferred recoverable purchased power contract termination payment (228,500) -- (228,500) -- -- Distribution from partnership in excess of recognized earnings -- -- -- -- -- Equity in loss / (earnings) of subsidiaries -- -- -- Extraordinary item (net of tax) 58,095 -- 58,095 -- -- Special charges 12,301 -- 12,301 -- -- Depreciation and amortization 126,857 -- 126,857 -- -- Allowance for equity funds used during construction -- -- -- -- -- Investment tax credit adjustments, net (2,534) -- (2,534) -- -- Deferred income taxes, net 71,897 -- 71,897 -- -- Deferred energy supply costs 23,844 -- 23,844 -- -- Unrecovered state excise tax 13,027 -- 13,027 -- -- Net change in: -- -- -- -- -- Accounts receivable (22,644) -- (22,644) -- -- Inventories (7,949) -- (7,949) -- -- Prepaid New Jersey sales and excise taxes 22,216 -- 22,216 -- -- Accounts payable 7,921 -- 7,921 -- -- Taxes payable (111,399) -- (111,399) -- -- Other current assets & liabilities(1) (3,796) -- (3,796) -- -- Dividends received from subsidiaries -- -- -- -- -- Other, net 1,500 -- 1,500 -- -- --------- --------- --------- --------- --------- Net cash provided by operating activities ($ 33,329) $ 0 ($ 33,329) $ 0 $ 0 --------- --------- --------- --------- --------- CASH FLOWS FROM INVESTING ACTIVITIES Acquisition of businesses, net of cash acquired -- -- -- Intercompany loan receivable/payable (73,532) -- (73,532) -- -- Capital expenditures (48,931) -- (48,931) -- -- Investments in partnerships -- -- -- Deposits to nuclear decommissioning trust funds (3,213) -- (3,213) -- -- Decrease in bond proceeds held in trust funds -- -- -- -- -- Decrease in investment in leveraged leases -- -- -- -- -- Other, net 4,070 -- 4,070 -- -- --------- --------- --------- --------- --------- Net cash used by investing activities (121,606) -- (121,606) -- -- --------- --------- --------- --------- --------- CASH FLOWS FROM FINANCING ACTIVITIES Common dividends paid (59,321) -- (59,321) -- -- Preferred dividends paid (2,821) -- (2,821) -- -- Capital contributions -- -- -- -- -- Common stock issued -- -- -- -- -- Common stock redeemed -- -- -- -- -- Preferred securities issued -- -- -- -- -- Preferred securities redeemed -- -- -- -- -- Long-term debt issued 228,500 -- 228,500 -- -- Long-term debt redeemed (48,900) -- (48,900) -- -- Variable rate demand bonds issued -- -- -- -- -- Variable rate demand bonds redeemed -- -- -- -- -- Principal portion of capital lease payments (13,143) -- (13,143) -- -- Net change in short-term debt 30,000 -- 30,000 -- -- Cost of issuances and refinancings (223) -- (223) -- -- --------- --------- --------- --------- --------- Net cash used by financing activities 134,091 -- 134,091 -- -- --------- --------- --------- --------- --------- Net change in cash and cash equivalents (20,843) -- (20,843) -- -- Beginning of year cash and cash equivalents $ 28,767 $ 0 $ 28,767 $ 0 $ 0 --------- --------- --------- --------- --------- End of year cash and cash equivalents 7,924 -- 7,924 -- -- ========= ========= ========= ========= =========
(1)Other than debt and deferred income taxes classified as current F-3C 74 Delmarva Capital Investments, Inc. and Subsidiaries* Consolidating Statement of Cash Flows For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Reclasses & Total DCI Consol. DCI Consolidated Entries Parent --------------- --------------- --------------- Cash Flows From Operating Activities Net income (loss) Adjustments to reconcile net income (loss) to net cash provided by operating activities Deferred recoverable purchased power contract termination payment Distribution from partnership in excess of recognized earnings Equity in loss / (earnings) of subsidiaries Extraordinary item (net of tax) Special charges Depreciation and amortization Allowance for equity funds used during construction Investment tax credit adjustments, net Deferred income taxes, net Deferred energy supply costs Unrecovered state excise tax Net change in: Accounts receivable Inventories Prepaid New Jersey sales and excise taxes Accounts payable Taxes payable Other current assets & liabilities(1) Dividends received from subsidiaries Other, net --------------- --------------- --------------- Net cash provided by operating activities --------------- --------------- --------------- Cash Flows From Investing Activities Acquisition of businesses, net of cash acquired Intercompany loan receivable/payable Capital expenditures Investments in partnerships Deposits to nuclear decommissioning trust funds Decrease in bond proceeds held in trust funds Decrease in investment in leveraged leases Other, net --------------- --------------- --------------- Net cash used by investing activities --------------- --------------- --------------- Cash Flows From Financing Activities Common dividends paid Preferred dividends paid Capital contributions Common stock issued Common stock redeemed Preferred securities issued Preferred securities redeemed Long-term debt issued Long-term debt redeemed Variable rate demand bonds issued Variable rate demand bonds redeemed Principal portion of capital lease payments Net change in short-term debt Cost of issuances and refinancings --------------- --------------- --------------- Net cash used by financing activities --------------- --------------- --------------- Net change in cash and cash equivalents Beginning of year cash and cash equivalents --------------- --------------- --------------- End of year cash and cash equivalents =============== =============== ===============
DCI I DCI II Burney --------------- --------------- --------------- Cash Flows From Operating Activities Net income (loss) Adjustments to reconcile net income (loss) to net cash provided by operating activities Deferred recoverable purchased power contract termination payment Distribution from partnership in excess of recognized earnings Equity in loss / (earnings) of subsidiaries Extraordinary item (net of tax) Special charges Depreciation and amortization Allowance for equity funds used during construction Investment tax credit adjustments, net Deferred income taxes, net Deferred energy supply costs Unrecovered state excise tax Net change in: Accounts receivable Inventories Prepaid New Jersey sales and excise taxes Accounts payable Taxes payable Other current assets & liabilities(1) Dividends received from subsidiaries Other, net --------------- --------------- --------------- Net cash provided by operating activities --------------- --------------- --------------- Cash Flows From Investing Activities Acquisition of businesses, net of cash acquired Intercompany loan receivable/payable Capital expenditures Investments in partnerships Deposits to nuclear decommissioning trust funds Decrease in bond proceeds held in trust funds Decrease in investment in leveraged leases Other, net --------------- --------------- --------------- Net cash used by investing activities --------------- --------------- --------------- Cash Flows From Financing Activities Common dividends paid Preferred dividends paid Capital contributions Common stock issued Common stock redeemed Preferred securities issued Preferred securities redeemed Long-term debt issued Long-term debt redeemed Variable rate demand bonds issued Variable rate demand bonds redeemed Principal portion of capital lease payments Net change in short-term debt Cost of issuances and refinancings --------------- --------------- --------------- Net cash used by financing activities --------------- --------------- --------------- Net change in cash and cash equivalents Beginning of year cash and cash equivalents --------------- --------------- --------------- End of year cash and cash equivalents =============== =============== ===============
(1) Other than debt and deferred income taxes classified as current. *CONFIDENTIAL TREATMENT REQUESTED F-3D 75 Conectiv Energy Supply, Inc. and Subsidiaries* Consolidating Statement of Cash Flows For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Conectiv Total CES Reclasses & Energy Consolidated Consol. Entries Parent COSC --------------- --------------- --------------- --------------- Cash Flows From Operating Activities Net income (loss) Adjustments to reconcile net income (loss) to net cash provided by operating activities Deferred recoverable purchased power contract termination payment Distribution from partnership in excess of recognized earnings Equity in loss / (earnings) of subsidiaries Extraordinary item (net of tax) Special charges Depreciation and amortization Allowance for equity funds used during construction Investment tax credit adjustments, net Deferred income taxes, net Deferred energy supply costs Unrecovered state excise tax Net change in: Accounts receivable Inventories Prepaid New Jersey sales and excise taxes Accounts payable Taxes payable Other current assets & liabilities(1) Dividends received from subsidiaries Other, net --------------- --------------- --------------- --------------- Net cash provided by operating activities --------------- --------------- --------------- --------------- Cash Flows From Investing Activities Acquisition of businesses, net of cash acquired Intercompany loan receivable/payable Capital expenditures Investments in partnerships Deposits to nuclear decommissioning trust funds Decrease in bond proceeds held in trust funds Decrease in investment in leveraged leases Other, net --------------- --------------- --------------- --------------- Net cash used by investing activities --------------- --------------- --------------- --------------- Cash Flows From Financing Activities Common dividends paid Preferred dividends paid Capital contributions Common stock issued Common stock redeemed Preferred securities issued Preferred securities redeemed Long-term debt issued Long-term debt redeemed Variable rate demand bonds issued Variable rate demand bonds redeemed Principal portion of capital lease payments Net change in short-term debt Cost of issuances and refinancings --------------- --------------- --------------- --------------- Net cash used by financing activities --------------- --------------- --------------- --------------- Net change in cash and cash equivalents Beginning of year cash and cash equivalents --------------- --------------- --------------- --------------- End of year cash and cash equivalents =============== =============== =============== ===============
(1) Other than debt and deferred income taxes classified as current. *CONFIDENTIAL TREATMENT REQUESTED F - 3E 76 Conectiv Services, Inc. and Subsidiaries* Consolidating Statement of Cash Flows For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Total CSI Reclasses & Consolidated Consol. Entries CSI --------------- --------------- --------------- Cash Flows From Operating Activities Net income (loss) Adjustments to reconcile net income (loss) to net cash provided by operating activities Deferred recoverable purchased power contract termination payment Distribution from partnership in excess of recognized earnings Equity in loss / (earnings) of subsidiaries Extraordinary item (net of tax) Special charges Depreciation and amortization Allowance for equity funds used during construction Investment tax credit adjustments, net Deferred income taxes, net Deferred energy supply costs Unrecovered state excise tax Net change in: Accounts receivable Inventories Prepaid New Jersey sales and excise taxes Accounts payable Taxes payable Other current assets & liabilities(1) Dividends received from subsidiaries Other, net --------------- --------------- --------------- Net cash provided by operating activities --------------- --------------- --------------- Cash Flows From Investing Activities Acquisition of businesses, net of cash acquired Intercompany loan receivable/payable Capital expenditures Investments in partnerships Deposits to nuclear decommissioning trust funds Decrease in bond proceeds held in trust funds Decrease in investment in leveraged leases Other, net --------------- --------------- --------------- Net cash used by investing activities --------------- --------------- --------------- Cash Flows From Financing Activities Common dividends paid Preferred dividends paid Capital contributions Common stock issued Common stock redeemed Preferred securities issued Preferred securities redeemed Long-term debt issued Long-term debt redeemed Variable rate demand bonds issued Variable rate demand bonds redeemed Principal portion of capital lease payments Net change in short-term debt Cost of issuances and refinancings --------------- --------------- --------------- Net cash used by financing activities --------------- --------------- --------------- Net change in cash and cash equivalents Beginning of year cash and cash equivalents --------------- --------------- --------------- End of year cash and cash equivalents =============== =============== ===============
CTS Plumbing Consolidated ENERVAL --------------- --------------- --------------- Cash Flows From Operating Activities Net income (loss) Adjustments to reconcile net income (loss) to net cash provided by operating activities Deferred recoverable purchased power contract termination payment Distribution from partnership in excess of recognized earnings Equity in loss / (earnings) of subsidiaries Extraordinary item (net of tax) Special charges Depreciation and amortization Allowance for equity funds used during construction Investment tax credit adjustments, net Deferred income taxes, net Deferred energy supply costs Unrecovered state excise tax Net change in: Accounts receivable Inventories Prepaid New Jersey sales and excise taxes Accounts payable Taxes payable Other current assets & liabilities(1) Dividends received from subsidiaries Other, net --------------- --------------- --------------- Net cash provided by operating activities --------------- --------------- --------------- Cash Flows From Investing Activities Acquisition of businesses, net of cash acquired Intercompany loan receivable/payable Capital expenditures Investments in partnerships Deposits to nuclear decommissioning trust funds Decrease in bond proceeds held in trust funds Decrease in investment in leveraged leases Other, net --------------- --------------- --------------- Net cash used by investing activities --------------- --------------- --------------- Cash Flows From Financing Activities Common dividends paid Preferred dividends paid Capital contributions Common stock issued Common stock redeemed Preferred securities issued Preferred securities redeemed Long-term debt issued Long-term debt redeemed Variable rate demand bonds issued Variable rate demand bonds redeemed Principal portion of capital lease payments Net change in short-term debt Cost of issuances and refinancings --------------- --------------- --------------- Net cash used by financing activities --------------- --------------- --------------- Net change in cash and cash equivalents Beginning of year cash and cash equivalents --------------- --------------- --------------- End of year cash and cash equivalents =============== =============== ===============
(1) Other than debt and deferred income taxes classified as current. *CONFIDENTIAL TREATMENT REQUESTED F-3F 77 Conectiv Thermal Systems, Inc. and Subsidiaries* Consolidating Statement of Cash Flows For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Total CTS Reclasses & CTS Consolidated Consol. Entries Parent --------------- --------------- --------------- Cash Flows From Operating Activities Net income (loss) Adjustments to reconcile net income (loss) to net cash provided by operating activities Deferred recoverable purchased power contract termination payment Distribution from partnership in excess of recognized earnings Equity in loss / (earnings) of subsidiaries Extraordinary item (net of tax) Special charges Depreciation and amortization Allowance for equity funds used during construction Investment tax credit adjustments, net Deferred income taxes, net Deferred energy supply costs Unrecovered state excise tax Net change in: Accounts receivable Inventories Prepaid New Jersey sales and excise taxes Accounts payable Taxes payable Other current assets & liabilities(1) Dividends received from subsidiaries Other, net --------------- --------------- --------------- Net cash provided by operating activities --------------- --------------- --------------- Cash Flows From Investing Activities Acquisition of businesses, net of cash acquired Intercompany loan receivable/payable Capital expenditures Investments in partnerships Deposits to nuclear decommissioning trust funds Decrease in bond proceeds held in trust funds Decrease in investment in leveraged leases Other, net --------------- --------------- --------------- Net cash used by investing activities --------------- --------------- --------------- Cash Flows From Financing Activities Common dividends paid Preferred dividends paid Capital contributions Common stock issued Common stock redeemed Preferred securities issued Preferred securities redeemed Long-term debt issued Long-term debt redeemed Variable rate demand bonds issued Variable rate demand bonds redeemed Principal portion of capital lease payments Net change in short-term debt Cost of issuances and refinancings --------------- --------------- --------------- Net cash used by financing activities --------------- --------------- --------------- Net change in cash and cash equivalents Beginning of year cash and cash equivalents --------------- --------------- --------------- End of year cash and cash equivalents =============== =============== ===============
ATS Operations AJTS TELP --------------- --------------- --------------- Cash Flows From Operating Activities Net income (loss) Adjustments to reconcile net income (loss) to net cash provided by operating activities Deferred recoverable purchased power contract termination payment Distribution from partnership in excess of recognized earnings Equity in loss / (earnings) of subsidiaries Extraordinary item (net of tax) Special charges Depreciation and amortization Allowance for equity funds used during construction Investment tax credit adjustments, net Deferred income taxes, net Deferred energy supply costs Unrecovered state excise tax Net change in: Accounts receivable Inventories Prepaid New Jersey sales and excise taxes Accounts payable Taxes payable Other current assets & liabilities(1) Dividends received from subsidiaries Other, net --------------- --------------- --------------- Net cash provided by operating activities --------------- --------------- --------------- Cash Flows From Investing Activities Acquisition of businesses, net of cash acquired Intercompany loan receivable/payable Capital expenditures Investments in partnerships Deposits to nuclear decommissioning trust funds Decrease in bond proceeds held in trust funds Decrease in investment in leveraged leases Other, net --------------- --------------- --------------- Net cash used by investing activities --------------- --------------- --------------- Cash Flows From Financing Activities Common dividends paid Preferred dividends paid Capital contributions Common stock issued Common stock redeemed Preferred securities issued Preferred securities redeemed Long-term debt issued Long-term debt redeemed Variable rate demand bonds issued Variable rate demand bonds redeemed Principal portion of capital lease payments Net change in short-term debt Cost of issuances and refinancings --------------- --------------- --------------- Net cash used by financing activities --------------- --------------- --------------- Net change in cash and cash equivalents Beginning of year cash and cash equivalents --------------- --------------- --------------- End of year cash and cash equivalents =============== =============== ===============
(1) Other than debt and deferred income taxes classified as current. *CONFIDENTIAL TREATMENT REQUESTED F - 3G 78 Conectiv Solutions, Inc. and Subsidiaries* Consolidating Statement of Cash Flows For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Total Solutions Reclasses & Solutions Consolidated Consol. Entries Parent --------------- --------------- --------------- Cash Flows From Operating Activities Net income (loss) Adjustments to reconcile net income (loss) to net cash provided by operating activities Deferred recoverable purchased power contract termination payment Distribution from partnership in excess of recognized earnings Equity in loss / (earnings) of subsidiaries Extraordinary item (net of tax) Special charges Depreciation and amortization Allowance for equity funds used during construction Investment tax credit adjustments, net Deferred income taxes, net Deferred energy supply costs Unrecovered state excise tax Net change in: Accounts receivable Inventories Prepaid New Jersey sales and excise taxes Accounts payable Taxes payable Other current assets & liabilities(1) Dividends received from subsidiaries Other, net --------------- --------------- --------------- Net cash provided by operating activities --------------- --------------- --------------- Cash Flows From Investing Activities Acquisition of businesses, net of cash acquired Intercompany loan receivable/payable Capital expenditures Investments in partnerships Deposits to nuclear decommissioning trust funds Decrease in bond proceeds held in trust funds Decrease in investment in leveraged leases Other, net --------------- --------------- --------------- Net cash used by investing activities --------------- --------------- --------------- Cash Flows From Financing Activities Common dividends paid Preferred dividends paid Capital contributions Common stock issued Common stock redeemed Preferred securities issued Preferred securities redeemed Long-term debt issued Long-term debt redeemed Variable rate demand bonds issued Variable rate demand bonds redeemed Principal portion of capital lease payments Net change in short-term debt Cost of issuances and refinancings --------------- --------------- --------------- Net cash used by financing activities --------------- --------------- --------------- Net change in cash and cash equivalents Beginning of year cash and cash equivalents --------------- --------------- --------------- End of year cash and cash equivalents =============== =============== ===============
(1) Other than debt and deferred income taxes classified as current. *CONFIDENTIAL TREATMENT REQUESTED F - 3H Page 1 Of 2 79 Conectiv Solutions, Inc. and Subsidiaries* Consolidating Statement of Cash Flows For the Year Ended December 31, 1999 (Dollars in Thousands)
ATE King St. Elimination Consolidated ATE Assurance ATE/King St. --------------- --------------- --------------- --------------- Cash Flows From Operating Activities Net income (loss) Adjustments to reconcile net income (loss) to net cash provided by operating activities Deferred recoverable purchased power contract termination payment Distribution from partnership in excess of recognized earnings Equity in loss / (earnings) of subsidiaries Extraordinary item (net of tax) Special charges Depreciation and amortization Allowance for equity funds used during construction Investment tax credit adjustments, net Deferred income taxes, net Deferred energy supply costs Unrecovered state excise tax Net change in: Accounts receivable Inventories Prepaid New Jersey sales and excise taxes Accounts payable Taxes payable Other current assets & liabilities(1) Dividends received from subsidiaries Other, net --------------- --------------- --------------- --------------- Net cash provided by operating activities --------------- --------------- --------------- --------------- Cash Flows From Investing Activities Acquisition of businesses, net of cash acquired Intercompany loan receivable/payable Capital expenditures Investments in partnerships Deposits to nuclear decommissioning trust funds Decrease in bond proceeds held in trust funds Decrease in investment in leveraged leases Other, net --------------- --------------- --------------- --------------- Net cash used by investing activities --------------- --------------- --------------- --------------- Cash Flows From Financing Activities Common dividends paid Preferred dividends paid Capital contributions Common stock issued Common stock redeemed Preferred securities issued Preferred securities redeemed Long-term debt issued Long-term debt redeemed Variable rate demand bonds issued Variable rate demand bonds redeemed Principal portion of capital lease payments Net change in short-term debt Cost of issuances and refinancings --------------- --------------- --------------- --------------- Net cash used by financing activities --------------- --------------- --------------- --------------- Net change in cash and cash equivalents Beginning of year cash and cash equivalents --------------- --------------- --------------- --------------- End of year cash and cash equivalents =============== =============== =============== ===============
(1) Other than debt and deferred income taxes classified as current. *CONFIDENTIAL TREATMENT REQUESTED F - 3H Page 2 Of 2 80 Atlantic Generation, Inc. and Subsidiaries* Consolidating Statement of Cash Flows For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Total AGI Reclasses & AGI Consolidated Consol. Entries Parent Vin LTD --------------- --------------- --------------- --------------- Cash Flows From Operating Activities Net income (loss) Adjustments to reconcile net income (loss) to net cash provided by operating activities Deferred recoverable purchased power contract termination payment Distribution from partnership in excess of recognized earnings Equity in loss / (earnings) of subsidiaries Extraordinary item (net of tax) Special charges Depreciation and amortization Allowance for equity funds used during construction Investment tax credit adjustments, net Deferred income taxes, net Deferred energy supply costs Unrecovered state excise tax Net change in: Accounts receivable Inventories Prepaid New Jersey sales and excise taxes Accounts payable Taxes payable Other current assets & liabilities(1) Dividends received from subsidiaries Other, net --------------- --------------- --------------- --------------- Net cash provided by operating activities --------------- --------------- --------------- --------------- Cash Flows From Investing Activities Acquisition of businesses, net of cash acquired Intercompany loan receivable/payable Capital expenditures Investments in partnerships Deposits to nuclear decommissioning trust funds Decrease in bond proceeds held in trust funds Decrease in investment in leveraged leases Other, net --------------- --------------- --------------- --------------- Net cash used by investing activities --------------- --------------- --------------- --------------- Cash Flows From Financing Activities Common dividends paid Preferred dividends paid Capital contributions Common stock issued Common stock redeemed Preferred securities issued Preferred securities redeemed Long-term debt issued Long-term debt redeemed Variable rate demand bonds issued Variable rate demand bonds redeemed Principal portion of capital lease payments Net change in short-term debt Cost of issuances and refinancings --------------- --------------- --------------- --------------- Net cash used by financing activities --------------- --------------- --------------- --------------- Net change in cash and cash equivalents Beginning of year cash and cash equivalents --------------- --------------- --------------- --------------- End of year cash and cash equivalents =============== =============== =============== =============== (1) Other than debts and deferred income taxes classified as current. * CONFIDENTIAL TREATMENT REQUESTED
F - 3I Page 1 Of 2 81 Atlantic Generation, Inc. and Subsidiaries* Consolidating Statement of Cash Flows For the Year Ended December 31, 1999 (Dollars in Thousands)
Vin Gen Bing LTD Bing Gen Ped Gen --------------- --------------- --------------- --------------- Cash Flows From Operating Activities Net income (loss) Adjustments to reconcile net income (loss) to net cash provided by operating activities Deferred recoverable purchased power contract termination payment Distribution from partnership in excess of recognized earnings Equity in loss / (earnings) of subsidiaries Extraordinary item (net of tax) Special charges Depreciation and amortization Allowance for equity funds used during construction Investment tax credit adjustments, net Deferred income taxes, net Deferred energy supply costs Unrecovered state excise tax Net change in: Accounts receivable Inventories Prepaid New Jersey sales and excise taxes Accounts payable Taxes payable Other current assets & liabilities(1) Dividends received from subsidiaries Other, net --------------- --------------- --------------- --------------- Net cash provided by operating activities --------------- --------------- --------------- --------------- Cash Flows From Investing Activities Acquisition of businesses, net of cash acquired Intercompany loan receivable/payable Capital expenditures Investments in partnerships Deposits to nuclear decommissioning trust funds Decrease in bond proceeds held in trust funds Decrease in investment in leveraged leases Other, net --------------- --------------- --------------- --------------- Net cash used by investing activities --------------- --------------- --------------- --------------- Cash Flows From Financing Activities Common dividends paid Preferred dividends paid Capital contributions Common stock issued Common stock redeemed Preferred securities issued Preferred securities redeemed Long-term debt issued Long-term debt redeemed Variable rate demand bonds issued Variable rate demand bonds redeemed Principal portion of capital lease payments Net change in short-term debt Cost of issuances and refinancings --------------- --------------- --------------- --------------- Net cash used by financing activities --------------- --------------- --------------- --------------- Net change in cash and cash equivalents Beginning of year cash and cash equivalents --------------- --------------- --------------- --------------- End of year cash and cash equivalents =============== =============== =============== ===============
(1) Other than debt and deferred income taxes classified as current. *CONFIDENTIAL TREATMENT REQUESTED F - 3I Page 2 Of 2 82 Conectiv and Subsidiaries Consolidating Statement of Retained Earnings For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations Total Reclasses & Conectiv DPL ACE Conectiv Consolidations Parent Consolidated Consolidated --------------- --------------- --------------- --------------- --------------- Retained Earnings Balance as of December 31, 1998 276,939 (457,271) 276,939 322,599 182,123 Transfer of AEE parent into Conectiv -- (16,628) -- -- -- Transfer of AET into DCI -- 5,803 -- -- -- Transfer of AEI into DCI -- -- -- -- -- Transfer DOCS into CES -- -- -- -- -- Transfer of CTS into CSI -- 1,354 -- -- -- Transfer of CI into CCI -- (147) -- -- -- Transfer of ATE into Solutions -- -- -- -- -- ASP parent set-up from AEE -- 6,544 -- -- -- AGI parent set-up from AEE -- (3,457) -- -- -- Transfer of PED Ltd. Into ATE -- -- -- -- -- Merge into Parent -- -- -- -- -- Net Income (198,140) 141,758 (198,140) (111,443) 5,835 Common stock dividends (96,242) 115,272 (96,242) (59,428) (55,845) Class A common stock dividends (19,030) -- (19,030) -- -- Preferred dividends -- 6,572 -- (4,440) (2,132) Redemption of preferred stock -- -- -- -- -- --------------- --------------- --------------- --------------- --------------- Balance as of December 31, 1999 (36,472) (200,201) (36,472) 147,288 129,981 =============== =============== =============== =============== ===============
*CONFIDENTIAL TREATMENT REQUESTED F - 4A Page 1 Of 3 83 Conectiv and Subsidiaries Consolidating Statement of Retained Earnings For the Year Ended December 31, 1999 (Dollars in Thousands)
DCI * CES* CSI * Consolidated Consolidated ASP* DSC* Consolidated --------------- --------------- --------------- --------------- --------------- Retained Earnings Balance as of December 31, 1998 2,652 Transfer of AEE parent into Conectiv -- Transfer of AET into DCI -- Transfer of AEI into DCI -- Transfer DOCS into CES -- Transfer of CTS into CSI -- Transfer of CI into CCI -- Transfer of ATE into Solutions -- ASP parent set-up from AEE -- AGI parent set-up from AEE -- Transfer of PED Ltd. Into ATE -- Merge into Parent -- Net Income 798 Common stock dividends -- Class A common stock dividends -- Preferred dividends -- Redemption of preferred stock -- ---------------- --------------- --------------- --------------- -------------- Balance as of December 31, 1999 3,451 ================ =============== =============== =============== ==============
*CONFIDENTIAL TREATMENT REQUESTED F - 4A Page 2 Of 3 84 Conectiv and Subsidiaries Consolidating Statement of Retained Earnings For the Year Ended December 31, 1999 (Dollars in Thousands)
Solutions* AGI * Conectiv * CCI* Consolidated CRP* Consolidated Energy --------------- --------------- --------------- --------------- --------------- Retained Earnings Balance as of December 31, 1998 (26) Transfer of AEE parent into Conectiv -- Transfer of AET into DCI -- Transfer of AEI into DCI -- Transfer DOCS into CES -- Transfer of CTS into CSI -- Transfer of CI into CCI -- Transfer of ATE into Solutions -- ASP parent set-up from AEE -- AGI parent set-up from AEE -- Transfer of PED Ltd. Into ATE -- Merge into Parent -- Net Income (105) Common stock dividends -- Class A common stock dividends -- Preferred dividends -- Redemption of preferred stock -- --------------- --------------- --------------- --------------- --------------- Balance as of December 31, 1999 (131) =============== =============== =============== =============== ===============
*CONFIDENTIAL TREATMENT REQUESTED F - 4A Page 3 Of 3 85 Delmarva Power and Light Company and Subsidiaries Consolidating Statement of Retained Earnings For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Total DPL Reclasses & DPL DPL Consolidated Consol. Entries Parent Financing --------- --------- --------- --------- Retained Earnings Balance as of December 31, 1998 322,599 -- 322,599 -- Transfer of AEE parent into Conectiv Transfer of AET into DCI -- -- -- -- Transfer of AEI into DCI -- -- -- -- Transfer DOCS into CES -- -- -- -- Transfer of CTS into CSI -- -- -- -- Transfer of CI into CCI -- -- -- -- Transfer of ATE into Solutions -- -- -- -- ASP parent set-up from AEE -- -- -- -- AGI parent set-up from AEE -- -- -- -- Transfer of PED Ltd. Into ATE -- -- -- -- Merge into Parent -- -- -- -- Net Income (111,443) -- (111,443) -- Common stock dividends (59,428) -- (59,428) -- Class A common stock dividends -- -- -- -- Preferred dividends (4,440) -- (4,440) -- Redemption of preferred stock -- -- -- -- --------- --------- --------- --------- Balance as of December 31, 1999 147,288 -- 147,288 -- ========= ========= ========= =========
F - 4B 86 Atlantic City Electric Company and Subsidiaries Consolidating Statement of Retained Earnings For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Total ACE Reclasses & ACE ACE ACE Consolidated Consol. Entries Parent Capital I Capital II ----------------- ----------------- ----------------- --------------- --------------- Retained Earnings Balance as of December 31, 1998 182,123 - 182,123 - - Transfer of AEE parent into Conectiv Transfer of AET into DCI - - - - - Transfer of AEI into DCI - - - - - Transfer DOCS into CES - - - - - Transfer of CTS into CSI - - - - - Transfer of CI into CCI - - - - - Transfer of ATE into Solutions - - - - - ASP parent set-up from AEE - - - - - AGI parent set-up from AEE - - - - - Transfer of PED Ltd. Into ATE - - - - - Merge into Parent - - - - - Net Income 5,835 - 5,835 - - Common stock dividends (55,845) - (55,845) - - Class A common stock dividends - - - - - Preferred dividends (2,132) - (2,132) - - Redemption of preferred stock - - - - - ----------------- ----------------- ----------------- --------------- --------------- Balance as of December 31, 1999 129,981 - 129,981 - - ================= ================= ================= =============== ===============
F - 4C 87 Delmarva Capital Investments, Inc. and Subsidiaries* Consolidating Statement of Retained Earnings For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Total DCI Reclasses & DCI Consolidated Consol. Entries Parent DCI I -------------------- ----------------- ---------------- ----------------- Retained Earnings Balance as of December 31, 1998 Transfer of AEE parent into Conectiv Transfer of AET into DCI Transfer of AEI into DCI Transfer DOCS into CES Transfer of CTS into CSI Transfer of CI into CCI Transfer of ATE into Solutions ASP parent set-up from AEE AGI parent set-up from AEE Transfer of PED Ltd. Into ATE Merge into Parent Net Income Common stock dividends Class A common stock dividends Preferred dividends Redemption of preferred stock -------------------- ----------------- ---------------- ----------------- Balance as of December 31, 1999 ==================== ================= ================ =================
*CONFIDENTIAL TREATMENT REQUESTED F - 4D Page 1 Of 2 88 Delmarva Capital Investments, Inc. and Subsidiaries* Consolidating Statement of Retained Earnings For the Year Ended December 31, 1999 (Dollars in Thousands)
DCTC DCI II Burney CCM COSC ----------------- ---------------- ---------------- --------------- Retained Earnings Balance as of December 31, 1998 Transfer of AEE parent into Conectiv Transfer of AET into DCI Transfer of AEI into DCI Transfer DOCS into CES Transfer of CTS into CSI Transfer of CI into CCI Transfer of ATE into Solutions ASP parent set-up from AEE AGI parent set-up from AEE Transfer of PED Ltd. Into ATE Merge into Parent Net Income Common stock dividends Class A common stock dividends Preferred dividends Redemption of preferred stock ----------------- ---------------- ---------------- --------------- Balance as of December 31, 1999 ================= ================ ================ ===============
*CONFIDENTIAL TREATMENT REQUESTED F - 4D Page 2 Of 2 89 Conectiv Energy Supply, Inc. and Subsidiaries* Consolidating Statement of Retained Earnings For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Conectiv Total CES Reclasses & Energy Consolidated Consol. Entries Parent COSC ------------------- -------------------- --------------- -------------- Retained Earnings Balance as of December 31, 1998 Transfer of AEE parent into Conectiv Transfer of AET into DCI Transfer of AEI into DCI Transfer DOCS into CES Transfer of CTS into CSI Transfer of CI into CCI Transfer of ATE into Solutions ASP parent set-up from AEE AGI parent set-up from AEE Transfer of PED Ltd. Into ATE Merge into Parent Net Income Common stock dividends Class A common stock dividends Preferred dividends Redemption of preferred stock ------------------- -------------------- --------------- -------------- Balance as of December 31, 1999 =================== ==================== =============== ==============
*CONFIDENTIAL TREATMENT REQUESTED F - 4E 90 Conectiv Services, Inc. and Subsidiary* Consolidating Statement of Retained Earnings For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Total CSI Reclasses & Consolidated Consol. Entries CSI -------------------- -------------------- --------------- Retained Earnings Balance as of December 31, 1998 Transfer of AEE parent into Conectiv Transfer of AET into DCI Transfer of AEI into DCI Transfer DOCS into CES Transfer of CTS into CSI Transfer of CI into CCI Transfer of ATE into Solutions ASP parent set-up from AEE AGI parent set-up from AEE Transfer of PED Ltd. Into ATE Merge into Parent Net Income Common stock dividends Class A common stock dividends Preferred dividends Redemption of preferred stock -------------------- -------------------- --------------- Balance as of December 31, 1999 ==================== ==================== ===============
CTS Plumbing Consolidated ENERVAL -------------- -------------- -------------- Retained Earnings Balance as of December 31, 1998 Transfer of AEE parent into Conectiv Transfer of AET into DCI Transfer of AEI into DCI Transfer DOCS into CES Transfer of CTS into CSI Transfer of CI into CCI Transfer of ATE into Solutions ASP parent set-up from AEE AGI parent set-up from AEE Transfer of PED Ltd. Into ATE Merge into Parent Net Income Common stock dividends Class A common stock dividends Preferred dividends Redemption of preferred stock -------------- -------------- -------------- Balance as of December 31, 1999 ============== ============== ==============
*CONFIDENTIAL TREATMENT REQUESTED F - 4F 91 Conectiv Thermal Systems, Inc. and Subsidiaries* Consolidating Statement of Retained Earnings For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Total CTS Reclasses & CTS Consolidated Consol. Entries Parent -------------------- -------------------- --------------- Retained Earnings Balance as of December 31, 1998 Transfer of AEE parent into Conectiv Transfer of AET into DCI Transfer of AEI into DCI Transfer DOCS into CES Transfer of CTS into CSI Transfer of CI into CCI Transfer of ATE into Solutions ASP parent set-up from AEE AGI parent set-up from AEE Transfer of PED Ltd. Into ATE Merge into Parent Net Income Common stock dividends Class A common stock dividends Preferred dividends Redemption of preferred stock -------------------- -------------------- --------------- Balance as of December 31, 1999 ==================== ==================== ===============
ATS Operations AJTS TELP --------------- --------------- -------------- Retained Earnings Balance as of December 31, 1998 Transfer of AEE parent into Conectiv Transfer of AET into DCI Transfer of AEI into DCI Transfer DOCS into CES Transfer of CTS into CSI Transfer of CI into CCI Transfer of ATE into Solutions ASP parent set-up from AEE AGI parent set-up from AEE Transfer of PED Ltd. Into ATE Merge into Parent Net Income Common stock dividends Class A common stock dividends Preferred dividends Redemption of preferred stock --------------- --------------- -------------- Balance as of December 31, 1999 =============== =============== ==============
*CONFIDENTIAL TREATMENT REQUESTED F - 4G 92 Conectiv Solutions, Inc. and Subsidiaries* Consolidating Statement of Retained Earnings For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Total Solutions Reclasses & Solutions Consolidated Consol. Entries Parent -------------------- -------------------- ----------------- Retained Earnings Balance as of December 31, 1998 Transfer of AEE parent into Conectiv Transfer of AET into DCI Transfer of AEI into DCI Transfer DOCS into CES Transfer of CTS into CSI Transfer of CI into CCI Transfer of ATE into Solutions ASP parent set-up from AEE AGI parent set-up from AEE Transfer of PED Ltd. Into ATE Merge into Parent Net Income Common stock dividends Class A common stock dividends Preferred dividends Redemption of preferred stock -------------------- -------------------- ----------------- Balance as of December 31, 1999 ==================== ==================== =================
*CONFIDENTIAL TREATMENT REQUESTED F - 4H Page 1 Of 2 93 Conectiv Solutions, Inc. and Subsidiaries* Consolidating Statement of Retained Earnings For the Year Ended December 31, 1999 (Dollars in Thousands)
ATE King St. Elimination Consolidated ATE Assurance ATE/King St. ---------------- ---------------- ---------------- ---------------- Retained Earnings Balance as of December 31, 1998 Transfer of AEE parent into Conectiv Transfer of AET into DCI Transfer of AEI into DCI Transfer DOCS into CES Transfer of CTS into CSI Transfer of CI into CCI Transfer of ATE into Solutions ASP parent set-up from AEE AGI parent set-up from AEE Transfer of PED Ltd. Into ATE Merge into Parent Net Income Common stock dividends Class A common stock dividends Preferred dividends Redemption of preferred stock ---------------- ---------------- ---------------- ---------------- Balance as of December 31, 1999 ================ ================ ================ ================
*CONFIDENTIAL TREATMENT REQUESTED F - 4H Page 2 Of 2 94 Atlantic Generation, Inc. and Subsidiaries* Consolidating Statement of Retained Earnings For the Year Ended December 31, 1999 (Dollars in Thousands)
Eliminations, Total AGI Reclasses & AGI Consolidated Consol. Entries Parent Vin LTD ------------------ -------------------- --------------- -------------- Retained Earnings Balance as of December 31, 1998 Transfer of AEE parent into Conectiv Transfer of AET into DCI Transfer of AEI into DCI Transfer DOCS into CES Transfer of CTS into CSI Transfer of CI into CCI Transfer of ATE into Solutions ASP parent set-up from AEE AGI parent set-up from AEE Transfer of PED Ltd. Into ATE Merge into Parent Net Income Common stock dividends Class A common stock dividends Preferred dividends Redemption of preferred stock ------------------ -------------------- --------------- -------------- Balance as of December 31, 1999 ================== ==================== =============== ==============
*CONFIDENTIAL TREATMENT REQUESTED F - 4I Page 1 Of 2 95 Atlantic Generation, Inc. and Subsidiaries* Consolidating Statement of Retained Earnings For the Year Ended December 31, 1999 (Dollars in Thousands)
Vin Gen Bing LTD Bing Gen Ped LTD Ped Gen -------------- --------------- --------------- --------------- -------------- Retained Earnings Balance as of December 31, 1998 Transfer of AEE parent into Conectiv Transfer of AET into DCI Transfer of AEI into DCI Transfer DOCS into CES Transfer of CTS into CSI Transfer of CI into CCI Transfer of ATE into Solutions ASP parent set-up from AEE AGI parent set-up from AEE Transfer of PED Ltd. Into ATE Merge into Parent Net Income Common stock dividends Class A common stock dividends Preferred dividends Redemption of preferred stock -------------- --------------- --------------- --------------- -------------- Balance as of December 31, 1999 ============== =============== =============== =============== ==============
*CONFIDENTIAL TREATMENT REQUESTED F - 4I Page 2 Of 2 96 SIGNATURE Pursuant to the requirements of the Public Utility Holding Company Act of 1935, the Registrant has duly caused this annual report to be signed on its behalf by the undersigned thereunto duly authorized. CONECTIV /s/ James P. Lavin ------------------------------- James P. Lavin Controller Date: April 27, 2000 (32) 97 EXHIBIT A Conectiv's Proxy Statement and 1999 Annual Report to Shareholders, which was filed with the Commission on February 22, 2000 (File No. 1-13895), is incorporated herein by reference. 98 EXHIBIT B CONECTIV B.1.1 Restated Certificate of Incorporation filed March 2, 1998 in the office of the Delaware Secretary of State (filed with Conectiv's Current Report on Form 8-K dated March 6, 1998) B.1.2* Amended and Restated Bylaws as amended October 26, 1999 DELMARVA POWER & LIGHT COMPANY B.2.1 Restated Certificate filed April 9, 1990 with the office of the Delaware Secretary of State (filed with Registration Statement No. 33-50453) B.2.2 Certificate of Designation filed July 29, 1992 with the office of the Delaware Secretary of State (filed with Registration Statement No. 33-50453) B.2.3 Certificate of Designation filed October 29, 1993 with the office of the Delaware Secretary of State (filed with Registration Statement No. 33-53855) B.2.4 Certificate of Amendment filed June 7, 1996 with the office of the Delaware Secretary of State (filed with Registration Statement No. 333-07281) B.2.5 Certificate of Amendment filed March 2, 1998 with the office of the Delaware Secretary of State (filed with Delmarva Power & Light's Current Report on Form 8-K dated March 4, 1998) B.2.6 Certificate of Merger of DS Sub, Inc., a Delaware Corporation, with and into Delmarva Power & Light Co., filed with the Delaware Secretary of State, effective as of March 1, 1998 (filed with Delmarva Power & Light's Current Report on Form 8-K dated March 4, 1998) B.2.7 Bylaws (filed with Delmarva Power & Light's Current Report on Form 8-K dated March 4, 1998) DPL REIT HOLDING, INC. B.3.1* Certificate of Incorporation filed March 12, 1998 in the office of the Delaware Secretary of State B.3.2* Amended and Restated Bylaws as amended December 31, 1999 DPL REIT, INC. B.4.1* Certificate of Incorporation filed March 12, 1998 in the office of the Delaware Secretary of State B.4.2* Amended and Restated Bylaws as amended December 31, 1999 ATLANTIC CITY ELECTRIC COMPANY B.5.1 Agreement of Merger Between Atlantic City Electric Company and South Jersey Power & Light Company filed June 30, 1949 and Amendments through May 3, 1991 (filed with Atlantic City Electric Company's Reports on Form 10-Q for the quarters ended June 30, 1982, March 31, 1985, March 31, 1987 and September 30, 1991, with Atlantic City Electric Company's Form 8-K dated October 12, 1988 and with Atlantic City Electric Company's Form 10-K for the fiscal year ended December 31, 1990) B.5.2* Amended and Restated Bylaws as amended December 31, 1999 1 * Filed herewith 99 ACE REIT HOLDING, INC. B.6.1* Certificate of Incorporation filed March 12, 1998 in the office of the Delaware Secretary of State B.6.2* Amended and Restated Bylaws as amended December 31, 1999 ACE REIT, INC. B.7.1* Certificate of Incorporation filed March 12, 1998 in the office of the Delaware Secretary of State B.7.2* Amended and Restated Bylaws as amended December 31, 1999 CONECTIV RESOURCE PARTNERS, INC. B.8.1 Certificate of Incorporation filed January 16, 1998 with the office of the Delaware Secretary of State (filed with 1998 Form U5S) B.8.2* Amended and Restated Bylaws as amended December 31, 1999 DELMARVA SERVICES COMPANY B.9.1 Certificate of Incorporation of Delmarva Services Company filed October 31, 1986 in the office of the Delaware Secretary of State (filed with 1998 Form U5S) B.9.2* Amended and Restated Bylaws as amended December 31 1999 CONECTIV COMMUNICATIONS, INC. (f/k/a Delmarva Telecommunications, Inc.) B.10.1 Certificate of Incorporation of Delmarva Telecommunications, Inc. filed October 21, 1996 in the office of the Delaware Secretary of State (filed with 1998 Form U5S) B.10.2 Certificate of Amendment of Certificate of Incorporation of Delmarva Telecommunications, Inc. changing the name to Conectiv Communications, Inc. filed February 26, 1997 in the office of the Delaware Secretary of State (filed with 1998 Form U5S) B.10.3* Amended and Restated Bylaws as amended December 31, 1999 CONECTIV COMMUNICATIONS OF VIRGINIA, INC. B.11.1* Certificate of Incorporation filed November 2, 1999 in the office of the Commonwealth of Virginia State Corporation Commission B.11.2* Bylaws CONECTIV ENERGY, INC. B.12.1 Certificate of Incorporation of Conectiv Energy, Inc. filed February 18, 1998 in the office of the Delaware Secretary of State (filed with 1998 Form U5S) B.12.2* Bylaws CONECTIV SERVICES, INC. (f/k/a Service Confidence, Inc.) B.13.1 Certificate of Incorporation filed June 26, 1996 in the office of the Delaware Secretary of State (filed with 1998 Form U5S) B.13.2 Certificate of Amendment of Certificate of Incorporation of Service Confidence, Inc. changing the name to Conectiv Services, Inc. filed March 6, 1997 in the office of the Delaware Secretary of State (filed with 1998 Form U5S) B.13.3* Amended and Restated Bylaws as amended December 31, 1999 2 * Filed herewith 100 CONECTIV PLUMBING, L.L.C. B.14.1 Certificate of Formation of Conectiv Plumbing, L.L.C. filed January 15, 1998 in the office of the Delaware Secretary of State (filed with 1998 Form U5S) B.14.2 Operating Agreement of Conectiv Plumbing, L.L.C. (confidential treatment requested) (filed with 1998 Form U5S) CONECTIV ENERGY SUPPLY, INC. (f/k/a Delmarva Energy Company) B.15.1 Certificate of Incorporation of Delmarva Energy Company filed July 3, 1975 in the office of the Delaware Secretary of State (filed with 1998 Form U5S) B.15.2 Certificate of Amendment of Certificate of Incorporation of Delmarva Energy Company adding Article 12th filed August 19, 1987 in the office of the Delaware Secretary of State (filed with 1998 Form U5S) B.15.3 Certificate of Amendment of Certificate of Incorporation of Delmarva Energy Company changing the name to Conectiv Energy Supply, Inc. filed April 9, 1998 in the office of the Delaware Secretary of State (filed with 1998 Form U5S) B.15.4* Amended and Restated Bylaws as amended December 31, 1999 DELMARVA CAPITAL INVESTMENTS, INC. B.16.1 Certificate of Incorporation filed February 27, 1985 in the office of the Delaware Secretary of State (filed with 1998 Form U5S) B.16.2 Certificate of Amendment of Certificate of Incorporation amending Article 8th filed August 19, 1987 in the office of the Delaware Secretary of State (filed with 1998 Form U5S) B.16.3* Amended and Restated Bylaws as amended December 31, 1999 DCI I, INC. B.17.1 Certificate of Incorporation filed February 27, 1985 in the office of the Delaware Secretary of State (filed with 1998 Form U5S) B.17.2 Certificate of Amendment of Certificate of Incorporation amending Article 8th filed August 19, 1987 in the office of the Delaware Secretary of State (filed with 1998 Form U5S) B.17.3* Amended and Restated Bylaws as amended December 31, 1999 DCI II, INC. B.18.1 Articles of Incorporation of DCI II, Inc. filed November 15, 1985 in the office of the Lieutenant Governor of the Virgin Islands of the U.S. (filed with 1998 Form U5S) B.18.2 Bylaws (filed with 1998 Form U5S) DCTC-BURNEY, INC. (f/k/a DCTC-Redding, Inc.) B.19.1 Certificate of Incorporation filed June 26, 1987 in the office of the Delaware Secretary of State (filed with 1998 Form U5S) B.19.2* Amended and Restated Bylaws as amended December 31, 1999 3 * Filed herewith 101 CONECTIV OPERATING SERVICES COMPANY (f/k/a Delmarva Operating Services Company) B.20.1 Certificate of Incorporation filed May 8, 1987 in the office of the Delaware Secretary of State (filed with 1998 Form U5S) B.20.2 Certificate of Amendment of Certificate of Incorporation of Delmarva Operating Services Company changing name to Conectiv Operating Services Company filed December 9, 1998 in the office of the Delaware Secretary of State (filed with 1998 Form U5S) B.20.3* Amended and Restated Bylaws as amended December 31, 1999 CONECTIV SOLUTIONS LLC B.21.1 Certificate of Formation of Conectiv Solutions LLC filed October 20, 1997 in the office of the Delaware Secretary of State (filed with 1998 Form U5S) B.21.2 Limited Liability Company Agreement for Conectiv Solutions LLC dated October 17, 1997 (confidential treatment requested) (filed with 1998 Form U5S) MILLENIUM ACCOUNT SERVICES, LLC B.22.1* Certificate of Formation of Millenium Account Services, LLC January 1, 1999 in the office of the Delaware Secretary of State B.22.2* Limited Liability Company Operating Agreement of Millenium Account Services LLC dated January 4, 1999 (confidential treatment requested) ENERVAL, L.L.C. (f/k/a Atlantic CNRG Services, L.L.C.) B.23.1 Certificate of Formation of Atlantic CNRG Services, L.L.C. filed March 17, 1995 in the office of the Delaware Secretary of State (filed with 1998 Form U5S) B.23.2 Certificate of Amendment of Atlantic CNRG Services, L.L.C. changing the name to Enerval, L.L.C. filed April 15, 1996 in the office of the Delaware Secretary of State (filed with 1998 Form U5S) B.23.3 Operating Agreement of Atlantic CNRG Services, L.L.C. dated March 17, 1995 (confidential treatment requested) (filed with 1998 Form U5S) B.23.4 First Amendment to Operating Agreement of Operating Agreement of Atlantic CNRG Services, L.L.C. dated April ___, 1996 (confidential treatment requested) (filed with 1998 Form U5S) B.23.5 Second Amendment to Operating Agreement of Enerval, L.L.C. dated June 17, 1998 (confidential treatment requested) (filed with 1998 Form U5S) ATLANTIC SOUTHERN PROPERTIES, INC. (f/k/a Atlantic Housing, Inc.) B.24.1 Certificate of Incorporation filed June 24, 1970 in the office of the New Jersey Secretary of State (filed with 1998 Form U5S) B.24.2 Certificate of Amendment to Certificate of Incorporation of Atlantic Housing, Inc. changing the name to Atlantic Southern Properties, Inc. filed January 4, 1989 in the office of the New Jersey Secretary of State (filed with 1998 Form U5S) B.24.3* Amended and Restated Bylaws as amended December 31,1999 ATE INVESTMENT, INC. B.25.1 Certificate of Incorporation of ATE Investment, Inc. filed October 9, 1986 in the office of the New Jersey Secretary of State (filed with 1998 Form U5S) B.25.2* Amended and Restated Bylaws as amended December 31, 1999 4 * Filed herewith 102 KING STREET ASSURANCE, LTD. B.26.1* Certificate of Incorporation filed August 9, 1999 in the office of the Bermuda Registrar of Companies B.26.2* Bye-Laws CONECTIV THERMAL SYSTEMS, INC. (f/k/a Atlantic Thermal Systems, Inc.) B.27.1 Certificate of Incorporation of Atlantic Thermal Systems, Inc. filed May 5, 1994 in the office of the Delaware Secretary of State (filed with 1998 Form U5S) B.27.2 Certificate of Amendment of Certificate of Incorporation changing the name to Conectiv Thermal Systems, Inc. filed March 2, 1998 in the office of the Delaware Secretary of State (filed with 1998 Form U5S) B.27.3* Amended and Restated Bylaws as amended December 31, 1999 ATS OPERATING SERVICES, INC. B.28.1 Certificate of Incorporation of ATS Operating Services, Inc. filed March 31, 1995 in the office of the Delaware Secretary of State (filed with 1998 Form U5S) B.28.2 Certificate for Renewal and Revival of Certificate of Incorporation filed December 10, 1998 in the office of the Delaware Secretary of State (filed with 1998 Form U5S) B.28.3* Amended and Restated Bylaws as amended December 31, 1999 ATLANTIC JERSEY THERMAL SYSTEMS, INC. B.29.1 Certificate of Incorporation of Atlantic Jersey Thermal Systems, Inc. filed May 20, 1994 in the office of the Delaware Secretary of State (filed with 1998 Form U5S) B.29.2* Amended and Restated Bylaws as amended December 31, 1999 ATLANTIC-PACIFIC GLENDALE, L.L.C. B.30.1 Certificate of Limited Liability Company filed August 22, 1997 with the office of the Delaware Secretary of State (filed with 1998 Form U5S) B.30.2 Operating Agreement (confidential treatment requested) (filed with 1998 Form U5S) ATLANTIC-PACIFIC LAS VEGAS, L.L.C. B.31.1 Certificate of Limited Liability Company filed October 29, 1997 with the office of the Delaware Secretary of State (filed with 1998 Form U5S) B.31.2 Certificate of Amendment filed November 5, 1997 with the office of the Delaware Secretary of State (filed with 1998 Form U5S) B.31.2 Operating Agreement (confidential treatment requested) (filed with 1998 Form U5S) ATLANTIC GENERATION, INC. B.32.1 Certificate of Incorporation Atlantic Generation, Inc. filed October 9, 1986 in the office of the New Jersey Secretary of State (filed with 1998 Form U5S) B.32.2* Amended and Restated Bylaws as amended December 31, 1999 BINGHAMTON GENERAL, INC. B.33.1 Certificate of Incorporation of Binghamton General, Inc. filed May 3, 1990 in the office of the Delaware Secretary of State (filed with 1998 Form U5S) B.33.2* Amended and Restated Bylaws as amended December 31, 1999 BINGHAMTON LIMITED, INC. B.34.1 Certificate of Incorporation of Binghamton Limited, Inc. filed May 2, 1990 in the office of the Delaware Secretary of State (filed with 1998 Form U5S) B.34.2* Amended and Restated Bylaws as amended December 31, 1999 5 * Filed herewith 103 VINELAND GENERAL, INC. B.35.1 Certificate of Incorporation of Vineland General, Inc. filed August 28, 1990 in the office of the Delaware Secretary of State (filed with 1998 Form U5S) B.35.2* Amended and Restated Bylaws as amended December 31, 1999 VINELAND LTD., INC. B.36.1 Certificate of Incorporation of Vineland Ltd., Inc. filed August 28, 1990 in the office of the Delaware Secretary of State (filed with 1998 Form U5S) B.36.2* Amended and Restated Bylaws as amended December 31, 1999 PEDRICK GEN., INC. B.37.1 Certificate of Incorporation of Pedrick Gen., Inc. filed July 28, 1989 in the office of the New Jersey Secretary of State (filed with 1998 Form U5S) B.37.2* Amended and Restated Bylaws as amended December 31, 1999 6 * Filed herewith 104 EXHIBIT C (a) * Reference is made to Delmarva Power & Light Company's 1999 Form 10-K, page IV-2 through IV-3, filed with the Commission on March 29, 2000 (File No. 1-1405) and to Atlantic City Electric Company's 1999 Form 10-K, pages IV-2 through IV-3, filed with the Commission on March 29, 2000; for the indentures and other fundamental documents defining the rights of security holders. * Reference is made to Exhibit 4(a) to Conectiv's Registration Statement on Form S-3 (File No. 333-72251) for the indenture defining the rights of security holders. (b) Not applicable. 105 EXHIBIT D A copy of the current System Tax Allocation Agreement was filed as Exhibit D to the 1998 Form U-5S and is incorporated by reference herein. 106 EXHIBIT E Copies of other documents prescribed by rule or order. None. 107 EXHIBIT F REPORT OF INDEPENDENT ACCOUNTANTS To the Board of Directors Conectiv Wilmington, Delaware In our opinion, the accompanying consolidated balance sheet and the related consolidated statements of income, changes of common stockholders' equity, and of cash flows present fairly, in all material respects, the financial position of Conectiv and subsidiary companies as of December 31, 1999 and the results of their operations and their cash flows for the year then ended, in conformity with accounting principles generally accepted in the United States. Such consolidated financial statements are included in the consolidated financial statements listed in Item 10 of this Form U5S. These financial statements are the responsibility of the Conectiv's management; our responsibility is to express an opinion on these financial statements based on our audit. We conducted our audit of these statements in accordance with auditing standards generally accepted in the United States which require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audit provides a reasonable basis for our opinion. Our audit was conducted for the purpose of forming an opinion on the consolidated financial statements taken as a whole. The supplementary consolidating information and the financial statement exhibits of the individual companies listed in Item 10 of this Form U5S are presented for purposes of additional analysis rather than to present the financial position, results of operations, and cash flows of the individual companies, and are not a required part of the consolidated financial statements. The supplementary consolidating information and the financial statement exhibits have been subjected to the auditing procedures applied in the audit of the consolidated financial statements and, in our opinion, are fairly stated, in all material respects, in relation to the consolidated financial statements taken as a whole. PricewaterhouseCoopers LLP Philadelphia, Pennsylvania February 7, 2000 108 EXHIBIT G Financial Data Tables are filed herewith as Exhibit 27 for Conective, ACE, DPL, CRP and DCS. Confidential treatment is requested for the Financial Data Schedules for all other companies. 109 EXHIBIT H See Item 1 for an organizational chart showing the relationship of each EWG in which the system holds an interest to other system companies. 110 EXHIBIT I See Item 10 for the financial statements of Conectiv Energy, which is an EWG. EX-27.1 2 FINANCIAL DATA SCHEDULES WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
OPUR1 12-MOS DEC-31-1999 DEC-31-1999 PRO-FORMA 2,811,404 551,410 793,995 1,356,812 0 6,138,462 920 1,178,798 (36,472) 1,138,173 188,950 95,933 2,124,898 579,688 0 0 48,937 0 30,395 28,715 1,902,773 6,138,462 3,744,897 105,816 3,399,308 3,505,125 239,772 70,881 310,653 197,076 (198,140) 0 (198,140) 115,271 182,821 310,169 (2.02) (2.02)
EX-27.2 3 FINANCIAL DATA SCHEDULES WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
OPUR1 12-MOS DEC-31-1999 DEC-31-1999 PRO-FORMA 1,749,161 73,114 442,051 280,270 160,189 2,704,785 2 528,893 147,288 676,183 70,000 89,703 917,207 0 0 0 1,545 0 14,175 12,496 923,477 2,704,785 2,235,523 95,321 1,921,262 2,016,583 218,940 6,118 225,058 82,879 (111,443) 4,440 (115,883) 59,428 78,754 246,830 0 0
EX-27.3 4 FINANCIAL DATA SCHEDULE WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
OPUR1 12-MOS DEC-31-1999 DEC-31-1999 PRO-FORMA 984,662 110,332 340,774 1,142,475 76,416 2,654,659 54,963 493,007 129,981 677,951 118,950 6,231 954,752 30,000 0 0 46,075 0 14,911 15,480 790,309 2,654,659 1,076,585 49,326 904,654 953,980 122,606 8,712 131,318 67,387 5,835 2,132 3,703 55,845 60,562 (33,329) 0 0
EX-27.4 5 FINANCIAL DATA SCHEDULES WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
OPUR1 12-MOS DEC-31-1999 DEC-31-1999 PRO-FORMA 0 11,921 2,615 76 (1) 14,611 1 5,097 3,451 8,549 0 0 3,437 0 0 0 0 0 0 0 2,625 14,611 0 484 (1,412) (928) 928 130 1,058 260 798 0 798 0 260 1,078 0 0
EX-27.5 6 FINANCIAL DATA SCHEDULES
OPUR1 12-MOS DEC-31-1999 DEC-31-1999 PRO-FORMA 77,582 0 41,294 (4,354) 8,285 122,807 1 0 (131) (130) 0 0 0 0 0 0 0 0 0 0 122,937 122,807 253,145 105 249,356 249,462 3,684 213 3,897 4,001 (105) 0 (105) 0 4,710 27,088 0 0
EX-99.B.1.2 7 AMENDED & RESTATED BYLAWS AS AMENDED 10/26/99 1 Conectiv B.1.2 Amended and Restated Bylaws As of October 26, 1999 1 2 AMENDED AND RESTATED B Y L A W S OF CONECTIV 1. OFFICES. 1.1 Offices. In addition to its registered office in the State of Delaware, the Corporation shall have a corporate office in Wilmington, Delaware and a significant presence in New Jersey, and such other offices, either within or without the State of Delaware, at such locations as the Board of Directors may from time to time determine or the business of the Corporation may require. 2. SEAL. 2.1 Seal. The Corporation shall have a seal, which shall have inscribed thereon its name and year of incorporation and the words, "Corporate Seal Delaware." 3. MEETINGS OF STOCKHOLDERS. 3.1 Annual Meetings. The annual meeting of stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as shall be determined by the Board of Directors from time to time. 3.2 Special Meetings. Special meetings of the stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as may be designated by the Chairman of the Board or by the Board of Directors pursuant to a resolution approved by a majority of the entire Board of Directors. 3.3 Notice of Meetings. (a) Notices of meetings of stockholders shall be in writing and shall state the place, date and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which a meeting is called. No business other than that specified in the notice thereof shall be transacted at any special meeting. (b) Such notice shall either be delivered personally, mailed, postage prepaid, or delivered by any other lawful means, to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. If mailed, the notice shall be directed to the stockholder at his or her address as it appears on the records of the Corporation. Delivery of any such notice to any officer of a corporation or association or to any member of a partnership shall constitute delivery of such notice to such corporation, association or partnership. (c) Notice of any meeting of stockholders need not be given to any stockholder if waived by such stockholder in writing, whether before or after such meeting is held, or if such stockholder shall sign the minutes or attend the meeting, except that if such stockholder attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any 2 3 business because the meeting is not lawfully called or convened, such stockholder shall not be deemed to have waived notice of such meeting. 3.4 Adjourned Meetings. When a meeting is adjourned to another time or place, unless otherwise provided by these Bylaws, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the stockholders may transact any business which might have been transacted at the original meeting. If an adjournment is for more than 30 days, or if after an adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting. 3.5 Quorum and Adjournment. Except as otherwise provided by law, by the Certificate of Incorporation of the Corporation or by these Bylaws, the presence, in person or by proxy, of the holders of a majority of the aggregate voting power of the stock issued and outstanding, entitled to vote thereat, shall constitute a quorum for the transaction of business at all meetings of stockholders. If such majority shall not be present or represented at any meeting of stockholders, the stockholders present, although less than a quorum, shall have the power to adjourn the meeting. 3.6 Vote Required. Except as otherwise provided by law or by the Certificate of Incorporation: (a) Directors shall be elected by a plurality of the votes present in person or represented by proxy at a meeting of stockholders and entitled to vote in the election of directors, and (b) whenever any corporate action other than the election of Directors is to be taken, it shall be authorized by a majority in voting power of the shares present in person or by proxy at a meeting of stockholders and entitled to vote on the subject matter. 3.7 Manner of Voting. At each meeting of stockholders, each stockholder having the right to vote shall be entitled to vote in person or by proxy. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed before being voted. Each stockholder shall be entitled to vote each share of stock having voting power registered in his name on the books of the Corporation on the record date fixed for determination of stockholders entitled to vote at such meeting. All elections of Directors by stockholders shall be by written ballot. 3.8 Proxies. (a) At any meeting of stockholders, any stockholder may be represented and vote by proxy or proxies. In the event that any form of proxy shall designate two or more persons to act as proxies, a majority of such persons present at the meeting or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by the form of proxy upon all of the persons so designated unless the form of proxy shall otherwise provide. (b) The Board of Directors may, in advance of any annual or special meeting of the stockholders, prescribe additional regulations concerning proxies and the validation of the same, which are intended to be voted at any such meeting. 3.9 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the stockholders. In the absence of the Chairman of the Board, the Vice Chairman of the Board or, in his or her absence, any Director designated by the Chairman of the Board or the Board of Directors shall act as chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the stockholders, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with 3 4 Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the stockholders, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 3.10 Procedure. At each meeting of stockholders, the chairman of the meeting shall fix and announce the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at the meeting and shall determine the order of business and all other matters of procedure. Except to the extent inconsistent with any such rules and regulations as adopted by the Board of Directors, the chairman of the meeting may establish rules, which need not be in writing, to maintain order and safety and for the conduct of the meeting. Without limiting the foregoing, he or she may: (a) restrict attendance at any time to bona fide stockholders of record and their proxies and other persons in attendance at the invitation of the chairman; (b) restrict dissemination of solicitation materials and use of audio or visual recording devices at the meeting; (c) adjourn the meeting without a vote of the stockholders, whether or not there is a quorum present; and (d) make rules governing speeches and debate, including time limits and access to microphones. The chairman of the meeting acts in his or her absolute discretion and his or her rulings are not subject to appeal. 4. DIRECTORS. 4.1 Powers. The Board of Directors shall exercise all of the powers of the Corporation except such as are by law, or by the Certificate of Incorporation of this Corporation or by these Bylaws conferred upon or reserved to the stockholders of any class or classes. 4.2 Resignations. Any Director may resign at any time by giving written notice to the Board of Directors or the Secretary. Such resignation shall take effect at the date of receipt of such notice or at any later time specified therein. Acceptance of such resignation shall not be necessary to make it effective. 4.3 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the Board of Directors. In the absence of the Chairman of the Board, the Vice Chairman of the Board, or in his absence, the Chief Executive Officer or other person designated by the Board of Directors shall act as chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the Board of Directors, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the Board of Directors, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 4.4 Annual Meetings. The Board of Directors shall meet each year immediately following the annual meeting of stockholders, at the place where such meeting of stockholders has been held, or at such other place as shall be fixed by the person presiding over the meeting of the 4 5 stockholders, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. 4.5 Regular Meetings. Regular meetings of the Board of Directors shall be held on such dates and at such times and places, within or without the state of Delaware, as shall from time to time be determined by the Board of Directors. In the absence of any such determination, such meetings shall be held at such times and places, within or without the State of Delaware, as shall be designated by the Chairman of the Board on not less than twelve hours notice to each Director, given verbally, in writing or electronically, either personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex, by electronic mail or by other electronic means or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. 4.6 Special Meetings. Special meetings of the Board of Directors shall be held at the call of the Chairman of the Board at such times and places, within or without the State of Delaware, as he or she shall designate, on not less than twelve hours notice to each Director, given verbally, in writing or electronically, either personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex, by electronic mail or by other electronic means or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. Special meetings shall be called by the Secretary on like notice at the written request of a majority of the Directors then in office. 4.7 Quorum and Powers of a Majority. At all meetings of the Board of Directors and of each committee thereof, a majority of the members shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which a quorum is present shall be the act of the Board of Directors or such committee, unless by express provision of law, of the Certificate of Incorporation or these Bylaws, a different vote is required, in which case such express provision shall govern and control. In the absence of a quorum, a majority of the members present at any meeting may, without notice other than announcement at the meeting, adjourn such meeting from time to time until a quorum is present. 4.8 Waiver of Notice. Notice of any meeting of the Board of Directors, or any committee thereof, need not be given to any member if waived by him or her in writing, whether before or after such meeting is held, or if he or she shall sign the minutes or attend the meeting, except that if such Director attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, then such Director shall not be deemed to have waived notice of such meeting. 4.9 Manner of Acting. (a) Members of the Board of Directors, or any committee thereof, may participate in any meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating therein can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting. (b) Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing, and the writings are filed with the minutes of proceedings of the Board of Directors or such committee. 5 6 4.10 Compensation. (a) The Board of Directors, by a resolution or resolutions, may fix, and from time to time change, the compensation of Directors. (b) Each Director shall be entitled to reimbursement from the Corporation for his or her reasonable expenses incurred with respect to duties as a member of the Board of Directors or any committee thereof. (c) Nothing contained in these Bylaws shall be construed to preclude any Director from serving the Corporation in any other capacity and from receiving compensation from the Corporation for service rendered to it in such other capacity. 4.11 Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more Directors, which to the extent provided in said resolution or resolutions shall have and may exercise the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation; provided, however, that no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the General Corporation Law of Delaware (the "GCLD") to be submitted to stockholders for approval or (ii) adopting, amending, or repealing any bylaw of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting of such committee and not disqualified from voting, whether or not such member of members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of such absent or disqualified director. 4.12 Committee Procedure, Limitations of Committee Powers. (a) Except as otherwise provided by these Bylaws, each committee shall adopt its own rules governing the time, place and method of holding its meetings and the conduct of its proceedings and shall meet as provided by such rules or by resolution of the Board of Directors. Unless otherwise provided by these Bylaws or any such rules or resolutions, notice of the time and place of each meeting of a committee shall be given to each member of such committee as provided in Section 4.6 of these Bylaws with respect to notices of special meetings of the Board of Directors. (b) Each committee shall keep regular minutes of its proceedings and report the same to the Board of Directors when required. (c) Any member of any committee may be removed from such committee either with or without cause, at any time, by the Board of Directors at any meeting thereof. Any vacancy in any committee shall be filled by the Board of Directors in the manner prescribed by the Certificate of Incorporation or these Bylaws for the original appointment of the members of such committee. 5. OFFICERS. 5.1 Number. (a) The officers of the Corporation shall include a Chief Executive Officer, a President, one or more Vice Presidents (including one or more Executive Vice Presidents and one or more Senior Vice Presidents if deemed appropriate by the Board of Directors), a Chief Financial Officer, a Secretary and a Treasurer. The Board of Directors shall also elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except for the Chairman of the Board, the Vice Chairman of the Board and the Chief Executive Officer, none of the officers of the Corporation needs to be a director of the Corporation. Any two or more offices may be held by the same person to the extent permitted by the GCLD. 6 7 (b) The Chief Executive Officer shall have the power to appoint one or more employees of the Corporation as divisional or departmental vice presidents and fix the duties of such appointees. However, no such divisional or departmental vice president shall be considered as an officer of the Corporation. 5.2 Election of Officers, Qualification and Term. The Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President, the Chief Financial Officer, the Secretary and the Treasurer of the Corporation shall be elected from time to time by the Board of Directors and, except as may otherwise be expressly provided in a contract of employment duly authorized by the Board of Directors or the Merger Agreement, shall hold office at the pleasure of the Board of Directors. The Board of Directors and the Chief Executive Officer also may elect such other officers as the Board of Directors or the Chief Executive Officer may from time to time deem appropriate or necessary. 5.3 Removal. Except as otherwise expressly provided in the Merger Agreement, any officer elected by the Board of Directors may be removed, either with or without cause, by the Board of Directors at any meeting thereof, or to the extent delegated to the Chairman of the Board or the Chief Executive Officer, by the Chairman of the Board or the Chief Executive Officer. In addition, any officer elected by the Chief Executive Officer may be removed, either with or without cause, by the Chief Executive Officer. 5.4 Resignations. Any officer of the Corporation may resign at any time by giving written notice to the Board of Directors or to the Chairman of the Board or to the Chief Executive Officer. Such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 5.5 Compensation. The compensation of all officers of the Corporation shall be fixed by or in the manner provided by the Board of Directors from time to time, and no officer shall be prevented from receiving such compensation by reason of the fact that he or she is also a Director of the Corporation. 5.6 The Chairman of the Board. The Chairman of the Board shall have the powers and duties customarily and usually associated with the office of the Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. The Chairman of the Board shall preside at meetings of the stockholders and of the Board of Directors. 5.7 Vice Chairman of the Board. The Vice Chairman of the Board, if any, shall have the powers and duties customarily and usually associated with the office of the Vice Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. 5.8 Chief Executive Officer. The Chief Executive Officer shall have, subject to the supervision, direction and control of the Board of Directors, the general powers and duties of supervision, direction and management of the affairs and business of the Corporation usually vested in the chief executive officer of a corporation, including, without limitation, all powers necessary to direct and control the organizational and reporting relationships within the Corporation. In addition, the Chief Executive Officer shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. If at any time the office of the Chairman of the Board and the Vice Chairman of the Board shall not be filled, or in the event of the temporary absence or disability of the 7 8 Chairman of the Board and the Vice Chairman of the Board, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board. 5.9 The President. The President shall serve as chief operating officer, shall have the powers and duties customarily and usually associated with the office of President and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.10 The Vice Presidents. Each Vice President shall have such powers and duties customarily and usually associated with the office of Vice President and shall have such other powers and perform such other duties as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer or the President. 5.11 The Chief Financial Officer. The Chief Financial Officer shall be responsible for the financial affairs of the Corporation, including overseeing the duties performed by the Treasurer of the Corporation. In addition, the Chief Financial Officer shall have such powers and duties customarily and usually associated with the office of the Chief Financial Officer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.12 The Secretary and the Assistant Secretary. (a) The Secretary shall attend meetings of the Board of Directors and meetings of the stockholders and record all votes and minutes of all such proceedings in a book kept for such purpose. In addition, the Secretary shall have such powers and duties customarily and usually associated with the office of Secretary and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer or the President. (b) Each Assistant Secretary shall have such powers and perform such duties customarily and usually associated with the office of Assistant Secretary and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Secretary. In case of the absence or disability of the Secretary, the Assistant Secretary designated by the Chief Executive Officer (or, in the absence of such designation, by the Secretary) shall perform the duties and exercise the powers of the Secretary. 5.13 The Treasurer and the Assistant Treasurer. (a) The Treasurer shall have custody of the Corporation's funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit or cause to be deposited moneys or other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall also maintain adequate records of all assets, liabilities and transactions of the Corporation and shall see that adequate audits thereof are currently and regularly made. In addition, the Treasurer shall have such powers and duties customarily and usually associated with the office of Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. (b) Each Assistant Treasurer shall have such powers and perform such duties customarily and usually associated with the office of Assistant Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Treasurer. In case of the absence or disability of the Treasurer, the Assistant Treasurer designated by the Chief Executive Officer (or, in the 8 9 absence of such designation, by the Treasurer) shall perform the duties and exercise the powers of the Treasurer. 6. STOCK 6.1 Certificates. Certificates for shares of stock of the Corporation shall be issued under the seal of the Corporation, or a facsimile thereof, and shall be numbered and shall be entered in the books of the Corporation as they are issued. Each certificate shall bear a serial number, shall exhibit the holder's name and the number of shares evidenced thereby, and shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the Chief Executive Officer or the President or any Vice President, and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person or entity were such officer, transfer agent or registrar at the date of issue. 6.2 Transfers. Transfers of stock of the Corporation shall be made on the books of the Corporation only upon surrender to the Corporation of a certificate (if any) for the shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, provided such succession, assignment or transfer is not prohibited by the Certificate of Incorporation, these Bylaws, applicable law or contract. Thereupon, the Corporation shall issue a new certificate (if requested) to the person entitled thereto, cancel the old certificate (if any) and record the transaction upon its books. 6.3 Lost, Stolen or Destroyed Certificates. Any person claiming a certificate of stock to be lost, stolen or destroyed shall make an affidavit or an affirmation of that fact, and shall give the Corporation a bond of indemnity in satisfactory form and with one or more satisfactory sureties, whereupon a new certificate (if requested) may be issued of the same tenor and for the same number of shares as the one alleged to be lost, stolen or destroyed. 6.4 Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares as the person entitled to exercise the rights of a stockholder and shall not be bound to recognize any equitable or other claim to or interest in any such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by the GCLD. 6.5 Additional Powers of the Board. (a) In addition to those powers set forth in Section 4.1, the Board of Directors shall have power and authority to make all such rules and regulations as it shall deem expedient concerning the issue, transfer and registration of certificates for shares of stock of the Corporation, including the use of uncertificated shares of stock subject to the provisions of the GCLD. (b) The Board of Directors may appoint and remove transfer agents and registrars of transfers, and may require all stock certificates to bear the signature of any such transfer agent and/or any such registrar of transfers. 7. MISCELLANEOUS 7.1 Place and Inspection of Books. (a) The books of the Corporation other than such books as are required by law to be kept within the State of Delaware shall be kept in such place or 9 10 places either within or without the State of Delaware as the Board of Directors may from time to time determine. (b) At least ten days before each meeting of stockholders, the officer in charge of the stock ledger of the Corporation shall prepare a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. (c) The Board of Directors shall determine from time to time whether and, if allowed, when and under what conditions and regulations the accounts and books of the Corporation (except such as may be by law specifically open to inspection or as otherwise provided by these Bylaws) or any of them shall be open to the inspection of the stockholders and the stockholders' rights in respect thereof. 7.2 Voting Shares in Other Corporations. The Chief Executive Officer, the President, the Chief Financial Officer or any other officer of the Corporation designated by the Board of Directors may vote any and all shares held by the Corporation in any other corporation. 7.3 Fiscal Year. The fiscal year of the Corporation shall be such fiscal year as the Board of Directors from time to time by resolution shall determine. 7.4 Gender/Number. As used in these Bylaws, the masculine, feminine or neuter gender, and the singular or plural number, shall each include the others whenever the context so indicates. 7.5 Paragraph Titles. The titles of the paragraphs have been inserted as a matter of reference only and shall not control or affect the meaning or construction of any of the terms and provisions hereof. 7.6 Amendment. These Bylaws may be altered, amended or repealed by (a) the affirmative vote of 80% or more of the aggregate number of votes that the holders of the then outstanding shares of common stock and preferred stock are entitled to cast on the amendment, or (b) by resolution adopted by the affirmative vote of not less than a majority of the Directors in office, at any annual or regular meeting of the Board of Directors or at any special meeting of the Board of Directors if notice of the proposed alteration, amendment or repeal be contained in written notice of such special meeting. Notwithstanding the foregoing, the amendment of any provision of these Bylaws requiring an affirmative vote in excess of a majority of the Directors in office shall require the affirmative vote of at least the number of directors the affirmative vote of whom is required by such provision. 7.7 Certificate of Incorporation. Notwithstanding anything to the contrary contained herein, if any provision contained in these Bylaws is inconsistent with or conflicts with a provision of the Certificate of Incorporation, such provision of these Bylaws shall be superseded by the inconsistent provision in the Certificate of Incorporation to the extent necessary to give effect to such provision in the Certificate of Incorporation. 10 11 - ---------- 1. Adopted by Unanimous Written Consent of the Conectiv Board of Directors, 3/1/98 2. Amended (Arts. 3.3(b), 3.8(a) and 3.8(b)) by resolution of the Conectiv Board of Directors, 2/16/99 3. Amended and Restated by resolution of the Conectiv Board of Directors, 10/26/99. 11 EX-99.B.3.1 8 CERTIFICATE OF INCORPORATION FILED 3/12/98 1 DPL REIT Holding Company, Inc. B.3.1 Certificate of Incorporation Filed March 12, 1998 1 2 CERTIFICATE OF INCORPORATION OF DPL REIT HOLDING, INC. FIRST: The name of the Corporation is DPL REIT Holding, Inc. SECOND: The registered office of DPL REIT Holding, Inc. in the State of Delaware is located at 800 King Street, Wilmington, County of New Castle, 19801, and its registered agent shall be the Corporation itself. THIRD: The purpose of the Corporation and the nature and objects of the business to be transacted, promoted, conducted or carried out are: To engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock that the Corporation shall be authorized to issue is One Thousand (1,000) shares of Common Stock having a par value of One Dollar ($1.00) per share. FIFTH: The name and mailing address of the Incorporator of the Corporation is:
Name Address ---- ------- Steven L. Biener P.O. Box 6066 Newark, DE 19714-6066
SIXTH: The names and mailing addresses of the sole director who shall serve until the first annual meeting of stockholders or until his successor is elected and qualify is:
Name Address ---- ------- Charles A. Mannix P.O. Box 231 Wilmington, DE 19899
SEVENTH: The Board of Directors may make, add to, delete from, alter and repeal any By-law of the Corporation. 2 3 EIGHTH: No director of the Corporation shall be personally liable to the Corporation for monetary damages for breach of fiduciary duty by such director; provided, however, that this Article EIGHTH shall not eliminate or limit the liability of a director to the extent provided by law (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of the State of Delaware, or (iv) for any transaction from which the director derived an improper personal benefit. The Corporation shall indemnify its directors, officers, employees and agents against expenses, judgment, fines and amounts paid in settlement actually and reasonably incurred by them by reason of their serving in such capacity to the fullest extent permitted by the Delaware General Corporation Law. I, the undersigned, being the Incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, do make this Certificate of Incorporation, hereby declaring and certifying that this is my act and deed and that the facts herein stated are true and accordingly have hereunto set my hand and seal this 12th day of March, 1998. -------------------------------- Steven L. Biener 3 EX-99.B.3.2 9 AMENDED & RESTATED BYLAWS AS AMENDED 12/31/99 1 DPL REIT Holding, Inc B.3.2 Amended and Restated Bylaws Adopted December 31, 1999 2 AMENDED AND RESTATED B Y L A W S OF DPL REIT HOLDING, INC. 1. OFFICES. 1.1 Offices. In addition to its registered office in the State of Delaware, the Corporation shall have a corporate office in Wilmington, Delaware, and such other offices, either within or without the State of Delaware, at such locations as the Board of Directors may from time to time determine or the business of the Corporation may require. 2. SEAL. 2.1 Seal. The Corporation shall have a seal, which shall have inscribed thereon its name and year of incorporation and the words, "Corporate Seal Delaware." 3. MEETINGS OF STOCKHOLDERS. 3.1 Annual Meetings. The annual meeting of stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as shall be determined by the Board of Directors from time to time. 3.2 Special Meetings. Special meetings of the stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as may be designated by the Chairman of the Board or by the Board of Directors. 3.3 Notice of Meetings. (a) Notices of meetings of stockholders shall be in writing and shall state the place, date, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which a meeting is called. No business other than that specified in the notice thereof shall be transacted at any special meeting. (b) Such notice shall either be delivered personally, mailed, postage prepaid, or delivered by any other lawful means to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. If mailed, the notice shall be directed to the stockholder at his or her address as it appears on the records of the Corporation. Delivery of any such notice to any officer of a corporation or association or to any member of a partnership shall constitute delivery of such notice to such corporation, association, or partnership. (c) Notice of any meeting of stockholders need not be given to any stockholder if waived by such stockholder in writing, whether before or after such meeting is held, or if such stockholder shall sign the minutes or attend the meeting, except that if such stockholder attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, such stockholder shall not be deemed to have waived notice of such meeting. 3.4 Adjourned Meetings. When a meeting is adjourned to another time or place, unless otherwise provided by these Bylaws, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the stockholders may transact any business that might have been transacted at the original meeting. If an adjournment 2 3 is for more than 30 days, or if after an adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting. 3.5 Quorum and Adjournment. Except as otherwise provided by law, by the Certificate of Incorporation of the Corporation, or by these Bylaws, the presence, in person or by proxy, of the holders of a majority of the aggregate voting power of the stock issued and outstanding, entitled to vote thereat, shall constitute a quorum for the transaction of business at all meetings of stockholders. If such majority shall not be present or represented at any meeting of stockholders, the stockholders present, although less than a quorum, shall have the power to adjourn the meeting. 3.6 Vote Required. Except as otherwise provided by law or by the Certificate of Incorporation: (a) Directors shall be elected by a plurality of the votes present in person or represented by proxy at a meeting of stockholders and entitled to vote in the election of directors, and (b) whenever any corporate action other than the election of Directors is to be taken, it shall be authorized by a majority in voting power of the shares present in person or by proxy at a meeting of stockholders and entitled to vote on the subject matter. 3.7 Manner of Voting. At each meeting of stockholders, each stockholder having the right to vote shall be entitled to vote in person or by proxy. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed before being voted. Each stockholder shall be entitled to vote each share of stock having voting power registered in his or her name on the books of the Corporation on the record date fixed for determination of stockholders entitled to vote at such meeting. 3.8 Stockholder Action Without a Meeting. Except as otherwise provided by law or by the Certificate of Incorporation, any action required to be taken at any meeting of stockholders of the corporation, or any action that may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice, and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of the holders to take the action were delivered to the Corporation. 3.9 Proxies. (a) At any meeting of stockholders, any stockholder may be represented and vote by proxy or proxies. In the event that any form of proxy shall designate two or more persons to act as proxies, a majority of such persons present at the meeting or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by the form of proxy upon all of the persons so designated unless the form of proxy shall otherwise provide. (b) The Board of Directors may, in advance of any annual or special meeting of the stockholders, prescribe additional regulations concerning the validation of the same, which are intended to be voted at any such meeting. 3.10 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the stockholders. In the absence of the Chairman of the Board, the Vice Chairman of the Board or, in his or her absence, any Director designated by the Chairman of the Board or the Board of Directors shall act as chairman of the meeting. 3 4 The Secretary of the Corporation shall act as secretary of all meetings of the stockholders, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the stockholders, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 3.11 Procedure. At each meeting of stockholders, the chairman of the meeting shall fix and announce the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at the meeting and shall determine the order of business and all other matters of procedure. Except to the extent inconsistent with any such rules and regulations as adopted by the Board of Directors, the chairman of the meeting may establish rules, which need not be in writing, to maintain order and safety and for the conduct of the meeting. Without limiting the foregoing, he or she may: (a) restrict attendance at any time to bona fide stockholders of record and their proxies and other persons in attendance at the invitation of the chairman; (b) restrict dissemination of solicitation materials and use of audio or visual recording devices at the meeting; (c) adjourn the meeting without a vote of the stockholders, whether or not there is a quorum present; and (d) make rules governing speeches and debate, including time limits and access to microphones. The chairman of the meeting shall be entitled to act in his or her absolute discretion and his or her rulings shall not be subject to appeal. 4. DIRECTORS. 4.1 Powers and Number. The Board of Directors shall exercise all of the powers of the Corporation except such as are by law, or by the Certificate of Incorporation of this Corporation or by these Bylaws conferred upon or reserved to the stockholders of any class or classes. The number of directors that shall constitute the whole Board of Directors shall be no fewer than three (3) and no greater than nine (9), the exact number of directors to be determined from time to time by resolution adopted by the Board of Directors or the stockholders, and until otherwise determined by the Board of Directors or the stockholders, the number of directors that shall constitute the whole Board of Directors shall be three (3). 4.2 Resignations. Any Director may resign at any time by giving written notice to the Board of Directors or the Secretary. Such resignation shall take effect at the date of receipt of such notice or at any later time specified therein. Acceptance of such resignation shall not be necessary to make it effective. 4.3 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the Board of Directors. In the absence of the Chairman of the Board, the Vice Chairman of the Board, or in his absence, the Chief Executive Officer or other person designated by the Board of Directors shall act as chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the Board of Directors, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the Board of Directors, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 4 5 4.4 Annual Meetings. The Board of Directors shall meet each year immediately following the annual meeting of stockholders, at the place where such meeting of stockholders has been held, or at such other place as shall be fixed by the person presiding over the meeting of the stockholders, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. In the event that in any year Directors are elected by written consent in lieu of an annual meeting of stockholders, the Board of Directors shall meet in such year as soon as practicable after receipt of such written consent by the Corporation at such time and place as shall be fixed by the Chairman of the Board, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. 4.5 Regular Meetings. Regular meetings of the Board of Directors shall be held on such dates and at such times and places, within or without the state of Delaware, as shall from time to time be determined by the Board of Directors. In the absence of any such determination, such meetings shall be held at such times and places, within or without the State of Delaware, as shall be designated by the Chairman of the Board on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex or by electronic mail or by other electronic means, or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. 4.6 Special Meetings. Special meetings of the Board of Directors shall be held at the call of the Chairman of the Board at such times and places, within or without the State of Delaware, as he or she shall designate, on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex, by electronic mail or by other electronic means or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. Special meetings shall be called by the Secretary on like notice at the written request of a majority of the Directors then in office. 4.7 Quorum and Powers of a Majority. At all meetings of the Board of Directors and of each committee thereof, a majority of the members shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which a quorum is present shall be the act of the Board of Directors or such committee, unless by express provision of law, of the Certificate of Incorporation, or of these Bylaws, a different vote is required, in which case such express provision shall govern and control. In the absence of a quorum, a majority of the members present at any meeting may, without notice other than announcement at the meeting, adjourn such meeting from time to time until a quorum is present. 4.8 Waiver of Notice. Notice of any meeting of the Board of Directors, or any committee thereof, need not be given to any member if waived by him or her in writing, whether before or after such meeting is held, or if he or she shall sign the minutes or attend the meeting, except that if such Director attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, then such Director shall not be deemed to have waived notice of such meeting. 4.9 Manner of Acting. (a) Members of the Board of Directors, or any committee thereof, may participate in any meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating therein can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting. (b) Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board of Directors or 5 6 such committee, as the case may be, consent thereto in writing, and the writings are filed with the minutes of proceedings of the Board of Directors or such committee. 4.10 Compensation. (a) The Board of Directors, by a resolution or resolutions, may fix, and from time to time change, the compensation of Directors. (b) Each Director shall be entitled to reimbursement from the Corporation for his or her reasonable expenses incurred with respect to duties as a member of the Board of Directors or any committee thereof. (c) Nothing contained in these Bylaws shall be construed to preclude any Director from serving the Corporation in any other capacity and from receiving compensation from the Corporation for service rendered to it in such other capacity. 4.11 Committees. The Board of Directors (or any committee thereof having the power and authority to do so) may designate one or more committees, each committee to consist of one or more Directors, which to the extent provided in said resolution or resolutions shall have and may exercise the powers and authority of the Board of Directors in the management of the business and affairs of the corporation; provided, however, that no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the General Corporation Law of Delaware (the "GCLD") to be submitted to stockholders for approval or (ii) adopting, amending, or repealing any bylaw of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting of such committee and not disqualified from voting, whether or not such member of members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of such absent or disqualified director. 4.12 Committee Procedure, Limitations of Committee Powers. (a) Except as otherwise provided by these Bylaws, each committee shall adopt its own rules governing the time, place and method of holding its meetings and the conduct of its proceedings and shall meet as provided by such rules or by resolution of the Board of Directors. Unless otherwise provided by these Bylaws or any such rules or resolutions, notice of the time and place of each meeting of a committee shall be given to each member of such committee as provided in Section 4.6 of these Bylaws with respect to notices of special meetings of the Board of Directors. (b) Each committee shall keep regular minutes of its proceedings and report the same to the Board of Directors when required. (c) Any member of any committee may be removed from such committee either with or without cause, at any time, by the Board of Directors at any meeting thereof. Any vacancy in any committee shall be filled by the Board of Directors in the manner prescribed by the Certificate of Incorporation or these Bylaws for the original appointment of the members of such committee. 5. OFFICERS. 5.1 Number. (a) The officers of the Corporation shall include a Chief Executive Officer, a President, one or more Vice Presidents (including one or more Executive Vice Presidents and one or more Senior Vice Presidents if deemed appropriate by the Board of Directors), a Chief Financial Officer, a Secretary, a Treasurer, and a Controller. The Board of Directors shall also elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except for the Chairman of the Board, the Vice Chairman of the Board, and the Chief Executive Officer, none of the officers of the Corporation needs to be a director of the Corporation. Any two or more offices may be held by the same person to the extent permitted by the GCLD. 6 7 (b) The Chief Executive Officer shall have the power to appoint one or more employees of the Corporation as divisional or departmental vice presidents and fix the duties of such appointees. However, no such divisional or departmental vice president shall be considered as an officer of the Corporation. 5.2 Election of Officers, Qualification and Term. The Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President, the Chief Financial Officer, the Secretary and the Treasurer of the Corporation shall be elected from time to time by the Board of Directors and, except as may otherwise be expressly provided in a contract of employment duly authorized by the Board of Directors, shall hold office at the pleasure of the Board of Directors. The Board of Directors and the Chief Executive Officer also may elect such other officers as the Board of Directors or the Chief Executive Officer may from time to time deem appropriate or necessary. 5.3 Removal. Any officer elected by the Board of Directors may be removed, either with or without cause, by the Board of Directors at any meeting thereof, or to the extent delegated to the Chairman of the Board or the Chief Executive Officer, by the Chairman of the Board or the Chief Executive Officer. 5.4 Resignations. Any officer of the Corporation may resign at any time by giving written notice to the Board of Directors or to the Chairman of the Board or to the Chief Executive Officer. Such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 5.5 Compensation. The compensation of all officers of the Corporation shall be fixed by or in the manner provided by the Board of Directors from time to time, and no officer shall be prevented from receiving such compensation by reason of the fact that he or she is also a Director of the Corporation. 5.6 The Chairman of the Board. The Chairman of the Board shall have the powers and duties customarily and usually associated with the office of the Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. The Chairman of the Board shall preside at meetings of the stockholders and of the Board of Directors. 5.7 Vice Chairman of the Board. The Vice Chairman of the Board, if any, shall have the powers and duties customarily and usually associated with the office of the Vice Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. 5.8 Chief Executive Officer. The Chief Executive Officer shall have, subject to the supervision, direction and control of the Board of Directors, the general powers and duties of supervision, direction and management of the affairs and business of the Corporation usually vested in the chief executive officer of a corporation, including, without limitation, all powers necessary to direct and control the organizational and reporting relationships within the Corporation. In addition, the Chief Executive Officer shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. If at any time the office of the Chairman of the Board and the Vice Chairman of the Board shall not be filled, or in the event of the temporary absence or disability of the Chairman of the Board and the Vice Chairman of the Board, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board. 5.9 The President. The President shall serve as chief operating officer, shall have the powers and duties customarily and usually associated with the office of the President and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.10 The Vice Presidents. Each Vice President shall have such powers and duties customarily and usually associated with the office of Vice President and shall have such other powers and perform 7 8 such other duties as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, or the President. 5.11 The Chief Financial Officer. The Chief Financial Officer shall be responsible for the financial affairs of the Corporation, including overseeing the duties performed by the Treasurer of the Corporation. In addition, the Chief Financial Officer shall have such powers and duties customarily and usually associated with the office of the Chief Financial Officer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.12 The Secretary and the Assistant Secretary. (a) The Secretary shall attend meetings of the Board of Directors and meetings of the stockholders and record all votes and minutes of all such proceedings in a book kept for such purpose. In addition, the Secretary shall have such powers and duties customarily and usually associated with the office of Secretary and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors, the Chief Executive Officer, or the President. (b) Each Assistant Secretary shall have such powers and perform such duties customarily and usually associated with the office of Assistant Secretary and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Secretary. In case of the absence or disability of the Secretary, the Assistant Secretary designated by the Chief Executive Officer (or, in the absence of such designation, by the Secretary) shall perform the duties and exercise the powers of the Secretary. 5.13 The Treasurer and the Assistant Treasurer. (a) The Treasurer shall have custody of the Corporation's funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit or cause to be deposited moneys or other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall also maintain adequate records of all assets, liabilities, and transactions of the Corporation and shall see that adequate audits thereof are currently and regularly made. In addition, the Treasurer shall have such powers and duties customarily and usually associated with the office of Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. (b) Each Assistant Treasurer shall have such powers and perform such duties customarily and usually associated with the office of Assistant Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Treasurer. In case of the absence or disability of the Treasurer, the Assistant Treasurer designated by the Chief Executive Officer (or, in the absence of such designation, by the Treasurer) shall perform the duties and exercise the powers of the Treasurer. 5.14 Controller. The Controller shall be responsible for maintaining the accounting records and statements, and shall properly account for all monies and obligations due the Corporation and all properties, assets, and liabilities of the Corporation. The Controller shall render to the Chairman of the Board, the President or the Chief Financial Officer such periodic reports covering the results of operations of the Corporation as may be required by either of them or by law. In addition, the Controller shall have such powers and duties customarily and usually associated with the office of Controller and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. 6. STOCK 6.1 Certificates. Certificates for shares of stock of the Corporation shall be issued under the seal of the Corporation, or a facsimile thereof, and shall be numbered and shall be entered in the books of the 8 9 Corporation as they are issued. Each certificate shall bear a serial number, shall exhibit the holder's name and the number of shares evidenced thereby, and shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the Chief Executive Officer or the President or any Vice President, and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person or entity were such officer, transfer agent, or registrar at the date of issue. 6.2 Transfers. Transfers of stock of the Corporation shall be made on the books of the Corporation only upon surrender to the Corporation of a certificate (if any) for the shares duly endorsed or accompanied by proper evidence of succession, assignment, or authority to transfer, provided such succession, assignment, or transfer is not prohibited by the Certificate of Incorporation, these Bylaws, applicable law or contract. Thereupon, the Corporation shall issue a new certificate (if requested) to the person entitled thereto, cancel the old certificate (if any), and record the transaction upon its books. 6.3 Lost, Stolen, or Destroyed Certificates. Any person claiming a certificate of stock to be lost, stolen, or destroyed shall make an affidavit or an affirmation of that fact, and shall give the Corporation a bond of indemnity in satisfactory form and with one or more satisfactory sureties, whereupon a new certificate (if requested) may be issued of the same tenor and for the same number of shares as the one alleged to be lost, stolen, or destroyed. 6.4 Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares as the person entitled to exercise the rights of a stockholder and shall not be bound to recognize any equitable or other claim to or interest in any such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by the GCLD. 6.5 Additional Powers of the Board. (a) In addition to those powers set forth in Section 4.1, the Board of Directors shall have power and authority to make all such rules and regulations as it shall deem expedient concerning the issue, transfer, and registration of certificates for shares of stock of the Corporation, including the use of uncertificated shares of stock subject to the provisions of the GCLD. (b) The Board of Directors may appoint and remove transfer agents and registrars of transfers, and may require all stock certificates to bear the signature of any such transfer agent and/or any such registrar of transfers. 7. INDEMNIFICATION 7.1 Each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or the person of whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation, as a director, officer, employee, or agent of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to employee benefit plans, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the GCLD, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expenses, liability, and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of his or her heirs, executors, and administrators; provided, however, that, except as provided in this Article 7, the Corporation shall indemnify any 9 10 such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if authorized by the Board of Directors of the Corporation. Any indemnification under this Article 7 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard set forth in the GCLD. Such a determination shall be made (a) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum; (b) by a committee of such directors designated by majority vote of such directors, even though less than a quorum; (c) by independent legal counsel (compensated by the Corporation) in a written opinion; (d) by the stockholders; or (e) in any other manner permitted by the GCLD. In addition to the right to indemnification conferred in this Article 7, each of the above persons shall have the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the GCLD requires, the payment of such expenses incurred by a present director or officer in his or her capacity as a director or officer of the corporation (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such present director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Article 7 or otherwise. The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers. The right to indemnification and to an advancement of expenses conferred in this Article 7 shall be a contract right. 7.2 If a claim under Section 7.1 of this Article 7 is not paid in full by the Corporation within 30 days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim (including attorneys' fees). 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 Corporation) that the claimant has not met the standard of conduct which makes it permissible under the GCLD for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD, nor an actual determination by the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) that the claimant has not met such 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. In any suit brought by the claimant to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the claimant is not entitled to be indemnified, or to such advancement of expenses, under this Article 7 or otherwise shall be on the Corporation. 7.3 The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article 7, shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, provision of the certificate of incorporation of the Corporation, this bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. 7.4 The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee, or agent of the Corporation or another corporation, partnership, joint venture, trust, or other enterprise against any such expense, liability, or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability, or loss under the GCLD. 7.5 The Corporation may enter into an indemnity agreement with any director, officer, employee, or agent of the Corporation, or of another corporation, partnership, joint venture, trust, or other 10 11 enterprise, upon terms and conditions that the Board of Directors deems appropriate, as long as the provisions of the agreement are not impermissible under applicable law. 7.6 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.7 In case any provision in this Article 7 shall be determined at any time to be unenforceable in any respect, the other provisions shall not in any way be affected or impaired thereby, and the affected provision shall be given the fullest possible enforcement in the circumstances, it being the intention of the Corporation to afford indemnification and advancement of expenses to the persons indemnified hereby to the fullest extent permitted by law. 7.8 The Corporation may, by action of the Board of Directors, authorize one or more officers to grant rights to indemnification and advancement of expenses to former directors and officers or to other employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances. 8. MISCELLANEOUS 8.1 Place and Inspection of Books. (a) The books of the Corporation other than such books as are required by law to be kept within the State of Delaware shall be kept in such place or places either within or without the State of Delaware as the Board of Directors may from time to time determine. (b) At least ten days before each meeting of stockholders, the officer in charge of the stock ledger of the Corporation shall prepare a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. (c) The Board of Directors shall determine from time to time whether and, if allowed, when and under what conditions and regulations the accounts and books of the Corporation (except such as may be by law specifically open to inspection or as otherwise provided by these Bylaws) or any of them shall be open to the inspection of the stockholders and the stockholders' rights in respect thereof. 8.2 Voting Shares in Other Corporations. The Chief Executive Officer, the President, the Chief Financial Officer or any other officer of the Corporation designated by the Board of Directors may vote any and all shares held by the Corporation in any other corporation. 8.3 Fiscal Year. The fiscal year of the Corporation shall be such fiscal year as the Board of Directors from time to time by resolution shall determine. 8.4 Gender/Number. As used in these Bylaws, the masculine, feminine, or neuter gender, and the singular or plural number, shall each include the others whenever the context so indicates. 8.5 Paragraph Titles. The titles of the paragraphs have been inserted as a matter of reference only and shall not control or affect the meaning or construction of any of the terms and provisions hereof. 11 12 8.6 Amendment. These Bylaws may be altered, amended, or repealed by (a) the affirmative vote of 80% or more of the aggregate number of votes that the holders of the then outstanding shares of common stock and preferred stock are entitled to cast on the amendment, or (b) by resolution adopted by the affirmative vote of not less than a majority of the Directors in office, at any annual or regular meeting of the Board of Directors or at any special meeting of the Board of Directors if notice of the proposed alteration, amendment, or repeal be contained in written notice of such special meeting. Notwithstanding the foregoing, the amendment of any provision of these Bylaws that requires an affirmative vote in excess of a majority of the Directors in office shall require the affirmative vote of at least the number of directors the affirmative vote of whom is required by such provision. 8.7 Certificate of Incorporation. Notwithstanding anything to the contrary contained herein, if any provision contained in these Bylaws is inconsistent with or conflicts with a provision of the Certificate of Incorporation, such provision of these Bylaws shall be superseded by the inconsistent provision in the Certificate of Incorporation to the extent necessary to give effect to such provision in the Certificate of Incorporation. 12 EX-99.B.4.1 10 CERTIFICATE OF INCORPORATION FILED MARCH 12, 1998 1 DPL REIT, Inc. B.4.1 Certificate of Incorporation Filed March 12, 1998 1 2 CERTIFICATE OF INCORPORATION OF DPL REIT, INC. FIRST: The name of the Corporation is DPL REIT, Inc. SECOND: The registered office of DPL REIT, Inc. in the State of Delaware is located at 800 King Street, Wilmington, County of New Castle, 19801, and its registered agent shall be the Corporation itself. THIRD: The purpose of the Corporation and the nature and objects of the business to be transacted, promoted, conducted or carried out are: To engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware and maintain its status as a real estate investment trust ("REIT") within the meaning of Section 856(a) of the Internal Revenue Code of 1986, as amended, or any successor statute (the "Code"). FOURTH: The total number of shares of stock that the Corporation shall be authorized to issue is One Thousand (1,000) shares of Common Stock having a par value of One Dollar ($1.00) per share. FIFTH: The name and mailing address of the Incorporator of the Corporation is: Name Address ---- ------- Steven L. Biener P.O. Box 6066 Newark, DE 19714-6066 SIXTH: The names and mailing addresses of the sole director who shall serve until the first annual meeting of stockholders or until his successor is elected and qualify is: Name Address ---- ------- Charles A. Mannix P.O. Box 231 Wilmington, DE 19899 SEVENTH: The Board of Directors may make, add to, delete from, alter and repeal any By-law of the Corporation. 2 3 EIGHTH: No director of the Corporation shall be personally liable to the Corporation for monetary damages for breach of fiduciary duty by such director; provided, however, that this Article EIGHTH shall not eliminate or limit the liability of a director to the extent provided by law (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of the State of Delaware, or (iv) for any transaction from which the director derived an improper personal benefit. The Corporation shall indemnify its directors, officers, employees and agents against expenses, judgment, fines and amounts paid in settlement actually and reasonably incurred by them by reason of their serving in such capacity to the fullest extent permitted by the Delaware General Corporation Law. NINTH: The provisions of this Certificate of Incorporation are severable, and if the Board of Directors shall determine that any one or more of such provisions are in conflict with Part II, of Subchapter M, of Chapter 1 of Subtitle A of the Code or any other provision of the Code applicable to REITs, or other applicable federal or state laws, the conflicting provisions shall be deemed never to have constituted a part of this Certificate of Incorporation, even without any amendment to this Certificate of Incorporation; provided, that such determination by the Board of Directors shall not affect or impair the remaining provisions of this Certificate of Incorporation or render invalid or improper any action taken or omitted prior to such determination. No director shall be liable for making or failing to make such a determination. I, the undersigned, being the Incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, do make this Certificate of Incorporation, hereby declaring and certifying that this is my act and deed and that the facts herein stated are true and accordingly have hereunto set my hand and seal this 12th day of March, 1998. -------------------------------- Steven L. Biener 3 EX-99.B.4.2 11 AMENDED & RESTATED BYLAWS AMENDED 12/31/99 1 DPL REIT, Inc B.4.2 Amended and Restated Bylaws Adopted December 31, 1999 2 AMENDED AND RESTATED B Y L A W S OF DPL REIT, INC. 1. OFFICES. 1.1 Offices. In addition to its registered office in the State of Delaware, the Corporation shall have a corporate office in Wilmington, Delaware, and such other offices, either within or without the State of Delaware, at such locations as the Board of Directors may from time to time determine or the business of the Corporation may require. 2. SEAL. 2.1 Seal. The Corporation shall have a seal, which shall have inscribed thereon its name and year of incorporation and the words, "Corporate Seal Delaware." 3. MEETINGS OF STOCKHOLDERS. 3.1 Annual Meetings. The annual meeting of stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as shall be determined by the Board of Directors from time to time. 3.2 Special Meetings. Special meetings of the stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as may be designated by the Chairman of the Board or by the Board of Directors. 3.3 Notice of Meetings. (a) Notices of meetings of stockholders shall be in writing and shall state the place, date, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which a meeting is called. No business other than that specified in the notice thereof shall be transacted at any special meeting. (b) Such notice shall either be delivered personally, mailed, postage prepaid, or delivered by any other lawful means to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. If mailed, the notice shall be directed to the stockholder at his or her address as it appears on the records of the Corporation. Delivery of any such notice to any officer of a corporation or association or to any member of a partnership shall constitute delivery of such notice to such corporation, association, or partnership. (c) Notice of any meeting of stockholders need not be given to any stockholder if waived by such stockholder in writing, whether before or after such meeting is held, or if such stockholder shall sign the minutes or attend the meeting, except that if such stockholder attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, such stockholder shall not be deemed to have waived notice of such meeting. 3.4 Adjourned Meetings. When a meeting is adjourned to another time or place, unless otherwise provided by these Bylaws, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the stockholders may transact any business that might have been transacted at the original meeting. If an adjournment 2 3 is for more than 30 days, or if after an adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting. 3.5 Quorum and Adjournment. Except as otherwise provided by law, by the Certificate of Incorporation of the Corporation, or by these Bylaws, the presence, in person or by proxy, of the holders of a majority of the aggregate voting power of the stock issued and outstanding, entitled to vote thereat, shall constitute a quorum for the transaction of business at all meetings of stockholders. If such majority shall not be present or represented at any meeting of stockholders, the stockholders present, although less than a quorum, shall have the power to adjourn the meeting. 3.6 Vote Required. Except as otherwise provided by law or by the Certificate of Incorporation: (a) Directors shall be elected by a plurality of the votes present in person or represented by proxy at a meeting of stockholders and entitled to vote in the election of directors, and (b) whenever any corporate action other than the election of Directors is to be taken, it shall be authorized by a majority in voting power of the shares present in person or by proxy at a meeting of stockholders and entitled to vote on the subject matter. 3.7 Manner of Voting. At each meeting of stockholders, each stockholder having the right to vote shall be entitled to vote in person or by proxy. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed before being voted. Each stockholder shall be entitled to vote each share of stock having voting power registered in his or her name on the books of the Corporation on the record date fixed for determination of stockholders entitled to vote at such meeting. 3.8 Stockholder Action Without a Meeting. Except as otherwise provided by law or by the Certificate of Incorporation, any action required to be taken at any meeting of stockholders of the corporation, or any action that may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice, and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of the holders to take the action were delivered to the Corporation. 3.9 Proxies. (a) At any meeting of stockholders, any stockholder may be represented and vote by proxy or proxies. In the event that any form of proxy shall designate two or more persons to act as proxies, a majority of such persons present at the meeting or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by the form of proxy upon all of the persons so designated unless the form of proxy shall otherwise provide. (b) The Board of Directors may, in advance of any annual or special meeting of the stockholders, prescribe additional regulations concerning the validation of the same, which are intended to be voted at any such meeting. 3.10 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the stockholders. In the absence of the Chairman of the Board, the Vice Chairman of the Board or, in his or her absence, any Director designated by the Chairman of the Board or the Board of Directors shall act as chairman of the meeting. 3 4 The Secretary of the Corporation shall act as secretary of all meetings of the stockholders, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the stockholders, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 3.11 Procedure. At each meeting of stockholders, the chairman of the meeting shall fix and announce the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at the meeting and shall determine the order of business and all other matters of procedure. Except to the extent inconsistent with any such rules and regulations as adopted by the Board of Directors, the chairman of the meeting may establish rules, which need not be in writing, to maintain order and safety and for the conduct of the meeting. Without limiting the foregoing, he or she may: (a) restrict attendance at any time to bona fide stockholders of record and their proxies and other persons in attendance at the invitation of the chairman; (b) restrict dissemination of solicitation materials and use of audio or visual recording devices at the meeting; (c) adjourn the meeting without a vote of the stockholders, whether or not there is a quorum present; and (d) make rules governing speeches and debate, including time limits and access to microphones. The chairman of the meeting shall be entitled to act in his or her absolute discretion and his or her rulings shall not be subject to appeal. 4. DIRECTORS. 4.1 Powers and Number. The Board of Directors shall exercise all of the powers of the Corporation except such as are by law, or by the Certificate of Incorporation of this Corporation or by these Bylaws conferred upon or reserved to the stockholders of any class or classes. The number of directors that shall constitute the whole Board of Directors shall be no fewer than three (3) and no greater than nine (9), the exact number of directors to be determined from time to time by resolution adopted by the Board of Directors or the stockholders, and until otherwise determined by the Board of Directors or the stockholders, the number of directors that shall constitute the whole Board of Directors shall be three (3). 4.2 Resignations. Any Director may resign at any time by giving written notice to the Board of Directors or the Secretary. Such resignation shall take effect at the date of receipt of such notice or at any later time specified therein. Acceptance of such resignation shall not be necessary to make it effective. 4.3 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the Board of Directors. In the absence of the Chairman of the Board, the Vice Chairman of the Board, or in his absence, the Chief Executive Officer or other person designated by the Board of Directors shall act as chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the Board of Directors, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the Board of Directors, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 4 5 4.4 Annual Meetings. The Board of Directors shall meet each year immediately following the annual meeting of stockholders, at the place where such meeting of stockholders has been held, or at such other place as shall be fixed by the person presiding over the meeting of the stockholders, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. In the event that in any year Directors are elected by written consent in lieu of an annual meeting of stockholders, the Board of Directors shall meet in such year as soon as practicable after receipt of such written consent by the Corporation at such time and place as shall be fixed by the Chairman of the Board, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. 4.5 Regular Meetings. Regular meetings of the Board of Directors shall be held on such dates and at such times and places, within or without the state of Delaware, as shall from time to time be determined by the Board of Directors. In the absence of any such determination, such meetings shall be held at such times and places, within or without the State of Delaware, as shall be designated by the Chairman of the Board on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex or by electronic mail or by other electronic means, or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. 4.6 Special Meetings. Special meetings of the Board of Directors shall be held at the call of the Chairman of the Board at such times and places, within or without the State of Delaware, as he or she shall designate, on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex, by electronic mail or by other electronic means or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. Special meetings shall be called by the Secretary on like notice at the written request of a majority of the Directors then in office. 4.7 Quorum and Powers of a Majority. At all meetings of the Board of Directors and of each committee thereof, a majority of the members shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which a quorum is present shall be the act of the Board of Directors or such committee, unless by express provision of law, of the Certificate of Incorporation, or of these Bylaws, a different vote is required, in which case such express provision shall govern and control. In the absence of a quorum, a majority of the members present at any meeting may, without notice other than announcement at the meeting, adjourn such meeting from time to time until a quorum is present. 4.8 Waiver of Notice. Notice of any meeting of the Board of Directors, or any committee thereof, need not be given to any member if waived by him or her in writing, whether before or after such meeting is held, or if he or she shall sign the minutes or attend the meeting, except that if such Director attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, then such Director shall not be deemed to have waived notice of such meeting. 4.9 Manner of Acting. (a) Members of the Board of Directors, or any committee thereof, may participate in any meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating therein can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting. (b) Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board of Directors or 5 6 such committee, as the case may be, consent thereto in writing, and the writings are filed with the minutes of proceedings of the Board of Directors or such committee. 4.10 Compensation. (a) The Board of Directors, by a resolution or resolutions, may fix, and from time to time change, the compensation of Directors. (b) Each Director shall be entitled to reimbursement from the Corporation for his or her reasonable expenses incurred with respect to duties as a member of the Board of Directors or any committee thereof. (c) Nothing contained in these Bylaws shall be construed to preclude any Director from serving the Corporation in any other capacity and from receiving compensation from the Corporation for service rendered to it in such other capacity. 4.11 Committees. The Board of Directors (or any committee thereof having the power and authority to do so) may designate one or more committees, each committee to consist of one or more Directors, which to the extent provided in said resolution or resolutions shall have and may exercise the powers and authority of the Board of Directors in the management of the business and affairs of the corporation; provided, however, that no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the General Corporation Law of Delaware (the "GCLD") to be submitted to stockholders for approval or (ii) adopting, amending, or repealing any bylaw of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting of such committee and not disqualified from voting, whether or not such member of members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of such absent or disqualified director. 4.12 Committee Procedure, Limitations of Committee Powers. (a) Except as otherwise provided by these Bylaws, each committee shall adopt its own rules governing the time, place and method of holding its meetings and the conduct of its proceedings and shall meet as provided by such rules or by resolution of the Board of Directors. Unless otherwise provided by these Bylaws or any such rules or resolutions, notice of the time and place of each meeting of a committee shall be given to each member of such committee as provided in Section 4.6 of these Bylaws with respect to notices of special meetings of the Board of Directors. (b) Each committee shall keep regular minutes of its proceedings and report the same to the Board of Directors when required. (c) Any member of any committee may be removed from such committee either with or without cause, at any time, by the Board of Directors at any meeting thereof. Any vacancy in any committee shall be filled by the Board of Directors in the manner prescribed by the Certificate of Incorporation or these Bylaws for the original appointment of the members of such committee. 5. OFFICERS. 5.1 Number. (a) The officers of the Corporation shall include a Chief Executive Officer, a President, one or more Vice Presidents (including one or more Executive Vice Presidents and one or more Senior Vice Presidents if deemed appropriate by the Board of Directors), a Chief Financial Officer, a Secretary, a Treasurer, and a Controller. The Board of Directors shall also elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except for the Chairman of the Board, the Vice Chairman of the Board, and the Chief Executive Officer, none of the officers of the Corporation needs to be a director of the Corporation. Any two or more offices may be held by the same person to the extent permitted by the GCLD. 6 7 (b) The Chief Executive Officer shall have the power to appoint one or more employees of the Corporation as divisional or departmental vice presidents and fix the duties of such appointees. However, no such divisional or departmental vice president shall be considered as an officer of the Corporation. 5.2 Election of Officers, Qualification and Term. The Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President, the Chief Financial Officer, the Secretary and the Treasurer of the Corporation shall be elected from time to time by the Board of Directors and, except as may otherwise be expressly provided in a contract of employment duly authorized by the Board of Directors, shall hold office at the pleasure of the Board of Directors. The Board of Directors and the Chief Executive Officer also may elect such other officers as the Board of Directors or the Chief Executive Officer may from time to time deem appropriate or necessary. 5.3 Removal. Any officer elected by the Board of Directors may be removed, either with or without cause, by the Board of Directors at any meeting thereof, or to the extent delegated to the Chairman of the Board or the Chief Executive Officer, by the Chairman of the Board or the Chief Executive Officer. 5.4 Resignations. Any officer of the Corporation may resign at any time by giving written notice to the Board of Directors or to the Chairman of the Board or to the Chief Executive Officer. Such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 5.5 Compensation. The compensation of all officers of the Corporation shall be fixed by or in the manner provided by the Board of Directors from time to time, and no officer shall be prevented from receiving such compensation by reason of the fact that he or she is also a Director of the Corporation. 5.6 The Chairman of the Board. The Chairman of the Board shall have the powers and duties customarily and usually associated with the office of the Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. The Chairman of the Board shall preside at meetings of the stockholders and of the Board of Directors. 5.7 Vice Chairman of the Board. The Vice Chairman of the Board, if any, shall have the powers and duties customarily and usually associated with the office of the Vice Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. 5.8 Chief Executive Officer. The Chief Executive Officer shall have, subject to the supervision, direction and control of the Board of Directors, the general powers and duties of supervision, direction and management of the affairs and business of the Corporation usually vested in the chief executive officer of a corporation, including, without limitation, all powers necessary to direct and control the organizational and reporting relationships within the Corporation. In addition, the Chief Executive Officer shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. If at any time the office of the Chairman of the Board and the Vice Chairman of the Board shall not be filled, or in the event of the temporary absence or disability of the Chairman of the Board and the Vice Chairman of the Board, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board. 5.9 The President. The President shall serve as chief operating officer, shall have the powers and duties customarily and usually associated with the office of the President and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.10 The Vice Presidents. Each Vice President shall have such powers and duties customarily and usually associated with the office of Vice President and shall have such other powers and perform 7 8 such other duties as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, or the President. 5.11 The Chief Financial Officer. The Chief Financial Officer shall be responsible for the financial affairs of the Corporation, including overseeing the duties performed by the Treasurer of the Corporation. In addition, the Chief Financial Officer shall have such powers and duties customarily and usually associated with the office of the Chief Financial Officer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.12 The Secretary and the Assistant Secretary. (a) The Secretary shall attend meetings of the Board of Directors and meetings of the stockholders and record all votes and minutes of all such proceedings in a book kept for such purpose. In addition, the Secretary shall have such powers and duties customarily and usually associated with the office of Secretary and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors, the Chief Executive Officer, or the President. (b) Each Assistant Secretary shall have such powers and perform such duties customarily and usually associated with the office of Assistant Secretary and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Secretary. In case of the absence or disability of the Secretary, the Assistant Secretary designated by the Chief Executive Officer (or, in the absence of such designation, by the Secretary) shall perform the duties and exercise the powers of the Secretary. 5.13 The Treasurer and the Assistant Treasurer. (a) The Treasurer shall have custody of the Corporation's funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit or cause to be deposited moneys or other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall also maintain adequate records of all assets, liabilities, and transactions of the Corporation and shall see that adequate audits thereof are currently and regularly made. In addition, the Treasurer shall have such powers and duties customarily and usually associated with the office of Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. (b) Each Assistant Treasurer shall have such powers and perform such duties customarily and usually associated with the office of Assistant Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Treasurer. In case of the absence or disability of the Treasurer, the Assistant Treasurer designated by the Chief Executive Officer (or, in the absence of such designation, by the Treasurer) shall perform the duties and exercise the powers of the Treasurer. 5.14 Controller. The Controller shall be responsible for maintaining the accounting records and statements, and shall properly account for all monies and obligations due the Corporation and all properties, assets, and liabilities of the Corporation. The Controller shall render to the Chairman of the Board, the President or the Chief Financial Officer such periodic reports covering the results of operations of the Corporation as may be required by either of them or by law. In addition, the Controller shall have such powers and duties customarily and usually associated with the office of Controller and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. 6. STOCK 6.1 Certificates. Certificates for shares of stock of the Corporation shall be issued under the seal of the Corporation, or a facsimile thereof, and shall be numbered and shall be entered in the books of the 8 9 Corporation as they are issued. Each certificate shall bear a serial number, shall exhibit the holder's name and the number of shares evidenced thereby, and shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the Chief Executive Officer or the President or any Vice President, and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person or entity were such officer, transfer agent, or registrar at the date of issue. 6.2 Transfers. Transfers of stock of the Corporation shall be made on the books of the Corporation only upon surrender to the Corporation of a certificate (if any) for the shares duly endorsed or accompanied by proper evidence of succession, assignment, or authority to transfer, provided such succession, assignment, or transfer is not prohibited by the Certificate of Incorporation, these Bylaws, applicable law or contract. Thereupon, the Corporation shall issue a new certificate (if requested) to the person entitled thereto, cancel the old certificate (if any), and record the transaction upon its books. 6.3 Lost, Stolen, or Destroyed Certificates. Any person claiming a certificate of stock to be lost, stolen, or destroyed shall make an affidavit or an affirmation of that fact, and shall give the Corporation a bond of indemnity in satisfactory form and with one or more satisfactory sureties, whereupon a new certificate (if requested) may be issued of the same tenor and for the same number of shares as the one alleged to be lost, stolen, or destroyed. 6.4 Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares as the person entitled to exercise the rights of a stockholder and shall not be bound to recognize any equitable or other claim to or interest in any such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by the GCLD. 6.5 Additional Powers of the Board. (a) In addition to those powers set forth in Section 4.1, the Board of Directors shall have power and authority to make all such rules and regulations as it shall deem expedient concerning the issue, transfer, and registration of certificates for shares of stock of the Corporation, including the use of uncertificated shares of stock subject to the provisions of the GCLD. (b) The Board of Directors may appoint and remove transfer agents and registrars of transfers, and may require all stock certificates to bear the signature of any such transfer agent and/or any such registrar of transfers. 7. INDEMNIFICATION 7.1 Each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or the person of whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation, as a director, officer, employee, or agent of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to employee benefit plans, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the GCLD, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expenses, liability, and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of his or her heirs, executors, and administrators; provided, however, that, except as provided in this Article 7, the Corporation shall indemnify any 9 10 such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if authorized by the Board of Directors of the Corporation. Any indemnification under this Article 7 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard set forth in the GCLD. Such a determination shall be made (a) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum; (b) by a committee of such directors designated by majority vote of such directors, even though less than a quorum; (c) by independent legal counsel (compensated by the Corporation) in a written opinion; (d) by the stockholders; or (e) in any other manner permitted by the GCLD. In addition to the right to indemnification conferred in this Article 7, each of the above persons shall have the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the GCLD requires, the payment of such expenses incurred by a present director or officer in his or her capacity as a director or officer of the corporation (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such present director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Article 7 or otherwise. The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers. The right to indemnification and to an advancement of expenses conferred in this Article 7 shall be a contract right. 7.2 If a claim under Section 7.1 of this Article 7 is not paid in full by the Corporation within 30 days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim (including attorneys' fees). 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 Corporation) that the claimant has not met the standard of conduct which makes it permissible under the GCLD for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD, nor an actual determination by the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) that the claimant has not met such 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. In any suit brought by the claimant to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the claimant is not entitled to be indemnified, or to such advancement of expenses, under this Article 7 or otherwise shall be on the Corporation. 7.3 The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article 7, shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, provision of the certificate of incorporation of the Corporation, this bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. 7.4 The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee, or agent of the Corporation or another corporation, partnership, joint venture, trust, or other enterprise against any such expense, liability, or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability, or loss under the GCLD. 7.5 The Corporation may enter into an indemnity agreement with any director, officer, employee, or agent of the Corporation, or of another corporation, partnership, joint venture, trust, or other 10 11 enterprise, upon terms and conditions that the Board of Directors deems appropriate, as long as the provisions of the agreement are not impermissible under applicable law. 7.6 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.7 In case any provision in this Article 7 shall be determined at any time to be unenforceable in any respect, the other provisions shall not in any way be affected or impaired thereby, and the affected provision shall be given the fullest possible enforcement in the circumstances, it being the intention of the Corporation to afford indemnification and advancement of expenses to the persons indemnified hereby to the fullest extent permitted by law. 7.8 The Corporation may, by action of the Board of Directors, authorize one or more officers to grant rights to indemnification and advancement of expenses to former directors and officers or to other employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances. 8. MISCELLANEOUS 8.1 Place and Inspection of Books. (a) The books of the Corporation other than such books as are required by law to be kept within the State of Delaware shall be kept in such place or places either within or without the State of Delaware as the Board of Directors may from time to time determine. (b) At least ten days before each meeting of stockholders, the officer in charge of the stock ledger of the Corporation shall prepare a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. (c) The Board of Directors shall determine from time to time whether and, if allowed, when and under what conditions and regulations the accounts and books of the Corporation (except such as may be by law specifically open to inspection or as otherwise provided by these Bylaws) or any of them shall be open to the inspection of the stockholders and the stockholders' rights in respect thereof. 8.2 Voting Shares in Other Corporations. The Chief Executive Officer, the President, the Chief Financial Officer or any other officer of the Corporation designated by the Board of Directors may vote any and all shares held by the Corporation in any other corporation. 8.3 Fiscal Year. The fiscal year of the Corporation shall be such fiscal year as the Board of Directors from time to time by resolution shall determine. 8.4 Gender/Number. As used in these Bylaws, the masculine, feminine, or neuter gender, and the singular or plural number, shall each include the others whenever the context so indicates. 8.5 Paragraph Titles. The titles of the paragraphs have been inserted as a matter of reference only and shall not control or affect the meaning or construction of any of the terms and provisions hereof. 11 12 8.6 Amendment. These Bylaws may be altered, amended, or repealed by (a) the affirmative vote of 80% or more of the aggregate number of votes that the holders of the then outstanding shares of common stock and preferred stock are entitled to cast on the amendment, or (b) by resolution adopted by the affirmative vote of not less than a majority of the Directors in office, at any annual or regular meeting of the Board of Directors or at any special meeting of the Board of Directors if notice of the proposed alteration, amendment, or repeal be contained in written notice of such special meeting. Notwithstanding the foregoing, the amendment of any provision of these Bylaws that requires an affirmative vote in excess of a majority of the Directors in office shall require the affirmative vote of at least the number of directors the affirmative vote of whom is required by such provision. 8.7 Certificate of Incorporation. Notwithstanding anything to the contrary contained herein, if any provision contained in these Bylaws is inconsistent with or conflicts with a provision of the Certificate of Incorporation, such provision of these Bylaws shall be superseded by the inconsistent provision in the Certificate of Incorporation to the extent necessary to give effect to such provision in the Certificate of Incorporation. 12 EX-99.B.5.2 12 AMENDED & RESTATED BYLAWS AS AMENDED 12/31/99 1 Atlantic City Electric Company B.5.2 Amended and Restated Bylaws Adopted December 31, 1999 2 AMENDED AND RESTATED B Y L A W S OF ATLANTIC CITY ELECTRIC COMPANY 1. OFFICES. 1.1 Offices. In addition to its registered office in the State of Delaware, the Corporation shall have a corporate office in Wilmington, Delaware, and such other offices, either within or without the State of Delaware, at such locations as the Board of Directors may from time to time determine or the business of the Corporation may require. 2. SEAL. 2.1 Seal. The Corporation shall have a seal, which shall have inscribed thereon its name and year of incorporation and the words, "Corporate Seal New Jersey." 3. MEETINGS OF STOCKHOLDERS. 3.1 Annual Meetings. The annual meeting of stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as shall be determined by the Board of Directors from time to time. 3.2 Special Meetings. Special meetings of the stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as may be designated by the Chairman of the Board or by the Board of Directors. 3.3 Notice of Meetings. (a) Notices of meetings of stockholders shall be in writing and shall state the place, date, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which a meeting is called. No business other than that specified in the notice thereof shall be transacted at any special meeting. (b) Such notice shall either be delivered personally, mailed, postage prepaid, or delivered by any other lawful means to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. If mailed, the notice shall be directed to the stockholder at his or her address as it appears on the records of the Corporation. Delivery of any such notice to any officer of a corporation or association or to any member of a partnership shall constitute delivery of such notice to such corporation, association, or partnership. (c) Notice of any meeting of stockholders need not be given to any stockholder if waived by such stockholder in writing, whether before or after such meeting is held, or if such stockholder shall sign the minutes or attend the meeting, except that if such stockholder attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, such stockholder shall not be deemed to have waived notice of such meeting. 2 3 3.4 Adjourned Meetings. When a meeting is adjourned to another time or place, unless otherwise provided by these Bylaws, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the stockholders may transact any business that might have been transacted at the original meeting. If an adjournment is for more than 30 days, or if after an adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting. 3.5 Quorum and Adjournment. Except as otherwise provided by law, by the Certificate of Incorporation of the Corporation, or by these Bylaws, the presence, in person or by proxy, of the holders of a majority of the aggregate voting power of the stock issued and outstanding, entitled to vote thereat, shall constitute a quorum for the transaction of business at all meetings of stockholders. If such majority shall not be present or represented at any meeting of stockholders, the stockholders present, although less than a quorum, shall have the power to adjourn the meeting. 3.6 Vote Required. Except as otherwise provided by law or by the Certificate of Incorporation: (a) Directors shall be elected by a plurality of the votes present in person or represented by proxy at a meeting of stockholders and entitled to vote in the election of directors, and (b) whenever any corporate action other than the election of Directors is to be taken, it shall be authorized by a majority in voting power of the shares present in person or by proxy at a meeting of stockholders and entitled to vote on the subject matter. 3.7 Manner of Voting. At each meeting of stockholders, each stockholder having the right to vote shall be entitled to vote in person or by proxy. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed before being voted. Each stockholder shall be entitled to vote each share of stock having voting power registered in his or her name on the books of the Corporation on the record date fixed for determination of stockholders entitled to vote at such meeting. 3.8 Stockholder Action Without a Meeting. Except as otherwise provided by law or by the Certificate of Incorporation, any action required to be taken at any meeting of stockholders of the corporation, or any action that may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice, and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of the holders to take the action were delivered to the Corporation. 3.9 Proxies. (a) At any meeting of stockholders, any stockholder may be represented and vote by proxy or proxies. In the event that any form of proxy shall designate two or more persons to act as proxies, a majority of such persons present at the meeting or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by the form of proxy upon all of the persons so designated unless the form of proxy shall otherwise provide. (b) The Board of Directors may, in advance of any annual or special meeting of the stockholders, prescribe additional regulations concerning the validation of the same, which are intended to be voted at any such meeting. 3 4 3.10 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the stockholders. In the absence of the Chairman of the Board, the Vice Chairman of the Board or, in his or her absence, any Director designated by the Chairman of the Board or the Board of Directors shall act as chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the stockholders, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the stockholders, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 3.11 Procedure. At each meeting of stockholders, the chairman of the meeting shall fix and announce the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at the meeting and shall determine the order of business and all other matters of procedure. Except to the extent inconsistent with any such rules and regulations as adopted by the Board of Directors, the chairman of the meeting may establish rules, which need not be in writing, to maintain order and safety and for the conduct of the meeting. Without limiting the foregoing, he or she may: (a) restrict attendance at any time to bona fide stockholders of record and their proxies and other persons in attendance at the invitation of the chairman; (b) restrict dissemination of solicitation materials and use of audio or visual recording devices at the meeting; (c) adjourn the meeting without a vote of the stockholders, whether or not there is a quorum present; and (d) make rules governing speeches and debate, including time limits and access to microphones. The chairman of the meeting shall be entitled to act in his or her absolute discretion and his or her rulings shall not be subject to appeal. 4. DIRECTORS. 4.1 Powers and Number. The Board of Directors shall exercise all of the powers of the Corporation except such as are by law, or by the Certificate of Incorporation of this Corporation or by these Bylaws conferred upon or reserved to the stockholders of any class or classes. The number of directors that shall constitute the whole Board of Directors shall be no fewer than three (3) and no greater than nine (9), the exact number of directors to be determined from time to time by resolution adopted by the Board of Directors or the stockholders, and until otherwise determined by the Board of Directors or the stockholders, the number of directors that shall constitute the whole Board of Directors shall be three (3). 4.2 Resignations. Any Director may resign at any time by giving written notice to the Board of Directors or the Secretary. Such resignation shall take effect at the date of receipt of such notice or at any later time specified therein. Acceptance of such resignation shall not be necessary to make it effective. 4.3 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the Board of Directors. In the absence of the Chairman of the Board, the Vice Chairman of the Board, or in his absence, the Chief Executive Officer or other person designated by the Board of Directors shall act as chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the Board of Directors, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 4 5 5.11(b) of these Bylaws shall act as secretary of all meetings of the Board of Directors, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 4.4 Annual Meetings. The Board of Directors shall meet each year immediately following the annual meeting of stockholders, at the place where such meeting of stockholders has been held, or at such other place as shall be fixed by the person presiding over the meeting of the stockholders, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. In the event that in any year Directors are elected by written consent in lieu of an annual meeting of stockholders, the Board of Directors shall meet in such year as soon as practicable after receipt of such written consent by the Corporation at such time and place as shall be fixed by the Chairman of the Board, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. 4.5 Regular Meetings. Regular meetings of the Board of Directors shall be held on such dates and at such times and places, within or without the state of Delaware, as shall from time to time be determined by the Board of Directors. In the absence of any such determination, such meetings shall be held at such times and places, within or without the State of Delaware, as shall be designated by the Chairman of the Board on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex or by electronic mail or by other electronic means, or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. 4.6 Special Meetings. Special meetings of the Board of Directors shall be held at the call of the Chairman of the Board at such times and places, within or without the State of Delaware, as he or she shall designate, on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex, by electronic mail or by other electronic means or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. Special meetings shall be called by the Secretary on like notice at the written request of a majority of the Directors then in office. 4.7 Quorum and Powers of a Majority. At all meetings of the Board of Directors and of each committee thereof, a majority of the members shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which a quorum is present shall be the act of the Board of Directors or such committee, unless by express provision of law, of the Certificate of Incorporation, or of these Bylaws, a different vote is required, in which case such express provision shall govern and control. In the absence of a quorum, a majority of the members present at any meeting may, without notice other than announcement at the meeting, adjourn such meeting from time to time until a quorum is present. 4.8 Waiver of Notice. Notice of any meeting of the Board of Directors, or any committee thereof, need not be given to any member if waived by him or her in writing, whether before or after such meeting is held, or if he or she shall sign the minutes or attend the meeting, except that if such Director attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, then such Director shall not be deemed to have waived notice of such meeting. 4.9 Manner of Acting. (a) Members of the Board of Directors, or any committee thereof, may participate in any meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating therein can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting. 5 6 (b) Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing, and the writings are filed with the minutes of proceedings of the Board of Directors or such committee. 4.10 Compensation. (a) The Board of Directors, by a resolution or resolutions, may fix, and from time to time change, the compensation of Directors. (b) Each Director shall be entitled to reimbursement from the Corporation for his or her reasonable expenses incurred with respect to duties as a member of the Board of Directors or any committee thereof. (c) Nothing contained in these Bylaws shall be construed to preclude any Director from serving the Corporation in any other capacity and from receiving compensation from the Corporation for service rendered to it in such other capacity. 4.11 Committees. The Board of Directors (or any committee thereof having the power and authority to do so) may designate one or more committees, each committee to consist of one or more Directors, which to the extent provided in said resolution or resolutions shall have and may exercise the powers and authority of the Board of Directors in the management of the business and affairs of the corporation; provided, however, that no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the General Corporation Law of Delaware (the "GCLD") to be submitted to stockholders for approval or (ii) adopting, amending, or repealing any bylaw of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting of such committee and not disqualified from voting, whether or not such member of members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of such absent or disqualified director. 4.12 Committee Procedure, Limitations of Committee Powers. (a) Except as otherwise provided by these Bylaws, each committee shall adopt its own rules governing the time, place and method of holding its meetings and the conduct of its proceedings and shall meet as provided by such rules or by resolution of the Board of Directors. Unless otherwise provided by these Bylaws or any such rules or resolutions, notice of the time and place of each meeting of a committee shall be given to each member of such committee as provided in Section 4.6 of these Bylaws with respect to notices of special meetings of the Board of Directors. (b) Each committee shall keep regular minutes of its proceedings and report the same to the Board of Directors when required. (c) Any member of any committee may be removed from such committee either with or without cause, at any time, by the Board of Directors at any meeting thereof. Any vacancy in any committee shall be filled by the Board of Directors in the manner prescribed by the Certificate of Incorporation or these Bylaws for the original appointment of the members of such committee. 6 7 5. OFFICERS. 5.1 Number. (a) The officers of the Corporation shall include a Chief Executive Officer, a President, one or more Vice Presidents (including one or more Executive Vice Presidents and one or more Senior Vice Presidents if deemed appropriate by the Board of Directors), a Chief Financial Officer, a Secretary, a Treasurer, and a Controller. The Board of Directors shall also elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except for the Chairman of the Board, the Vice Chairman of the Board, and the Chief Executive Officer, none of the officers of the Corporation needs to be a director of the Corporation. Any two or more offices may be held by the same person to the extent permitted by the GCLD. (b) The Chief Executive Officer shall have the power to appoint one or more employees of the Corporation as divisional or departmental vice presidents and fix the duties of such appointees. However, no such divisional or departmental vice president shall be considered as an officer of the Corporation. 5.2 Election of Officers, Qualification and Term. The Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President, the Chief Financial Officer, the Secretary and the Treasurer of the Corporation shall be elected from time to time by the Board of Directors and, except as may otherwise be expressly provided in a contract of employment duly authorized by the Board of Directors, shall hold office at the pleasure of the Board of Directors. The Board of Directors and the Chief Executive Officer also may elect such other officers as the Board of Directors or the Chief Executive Officer may from time to time deem appropriate or necessary. 5.3 Removal. Any officer elected by the Board of Directors may be removed, either with or without cause, by the Board of Directors at any meeting thereof, or to the extent delegated to the Chairman of the Board or the Chief Executive Officer, by the Chairman of the Board or the Chief Executive Officer. 5.4 Resignations. Any officer of the Corporation may resign at any time by giving written notice to the Board of Directors or to the Chairman of the Board or to the Chief Executive Officer. Such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 5.5 Compensation. The compensation of all officers of the Corporation shall be fixed by or in the manner provided by the Board of Directors from time to time, and no officer shall be prevented from receiving such compensation by reason of the fact that he or she is also a Director of the Corporation. 5.6 The Chairman of the Board. The Chairman of the Board shall have the powers and duties customarily and usually associated with the office of the Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. The Chairman of the Board shall preside at meetings of the stockholders and of the Board of Directors. 5.7 Vice Chairman of the Board. The Vice Chairman of the Board, if any, shall have the powers and duties customarily and usually associated with the office of the Vice Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. 5.8 Chief Executive Officer. The Chief Executive Officer shall have, subject to the supervision, direction and control of the Board of Directors, the general powers and duties of supervision, direction and management of the affairs and business of the Corporation usually vested in the chief executive officer of a corporation, including, without limitation, all powers necessary to direct and control the organizational and reporting relationships within the Corporation. In addition, the Chief Executive Officer shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. If at any time the office of the Chairman of the Board and the Vice Chairman of the Board shall not be 7 8 filled, or in the event of the temporary absence or disability of the Chairman of the Board and the Vice Chairman of the Board, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board. 5.9 The President. The President shall serve as chief operating officer, shall have the powers and duties customarily and usually associated with the office of the President and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.10 The Vice Presidents. Each Vice President shall have such powers and duties customarily and usually associated with the office of Vice President and shall have such other powers and perform such other duties as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, or the President. 5.11 The Chief Financial Officer. The Chief Financial Officer shall be responsible for the financial affairs of the Corporation, including overseeing the duties performed by the Treasurer of the Corporation. In addition, the Chief Financial Officer shall have such powers and duties customarily and usually associated with the office of the Chief Financial Officer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.12 The Secretary and the Assistant Secretary. (a) The Secretary shall attend meetings of the Board of Directors and meetings of the stockholders and record all votes and minutes of all such proceedings in a book kept for such purpose. In addition, the Secretary shall have such powers and duties customarily and usually associated with the office of Secretary and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors, the Chief Executive Officer, or the President. (b) Each Assistant Secretary shall have such powers and perform such duties customarily and usually associated with the office of Assistant Secretary and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Secretary. In case of the absence or disability of the Secretary, the Assistant Secretary designated by the Chief Executive Officer (or, in the absence of such designation, by the Secretary) shall perform the duties and exercise the powers of the Secretary. 5.13 The Treasurer and the Assistant Treasurer. (a) The Treasurer shall have custody of the Corporation's funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit or cause to be deposited moneys or other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall also maintain adequate records of all assets, liabilities, and transactions of the Corporation and shall see that adequate audits thereof are currently and regularly made. In addition, the Treasurer shall have such powers and duties customarily and usually associated with the office of Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. (b) Each Assistant Treasurer shall have such powers and perform such duties customarily and usually associated with the office of Assistant Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Treasurer. In case of the absence or disability of the Treasurer, the Assistant Treasurer designated by the Chief Executive Officer (or, in the absence of such designation, by the Treasurer) shall perform the duties and exercise the powers of the Treasurer. 5.14 Controller. The Controller shall be responsible for maintaining the accounting records and statements, and shall properly account for all monies and obligations due the Corporation and all properties, assets, and liabilities of the Corporation. The Controller shall render to the Chairman of the Board, the President 8 9 or the Chief Financial Officer such periodic reports covering the results of operations of the Corporation as may be required by either of them or by law. In addition, the Controller shall have such powers and duties customarily and usually associated with the office of Controller and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. 6. STOCK 6.1 Certificates. Certificates for shares of stock of the Corporation shall be issued under the seal of the Corporation, or a facsimile thereof, and shall be numbered and shall be entered in the books of the Corporation as they are issued. Each certificate shall bear a serial number, shall exhibit the holder's name and the number of shares evidenced thereby, and shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the Chief Executive Officer or the President or any Vice President, and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person or entity were such officer, transfer agent, or registrar at the date of issue. 6.2 Transfers. Transfers of stock of the Corporation shall be made on the books of the Corporation only upon surrender to the Corporation of a certificate (if any) for the shares duly endorsed or accompanied by proper evidence of succession, assignment, or authority to transfer, provided such succession, assignment, or transfer is not prohibited by the Certificate of Incorporation, these Bylaws, applicable law or contract. Thereupon, the Corporation shall issue a new certificate (if requested) to the person entitled thereto, cancel the old certificate (if any), and record the transaction upon its books. 6.3 Lost, Stolen, or Destroyed Certificates. Any person claiming a certificate of stock to be lost, stolen, or destroyed shall make an affidavit or an affirmation of that fact, and shall give the Corporation a bond of indemnity in satisfactory form and with one or more satisfactory sureties, whereupon a new certificate (if requested) may be issued of the same tenor and for the same number of shares as the one alleged to be lost, stolen, or destroyed. 6.4 Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares as the person entitled to exercise the rights of a stockholder and shall not be bound to recognize any equitable or other claim to or interest in any such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by the GCLD. 6.5 Additional Powers of the Board. (a) In addition to those powers set forth in Section 4.1, the Board of Directors shall have power and authority to make all such rules and regulations as it shall deem expedient concerning the issue, transfer, and registration of certificates for shares of stock of the Corporation, including the use of uncertificated shares of stock subject to the provisions of the GCLD. (b) The Board of Directors may appoint and remove transfer agents and registrars of transfers, and may require all stock certificates to bear the signature of any such transfer agent and/or any such registrar of transfers. 7. INDEMNIFICATION 7.1 Each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or the person of whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the 9 10 Corporation, as a director, officer, employee, or agent of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to employee benefit plans, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the GCLD, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expenses, liability, and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of his or her heirs, executors, and administrators; provided, however, that, except as provided in this Article 7, the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if authorized by the Board of Directors of the Corporation. Any indemnification under this Article 7 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard set forth in the GCLD. Such a determination shall be made (a) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum; (b) by a committee of such directors designated by majority vote of such directors, even though less than a quorum; (c) by independent legal counsel (compensated by the Corporation) in a written opinion; (d) by the stockholders; or (e) in any other manner permitted by the GCLD. In addition to the right to indemnification conferred in this Article 7, each of the above persons shall have the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the GCLD requires, the payment of such expenses incurred by a present director or officer in his or her capacity as a director or officer of the corporation (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such present director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Article 7 or otherwise. The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers. The right to indemnification and to an advancement of expenses conferred in this Article 7 shall be a contract right. 7.2 If a claim under Section 7.1 of this Article 7 is not paid in full by the Corporation within 30 days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim (including attorneys' fees). 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 Corporation) that the claimant has not met the standard of conduct which makes it permissible under the GCLD for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD, nor an actual determination by the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) that the claimant has not met such 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. In any suit brought by the claimant to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the claimant is not entitled to be indemnified, or to such advancement of expenses, under this Article 7 or otherwise shall be on the Corporation. 7.3 The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article 7, shall not be exclusive of any other right 10 11 that any person may have or hereafter acquire under any statute, provision of the certificate of incorporation of the Corporation, this bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. 7.4 The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee, or agent of the Corporation or another corporation, partnership, joint venture, trust, or other enterprise against any such expense, liability, or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability, or loss under the GCLD. 7.5 The Corporation may enter into an indemnity agreement with any director, officer, employee, or agent of the Corporation, or of another corporation, partnership, joint venture, trust, or other enterprise, upon terms and conditions that the Board of Directors deems appropriate, as long as the provisions of the agreement are not impermissible under applicable law. 7.6 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.7 In case any provision in this Article 7 shall be determined at any time to be unenforceable in any respect, the other provisions shall not in any way be affected or impaired thereby, and the affected provision shall be given the fullest possible enforcement in the circumstances, it being the intention of the Corporation to afford indemnification and advancement of expenses to the persons indemnified hereby to the fullest extent permitted by law. 7.8 The Corporation may, by action of the Board of Directors, authorize one or more officers to grant rights to indemnification and advancement of expenses to former directors and officers or to other employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances. 8. MISCELLANEOUS 8.1 Place and Inspection of Books. (a) The books of the Corporation other than such books as are required by law to be kept within the State of Delaware shall be kept in such place or places either within or without the State of Delaware as the Board of Directors may from time to time determine. (b) At least ten days before each meeting of stockholders, the officer in charge of the stock ledger of the Corporation shall prepare a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. (c) The Board of Directors shall determine from time to time whether and, if allowed, when and under what conditions and regulations the accounts and books of the Corporation (except such as may be by law specifically open to inspection or as otherwise provided by these Bylaws) or any of them shall be open to the inspection of the stockholders and the stockholders' rights in respect thereof. 8.2 Voting Shares in Other Corporations. The Chief Executive Officer, the President, the Chief Financial Officer or any other officer of the Corporation designated by the Board of Directors may vote any and all shares held by the Corporation in any other corporation. 11 12 8.3 Fiscal Year. The fiscal year of the Corporation shall be such fiscal year as the Board of Directors from time to time by resolution shall determine. 8.4 Gender/Number. As used in these Bylaws, the masculine, feminine, or neuter gender, and the singular or plural number, shall each include the others whenever the context so indicates. 8.5 Paragraph Titles. The titles of the paragraphs have been inserted as a matter of reference only and shall not control or affect the meaning or construction of any of the terms and provisions hereof. 8.6 Amendment. These Bylaws may be altered, amended, or repealed by (a) the affirmative vote of 80% or more of the aggregate number of votes that the holders of the then outstanding shares of common stock and preferred stock are entitled to cast on the amendment, or (b) by resolution adopted by the affirmative vote of not less than a majority of the Directors in office, at any annual or regular meeting of the Board of Directors or at any special meeting of the Board of Directors if notice of the proposed alteration, amendment, or repeal be contained in written notice of such special meeting. Notwithstanding the foregoing, the amendment of any provision of these Bylaws that requires an affirmative vote in excess of a majority of the Directors in office shall require the affirmative vote of at least the number of directors the affirmative vote of whom is required by such provision. 8.7 Certificate of Incorporation. Notwithstanding anything to the contrary contained herein, if any provision contained in these Bylaws is inconsistent with or conflicts with a provision of the Certificate of Incorporation, such provision of these Bylaws shall be superseded by the inconsistent provision in the Certificate of Incorporation to the extent necessary to give effect to such provision in the Certificate of Incorporation. 12 EX-99.B.6.1 13 CERTIFICATE OF INCORPORATION FILED 3/12/98 1 ACE REIT Holding Company, Inc. B.6.1 Certificate of Incorporation Filed March 12, 1998 1 2 CERTIFICATE OF INCORPORATION OF ACE REIT HOLDING, INC. FIRST: The name of the Corporation is ACE REIT Holding, Inc. SECOND: The registered office of ACE REIT Holding, Inc. in the State of Delaware is located at 800 King Street, Wilmington, County of New Castle, 19801, and its registered agent shall be the Corporation itself. THIRD: The purpose of the Corporation and the nature and objects of the business to be transacted, promoted, conducted or carried out are: To engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock that the Corporation shall be authorized to issue is One Thousand (1,000) shares of Common Stock having a par value of One Dollar ($1.00) per share. FIFTH: The name and mailing address of the Incorporator of the Corporation is: Name Address ---- ------- Steven L. Biener P.O. Box 6066 Newark, DE 19714-6066 SIXTH: The names and mailing addresses of the sole director who shall serve until the first annual meeting of stockholders or until his successor is elected and qualify is: Name Address ---- ------- Charles A. Mannix P.O. Box 231 Wilmington, DE 19899 SEVENTH: The Board of Directors may make, add to, delete from, alter and repeal any By-law of the Corporation. 2 3 EIGHTH: No director of the Corporation shall be personally liable to the Corporation for monetary damages for breach of fiduciary duty by such director; provided, however, that this Article EIGHTH shall not eliminate or limit the liability of a director to the extent provided by law (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of the State of Delaware, or (iv) for any transaction from which the director derived an improper personal benefit. The Corporation shall indemnify its directors, officers, employees and agents against expenses, judgment, fines and amounts paid in settlement actually and reasonably incurred by them by reason of their serving in such capacity to the fullest extent permitted by the Delaware General Corporation Law. I, the undersigned, being the Incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, do make this Certificate of Incorporation, hereby declaring and certifying that this is my act and deed and that the facts herein stated are true and accordingly have hereunto set my hand and seal this 12th day of March, 1998. -------------------------------- Steven L. Biener 3 EX-99.B.6.2 14 AMENDED & RESTATED BYLAWS AS AMENDED 12/31/99 1 ACE REIT Holding, Inc. B.6.2 Amended and Restated Bylaws Adopted December 31, 1999 2 AMENDED AND RESTATED B Y L A W S OF ACE REIT HOLDING, INC. 1. OFFICES. 1.1 Offices. In addition to its registered office in the State of Delaware, the Corporation shall have a corporate office in Wilmington, Delaware, and such other offices, either within or without the State of Delaware, at such locations as the Board of Directors may from time to time determine or the business of the Corporation may require. 2. SEAL. 2.1 Seal. The Corporation shall have a seal, which shall have inscribed thereon its name and year of incorporation and the words, "Corporate Seal Delaware." 3. MEETINGS OF STOCKHOLDERS. 3.1 Annual Meetings. The annual meeting of stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as shall be determined by the Board of Directors from time to time. 3.2 Special Meetings. Special meetings of the stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as may be designated by the Chairman of the Board or by the Board of Directors. 3.3 Notice of Meetings. (a) Notices of meetings of stockholders shall be in writing and shall state the place, date, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which a meeting is called. No business other than that specified in the notice thereof shall be transacted at any special meeting. (b) Such notice shall either be delivered personally, mailed, postage prepaid, or delivered by any other lawful means to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. If mailed, the notice shall be directed to the stockholder at his or her address as it appears on the records of the Corporation. Delivery of any such notice to any officer of a corporation or association or to any member of a partnership shall constitute delivery of such notice to such corporation, association, or partnership. (c) Notice of any meeting of stockholders need not be given to any stockholder if waived by such stockholder in writing, whether before or after such meeting is held, or if such stockholder shall sign the minutes or attend the meeting, except that if such stockholder attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, such stockholder shall not be deemed to have waived notice of such meeting. 3.4 Adjourned Meetings. When a meeting is adjourned to another time or place, unless otherwise provided by these Bylaws, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the stockholders may transact any business that might have been transacted at the original meeting. If an adjournment 2 3 is for more than 30 days, or if after an adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting. 3.5 Quorum and Adjournment. Except as otherwise provided by law, by the Certificate of Incorporation of the Corporation, or by these Bylaws, the presence, in person or by proxy, of the holders of a majority of the aggregate voting power of the stock issued and outstanding, entitled to vote thereat, shall constitute a quorum for the transaction of business at all meetings of stockholders. If such majority shall not be present or represented at any meeting of stockholders, the stockholders present, although less than a quorum, shall have the power to adjourn the meeting. 3.6 Vote Required. Except as otherwise provided by law or by the Certificate of Incorporation: (a) Directors shall be elected by a plurality of the votes present in person or represented by proxy at a meeting of stockholders and entitled to vote in the election of directors, and (b) whenever any corporate action other than the election of Directors is to be taken, it shall be authorized by a majority in voting power of the shares present in person or by proxy at a meeting of stockholders and entitled to vote on the subject matter. 3.7 Manner of Voting. At each meeting of stockholders, each stockholder having the right to vote shall be entitled to vote in person or by proxy. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed before being voted. Each stockholder shall be entitled to vote each share of stock having voting power registered in his or her name on the books of the Corporation on the record date fixed for determination of stockholders entitled to vote at such meeting. 3.8 Stockholder Action Without a Meeting. Except as otherwise provided by law or by the Certificate of Incorporation, any action required to be taken at any meeting of stockholders of the corporation, or any action that may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice, and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of the holders to take the action were delivered to the Corporation. 3.9 Proxies. (a) At any meeting of stockholders, any stockholder may be represented and vote by proxy or proxies. In the event that any form of proxy shall designate two or more persons to act as proxies, a majority of such persons present at the meeting or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by the form of proxy upon all of the persons so designated unless the form of proxy shall otherwise provide. (b) The Board of Directors may, in advance of any annual or special meeting of the stockholders, prescribe additional regulations concerning the validation of the same, which are intended to be voted at any such meeting. 3.10 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the stockholders. In the absence of the Chairman of the Board, the Vice Chairman of the Board or, in his or her absence, any Director designated by the Chairman of the Board or the Board of Directors shall act as chairman of the meeting. 3 4 The Secretary of the Corporation shall act as secretary of all meetings of the stockholders, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the stockholders, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 3.11 Procedure. At each meeting of stockholders, the chairman of the meeting shall fix and announce the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at the meeting and shall determine the order of business and all other matters of procedure. Except to the extent inconsistent with any such rules and regulations as adopted by the Board of Directors, the chairman of the meeting may establish rules, which need not be in writing, to maintain order and safety and for the conduct of the meeting. Without limiting the foregoing, he or she may: (a) restrict attendance at any time to bona fide stockholders of record and their proxies and other persons in attendance at the invitation of the chairman; (b) restrict dissemination of solicitation materials and use of audio or visual recording devices at the meeting; (c) adjourn the meeting without a vote of the stockholders, whether or not there is a quorum present; and (d) make rules governing speeches and debate, including time limits and access to microphones. The chairman of the meeting shall be entitled to act in his or her absolute discretion and his or her rulings shall not be subject to appeal. 4. DIRECTORS. 4.1 Powers and Number. The Board of Directors shall exercise all of the powers of the Corporation except such as are by law, or by the Certificate of Incorporation of this Corporation or by these Bylaws conferred upon or reserved to the stockholders of any class or classes. The number of directors that shall constitute the whole Board of Directors shall be no fewer than three (3) and no greater than nine (9), the exact number of directors to be determined from time to time by resolution adopted by the Board of Directors or the stockholders, and until otherwise determined by the Board of Directors or the stockholders, the number of directors that shall constitute the whole Board of Directors shall be three (3). 4.2 Resignations. Any Director may resign at any time by giving written notice to the Board of Directors or the Secretary. Such resignation shall take effect at the date of receipt of such notice or at any later time specified therein. Acceptance of such resignation shall not be necessary to make it effective. 4.3 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the Board of Directors. In the absence of the Chairman of the Board, the Vice Chairman of the Board, or in his absence, the Chief Executive Officer or other person designated by the Board of Directors shall act as chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the Board of Directors, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the Board of Directors, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 4 5 4.4 Annual Meetings. The Board of Directors shall meet each year immediately following the annual meeting of stockholders, at the place where such meeting of stockholders has been held, or at such other place as shall be fixed by the person presiding over the meeting of the stockholders, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. In the event that in any year Directors are elected by written consent in lieu of an annual meeting of stockholders, the Board of Directors shall meet in such year as soon as practicable after receipt of such written consent by the Corporation at such time and place as shall be fixed by the Chairman of the Board, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. 4.5 Regular Meetings. Regular meetings of the Board of Directors shall be held on such dates and at such times and places, within or without the state of Delaware, as shall from time to time be determined by the Board of Directors. In the absence of any such determination, such meetings shall be held at such times and places, within or without the State of Delaware, as shall be designated by the Chairman of the Board on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex or by electronic mail or by other electronic means, or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. 4.6 Special Meetings. Special meetings of the Board of Directors shall be held at the call of the Chairman of the Board at such times and places, within or without the State of Delaware, as he or she shall designate, on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex, by electronic mail or by other electronic means or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. Special meetings shall be called by the Secretary on like notice at the written request of a majority of the Directors then in office. 4.7 Quorum and Powers of a Majority. At all meetings of the Board of Directors and of each committee thereof, a majority of the members shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which a quorum is present shall be the act of the Board of Directors or such committee, unless by express provision of law, of the Certificate of Incorporation, or of these Bylaws, a different vote is required, in which case such express provision shall govern and control. In the absence of a quorum, a majority of the members present at any meeting may, without notice other than announcement at the meeting, adjourn such meeting from time to time until a quorum is present. 4.8 Waiver of Notice. Notice of any meeting of the Board of Directors, or any committee thereof, need not be given to any member if waived by him or her in writing, whether before or after such meeting is held, or if he or she shall sign the minutes or attend the meeting, except that if such Director attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, then such Director shall not be deemed to have waived notice of such meeting. 4.9 Manner of Acting. (a) Members of the Board of Directors, or any committee thereof, may participate in any meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating therein can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting. (b) Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board of Directors or 5 6 such committee, as the case may be, consent thereto in writing, and the writings are filed with the minutes of proceedings of the Board of Directors or such committee. 4.10 Compensation. (a) The Board of Directors, by a resolution or resolutions, may fix, and from time to time change, the compensation of Directors. (b) Each Director shall be entitled to reimbursement from the Corporation for his or her reasonable expenses incurred with respect to duties as a member of the Board of Directors or any committee thereof. (c) Nothing contained in these Bylaws shall be construed to preclude any Director from serving the Corporation in any other capacity and from receiving compensation from the Corporation for service rendered to it in such other capacity. 4.11 Committees. The Board of Directors (or any committee thereof having the power and authority to do so) may designate one or more committees, each committee to consist of one or more Directors, which to the extent provided in said resolution or resolutions shall have and may exercise the powers and authority of the Board of Directors in the management of the business and affairs of the corporation; provided, however, that no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the General Corporation Law of Delaware (the "GCLD") to be submitted to stockholders for approval or (ii) adopting, amending, or repealing any bylaw of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting of such committee and not disqualified from voting, whether or not such member of members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of such absent or disqualified director. 4.12 Committee Procedure, Limitations of Committee Powers. (a) Except as otherwise provided by these Bylaws, each committee shall adopt its own rules governing the time, place and method of holding its meetings and the conduct of its proceedings and shall meet as provided by such rules or by resolution of the Board of Directors. Unless otherwise provided by these Bylaws or any such rules or resolutions, notice of the time and place of each meeting of a committee shall be given to each member of such committee as provided in Section 4.6 of these Bylaws with respect to notices of special meetings of the Board of Directors. (b) Each committee shall keep regular minutes of its proceedings and report the same to the Board of Directors when required. (c) Any member of any committee may be removed from such committee either with or without cause, at any time, by the Board of Directors at any meeting thereof. Any vacancy in any committee shall be filled by the Board of Directors in the manner prescribed by the Certificate of Incorporation or these Bylaws for the original appointment of the members of such committee. 5. OFFICERS. 5.1 Number. (a) The officers of the Corporation shall include a Chief Executive Officer, a President, one or more Vice Presidents (including one or more Executive Vice Presidents and one or more Senior Vice Presidents if deemed appropriate by the Board of Directors), a Chief Financial Officer, a Secretary, a Treasurer, and a Controller. The Board of Directors shall also elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except for the Chairman of the Board, the Vice Chairman of the Board, and the Chief Executive Officer, none of the officers of the Corporation needs to be a director of the Corporation. Any two or more offices may be held by the same person to the extent permitted by the GCLD. 6 7 (b) The Chief Executive Officer shall have the power to appoint one or more employees of the Corporation as divisional or departmental vice presidents and fix the duties of such appointees. However, no such divisional or departmental vice president shall be considered as an officer of the Corporation. 5.2 Election of Officers, Qualification and Term. The Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President, the Chief Financial Officer, the Secretary and the Treasurer of the Corporation shall be elected from time to time by the Board of Directors and, except as may otherwise be expressly provided in a contract of employment duly authorized by the Board of Directors, shall hold office at the pleasure of the Board of Directors. The Board of Directors and the Chief Executive Officer also may elect such other officers as the Board of Directors or the Chief Executive Officer may from time to time deem appropriate or necessary. 5.3 Removal. Any officer elected by the Board of Directors may be removed, either with or without cause, by the Board of Directors at any meeting thereof, or to the extent delegated to the Chairman of the Board or the Chief Executive Officer, by the Chairman of the Board or the Chief Executive Officer. 5.4 Resignations. Any officer of the Corporation may resign at any time by giving written notice to the Board of Directors or to the Chairman of the Board or to the Chief Executive Officer. Such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 5.5 Compensation. The compensation of all officers of the Corporation shall be fixed by or in the manner provided by the Board of Directors from time to time, and no officer shall be prevented from receiving such compensation by reason of the fact that he or she is also a Director of the Corporation. 5.6 The Chairman of the Board. The Chairman of the Board shall have the powers and duties customarily and usually associated with the office of the Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. The Chairman of the Board shall preside at meetings of the stockholders and of the Board of Directors. 5.7 Vice Chairman of the Board. The Vice Chairman of the Board, if any, shall have the powers and duties customarily and usually associated with the office of the Vice Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. 5.8 Chief Executive Officer. The Chief Executive Officer shall have, subject to the supervision, direction and control of the Board of Directors, the general powers and duties of supervision, direction and management of the affairs and business of the Corporation usually vested in the chief executive officer of a corporation, including, without limitation, all powers necessary to direct and control the organizational and reporting relationships within the Corporation. In addition, the Chief Executive Officer shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. If at any time the office of the Chairman of the Board and the Vice Chairman of the Board shall not be filled, or in the event of the temporary absence or disability of the Chairman of the Board and the Vice Chairman of the Board, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board. 5.9 The President. The President shall serve as chief operating officer, shall have the powers and duties customarily and usually associated with the office of the President and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.10 The Vice Presidents. Each Vice President shall have such powers and duties customarily and usually associated with the office of Vice President and shall have such other powers and perform 7 8 such other duties as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, or the President. 5.11 The Chief Financial Officer. The Chief Financial Officer shall be responsible for the financial affairs of the Corporation, including overseeing the duties performed by the Treasurer of the Corporation. In addition, the Chief Financial Officer shall have such powers and duties customarily and usually associated with the office of the Chief Financial Officer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.12 The Secretary and the Assistant Secretary. (a) The Secretary shall attend meetings of the Board of Directors and meetings of the stockholders and record all votes and minutes of all such proceedings in a book kept for such purpose. In addition, the Secretary shall have such powers and duties customarily and usually associated with the office of Secretary and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors, the Chief Executive Officer, or the President. (b) Each Assistant Secretary shall have such powers and perform such duties customarily and usually associated with the office of Assistant Secretary and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Secretary. In case of the absence or disability of the Secretary, the Assistant Secretary designated by the Chief Executive Officer (or, in the absence of such designation, by the Secretary) shall perform the duties and exercise the powers of the Secretary. 5.13 The Treasurer and the Assistant Treasurer. (a) The Treasurer shall have custody of the Corporation's funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit or cause to be deposited moneys or other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall also maintain adequate records of all assets, liabilities, and transactions of the Corporation and shall see that adequate audits thereof are currently and regularly made. In addition, the Treasurer shall have such powers and duties customarily and usually associated with the office of Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. (b) Each Assistant Treasurer shall have such powers and perform such duties customarily and usually associated with the office of Assistant Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Treasurer. In case of the absence or disability of the Treasurer, the Assistant Treasurer designated by the Chief Executive Officer (or, in the absence of such designation, by the Treasurer) shall perform the duties and exercise the powers of the Treasurer. 5.14 Controller. The Controller shall be responsible for maintaining the accounting records and statements, and shall properly account for all monies and obligations due the Corporation and all properties, assets, and liabilities of the Corporation. The Controller shall render to the Chairman of the Board, the President or the Chief Financial Officer such periodic reports covering the results of operations of the Corporation as may be required by either of them or by law. In addition, the Controller shall have such powers and duties customarily and usually associated with the office of Controller and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. 6. STOCK 6.1 Certificates. Certificates for shares of stock of the Corporation shall be issued under the seal of the Corporation, or a facsimile thereof, and shall be numbered and shall be entered in the books of the 8 9 Corporation as they are issued. Each certificate shall bear a serial number, shall exhibit the holder's name and the number of shares evidenced thereby, and shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the Chief Executive Officer or the President or any Vice President, and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person or entity were such officer, transfer agent, or registrar at the date of issue. 6.2 Transfers. Transfers of stock of the Corporation shall be made on the books of the Corporation only upon surrender to the Corporation of a certificate (if any) for the shares duly endorsed or accompanied by proper evidence of succession, assignment, or authority to transfer, provided such succession, assignment, or transfer is not prohibited by the Certificate of Incorporation, these Bylaws, applicable law or contract. Thereupon, the Corporation shall issue a new certificate (if requested) to the person entitled thereto, cancel the old certificate (if any), and record the transaction upon its books. 6.3 Lost, Stolen, or Destroyed Certificates. Any person claiming a certificate of stock to be lost, stolen, or destroyed shall make an affidavit or an affirmation of that fact, and shall give the Corporation a bond of indemnity in satisfactory form and with one or more satisfactory sureties, whereupon a new certificate (if requested) may be issued of the same tenor and for the same number of shares as the one alleged to be lost, stolen, or destroyed. 6.4 Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares as the person entitled to exercise the rights of a stockholder and shall not be bound to recognize any equitable or other claim to or interest in any such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by the GCLD. 6.5 Additional Powers of the Board. (a) In addition to those powers set forth in Section 4.1, the Board of Directors shall have power and authority to make all such rules and regulations as it shall deem expedient concerning the issue, transfer, and registration of certificates for shares of stock of the Corporation, including the use of uncertificated shares of stock subject to the provisions of the GCLD. (b) The Board of Directors may appoint and remove transfer agents and registrars of transfers, and may require all stock certificates to bear the signature of any such transfer agent and/or any such registrar of transfers. 7. INDEMNIFICATION 7.1 Each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or the person of whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation, as a director, officer, employee, or agent of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to employee benefit plans, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the GCLD, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expenses, liability, and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of his or her heirs, executors, and administrators; provided, however, that, except as provided in this Article 7, the Corporation shall indemnify any 9 10 such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if authorized by the Board of Directors of the Corporation. Any indemnification under this Article 7 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard set forth in the GCLD. Such a determination shall be made (a) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum; (b) by a committee of such directors designated by majority vote of such directors, even though less than a quorum; (c) by independent legal counsel (compensated by the Corporation) in a written opinion; (d) by the stockholders; or (e) in any other manner permitted by the GCLD. In addition to the right to indemnification conferred in this Article 7, each of the above persons shall have the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the GCLD requires, the payment of such expenses incurred by a present director or officer in his or her capacity as a director or officer of the corporation (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such present director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Article 7 or otherwise. The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers. The right to indemnification and to an advancement of expenses conferred in this Article 7 shall be a contract right. 7.2 If a claim under Section 7.1 of this Article 7 is not paid in full by the Corporation within 30 days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim (including attorneys' fees). 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 Corporation) that the claimant has not met the standard of conduct which makes it permissible under the GCLD for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD, nor an actual determination by the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) that the claimant has not met such 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. In any suit brought by the claimant to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the claimant is not entitled to be indemnified, or to such advancement of expenses, under this Article 7 or otherwise shall be on the Corporation. 7.3 The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article 7, shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, provision of the certificate of incorporation of the Corporation, this bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. 7.4 The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee, or agent of the Corporation or another corporation, partnership, joint venture, trust, or other enterprise against any such expense, liability, or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability, or loss under the GCLD. 7.5 The Corporation may enter into an indemnity agreement with any director, officer, employee, or agent of the Corporation, or of another corporation, partnership, joint venture, trust, or other 10 11 enterprise, upon terms and conditions that the Board of Directors deems appropriate, as long as the provisions of the agreement are not impermissible under applicable law. 7.6 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.7 In case any provision in this Article 7 shall be determined at any time to be unenforceable in any respect, the other provisions shall not in any way be affected or impaired thereby, and the affected provision shall be given the fullest possible enforcement in the circumstances, it being the intention of the Corporation to afford indemnification and advancement of expenses to the persons indemnified hereby to the fullest extent permitted by law. 7.8 The Corporation may, by action of the Board of Directors, authorize one or more officers to grant rights to indemnification and advancement of expenses to former directors and officers or to other employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances. 8. MISCELLANEOUS 8.1 Place and Inspection of Books. (a) The books of the Corporation other than such books as are required by law to be kept within the State of Delaware shall be kept in such place or places either within or without the State of Delaware as the Board of Directors may from time to time determine. (b) At least ten days before each meeting of stockholders, the officer in charge of the stock ledger of the Corporation shall prepare a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. (c) The Board of Directors shall determine from time to time whether and, if allowed, when and under what conditions and regulations the accounts and books of the Corporation (except such as may be by law specifically open to inspection or as otherwise provided by these Bylaws) or any of them shall be open to the inspection of the stockholders and the stockholders' rights in respect thereof. 8.2 Voting Shares in Other Corporations. The Chief Executive Officer, the President, the Chief Financial Officer or any other officer of the Corporation designated by the Board of Directors may vote any and all shares held by the Corporation in any other corporation. 8.3 Fiscal Year. The fiscal year of the Corporation shall be such fiscal year as the Board of Directors from time to time by resolution shall determine. 8.4 Gender/Number. As used in these Bylaws, the masculine, feminine, or neuter gender, and the singular or plural number, shall each include the others whenever the context so indicates. 8.5 Paragraph Titles. The titles of the paragraphs have been inserted as a matter of reference only and shall not control or affect the meaning or construction of any of the terms and provisions hereof. 11 12 8.6 Amendment. These Bylaws may be altered, amended, or repealed by (a) the affirmative vote of 80% or more of the aggregate number of votes that the holders of the then outstanding shares of common stock and preferred stock are entitled to cast on the amendment, or (b) by resolution adopted by the affirmative vote of not less than a majority of the Directors in office, at any annual or regular meeting of the Board of Directors or at any special meeting of the Board of Directors if notice of the proposed alteration, amendment, or repeal be contained in written notice of such special meeting. Notwithstanding the foregoing, the amendment of any provision of these Bylaws that requires an affirmative vote in excess of a majority of the Directors in office shall require the affirmative vote of at least the number of directors the affirmative vote of whom is required by such provision. 8.7 Certificate of Incorporation. Notwithstanding anything to the contrary contained herein, if any provision contained in these Bylaws is inconsistent with or conflicts with a provision of the Certificate of Incorporation, such provision of these Bylaws shall be superseded by the inconsistent provision in the Certificate of Incorporation to the extent necessary to give effect to such provision in the Certificate of Incorporation. 12 EX-99.B.7.1 15 CERTIFICATE OF INCORPORATION FILED 3/12/98 1 ACE REIT, Inc. B.7.1 Certificate of Incorporation Filed March 12, 1998 1 2 CERTIFICATE OF INCORPORATION OF ACE REIT, INC. FIRST: The name of the Corporation is ACE REIT, Inc. SECOND: The registered office of ACE REIT, Inc. in the State of Delaware is located at 800 King Street, Wilmington, County of New Castle, 19801, and its registered agent shall be the Corporation itself. THIRD: The purpose of the Corporation and the nature and objects of the business to be transacted, promoted, conducted or carried out are: To engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware and maintain its status as a real estate investment trust ("REIT") within the meaning of Section 856(a) of the Internal Revenue Code of 1986, as amended, or any successor statute (the "Code"). FOURTH: The total number of shares of stock that the Corporation shall be authorized to issue is One Thousand (1,000) shares of Common Stock having a par value of One Dollar ($1.00) per share. FIFTH: The name and mailing address of the Incorporator of the Corporation is: Name Address ---- ------- Steven L. Biener P.O. Box 6066 Newark, DE 19714-6066 SIXTH: The names and mailing addresses of the sole director who shall serve until the first annual meeting of stockholders or until his successor is elected and qualify is: Name Address ---- ------- Charles A. Mannix P.O. Box 231 Wilmington, DE 19899 SEVENTH: The Board of Directors may make, add to, delete from, alter and repeal any By-law of the Corporation. 2 3 EIGHTH: No director of the Corporation shall be personally liable to the Corporation for monetary damages for breach of fiduciary duty by such director; provided, however, that this Article EIGHTH shall not eliminate or limit the liability of a director to the extent provided by law (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of the State of Delaware, or (iv) for any transaction from which the director derived an improper personal benefit. The Corporation shall indemnify its directors, officers, employees and agents against expenses, judgment, fines and amounts paid in settlement actually and reasonably incurred by them by reason of their serving in such capacity to the fullest extent permitted by the Delaware General Corporation Law. NINTH: The provisions of this Certificate of Incorporation are severable, and if the Board of Directors shall determine that any one or more of such provisions are in conflict with Part II, of Subchapter M, of Chapter 1 of Subtitle A of the Code or any other provision of the Code applicable to REITs, or other applicable federal or state laws, the conflicting provisions shall be deemed never to have constituted a part of this Certificate of Incorporation, even without any amendment to this Certificate of Incorporation; provided, that such determination by the Board of Directors shall not affect or impair the remaining provisions of this Certificate of Incorporation or render invalid or improper any action taken or omitted prior to such determination. No director shall be liable for making or failing to make such a determination. I, the undersigned, being the Incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, do make this Certificate of Incorporation, hereby declaring and certifying that this is my act and deed and that the facts herein stated are true and accordingly have hereunto set my hand and seal this 12th day of March, 1998. -------------------------------- Steven L. Biener 3 EX-99.B.7.2 16 AMENDED & RESTATED BYLAWS AS AMENDED 12/31/99 1 ACE REIT, Inc. B.7.2 Amended and Restated Bylaws Adopted December 31, 1999 2 AMENDED AND RESTATED B Y L A W S OF ACE REIT, INC. 1. OFFICES. 1.1 Offices. In addition to its registered office in the State of Delaware, the Corporation shall have a corporate office in Wilmington, Delaware, and such other offices, either within or without the State of Delaware, at such locations as the Board of Directors may from time to time determine or the business of the Corporation may require. 2. SEAL. 2.1 Seal. The Corporation shall have a seal, which shall have inscribed thereon its name and year of incorporation and the words, "Corporate Seal Delaware." 3. MEETINGS OF STOCKHOLDERS. 3.1 Annual Meetings. The annual meeting of stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as shall be determined by the Board of Directors from time to time. 3.2 Special Meetings. Special meetings of the stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as may be designated by the Chairman of the Board or by the Board of Directors. 3.3 Notice of Meetings. (a) Notices of meetings of stockholders shall be in writing and shall state the place, date, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which a meeting is called. No business other than that specified in the notice thereof shall be transacted at any special meeting. (b) Such notice shall either be delivered personally, mailed, postage prepaid, or delivered by any other lawful means to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. If mailed, the notice shall be directed to the stockholder at his or her address as it appears on the records of the Corporation. Delivery of any such notice to any officer of a corporation or association or to any member of a partnership shall constitute delivery of such notice to such corporation, association, or partnership. (c) Notice of any meeting of stockholders need not be given to any stockholder if waived by such stockholder in writing, whether before or after such meeting is held, or if such stockholder shall sign the minutes or attend the meeting, except that if such stockholder attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, such stockholder shall not be deemed to have waived notice of such meeting. 3.4 Adjourned Meetings. When a meeting is adjourned to another time or place, unless otherwise provided by these Bylaws, notice need not be given of the adjourned meeting if the time and place 2 3 thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the stockholders may transact any business that might have been transacted at the original meeting. If an adjournment is for more than 30 days, or if after an adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting. 3.5 Quorum and Adjournment. Except as otherwise provided by law, by the Certificate of Incorporation of the Corporation, or by these Bylaws, the presence, in person or by proxy, of the holders of a majority of the aggregate voting power of the stock issued and outstanding, entitled to vote thereat, shall constitute a quorum for the transaction of business at all meetings of stockholders. If such majority shall not be present or represented at any meeting of stockholders, the stockholders present, although less than a quorum, shall have the power to adjourn the meeting. 3.6 Vote Required. Except as otherwise provided by law or by the Certificate of Incorporation: (a) Directors shall be elected by a plurality of the votes present in person or represented by proxy at a meeting of stockholders and entitled to vote in the election of directors, and (b) whenever any corporate action other than the election of Directors is to be taken, it shall be authorized by a majority in voting power of the shares present in person or by proxy at a meeting of stockholders and entitled to vote on the subject matter. 3.7 Manner of Voting. At each meeting of stockholders, each stockholder having the right to vote shall be entitled to vote in person or by proxy. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed before being voted. Each stockholder shall be entitled to vote each share of stock having voting power registered in his or her name on the books of the Corporation on the record date fixed for determination of stockholders entitled to vote at such meeting. 3.8 Stockholder Action Without a Meeting. Except as otherwise provided by law or by the Certificate of Incorporation, any action required to be taken at any meeting of stockholders of the corporation, or any action that may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice, and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of the holders to take the action were delivered to the Corporation. 3.9 Proxies. (a) At any meeting of stockholders, any stockholder may be represented and vote by proxy or proxies. In the event that any form of proxy shall designate two or more persons to act as proxies, a majority of such persons present at the meeting or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by the form of proxy upon all of the persons so designated unless the form of proxy shall otherwise provide. (b) The Board of Directors may, in advance of any annual or special meeting of the stockholders, prescribe additional regulations concerning the validation of the same, which are intended to be voted at any such meeting. 3.10 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the stockholders. In the absence of the Chairman of the Board, the Vice Chairman of the Board 3 4 or, in his or her absence, any Director designated by the Chairman of the Board or the Board of Directors shall act as chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the stockholders, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the stockholders, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 3.11 Procedure. At each meeting of stockholders, the chairman of the meeting shall fix and announce the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at the meeting and shall determine the order of business and all other matters of procedure. Except to the extent inconsistent with any such rules and regulations as adopted by the Board of Directors, the chairman of the meeting may establish rules, which need not be in writing, to maintain order and safety and for the conduct of the meeting. Without limiting the foregoing, he or she may: (a) restrict attendance at any time to bona fide stockholders of record and their proxies and other persons in attendance at the invitation of the chairman; (b) restrict dissemination of solicitation materials and use of audio or visual recording devices at the meeting; (c) adjourn the meeting without a vote of the stockholders, whether or not there is a quorum present; and (d) make rules governing speeches and debate, including time limits and access to microphones. The chairman of the meeting shall be entitled to act in his or her absolute discretion and his or her rulings shall not be subject to appeal. 4. DIRECTORS. 4.1 Powers and Number. The Board of Directors shall exercise all of the powers of the Corporation except such as are by law, or by the Certificate of Incorporation of this Corporation or by these Bylaws conferred upon or reserved to the stockholders of any class or classes. The number of directors that shall constitute the whole Board of Directors shall be no fewer than three (3) and no greater than nine (9), the exact number of directors to be determined from time to time by resolution adopted by the Board of Directors or the stockholders, and until otherwise determined by the Board of Directors or the stockholders, the number of directors that shall constitute the whole Board of Directors shall be three (3). 4.2 Resignations. Any Director may resign at any time by giving written notice to the Board of Directors or the Secretary. Such resignation shall take effect at the date of receipt of such notice or at any later time specified therein. Acceptance of such resignation shall not be necessary to make it effective. 4.3 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the Board of Directors. In the absence of the Chairman of the Board, the Vice Chairman of the Board, or in his absence, the Chief Executive Officer or other person designated by the Board of Directors shall act as chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the Board of Directors, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the Board of Directors, but in the absence of a 4 5 designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 4.4 Annual Meetings. The Board of Directors shall meet each year immediately following the annual meeting of stockholders, at the place where such meeting of stockholders has been held, or at such other place as shall be fixed by the person presiding over the meeting of the stockholders, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. In the event that in any year Directors are elected by written consent in lieu of an annual meeting of stockholders, the Board of Directors shall meet in such year as soon as practicable after receipt of such written consent by the Corporation at such time and place as shall be fixed by the Chairman of the Board, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. 4.5 Regular Meetings. Regular meetings of the Board of Directors shall be held on such dates and at such times and places, within or without the state of Delaware, as shall from time to time be determined by the Board of Directors. In the absence of any such determination, such meetings shall be held at such times and places, within or without the State of Delaware, as shall be designated by the Chairman of the Board on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex or by electronic mail or by other electronic means, or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. 4.6 Special Meetings. Special meetings of the Board of Directors shall be held at the call of the Chairman of the Board at such times and places, within or without the State of Delaware, as he or she shall designate, on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex, by electronic mail or by other electronic means or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. Special meetings shall be called by the Secretary on like notice at the written request of a majority of the Directors then in office. 4.7 Quorum and Powers of a Majority. At all meetings of the Board of Directors and of each committee thereof, a majority of the members shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which a quorum is present shall be the act of the Board of Directors or such committee, unless by express provision of law, of the Certificate of Incorporation, or of these Bylaws, a different vote is required, in which case such express provision shall govern and control. In the absence of a quorum, a majority of the members present at any meeting may, without notice other than announcement at the meeting, adjourn such meeting from time to time until a quorum is present. 4.8 Waiver of Notice. Notice of any meeting of the Board of Directors, or any committee thereof, need not be given to any member if waived by him or her in writing, whether before or after such meeting is held, or if he or she shall sign the minutes or attend the meeting, except that if such Director attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, then such Director shall not be deemed to have waived notice of such meeting. 4.9 Manner of Acting. (a) Members of the Board of Directors, or any committee thereof, may participate in any meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating therein can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting. 5 6 (b) Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing, and the writings are filed with the minutes of proceedings of the Board of Directors or such committee. 4.10 Compensation. (a) The Board of Directors, by a resolution or resolutions, may fix, and from time to time change, the compensation of Directors. (b) Each Director shall be entitled to reimbursement from the Corporation for his or her reasonable expenses incurred with respect to duties as a member of the Board of Directors or any committee thereof. (c) Nothing contained in these Bylaws shall be construed to preclude any Director from serving the Corporation in any other capacity and from receiving compensation from the Corporation for service rendered to it in such other capacity. 4.11 Committees. The Board of Directors (or any committee thereof having the power and authority to do so) may designate one or more committees, each committee to consist of one or more Directors, which to the extent provided in said resolution or resolutions shall have and may exercise the powers and authority of the Board of Directors in the management of the business and affairs of the corporation; provided, however, that no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the General Corporation Law of Delaware (the "GCLD") to be submitted to stockholders for approval or (ii) adopting, amending, or repealing any bylaw of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting of such committee and not disqualified from voting, whether or not such member of members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of such absent or disqualified director. 4.12 Committee Procedure, Limitations of Committee Powers. (a) Except as otherwise provided by these Bylaws, each committee shall adopt its own rules governing the time, place and method of holding its meetings and the conduct of its proceedings and shall meet as provided by such rules or by resolution of the Board of Directors. Unless otherwise provided by these Bylaws or any such rules or resolutions, notice of the time and place of each meeting of a committee shall be given to each member of such committee as provided in Section 4.6 of these Bylaws with respect to notices of special meetings of the Board of Directors. (b) Each committee shall keep regular minutes of its proceedings and report the same to the Board of Directors when required. (c) Any member of any committee may be removed from such committee either with or without cause, at any time, by the Board of Directors at any meeting thereof. Any vacancy in any committee shall be filled by the Board of Directors in the manner prescribed by the Certificate of Incorporation or these Bylaws for the original appointment of the members of such committee. 6 7 5. OFFICERS. 5.1 Number. (a) The officers of the Corporation shall include a Chief Executive Officer, a President, one or more Vice Presidents (including one or more Executive Vice Presidents and one or more Senior Vice Presidents if deemed appropriate by the Board of Directors), a Chief Financial Officer, a Secretary, a Treasurer, and a Controller. The Board of Directors shall also elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except for the Chairman of the Board, the Vice Chairman of the Board, and the Chief Executive Officer, none of the officers of the Corporation needs to be a director of the Corporation. Any two or more offices may be held by the same person to the extent permitted by the GCLD. (b) The Chief Executive Officer shall have the power to appoint one or more employees of the Corporation as divisional or departmental vice presidents and fix the duties of such appointees. However, no such divisional or departmental vice president shall be considered as an officer of the Corporation. 5.2 Election of Officers, Qualification and Term. The Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President, the Chief Financial Officer, the Secretary and the Treasurer of the Corporation shall be elected from time to time by the Board of Directors and, except as may otherwise be expressly provided in a contract of employment duly authorized by the Board of Directors, shall hold office at the pleasure of the Board of Directors. The Board of Directors and the Chief Executive Officer also may elect such other officers as the Board of Directors or the Chief Executive Officer may from time to time deem appropriate or necessary. 5.3 Removal. Any officer elected by the Board of Directors may be removed, either with or without cause, by the Board of Directors at any meeting thereof, or to the extent delegated to the Chairman of the Board or the Chief Executive Officer, by the Chairman of the Board or the Chief Executive Officer. 5.4 Resignations. Any officer of the Corporation may resign at any time by giving written notice to the Board of Directors or to the Chairman of the Board or to the Chief Executive Officer. Such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 5.5 Compensation. The compensation of all officers of the Corporation shall be fixed by or in the manner provided by the Board of Directors from time to time, and no officer shall be prevented from receiving such compensation by reason of the fact that he or she is also a Director of the Corporation. 5.6 The Chairman of the Board. The Chairman of the Board shall have the powers and duties customarily and usually associated with the office of the Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. The Chairman of the Board shall preside at meetings of the stockholders and of the Board of Directors. 5.7 Vice Chairman of the Board. The Vice Chairman of the Board, if any, shall have the powers and duties customarily and usually associated with the office of the Vice Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. 5.8 Chief Executive Officer. The Chief Executive Officer shall have, subject to the supervision, direction and control of the Board of Directors, the general powers and duties of supervision, direction and management of the affairs and business of the Corporation usually vested in the chief executive officer of a corporation, including, without limitation, all powers necessary to direct and control the organizational and reporting relationships within the Corporation. In addition, the Chief Executive Officer shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. If at any time the office of the Chairman of the Board and the Vice Chairman of the Board shall not be 7 8 filled, or in the event of the temporary absence or disability of the Chairman of the Board and the Vice Chairman of the Board, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board. 5.9 The President. The President shall serve as chief operating officer, shall have the powers and duties customarily and usually associated with the office of the President and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.10 The Vice Presidents. Each Vice President shall have such powers and duties customarily and usually associated with the office of Vice President and shall have such other powers and perform such other duties as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, or the President. 5.11 The Chief Financial Officer. The Chief Financial Officer shall be responsible for the financial affairs of the Corporation, including overseeing the duties performed by the Treasurer of the Corporation. In addition, the Chief Financial Officer shall have such powers and duties customarily and usually associated with the office of the Chief Financial Officer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.12 The Secretary and the Assistant Secretary. (a) The Secretary shall attend meetings of the Board of Directors and meetings of the stockholders and record all votes and minutes of all such proceedings in a book kept for such purpose. In addition, the Secretary shall have such powers and duties customarily and usually associated with the office of Secretary and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors, the Chief Executive Officer, or the President. (b) Each Assistant Secretary shall have such powers and perform such duties customarily and usually associated with the office of Assistant Secretary and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Secretary. In case of the absence or disability of the Secretary, the Assistant Secretary designated by the Chief Executive Officer (or, in the absence of such designation, by the Secretary) shall perform the duties and exercise the powers of the Secretary. 5.13 The Treasurer and the Assistant Treasurer. (a) The Treasurer shall have custody of the Corporation's funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit or cause to be deposited moneys or other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall also maintain adequate records of all assets, liabilities, and transactions of the Corporation and shall see that adequate audits thereof are currently and regularly made. In addition, the Treasurer shall have such powers and duties customarily and usually associated with the office of Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. (b) Each Assistant Treasurer shall have such powers and perform such duties customarily and usually associated with the office of Assistant Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Treasurer. In case of the absence or disability of the Treasurer, the Assistant Treasurer designated by the Chief Executive Officer (or, in the absence of such designation, by the Treasurer) shall perform the duties and exercise the powers of the Treasurer. 5.14 Controller. The Controller shall be responsible for maintaining the accounting records and statements, and shall properly account for all monies and obligations due the Corporation and all properties, assets, and liabilities of the Corporation. The Controller shall render to the Chairman of the Board, the President 8 9 or the Chief Financial Officer such periodic reports covering the results of operations of the Corporation as may be required by either of them or by law. In addition, the Controller shall have such powers and duties customarily and usually associated with the office of Controller and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. 6. STOCK 6.1 Certificates. Certificates for shares of stock of the Corporation shall be issued under the seal of the Corporation, or a facsimile thereof, and shall be numbered and shall be entered in the books of the Corporation as they are issued. Each certificate shall bear a serial number, shall exhibit the holder's name and the number of shares evidenced thereby, and shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the Chief Executive Officer or the President or any Vice President, and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person or entity were such officer, transfer agent, or registrar at the date of issue. 6.2 Transfers. Transfers of stock of the Corporation shall be made on the books of the Corporation only upon surrender to the Corporation of a certificate (if any) for the shares duly endorsed or accompanied by proper evidence of succession, assignment, or authority to transfer, provided such succession, assignment, or transfer is not prohibited by the Certificate of Incorporation, these Bylaws, applicable law or contract. Thereupon, the Corporation shall issue a new certificate (if requested) to the person entitled thereto, cancel the old certificate (if any), and record the transaction upon its books. 6.3 Lost, Stolen, or Destroyed Certificates. Any person claiming a certificate of stock to be lost, stolen, or destroyed shall make an affidavit or an affirmation of that fact, and shall give the Corporation a bond of indemnity in satisfactory form and with one or more satisfactory sureties, whereupon a new certificate (if requested) may be issued of the same tenor and for the same number of shares as the one alleged to be lost, stolen, or destroyed. 6.4 Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares as the person entitled to exercise the rights of a stockholder and shall not be bound to recognize any equitable or other claim to or interest in any such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by the GCLD. 6.5 Additional Powers of the Board. (a) In addition to those powers set forth in Section 4.1, the Board of Directors shall have power and authority to make all such rules and regulations as it shall deem expedient concerning the issue, transfer, and registration of certificates for shares of stock of the Corporation, including the use of uncertificated shares of stock subject to the provisions of the GCLD. (b) The Board of Directors may appoint and remove transfer agents and registrars of transfers, and may require all stock certificates to bear the signature of any such transfer agent and/or any such registrar of transfers. 7. INDEMNIFICATION 7.1 Each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or the person of whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the 9 10 Corporation, as a director, officer, employee, or agent of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to employee benefit plans, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the GCLD, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expenses, liability, and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of his or her heirs, executors, and administrators; provided, however, that, except as provided in this Article 7, the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if authorized by the Board of Directors of the Corporation. Any indemnification under this Article 7 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard set forth in the GCLD. Such a determination shall be made (a) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum; (b) by a committee of such directors designated by majority vote of such directors, even though less than a quorum; (c) by independent legal counsel (compensated by the Corporation) in a written opinion; (d) by the stockholders; or (e) in any other manner permitted by the GCLD. In addition to the right to indemnification conferred in this Article 7, each of the above persons shall have the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the GCLD requires, the payment of such expenses incurred by a present director or officer in his or her capacity as a director or officer of the corporation (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such present director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Article 7 or otherwise. The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers. The right to indemnification and to an advancement of expenses conferred in this Article 7 shall be a contract right. 7.2 If a claim under Section 7.1 of this Article 7 is not paid in full by the Corporation within 30 days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim (including attorneys' fees). 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 Corporation) that the claimant has not met the standard of conduct which makes it permissible under the GCLD for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD, nor an actual determination by the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) that the claimant has not met such 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. In any suit brought by the claimant to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the claimant is not entitled to be indemnified, or to such advancement of expenses, under this Article 7 or otherwise shall be on the Corporation. 7.3 The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article 7, shall not be exclusive of any other right 10 11 that any person may have or hereafter acquire under any statute, provision of the certificate of incorporation of the Corporation, this bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. 7.4 The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee, or agent of the Corporation or another corporation, partnership, joint venture, trust, or other enterprise against any such expense, liability, or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability, or loss under the GCLD. 7.5 The Corporation may enter into an indemnity agreement with any director, officer, employee, or agent of the Corporation, or of another corporation, partnership, joint venture, trust, or other enterprise, upon terms and conditions that the Board of Directors deems appropriate, as long as the provisions of the agreement are not impermissible under applicable law. 7.6 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.7 In case any provision in this Article 7 shall be determined at any time to be unenforceable in any respect, the other provisions shall not in any way be affected or impaired thereby, and the affected provision shall be given the fullest possible enforcement in the circumstances, it being the intention of the Corporation to afford indemnification and advancement of expenses to the persons indemnified hereby to the fullest extent permitted by law. 7.8 The Corporation may, by action of the Board of Directors, authorize one or more officers to grant rights to indemnification and advancement of expenses to former directors and officers or to other employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances. 8. MISCELLANEOUS 8.1 Place and Inspection of Books. (a) The books of the Corporation other than such books as are required by law to be kept within the State of Delaware shall be kept in such place or places either within or without the State of Delaware as the Board of Directors may from time to time determine. (b) At least ten days before each meeting of stockholders, the officer in charge of the stock ledger of the Corporation shall prepare a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. (c) The Board of Directors shall determine from time to time whether and, if allowed, when and under what conditions and regulations the accounts and books of the Corporation (except such as may be by law specifically open to inspection or as otherwise provided by these Bylaws) or any of them shall be open to the inspection of the stockholders and the stockholders' rights in respect thereof. 8.2 Voting Shares in Other Corporations. The Chief Executive Officer, the President, the Chief Financial Officer or any other officer of the Corporation designated by the Board of Directors may vote any and all shares held by the Corporation in any other corporation. 11 12 8.3 Fiscal Year. The fiscal year of the Corporation shall be such fiscal year as the Board of Directors from time to time by resolution shall determine. 8.4 Gender/Number. As used in these Bylaws, the masculine, feminine, or neuter gender, and the singular or plural number, shall each include the others whenever the context so indicates. 8.5 Paragraph Titles. The titles of the paragraphs have been inserted as a matter of reference only and shall not control or affect the meaning or construction of any of the terms and provisions hereof. 8.6 Amendment. These Bylaws may be altered, amended, or repealed by (a) the affirmative vote of 80% or more of the aggregate number of votes that the holders of the then outstanding shares of common stock and preferred stock are entitled to cast on the amendment, or (b) by resolution adopted by the affirmative vote of not less than a majority of the Directors in office, at any annual or regular meeting of the Board of Directors or at any special meeting of the Board of Directors if notice of the proposed alteration, amendment, or repeal be contained in written notice of such special meeting. Notwithstanding the foregoing, the amendment of any provision of these Bylaws that requires an affirmative vote in excess of a majority of the Directors in office shall require the affirmative vote of at least the number of directors the affirmative vote of whom is required by such provision. 8.7 Certificate of Incorporation. Notwithstanding anything to the contrary contained herein, if any provision contained in these Bylaws is inconsistent with or conflicts with a provision of the Certificate of Incorporation, such provision of these Bylaws shall be superseded by the inconsistent provision in the Certificate of Incorporation to the extent necessary to give effect to such provision in the Certificate of Incorporation. 12 EX-99.B.8.2 17 AMENDED & RESTATED BYLAWS AS AMENDED 12/31/99 1 Conectiv Resource Partners, Inc B.8.2 Amended and Restated Bylaws Adopted December 31, 1999 2 AMENDED AND RESTATED B Y L A W S OF CONECTIV RESOURCE PARTNERS, INC. 1. OFFICES. 1.1 Offices. In addition to its registered office in the State of Delaware, the Corporation shall have a corporate office in Wilmington, Delaware, and such other offices, either within or without the State of Delaware, at such locations as the Board of Directors may from time to time determine or the business of the Corporation may require. 2. SEAL. 2.1 Seal. The Corporation shall have a seal, which shall have inscribed thereon its name and year of incorporation and the words, "Corporate Seal New Jersey." 3. MEETINGS OF STOCKHOLDERS. 3.1 Annual Meetings. The annual meeting of stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as shall be determined by the Board of Directors from time to time. 3.2 Special Meetings. Special meetings of the stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as may be designated by the Chairman of the Board or by the Board of Directors. 3.3 Notice of Meetings. (a) Notices of meetings of stockholders shall be in writing and shall state the place, date, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which a meeting is called. No business other than that specified in the notice thereof shall be transacted at any special meeting. (b) Such notice shall either be delivered personally, mailed, postage prepaid, or delivered by any other lawful means to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. If mailed, the notice shall be directed to the stockholder at his or her address as it appears on the records of the Corporation. Delivery of any such notice to any officer of a corporation or association or to any member of a partnership shall constitute delivery of such notice to such corporation, association, or partnership. (c) Notice of any meeting of stockholders need not be given to any stockholder if waived by such stockholder in writing, whether before or after such meeting is held, or if such stockholder shall sign the minutes or attend the meeting, except that if such stockholder attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, such stockholder shall not be deemed to have waived notice of such meeting. 3.4 Adjourned Meetings. When a meeting is adjourned to another time or place, unless otherwise provided by these Bylaws, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the stockholders may transact any business that might have been transacted at the original meeting. If an adjournment 2 3 is for more than 30 days, or if after an adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting. 3.5 Quorum and Adjournment. Except as otherwise provided by law, by the Certificate of Incorporation of the Corporation, or by these Bylaws, the presence, in person or by proxy, of the holders of a majority of the aggregate voting power of the stock issued and outstanding, entitled to vote thereat, shall constitute a quorum for the transaction of business at all meetings of stockholders. If such majority shall not be present or represented at any meeting of stockholders, the stockholders present, although less than a quorum, shall have the power to adjourn the meeting. 3.6 Vote Required. Except as otherwise provided by law or by the Certificate of Incorporation: (a) Directors shall be elected by a plurality of the votes present in person or represented by proxy at a meeting of stockholders and entitled to vote in the election of directors, and (b) whenever any corporate action other than the election of Directors is to be taken, it shall be authorized by a majority in voting power of the shares present in person or by proxy at a meeting of stockholders and entitled to vote on the subject matter. 3.7 Manner of Voting. At each meeting of stockholders, each stockholder having the right to vote shall be entitled to vote in person or by proxy. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed before being voted. Each stockholder shall be entitled to vote each share of stock having voting power registered in his or her name on the books of the Corporation on the record date fixed for determination of stockholders entitled to vote at such meeting. 3.8 Stockholder Action Without a Meeting. Except as otherwise provided by law or by the Certificate of Incorporation, any action required to be taken at any meeting of stockholders of the corporation, or any action that may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice, and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of the holders to take the action were delivered to the Corporation. 3.9 Proxies. (a) At any meeting of stockholders, any stockholder may be represented and vote by proxy or proxies. In the event that any form of proxy shall designate two or more persons to act as proxies, a majority of such persons present at the meeting or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by the form of proxy upon all of the persons so designated unless the form of proxy shall otherwise provide. (b) The Board of Directors may, in advance of any annual or special meeting of the stockholders, prescribe additional regulations concerning the validation of the same, which are intended to be voted at any such meeting. 3.10 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the stockholders. In the absence of the Chairman of the Board, the Vice Chairman of the Board or, in his or her absence, any Director designated by the Chairman of the Board or the Board of Directors shall act as chairman of the meeting. 3 4 The Secretary of the Corporation shall act as secretary of all meetings of the stockholders, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the stockholders, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 3.11 Procedure. At each meeting of stockholders, the chairman of the meeting shall fix and announce the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at the meeting and shall determine the order of business and all other matters of procedure. Except to the extent inconsistent with any such rules and regulations as adopted by the Board of Directors, the chairman of the meeting may establish rules, which need not be in writing, to maintain order and safety and for the conduct of the meeting. Without limiting the foregoing, he or she may: (a) restrict attendance at any time to bona fide stockholders of record and their proxies and other persons in attendance at the invitation of the chairman; (b) restrict dissemination of solicitation materials and use of audio or visual recording devices at the meeting; (c) adjourn the meeting without a vote of the stockholders, whether or not there is a quorum present; and (d) make rules governing speeches and debate, including time limits and access to microphones. The chairman of the meeting shall be entitled to act in his or her absolute discretion and his or her rulings shall not be subject to appeal. 4. DIRECTORS. 4.1 Powers and Number. The Board of Directors shall exercise all of the powers of the Corporation except such as are by law, or by the Certificate of Incorporation of this Corporation or by these Bylaws conferred upon or reserved to the stockholders of any class or classes. The number of directors that shall constitute the whole Board of Directors shall be no fewer than three (3) and no greater than nine (9), the exact number of directors to be determined from time to time by resolution adopted by the Board of Directors or the stockholders, and until otherwise determined by the Board of Directors or the stockholders, the number of directors that shall constitute the whole Board of Directors shall be three (3). 4.2 Resignations. Any Director may resign at any time by giving written notice to the Board of Directors or the Secretary. Such resignation shall take effect at the date of receipt of such notice or at any later time specified therein. Acceptance of such resignation shall not be necessary to make it effective. 4.3 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the Board of Directors. In the absence of the Chairman of the Board, the Vice Chairman of the Board, or in his absence, the Chief Executive Officer or other person designated by the Board of Directors shall act as chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the Board of Directors, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the Board of Directors, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 4 5 4.4 Annual Meetings. The Board of Directors shall meet each year immediately following the annual meeting of stockholders, at the place where such meeting of stockholders has been held, or at such other place as shall be fixed by the person presiding over the meeting of the stockholders, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. In the event that in any year Directors are elected by written consent in lieu of an annual meeting of stockholders, the Board of Directors shall meet in such year as soon as practicable after receipt of such written consent by the Corporation at such time and place as shall be fixed by the Chairman of the Board, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. 4.5 Regular Meetings. Regular meetings of the Board of Directors shall be held on such dates and at such times and places, within or without the state of Delaware, as shall from time to time be determined by the Board of Directors. In the absence of any such determination, such meetings shall be held at such times and places, within or without the State of Delaware, as shall be designated by the Chairman of the Board on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex or by electronic mail or by other electronic means, or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. 4.6 Special Meetings. Special meetings of the Board of Directors shall be held at the call of the Chairman of the Board at such times and places, within or without the State of Delaware, as he or she shall designate, on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex, by electronic mail or by other electronic means or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. Special meetings shall be called by the Secretary on like notice at the written request of a majority of the Directors then in office. 4.7 Quorum and Powers of a Majority. At all meetings of the Board of Directors and of each committee thereof, a majority of the members shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which a quorum is present shall be the act of the Board of Directors or such committee, unless by express provision of law, of the Certificate of Incorporation, or of these Bylaws, a different vote is required, in which case such express provision shall govern and control. In the absence of a quorum, a majority of the members present at any meeting may, without notice other than announcement at the meeting, adjourn such meeting from time to time until a quorum is present. 4.8 Waiver of Notice. Notice of any meeting of the Board of Directors, or any committee thereof, need not be given to any member if waived by him or her in writing, whether before or after such meeting is held, or if he or she shall sign the minutes or attend the meeting, except that if such Director attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, then such Director shall not be deemed to have waived notice of such meeting. 4.9 Manner of Acting. (a) Members of the Board of Directors, or any committee thereof, may participate in any meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating therein can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting. (b) Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board of Directors or 5 6 such committee, as the case may be, consent thereto in writing, and the writings are filed with the minutes of proceedings of the Board of Directors or such committee. 4.10 Compensation. (a) The Board of Directors, by a resolution or resolutions, may fix, and from time to time change, the compensation of Directors. (b) Each Director shall be entitled to reimbursement from the Corporation for his or her reasonable expenses incurred with respect to duties as a member of the Board of Directors or any committee thereof. (c) Nothing contained in these Bylaws shall be construed to preclude any Director from serving the Corporation in any other capacity and from receiving compensation from the Corporation for service rendered to it in such other capacity. 4.11 Committees. The Board of Directors (or any committee thereof having the power and authority to do so) may designate one or more committees, each committee to consist of one or more Directors, which to the extent provided in said resolution or resolutions shall have and may exercise the powers and authority of the Board of Directors in the management of the business and affairs of the corporation; provided, however, that no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the General Corporation Law of Delaware (the "GCLD") to be submitted to stockholders for approval or (ii) adopting, amending, or repealing any bylaw of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting of such committee and not disqualified from voting, whether or not such member of members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of such absent or disqualified director. 4.12 Committee Procedure, Limitations of Committee Powers. (a) Except as otherwise provided by these Bylaws, each committee shall adopt its own rules governing the time, place and method of holding its meetings and the conduct of its proceedings and shall meet as provided by such rules or by resolution of the Board of Directors. Unless otherwise provided by these Bylaws or any such rules or resolutions, notice of the time and place of each meeting of a committee shall be given to each member of such committee as provided in Section 4.6 of these Bylaws with respect to notices of special meetings of the Board of Directors. (b) Each committee shall keep regular minutes of its proceedings and report the same to the Board of Directors when required. (c) Any member of any committee may be removed from such committee either with or without cause, at any time, by the Board of Directors at any meeting thereof. Any vacancy in any committee shall be filled by the Board of Directors in the manner prescribed by the Certificate of Incorporation or these Bylaws for the original appointment of the members of such committee. 5. OFFICERS. 5.1 Number. (a) The officers of the Corporation shall include a Chief Executive Officer, a President, one or more Vice Presidents (including one or more Executive Vice Presidents and one or more Senior Vice Presidents if deemed appropriate by the Board of Directors), a Chief Financial Officer, a Secretary, a Treasurer, and a Controller. The Board of Directors shall also elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except for the Chairman of the Board, the Vice Chairman of the Board, and the Chief Executive Officer, none of the officers of the Corporation needs to be a director of the Corporation. Any two or more offices may be held by the same person to the extent permitted by the GCLD. 6 7 (b) The Chief Executive Officer shall have the power to appoint one or more employees of the Corporation as divisional or departmental vice presidents and fix the duties of such appointees. However, no such divisional or departmental vice president shall be considered as an officer of the Corporation. 5.2 Election of Officers, Qualification and Term. The Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President, the Chief Financial Officer, the Secretary and the Treasurer of the Corporation shall be elected from time to time by the Board of Directors and, except as may otherwise be expressly provided in a contract of employment duly authorized by the Board of Directors, shall hold office at the pleasure of the Board of Directors. The Board of Directors and the Chief Executive Officer also may elect such other officers as the Board of Directors or the Chief Executive Officer may from time to time deem appropriate or necessary. 5.3 Removal. Any officer elected by the Board of Directors may be removed, either with or without cause, by the Board of Directors at any meeting thereof, or to the extent delegated to the Chairman of the Board or the Chief Executive Officer, by the Chairman of the Board or the Chief Executive Officer. 5.4 Resignations. Any officer of the Corporation may resign at any time by giving written notice to the Board of Directors or to the Chairman of the Board or to the Chief Executive Officer. Such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 5.5 Compensation. The compensation of all officers of the Corporation shall be fixed by or in the manner provided by the Board of Directors from time to time, and no officer shall be prevented from receiving such compensation by reason of the fact that he or she is also a Director of the Corporation. 5.6 The Chairman of the Board. The Chairman of the Board shall have the powers and duties customarily and usually associated with the office of the Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. The Chairman of the Board shall preside at meetings of the stockholders and of the Board of Directors. 5.7 Vice Chairman of the Board. The Vice Chairman of the Board, if any, shall have the powers and duties customarily and usually associated with the office of the Vice Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. 5.8 Chief Executive Officer. The Chief Executive Officer shall have, subject to the supervision, direction and control of the Board of Directors, the general powers and duties of supervision, direction and management of the affairs and business of the Corporation usually vested in the chief executive officer of a corporation, including, without limitation, all powers necessary to direct and control the organizational and reporting relationships within the Corporation. In addition, the Chief Executive Officer shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. If at any time the office of the Chairman of the Board and the Vice Chairman of the Board shall not be filled, or in the event of the temporary absence or disability of the Chairman of the Board and the Vice Chairman of the Board, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board. 5.9 The President. The President shall serve as chief operating officer, shall have the powers and duties customarily and usually associated with the office of the President and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.10 The Vice Presidents. Each Vice President shall have such powers and duties customarily and usually associated with the office of Vice President and shall have such other powers and perform 7 8 such other duties as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, or the President. 5.11 The Chief Financial Officer. The Chief Financial Officer shall be responsible for the financial affairs of the Corporation, including overseeing the duties performed by the Treasurer of the Corporation. In addition, the Chief Financial Officer shall have such powers and duties customarily and usually associated with the office of the Chief Financial Officer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.12 The Secretary and the Assistant Secretary. (a) The Secretary shall attend meetings of the Board of Directors and meetings of the stockholders and record all votes and minutes of all such proceedings in a book kept for such purpose. In addition, the Secretary shall have such powers and duties customarily and usually associated with the office of Secretary and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors, the Chief Executive Officer, or the President. (b) Each Assistant Secretary shall have such powers and perform such duties customarily and usually associated with the office of Assistant Secretary and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Secretary. In case of the absence or disability of the Secretary, the Assistant Secretary designated by the Chief Executive Officer (or, in the absence of such designation, by the Secretary) shall perform the duties and exercise the powers of the Secretary. 5.13 The Treasurer and the Assistant Treasurer. (a) The Treasurer shall have custody of the Corporation's funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit or cause to be deposited moneys or other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall also maintain adequate records of all assets, liabilities, and transactions of the Corporation and shall see that adequate audits thereof are currently and regularly made. In addition, the Treasurer shall have such powers and duties customarily and usually associated with the office of Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. (b) Each Assistant Treasurer shall have such powers and perform such duties customarily and usually associated with the office of Assistant Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Treasurer. In case of the absence or disability of the Treasurer, the Assistant Treasurer designated by the Chief Executive Officer (or, in the absence of such designation, by the Treasurer) shall perform the duties and exercise the powers of the Treasurer. 5.14 Controller. The Controller shall be responsible for maintaining the accounting records and statements, and shall properly account for all monies and obligations due the Corporation and all properties, assets, and liabilities of the Corporation. The Controller shall render to the Chairman of the Board, the President or the Chief Financial Officer such periodic reports covering the results of operations of the Corporation as may be required by either of them or by law. In addition, the Controller shall have such powers and duties customarily and usually associated with the office of Controller and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. 6. STOCK 6.1 Certificates. Certificates for shares of stock of the Corporation shall be issued under the seal of the Corporation, or a facsimile thereof, and shall be numbered and shall be entered in the books of the 8 9 Corporation as they are issued. Each certificate shall bear a serial number, shall exhibit the holder's name and the number of shares evidenced thereby, and shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the Chief Executive Officer or the President or any Vice President, and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person or entity were such officer, transfer agent, or registrar at the date of issue. 6.2 Transfers. Transfers of stock of the Corporation shall be made on the books of the Corporation only upon surrender to the Corporation of a certificate (if any) for the shares duly endorsed or accompanied by proper evidence of succession, assignment, or authority to transfer, provided such succession, assignment, or transfer is not prohibited by the Certificate of Incorporation, these Bylaws, applicable law or contract. Thereupon, the Corporation shall issue a new certificate (if requested) to the person entitled thereto, cancel the old certificate (if any), and record the transaction upon its books. 6.3 Lost, Stolen, or Destroyed Certificates. Any person claiming a certificate of stock to be lost, stolen, or destroyed shall make an affidavit or an affirmation of that fact, and shall give the Corporation a bond of indemnity in satisfactory form and with one or more satisfactory sureties, whereupon a new certificate (if requested) may be issued of the same tenor and for the same number of shares as the one alleged to be lost, stolen, or destroyed. 6.4 Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares as the person entitled to exercise the rights of a stockholder and shall not be bound to recognize any equitable or other claim to or interest in any such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by the GCLD. 6.5 Additional Powers of the Board. (a) In addition to those powers set forth in Section 4.1, the Board of Directors shall have power and authority to make all such rules and regulations as it shall deem expedient concerning the issue, transfer, and registration of certificates for shares of stock of the Corporation, including the use of uncertificated shares of stock subject to the provisions of the GCLD. (b) The Board of Directors may appoint and remove transfer agents and registrars of transfers, and may require all stock certificates to bear the signature of any such transfer agent and/or any such registrar of transfers. 7. INDEMNIFICATION 7.1 Each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or the person of whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation, as a director, officer, employee, or agent of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to employee benefit plans, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the GCLD, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expenses, liability, and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of his or her heirs, executors, and administrators; provided, however, that, except as provided in this Article 7, the Corporation shall indemnify any 9 10 such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if authorized by the Board of Directors of the Corporation. Any indemnification under this Article 7 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard set forth in the GCLD. Such a determination shall be made (a) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum; (b) by a committee of such directors designated by majority vote of such directors, even though less than a quorum; (c) by independent legal counsel (compensated by the Corporation) in a written opinion; (d) by the stockholders; or (e) in any other manner permitted by the GCLD. In addition to the right to indemnification conferred in this Article 7, each of the above persons shall have the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the GCLD requires, the payment of such expenses incurred by a present director or officer in his or her capacity as a director or officer of the corporation (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such present director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Article 7 or otherwise. The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers. The right to indemnification and to an advancement of expenses conferred in this Article 7 shall be a contract right. 7.2 If a claim under Section 7.1 of this Article 7 is not paid in full by the Corporation within 30 days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim (including attorneys' fees). 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 Corporation) that the claimant has not met the standard of conduct which makes it permissible under the GCLD for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD, nor an actual determination by the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) that the claimant has not met such 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. In any suit brought by the claimant to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the claimant is not entitled to be indemnified, or to such advancement of expenses, under this Article 7 or otherwise shall be on the Corporation. 7.3 The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article 7, shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, provision of the certificate of incorporation of the Corporation, this bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. 7.4 The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee, or agent of the Corporation or another corporation, partnership, joint venture, trust, or other enterprise against any such expense, liability, or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability, or loss under the GCLD. 7.5 The Corporation may enter into an indemnity agreement with any director, officer, employee, or agent of the Corporation, or of another corporation, partnership, joint venture, trust, or other 10 11 enterprise, upon terms and conditions that the Board of Directors deems appropriate, as long as the provisions of the agreement are not impermissible under applicable law. 7.6 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.7 In case any provision in this Article 7 shall be determined at any time to be unenforceable in any respect, the other provisions shall not in any way be affected or impaired thereby, and the affected provision shall be given the fullest possible enforcement in the circumstances, it being the intention of the Corporation to afford indemnification and advancement of expenses to the persons indemnified hereby to the fullest extent permitted by law. 7.8 The Corporation may, by action of the Board of Directors, authorize one or more officers to grant rights to indemnification and advancement of expenses to former directors and officers or to other employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances. 8. MISCELLANEOUS 8.1 Place and Inspection of Books. (a) The books of the Corporation other than such books as are required by law to be kept within the State of Delaware shall be kept in such place or places either within or without the State of Delaware as the Board of Directors may from time to time determine. (b) At least ten days before each meeting of stockholders, the officer in charge of the stock ledger of the Corporation shall prepare a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. (c) The Board of Directors shall determine from time to time whether and, if allowed, when and under what conditions and regulations the accounts and books of the Corporation (except such as may be by law specifically open to inspection or as otherwise provided by these Bylaws) or any of them shall be open to the inspection of the stockholders and the stockholders' rights in respect thereof. 8.2 Voting Shares in Other Corporations. The Chief Executive Officer, the President, the Chief Financial Officer or any other officer of the Corporation designated by the Board of Directors may vote any and all shares held by the Corporation in any other corporation. 8.3 Fiscal Year. The fiscal year of the Corporation shall be such fiscal year as the Board of Directors from time to time by resolution shall determine. 8.4 Gender/Number. As used in these Bylaws, the masculine, feminine, or neuter gender, and the singular or plural number, shall each include the others whenever the context so indicates. 8.5 Paragraph Titles. The titles of the paragraphs have been inserted as a matter of reference only and shall not control or affect the meaning or construction of any of the terms and provisions hereof. 11 12 8.6 Amendment. These Bylaws may be altered, amended, or repealed by (a) the affirmative vote of 80% or more of the aggregate number of votes that the holders of the then outstanding shares of common stock and preferred stock are entitled to cast on the amendment, or (b) by resolution adopted by the affirmative vote of not less than a majority of the Directors in office, at any annual or regular meeting of the Board of Directors or at any special meeting of the Board of Directors if notice of the proposed alteration, amendment, or repeal be contained in written notice of such special meeting. Notwithstanding the foregoing, the amendment of any provision of these Bylaws that requires an affirmative vote in excess of a majority of the Directors in office shall require the affirmative vote of at least the number of directors the affirmative vote of whom is required by such provision. 8.7 Certificate of Incorporation. Notwithstanding anything to the contrary contained herein, if any provision contained in these Bylaws is inconsistent with or conflicts with a provision of the Certificate of Incorporation, such provision of these Bylaws shall be superseded by the inconsistent provision in the Certificate of Incorporation to the extent necessary to give effect to such provision in the Certificate of Incorporation. 12 EX-99.B.9.2 18 AMENDED & RESTATED BYLAWS AMENDED 12/31/99 1 Delmarva Services Company B.9.2 Amended and Restated Bylaws Adopted December 31, 1999 2 AMENDED AND RESTATED B Y L A W S OF DELMARVA SERVICES COMPANY 1. OFFICES. 1.1 Offices. In addition to its registered office in the State of Delaware, the Corporation shall have a corporate office in Wilmington, Delaware, and such other offices, either within or without the State of Delaware, at such locations as the Board of Directors may from time to time determine or the business of the Corporation may require. 2. SEAL. 2.1 Seal. The Corporation shall have a seal, which shall have inscribed thereon its name and year of incorporation and the words, "Corporate Seal Delaware." 3. MEETINGS OF STOCKHOLDERS. 3.1 Annual Meetings. The annual meeting of stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as shall be determined by the Board of Directors from time to time. 3.2 Special Meetings. Special meetings of the stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as may be designated by the Chairman of the Board or by the Board of Directors. 3.3 Notice of Meetings. (a) Notices of meetings of stockholders shall be in writing and shall state the place, date, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which a meeting is called. No business other than that specified in the notice thereof shall be transacted at any special meeting. (b) Such notice shall either be delivered personally, mailed, postage prepaid, or delivered by any other lawful means to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. If mailed, the notice shall be directed to the stockholder at his or her address as it appears on the records of the Corporation. Delivery of any such notice to any officer of a corporation or association or to any member of a partnership shall constitute delivery of such notice to such corporation, association, or partnership. (c) Notice of any meeting of stockholders need not be given to any stockholder if waived by such stockholder in writing, whether before or after such meeting is held, or if such stockholder shall sign the minutes or attend the meeting, except that if such stockholder attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, such stockholder shall not be deemed to have waived notice of such meeting. 3.4 Adjourned Meetings. When a meeting is adjourned to another time or place, unless otherwise provided by these Bylaws, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the stockholders may transact any business that might have been transacted at the original meeting. If an adjournment 2 3 is for more than 30 days, or if after an adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting. 3.5 Quorum and Adjournment. Except as otherwise provided by law, by the Certificate of Incorporation of the Corporation, or by these Bylaws, the presence, in person or by proxy, of the holders of a majority of the aggregate voting power of the stock issued and outstanding, entitled to vote thereat, shall constitute a quorum for the transaction of business at all meetings of stockholders. If such majority shall not be present or represented at any meeting of stockholders, the stockholders present, although less than a quorum, shall have the power to adjourn the meeting. 3.6 Vote Required. Except as otherwise provided by law or by the Certificate of Incorporation: (a) Directors shall be elected by a plurality of the votes present in person or represented by proxy at a meeting of stockholders and entitled to vote in the election of directors, and (b) whenever any corporate action other than the election of Directors is to be taken, it shall be authorized by a majority in voting power of the shares present in person or by proxy at a meeting of stockholders and entitled to vote on the subject matter. 3.7 Manner of Voting. At each meeting of stockholders, each stockholder having the right to vote shall be entitled to vote in person or by proxy. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed before being voted. Each stockholder shall be entitled to vote each share of stock having voting power registered in his or her name on the books of the Corporation on the record date fixed for determination of stockholders entitled to vote at such meeting. 3.8 Stockholder Action Without a Meeting. Except as otherwise provided by law or by the Certificate of Incorporation, any action required to be taken at any meeting of stockholders of the corporation, or any action that may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice, and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of the holders to take the action were delivered to the Corporation. 3.9 Proxies. (a) At any meeting of stockholders, any stockholder may be represented and vote by proxy or proxies. In the event that any form of proxy shall designate two or more persons to act as proxies, a majority of such persons present at the meeting or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by the form of proxy upon all of the persons so designated unless the form of proxy shall otherwise provide. (b) The Board of Directors may, in advance of any annual or special meeting of the stockholders, prescribe additional regulations concerning the validation of the same, which are intended to be voted at any such meeting. 3.10 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the stockholders. In the absence of the Chairman of the Board, the Vice Chairman of the Board or, in his or her absence, any Director designated by the Chairman of the Board or the Board of Directors shall act as chairman of the meeting. 3 4 The Secretary of the Corporation shall act as secretary of all meetings of the stockholders, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the stockholders, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 3.11 Procedure. At each meeting of stockholders, the chairman of the meeting shall fix and announce the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at the meeting and shall determine the order of business and all other matters of procedure. Except to the extent inconsistent with any such rules and regulations as adopted by the Board of Directors, the chairman of the meeting may establish rules, which need not be in writing, to maintain order and safety and for the conduct of the meeting. Without limiting the foregoing, he or she may: (a) restrict attendance at any time to bona fide stockholders of record and their proxies and other persons in attendance at the invitation of the chairman; (b) restrict dissemination of solicitation materials and use of audio or visual recording devices at the meeting; (c) adjourn the meeting without a vote of the stockholders, whether or not there is a quorum present; and (d) make rules governing speeches and debate, including time limits and access to microphones. The chairman of the meeting shall be entitled to act in his or her absolute discretion and his or her rulings shall not be subject to appeal. 4. DIRECTORS. 4.1 Powers and Number. The Board of Directors shall exercise all of the powers of the Corporation except such as are by law, or by the Certificate of Incorporation of this Corporation or by these Bylaws conferred upon or reserved to the stockholders of any class or classes. The number of directors that shall constitute the whole Board of Directors shall be no fewer than three (3) and no greater than nine (9), the exact number of directors to be determined from time to time by resolution adopted by the Board of Directors or the stockholders, and until otherwise determined by the Board of Directors or the stockholders, the number of directors that shall constitute the whole Board of Directors shall be three (3). 4.2 Resignations. Any Director may resign at any time by giving written notice to the Board of Directors or the Secretary. Such resignation shall take effect at the date of receipt of such notice or at any later time specified therein. Acceptance of such resignation shall not be necessary to make it effective. 4.3 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the Board of Directors. In the absence of the Chairman of the Board, the Vice Chairman of the Board, or in his absence, the Chief Executive Officer or other person designated by the Board of Directors shall act as chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the Board of Directors, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the Board of Directors, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 4 5 4.4 Annual Meetings. The Board of Directors shall meet each year immediately following the annual meeting of stockholders, at the place where such meeting of stockholders has been held, or at such other place as shall be fixed by the person presiding over the meeting of the stockholders, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. In the event that in any year Directors are elected by written consent in lieu of an annual meeting of stockholders, the Board of Directors shall meet in such year as soon as practicable after receipt of such written consent by the Corporation at such time and place as shall be fixed by the Chairman of the Board, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. 4.5 Regular Meetings. Regular meetings of the Board of Directors shall be held on such dates and at such times and places, within or without the state of Delaware, as shall from time to time be determined by the Board of Directors. In the absence of any such determination, such meetings shall be held at such times and places, within or without the State of Delaware, as shall be designated by the Chairman of the Board on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex or by electronic mail or by other electronic means, or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. 4.6 Special Meetings. Special meetings of the Board of Directors shall be held at the call of the Chairman of the Board at such times and places, within or without the State of Delaware, as he or she shall designate, on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex, by electronic mail or by other electronic means or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. Special meetings shall be called by the Secretary on like notice at the written request of a majority of the Directors then in office. 4.7 Quorum and Powers of a Majority. At all meetings of the Board of Directors and of each committee thereof, a majority of the members shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which a quorum is present shall be the act of the Board of Directors or such committee, unless by express provision of law, of the Certificate of Incorporation, or of these Bylaws, a different vote is required, in which case such express provision shall govern and control. In the absence of a quorum, a majority of the members present at any meeting may, without notice other than announcement at the meeting, adjourn such meeting from time to time until a quorum is present. 4.8 Waiver of Notice. Notice of any meeting of the Board of Directors, or any committee thereof, need not be given to any member if waived by him or her in writing, whether before or after such meeting is held, or if he or she shall sign the minutes or attend the meeting, except that if such Director attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, then such Director shall not be deemed to have waived notice of such meeting. 4.9 Manner of Acting. (a) Members of the Board of Directors, or any committee thereof, may participate in any meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating therein can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting. (b) Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board of Directors or 5 6 such committee, as the case may be, consent thereto in writing, and the writings are filed with the minutes of proceedings of the Board of Directors or such committee. 4.10 Compensation. (a) The Board of Directors, by a resolution or resolutions, may fix, and from time to time change, the compensation of Directors. (b) Each Director shall be entitled to reimbursement from the Corporation for his or her reasonable expenses incurred with respect to duties as a member of the Board of Directors or any committee thereof. (c) Nothing contained in these Bylaws shall be construed to preclude any Director from serving the Corporation in any other capacity and from receiving compensation from the Corporation for service rendered to it in such other capacity. 4.11 Committees. The Board of Directors (or any committee thereof having the power and authority to do so) may designate one or more committees, each committee to consist of one or more Directors, which to the extent provided in said resolution or resolutions shall have and may exercise the powers and authority of the Board of Directors in the management of the business and affairs of the corporation; provided, however, that no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the General Corporation Law of Delaware (the "GCLD") to be submitted to stockholders for approval or (ii) adopting, amending, or repealing any bylaw of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting of such committee and not disqualified from voting, whether or not such member of members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of such absent or disqualified director. 4.12 Committee Procedure, Limitations of Committee Powers. (a) Except as otherwise provided by these Bylaws, each committee shall adopt its own rules governing the time, place and method of holding its meetings and the conduct of its proceedings and shall meet as provided by such rules or by resolution of the Board of Directors. Unless otherwise provided by these Bylaws or any such rules or resolutions, notice of the time and place of each meeting of a committee shall be given to each member of such committee as provided in Section 4.6 of these Bylaws with respect to notices of special meetings of the Board of Directors. (b) Each committee shall keep regular minutes of its proceedings and report the same to the Board of Directors when required. (c) Any member of any committee may be removed from such committee either with or without cause, at any time, by the Board of Directors at any meeting thereof. Any vacancy in any committee shall be filled by the Board of Directors in the manner prescribed by the Certificate of Incorporation or these Bylaws for the original appointment of the members of such committee. 5. OFFICERS. 5.1 Number. (a) The officers of the Corporation shall include a Chief Executive Officer, a President, one or more Vice Presidents (including one or more Executive Vice Presidents and one or more Senior Vice Presidents if deemed appropriate by the Board of Directors), a Chief Financial Officer, a Secretary, a Treasurer, and a Controller. The Board of Directors shall also elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except for the Chairman of the Board, the Vice Chairman of the Board, and the Chief Executive Officer, none of the officers of the Corporation needs to be a director of the Corporation. Any two or more offices may be held by the same person to the extent permitted by the GCLD. 6 7 (b) The Chief Executive Officer shall have the power to appoint one or more employees of the Corporation as divisional or departmental vice presidents and fix the duties of such appointees. However, no such divisional or departmental vice president shall be considered as an officer of the Corporation. 5.2 Election of Officers, Qualification and Term. The Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President, the Chief Financial Officer, the Secretary and the Treasurer of the Corporation shall be elected from time to time by the Board of Directors and, except as may otherwise be expressly provided in a contract of employment duly authorized by the Board of Directors, shall hold office at the pleasure of the Board of Directors. The Board of Directors and the Chief Executive Officer also may elect such other officers as the Board of Directors or the Chief Executive Officer may from time to time deem appropriate or necessary. 5.3 Removal. Any officer elected by the Board of Directors may be removed, either with or without cause, by the Board of Directors at any meeting thereof, or to the extent delegated to the Chairman of the Board or the Chief Executive Officer, by the Chairman of the Board or the Chief Executive Officer. 5.4 Resignations. Any officer of the Corporation may resign at any time by giving written notice to the Board of Directors or to the Chairman of the Board or to the Chief Executive Officer. Such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 5.5 Compensation. The compensation of all officers of the Corporation shall be fixed by or in the manner provided by the Board of Directors from time to time, and no officer shall be prevented from receiving such compensation by reason of the fact that he or she is also a Director of the Corporation. 5.6 The Chairman of the Board. The Chairman of the Board shall have the powers and duties customarily and usually associated with the office of the Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. The Chairman of the Board shall preside at meetings of the stockholders and of the Board of Directors. 5.7 Vice Chairman of the Board. The Vice Chairman of the Board, if any, shall have the powers and duties customarily and usually associated with the office of the Vice Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. 5.8 Chief Executive Officer. The Chief Executive Officer shall have, subject to the supervision, direction and control of the Board of Directors, the general powers and duties of supervision, direction and management of the affairs and business of the Corporation usually vested in the chief executive officer of a corporation, including, without limitation, all powers necessary to direct and control the organizational and reporting relationships within the Corporation. In addition, the Chief Executive Officer shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. If at any time the office of the Chairman of the Board and the Vice Chairman of the Board shall not be filled, or in the event of the temporary absence or disability of the Chairman of the Board and the Vice Chairman of the Board, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board. 5.9 The President. The President shall serve as chief operating officer, shall have the powers and duties customarily and usually associated with the office of the President and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.10 The Vice Presidents. Each Vice President shall have such powers and duties customarily and usually associated with the office of Vice President and shall have such other powers and perform 7 8 such other duties as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, or the President. 5.11 The Chief Financial Officer. The Chief Financial Officer shall be responsible for the financial affairs of the Corporation, including overseeing the duties performed by the Treasurer of the Corporation. In addition, the Chief Financial Officer shall have such powers and duties customarily and usually associated with the office of the Chief Financial Officer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.12 The Secretary and the Assistant Secretary. (a) The Secretary shall attend meetings of the Board of Directors and meetings of the stockholders and record all votes and minutes of all such proceedings in a book kept for such purpose. In addition, the Secretary shall have such powers and duties customarily and usually associated with the office of Secretary and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors, the Chief Executive Officer, or the President. (b) Each Assistant Secretary shall have such powers and perform such duties customarily and usually associated with the office of Assistant Secretary and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Secretary. In case of the absence or disability of the Secretary, the Assistant Secretary designated by the Chief Executive Officer (or, in the absence of such designation, by the Secretary) shall perform the duties and exercise the powers of the Secretary. 5.13 The Treasurer and the Assistant Treasurer. (a) The Treasurer shall have custody of the Corporation's funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit or cause to be deposited moneys or other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall also maintain adequate records of all assets, liabilities, and transactions of the Corporation and shall see that adequate audits thereof are currently and regularly made. In addition, the Treasurer shall have such powers and duties customarily and usually associated with the office of Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. (b) Each Assistant Treasurer shall have such powers and perform such duties customarily and usually associated with the office of Assistant Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Treasurer. In case of the absence or disability of the Treasurer, the Assistant Treasurer designated by the Chief Executive Officer (or, in the absence of such designation, by the Treasurer) shall perform the duties and exercise the powers of the Treasurer. 5.14 Controller. The Controller shall be responsible for maintaining the accounting records and statements, and shall properly account for all monies and obligations due the Corporation and all properties, assets, and liabilities of the Corporation. The Controller shall render to the Chairman of the Board, the President or the Chief Financial Officer such periodic reports covering the results of operations of the Corporation as may be required by either of them or by law. In addition, the Controller shall have such powers and duties customarily and usually associated with the office of Controller and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. 6. STOCK 6.1 Certificates. Certificates for shares of stock of the Corporation shall be issued under the seal of the Corporation, or a facsimile thereof, and shall be numbered and shall be entered in the books of the 8 9 Corporation as they are issued. Each certificate shall bear a serial number, shall exhibit the holder's name and the number of shares evidenced thereby, and shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the Chief Executive Officer or the President or any Vice President, and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person or entity were such officer, transfer agent, or registrar at the date of issue. 6.2 Transfers. Transfers of stock of the Corporation shall be made on the books of the Corporation only upon surrender to the Corporation of a certificate (if any) for the shares duly endorsed or accompanied by proper evidence of succession, assignment, or authority to transfer, provided such succession, assignment, or transfer is not prohibited by the Certificate of Incorporation, these Bylaws, applicable law or contract. Thereupon, the Corporation shall issue a new certificate (if requested) to the person entitled thereto, cancel the old certificate (if any), and record the transaction upon its books. 6.3 Lost, Stolen, or Destroyed Certificates. Any person claiming a certificate of stock to be lost, stolen, or destroyed shall make an affidavit or an affirmation of that fact, and shall give the Corporation a bond of indemnity in satisfactory form and with one or more satisfactory sureties, whereupon a new certificate (if requested) may be issued of the same tenor and for the same number of shares as the one alleged to be lost, stolen, or destroyed. 6.4 Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares as the person entitled to exercise the rights of a stockholder and shall not be bound to recognize any equitable or other claim to or interest in any such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by the GCLD. 6.5 Additional Powers of the Board. (a) In addition to those powers set forth in Section 4.1, the Board of Directors shall have power and authority to make all such rules and regulations as it shall deem expedient concerning the issue, transfer, and registration of certificates for shares of stock of the Corporation, including the use of uncertificated shares of stock subject to the provisions of the GCLD. (b) The Board of Directors may appoint and remove transfer agents and registrars of transfers, and may require all stock certificates to bear the signature of any such transfer agent and/or any such registrar of transfers. 7. INDEMNIFICATION 7.1 Each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or the person of whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation, as a director, officer, employee, or agent of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to employee benefit plans, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the GCLD, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expenses, liability, and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of his or her heirs, executors, and administrators; provided, however, that, except as provided in this Article 7, the Corporation shall indemnify any 9 10 such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if authorized by the Board of Directors of the Corporation. Any indemnification under this Article 7 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard set forth in the GCLD. Such a determination shall be made (a) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum; (b) by a committee of such directors designated by majority vote of such directors, even though less than a quorum; (c) by independent legal counsel (compensated by the Corporation) in a written opinion; (d) by the stockholders; or (e) in any other manner permitted by the GCLD. In addition to the right to indemnification conferred in this Article 7, each of the above persons shall have the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the GCLD requires, the payment of such expenses incurred by a present director or officer in his or her capacity as a director or officer of the corporation (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such present director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Article 7 or otherwise. The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers. The right to indemnification and to an advancement of expenses conferred in this Article 7 shall be a contract right. 7.2 If a claim under Section 7.1 of this Article 7 is not paid in full by the Corporation within 30 days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim (including attorneys' fees). 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 Corporation) that the claimant has not met the standard of conduct which makes it permissible under the GCLD for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD, nor an actual determination by the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) that the claimant has not met such 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. In any suit brought by the claimant to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the claimant is not entitled to be indemnified, or to such advancement of expenses, under this Article 7 or otherwise shall be on the Corporation. 7.3 The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article 7, shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, provision of the certificate of incorporation of the Corporation, this bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. 7.4 The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee, or agent of the Corporation or another corporation, partnership, joint venture, trust, or other enterprise against any such expense, liability, or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability, or loss under the GCLD. 7.5 The Corporation may enter into an indemnity agreement with any director, officer, employee, or agent of the Corporation, or of another corporation, partnership, joint venture, trust, or other 10 11 enterprise, upon terms and conditions that the Board of Directors deems appropriate, as long as the provisions of the agreement are not impermissible under applicable law. 7.6 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.7 In case any provision in this Article 7 shall be determined at any time to be unenforceable in any respect, the other provisions shall not in any way be affected or impaired thereby, and the affected provision shall be given the fullest possible enforcement in the circumstances, it being the intention of the Corporation to afford indemnification and advancement of expenses to the persons indemnified hereby to the fullest extent permitted by law. 7.8 The Corporation may, by action of the Board of Directors, authorize one or more officers to grant rights to indemnification and advancement of expenses to former directors and officers or to other employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances. 8. MISCELLANEOUS 8.1 Place and Inspection of Books. (a) The books of the Corporation other than such books as are required by law to be kept within the State of Delaware shall be kept in such place or places either within or without the State of Delaware as the Board of Directors may from time to time determine. (b) At least ten days before each meeting of stockholders, the officer in charge of the stock ledger of the Corporation shall prepare a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. (c) The Board of Directors shall determine from time to time whether and, if allowed, when and under what conditions and regulations the accounts and books of the Corporation (except such as may be by law specifically open to inspection or as otherwise provided by these Bylaws) or any of them shall be open to the inspection of the stockholders and the stockholders' rights in respect thereof. 8.2 Voting Shares in Other Corporations. The Chief Executive Officer, the President, the Chief Financial Officer or any other officer of the Corporation designated by the Board of Directors may vote any and all shares held by the Corporation in any other corporation. 8.3 Fiscal Year. The fiscal year of the Corporation shall be such fiscal year as the Board of Directors from time to time by resolution shall determine. 8.4 Gender/Number. As used in these Bylaws, the masculine, feminine, or neuter gender, and the singular or plural number, shall each include the others whenever the context so indicates. 8.5 Paragraph Titles. The titles of the paragraphs have been inserted as a matter of reference only and shall not control or affect the meaning or construction of any of the terms and provisions hereof. 11 12 8.6 Amendment. These Bylaws may be altered, amended, or repealed by (a) the affirmative vote of 80% or more of the aggregate number of votes that the holders of the then outstanding shares of common stock and preferred stock are entitled to cast on the amendment, or (b) by resolution adopted by the affirmative vote of not less than a majority of the Directors in office, at any annual or regular meeting of the Board of Directors or at any special meeting of the Board of Directors if notice of the proposed alteration, amendment, or repeal be contained in written notice of such special meeting. Notwithstanding the foregoing, the amendment of any provision of these Bylaws that requires an affirmative vote in excess of a majority of the Directors in office shall require the affirmative vote of at least the number of directors the affirmative vote of whom is required by such provision. 8.7 Certificate of Incorporation. Notwithstanding anything to the contrary contained herein, if any provision contained in these Bylaws is inconsistent with or conflicts with a provision of the Certificate of Incorporation, such provision of these Bylaws shall be superseded by the inconsistent provision in the Certificate of Incorporation to the extent necessary to give effect to such provision in the Certificate of Incorporation. 12 EX-99.B.10.3 19 AMENDED & RESTATED BYLAWS AS AMENDED 12/31/99 1 Conectiv Communications, Inc. B.10.3 Amended and Restated Bylaws Adopted December 31, 1999 2 AMENDED AND RESTATED B Y L A W S OF CONECTIV COMMUNICATIONS, INC. 1. OFFICES. 1.1 Offices. In addition to its registered office in the State of Delaware, the Corporation shall have a corporate office in Wilmington, Delaware, and such other offices, either within or without the State of Delaware, at such locations as the Board of Directors may from time to time determine or the business of the Corporation may require. 2. SEAL. 2.1 Seal. The Corporation shall have a seal, which shall have inscribed thereon its name and year of incorporation and the words, "Corporate Seal Delaware." 3. MEETINGS OF STOCKHOLDERS. 3.1 Annual Meetings. The annual meeting of stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as shall be determined by the Board of Directors from time to time. 3.2 Special Meetings. Special meetings of the stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as may be designated by the Chairman of the Board or by the Board of Directors. 3.3 Notice of Meetings. (a) Notices of meetings of stockholders shall be in writing and shall state the place, date, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which a meeting is called. No business other than that specified in the notice thereof shall be transacted at any special meeting. (b) Such notice shall either be delivered personally, mailed, postage prepaid, or delivered by any other lawful means to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. If mailed, the notice shall be directed to the stockholder at his or her address as it appears on the records of the Corporation. Delivery of any such notice to any officer of a corporation or association or to any member of a partnership shall constitute delivery of such notice to such corporation, association, or partnership. (c) Notice of any meeting of stockholders need not be given to any stockholder if waived by such stockholder in writing, whether before or after such meeting is held, or if such stockholder shall sign the minutes or attend the meeting, except that if such stockholder attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, such stockholder shall not be deemed to have waived notice of such meeting. 3.4 Adjourned Meetings. When a meeting is adjourned to another time or place, unless otherwise provided by these Bylaws, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the stockholders may transact any business that might have been transacted at the original meeting. If an adjournment 2 3 is for more than 30 days, or if after an adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting. 3.5 Quorum and Adjournment. Except as otherwise provided by law, by the Certificate of Incorporation of the Corporation, or by these Bylaws, the presence, in person or by proxy, of the holders of a majority of the aggregate voting power of the stock issued and outstanding, entitled to vote thereat, shall constitute a quorum for the transaction of business at all meetings of stockholders. If such majority shall not be present or represented at any meeting of stockholders, the stockholders present, although less than a quorum, shall have the power to adjourn the meeting. 3.6 Vote Required. Except as otherwise provided by law or by the Certificate of Incorporation: (a) Directors shall be elected by a plurality of the votes present in person or represented by proxy at a meeting of stockholders and entitled to vote in the election of directors, and (b) whenever any corporate action other than the election of Directors is to be taken, it shall be authorized by a majority in voting power of the shares present in person or by proxy at a meeting of stockholders and entitled to vote on the subject matter. 3.7 Manner of Voting. At each meeting of stockholders, each stockholder having the right to vote shall be entitled to vote in person or by proxy. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed before being voted. Each stockholder shall be entitled to vote each share of stock having voting power registered in his or her name on the books of the Corporation on the record date fixed for determination of stockholders entitled to vote at such meeting. 3.8 Stockholder Action Without a Meeting. Except as otherwise provided by law or by the Certificate of Incorporation, any action required to be taken at any meeting of stockholders of the corporation, or any action that may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice, and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of the holders to take the action were delivered to the Corporation. 3.9 Proxies. (a) At any meeting of stockholders, any stockholder may be represented and vote by proxy or proxies. In the event that any form of proxy shall designate two or more persons to act as proxies, a majority of such persons present at the meeting or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by the form of proxy upon all of the persons so designated unless the form of proxy shall otherwise provide. (b) The Board of Directors may, in advance of any annual or special meeting of the stockholders, prescribe additional regulations concerning the validation of the same, which are intended to be voted at any such meeting. 3.10 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the stockholders. In the absence of the Chairman of the Board, the Vice Chairman of the Board or, in his or her absence, any Director designated by the Chairman of the Board or the Board of Directors shall act as chairman of the meeting. 3 4 The Secretary of the Corporation shall act as secretary of all meetings of the stockholders, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the stockholders, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 3.11 Procedure. At each meeting of stockholders, the chairman of the meeting shall fix and announce the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at the meeting and shall determine the order of business and all other matters of procedure. Except to the extent inconsistent with any such rules and regulations as adopted by the Board of Directors, the chairman of the meeting may establish rules, which need not be in writing, to maintain order and safety and for the conduct of the meeting. Without limiting the foregoing, he or she may: (a) restrict attendance at any time to bona fide stockholders of record and their proxies and other persons in attendance at the invitation of the chairman; (b) restrict dissemination of solicitation materials and use of audio or visual recording devices at the meeting; (c) adjourn the meeting without a vote of the stockholders, whether or not there is a quorum present; and (d) make rules governing speeches and debate, including time limits and access to microphones. The chairman of the meeting shall be entitled to act in his or her absolute discretion and his or her rulings shall not be subject to appeal. 4. DIRECTORS. 4.1 Powers and Number. The Board of Directors shall exercise all of the powers of the Corporation except such as are by law, or by the Certificate of Incorporation of this Corporation or by these Bylaws conferred upon or reserved to the stockholders of any class or classes. The number of directors that shall constitute the whole Board of Directors shall be no fewer than three (3) and no greater than nine (9), the exact number of directors to be determined from time to time by resolution adopted by the Board of Directors or the stockholders, and until otherwise determined by the Board of Directors or the stockholders, the number of directors that shall constitute the whole Board of Directors shall be three (3). 4.2 Resignations. Any Director may resign at any time by giving written notice to the Board of Directors or the Secretary. Such resignation shall take effect at the date of receipt of such notice or at any later time specified therein. Acceptance of such resignation shall not be necessary to make it effective. 4.3 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the Board of Directors. In the absence of the Chairman of the Board, the Vice Chairman of the Board, or in his absence, the Chief Executive Officer or other person designated by the Board of Directors shall act as chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the Board of Directors, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the Board of Directors, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 4 5 4.4 Annual Meetings. The Board of Directors shall meet each year immediately following the annual meeting of stockholders, at the place where such meeting of stockholders has been held, or at such other place as shall be fixed by the person presiding over the meeting of the stockholders, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. In the event that in any year Directors are elected by written consent in lieu of an annual meeting of stockholders, the Board of Directors shall meet in such year as soon as practicable after receipt of such written consent by the Corporation at such time and place as shall be fixed by the Chairman of the Board, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. 4.5 Regular Meetings. Regular meetings of the Board of Directors shall be held on such dates and at such times and places, within or without the state of Delaware, as shall from time to time be determined by the Board of Directors. In the absence of any such determination, such meetings shall be held at such times and places, within or without the State of Delaware, as shall be designated by the Chairman of the Board on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex or by electronic mail or by other electronic means, or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. 4.6 Special Meetings. Special meetings of the Board of Directors shall be held at the call of the Chairman of the Board at such times and places, within or without the State of Delaware, as he or she shall designate, on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex, by electronic mail or by other electronic means or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. Special meetings shall be called by the Secretary on like notice at the written request of a majority of the Directors then in office. 4.7 Quorum and Powers of a Majority. At all meetings of the Board of Directors and of each committee thereof, a majority of the members shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which a quorum is present shall be the act of the Board of Directors or such committee, unless by express provision of law, of the Certificate of Incorporation, or of these Bylaws, a different vote is required, in which case such express provision shall govern and control. In the absence of a quorum, a majority of the members present at any meeting may, without notice other than announcement at the meeting, adjourn such meeting from time to time until a quorum is present. 4.8 Waiver of Notice. Notice of any meeting of the Board of Directors, or any committee thereof, need not be given to any member if waived by him or her in writing, whether before or after such meeting is held, or if he or she shall sign the minutes or attend the meeting, except that if such Director attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, then such Director shall not be deemed to have waived notice of such meeting. 4.9 Manner of Acting. (a) Members of the Board of Directors, or any committee thereof, may participate in any meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating therein can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting. (b) Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board of Directors or 5 6 such committee, as the case may be, consent thereto in writing, and the writings are filed with the minutes of proceedings of the Board of Directors or such committee. 4.10 Compensation. (a) The Board of Directors, by a resolution or resolutions, may fix, and from time to time change, the compensation of Directors. (b) Each Director shall be entitled to reimbursement from the Corporation for his or her reasonable expenses incurred with respect to duties as a member of the Board of Directors or any committee thereof. (c) Nothing contained in these Bylaws shall be construed to preclude any Director from serving the Corporation in any other capacity and from receiving compensation from the Corporation for service rendered to it in such other capacity. 4.11 Committees. The Board of Directors (or any committee thereof having the power and authority to do so) may designate one or more committees, each committee to consist of one or more Directors, which to the extent provided in said resolution or resolutions shall have and may exercise the powers and authority of the Board of Directors in the management of the business and affairs of the corporation; provided, however, that no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the General Corporation Law of Delaware (the "GCLD") to be submitted to stockholders for approval or (ii) adopting, amending, or repealing any bylaw of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting of such committee and not disqualified from voting, whether or not such member of members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of such absent or disqualified director. 4.12 Committee Procedure, Limitations of Committee Powers. (a) Except as otherwise provided by these Bylaws, each committee shall adopt its own rules governing the time, place and method of holding its meetings and the conduct of its proceedings and shall meet as provided by such rules or by resolution of the Board of Directors. Unless otherwise provided by these Bylaws or any such rules or resolutions, notice of the time and place of each meeting of a committee shall be given to each member of such committee as provided in Section 4.6 of these Bylaws with respect to notices of special meetings of the Board of Directors. (b) Each committee shall keep regular minutes of its proceedings and report the same to the Board of Directors when required. (c) Any member of any committee may be removed from such committee either with or without cause, at any time, by the Board of Directors at any meeting thereof. Any vacancy in any committee shall be filled by the Board of Directors in the manner prescribed by the Certificate of Incorporation or these Bylaws for the original appointment of the members of such committee. 5. OFFICERS. 5.1 Number. (a) The officers of the Corporation shall include a Chief Executive Officer, a President, one or more Vice Presidents (including one or more Executive Vice Presidents and one or more Senior Vice Presidents if deemed appropriate by the Board of Directors), a Chief Financial Officer, a Secretary, a Treasurer, and a Controller. The Board of Directors shall also elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except for the Chairman of the Board, the Vice Chairman of the Board, and the Chief Executive Officer, none of the officers of the Corporation needs to be a director of the Corporation. Any two or more offices may be held by the same person to the extent permitted by the GCLD. 6 7 (b) The Chief Executive Officer shall have the power to appoint one or more employees of the Corporation as divisional or departmental vice presidents and fix the duties of such appointees. However, no such divisional or departmental vice president shall be considered as an officer of the Corporation. 5.2 Election of Officers, Qualification and Term. The Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President, the Chief Financial Officer, the Secretary and the Treasurer of the Corporation shall be elected from time to time by the Board of Directors and, except as may otherwise be expressly provided in a contract of employment duly authorized by the Board of Directors, shall hold office at the pleasure of the Board of Directors. The Board of Directors and the Chief Executive Officer also may elect such other officers as the Board of Directors or the Chief Executive Officer may from time to time deem appropriate or necessary. 5.3 Removal. Any officer elected by the Board of Directors may be removed, either with or without cause, by the Board of Directors at any meeting thereof, or to the extent delegated to the Chairman of the Board or the Chief Executive Officer, by the Chairman of the Board or the Chief Executive Officer. 5.4 Resignations. Any officer of the Corporation may resign at any time by giving written notice to the Board of Directors or to the Chairman of the Board or to the Chief Executive Officer. Such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 5.5 Compensation. The compensation of all officers of the Corporation shall be fixed by or in the manner provided by the Board of Directors from time to time, and no officer shall be prevented from receiving such compensation by reason of the fact that he or she is also a Director of the Corporation. 5.6 The Chairman of the Board. The Chairman of the Board shall have the powers and duties customarily and usually associated with the office of the Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. The Chairman of the Board shall preside at meetings of the stockholders and of the Board of Directors. 5.7 Vice Chairman of the Board. The Vice Chairman of the Board, if any, shall have the powers and duties customarily and usually associated with the office of the Vice Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. 5.8 Chief Executive Officer. The Chief Executive Officer shall have, subject to the supervision, direction and control of the Board of Directors, the general powers and duties of supervision, direction and management of the affairs and business of the Corporation usually vested in the chief executive officer of a corporation, including, without limitation, all powers necessary to direct and control the organizational and reporting relationships within the Corporation. In addition, the Chief Executive Officer shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. If at any time the office of the Chairman of the Board and the Vice Chairman of the Board shall not be filled, or in the event of the temporary absence or disability of the Chairman of the Board and the Vice Chairman of the Board, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board. 5.9 The President. The President shall serve as chief operating officer, shall have the powers and duties customarily and usually associated with the office of the President and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.10 The Vice Presidents. Each Vice President shall have such powers and duties customarily and usually associated with the office of Vice President and shall have such other powers and perform 7 8 such other duties as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, or the President. 5.11 The Chief Financial Officer. The Chief Financial Officer shall be responsible for the financial affairs of the Corporation, including overseeing the duties performed by the Treasurer of the Corporation. In addition, the Chief Financial Officer shall have such powers and duties customarily and usually associated with the office of the Chief Financial Officer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.12 The Secretary and the Assistant Secretary. (a) The Secretary shall attend meetings of the Board of Directors and meetings of the stockholders and record all votes and minutes of all such proceedings in a book kept for such purpose. In addition, the Secretary shall have such powers and duties customarily and usually associated with the office of Secretary and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors, the Chief Executive Officer, or the President. (b) Each Assistant Secretary shall have such powers and perform such duties customarily and usually associated with the office of Assistant Secretary and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Secretary. In case of the absence or disability of the Secretary, the Assistant Secretary designated by the Chief Executive Officer (or, in the absence of such designation, by the Secretary) shall perform the duties and exercise the powers of the Secretary. 5.13 The Treasurer and the Assistant Treasurer. (a) The Treasurer shall have custody of the Corporation's funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit or cause to be deposited moneys or other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall also maintain adequate records of all assets, liabilities, and transactions of the Corporation and shall see that adequate audits thereof are currently and regularly made. In addition, the Treasurer shall have such powers and duties customarily and usually associated with the office of Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. (b) Each Assistant Treasurer shall have such powers and perform such duties customarily and usually associated with the office of Assistant Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Treasurer. In case of the absence or disability of the Treasurer, the Assistant Treasurer designated by the Chief Executive Officer (or, in the absence of such designation, by the Treasurer) shall perform the duties and exercise the powers of the Treasurer. 5.14 Controller. The Controller shall be responsible for maintaining the accounting records and statements, and shall properly account for all monies and obligations due the Corporation and all properties, assets, and liabilities of the Corporation. The Controller shall render to the Chairman of the Board, the President or the Chief Financial Officer such periodic reports covering the results of operations of the Corporation as may be required by either of them or by law. In addition, the Controller shall have such powers and duties customarily and usually associated with the office of Controller and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. 6. STOCK 6.1 Certificates. Certificates for shares of stock of the Corporation shall be issued under the seal of the Corporation, or a facsimile thereof, and shall be numbered and shall be entered in the books of the 8 9 Corporation as they are issued. Each certificate shall bear a serial number, shall exhibit the holder's name and the number of shares evidenced thereby, and shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the Chief Executive Officer or the President or any Vice President, and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person or entity were such officer, transfer agent, or registrar at the date of issue. 6.2 Transfers. Transfers of stock of the Corporation shall be made on the books of the Corporation only upon surrender to the Corporation of a certificate (if any) for the shares duly endorsed or accompanied by proper evidence of succession, assignment, or authority to transfer, provided such succession, assignment, or transfer is not prohibited by the Certificate of Incorporation, these Bylaws, applicable law or contract. Thereupon, the Corporation shall issue a new certificate (if requested) to the person entitled thereto, cancel the old certificate (if any), and record the transaction upon its books. 6.3 Lost, Stolen, or Destroyed Certificates. Any person claiming a certificate of stock to be lost, stolen, or destroyed shall make an affidavit or an affirmation of that fact, and shall give the Corporation a bond of indemnity in satisfactory form and with one or more satisfactory sureties, whereupon a new certificate (if requested) may be issued of the same tenor and for the same number of shares as the one alleged to be lost, stolen, or destroyed. 6.4 Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares as the person entitled to exercise the rights of a stockholder and shall not be bound to recognize any equitable or other claim to or interest in any such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by the GCLD. 6.5 Additional Powers of the Board. (a) In addition to those powers set forth in Section 4.1, the Board of Directors shall have power and authority to make all such rules and regulations as it shall deem expedient concerning the issue, transfer, and registration of certificates for shares of stock of the Corporation, including the use of uncertificated shares of stock subject to the provisions of the GCLD. (b) The Board of Directors may appoint and remove transfer agents and registrars of transfers, and may require all stock certificates to bear the signature of any such transfer agent and/or any such registrar of transfers. 7. INDEMNIFICATION 7.1 Each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or the person of whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation, as a director, officer, employee, or agent of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to employee benefit plans, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the GCLD, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expenses, liability, and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of his or her heirs, executors, and administrators; provided, however, that, except as provided in this Article 7, the Corporation shall indemnify any 9 10 such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if authorized by the Board of Directors of the Corporation. Any indemnification under this Article 7 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard set forth in the GCLD. Such a determination shall be made (a) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum; (b) by a committee of such directors designated by majority vote of such directors, even though less than a quorum; (c) by independent legal counsel (compensated by the Corporation) in a written opinion; (d) by the stockholders; or (e) in any other manner permitted by the GCLD. In addition to the right to indemnification conferred in this Article 7, each of the above persons shall have the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the GCLD requires, the payment of such expenses incurred by a present director or officer in his or her capacity as a director or officer of the corporation (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such present director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Article 7 or otherwise. The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers. The right to indemnification and to an advancement of expenses conferred in this Article 7 shall be a contract right. 7.2 If a claim under Section 7.1 of this Article 7 is not paid in full by the Corporation within 30 days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim (including attorneys' fees). 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 Corporation) that the claimant has not met the standard of conduct which makes it permissible under the GCLD for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD, nor an actual determination by the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) that the claimant has not met such 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. In any suit brought by the claimant to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the claimant is not entitled to be indemnified, or to such advancement of expenses, under this Article 7 or otherwise shall be on the Corporation. 7.3 The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article 7, shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, provision of the certificate of incorporation of the Corporation, this bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. 7.4 The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee, or agent of the Corporation or another corporation, partnership, joint venture, trust, or other enterprise against any such expense, liability, or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability, or loss under the GCLD. 7.5 The Corporation may enter into an indemnity agreement with any director, officer, employee, or agent of the Corporation, or of another corporation, partnership, joint venture, trust, or other 10 11 enterprise, upon terms and conditions that the Board of Directors deems appropriate, as long as the provisions of the agreement are not impermissible under applicable law. 7.6 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.7 In case any provision in this Article 7 shall be determined at any time to be unenforceable in any respect, the other provisions shall not in any way be affected or impaired thereby, and the affected provision shall be given the fullest possible enforcement in the circumstances, it being the intention of the Corporation to afford indemnification and advancement of expenses to the persons indemnified hereby to the fullest extent permitted by law. 7.8 The Corporation may, by action of the Board of Directors, authorize one or more officers to grant rights to indemnification and advancement of expenses to former directors and officers or to other employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances. 8. MISCELLANEOUS 8.1 Place and Inspection of Books. (a) The books of the Corporation other than such books as are required by law to be kept within the State of Delaware shall be kept in such place or places either within or without the State of Delaware as the Board of Directors may from time to time determine. (b) At least ten days before each meeting of stockholders, the officer in charge of the stock ledger of the Corporation shall prepare a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. (c) The Board of Directors shall determine from time to time whether and, if allowed, when and under what conditions and regulations the accounts and books of the Corporation (except such as may be by law specifically open to inspection or as otherwise provided by these Bylaws) or any of them shall be open to the inspection of the stockholders and the stockholders' rights in respect thereof. 8.2 Voting Shares in Other Corporations. The Chief Executive Officer, the President, the Chief Financial Officer or any other officer of the Corporation designated by the Board of Directors may vote any and all shares held by the Corporation in any other corporation. 8.3 Fiscal Year. The fiscal year of the Corporation shall be such fiscal year as the Board of Directors from time to time by resolution shall determine. 8.4 Gender/Number. As used in these Bylaws, the masculine, feminine, or neuter gender, and the singular or plural number, shall each include the others whenever the context so indicates. 8.5 Paragraph Titles. The titles of the paragraphs have been inserted as a matter of reference only and shall not control or affect the meaning or construction of any of the terms and provisions hereof. 11 12 8.6 Amendment. These Bylaws may be altered, amended, or repealed by (a) the affirmative vote of 80% or more of the aggregate number of votes that the holders of the then outstanding shares of common stock and preferred stock are entitled to cast on the amendment, or (b) by resolution adopted by the affirmative vote of not less than a majority of the Directors in office, at any annual or regular meeting of the Board of Directors or at any special meeting of the Board of Directors if notice of the proposed alteration, amendment, or repeal be contained in written notice of such special meeting. Notwithstanding the foregoing, the amendment of any provision of these Bylaws that requires an affirmative vote in excess of a majority of the Directors in office shall require the affirmative vote of at least the number of directors the affirmative vote of whom is required by such provision. 8.7 Certificate of Incorporation. Notwithstanding anything to the contrary contained herein, if any provision contained in these Bylaws is inconsistent with or conflicts with a provision of the Certificate of Incorporation, such provision of these Bylaws shall be superseded by the inconsistent provision in the Certificate of Incorporation to the extent necessary to give effect to such provision in the Certificate of Incorporation. 12 EX-99.B.11.1 20 CERTIFICATE OF INCORPORATION FILED 11/2/99 1 Conectiv Communications of Virginia, Inc. B.11.1 Certificate of Incorporation Filed November 2, 1999 2 ARTICLES OF INCORPORATION OF CONECTIV COMMUNICATIONS OF VIRGINIA, INC. The undersigned, pursuant to Chapter 9 of Title 13.1 of the Code of Virginia, state(s) as follows: 1. The name of the corporation is: Conectiv Communications of Virginia, Inc. . ---------------------------------------------------------------------- 2. The number (and classes, if any) of shares the corporation is authorized to issue is (are):
NUMBER OF SHARES AUTHORIZED CLASS(ES) 1,000 common ----- ------
3. A. The corporation's initial registered office address which is the business address of the initial registered agent is: 5511 Staples Mill Road, Richmond VA 23228 -------------------------------------- ---------- (number/street) (city or town) (ZIP code) B. The registered office is physically located in the [ ] City of [ X ] County of Henrico . ------------------------------------------------------------------- 4. A. The name of the corporation's initial registered agent is Edward R. Parker . ------------------------------------------------------------------- B. The initial registered agent is (mark appropriate box): (1) An INDIVIDUAL who is a RESIDENT OF VIRGINIA and [ ] an initial director of the corporation [ X ] a member of the Virginia State Bar OR (2) [ ] a professional corporation or professional limited liability company of attorneys registered under Section 54.1-3902, Code of Virginia 5. The NAMES and ADDRESSES of the initial directors are: Howard E. Cosgrove P.O. Box 231, Wilmington, DE 19899 John C. van Roden, Jr. P.O. Box 231, Wilmington, DE 19899 Moira K. Donoghue P.O. Box 231, Wilmington, DE 19899 6. INCORPORATOR(S): Nina J. Hertz -------------------------- ------------------------------ Signature(s) Printed name(s) 3 7. The purpose of the Corporation and the nature and objects of business to be transacted, promoted, conducted or carried out is: to conduct the business of a telephone company as a public service company, and it shall have power to conduct other public service business or non-public service business to the fullest extent authorized or permitted by the laws thereof. 8. The Board of Directors may make, add to, delete from, alter and repeal any By-law of the Corporation. 9. In any proceeding brought by or in the right of the Corporation or brought by or on behalf of shareholders of the Corporation, no director or officer of the Corporation shall be liable to the Corporation or its shareholders for monetary damages with respect to any transaction, occurrence or course of conduct, whether prior or subsequent to the effective date of this Article, except for liability resulting from such person's having engaged in willful misconduct or a knowing violation of the criminal law or any federal or state securities law. The Corporation shall indemnify its directors, officers, employees and agents against expenses, judgment, fines and amounts paid in settlement actually and reasonably incurred by them by reason of their serving in such capacity to the fullest extent authorized or permitted by Virginia law. EX-99.B.11.2 21 BYLAWS 1 Conectiv Communications of Virginia, Inc. B.11.2 Bylaws 2 BYLAWS OF CONECTIV COMMUNICATIONS OF VIRGINIA, INC. 1. OFFICES. 1.1 Offices. In addition to its registered office in the Commonwealth of Virginia, the Corporation shall have a corporate office in Newark, Delaware, and such other offices, either within or without the Commonwealth of Virginia, at such locations as the Board of Directors may from time to time determine or the business of the Corporation may require. 2. SEAL. 2.1 Seal. The Corporation shall have a seal, which shall have inscribed thereon its name and year of incorporation and the words, "Corporate Seal, Virginia." 3. MEETINGS OF STOCKHOLDERS. 3.1 Annual Meetings. The annual meeting of stockholders of the Corporation shall be held on such date, at such time and at such place within or without the Commonwealth of Virginia as shall be determined by the Board of Directors from time to time. 3.2 Special Meetings. Special meetings of the stockholders of the Corporation shall be held on such date, at such time and at such place within or without the Commonwealth of Virginia as may be designated by the Chairman of the Board or by the Board of Directors. 3.3 Notice of Meetings. (a) Notices of meetings of stockholders shall be in writing and shall state the place, date, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which a meeting is called. No business other than that specified in the notice thereof shall be transacted at any special meeting. (b) Such notice shall either be delivered personally or mailed, postage prepaid, to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. If mailed, the notice shall be directed to the stockholder at his or her address as it appears on the records of the Corporation. Personal delivery of any such notice to any officer of a corporation or association or to any member of a partnership shall constitute delivery of such notice to such corporation, association, or partnership. (c) Notice of any meeting of stockholders need not be given to any stockholder if waived by such stockholder in writing, whether before or after such meeting is held, or if such stockholder shall sign the minutes or attend the meeting, except that if such stockholder attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, such stockholder shall not be deemed to have waived notice of such meeting. 3.4 Adjourned Meetings. When a meeting is adjourned to another time or place, unless otherwise provided by these Bylaws, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the stockholders may transact any business that might have been transacted at the original meeting. If an adjournment is for more than 30 days, or if after an adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting. 2 3 3.5 Quorum and Adjournment. Except as otherwise provided by law, by the Articles of Incorporation of the Corporation, or by these Bylaws, the presence, in person or by proxy, of the holders of a majority of the aggregate voting power of the stock issued and outstanding, entitled to vote thereat, shall constitute a quorum for the transaction of business at all meetings of stockholders. If such majority shall not be present or represented at any meeting of stockholders, the stockholders present, although less than a quorum, shall have the power to adjourn the meeting. 3.6 Vote Required. Except as otherwise provided by law or by the Articles of Incorporation: (a) Directors shall be elected by a plurality of the votes present in person or represented by proxy at a meeting of stockholders and entitled to vote in the election of directors, and (b) whenever any corporate action other than the election of Directors is to be taken, it shall be authorized by a majority in voting power of the shares present in person or by proxy at a meeting of stockholders and entitled to vote on the subject matter. 3.7 Manner of Voting. At each meeting of stockholders, each stockholder having the right to vote shall be entitled to vote in person or by proxy. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed before being voted. Each stockholder shall be entitled to vote each share of stock having voting power registered in his or her name on the books of the Corporation on the record date fixed for determination of stockholders entitled to vote at such meeting. 3.8 Stockholder Action Without a Meeting. Except as otherwise provided by law or by the Articles of Incorporation, any action required to be taken at any meeting of stockholders of the corporation, or any action that may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice, and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of the holders to take the action were delivered to the Corporation. 3.9 Proxies. (a) At any meeting of stockholders, any stockholder may be represented and vote by proxy or proxies appointed by a written form of proxy. In the event that any form of proxy shall designate two or more persons to act as proxies, a majority of such persons present at the meeting or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by the form of proxy upon all of the persons so designated unless the form of proxy shall otherwise provide. (b) The Board of Directors may, in advance of any annual or special meeting of the stockholders, prescribe additional regulations concerning the manner of execution and filing of proxies and the validation of the same, which are intended to be voted at any such meeting. 3.10 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the stockholders. In the absence of the Chairman of the Board, the Vice Chairman of the Board or, in his or her absence, the Chief Executive Officer or, in his or her absence, the President or, in his or her absence, any Vice President designated by the Board of Directors shall act as chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the stockholders, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the stockholders, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 3 4 3.11 Procedure. At each meeting of stockholders, the chairman of the meeting shall fix and announce the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at the meeting and shall determine the order of business and all other matters of procedure. Except to the extent inconsistent with any such rules and regulations as adopted by the Board of Directors, the chairman of the meeting may establish rules, which need not be in writing, to maintain order and safety and for the conduct of the meeting. Without limiting the foregoing, he or she may: (a) restrict attendance at any time to bona fide stockholders of record and their proxies and other persons in attendance at the invitation of the chairman; (b) restrict dissemination of solicitation materials and use of audio or visual recording devices at the meeting; (c) adjourn the meeting without a vote of the stockholders, whether or not there is a quorum present; and (d) make rules governing speeches and debate, including time limits and access to microphones. The chairman of the meeting shall be entitled to act in his or her absolute discretion and his or her rulings shall not be subject to appeal. 4. DIRECTORS. 4.1 Powers and Number. The Board of Directors shall exercise all of the powers of the Corporation except such as are by law, or by the Articles of Incorporation of this Corporation or by these Bylaws conferred upon or reserved to the stockholders of any class or classes. The number of directors that shall constitute the whole Board of Directors shall be no fewer than three (3) and no greater than nine (9), the exact number of directors to be determined from time to time by resolution adopted by the Board of Directors or the stockholders, and until otherwise determined by the Board of Directors or the stockholders, the number of directors that shall constitute the whole Board of Directors shall be three (3). 4.1 Resignations. Any Director may resign at any time by giving written notice to the Board of Directors or the Secretary. Such resignation shall take effect at the date of receipt of such notice or at any later time specified therein. Acceptance of such resignation shall not be necessary to make it effective. 4.2 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the Board of Directors. In the absence of the Chairman of the Board, the Vice Chairman of the Board, or in his absence, the Chief Executive Officer or other person designated by the Board of Directors shall act as chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the Board of Directors, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the Board of Directors, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 4.3 Annual Meetings. The Board of Directors shall meet each year immediately following the annual meeting of stockholders, at the place where such meeting of stockholders has been held, or at such other place as shall be fixed by the person presiding over the meeting of the stockholders, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. In the event that in any year Directors are elected by written consent in lieu of an annual meeting of stockholders, the Board of Directors shall meet in such year as soon as practicable after receipt of such written consent by the Corporation at such time and place as shall be fixed by the Chairman of the Board, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. 4 5 4.4 Regular Meetings. Regular meetings of the Board of Directors shall be held on such dates and at such times and places, within or without the Commonwealth of Virginia, as shall from time to time be determined by the Board of Directors. In the absence of any such determination, such meetings shall be held at such times and places, within or without the Commonwealth of Virginia, as shall be designated by the Chairman of the Board on not less than twelve hours notice to each Director, given verbally or in writing, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, or by telex, or on not less than three (3) calendar days' notice to each Director given by mail. 4.5 Special Meetings. Special meetings of the Board of Directors shall be held at the call of the Chairman of the Board at such times and places, within or without the Commonwealth of Virginia, as he or she shall designate, on not less than twelve hours notice to each Director, given verbally or in writing, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, or by telex, or on not less than three (3) calendar days' notice to each Director given by mail. Special meetings shall be called by the Secretary on like notice at the written request of a majority of the Directors then in office. 4.6 Quorum and Powers of a Majority. At all meetings of the Board of Directors and of each committee thereof, a majority of the members shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which a quorum is present shall be the act of the Board of Directors or such committee, unless by express provision of law, of the Articles of Incorporation, or of these Bylaws, a different vote is required, in which case such express provision shall govern and control. In the absence of a quorum, a majority of the members present at any meeting may, without notice other than announcement at the meeting, adjourn such meeting from time to time until a quorum is present. 4.7 Waiver of Notice. Notice of any meeting of the Board of Directors, or any committee thereof, need not be given to any member if waived by him or her in writing, whether before or after such meeting is held, or if he or she shall sign the minutes or attend the meeting, except that if such Director attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, then such Director shall not be deemed to have waived notice of such meeting. 4.8 Manner of Acting. (a) Members of the Board of Directors, or any committee thereof, may participate in any meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating therein can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting. (b) Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing, and the writings are filed with the minutes of proceedings of the Board of Directors or such committee. 4.9 Compensation. (a) The Board of Directors, by a resolution or resolutions, may fix, and from time to time change, the compensation of Directors. (b) Each Director shall be entitled to reimbursement from the Corporation for his or her reasonable expenses incurred with respect to duties as a member of the Board of Directors or any committee thereof. (c) Nothing contained in these Bylaws shall be construed to preclude any Director from serving the Corporation in any other capacity and from receiving compensation from the Corporation for service rendered to it in such other capacity. 4.10 Committees. The Board of Directors (or any committee thereof having the power and authority to do so) may designate one or more committees, each committee to consist of one or more Directors, which to the extent provided in said resolution or resolutions shall have and may exercise the powers and 5 6 authority of the Board of Directors in the management of the business and affairs of the corporation; provided, however, that no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the Stock Corporation Act of the Commonwealth of Virginia (the "SCAV") to be submitted to stockholders for approval or (ii) adopting, amending, or repealing any bylaw of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting of such committee and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of such absent or disqualified director. 4.11 Committee Procedure, Limitations of Committee Powers. (a) Except as otherwise provided by these Bylaws, each committee shall adopt its own rules governing the time, place and method of holding its meetings and the conduct of its proceedings and shall meet as provided by such rules or by resolution of the Board of Directors. Unless otherwise provided by these Bylaws or any such rules or resolutions, notice of the time and place of each meeting of a committee shall be given to each member of such committee as provided in Section 4.6 of these Bylaws with respect to notices of special meetings of the Board of Directors. (b) Each committee shall keep regular minutes of its proceedings and report the same to the Board of Directors when required. (c) Any member of any committee may be removed from such committee either with or without cause, at any time, by the Board of Directors at any meeting thereof. Any vacancy in any committee shall be filled by the Board of Directors in the manner prescribed by the Articles of Incorporation or these Bylaws for the original appointment of the members of such committee. 5. OFFICERS. 5.1 Number. (a) The officers of the Corporation shall include a Chief Executive Officer, a President, one or more Vice Presidents (including one or more Executive Vice Presidents and one or more Senior Vice Presidents if deemed appropriate by the Board of Directors), a Secretary, a Treasurer, and a Controller. The Board of Directors shall also elect a Chairman of the Board and may elect a Vice Chairman of the Board. The Board of Directors may also elect such other officers as the Board of Directors may from time to time deem appropriate or necessary. Except for the Chairman of the Board, the Vice Chairman of the Board, and the Chief Executive Officer, none of the officers of the Corporation needs to be a director of the Corporation. Any two or more offices may be held by the same person to the extent permitted by the SCAV. (b) The Board of Directors may delegate to the Chief Executive Officer or President the power to appoint one or more employees of the Corporation as divisional or departmental vice presidents and fix the duties of such appointees. However, no such divisional or departmental vice president shall be considered as an officer of the Corporation, the officers of the Corporation being limited to those officers elected by the Board of Directors. 5.2 Election of Officers, Qualification and Term. The officers of the Corporation shall be elected from time to time by the Board of Directors and, except as may otherwise be expressly provided in a contract of employment duly authorized by the Board of Directors, shall hold office at the pleasure of the Board of Directors. 5.3 Removal. Any officer elected by the Board of Directors may be removed, either with or without cause, by the Board of Directors at any meeting thereof, or to the extent delegated to the Chairman of the Board or the Chief Executive Officer, by the Chairman of the Board or the Chief Executive Officer. 5.4 Resignations. Any officer of the Corporation may resign at any time by giving written notice to the Board of Directors or to the Chairman of the Board or to the Chief Executive Officer. Such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 6 7 5.5 Salaries. The salaries of all officers of the Corporation shall be fixed by the Board of Directors from time to time, and no officer shall be prevented from receiving such salary by reason of the fact that he or she is also a Director of the Corporation. 5.6 The Chairman of the Board. The Chairman of the Board shall have the powers and duties customarily and usually associated with the office of the Chairman of the Board. The Chairman of the Board shall preside at meetings of the stockholders and of the Board of Directors. 5.7 Vice Chairman of the Board. The Vice Chairman of the Board shall have the powers and duties customarily and usually associated with the office of the Vice Chairman of the Board. 5.8 Chief Executive Officer. The Chief Executive Officer shall have, subject to the supervision, direction and control of the Board of Directors, the general powers and duties of supervision, direction and management of the affairs and business of the Corporation usually vested in the chief executive officer of a corporation, including, without limitation, all powers necessary to direct and control the organizational and reporting relationships within the Corporation. If at any time the office of the Chairman of the Board and the Vice Chairman of the Board shall not be filled, or in the event of the temporary absence or disability of the Chairman of the Board and the Vice Chairman of the Board, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board. 5.9 The President. The President shall serve as chief operating officer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.10 The Vice Presidents. Each Vice President shall have such powers and perform such duties as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, or the President. 5.11 The Secretary and the Assistant Secretary. (a) The Secretary shall attend meetings of the Board of Directors and meetings of the stockholders and record all votes and minutes of all such proceedings in a book kept for such purpose. He or she shall have all such further powers and duties as generally are incident to the position of Secretary or as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, or the President. (b) Each Assistant Secretary shall have such powers and perform such duties as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, the President, or the Secretary. In case of the absence or disability of the Secretary, the Assistant Secretary designated by the Chief Executive Officer (or, in the absence of such designation, by the Secretary) shall perform the duties and exercise the powers of the Secretary. 5.12 The Treasurer and the Assistant Treasurer. (a) The Treasurer shall have custody of the Corporation's funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit or cause to be deposited moneys or other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall also maintain adequate records of all assets, liabilities, and transactions of the Corporation and shall see that adequate audits thereof are currently and regularly made. The Treasurer shall have such other powers and perform such other duties that generally are incident to the position of Treasurer or as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, or the President. (b) Each Assistant Treasurer shall have such powers and perform such duties as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, the President, or the Treasurer. In case of the absence or disability of the Treasurer, the Assistant Treasurer designated by the Chief Executive Officer (or, in the absence of such designation, by the Treasurer) shall perform the duties and exercise the powers of the Treasurer. 7 8 5.13 Controller. The Controller shall be responsible for maintaining the accounting records and statements, and shall properly account for all monies and obligations due the Corporation and all properties, assets, and liabilities of the Corporation. The Controller shall render to the Chairman of the Board or the President such periodic reports covering the results of operations of the Corporation as may be required by either of them or by law. 6. STOCK 6.1 Certificates. Certificates for shares of stock of the Corporation shall be issued under the seal of the Corporation, or a facsimile thereof, and shall be numbered and shall be entered in the books of the Corporation as they are issued. Each certificate shall bear a serial number, shall exhibit the holder's name and the number of shares evidenced thereby, and shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the Chief Executive Officer or the President or any Vice President, and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person or entity were such officer, transfer agent, or registrar at the date of issue. 6.2 Transfers. Transfers of stock of the Corporation shall be made on the books of the Corporation only upon surrender to the Corporation of a certificate (if any) for the shares duly endorsed or accompanied by proper evidence of succession, assignment, or authority to transfer, provided such succession, assignment, or transfer is not prohibited by the Articles of Incorporation, these Bylaws, applicable law or contract. Thereupon, the Corporation shall issue a new certificate (if requested) to the person entitled thereto, cancel the old certificate (if any), and record the transaction upon its books. 6.3 Lost, Stolen, or Destroyed Certificates. Any person claiming a certificate of stock to be lost, stolen, or destroyed shall make an affidavit or an affirmation of that fact, and shall give the Corporation a bond of indemnity in satisfactory form and with one or more satisfactory sureties, whereupon a new certificate (if requested) may be issued of the same tenor and for the same number of shares as the one alleged to be lost, stolen, or destroyed. 6.4 Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares as the person entitled to exercise the rights of a stockholder and shall not be bound to recognize any equitable or other claim to or interest in any such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by the SCAV. 6.5 Additional Powers of the Board. (a) In addition to those powers set forth in Section 4.1, the Board of Directors shall have power and authority to make all such rules and regulations as it shall deem expedient concerning the issue, transfer, and registration of certificates for shares of stock of the Corporation, including the use of uncertificated shares of stock subject to the provisions of the SCAV. (b) The Board of Directors may appoint and remove transfer agents and registrars of transfers, and may require all stock certificates to bear the signature of any such transfer agent and/or any such registrar of transfers. 7. INDEMNIFICATION 7.1 Each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or the person of whom he or she is the legal representative, is or was a director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation, as a director, officer, employee, or agent of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to employee benefit plans, shall be indemnified and held harmless by the Corporation to the fullest extent authorized or permitted by the 8 9 SCAV, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expenses, liability, and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of his or her heirs, executors, and administrators; provided, however, that, except as provided in this Article 7, the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if authorized by the Board of Directors of the Corporation. Any indemnification under this Article 7 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard set forth in the SCAV. Such a determination shall be made (a) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum; (b) by a committee of such directors designated by majority vote of such directors, even though less than a quorum; (c) by independent legal counsel (compensated by the Corporation) in a written opinion; (d) by the stockholders; or (e) in any other manner permitted by the SCAV. In addition to the right to indemnification conferred in this Article 7, each of the above persons shall have the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the SCAV requires, the payment of such expenses incurred by a present director, officer, employee or agent in his or her capacity as a director, officer, employee or agent of the corporation (and not in any other capacity in which service was or is rendered by such person while a director, officer, employee or agent, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such present director, officer, employee or agent to repay all amounts so advanced if it shall ultimately be determined that such director, officer, employee or agent is not entitled to be indemnified under this Article 7 or otherwise. The right to indemnification and to an advancement of expenses conferred in this Article 7 shall be a contract right. 7.2 If a claim under Section 7.1 of this Article 7 is not paid in full by the Corporation within 30 days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim (including attorneys' fees). 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 Corporation) that the claimant has not met the standard of conduct which makes it permissible under the SCAV for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the SCAV, nor an actual determination by the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) that the claimant has not met such 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. In any suit brought by the claimant to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the claimant is not entitled to be indemnified, or to such advancement of expenses, under this Article 7 or otherwise shall be on the Corporation. 7.3 The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article 7, shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, provision of the Articles of Incorporation of the Corporation, this bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. 7.4 The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee, or agent of the Corporation or another corporation, partnership, joint venture, trust, 9 10 or other enterprise against any such expense, liability, or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability, or loss under the SCAV. 7.5 The Corporation may enter into an indemnity agreement with any director, officer, employee, or agent of the Corporation, or of another corporation, partnership, joint venture, trust, or other enterprise, upon terms and conditions that the Board of Directors deems appropriate, as long as the provisions of the agreement are not impermissible under applicable law. 7.6 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.7 In case any provision in this Article 7 shall be determined at any time to be unenforceable in any respect, the other provisions shall not in any way be affected or impaired thereby, and the affected provision shall be given the fullest possible enforcement in the circumstances, it being the intention of the Corporation to afford indemnification and advancement of expenses to the persons indemnified hereby to the fullest extent permitted by law. 7.8 The Corporation may, by action of the Board of Directors, authorize one or more officers to grant rights to indemnification and advancement of expenses to former directors and officers or to other employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances. 8. MISCELLANEOUS 8.1 Place and Inspection of Books. (a) The books of the Corporation other than such books as are required by law to be kept within the Commonwealth of Virginia shall be kept in such place or places either within or without the Commonwealth of Virginia as the Board of Directors may from time to time determine. (b) At least ten days before each meeting of stockholders, the officer in charge of the stock ledger of the Corporation shall prepare a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. (c) The Board of Directors shall determine from time to time whether and, if allowed, when and under what conditions and regulations the accounts and books of the Corporation (except such as may be by law specifically open to inspection or as otherwise provided by these Bylaws) or any of them shall be open to the inspection of the stockholders and the stockholders' rights in respect thereof. 8.2 Voting Shares in Other Corporations. The Chief Executive Officer, the President, or any other officer of the Corporation designated by the Board of Directors may vote any and all shares held by the Corporation in any other corporation. 8.3 Fiscal Year. The fiscal year of the Corporation shall be such fiscal year as the Board of Directors from time to time by resolution shall determine. 8.4 Gender/Number. As used in these Bylaws, the masculine, feminine, or neuter gender, and the singular or plural number, shall each include the others whenever the context so indicates. 10 11 8.5 Paragraph Titles. The titles of the paragraphs have been inserted as a matter of reference only and shall not control or affect the meaning or construction of any of the terms and provisions hereof. 8.6 Amendment. These Bylaws may be altered, amended, or repealed by (a) the affirmative vote of 80% or more of the aggregate number of votes that the holders of the then outstanding shares of common stock and preferred stock are entitled to cast on the amendment, or (b) by resolution adopted by the affirmative vote of not less than a majority of the Directors in office, at any annual or regular meeting of the Board of Directors or at any special meeting of the Board of Directors if notice of the proposed alteration, amendment, or repeal be contained in written notice of such special meeting. Notwithstanding the foregoing, the amendment of any provision of these Bylaws that requires an affirmative vote in excess of a majority of the Directors in office shall require the affirmative vote of at least the number of directors the affirmative vote of whom is required by such provision. 8.7 Articles of Incorporation. Notwithstanding anything to the contrary contained herein, if any provision contained in these Bylaws is inconsistent with or conflicts with a provision of the Articles of Incorporation, such provision of these Bylaws shall be superseded by the inconsistent provision in the Articles of Incorporation to the extent necessary to give effect to such provision in the Articles of Incorporation. 11 EX-99.B.12.2 22 BYLAWS 1 Conectiv Energy, Inc. B.12.2 Bylaws 1 2 BYLAWS OF CONECTIV ENERGY, INC. 1. OFFICES. 1.1 Offices. In addition to its registered office in the State of Delaware, the Corporation shall have a corporate office in Wilmington, Delaware, and such other offices, either within or without the State of Delaware, at such locations as the Board of Directors may from time to time determine or the business of the Corporation may require. 2. SEAL. 2.1 Seal. The Corporation shall have a seal, which shall have inscribed thereon its name and year of incorporation and the words, "Corporate Seal Delaware." 3. MEETINGS OF STOCKHOLDERS. 3.1 Annual Meetings. The annual meeting of stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as shall be determined by the Board of Directors from time to time. 3.2 Special Meetings. Special meetings of the stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as may be designated by the Chairman of the Board or by the Board of Directors. 3.3 Notice of Meetings. (a) Notices of meetings of stockholders shall be in writing and shall state the place, date, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which a meeting is called. No business other than that specified in the notice thereof shall be transacted at any special meeting. (b) Such notice shall either be delivered personally or mailed, postage prepaid, to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. If mailed, the notice shall be directed to the stockholder at his or her address as it appears on the records of the Corporation. Personal delivery of any such notice to any officer of a corporation or association or to any member of a partnership shall constitute delivery of such notice to such corporation, association, or partnership. (c) Notice of any meeting of stockholders need not be given to any stockholder if waived by such stockholder in writing, whether before or after such meeting is held, or if such stockholder shall sign the minutes or attend the meeting, except that if such stockholder attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, such stockholder shall not be deemed to have waived notice of such meeting. 3.4 Adjourned Meetings. When a meeting is adjourned to another time or place, unless otherwise provided by these Bylaws, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the stockholders may transact any business that might have been transacted at the original meeting. If an adjournment is for more than 30 days, or if after an adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting. 2 3 3.5 Quorum and Adjournment. Except as otherwise provided by law, by the Certificate of Incorporation of the Corporation, or by these Bylaws, the presence, in person or by proxy, of the holders of a majority of the aggregate voting power of the stock issued and outstanding, entitled to vote thereat, shall constitute a quorum for the transaction of business at all meetings of stockholders. If such majority shall not be present or represented at any meeting of stockholders, the stockholders present, although less than a quorum, shall have the power to adjourn the meeting. 3.6 Vote Required. Except as otherwise provided by law or by the Certificate of Incorporation: (a) Directors shall be elected by a plurality of the votes present in person or represented by proxy at a meeting of stockholders and entitled to vote in the election of directors, and (b) whenever any corporate action other than the election of Directors is to be taken, it shall be authorized by a majority in voting power of the shares present in person or by proxy at a meeting of stockholders and entitled to vote on the subject matter. 3.7 Manner of Voting. At each meeting of stockholders, each stockholder having the right to vote shall be entitled to vote in person or by proxy. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed before being voted. Each stockholder shall be entitled to vote each share of stock having voting power registered in his or her name on the books of the Corporation on the record date fixed for determination of stockholders entitled to vote at such meeting. 3.8 Stockholder Action Without a Meeting. Except as otherwise provided by law or by the Certificate of Incorporation, any action required to be taken at any meeting of stockholders of the corporation, or any action that may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice, and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of the holders to take the action were delivered to the Corporation. 3.9 Proxies. (a) At any meeting of stockholders, any stockholder may be represented and vote by proxy or proxies appointed by a written form of proxy. In the event that any form of proxy shall designate two or more persons to act as proxies, a majority of such persons present at the meeting or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by the form of proxy upon all of the persons so designated unless the form of proxy shall otherwise provide. (b) The Board of Directors may, in advance of any annual or special meeting of the stockholders, prescribe additional regulations concerning the manner of execution and filing of proxies and the validation of the same, which are intended to be voted at any such meeting. 3.10 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the stockholders. In the absence of the Chairman of the Board, the Vice Chairman of the Board or, in his or her absence, the Chief Executive Officer or, in his or her absence, the President or, in his or her absence, any Vice President designated by the Board of Directors shall act as chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the stockholders, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the stockholders, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 3 4 3.11 Procedure. At each meeting of stockholders, the chairman of the meeting shall fix and announce the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at the meeting and shall determine the order of business and all other matters of procedure. Except to the extent inconsistent with any such rules and regulations as adopted by the Board of Directors, the chairman of the meeting may establish rules, which need not be in writing, to maintain order and safety and for the conduct of the meeting. Without limiting the foregoing, he or she may: (a) restrict attendance at any time to bona fide stockholders of record and their proxies and other persons in attendance at the invitation of the chairman; (b) restrict dissemination of solicitation materials and use of audio or visual recording devices at the meeting; (c) adjourn the meeting without a vote of the stockholders, whether or not there is a quorum present; and (d) make rules governing speeches and debate, including time limits and access to microphones. The chairman of the meeting shall be entitled to act in his or her absolute discretion and his or her rulings shall not be subject to appeal. 4. DIRECTORS. 4.1 Powers and Number. The Board of Directors shall exercise all of the powers of the Corporation except such as are by law, or by the Certificate of Incorporation of this Corporation or by these Bylaws conferred upon or reserved to the stockholders of any class or classes. The number of directors that shall constitute the whole Board of Directors shall be no fewer than three (3) and no greater than nine (9), the exact number of directors to be determined from time to time by resolution adopted by the Board of Directors or the stockholders, and until otherwise determined by the Board of Directors or the stockholders, the number of directors that shall constitute the whole Board of Directors shall be three (3). 4.2 Resignations. Any Director may resign at any time by giving written notice to the Board of Directors or the Secretary. Such resignation shall take effect at the date of receipt of such notice or at any later time specified therein. Acceptance of such resignation shall not be necessary to make it effective. 4.3 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the Board of Directors. In the absence of the Chairman of the Board, the Vice Chairman of the Board, or in his absence, the Chief Executive Officer or other person designated by the Board of Directors shall act as chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the Board of Directors, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the Board of Directors, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 4.4 Annual Meetings. The Board of Directors shall meet each year immediately following the annual meeting of stockholders, at the place where such meeting of stockholders has been held, or at such other place as shall be fixed by the person presiding over the meeting of the stockholders, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. In the event that in any year Directors are elected by written consent in lieu of an annual meeting of stockholders, the Board of Directors shall meet in such year as soon as practicable after receipt of such written consent by the Corporation at such time and place as shall be fixed by the Chairman of the Board, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. 4 5 4.5 Regular Meetings. Regular meetings of the Board of Directors shall be held on such dates and at such times and places, within or without the state of Delaware, as shall from time to time be determined by the Board of Directors. In the absence of any such determination, such meetings shall be held at such times and places, within or without the State of Delaware, as shall be designated by the Chairman of the Board on not less than twelve hours notice to each Director, given verbally or in writing, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, or by telex, or on not less than three (3) calendar days' notice to each Director given by mail. 4.6 Special Meetings. Special meetings of the Board of Directors shall be held at the call of the Chairman of the Board at such times and places, within or without the State of Delaware, as he or she shall designate, on not less than twelve hours notice to each Director, given verbally or in writing, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, or by telex, or on not less than three (3) calendar days' notice to each Director given by mail. Special meetings shall be called by the Secretary on like notice at the written request of a majority of the Directors then in office. 4.7 Quorum and Powers of a Majority. At all meetings of the Board of Directors and of each committee thereof, a majority of the members shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which a quorum is present shall be the act of the Board of Directors or such committee, unless by express provision of law, of the Certificate of Incorporation, or of these Bylaws, a different vote is required, in which case such express provision shall govern and control. In the absence of a quorum, a majority of the members present at any meeting may, without notice other than announcement at the meeting, adjourn such meeting from time to time until a quorum is present. 4.8 Waiver of Notice. Notice of any meeting of the Board of Directors, or any committee thereof, need not be given to any member if waived by him or her in writing, whether before or after such meeting is held, or if he or she shall sign the minutes or attend the meeting, except that if such Director attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, then such Director shall not be deemed to have waived notice of such meeting. 4.9 Manner of Acting. (a) Members of the Board of Directors, or any committee thereof, may participate in any meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating therein can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting. (b) Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing, and the writings are filed with the minutes of proceedings of the Board of Directors or such committee. 4.10 Compensation. (a) The Board of Directors, by a resolution or resolutions, may fix, and from time to time change, the compensation of Directors. (b) Each Director shall be entitled to reimbursement from the Corporation for his or her reasonable expenses incurred with respect to duties as a member of the Board of Directors or any committee thereof. (c) Nothing contained in these Bylaws shall be construed to preclude any Director from serving the Corporation in any other capacity and from receiving compensation from the Corporation for service rendered to it in such other capacity. 4.11 Committees. The Board of Directors (or any committee thereof having the power and authority to do so) may designate one or more committees, each committee to consist of one or more Directors, which to the extent provided in said resolution or resolutions shall have and may exercise the powers and 5 6 authority of the Board of Directors in the management of the business and affairs of the corporation; provided, however, that no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the General Corporation Law of Delaware (the "GCLD") to be submitted to stockholders for approval or (ii) adopting, amending, or repealing any bylaw of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting of such committee and not disqualified from voting, whether or not such member of members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of such absent or disqualified director. 4.12 Committee Procedure, Limitations of Committee Powers. (a) Except as otherwise provided by these Bylaws, each committee shall adopt its own rules governing the time, place and method of holding its meetings and the conduct of its proceedings and shall meet as provided by such rules or by resolution of the Board of Directors. Unless otherwise provided by these Bylaws or any such rules or resolutions, notice of the time and place of each meeting of a committee shall be given to each member of such committee as provided in Section 4.6 of these Bylaws with respect to notices of special meetings of the Board of Directors. (b) Each committee shall keep regular minutes of its proceedings and report the same to the Board of Directors when required. (c) Any member of any committee may be removed from such committee either with or without cause, at any time, by the Board of Directors at any meeting thereof. Any vacancy in any committee shall be filled by the Board of Directors in the manner prescribed by the Certificate of Incorporation or these Bylaws for the original appointment of the members of such committee. 5. OFFICERS. 5.1 Number. (a) The officers of the Corporation shall include a Chief Executive Officer, a President, one or more Vice Presidents (including one or more Executive Vice Presidents and one or more Senior Vice Presidents if deemed appropriate by the Board of Directors), a Secretary, a Treasurer, and a Controller. The Board of Directors shall also elect a Chairman of the Board and may elect a Vice Chairman of the Board. The Board of Directors may also elect such other officers as the Board of Directors may from time to time deem appropriate or necessary. Except for the Chairman of the Board, the Vice Chairman of the Board, and the Chief Executive Officer, none of the officers of the Corporation needs to be a director of the Corporation. Any two or more offices may be held by the same person to the extent permitted by the GCLD. (b) The Board of Directors may delegate to the Chief Executive Officer or President the power to appoint one or more employees of the Corporation as divisional or departmental vice presidents and fix the duties of such appointees. However, no such divisional or departmental vice president shall be considered as an officer of the Corporation, the officers of the Corporation being limited to those officers elected by the Board of Directors. 5.2 Election of Officers, Qualification and Term. The officers of the Corporation shall be elected from time to time by the Board of Directors and, except as may otherwise be expressly provided in a contract of employment duly authorized by the Board of Directors, shall hold office at the pleasure of the Board of Directors. 5.3 Removal. Any officer elected by the Board of Directors may be removed, either with or without cause, by the Board of Directors at any meeting thereof, or to the extent delegated to the Chairman of the Board or the Chief Executive Officer, by the Chairman of the Board or the Chief Executive Officer. 5.4 Resignations. Any officer of the Corporation may resign at any time by giving written notice to the Board of Directors or to the Chairman of the Board or to the Chief Executive Officer. Such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 6 7 5.5 Salaries. The salaries of all officers of the Corporation shall be fixed by the Board of Directors from time to time, and no officer shall be prevented from receiving such salary by reason of the fact that he or she is also a Director of the Corporation. 5.6 The Chairman of the Board. The Chairman of the Board shall have the powers and duties customarily and usually associated with the office of the Chairman of the Board. The Chairman of the Board shall preside at meetings of the stockholders and of the Board of Directors. 5.7 Vice Chairman of the Board. The Vice Chairman of the Board shall have the powers and duties customarily and usually associated with the office of the Vice Chairman of the Board. 5.8 Chief Executive Officer. The Chief Executive Officer shall have, subject to the supervision, direction and control of the Board of Directors, the general powers and duties of supervision, direction and management of the affairs and business of the Corporation usually vested in the chief executive officer of a corporation, including, without limitation, all powers necessary to direct and control the organizational and reporting relationships within the Corporation. If at any time the office of the Chairman of the Board and the Vice Chairman of the Board shall not be filled, or in the event of the temporary absence or disability of the Chairman of the Board and the Vice Chairman of the Board, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board. 5.9 The President. The President shall serve as chief operating officer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.10 The Vice Presidents. Each Vice President shall have such powers and perform such duties as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, or the President. 5.11 The Secretary and the Assistant Secretary. (a) The Secretary shall attend meetings of the Board of Directors and meetings of the stockholders and record all votes and minutes of all such proceedings in a book kept for such purpose. He or she shall have all such further powers and duties as generally are incident to the position of Secretary or as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, or the President. (b) Each Assistant Secretary shall have such powers and perform such duties as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, the President, or the Secretary. In case of the absence or disability of the Secretary, the Assistant Secretary designated by the Chief Executive Officer (or, in the absence of such designation, by the Secretary) shall perform the duties and exercise the powers of the Secretary. 5.12 The Treasurer and the Assistant Treasurer. (a) The Treasurer shall have custody of the Corporation's funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit or cause to be deposited moneys or other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall also maintain adequate records of all assets, liabilities, and transactions of the Corporation and shall see that adequate audits thereof are currently and regularly made. The Treasurer shall have such other powers and perform such other duties that generally are incident to the position of Treasurer or as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, or the President. (b) Each Assistant Treasurer shall have such powers and perform such duties as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, the President, or the Treasurer. In case of the absence or disability of the Treasurer, the Assistant Treasurer designated by the Chief Executive Officer (or, in the absence of such designation, by the Treasurer) shall perform the duties and exercise the powers of the Treasurer. 7 8 5.13 Controller. The Controller shall be responsible for maintaining the accounting records and statements, and shall properly account for all monies and obligations due the Corporation and all properties, assets, and liabilities of the Corporation. The Controller shall render to the Chairman of the Board or the President such periodic reports covering the results of operations of the Corporation as may be required by either of them or by law. 6. STOCK 6.1 Certificates. Certificates for shares of stock of the Corporation shall be issued under the seal of the Corporation, or a facsimile thereof, and shall be numbered and shall be entered in the books of the Corporation as they are issued. Each certificate shall bear a serial number, shall exhibit the holder's name and the number of shares evidenced thereby, and shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the Chief Executive Officer or the President or any Vice President, and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person or entity were such officer, transfer agent, or registrar at the date of issue. 6.2 Transfers. Transfers of stock of the Corporation shall be made on the books of the Corporation only upon surrender to the Corporation of a certificate (if any) for the shares duly endorsed or accompanied by proper evidence of succession, assignment, or authority to transfer, provided such succession, assignment, or transfer is not prohibited by the Certificate of Incorporation, these Bylaws, applicable law or contract. Thereupon, the Corporation shall issue a new certificate (if requested) to the person entitled thereto, cancel the old certificate (if any), and record the transaction upon its books. 6.3 Lost, Stolen, or Destroyed Certificates. Any person claiming a certificate of stock to be lost, stolen, or destroyed shall make an affidavit or an affirmation of that fact, and shall give the Corporation a bond of indemnity in satisfactory form and with one or more satisfactory sureties, whereupon a new certificate (if requested) may be issued of the same tenor and for the same number of shares as the one alleged to be lost, stolen, or destroyed. 6.4 Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares as the person entitled to exercise the rights of a stockholder and shall not be bound to recognize any equitable or other claim to or interest in any such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by the GCLD. 6.5 Additional Powers of the Board. (a) In addition to those powers set forth in Section 4.1, the Board of Directors shall have power and authority to make all such rules and regulations as it shall deem expedient concerning the issue, transfer, and registration of certificates for shares of stock of the Corporation, including the use of uncertificated shares of stock subject to the provisions of the GCLD. (b) The Board of Directors may appoint and remove transfer agents and registrars of transfers, and may require all stock certificates to bear the signature of any such transfer agent and/or any such registrar of transfers. 7. INDEMNIFICATION 7.1 Each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or the person of whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation, as a director, officer, employee, or agent of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to employee benefit plans, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the GCLD, as the same exists or may hereafter be 8 9 amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expenses, liability, and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of his or her heirs, executors, and administrators; provided, however, that, except as provided in this Article 7, the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if authorized by the Board of Directors of the Corporation. Any indemnification under this Article 7 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard set forth in the GCLD. Such a determination shall be made (a) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum; (b) by a committee of such directors designated by majority vote of such directors, even though less than a quorum; (c) by independent legal counsel (compensated by the Corporation) in a written opinion; (d) by the stockholders; or (e) in any other manner permitted by the GCLD. In addition to the right to indemnification conferred in this Article 7, each of the above persons shall have the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the GCLD requires, the payment of such expenses incurred by a present director or officer in his or her capacity as a director or officer of the corporation (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such present director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Article 7 or otherwise. The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers. The right to indemnification and to an advancement of expenses conferred in this Article 7 shall be a contract right. 7.2 If a claim under Section 7.1 of this Article 7 is not paid in full by the Corporation within 30 days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim (including attorneys' fees). 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 Corporation) that the claimant has not met the standard of conduct which makes it permissible under the GCLD for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD, nor an actual determination by the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) that the claimant has not met such 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. In any suit brought by the claimant to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the claimant is not entitled to be indemnified, or to such advancement of expenses, under this Article 7 or otherwise shall be on the Corporation. 7.3 The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article 7, shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, provision of the certificate of incorporation of the Corporation, this bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. 7.4 The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee, or agent of the Corporation or another corporation, partnership, joint venture, trust, 9 10 or other enterprise against any such expense, liability, or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability, or loss under the GCLD. 7.5 The Corporation may enter into an indemnity agreement with any director, officer, employee, or agent of the Corporation, or of another corporation, partnership, joint venture, trust, or other enterprise, upon terms and conditions that the Board of Directors deems appropriate, as long as the provisions of the agreement are not impermissible under applicable law. 7.6 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.7 In case any provision in this Article 7 shall be determined at any time to be unenforceable in any respect, the other provisions shall not in any way be affected or impaired thereby, and the affected provision shall be given the fullest possible enforcement in the circumstances, it being the intention of the Corporation to afford indemnification and advancement of expenses to the persons indemnified hereby to the fullest extent permitted by law. 7.8 The Corporation may, by action of the Board of Directors, authorize one or more officers to grant rights to indemnification and advancement of expenses to former directors and officers or to other employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances. 8. MISCELLANEOUS 8.1 Place and Inspection of Books. (a) The books of the Corporation other than such books as are required by law to be kept within the State of Delaware shall be kept in such place or places either within or without the State of Delaware as the Board of Directors may from time to time determine. (b) At least ten days before each meeting of stockholders, the officer in charge of the stock ledger of the Corporation shall prepare a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. (c) The Board of Directors shall determine from time to time whether and, if allowed, when and under what conditions and regulations the accounts and books of the Corporation (except such as may be by law specifically open to inspection or as otherwise provided by these Bylaws) or any of them shall be open to the inspection of the stockholders and the stockholders' rights in respect thereof. 8.2 Voting Shares in Other Corporations. The Chief Executive Officer, the President, or any other officer of the Corporation designated by the Board of Directors may vote any and all shares held by the Corporation in any other corporation. 8.3 Fiscal Year. The fiscal year of the Corporation shall be such fiscal year as the Board of Directors from time to time by resolution shall determine. 8.4 Gender/Number. As used in these Bylaws, the masculine, feminine, or neuter gender, and the singular or plural number, shall each include the others whenever the context so indicates. 8.5 Paragraph Titles. The titles of the paragraphs have been inserted as a matter of reference only and shall not control or affect the meaning or construction of any of the terms and provisions hereof. 10 11 8.6 Amendment. These Bylaws may be altered, amended, or repealed by (a) the affirmative vote of 80% or more of the aggregate number of votes that the holders of the then outstanding shares of common stock and preferred stock are entitled to cast on the amendment, or (b) by resolution adopted by the affirmative vote of not less than a majority of the Directors in office, at any annual or regular meeting of the Board of Directors or at any special meeting of the Board of Directors if notice of the proposed alteration, amendment, or repeal be contained in written notice of such special meeting. Notwithstanding the foregoing, the amendment of any provision of these Bylaws that requires an affirmative vote in excess of a majority of the Directors in office shall require the affirmative vote of at least the number of directors the affirmative vote of whom is required by such provision. 8.7 Certificate of Incorporation. Notwithstanding anything to the contrary contained herein, if any provision contained in these Bylaws is inconsistent with or conflicts with a provision of the Certificate of Incorporation, such provision of these Bylaws shall be superseded by the inconsistent provision in the Certificate of Incorporation to the extent necessary to give effect to such provision in the Certificate of Incorporation. 11 EX-99.B.13.3 23 AMENDED & RESTATED BYLAWS AMENDED 12/31/99 1 Conectiv Services, Inc B.13.3 Amended and Restated Bylaws Adopted December 31, 1999 2 AMENDED AND RESTATED B Y L A W S OF CONECTIV SERVICES, INC. 1. OFFICES. 1.1 Offices. In addition to its registered office in the State of Delaware, the Corporation shall have a corporate office in Wilmington, Delaware, and such other offices, either within or without the State of Delaware, at such locations as the Board of Directors may from time to time determine or the business of the Corporation may require. 2. SEAL. 2.1 Seal. The Corporation shall have a seal, which shall have inscribed thereon its name and year of incorporation and the words, "Corporate Seal Delaware." 3. MEETINGS OF STOCKHOLDERS. 3.1 Annual Meetings. The annual meeting of stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as shall be determined by the Board of Directors from time to time. 3.2 Special Meetings. Special meetings of the stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as may be designated by the Chairman of the Board or by the Board of Directors. 3.3 Notice of Meetings. (a) Notices of meetings of stockholders shall be in writing and shall state the place, date, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which a meeting is called. No business other than that specified in the notice thereof shall be transacted at any special meeting. (b) Such notice shall either be delivered personally, mailed, postage prepaid, or delivered by any other lawful means to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. If mailed, the notice shall be directed to the stockholder at his or her address as it appears on the records of the Corporation. Delivery of any such notice to any officer of a corporation or association or to any member of a partnership shall constitute delivery of such notice to such corporation, association, or partnership. (c) Notice of any meeting of stockholders need not be given to any stockholder if waived by such stockholder in writing, whether before or after such meeting is held, or if such stockholder shall sign the minutes or attend the meeting, except that if such stockholder attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, such stockholder shall not be deemed to have waived notice of such meeting. 3.4 Adjourned Meetings. When a meeting is adjourned to another time or place, unless otherwise provided by these Bylaws, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the stockholders may transact any business that might have been transacted at the original meeting. If an adjournment 2 3 is for more than 30 days, or if after an adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting. 3.5 Quorum and Adjournment. Except as otherwise provided by law, by the Certificate of Incorporation of the Corporation, or by these Bylaws, the presence, in person or by proxy, of the holders of a majority of the aggregate voting power of the stock issued and outstanding, entitled to vote thereat, shall constitute a quorum for the transaction of business at all meetings of stockholders. If such majority shall not be present or represented at any meeting of stockholders, the stockholders present, although less than a quorum, shall have the power to adjourn the meeting. 3.6 Vote Required. Except as otherwise provided by law or by the Certificate of Incorporation: (a) Directors shall be elected by a plurality of the votes present in person or represented by proxy at a meeting of stockholders and entitled to vote in the election of directors, and (b) whenever any corporate action other than the election of Directors is to be taken, it shall be authorized by a majority in voting power of the shares present in person or by proxy at a meeting of stockholders and entitled to vote on the subject matter. 3.7 Manner of Voting. At each meeting of stockholders, each stockholder having the right to vote shall be entitled to vote in person or by proxy. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed before being voted. Each stockholder shall be entitled to vote each share of stock having voting power registered in his or her name on the books of the Corporation on the record date fixed for determination of stockholders entitled to vote at such meeting. 3.8 Stockholder Action Without a Meeting. Except as otherwise provided by law or by the Certificate of Incorporation, any action required to be taken at any meeting of stockholders of the corporation, or any action that may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice, and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of the holders to take the action were delivered to the Corporation. 3.9 Proxies. (a) At any meeting of stockholders, any stockholder may be represented and vote by proxy or proxies. In the event that any form of proxy shall designate two or more persons to act as proxies, a majority of such persons present at the meeting or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by the form of proxy upon all of the persons so designated unless the form of proxy shall otherwise provide. (b) The Board of Directors may, in advance of any annual or special meeting of the stockholders, prescribe additional regulations concerning the validation of the same, which are intended to be voted at any such meeting. 3.10 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the stockholders. In the absence of the Chairman of the Board, the Vice Chairman of the Board or, in his or her absence, any Director designated by the Chairman of the Board or the Board of Directors shall act as chairman of the meeting. 3 4 The Secretary of the Corporation shall act as secretary of all meetings of the stockholders, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the stockholders, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 3.11 Procedure. At each meeting of stockholders, the chairman of the meeting shall fix and announce the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at the meeting and shall determine the order of business and all other matters of procedure. Except to the extent inconsistent with any such rules and regulations as adopted by the Board of Directors, the chairman of the meeting may establish rules, which need not be in writing, to maintain order and safety and for the conduct of the meeting. Without limiting the foregoing, he or she may: (a) restrict attendance at any time to bona fide stockholders of record and their proxies and other persons in attendance at the invitation of the chairman; (b) restrict dissemination of solicitation materials and use of audio or visual recording devices at the meeting; (c) adjourn the meeting without a vote of the stockholders, whether or not there is a quorum present; and (d) make rules governing speeches and debate, including time limits and access to microphones. The chairman of the meeting shall be entitled to act in his or her absolute discretion and his or her rulings shall not be subject to appeal. 4. DIRECTORS. 4.1 Powers and Number. The Board of Directors shall exercise all of the powers of the Corporation except such as are by law, or by the Certificate of Incorporation of this Corporation or by these Bylaws conferred upon or reserved to the stockholders of any class or classes. The number of directors that shall constitute the whole Board of Directors shall be no fewer than three (3) and no greater than nine (9), the exact number of directors to be determined from time to time by resolution adopted by the Board of Directors or the stockholders, and until otherwise determined by the Board of Directors or the stockholders, the number of directors that shall constitute the whole Board of Directors shall be three (3). 4.2 Resignations. Any Director may resign at any time by giving written notice to the Board of Directors or the Secretary. Such resignation shall take effect at the date of receipt of such notice or at any later time specified therein. Acceptance of such resignation shall not be necessary to make it effective. 4.3 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the Board of Directors. In the absence of the Chairman of the Board, the Vice Chairman of the Board, or in his absence, the Chief Executive Officer or other person designated by the Board of Directors shall act as chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the Board of Directors, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the Board of Directors, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 4 5 4.4 Annual Meetings. The Board of Directors shall meet each year immediately following the annual meeting of stockholders, at the place where such meeting of stockholders has been held, or at such other place as shall be fixed by the person presiding over the meeting of the stockholders, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. In the event that in any year Directors are elected by written consent in lieu of an annual meeting of stockholders, the Board of Directors shall meet in such year as soon as practicable after receipt of such written consent by the Corporation at such time and place as shall be fixed by the Chairman of the Board, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. 4.5 Regular Meetings. Regular meetings of the Board of Directors shall be held on such dates and at such times and places, within or without the state of Delaware, as shall from time to time be determined by the Board of Directors. In the absence of any such determination, such meetings shall be held at such times and places, within or without the State of Delaware, as shall be designated by the Chairman of the Board on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex or by electronic mail or by other electronic means, or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. 4.6 Special Meetings. Special meetings of the Board of Directors shall be held at the call of the Chairman of the Board at such times and places, within or without the State of Delaware, as he or she shall designate, on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex, by electronic mail or by other electronic means or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. Special meetings shall be called by the Secretary on like notice at the written request of a majority of the Directors then in office. 4.7 Quorum and Powers of a Majority. At all meetings of the Board of Directors and of each committee thereof, a majority of the members shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which a quorum is present shall be the act of the Board of Directors or such committee, unless by express provision of law, of the Certificate of Incorporation, or of these Bylaws, a different vote is required, in which case such express provision shall govern and control. In the absence of a quorum, a majority of the members present at any meeting may, without notice other than announcement at the meeting, adjourn such meeting from time to time until a quorum is present. 4.8 Waiver of Notice. Notice of any meeting of the Board of Directors, or any committee thereof, need not be given to any member if waived by him or her in writing, whether before or after such meeting is held, or if he or she shall sign the minutes or attend the meeting, except that if such Director attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, then such Director shall not be deemed to have waived notice of such meeting. 4.9 Manner of Acting. (a) Members of the Board of Directors, or any committee thereof, may participate in any meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating therein can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting. (b) Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board of Directors or 5 6 such committee, as the case may be, consent thereto in writing, and the writings are filed with the minutes of proceedings of the Board of Directors or such committee. 4.10 Compensation. (a) The Board of Directors, by a resolution or resolutions, may fix, and from time to time change, the compensation of Directors. (b) Each Director shall be entitled to reimbursement from the Corporation for his or her reasonable expenses incurred with respect to duties as a member of the Board of Directors or any committee thereof. (c) Nothing contained in these Bylaws shall be construed to preclude any Director from serving the Corporation in any other capacity and from receiving compensation from the Corporation for service rendered to it in such other capacity. 4.11 Committees. The Board of Directors (or any committee thereof having the power and authority to do so) may designate one or more committees, each committee to consist of one or more Directors, which to the extent provided in said resolution or resolutions shall have and may exercise the powers and authority of the Board of Directors in the management of the business and affairs of the corporation; provided, however, that no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the General Corporation Law of Delaware (the "GCLD") to be submitted to stockholders for approval or (ii) adopting, amending, or repealing any bylaw of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting of such committee and not disqualified from voting, whether or not such member of members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of such absent or disqualified director. 4.12 Committee Procedure, Limitations of Committee Powers. (a) Except as otherwise provided by these Bylaws, each committee shall adopt its own rules governing the time, place and method of holding its meetings and the conduct of its proceedings and shall meet as provided by such rules or by resolution of the Board of Directors. Unless otherwise provided by these Bylaws or any such rules or resolutions, notice of the time and place of each meeting of a committee shall be given to each member of such committee as provided in Section 4.6 of these Bylaws with respect to notices of special meetings of the Board of Directors. (b) Each committee shall keep regular minutes of its proceedings and report the same to the Board of Directors when required. (c) Any member of any committee may be removed from such committee either with or without cause, at any time, by the Board of Directors at any meeting thereof. Any vacancy in any committee shall be filled by the Board of Directors in the manner prescribed by the Certificate of Incorporation or these Bylaws for the original appointment of the members of such committee. 5. OFFICERS. 5.1 Number. (a) The officers of the Corporation shall include a Chief Executive Officer, a President, one or more Vice Presidents (including one or more Executive Vice Presidents and one or more Senior Vice Presidents if deemed appropriate by the Board of Directors), a Chief Financial Officer, a Secretary, a Treasurer, and a Controller. The Board of Directors shall also elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except for the Chairman of the Board, the Vice Chairman of the Board, and the Chief Executive Officer, none of the officers of the Corporation needs to be a director of the Corporation. Any two or more offices may be held by the same person to the extent permitted by the GCLD. 6 7 (b) The Chief Executive Officer shall have the power to appoint one or more employees of the Corporation as divisional or departmental vice presidents and fix the duties of such appointees. However, no such divisional or departmental vice president shall be considered as an officer of the Corporation. 5.2 Election of Officers, Qualification and Term. The Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President, the Chief Financial Officer, the Secretary and the Treasurer of the Corporation shall be elected from time to time by the Board of Directors and, except as may otherwise be expressly provided in a contract of employment duly authorized by the Board of Directors, shall hold office at the pleasure of the Board of Directors. The Board of Directors and the Chief Executive Officer also may elect such other officers as the Board of Directors or the Chief Executive Officer may from time to time deem appropriate or necessary. 5.3 Removal. Any officer elected by the Board of Directors may be removed, either with or without cause, by the Board of Directors at any meeting thereof, or to the extent delegated to the Chairman of the Board or the Chief Executive Officer, by the Chairman of the Board or the Chief Executive Officer. 5.4 Resignations. Any officer of the Corporation may resign at any time by giving written notice to the Board of Directors or to the Chairman of the Board or to the Chief Executive Officer. Such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 5.5 Compensation. The compensation of all officers of the Corporation shall be fixed by or in the manner provided by the Board of Directors from time to time, and no officer shall be prevented from receiving such compensation by reason of the fact that he or she is also a Director of the Corporation. 5.6 The Chairman of the Board. The Chairman of the Board shall have the powers and duties customarily and usually associated with the office of the Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. The Chairman of the Board shall preside at meetings of the stockholders and of the Board of Directors. 5.7 Vice Chairman of the Board. The Vice Chairman of the Board, if any, shall have the powers and duties customarily and usually associated with the office of the Vice Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. 5.8 Chief Executive Officer. The Chief Executive Officer shall have, subject to the supervision, direction and control of the Board of Directors, the general powers and duties of supervision, direction and management of the affairs and business of the Corporation usually vested in the chief executive officer of a corporation, including, without limitation, all powers necessary to direct and control the organizational and reporting relationships within the Corporation. In addition, the Chief Executive Officer shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. If at any time the office of the Chairman of the Board and the Vice Chairman of the Board shall not be filled, or in the event of the temporary absence or disability of the Chairman of the Board and the Vice Chairman of the Board, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board. 5.9 The President. The President shall serve as chief operating officer, shall have the powers and duties customarily and usually associated with the office of the President and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.10 The Vice Presidents. Each Vice President shall have such powers and duties customarily and usually associated with the office of Vice President and shall have such other powers and perform 7 8 such other duties as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, or the President. 5.11 The Chief Financial Officer. The Chief Financial Officer shall be responsible for the financial affairs of the Corporation, including overseeing the duties performed by the Treasurer of the Corporation. In addition, the Chief Financial Officer shall have such powers and duties customarily and usually associated with the office of the Chief Financial Officer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.12 The Secretary and the Assistant Secretary. (a) The Secretary shall attend meetings of the Board of Directors and meetings of the stockholders and record all votes and minutes of all such proceedings in a book kept for such purpose. In addition, the Secretary shall have such powers and duties customarily and usually associated with the office of Secretary and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors, the Chief Executive Officer, or the President. (b) Each Assistant Secretary shall have such powers and perform such duties customarily and usually associated with the office of Assistant Secretary and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Secretary. In case of the absence or disability of the Secretary, the Assistant Secretary designated by the Chief Executive Officer (or, in the absence of such designation, by the Secretary) shall perform the duties and exercise the powers of the Secretary. 5.13 The Treasurer and the Assistant Treasurer. (a) The Treasurer shall have custody of the Corporation's funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit or cause to be deposited moneys or other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall also maintain adequate records of all assets, liabilities, and transactions of the Corporation and shall see that adequate audits thereof are currently and regularly made. In addition, the Treasurer shall have such powers and duties customarily and usually associated with the office of Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. (b) Each Assistant Treasurer shall have such powers and perform such duties customarily and usually associated with the office of Assistant Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Treasurer. In case of the absence or disability of the Treasurer, the Assistant Treasurer designated by the Chief Executive Officer (or, in the absence of such designation, by the Treasurer) shall perform the duties and exercise the powers of the Treasurer. 5.14 Controller. The Controller shall be responsible for maintaining the accounting records and statements, and shall properly account for all monies and obligations due the Corporation and all properties, assets, and liabilities of the Corporation. The Controller shall render to the Chairman of the Board, the President or the Chief Financial Officer such periodic reports covering the results of operations of the Corporation as may be required by either of them or by law. In addition, the Controller shall have such powers and duties customarily and usually associated with the office of Controller and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. 6. STOCK 6.1 Certificates. Certificates for shares of stock of the Corporation shall be issued under the seal of the Corporation, or a facsimile thereof, and shall be numbered and shall be entered in the books of the 8 9 Corporation as they are issued. Each certificate shall bear a serial number, shall exhibit the holder's name and the number of shares evidenced thereby, and shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the Chief Executive Officer or the President or any Vice President, and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person or entity were such officer, transfer agent, or registrar at the date of issue. 6.2 Transfers. Transfers of stock of the Corporation shall be made on the books of the Corporation only upon surrender to the Corporation of a certificate (if any) for the shares duly endorsed or accompanied by proper evidence of succession, assignment, or authority to transfer, provided such succession, assignment, or transfer is not prohibited by the Certificate of Incorporation, these Bylaws, applicable law or contract. Thereupon, the Corporation shall issue a new certificate (if requested) to the person entitled thereto, cancel the old certificate (if any), and record the transaction upon its books. 6.3 Lost, Stolen, or Destroyed Certificates. Any person claiming a certificate of stock to be lost, stolen, or destroyed shall make an affidavit or an affirmation of that fact, and shall give the Corporation a bond of indemnity in satisfactory form and with one or more satisfactory sureties, whereupon a new certificate (if requested) may be issued of the same tenor and for the same number of shares as the one alleged to be lost, stolen, or destroyed. 6.4 Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares as the person entitled to exercise the rights of a stockholder and shall not be bound to recognize any equitable or other claim to or interest in any such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by the GCLD. 6.5 Additional Powers of the Board. (a) In addition to those powers set forth in Section 4.1, the Board of Directors shall have power and authority to make all such rules and regulations as it shall deem expedient concerning the issue, transfer, and registration of certificates for shares of stock of the Corporation, including the use of uncertificated shares of stock subject to the provisions of the GCLD. (b) The Board of Directors may appoint and remove transfer agents and registrars of transfers, and may require all stock certificates to bear the signature of any such transfer agent and/or any such registrar of transfers. 7. INDEMNIFICATION 7.1 Each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or the person of whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation, as a director, officer, employee, or agent of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to employee benefit plans, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the GCLD, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expenses, liability, and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of his or her heirs, executors, and administrators; provided, however, that, except as provided in this Article 7, the Corporation shall indemnify any 9 10 such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if authorized by the Board of Directors of the Corporation. Any indemnification under this Article 7 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard set forth in the GCLD. Such a determination shall be made (a) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum; (b) by a committee of such directors designated by majority vote of such directors, even though less than a quorum; (c) by independent legal counsel (compensated by the Corporation) in a written opinion; (d) by the stockholders; or (e) in any other manner permitted by the GCLD. In addition to the right to indemnification conferred in this Article 7, each of the above persons shall have the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the GCLD requires, the payment of such expenses incurred by a present director or officer in his or her capacity as a director or officer of the corporation (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such present director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Article 7 or otherwise. The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers. The right to indemnification and to an advancement of expenses conferred in this Article 7 shall be a contract right. 7.2 If a claim under Section 7.1 of this Article 7 is not paid in full by the Corporation within 30 days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim (including attorneys' fees). 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 Corporation) that the claimant has not met the standard of conduct which makes it permissible under the GCLD for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD, nor an actual determination by the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) that the claimant has not met such 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. In any suit brought by the claimant to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the claimant is not entitled to be indemnified, or to such advancement of expenses, under this Article 7 or otherwise shall be on the Corporation. 7.3 The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article 7, shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, provision of the certificate of incorporation of the Corporation, this bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. 7.4 The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee, or agent of the Corporation or another corporation, partnership, joint venture, trust, or other enterprise against any such expense, liability, or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability, or loss under the GCLD. 7.5 The Corporation may enter into an indemnity agreement with any director, officer, employee, or agent of the Corporation, or of another corporation, partnership, joint venture, trust, or other 10 11 enterprise, upon terms and conditions that the Board of Directors deems appropriate, as long as the provisions of the agreement are not impermissible under applicable law. 7.6 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.7 In case any provision in this Article 7 shall be determined at any time to be unenforceable in any respect, the other provisions shall not in any way be affected or impaired thereby, and the affected provision shall be given the fullest possible enforcement in the circumstances, it being the intention of the Corporation to afford indemnification and advancement of expenses to the persons indemnified hereby to the fullest extent permitted by law. 7.8 The Corporation may, by action of the Board of Directors, authorize one or more officers to grant rights to indemnification and advancement of expenses to former directors and officers or to other employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances. 8. MISCELLANEOUS 8.1 Place and Inspection of Books. (a) The books of the Corporation other than such books as are required by law to be kept within the State of Delaware shall be kept in such place or places either within or without the State of Delaware as the Board of Directors may from time to time determine. (b) At least ten days before each meeting of stockholders, the officer in charge of the stock ledger of the Corporation shall prepare a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. (c) The Board of Directors shall determine from time to time whether and, if allowed, when and under what conditions and regulations the accounts and books of the Corporation (except such as may be by law specifically open to inspection or as otherwise provided by these Bylaws) or any of them shall be open to the inspection of the stockholders and the stockholders' rights in respect thereof. 8.2 Voting Shares in Other Corporations. The Chief Executive Officer, the President, the Chief Financial Officer or any other officer of the Corporation designated by the Board of Directors may vote any and all shares held by the Corporation in any other corporation. 8.3 Fiscal Year. The fiscal year of the Corporation shall be such fiscal year as the Board of Directors from time to time by resolution shall determine. 8.4 Gender/Number. As used in these Bylaws, the masculine, feminine, or neuter gender, and the singular or plural number, shall each include the others whenever the context so indicates. 8.5 Paragraph Titles. The titles of the paragraphs have been inserted as a matter of reference only and shall not control or affect the meaning or construction of any of the terms and provisions hereof. 11 12 8.6 Amendment. These Bylaws may be altered, amended, or repealed by (a) the affirmative vote of 80% or more of the aggregate number of votes that the holders of the then outstanding shares of common stock and preferred stock are entitled to cast on the amendment, or (b) by resolution adopted by the affirmative vote of not less than a majority of the Directors in office, at any annual or regular meeting of the Board of Directors or at any special meeting of the Board of Directors if notice of the proposed alteration, amendment, or repeal be contained in written notice of such special meeting. Notwithstanding the foregoing, the amendment of any provision of these Bylaws that requires an affirmative vote in excess of a majority of the Directors in office shall require the affirmative vote of at least the number of directors the affirmative vote of whom is required by such provision. 8.7 Certificate of Incorporation. Notwithstanding anything to the contrary contained herein, if any provision contained in these Bylaws is inconsistent with or conflicts with a provision of the Certificate of Incorporation, such provision of these Bylaws shall be superseded by the inconsistent provision in the Certificate of Incorporation to the extent necessary to give effect to such provision in the Certificate of Incorporation. 12 EX-99.B.15.4 24 AMENDED & RESTATED BYLAWS AS AMENDED 12/31/99 1 Conectiv Energy Supply, Inc. B.15.4 Amended and Restated Bylaws Adopted December 31, 1999 2 AMENDED AND RESTATED B Y L A W S OF CONECTIV ENERGY SUPPLY, INC. 1. OFFICES. 1.1 Offices. In addition to its registered office in the State of Delaware, the Corporation shall have a corporate office in Wilmington, Delaware, and such other offices, either within or without the State of Delaware, at such locations as the Board of Directors may from time to time determine or the business of the Corporation may require. 2. SEAL. 2.1 Seal. The Corporation shall have a seal, which shall have inscribed thereon its name and year of incorporation and the words, "Corporate Seal Delaware." 3. MEETINGS OF STOCKHOLDERS. 3.1 Annual Meetings. The annual meeting of stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as shall be determined by the Board of Directors from time to time. 3.2 Special Meetings. Special meetings of the stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as may be designated by the Chairman of the Board or by the Board of Directors. 3.3 Notice of Meetings. (a) Notices of meetings of stockholders shall be in writing and shall state the place, date, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which a meeting is called. No business other than that specified in the notice thereof shall be transacted at any special meeting. (b) Such notice shall either be delivered personally, mailed, postage prepaid, or delivered by any other lawful means to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. If mailed, the notice shall be directed to the stockholder at his or her address as it appears on the records of the Corporation. Delivery of any such notice to any officer of a corporation or association or to any member of a partnership shall constitute delivery of such notice to such corporation, association, or partnership. (c) Notice of any meeting of stockholders need not be given to any stockholder if waived by such stockholder in writing, whether before or after such meeting is held, or if such stockholder shall sign the minutes or attend the meeting, except that if such stockholder attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, such stockholder shall not be deemed to have waived notice of such meeting. 3.4 Adjourned Meetings. When a meeting is adjourned to another time or place, unless otherwise provided by these Bylaws, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the stockholders may transact any business that might have been transacted at the original meeting. If an adjournment 2 3 is for more than 30 days, or if after an adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting. 3.5 Quorum and Adjournment. Except as otherwise provided by law, by the Certificate of Incorporation of the Corporation, or by these Bylaws, the presence, in person or by proxy, of the holders of a majority of the aggregate voting power of the stock issued and outstanding, entitled to vote thereat, shall constitute a quorum for the transaction of business at all meetings of stockholders. If such majority shall not be present or represented at any meeting of stockholders, the stockholders present, although less than a quorum, shall have the power to adjourn the meeting. 3.6 Vote Required. Except as otherwise provided by law or by the Certificate of Incorporation: (a) Directors shall be elected by a plurality of the votes present in person or represented by proxy at a meeting of stockholders and entitled to vote in the election of directors, and (b) whenever any corporate action other than the election of Directors is to be taken, it shall be authorized by a majority in voting power of the shares present in person or by proxy at a meeting of stockholders and entitled to vote on the subject matter. 3.7 Manner of Voting. At each meeting of stockholders, each stockholder having the right to vote shall be entitled to vote in person or by proxy. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed before being voted. Each stockholder shall be entitled to vote each share of stock having voting power registered in his or her name on the books of the Corporation on the record date fixed for determination of stockholders entitled to vote at such meeting. 3.8 Stockholder Action Without a Meeting. Except as otherwise provided by law or by the Certificate of Incorporation, any action required to be taken at any meeting of stockholders of the corporation, or any action that may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice, and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of the holders to take the action were delivered to the Corporation. 3.9 Proxies. (a) At any meeting of stockholders, any stockholder may be represented and vote by proxy or proxies. In the event that any form of proxy shall designate two or more persons to act as proxies, a majority of such persons present at the meeting or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by the form of proxy upon all of the persons so designated unless the form of proxy shall otherwise provide. (b) The Board of Directors may, in advance of any annual or special meeting of the stockholders, prescribe additional regulations concerning the validation of the same, which are intended to be voted at any such meeting. 3.10 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the stockholders. In the absence of the Chairman of the Board, the Vice Chairman of the Board or, in his or her absence, any Director designated by the Chairman of the Board or the Board of Directors shall act as chairman of the meeting. 3 4 The Secretary of the Corporation shall act as secretary of all meetings of the stockholders, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the stockholders, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 3.11 Procedure. At each meeting of stockholders, the chairman of the meeting shall fix and announce the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at the meeting and shall determine the order of business and all other matters of procedure. Except to the extent inconsistent with any such rules and regulations as adopted by the Board of Directors, the chairman of the meeting may establish rules, which need not be in writing, to maintain order and safety and for the conduct of the meeting. Without limiting the foregoing, he or she may: (a) restrict attendance at any time to bona fide stockholders of record and their proxies and other persons in attendance at the invitation of the chairman; (b) restrict dissemination of solicitation materials and use of audio or visual recording devices at the meeting; (c) adjourn the meeting without a vote of the stockholders, whether or not there is a quorum present; and (d) make rules governing speeches and debate, including time limits and access to microphones. The chairman of the meeting shall be entitled to act in his or her absolute discretion and his or her rulings shall not be subject to appeal. 4. DIRECTORS. 4.1 Powers and Number. The Board of Directors shall exercise all of the powers of the Corporation except such as are by law, or by the Certificate of Incorporation of this Corporation or by these Bylaws conferred upon or reserved to the stockholders of any class or classes. The number of directors that shall constitute the whole Board of Directors shall be no fewer than three (3) and no greater than nine (9), the exact number of directors to be determined from time to time by resolution adopted by the Board of Directors or the stockholders, and until otherwise determined by the Board of Directors or the stockholders, the number of directors that shall constitute the whole Board of Directors shall be three (3). 4.2 Resignations. Any Director may resign at any time by giving written notice to the Board of Directors or the Secretary. Such resignation shall take effect at the date of receipt of such notice or at any later time specified therein. Acceptance of such resignation shall not be necessary to make it effective. 4.3 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the Board of Directors. In the absence of the Chairman of the Board, the Vice Chairman of the Board, or in his absence, the Chief Executive Officer or other person designated by the Board of Directors shall act as chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the Board of Directors, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the Board of Directors, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 4 5 4.4 Annual Meetings. The Board of Directors shall meet each year immediately following the annual meeting of stockholders, at the place where such meeting of stockholders has been held, or at such other place as shall be fixed by the person presiding over the meeting of the stockholders, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. In the event that in any year Directors are elected by written consent in lieu of an annual meeting of stockholders, the Board of Directors shall meet in such year as soon as practicable after receipt of such written consent by the Corporation at such time and place as shall be fixed by the Chairman of the Board, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. 4.5 Regular Meetings. Regular meetings of the Board of Directors shall be held on such dates and at such times and places, within or without the state of Delaware, as shall from time to time be determined by the Board of Directors. In the absence of any such determination, such meetings shall be held at such times and places, within or without the State of Delaware, as shall be designated by the Chairman of the Board on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex or by electronic mail or by other electronic means, or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. 4.6 Special Meetings. Special meetings of the Board of Directors shall be held at the call of the Chairman of the Board at such times and places, within or without the State of Delaware, as he or she shall designate, on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex, by electronic mail or by other electronic means or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. Special meetings shall be called by the Secretary on like notice at the written request of a majority of the Directors then in office. 4.7 Quorum and Powers of a Majority. At all meetings of the Board of Directors and of each committee thereof, a majority of the members shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which a quorum is present shall be the act of the Board of Directors or such committee, unless by express provision of law, of the Certificate of Incorporation, or of these Bylaws, a different vote is required, in which case such express provision shall govern and control. In the absence of a quorum, a majority of the members present at any meeting may, without notice other than announcement at the meeting, adjourn such meeting from time to time until a quorum is present. 4.8 Waiver of Notice. Notice of any meeting of the Board of Directors, or any committee thereof, need not be given to any member if waived by him or her in writing, whether before or after such meeting is held, or if he or she shall sign the minutes or attend the meeting, except that if such Director attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, then such Director shall not be deemed to have waived notice of such meeting. 4.9 Manner of Acting. (a) Members of the Board of Directors, or any committee thereof, may participate in any meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating therein can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting. (b) Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board of Directors or 5 6 such committee, as the case may be, consent thereto in writing, and the writings are filed with the minutes of proceedings of the Board of Directors or such committee. 4.10 Compensation. (a) The Board of Directors, by a resolution or resolutions, may fix, and from time to time change, the compensation of Directors. (b) Each Director shall be entitled to reimbursement from the Corporation for his or her reasonable expenses incurred with respect to duties as a member of the Board of Directors or any committee thereof. (c) Nothing contained in these Bylaws shall be construed to preclude any Director from serving the Corporation in any other capacity and from receiving compensation from the Corporation for service rendered to it in such other capacity. 4.11 Committees. The Board of Directors (or any committee thereof having the power and authority to do so) may designate one or more committees, each committee to consist of one or more Directors, which to the extent provided in said resolution or resolutions shall have and may exercise the powers and authority of the Board of Directors in the management of the business and affairs of the corporation; provided, however, that no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the General Corporation Law of Delaware (the "GCLD") to be submitted to stockholders for approval or (ii) adopting, amending, or repealing any bylaw of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting of such committee and not disqualified from voting, whether or not such member of members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of such absent or disqualified director. 4.12 Committee Procedure, Limitations of Committee Powers. (a) Except as otherwise provided by these Bylaws, each committee shall adopt its own rules governing the time, place and method of holding its meetings and the conduct of its proceedings and shall meet as provided by such rules or by resolution of the Board of Directors. Unless otherwise provided by these Bylaws or any such rules or resolutions, notice of the time and place of each meeting of a committee shall be given to each member of such committee as provided in Section 4.6 of these Bylaws with respect to notices of special meetings of the Board of Directors. (b) Each committee shall keep regular minutes of its proceedings and report the same to the Board of Directors when required. (c) Any member of any committee may be removed from such committee either with or without cause, at any time, by the Board of Directors at any meeting thereof. Any vacancy in any committee shall be filled by the Board of Directors in the manner prescribed by the Certificate of Incorporation or these Bylaws for the original appointment of the members of such committee. 5. OFFICERS. 5.1 Number. (a) The officers of the Corporation shall include a Chief Executive Officer, a President, one or more Vice Presidents (including one or more Executive Vice Presidents and one or more Senior Vice Presidents if deemed appropriate by the Board of Directors), a Chief Financial Officer, a Secretary, a Treasurer, and a Controller. The Board of Directors shall also elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except for the Chairman of the Board, the Vice Chairman of the Board, and the Chief Executive Officer, none of the officers of the Corporation needs to be a director of the Corporation. Any two or more offices may be held by the same person to the extent permitted by the GCLD. 6 7 (b) The Chief Executive Officer shall have the power to appoint one or more employees of the Corporation as divisional or departmental vice presidents and fix the duties of such appointees. However, no such divisional or departmental vice president shall be considered as an officer of the Corporation. 5.2 Election of Officers, Qualification and Term. The Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President, the Chief Financial Officer, the Secretary and the Treasurer of the Corporation shall be elected from time to time by the Board of Directors and, except as may otherwise be expressly provided in a contract of employment duly authorized by the Board of Directors, shall hold office at the pleasure of the Board of Directors. The Board of Directors and the Chief Executive Officer also may elect such other officers as the Board of Directors or the Chief Executive Officer may from time to time deem appropriate or necessary. 5.3 Removal. Any officer elected by the Board of Directors may be removed, either with or without cause, by the Board of Directors at any meeting thereof, or to the extent delegated to the Chairman of the Board or the Chief Executive Officer, by the Chairman of the Board or the Chief Executive Officer. 5.4 Resignations. Any officer of the Corporation may resign at any time by giving written notice to the Board of Directors or to the Chairman of the Board or to the Chief Executive Officer. Such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 5.5 Compensation. The compensation of all officers of the Corporation shall be fixed by or in the manner provided by the Board of Directors from time to time, and no officer shall be prevented from receiving such compensation by reason of the fact that he or she is also a Director of the Corporation. 5.6 The Chairman of the Board. The Chairman of the Board shall have the powers and duties customarily and usually associated with the office of the Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. The Chairman of the Board shall preside at meetings of the stockholders and of the Board of Directors. 5.7 Vice Chairman of the Board. The Vice Chairman of the Board, if any, shall have the powers and duties customarily and usually associated with the office of the Vice Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. 5.8 Chief Executive Officer. The Chief Executive Officer shall have, subject to the supervision, direction and control of the Board of Directors, the general powers and duties of supervision, direction and management of the affairs and business of the Corporation usually vested in the chief executive officer of a corporation, including, without limitation, all powers necessary to direct and control the organizational and reporting relationships within the Corporation. In addition, the Chief Executive Officer shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. If at any time the office of the Chairman of the Board and the Vice Chairman of the Board shall not be filled, or in the event of the temporary absence or disability of the Chairman of the Board and the Vice Chairman of the Board, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board. 5.9 The President. The President shall serve as chief operating officer, shall have the powers and duties customarily and usually associated with the office of the President and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.10 The Vice Presidents. Each Vice President shall have such powers and duties customarily and usually associated with the office of Vice President and shall have such other powers and perform 7 8 such other duties as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, or the President. 5.11 The Chief Financial Officer. The Chief Financial Officer shall be responsible for the financial affairs of the Corporation, including overseeing the duties performed by the Treasurer of the Corporation. In addition, the Chief Financial Officer shall have such powers and duties customarily and usually associated with the office of the Chief Financial Officer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.12 The General Managers. The general manager or general managers shall assist the president and the vice president(s) in managing the general affairs of the corporation. In the absence of the vice president (or in the event there be more than one vice president, any of the vice presidents) or in the event of his (or in the event there be more than one vice president, any of their respective) inability or refusal to act, the general manager (or senior general manager as designated by the Board of Directors if there is more than one general manager) shall perform the duties of such vice president, and when so acting, shall have all the powers of and be subject to all the restrictions upon such vice president. The general manager or general managers shall perform such other duties and have such other powers as the president or the board of directors may from time to time prescribe. 5.13 The Secretary and the Assistant Secretary. (a) The Secretary shall attend meetings of the Board of Directors and meetings of the stockholders and record all votes and minutes of all such proceedings in a book kept for such purpose. In addition, the Secretary shall have such powers and duties customarily and usually associated with the office of Secretary and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors, the Chief Executive Officer, or the President. (b) Each Assistant Secretary shall have such powers and perform such duties customarily and usually associated with the office of Assistant Secretary and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Secretary. In case of the absence or disability of the Secretary, the Assistant Secretary designated by the Chief Executive Officer (or, in the absence of such designation, by the Secretary) shall perform the duties and exercise the powers of the Secretary. 5.14 The Treasurer and the Assistant Treasurer. (a) The Treasurer shall have custody of the Corporation's funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit or cause to be deposited moneys or other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall also maintain adequate records of all assets, liabilities, and transactions of the Corporation and shall see that adequate audits thereof are currently and regularly made. In addition, the Treasurer shall have such powers and duties customarily and usually associated with the office of Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. (b) Each Assistant Treasurer shall have such powers and perform such duties customarily and usually associated with the office of Assistant Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Treasurer. In case of the absence or disability of the Treasurer, the Assistant Treasurer designated by the Chief Executive Officer (or, in the absence of such designation, by the Treasurer) shall perform the duties and exercise the powers of the Treasurer. 8 9 5.15 Controller. The Controller shall be responsible for maintaining the accounting records and statements, and shall properly account for all monies and obligations due the Corporation and all properties, assets, and liabilities of the Corporation. The Controller shall render to the Chairman of the Board, the President or the Chief Financial Officer such periodic reports covering the results of operations of the Corporation as may be required by either of them or by law. In addition, the Controller shall have such powers and duties customarily and usually associated with the office of Controller and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. 6. STOCK 6.1 Certificates. Certificates for shares of stock of the Corporation shall be issued under the seal of the Corporation, or a facsimile thereof, and shall be numbered and shall be entered in the books of the Corporation as they are issued. Each certificate shall bear a serial number, shall exhibit the holder's name and the number of shares evidenced thereby, and shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the Chief Executive Officer or the President or any Vice President, and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person or entity were such officer, transfer agent, or registrar at the date of issue. 6.2 Transfers. Transfers of stock of the Corporation shall be made on the books of the Corporation only upon surrender to the Corporation of a certificate (if any) for the shares duly endorsed or accompanied by proper evidence of succession, assignment, or authority to transfer, provided such succession, assignment, or transfer is not prohibited by the Certificate of Incorporation, these Bylaws, applicable law or contract. Thereupon, the Corporation shall issue a new certificate (if requested) to the person entitled thereto, cancel the old certificate (if any), and record the transaction upon its books. 6.3 Lost, Stolen, or Destroyed Certificates. Any person claiming a certificate of stock to be lost, stolen, or destroyed shall make an affidavit or an affirmation of that fact, and shall give the Corporation a bond of indemnity in satisfactory form and with one or more satisfactory sureties, whereupon a new certificate (if requested) may be issued of the same tenor and for the same number of shares as the one alleged to be lost, stolen, or destroyed. 6.4 Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares as the person entitled to exercise the rights of a stockholder and shall not be bound to recognize any equitable or other claim to or interest in any such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by the GCLD. 6.5 Additional Powers of the Board. (a) In addition to those powers set forth in Section 4.1, the Board of Directors shall have power and authority to make all such rules and regulations as it shall deem expedient concerning the issue, transfer, and registration of certificates for shares of stock of the Corporation, including the use of uncertificated shares of stock subject to the provisions of the GCLD. (b) The Board of Directors may appoint and remove transfer agents and registrars of transfers, and may require all stock certificates to bear the signature of any such transfer agent and/or any such registrar of transfers. 7. INDEMNIFICATION 9 10 7.1 Each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or the person of whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation, as a director, officer, employee, or agent of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to employee benefit plans, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the GCLD, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expenses, liability, and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of his or her heirs, executors, and administrators; provided, however, that, except as provided in this Article 7, the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if authorized by the Board of Directors of the Corporation. Any indemnification under this Article 7 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard set forth in the GCLD. Such a determination shall be made (a) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum; (b) by a committee of such directors designated by majority vote of such directors, even though less than a quorum; (c) by independent legal counsel (compensated by the Corporation) in a written opinion; (d) by the stockholders; or (e) in any other manner permitted by the GCLD. In addition to the right to indemnification conferred in this Article 7, each of the above persons shall have the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the GCLD requires, the payment of such expenses incurred by a present director or officer in his or her capacity as a director or officer of the corporation (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such present director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Article 7 or otherwise. The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers. The right to indemnification and to an advancement of expenses conferred in this Article 7 shall be a contract right. 7.2 If a claim under Section 7.1 of this Article 7 is not paid in full by the Corporation within 30 days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim (including attorneys' fees). 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 Corporation) that the claimant has not met the standard of conduct which makes it permissible under the GCLD for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD, nor an actual determination by the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) that the claimant has not met such 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. In any suit brought by the claimant to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the 10 11 burden of proving that the claimant is not entitled to be indemnified, or to such advancement of expenses, under this Article 7 or otherwise shall be on the Corporation. 7.3 The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article 7, shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, provision of the certificate of incorporation of the Corporation, this bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. 7.4 The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee, or agent of the Corporation or another corporation, partnership, joint venture, trust, or other enterprise against any such expense, liability, or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability, or loss under the GCLD. 7.5 The Corporation may enter into an indemnity agreement with any director, officer, employee, or agent of the Corporation, or of another corporation, partnership, joint venture, trust, or other enterprise, upon terms and conditions that the Board of Directors deems appropriate, as long as the provisions of the agreement are not impermissible under applicable law. 7.6 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.7 In case any provision in this Article 7 shall be determined at any time to be unenforceable in any respect, the other provisions shall not in any way be affected or impaired thereby, and the affected provision shall be given the fullest possible enforcement in the circumstances, it being the intention of the Corporation to afford indemnification and advancement of expenses to the persons indemnified hereby to the fullest extent permitted by law. 7.8 The Corporation may, by action of the Board of Directors, authorize one or more officers to grant rights to indemnification and advancement of expenses to former directors and officers or to other employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances. 8. MISCELLANEOUS 8.1 Place and Inspection of Books. (a) The books of the Corporation other than such books as are required by law to be kept within the State of Delaware shall be kept in such place or places either within or without the State of Delaware as the Board of Directors may from time to time determine. (b) At least ten days before each meeting of stockholders, the officer in charge of the stock ledger of the Corporation shall prepare a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. (c) The Board of Directors shall determine from time to time whether and, if allowed, when and under what conditions and regulations the accounts and books of the Corporation (except such as may be by law specifically open to inspection or as otherwise provided by these Bylaws) or any of them shall be open to the inspection of the stockholders and the stockholders' rights in respect thereof. 11 12 8.2 Voting Shares in Other Corporations. The Chief Executive Officer, the President, the Chief Financial Officer or any other officer of the Corporation designated by the Board of Directors may vote any and all shares held by the Corporation in any other corporation. 8.3 Fiscal Year. The fiscal year of the Corporation shall be such fiscal year as the Board of Directors from time to time by resolution shall determine. 8.4 Gender/Number. As used in these Bylaws, the masculine, feminine, or neuter gender, and the singular or plural number, shall each include the others whenever the context so indicates. 8.5 Paragraph Titles. The titles of the paragraphs have been inserted as a matter of reference only and shall not control or affect the meaning or construction of any of the terms and provisions hereof. 8.6 Amendment. These Bylaws may be altered, amended, or repealed by (a) the affirmative vote of 80% or more of the aggregate number of votes that the holders of the then outstanding shares of common stock and preferred stock are entitled to cast on the amendment, or (b) by resolution adopted by the affirmative vote of not less than a majority of the Directors in office, at any annual or regular meeting of the Board of Directors or at any special meeting of the Board of Directors if notice of the proposed alteration, amendment, or repeal be contained in written notice of such special meeting. Notwithstanding the foregoing, the amendment of any provision of these Bylaws that requires an affirmative vote in excess of a majority of the Directors in office shall require the affirmative vote of at least the number of directors the affirmative vote of whom is required by such provision. 8.7 Certificate of Incorporation. Notwithstanding anything to the contrary contained herein, if any provision contained in these Bylaws is inconsistent with or conflicts with a provision of the Certificate of Incorporation, such provision of these Bylaws shall be superseded by the inconsistent provision in the Certificate of Incorporation to the extent necessary to give effect to such provision in the Certificate of Incorporation. 12 EX-99.B.16.3 25 AMENDED & RESTATED BYLAWS AS AMENDED 12/31/99 1 Delmarva Capital Investments, Inc B.16.3 Amended and Restated Bylaws Adopted December 31, 1999 2 AMENDED AND RESTATED B Y L A W S OF DELMARVA CAPITAL INVESTMENTS, INC. 1. OFFICES. 1.1 Offices. In addition to its registered office in the State of Delaware, the Corporation shall have a corporate office in Wilmington, Delaware, and such other offices, either within or without the State of Delaware, at such locations as the Board of Directors may from time to time determine or the business of the Corporation may require. 2. SEAL. 2.1 Seal. The Corporation shall have a seal, which shall have inscribed thereon its name and year of incorporation and the words, "Corporate Seal Virginia." 3. MEETINGS OF STOCKHOLDERS. 3.1 Annual Meetings. The annual meeting of stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as shall be determined by the Board of Directors from time to time. 3.2 Special Meetings. Special meetings of the stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as may be designated by the Chairman of the Board or by the Board of Directors. 3.3 Notice of Meetings. (a) Notices of meetings of stockholders shall be in writing and shall state the place, date, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which a meeting is called. No business other than that specified in the notice thereof shall be transacted at any special meeting. (b) Such notice shall either be delivered personally, mailed, postage prepaid, or delivered by any other lawful means to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. If mailed, the notice shall be directed to the stockholder at his or her address as it appears on the records of the Corporation. Delivery of any such notice to any officer of a corporation or association or to any member of a partnership shall constitute delivery of such notice to such corporation, association, or partnership. (c) Notice of any meeting of stockholders need not be given to any stockholder if waived by such stockholder in writing, whether before or after such meeting is held, or if such stockholder shall sign the minutes or attend the meeting, except that if such stockholder attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, such stockholder shall not be deemed to have waived notice of such meeting. 3.4 Adjourned Meetings. When a meeting is adjourned to another time or place, unless otherwise provided by these Bylaws, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the stockholders may transact any business that might have been transacted at the original meeting. If an adjournment 2 3 is for more than 30 days, or if after an adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting. 3.5 Quorum and Adjournment. Except as otherwise provided by law, by the Certificate of Incorporation of the Corporation, or by these Bylaws, the presence, in person or by proxy, of the holders of a majority of the aggregate voting power of the stock issued and outstanding, entitled to vote thereat, shall constitute a quorum for the transaction of business at all meetings of stockholders. If such majority shall not be present or represented at any meeting of stockholders, the stockholders present, although less than a quorum, shall have the power to adjourn the meeting. 3.6 Vote Required. Except as otherwise provided by law or by the Certificate of Incorporation: (a) Directors shall be elected by a plurality of the votes present in person or represented by proxy at a meeting of stockholders and entitled to vote in the election of directors, and (b) whenever any corporate action other than the election of Directors is to be taken, it shall be authorized by a majority in voting power of the shares present in person or by proxy at a meeting of stockholders and entitled to vote on the subject matter. 3.7 Manner of Voting. At each meeting of stockholders, each stockholder having the right to vote shall be entitled to vote in person or by proxy. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed before being voted. Each stockholder shall be entitled to vote each share of stock having voting power registered in his or her name on the books of the Corporation on the record date fixed for determination of stockholders entitled to vote at such meeting. 3.8 Stockholder Action Without a Meeting. Except as otherwise provided by law or by the Certificate of Incorporation, any action required to be taken at any meeting of stockholders of the corporation, or any action that may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice, and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of the holders to take the action were delivered to the Corporation. 3.9 Proxies. (a) At any meeting of stockholders, any stockholder may be represented and vote by proxy or proxies. In the event that any form of proxy shall designate two or more persons to act as proxies, a majority of such persons present at the meeting or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by the form of proxy upon all of the persons so designated unless the form of proxy shall otherwise provide. (b) The Board of Directors may, in advance of any annual or special meeting of the stockholders, prescribe additional regulations concerning the validation of the same, which are intended to be voted at any such meeting. 3.10 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the stockholders. In the absence of the Chairman of the Board, the Vice Chairman of the Board or, in his or her absence, any Director designated by the Chairman of the Board or the Board of Directors shall act as chairman of the meeting. 3 4 The Secretary of the Corporation shall act as secretary of all meetings of the stockholders, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the stockholders, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 3.11 Procedure. At each meeting of stockholders, the chairman of the meeting shall fix and announce the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at the meeting and shall determine the order of business and all other matters of procedure. Except to the extent inconsistent with any such rules and regulations as adopted by the Board of Directors, the chairman of the meeting may establish rules, which need not be in writing, to maintain order and safety and for the conduct of the meeting. Without limiting the foregoing, he or she may: (a) restrict attendance at any time to bona fide stockholders of record and their proxies and other persons in attendance at the invitation of the chairman; (b) restrict dissemination of solicitation materials and use of audio or visual recording devices at the meeting; (c) adjourn the meeting without a vote of the stockholders, whether or not there is a quorum present; and (d) make rules governing speeches and debate, including time limits and access to microphones. The chairman of the meeting shall be entitled to act in his or her absolute discretion and his or her rulings shall not be subject to appeal. 4. DIRECTORS. 4.1 Powers and Number. The Board of Directors shall exercise all of the powers of the Corporation except such as are by law, or by the Certificate of Incorporation of this Corporation or by these Bylaws conferred upon or reserved to the stockholders of any class or classes. The number of directors that shall constitute the whole Board of Directors shall be no fewer than three (3) and no greater than nine (9), the exact number of directors to be determined from time to time by resolution adopted by the Board of Directors or the stockholders, and until otherwise determined by the Board of Directors or the stockholders, the number of directors that shall constitute the whole Board of Directors shall be three (3). 4.2 Resignations. Any Director may resign at any time by giving written notice to the Board of Directors or the Secretary. Such resignation shall take effect at the date of receipt of such notice or at any later time specified therein. Acceptance of such resignation shall not be necessary to make it effective. 4.3 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the Board of Directors. In the absence of the Chairman of the Board, the Vice Chairman of the Board, or in his absence, the Chief Executive Officer or other person designated by the Board of Directors shall act as chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the Board of Directors, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the Board of Directors, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 4 5 4.4 Annual Meetings. The Board of Directors shall meet each year immediately following the annual meeting of stockholders, at the place where such meeting of stockholders has been held, or at such other place as shall be fixed by the person presiding over the meeting of the stockholders, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. In the event that in any year Directors are elected by written consent in lieu of an annual meeting of stockholders, the Board of Directors shall meet in such year as soon as practicable after receipt of such written consent by the Corporation at such time and place as shall be fixed by the Chairman of the Board, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. 4.5 Regular Meetings. Regular meetings of the Board of Directors shall be held on such dates and at such times and places, within or without the state of Delaware, as shall from time to time be determined by the Board of Directors. In the absence of any such determination, such meetings shall be held at such times and places, within or without the State of Delaware, as shall be designated by the Chairman of the Board on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex or by electronic mail or by other electronic means, or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. 4.6 Special Meetings. Special meetings of the Board of Directors shall be held at the call of the Chairman of the Board at such times and places, within or without the State of Delaware, as he or she shall designate, on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex, by electronic mail or by other electronic means or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. Special meetings shall be called by the Secretary on like notice at the written request of a majority of the Directors then in office. 4.7 Quorum and Powers of a Majority. At all meetings of the Board of Directors and of each committee thereof, a majority of the members shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which a quorum is present shall be the act of the Board of Directors or such committee, unless by express provision of law, of the Certificate of Incorporation, or of these Bylaws, a different vote is required, in which case such express provision shall govern and control. In the absence of a quorum, a majority of the members present at any meeting may, without notice other than announcement at the meeting, adjourn such meeting from time to time until a quorum is present. 4.8 Waiver of Notice. Notice of any meeting of the Board of Directors, or any committee thereof, need not be given to any member if waived by him or her in writing, whether before or after such meeting is held, or if he or she shall sign the minutes or attend the meeting, except that if such Director attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, then such Director shall not be deemed to have waived notice of such meeting. 4.9 Manner of Acting. (a) Members of the Board of Directors, or any committee thereof, may participate in any meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating therein can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting. (b) Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board of Directors or 5 6 such committee, as the case may be, consent thereto in writing, and the writings are filed with the minutes of proceedings of the Board of Directors or such committee. 4.10 Compensation. (a) The Board of Directors, by a resolution or resolutions, may fix, and from time to time change, the compensation of Directors. (b) Each Director shall be entitled to reimbursement from the Corporation for his or her reasonable expenses incurred with respect to duties as a member of the Board of Directors or any committee thereof. (c) Nothing contained in these Bylaws shall be construed to preclude any Director from serving the Corporation in any other capacity and from receiving compensation from the Corporation for service rendered to it in such other capacity. 4.11 Committees. The Board of Directors (or any committee thereof having the power and authority to do so) may designate one or more committees, each committee to consist of one or more Directors, which to the extent provided in said resolution or resolutions shall have and may exercise the powers and authority of the Board of Directors in the management of the business and affairs of the corporation; provided, however, that no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the General Corporation Law of Delaware (the "GCLD") to be submitted to stockholders for approval or (ii) adopting, amending, or repealing any bylaw of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting of such committee and not disqualified from voting, whether or not such member of members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of such absent or disqualified director. 4.12 Committee Procedure, Limitations of Committee Powers. (a) Except as otherwise provided by these Bylaws, each committee shall adopt its own rules governing the time, place and method of holding its meetings and the conduct of its proceedings and shall meet as provided by such rules or by resolution of the Board of Directors. Unless otherwise provided by these Bylaws or any such rules or resolutions, notice of the time and place of each meeting of a committee shall be given to each member of such committee as provided in Section 4.6 of these Bylaws with respect to notices of special meetings of the Board of Directors. (b) Each committee shall keep regular minutes of its proceedings and report the same to the Board of Directors when required. (c) Any member of any committee may be removed from such committee either with or without cause, at any time, by the Board of Directors at any meeting thereof. Any vacancy in any committee shall be filled by the Board of Directors in the manner prescribed by the Certificate of Incorporation or these Bylaws for the original appointment of the members of such committee. 5. OFFICERS. 5.1 Number. (a) The officers of the Corporation shall include a Chief Executive Officer, a President, one or more Vice Presidents (including one or more Executive Vice Presidents and one or more Senior Vice Presidents if deemed appropriate by the Board of Directors), a Chief Financial Officer, a Secretary, a Treasurer, and a Controller. The Board of Directors shall also elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except for the Chairman of the Board, the Vice Chairman of the Board, and the Chief Executive Officer, none of the officers of the Corporation needs to be a director of the Corporation. Any two or more offices may be held by the same person to the extent permitted by the GCLD. 6 7 (b) The Chief Executive Officer shall have the power to appoint one or more employees of the Corporation as divisional or departmental vice presidents and fix the duties of such appointees. However, no such divisional or departmental vice president shall be considered as an officer of the Corporation. 5.2 Election of Officers, Qualification and Term. The Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President, the Chief Financial Officer, the Secretary and the Treasurer of the Corporation shall be elected from time to time by the Board of Directors and, except as may otherwise be expressly provided in a contract of employment duly authorized by the Board of Directors, shall hold office at the pleasure of the Board of Directors. The Board of Directors and the Chief Executive Officer also may elect such other officers as the Board of Directors or the Chief Executive Officer may from time to time deem appropriate or necessary. 5.3 Removal. Any officer elected by the Board of Directors may be removed, either with or without cause, by the Board of Directors at any meeting thereof, or to the extent delegated to the Chairman of the Board or the Chief Executive Officer, by the Chairman of the Board or the Chief Executive Officer. 5.4 Resignations. Any officer of the Corporation may resign at any time by giving written notice to the Board of Directors or to the Chairman of the Board or to the Chief Executive Officer. Such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 5.5 Compensation. The compensation of all officers of the Corporation shall be fixed by or in the manner provided by the Board of Directors from time to time, and no officer shall be prevented from receiving such compensation by reason of the fact that he or she is also a Director of the Corporation. 5.6 The Chairman of the Board. The Chairman of the Board shall have the powers and duties customarily and usually associated with the office of the Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. The Chairman of the Board shall preside at meetings of the stockholders and of the Board of Directors. 5.7 Vice Chairman of the Board. The Vice Chairman of the Board, if any, shall have the powers and duties customarily and usually associated with the office of the Vice Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. 5.8 Chief Executive Officer. The Chief Executive Officer shall have, subject to the supervision, direction and control of the Board of Directors, the general powers and duties of supervision, direction and management of the affairs and business of the Corporation usually vested in the chief executive officer of a corporation, including, without limitation, all powers necessary to direct and control the organizational and reporting relationships within the Corporation. In addition, the Chief Executive Officer shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. If at any time the office of the Chairman of the Board and the Vice Chairman of the Board shall not be filled, or in the event of the temporary absence or disability of the Chairman of the Board and the Vice Chairman of the Board, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board. 5.9 The President. The President shall serve as chief operating officer, shall have the powers and duties customarily and usually associated with the office of the President and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.10 The Vice Presidents. Each Vice President shall have such powers and duties customarily and usually associated with the office of Vice President and shall have such other powers and perform 7 8 such other duties as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, or the President. 5.11 The Chief Financial Officer. The Chief Financial Officer shall be responsible for the financial affairs of the Corporation, including overseeing the duties performed by the Treasurer of the Corporation. In addition, the Chief Financial Officer shall have such powers and duties customarily and usually associated with the office of the Chief Financial Officer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.12 The Secretary and the Assistant Secretary. (a) The Secretary shall attend meetings of the Board of Directors and meetings of the stockholders and record all votes and minutes of all such proceedings in a book kept for such purpose. In addition, the Secretary shall have such powers and duties customarily and usually associated with the office of Secretary and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors, the Chief Executive Officer, or the President. (b) Each Assistant Secretary shall have such powers and perform such duties customarily and usually associated with the office of Assistant Secretary and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Secretary. In case of the absence or disability of the Secretary, the Assistant Secretary designated by the Chief Executive Officer (or, in the absence of such designation, by the Secretary) shall perform the duties and exercise the powers of the Secretary. 5.13 The Treasurer and the Assistant Treasurer. (a) The Treasurer shall have custody of the Corporation's funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit or cause to be deposited moneys or other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall also maintain adequate records of all assets, liabilities, and transactions of the Corporation and shall see that adequate audits thereof are currently and regularly made. In addition, the Treasurer shall have such powers and duties customarily and usually associated with the office of Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. (b) Each Assistant Treasurer shall have such powers and perform such duties customarily and usually associated with the office of Assistant Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Treasurer. In case of the absence or disability of the Treasurer, the Assistant Treasurer designated by the Chief Executive Officer (or, in the absence of such designation, by the Treasurer) shall perform the duties and exercise the powers of the Treasurer. 5.14 Controller. The Controller shall be responsible for maintaining the accounting records and statements, and shall properly account for all monies and obligations due the Corporation and all properties, assets, and liabilities of the Corporation. The Controller shall render to the Chairman of the Board, the President or the Chief Financial Officer such periodic reports covering the results of operations of the Corporation as may be required by either of them or by law. In addition, the Controller shall have such powers and duties customarily and usually associated with the office of Controller and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. 6. STOCK 6.1 Certificates. Certificates for shares of stock of the Corporation shall be issued under the seal of the Corporation, or a facsimile thereof, and shall be numbered and shall be entered in the books of the 8 9 Corporation as they are issued. Each certificate shall bear a serial number, shall exhibit the holder's name and the number of shares evidenced thereby, and shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the Chief Executive Officer or the President or any Vice President, and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person or entity were such officer, transfer agent, or registrar at the date of issue. 6.2 Transfers. Transfers of stock of the Corporation shall be made on the books of the Corporation only upon surrender to the Corporation of a certificate (if any) for the shares duly endorsed or accompanied by proper evidence of succession, assignment, or authority to transfer, provided such succession, assignment, or transfer is not prohibited by the Certificate of Incorporation, these Bylaws, applicable law or contract. Thereupon, the Corporation shall issue a new certificate (if requested) to the person entitled thereto, cancel the old certificate (if any), and record the transaction upon its books. 6.3 Lost, Stolen, or Destroyed Certificates. Any person claiming a certificate of stock to be lost, stolen, or destroyed shall make an affidavit or an affirmation of that fact, and shall give the Corporation a bond of indemnity in satisfactory form and with one or more satisfactory sureties, whereupon a new certificate (if requested) may be issued of the same tenor and for the same number of shares as the one alleged to be lost, stolen, or destroyed. 6.4 Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares as the person entitled to exercise the rights of a stockholder and shall not be bound to recognize any equitable or other claim to or interest in any such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by the GCLD. 6.5 Additional Powers of the Board. (a) In addition to those powers set forth in Section 4.1, the Board of Directors shall have power and authority to make all such rules and regulations as it shall deem expedient concerning the issue, transfer, and registration of certificates for shares of stock of the Corporation, including the use of uncertificated shares of stock subject to the provisions of the GCLD. (b) The Board of Directors may appoint and remove transfer agents and registrars of transfers, and may require all stock certificates to bear the signature of any such transfer agent and/or any such registrar of transfers. 7. INDEMNIFICATION 7.1 Each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or the person of whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation, as a director, officer, employee, or agent of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to employee benefit plans, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the GCLD, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expenses, liability, and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of his or her heirs, executors, and administrators; provided, however, that, except as provided in this Article 7, the Corporation shall indemnify any 9 10 such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if authorized by the Board of Directors of the Corporation. Any indemnification under this Article 7 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard set forth in the GCLD. Such a determination shall be made (a) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum; (b) by a committee of such directors designated by majority vote of such directors, even though less than a quorum; (c) by independent legal counsel (compensated by the Corporation) in a written opinion; (d) by the stockholders; or (e) in any other manner permitted by the GCLD. In addition to the right to indemnification conferred in this Article 7, each of the above persons shall have the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the GCLD requires, the payment of such expenses incurred by a present director or officer in his or her capacity as a director or officer of the corporation (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such present director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Article 7 or otherwise. The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers. The right to indemnification and to an advancement of expenses conferred in this Article 7 shall be a contract right. 7.2 If a claim under Section 7.1 of this Article 7 is not paid in full by the Corporation within 30 days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim (including attorneys' fees). 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 Corporation) that the claimant has not met the standard of conduct which makes it permissible under the GCLD for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD, nor an actual determination by the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) that the claimant has not met such 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. In any suit brought by the claimant to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the claimant is not entitled to be indemnified, or to such advancement of expenses, under this Article 7 or otherwise shall be on the Corporation. 7.3 The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article 7, shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, provision of the certificate of incorporation of the Corporation, this bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. 7.4 The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee, or agent of the Corporation or another corporation, partnership, joint venture, trust, or other enterprise against any such expense, liability, or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability, or loss under the GCLD. 7.5 The Corporation may enter into an indemnity agreement with any director, officer, employee, or agent of the Corporation, or of another corporation, partnership, joint venture, trust, or other 10 11 enterprise, upon terms and conditions that the Board of Directors deems appropriate, as long as the provisions of the agreement are not impermissible under applicable law. 7.6 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.7 In case any provision in this Article 7 shall be determined at any time to be unenforceable in any respect, the other provisions shall not in any way be affected or impaired thereby, and the affected provision shall be given the fullest possible enforcement in the circumstances, it being the intention of the Corporation to afford indemnification and advancement of expenses to the persons indemnified hereby to the fullest extent permitted by law. 7.8 The Corporation may, by action of the Board of Directors, authorize one or more officers to grant rights to indemnification and advancement of expenses to former directors and officers or to other employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances. 8. MISCELLANEOUS 8.1 Place and Inspection of Books. (a) The books of the Corporation other than such books as are required by law to be kept within the State of Delaware shall be kept in such place or places either within or without the State of Delaware as the Board of Directors may from time to time determine. (b) At least ten days before each meeting of stockholders, the officer in charge of the stock ledger of the Corporation shall prepare a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. (c) The Board of Directors shall determine from time to time whether and, if allowed, when and under what conditions and regulations the accounts and books of the Corporation (except such as may be by law specifically open to inspection or as otherwise provided by these Bylaws) or any of them shall be open to the inspection of the stockholders and the stockholders' rights in respect thereof. 8.2 Voting Shares in Other Corporations. The Chief Executive Officer, the President, the Chief Financial Officer or any other officer of the Corporation designated by the Board of Directors may vote any and all shares held by the Corporation in any other corporation. 8.3 Fiscal Year. The fiscal year of the Corporation shall be such fiscal year as the Board of Directors from time to time by resolution shall determine. 8.4 Gender/Number. As used in these Bylaws, the masculine, feminine, or neuter gender, and the singular or plural number, shall each include the others whenever the context so indicates. 8.5 Paragraph Titles. The titles of the paragraphs have been inserted as a matter of reference only and shall not control or affect the meaning or construction of any of the terms and provisions hereof. 11 12 8.6 Amendment. These Bylaws may be altered, amended, or repealed by (a) the affirmative vote of 80% or more of the aggregate number of votes that the holders of the then outstanding shares of common stock and preferred stock are entitled to cast on the amendment, or (b) by resolution adopted by the affirmative vote of not less than a majority of the Directors in office, at any annual or regular meeting of the Board of Directors or at any special meeting of the Board of Directors if notice of the proposed alteration, amendment, or repeal be contained in written notice of such special meeting. Notwithstanding the foregoing, the amendment of any provision of these Bylaws that requires an affirmative vote in excess of a majority of the Directors in office shall require the affirmative vote of at least the number of directors the affirmative vote of whom is required by such provision. 8.7 Certificate of Incorporation. Notwithstanding anything to the contrary contained herein, if any provision contained in these Bylaws is inconsistent with or conflicts with a provision of the Certificate of Incorporation, such provision of these Bylaws shall be superseded by the inconsistent provision in the Certificate of Incorporation to the extent necessary to give effect to such provision in the Certificate of Incorporation. 12 EX-99.B.17.3 26 AMENDED & RESTATED BYLAWS AS AMENDED 12/31/99 1 DCI I, Inc B.17.3 Amended and Restated Bylaws Adopted December 31, 1999 2 AMENDED AND RESTATED B Y L A W S OF DCI I, INC. 1. OFFICES. 1.1 Offices. In addition to its registered office in the State of Delaware, the Corporation shall have a corporate office in Wilmington, Delaware, and such other offices, either within or without the State of Delaware, at such locations as the Board of Directors may from time to time determine or the business of the Corporation may require. 2. SEAL. 2.1 Seal. The Corporation shall have a seal, which shall have inscribed thereon its name and year of incorporation and the words, "Corporate Seal Delaware." 3. MEETINGS OF STOCKHOLDERS. 3.1 Annual Meetings. The annual meeting of stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as shall be determined by the Board of Directors from time to time. 3.2 Special Meetings. Special meetings of the stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as may be designated by the Chairman of the Board or by the Board of Directors. 3.3 Notice of Meetings. (a) Notices of meetings of stockholders shall be in writing and shall state the place, date, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which a meeting is called. No business other than that specified in the notice thereof shall be transacted at any special meeting. (b) Such notice shall either be delivered personally, mailed, postage prepaid, or delivered by any other lawful means to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. If mailed, the notice shall be directed to the stockholder at his or her address as it appears on the records of the Corporation. Delivery of any such notice to any officer of a corporation or association or to any member of a partnership shall constitute delivery of such notice to such corporation, association, or partnership. (c) Notice of any meeting of stockholders need not be given to any stockholder if waived by such stockholder in writing, whether before or after such meeting is held, or if such stockholder shall sign the minutes or attend the meeting, except that if such stockholder attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, such stockholder shall not be deemed to have waived notice of such meeting. 3.4 Adjourned Meetings. When a meeting is adjourned to another time or place, unless otherwise provided by these Bylaws, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the stockholders may transact any business that might have been transacted at the original meeting. If an adjournment 2 3 is for more than 30 days, or if after an adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting. 3.5 Quorum and Adjournment. Except as otherwise provided by law, by the Certificate of Incorporation of the Corporation, or by these Bylaws, the presence, in person or by proxy, of the holders of a majority of the aggregate voting power of the stock issued and outstanding, entitled to vote thereat, shall constitute a quorum for the transaction of business at all meetings of stockholders. If such majority shall not be present or represented at any meeting of stockholders, the stockholders present, although less than a quorum, shall have the power to adjourn the meeting. 3.6 Vote Required. Except as otherwise provided by law or by the Certificate of Incorporation: (a) Directors shall be elected by a plurality of the votes present in person or represented by proxy at a meeting of stockholders and entitled to vote in the election of directors, and (b) whenever any corporate action other than the election of Directors is to be taken, it shall be authorized by a majority in voting power of the shares present in person or by proxy at a meeting of stockholders and entitled to vote on the subject matter. 3.7 Manner of Voting. At each meeting of stockholders, each stockholder having the right to vote shall be entitled to vote in person or by proxy. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed before being voted. Each stockholder shall be entitled to vote each share of stock having voting power registered in his or her name on the books of the Corporation on the record date fixed for determination of stockholders entitled to vote at such meeting. 3.8 Stockholder Action Without a Meeting. Except as otherwise provided by law or by the Certificate of Incorporation, any action required to be taken at any meeting of stockholders of the corporation, or any action that may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice, and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of the holders to take the action were delivered to the Corporation. 3.9 Proxies. (a) At any meeting of stockholders, any stockholder may be represented and vote by proxy or proxies. In the event that any form of proxy shall designate two or more persons to act as proxies, a majority of such persons present at the meeting or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by the form of proxy upon all of the persons so designated unless the form of proxy shall otherwise provide. (b) The Board of Directors may, in advance of any annual or special meeting of the stockholders, prescribe additional regulations concerning the validation of the same, which are intended to be voted at any such meeting. 3.10 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the stockholders. In the absence of the Chairman of the Board, the Vice Chairman of the Board or, in his or her absence, any Director designated by the Chairman of the Board or the Board of Directors shall act as chairman of the meeting. 3 4 The Secretary of the Corporation shall act as secretary of all meetings of the stockholders, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the stockholders, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 3.11 Procedure. At each meeting of stockholders, the chairman of the meeting shall fix and announce the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at the meeting and shall determine the order of business and all other matters of procedure. Except to the extent inconsistent with any such rules and regulations as adopted by the Board of Directors, the chairman of the meeting may establish rules, which need not be in writing, to maintain order and safety and for the conduct of the meeting. Without limiting the foregoing, he or she may: (a) restrict attendance at any time to bona fide stockholders of record and their proxies and other persons in attendance at the invitation of the chairman; (b) restrict dissemination of solicitation materials and use of audio or visual recording devices at the meeting; (c) adjourn the meeting without a vote of the stockholders, whether or not there is a quorum present; and (d) make rules governing speeches and debate, including time limits and access to microphones. The chairman of the meeting shall be entitled to act in his or her absolute discretion and his or her rulings shall not be subject to appeal. 4. DIRECTORS. 4.1 Powers and Number. The Board of Directors shall exercise all of the powers of the Corporation except such as are by law, or by the Certificate of Incorporation of this Corporation or by these Bylaws conferred upon or reserved to the stockholders of any class or classes. The number of directors that shall constitute the whole Board of Directors shall be no fewer than three (3) and no greater than nine (9), the exact number of directors to be determined from time to time by resolution adopted by the Board of Directors or the stockholders, and until otherwise determined by the Board of Directors or the stockholders, the number of directors that shall constitute the whole Board of Directors shall be three (3). 4.2 Resignations. Any Director may resign at any time by giving written notice to the Board of Directors or the Secretary. Such resignation shall take effect at the date of receipt of such notice or at any later time specified therein. Acceptance of such resignation shall not be necessary to make it effective. 4.3 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the Board of Directors. In the absence of the Chairman of the Board, the Vice Chairman of the Board, or in his absence, the Chief Executive Officer or other person designated by the Board of Directors shall act as chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the Board of Directors, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the Board of Directors, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 4 5 4.4 Annual Meetings. The Board of Directors shall meet each year immediately following the annual meeting of stockholders, at the place where such meeting of stockholders has been held, or at such other place as shall be fixed by the person presiding over the meeting of the stockholders, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. In the event that in any year Directors are elected by written consent in lieu of an annual meeting of stockholders, the Board of Directors shall meet in such year as soon as practicable after receipt of such written consent by the Corporation at such time and place as shall be fixed by the Chairman of the Board, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. 4.5 Regular Meetings. Regular meetings of the Board of Directors shall be held on such dates and at such times and places, within or without the state of Delaware, as shall from time to time be determined by the Board of Directors. In the absence of any such determination, such meetings shall be held at such times and places, within or without the State of Delaware, as shall be designated by the Chairman of the Board on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex or by electronic mail or by other electronic means, or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. 4.6 Special Meetings. Special meetings of the Board of Directors shall be held at the call of the Chairman of the Board at such times and places, within or without the State of Delaware, as he or she shall designate, on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex, by electronic mail or by other electronic means or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. Special meetings shall be called by the Secretary on like notice at the written request of a majority of the Directors then in office. 4.7 Quorum and Powers of a Majority. At all meetings of the Board of Directors and of each committee thereof, a majority of the members shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which a quorum is present shall be the act of the Board of Directors or such committee, unless by express provision of law, of the Certificate of Incorporation, or of these Bylaws, a different vote is required, in which case such express provision shall govern and control. In the absence of a quorum, a majority of the members present at any meeting may, without notice other than announcement at the meeting, adjourn such meeting from time to time until a quorum is present. 4.8 Waiver of Notice. Notice of any meeting of the Board of Directors, or any committee thereof, need not be given to any member if waived by him or her in writing, whether before or after such meeting is held, or if he or she shall sign the minutes or attend the meeting, except that if such Director attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, then such Director shall not be deemed to have waived notice of such meeting. 4.9 Manner of Acting. (a) Members of the Board of Directors, or any committee thereof, may participate in any meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating therein can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting. (b) Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board of Directors or 5 6 such committee, as the case may be, consent thereto in writing, and the writings are filed with the minutes of proceedings of the Board of Directors or such committee. 4.10 Compensation. (a) The Board of Directors, by a resolution or resolutions, may fix, and from time to time change, the compensation of Directors. (b) Each Director shall be entitled to reimbursement from the Corporation for his or her reasonable expenses incurred with respect to duties as a member of the Board of Directors or any committee thereof. (c) Nothing contained in these Bylaws shall be construed to preclude any Director from serving the Corporation in any other capacity and from receiving compensation from the Corporation for service rendered to it in such other capacity. 4.11 Committees. The Board of Directors (or any committee thereof having the power and authority to do so) may designate one or more committees, each committee to consist of one or more Directors, which to the extent provided in said resolution or resolutions shall have and may exercise the powers and authority of the Board of Directors in the management of the business and affairs of the corporation; provided, however, that no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the General Corporation Law of Delaware (the "GCLD") to be submitted to stockholders for approval or (ii) adopting, amending, or repealing any bylaw of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting of such committee and not disqualified from voting, whether or not such member of members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of such absent or disqualified director. 4.12 Committee Procedure, Limitations of Committee Powers. (a) Except as otherwise provided by these Bylaws, each committee shall adopt its own rules governing the time, place and method of holding its meetings and the conduct of its proceedings and shall meet as provided by such rules or by resolution of the Board of Directors. Unless otherwise provided by these Bylaws or any such rules or resolutions, notice of the time and place of each meeting of a committee shall be given to each member of such committee as provided in Section 4.6 of these Bylaws with respect to notices of special meetings of the Board of Directors. (b) Each committee shall keep regular minutes of its proceedings and report the same to the Board of Directors when required. (c) Any member of any committee may be removed from such committee either with or without cause, at any time, by the Board of Directors at any meeting thereof. Any vacancy in any committee shall be filled by the Board of Directors in the manner prescribed by the Certificate of Incorporation or these Bylaws for the original appointment of the members of such committee. 5. OFFICERS. 5.1 Number. (a) The officers of the Corporation shall include a Chief Executive Officer, a President, one or more Vice Presidents (including one or more Executive Vice Presidents and one or more Senior Vice Presidents if deemed appropriate by the Board of Directors), a Chief Financial Officer, a Secretary, a Treasurer, and a Controller. The Board of Directors shall also elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except for the Chairman of the Board, the Vice Chairman of the Board, and the Chief Executive Officer, none of the officers of the Corporation needs to be a director of the Corporation. Any two or more offices may be held by the same person to the extent permitted by the GCLD. 6 7 (b) The Chief Executive Officer shall have the power to appoint one or more employees of the Corporation as divisional or departmental vice presidents and fix the duties of such appointees. However, no such divisional or departmental vice president shall be considered as an officer of the Corporation. 5.2 Election of Officers, Qualification and Term. The Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President, the Chief Financial Officer, the Secretary and the Treasurer of the Corporation shall be elected from time to time by the Board of Directors and, except as may otherwise be expressly provided in a contract of employment duly authorized by the Board of Directors, shall hold office at the pleasure of the Board of Directors. The Board of Directors and the Chief Executive Officer also may elect such other officers as the Board of Directors or the Chief Executive Officer may from time to time deem appropriate or necessary. 5.3 Removal. Any officer elected by the Board of Directors may be removed, either with or without cause, by the Board of Directors at any meeting thereof, or to the extent delegated to the Chairman of the Board or the Chief Executive Officer, by the Chairman of the Board or the Chief Executive Officer. 5.4 Resignations. Any officer of the Corporation may resign at any time by giving written notice to the Board of Directors or to the Chairman of the Board or to the Chief Executive Officer. Such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 5.5 Compensation. The compensation of all officers of the Corporation shall be fixed by or in the manner provided by the Board of Directors from time to time, and no officer shall be prevented from receiving such compensation by reason of the fact that he or she is also a Director of the Corporation. 5.6 The Chairman of the Board. The Chairman of the Board shall have the powers and duties customarily and usually associated with the office of the Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. The Chairman of the Board shall preside at meetings of the stockholders and of the Board of Directors. 5.7 Vice Chairman of the Board. The Vice Chairman of the Board, if any, shall have the powers and duties customarily and usually associated with the office of the Vice Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. 5.8 Chief Executive Officer. The Chief Executive Officer shall have, subject to the supervision, direction and control of the Board of Directors, the general powers and duties of supervision, direction and management of the affairs and business of the Corporation usually vested in the chief executive officer of a corporation, including, without limitation, all powers necessary to direct and control the organizational and reporting relationships within the Corporation. In addition, the Chief Executive Officer shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. If at any time the office of the Chairman of the Board and the Vice Chairman of the Board shall not be filled, or in the event of the temporary absence or disability of the Chairman of the Board and the Vice Chairman of the Board, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board. 5.9 The President. The President shall serve as chief operating officer, shall have the powers and duties customarily and usually associated with the office of the President and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.10 The Vice Presidents. Each Vice President shall have such powers and duties customarily and usually associated with the office of Vice President and shall have such other powers and perform 7 8 such other duties as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, or the President. 5.11 The Chief Financial Officer. The Chief Financial Officer shall be responsible for the financial affairs of the Corporation, including overseeing the duties performed by the Treasurer of the Corporation. In addition, the Chief Financial Officer shall have such powers and duties customarily and usually associated with the office of the Chief Financial Officer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.12 The Secretary and the Assistant Secretary. (a) The Secretary shall attend meetings of the Board of Directors and meetings of the stockholders and record all votes and minutes of all such proceedings in a book kept for such purpose. In addition, the Secretary shall have such powers and duties customarily and usually associated with the office of Secretary and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors, the Chief Executive Officer, or the President. (b) Each Assistant Secretary shall have such powers and perform such duties customarily and usually associated with the office of Assistant Secretary and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Secretary. In case of the absence or disability of the Secretary, the Assistant Secretary designated by the Chief Executive Officer (or, in the absence of such designation, by the Secretary) shall perform the duties and exercise the powers of the Secretary. 5.13 The Treasurer and the Assistant Treasurer. (a) The Treasurer shall have custody of the Corporation's funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit or cause to be deposited moneys or other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall also maintain adequate records of all assets, liabilities, and transactions of the Corporation and shall see that adequate audits thereof are currently and regularly made. In addition, the Treasurer shall have such powers and duties customarily and usually associated with the office of Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. (b) Each Assistant Treasurer shall have such powers and perform such duties customarily and usually associated with the office of Assistant Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Treasurer. In case of the absence or disability of the Treasurer, the Assistant Treasurer designated by the Chief Executive Officer (or, in the absence of such designation, by the Treasurer) shall perform the duties and exercise the powers of the Treasurer. 5.14 Controller. The Controller shall be responsible for maintaining the accounting records and statements, and shall properly account for all monies and obligations due the Corporation and all properties, assets, and liabilities of the Corporation. The Controller shall render to the Chairman of the Board, the President or the Chief Financial Officer such periodic reports covering the results of operations of the Corporation as may be required by either of them or by law. In addition, the Controller shall have such powers and duties customarily and usually associated with the office of Controller and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. 6. STOCK 6.1 Certificates. Certificates for shares of stock of the Corporation shall be issued under the seal of the Corporation, or a facsimile thereof, and shall be numbered and shall be entered in the books of the 8 9 Corporation as they are issued. Each certificate shall bear a serial number, shall exhibit the holder's name and the number of shares evidenced thereby, and shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the Chief Executive Officer or the President or any Vice President, and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person or entity were such officer, transfer agent, or registrar at the date of issue. 6.2 Transfers. Transfers of stock of the Corporation shall be made on the books of the Corporation only upon surrender to the Corporation of a certificate (if any) for the shares duly endorsed or accompanied by proper evidence of succession, assignment, or authority to transfer, provided such succession, assignment, or transfer is not prohibited by the Certificate of Incorporation, these Bylaws, applicable law or contract. Thereupon, the Corporation shall issue a new certificate (if requested) to the person entitled thereto, cancel the old certificate (if any), and record the transaction upon its books. 6.3 Lost, Stolen, or Destroyed Certificates. Any person claiming a certificate of stock to be lost, stolen, or destroyed shall make an affidavit or an affirmation of that fact, and shall give the Corporation a bond of indemnity in satisfactory form and with one or more satisfactory sureties, whereupon a new certificate (if requested) may be issued of the same tenor and for the same number of shares as the one alleged to be lost, stolen, or destroyed. 6.4 Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares as the person entitled to exercise the rights of a stockholder and shall not be bound to recognize any equitable or other claim to or interest in any such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by the GCLD. 6.5 Additional Powers of the Board. (a) In addition to those powers set forth in Section 4.1, the Board of Directors shall have power and authority to make all such rules and regulations as it shall deem expedient concerning the issue, transfer, and registration of certificates for shares of stock of the Corporation, including the use of uncertificated shares of stock subject to the provisions of the GCLD. (b) The Board of Directors may appoint and remove transfer agents and registrars of transfers, and may require all stock certificates to bear the signature of any such transfer agent and/or any such registrar of transfers. 7. INDEMNIFICATION 7.1 Each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or the person of whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation, as a director, officer, employee, or agent of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to employee benefit plans, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the GCLD, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expenses, liability, and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of his or her heirs, executors, and administrators; provided, however, that, except as provided in this Article 7, the Corporation shall indemnify any 9 10 such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if authorized by the Board of Directors of the Corporation. Any indemnification under this Article 7 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard set forth in the GCLD. Such a determination shall be made (a) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum; (b) by a committee of such directors designated by majority vote of such directors, even though less than a quorum; (c) by independent legal counsel (compensated by the Corporation) in a written opinion; (d) by the stockholders; or (e) in any other manner permitted by the GCLD. In addition to the right to indemnification conferred in this Article 7, each of the above persons shall have the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the GCLD requires, the payment of such expenses incurred by a present director or officer in his or her capacity as a director or officer of the corporation (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such present director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Article 7 or otherwise. The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers. The right to indemnification and to an advancement of expenses conferred in this Article 7 shall be a contract right. 7.2 If a claim under Section 7.1 of this Article 7 is not paid in full by the Corporation within 30 days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim (including attorneys' fees). 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 Corporation) that the claimant has not met the standard of conduct which makes it permissible under the GCLD for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD, nor an actual determination by the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) that the claimant has not met such 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. In any suit brought by the claimant to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the claimant is not entitled to be indemnified, or to such advancement of expenses, under this Article 7 or otherwise shall be on the Corporation. 7.3 The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article 7, shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, provision of the certificate of incorporation of the Corporation, this bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. 7.4 The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee, or agent of the Corporation or another corporation, partnership, joint venture, trust, or other enterprise against any such expense, liability, or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability, or loss under the GCLD. 7.5 The Corporation may enter into an indemnity agreement with any director, officer, employee, or agent of the Corporation, or of another corporation, partnership, joint venture, trust, or other 10 11 enterprise, upon terms and conditions that the Board of Directors deems appropriate, as long as the provisions of the agreement are not impermissible under applicable law. 7.6 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.7 In case any provision in this Article 7 shall be determined at any time to be unenforceable in any respect, the other provisions shall not in any way be affected or impaired thereby, and the affected provision shall be given the fullest possible enforcement in the circumstances, it being the intention of the Corporation to afford indemnification and advancement of expenses to the persons indemnified hereby to the fullest extent permitted by law. 7.8 The Corporation may, by action of the Board of Directors, authorize one or more officers to grant rights to indemnification and advancement of expenses to former directors and officers or to other employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances. 8. MISCELLANEOUS 8.1 Place and Inspection of Books. (a) The books of the Corporation other than such books as are required by law to be kept within the State of Delaware shall be kept in such place or places either within or without the State of Delaware as the Board of Directors may from time to time determine. (b) At least ten days before each meeting of stockholders, the officer in charge of the stock ledger of the Corporation shall prepare a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. (c) The Board of Directors shall determine from time to time whether and, if allowed, when and under what conditions and regulations the accounts and books of the Corporation (except such as may be by law specifically open to inspection or as otherwise provided by these Bylaws) or any of them shall be open to the inspection of the stockholders and the stockholders' rights in respect thereof. 8.2 Voting Shares in Other Corporations. The Chief Executive Officer, the President, the Chief Financial Officer or any other officer of the Corporation designated by the Board of Directors may vote any and all shares held by the Corporation in any other corporation. 8.3 Fiscal Year. The fiscal year of the Corporation shall be such fiscal year as the Board of Directors from time to time by resolution shall determine. 8.4 Gender/Number. As used in these Bylaws, the masculine, feminine, or neuter gender, and the singular or plural number, shall each include the others whenever the context so indicates. 8.5 Paragraph Titles. The titles of the paragraphs have been inserted as a matter of reference only and shall not control or affect the meaning or construction of any of the terms and provisions hereof. 11 12 8.6 Amendment. These Bylaws may be altered, amended, or repealed by (a) the affirmative vote of 80% or more of the aggregate number of votes that the holders of the then outstanding shares of common stock and preferred stock are entitled to cast on the amendment, or (b) by resolution adopted by the affirmative vote of not less than a majority of the Directors in office, at any annual or regular meeting of the Board of Directors or at any special meeting of the Board of Directors if notice of the proposed alteration, amendment, or repeal be contained in written notice of such special meeting. Notwithstanding the foregoing, the amendment of any provision of these Bylaws that requires an affirmative vote in excess of a majority of the Directors in office shall require the affirmative vote of at least the number of directors the affirmative vote of whom is required by such provision. 8.7 Certificate of Incorporation. Notwithstanding anything to the contrary contained herein, if any provision contained in these Bylaws is inconsistent with or conflicts with a provision of the Certificate of Incorporation, such provision of these Bylaws shall be superseded by the inconsistent provision in the Certificate of Incorporation to the extent necessary to give effect to such provision in the Certificate of Incorporation. 12 EX-99.B.19.2 27 AMENDED & RESTATED BYLAWS AS AMENDED 12/31/99 1 DCTC-Burney, Inc B.19.2 Amended and Restated Bylaws Adopted December 31, 1999 2 AMENDED AND RESTATED B Y L A W S OF DCTC-BURNEY, INC. 1. OFFICES. 1.1 Offices. In addition to its registered office in the State of Delaware, the Corporation shall have a corporate office in Wilmington, Delaware, and such other offices, either within or without the State of Delaware, at such locations as the Board of Directors may from time to time determine or the business of the Corporation may require. 2. SEAL. 2.1 Seal. The Corporation shall have a seal, which shall have inscribed thereon its name and year of incorporation and the words, "Corporate Seal Delaware." 3. MEETINGS OF STOCKHOLDERS. 3.1 Annual Meetings. The annual meeting of stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as shall be determined by the Board of Directors from time to time. 3.2 Special Meetings. Special meetings of the stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as may be designated by the Chairman of the Board or by the Board of Directors. 3.3 Notice of Meetings. (a) Notices of meetings of stockholders shall be in writing and shall state the place, date, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which a meeting is called. No business other than that specified in the notice thereof shall be transacted at any special meeting. (b) Such notice shall either be delivered personally, mailed, postage prepaid, or delivered by any other lawful means to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. If mailed, the notice shall be directed to the stockholder at his or her address as it appears on the records of the Corporation. Delivery of any such notice to any officer of a corporation or association or to any member of a partnership shall constitute delivery of such notice to such corporation, association, or partnership. (c) Notice of any meeting of stockholders need not be given to any stockholder if waived by such stockholder in writing, whether before or after such meeting is held, or if such stockholder shall sign the minutes or attend the meeting, except that if such stockholder attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, such stockholder shall not be deemed to have waived notice of such meeting. 3.4 Adjourned Meetings. When a meeting is adjourned to another time or place, unless otherwise provided by these Bylaws, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the stockholders may transact any business that might have been transacted at the original meeting. If an adjournment 2 3 is for more than 30 days, or if after an adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting. 3.5 Quorum and Adjournment. Except as otherwise provided by law, by the Certificate of Incorporation of the Corporation, or by these Bylaws, the presence, in person or by proxy, of the holders of a majority of the aggregate voting power of the stock issued and outstanding, entitled to vote thereat, shall constitute a quorum for the transaction of business at all meetings of stockholders. If such majority shall not be present or represented at any meeting of stockholders, the stockholders present, although less than a quorum, shall have the power to adjourn the meeting. 3.6 Vote Required. Except as otherwise provided by law or by the Certificate of Incorporation: (a) Directors shall be elected by a plurality of the votes present in person or represented by proxy at a meeting of stockholders and entitled to vote in the election of directors, and (b) whenever any corporate action other than the election of Directors is to be taken, it shall be authorized by a majority in voting power of the shares present in person or by proxy at a meeting of stockholders and entitled to vote on the subject matter. 3.7 Manner of Voting. At each meeting of stockholders, each stockholder having the right to vote shall be entitled to vote in person or by proxy. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed before being voted. Each stockholder shall be entitled to vote each share of stock having voting power registered in his or her name on the books of the Corporation on the record date fixed for determination of stockholders entitled to vote at such meeting. 3.8 Stockholder Action Without a Meeting. Except as otherwise provided by law or by the Certificate of Incorporation, any action required to be taken at any meeting of stockholders of the corporation, or any action that may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice, and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of the holders to take the action were delivered to the Corporation. 3.9 Proxies. (a) At any meeting of stockholders, any stockholder may be represented and vote by proxy or proxies. In the event that any form of proxy shall designate two or more persons to act as proxies, a majority of such persons present at the meeting or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by the form of proxy upon all of the persons so designated unless the form of proxy shall otherwise provide. (b) The Board of Directors may, in advance of any annual or special meeting of the stockholders, prescribe additional regulations concerning the validation of the same, which are intended to be voted at any such meeting. 3.10 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the stockholders. In the absence of the Chairman of the Board, the Vice Chairman of the Board or, in his or her absence, any Director designated by the Chairman of the Board or the Board of Directors shall act as chairman of the meeting. 3 4 The Secretary of the Corporation shall act as secretary of all meetings of the stockholders, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the stockholders, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 3.11 Procedure. At each meeting of stockholders, the chairman of the meeting shall fix and announce the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at the meeting and shall determine the order of business and all other matters of procedure. Except to the extent inconsistent with any such rules and regulations as adopted by the Board of Directors, the chairman of the meeting may establish rules, which need not be in writing, to maintain order and safety and for the conduct of the meeting. Without limiting the foregoing, he or she may: (a) restrict attendance at any time to bona fide stockholders of record and their proxies and other persons in attendance at the invitation of the chairman; (b) restrict dissemination of solicitation materials and use of audio or visual recording devices at the meeting; (c) adjourn the meeting without a vote of the stockholders, whether or not there is a quorum present; and (d) make rules governing speeches and debate, including time limits and access to microphones. The chairman of the meeting shall be entitled to act in his or her absolute discretion and his or her rulings shall not be subject to appeal. 4. DIRECTORS. 4.1 Powers and Number. The Board of Directors shall exercise all of the powers of the Corporation except such as are by law, or by the Certificate of Incorporation of this Corporation or by these Bylaws conferred upon or reserved to the stockholders of any class or classes. The number of directors that shall constitute the whole Board of Directors shall be no fewer than three (3) and no greater than nine (9), the exact number of directors to be determined from time to time by resolution adopted by the Board of Directors or the stockholders, and until otherwise determined by the Board of Directors or the stockholders, the number of directors that shall constitute the whole Board of Directors shall be three (3). 4.2 Resignations. Any Director may resign at any time by giving written notice to the Board of Directors or the Secretary. Such resignation shall take effect at the date of receipt of such notice or at any later time specified therein. Acceptance of such resignation shall not be necessary to make it effective. 4.3 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the Board of Directors. In the absence of the Chairman of the Board, the Vice Chairman of the Board, or in his absence, the Chief Executive Officer or other person designated by the Board of Directors shall act as chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the Board of Directors, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the Board of Directors, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 4 5 4.4 Annual Meetings. The Board of Directors shall meet each year immediately following the annual meeting of stockholders, at the place where such meeting of stockholders has been held, or at such other place as shall be fixed by the person presiding over the meeting of the stockholders, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. In the event that in any year Directors are elected by written consent in lieu of an annual meeting of stockholders, the Board of Directors shall meet in such year as soon as practicable after receipt of such written consent by the Corporation at such time and place as shall be fixed by the Chairman of the Board, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. 4.5 Regular Meetings. Regular meetings of the Board of Directors shall be held on such dates and at such times and places, within or without the state of Delaware, as shall from time to time be determined by the Board of Directors. In the absence of any such determination, such meetings shall be held at such times and places, within or without the State of Delaware, as shall be designated by the Chairman of the Board on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex or by electronic mail or by other electronic means, or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. 4.6 Special Meetings. Special meetings of the Board of Directors shall be held at the call of the Chairman of the Board at such times and places, within or without the State of Delaware, as he or she shall designate, on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex, by electronic mail or by other electronic means or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. Special meetings shall be called by the Secretary on like notice at the written request of a majority of the Directors then in office. 4.7 Quorum and Powers of a Majority. At all meetings of the Board of Directors and of each committee thereof, a majority of the members shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which a quorum is present shall be the act of the Board of Directors or such committee, unless by express provision of law, of the Certificate of Incorporation, or of these Bylaws, a different vote is required, in which case such express provision shall govern and control. In the absence of a quorum, a majority of the members present at any meeting may, without notice other than announcement at the meeting, adjourn such meeting from time to time until a quorum is present. 4.8 Waiver of Notice. Notice of any meeting of the Board of Directors, or any committee thereof, need not be given to any member if waived by him or her in writing, whether before or after such meeting is held, or if he or she shall sign the minutes or attend the meeting, except that if such Director attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, then such Director shall not be deemed to have waived notice of such meeting. 4.9 Manner of Acting. (a) Members of the Board of Directors, or any committee thereof, may participate in any meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating therein can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting. (b) Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board of Directors or 5 6 such committee, as the case may be, consent thereto in writing, and the writings are filed with the minutes of proceedings of the Board of Directors or such committee. 4.10 Compensation. (a) The Board of Directors, by a resolution or resolutions, may fix, and from time to time change, the compensation of Directors. (b) Each Director shall be entitled to reimbursement from the Corporation for his or her reasonable expenses incurred with respect to duties as a member of the Board of Directors or any committee thereof. (c) Nothing contained in these Bylaws shall be construed to preclude any Director from serving the Corporation in any other capacity and from receiving compensation from the Corporation for service rendered to it in such other capacity. 4.11 Committees. The Board of Directors (or any committee thereof having the power and authority to do so) may designate one or more committees, each committee to consist of one or more Directors, which to the extent provided in said resolution or resolutions shall have and may exercise the powers and authority of the Board of Directors in the management of the business and affairs of the corporation; provided, however, that no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the General Corporation Law of Delaware (the "GCLD") to be submitted to stockholders for approval or (ii) adopting, amending, or repealing any bylaw of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting of such committee and not disqualified from voting, whether or not such member of members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of such absent or disqualified director. 4.12 Committee Procedure, Limitations of Committee Powers. (a) Except as otherwise provided by these Bylaws, each committee shall adopt its own rules governing the time, place and method of holding its meetings and the conduct of its proceedings and shall meet as provided by such rules or by resolution of the Board of Directors. Unless otherwise provided by these Bylaws or any such rules or resolutions, notice of the time and place of each meeting of a committee shall be given to each member of such committee as provided in Section 4.6 of these Bylaws with respect to notices of special meetings of the Board of Directors. (b) Each committee shall keep regular minutes of its proceedings and report the same to the Board of Directors when required. (c) Any member of any committee may be removed from such committee either with or without cause, at any time, by the Board of Directors at any meeting thereof. Any vacancy in any committee shall be filled by the Board of Directors in the manner prescribed by the Certificate of Incorporation or these Bylaws for the original appointment of the members of such committee. 5. OFFICERS. 5.1 Number. (a) The officers of the Corporation shall include a Chief Executive Officer, a President, one or more Vice Presidents (including one or more Executive Vice Presidents and one or more Senior Vice Presidents if deemed appropriate by the Board of Directors), a Chief Financial Officer, a Secretary, a Treasurer, and a Controller. The Board of Directors shall also elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except for the Chairman of the Board, the Vice Chairman of the Board, and the Chief Executive Officer, none of the officers of the Corporation needs to be a director of the Corporation. Any two or more offices may be held by the same person to the extent permitted by the GCLD. 6 7 (b) The Chief Executive Officer shall have the power to appoint one or more employees of the Corporation as divisional or departmental vice presidents and fix the duties of such appointees. However, no such divisional or departmental vice president shall be considered as an officer of the Corporation. 5.2 Election of Officers, Qualification and Term. The Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President, the Chief Financial Officer, the Secretary and the Treasurer of the Corporation shall be elected from time to time by the Board of Directors and, except as may otherwise be expressly provided in a contract of employment duly authorized by the Board of Directors, shall hold office at the pleasure of the Board of Directors. The Board of Directors and the Chief Executive Officer also may elect such other officers as the Board of Directors or the Chief Executive Officer may from time to time deem appropriate or necessary. 5.3 Removal. Any officer elected by the Board of Directors may be removed, either with or without cause, by the Board of Directors at any meeting thereof, or to the extent delegated to the Chairman of the Board or the Chief Executive Officer, by the Chairman of the Board or the Chief Executive Officer. 5.4 Resignations. Any officer of the Corporation may resign at any time by giving written notice to the Board of Directors or to the Chairman of the Board or to the Chief Executive Officer. Such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 5.5 Compensation. The compensation of all officers of the Corporation shall be fixed by or in the manner provided by the Board of Directors from time to time, and no officer shall be prevented from receiving such compensation by reason of the fact that he or she is also a Director of the Corporation. 5.6 The Chairman of the Board. The Chairman of the Board shall have the powers and duties customarily and usually associated with the office of the Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. The Chairman of the Board shall preside at meetings of the stockholders and of the Board of Directors. 5.7 Vice Chairman of the Board. The Vice Chairman of the Board, if any, shall have the powers and duties customarily and usually associated with the office of the Vice Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. 5.8 Chief Executive Officer. The Chief Executive Officer shall have, subject to the supervision, direction and control of the Board of Directors, the general powers and duties of supervision, direction and management of the affairs and business of the Corporation usually vested in the chief executive officer of a corporation, including, without limitation, all powers necessary to direct and control the organizational and reporting relationships within the Corporation. In addition, the Chief Executive Officer shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. If at any time the office of the Chairman of the Board and the Vice Chairman of the Board shall not be filled, or in the event of the temporary absence or disability of the Chairman of the Board and the Vice Chairman of the Board, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board. 5.9 The President. The President shall serve as chief operating officer, shall have the powers and duties customarily and usually associated with the office of the President and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.10 The Vice Presidents. Each Vice President shall have such powers and duties customarily and usually associated with the office of Vice President and shall have such other powers and perform 7 8 such other duties as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, or the President. 5.11 The Chief Financial Officer. The Chief Financial Officer shall be responsible for the financial affairs of the Corporation, including overseeing the duties performed by the Treasurer of the Corporation. In addition, the Chief Financial Officer shall have such powers and duties customarily and usually associated with the office of the Chief Financial Officer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.12 The Secretary and the Assistant Secretary. (a) The Secretary shall attend meetings of the Board of Directors and meetings of the stockholders and record all votes and minutes of all such proceedings in a book kept for such purpose. In addition, the Secretary shall have such powers and duties customarily and usually associated with the office of Secretary and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors, the Chief Executive Officer, or the President. (b) Each Assistant Secretary shall have such powers and perform such duties customarily and usually associated with the office of Assistant Secretary and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Secretary. In case of the absence or disability of the Secretary, the Assistant Secretary designated by the Chief Executive Officer (or, in the absence of such designation, by the Secretary) shall perform the duties and exercise the powers of the Secretary. 5.13 The Treasurer and the Assistant Treasurer. (a) The Treasurer shall have custody of the Corporation's funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit or cause to be deposited moneys or other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall also maintain adequate records of all assets, liabilities, and transactions of the Corporation and shall see that adequate audits thereof are currently and regularly made. In addition, the Treasurer shall have such powers and duties customarily and usually associated with the office of Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. (b) Each Assistant Treasurer shall have such powers and perform such duties customarily and usually associated with the office of Assistant Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Treasurer. In case of the absence or disability of the Treasurer, the Assistant Treasurer designated by the Chief Executive Officer (or, in the absence of such designation, by the Treasurer) shall perform the duties and exercise the powers of the Treasurer. 5.14 Controller. The Controller shall be responsible for maintaining the accounting records and statements, and shall properly account for all monies and obligations due the Corporation and all properties, assets, and liabilities of the Corporation. The Controller shall render to the Chairman of the Board, the President or the Chief Financial Officer such periodic reports covering the results of operations of the Corporation as may be required by either of them or by law. In addition, the Controller shall have such powers and duties customarily and usually associated with the office of Controller and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. 6. STOCK 6.1 Certificates. Certificates for shares of stock of the Corporation shall be issued under the seal of the Corporation, or a facsimile thereof, and shall be numbered and shall be entered in the books of the 8 9 Corporation as they are issued. Each certificate shall bear a serial number, shall exhibit the holder's name and the number of shares evidenced thereby, and shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the Chief Executive Officer or the President or any Vice President, and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person or entity were such officer, transfer agent, or registrar at the date of issue. 6.2 Transfers. Transfers of stock of the Corporation shall be made on the books of the Corporation only upon surrender to the Corporation of a certificate (if any) for the shares duly endorsed or accompanied by proper evidence of succession, assignment, or authority to transfer, provided such succession, assignment, or transfer is not prohibited by the Certificate of Incorporation, these Bylaws, applicable law or contract. Thereupon, the Corporation shall issue a new certificate (if requested) to the person entitled thereto, cancel the old certificate (if any), and record the transaction upon its books. 6.3 Lost, Stolen, or Destroyed Certificates. Any person claiming a certificate of stock to be lost, stolen, or destroyed shall make an affidavit or an affirmation of that fact, and shall give the Corporation a bond of indemnity in satisfactory form and with one or more satisfactory sureties, whereupon a new certificate (if requested) may be issued of the same tenor and for the same number of shares as the one alleged to be lost, stolen, or destroyed. 6.4 Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares as the person entitled to exercise the rights of a stockholder and shall not be bound to recognize any equitable or other claim to or interest in any such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by the GCLD. 6.5 Additional Powers of the Board. (a) In addition to those powers set forth in Section 4.1, the Board of Directors shall have power and authority to make all such rules and regulations as it shall deem expedient concerning the issue, transfer, and registration of certificates for shares of stock of the Corporation, including the use of uncertificated shares of stock subject to the provisions of the GCLD. (b) The Board of Directors may appoint and remove transfer agents and registrars of transfers, and may require all stock certificates to bear the signature of any such transfer agent and/or any such registrar of transfers. 7. INDEMNIFICATION 7.1 Each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or the person of whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation, as a director, officer, employee, or agent of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to employee benefit plans, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the GCLD, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expenses, liability, and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of his or her heirs, executors, and administrators; provided, however, that, except as provided in this Article 7, the Corporation shall indemnify any 9 10 such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if authorized by the Board of Directors of the Corporation. Any indemnification under this Article 7 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard set forth in the GCLD. Such a determination shall be made (a) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum; (b) by a committee of such directors designated by majority vote of such directors, even though less than a quorum; (c) by independent legal counsel (compensated by the Corporation) in a written opinion; (d) by the stockholders; or (e) in any other manner permitted by the GCLD. In addition to the right to indemnification conferred in this Article 7, each of the above persons shall have the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the GCLD requires, the payment of such expenses incurred by a present director or officer in his or her capacity as a director or officer of the corporation (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such present director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Article 7 or otherwise. The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers. The right to indemnification and to an advancement of expenses conferred in this Article 7 shall be a contract right. 7.2 If a claim under Section 7.1 of this Article 7 is not paid in full by the Corporation within 30 days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim (including attorneys' fees). 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 Corporation) that the claimant has not met the standard of conduct which makes it permissible under the GCLD for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD, nor an actual determination by the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) that the claimant has not met such 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. In any suit brought by the claimant to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the claimant is not entitled to be indemnified, or to such advancement of expenses, under this Article 7 or otherwise shall be on the Corporation. 7.3 The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article 7, shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, provision of the certificate of incorporation of the Corporation, this bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. 7.4 The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee, or agent of the Corporation or another corporation, partnership, joint venture, trust, or other enterprise against any such expense, liability, or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability, or loss under the GCLD. 7.5 The Corporation may enter into an indemnity agreement with any director, officer, employee, or agent of the Corporation, or of another corporation, partnership, joint venture, trust, or other 10 11 enterprise, upon terms and conditions that the Board of Directors deems appropriate, as long as the provisions of the agreement are not impermissible under applicable law. 7.6 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.7 In case any provision in this Article 7 shall be determined at any time to be unenforceable in any respect, the other provisions shall not in any way be affected or impaired thereby, and the affected provision shall be given the fullest possible enforcement in the circumstances, it being the intention of the Corporation to afford indemnification and advancement of expenses to the persons indemnified hereby to the fullest extent permitted by law. 7.8 The Corporation may, by action of the Board of Directors, authorize one or more officers to grant rights to indemnification and advancement of expenses to former directors and officers or to other employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances. 8. MISCELLANEOUS 8.1 Place and Inspection of Books. (a) The books of the Corporation other than such books as are required by law to be kept within the State of Delaware shall be kept in such place or places either within or without the State of Delaware as the Board of Directors may from time to time determine. (b) At least ten days before each meeting of stockholders, the officer in charge of the stock ledger of the Corporation shall prepare a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. (c) The Board of Directors shall determine from time to time whether and, if allowed, when and under what conditions and regulations the accounts and books of the Corporation (except such as may be by law specifically open to inspection or as otherwise provided by these Bylaws) or any of them shall be open to the inspection of the stockholders and the stockholders' rights in respect thereof. 8.2 Voting Shares in Other Corporations. The Chief Executive Officer, the President, the Chief Financial Officer or any other officer of the Corporation designated by the Board of Directors may vote any and all shares held by the Corporation in any other corporation. 8.3 Fiscal Year. The fiscal year of the Corporation shall be such fiscal year as the Board of Directors from time to time by resolution shall determine. 8.4 Gender/Number. As used in these Bylaws, the masculine, feminine, or neuter gender, and the singular or plural number, shall each include the others whenever the context so indicates. 8.5 Paragraph Titles. The titles of the paragraphs have been inserted as a matter of reference only and shall not control or affect the meaning or construction of any of the terms and provisions hereof. 11 12 8.6 Amendment. These Bylaws may be altered, amended, or repealed by (a) the affirmative vote of 80% or more of the aggregate number of votes that the holders of the then outstanding shares of common stock and preferred stock are entitled to cast on the amendment, or (b) by resolution adopted by the affirmative vote of not less than a majority of the Directors in office, at any annual or regular meeting of the Board of Directors or at any special meeting of the Board of Directors if notice of the proposed alteration, amendment, or repeal be contained in written notice of such special meeting. Notwithstanding the foregoing, the amendment of any provision of these Bylaws that requires an affirmative vote in excess of a majority of the Directors in office shall require the affirmative vote of at least the number of directors the affirmative vote of whom is required by such provision. 8.7 Certificate of Incorporation. Notwithstanding anything to the contrary contained herein, if any provision contained in these Bylaws is inconsistent with or conflicts with a provision of the Certificate of Incorporation, such provision of these Bylaws shall be superseded by the inconsistent provision in the Certificate of Incorporation to the extent necessary to give effect to such provision in the Certificate of Incorporation. 12 EX-99.B.20.3 28 AMENDED & RESTATED BYLAWS AS AMENDED 12/31/99 1 Conectiv Operating Services Company B.20.3 Amended and Restated Bylaws Adopted December 31, 1999 2 AMENDED AND RESTATED B Y L A W S OF CONECTIV OPERATING SERVICES COMPANY 1. OFFICES. 1.1 Offices. In addition to its registered office in the State of Delaware, the Corporation shall have a corporate office in Wilmington, Delaware, and such other offices, either within or without the State of Delaware, at such locations as the Board of Directors may from time to time determine or the business of the Corporation may require. 2. SEAL. 2.1 Seal. The Corporation shall have a seal, which shall have inscribed thereon its name and year of incorporation and the words, "Corporate Seal Delaware." 3. MEETINGS OF STOCKHOLDERS. 3.1 Annual Meetings. The annual meeting of stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as shall be determined by the Board of Directors from time to time. 3.2 Special Meetings. Special meetings of the stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as may be designated by the Chairman of the Board or by the Board of Directors. 3.3 Notice of Meetings. (a) Notices of meetings of stockholders shall be in writing and shall state the place, date, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which a meeting is called. No business other than that specified in the notice thereof shall be transacted at any special meeting. (b) Such notice shall either be delivered personally, mailed, postage prepaid, or delivered by any other lawful means to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. If mailed, the notice shall be directed to the stockholder at his or her address as it appears on the records of the Corporation. Delivery of any such notice to any officer of a corporation or association or to any member of a partnership shall constitute delivery of such notice to such corporation, association, or partnership. (c) Notice of any meeting of stockholders need not be given to any stockholder if waived by such stockholder in writing, whether before or after such meeting is held, or if such stockholder shall sign the minutes or attend the meeting, except that if such stockholder attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, such stockholder shall not be deemed to have waived notice of such meeting. 3.4 Adjourned Meetings. When a meeting is adjourned to another time or place, unless otherwise provided by these Bylaws, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the stockholders may transact any business that might have been transacted at the original meeting. If an adjournment 2 3 is for more than 30 days, or if after an adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting. 3.5 Quorum and Adjournment. Except as otherwise provided by law, by the Certificate of Incorporation of the Corporation, or by these Bylaws, the presence, in person or by proxy, of the holders of a majority of the aggregate voting power of the stock issued and outstanding, entitled to vote thereat, shall constitute a quorum for the transaction of business at all meetings of stockholders. If such majority shall not be present or represented at any meeting of stockholders, the stockholders present, although less than a quorum, shall have the power to adjourn the meeting. 3.6 Vote Required. Except as otherwise provided by law or by the Certificate of Incorporation: (a) Directors shall be elected by a plurality of the votes present in person or represented by proxy at a meeting of stockholders and entitled to vote in the election of directors, and (b) whenever any corporate action other than the election of Directors is to be taken, it shall be authorized by a majority in voting power of the shares present in person or by proxy at a meeting of stockholders and entitled to vote on the subject matter. 3.7 Manner of Voting. At each meeting of stockholders, each stockholder having the right to vote shall be entitled to vote in person or by proxy. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed before being voted. Each stockholder shall be entitled to vote each share of stock having voting power registered in his or her name on the books of the Corporation on the record date fixed for determination of stockholders entitled to vote at such meeting. 3.8 Stockholder Action Without a Meeting. Except as otherwise provided by law or by the Certificate of Incorporation, any action required to be taken at any meeting of stockholders of the corporation, or any action that may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice, and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of the holders to take the action were delivered to the Corporation. 3.9 Proxies. (a) At any meeting of stockholders, any stockholder may be represented and vote by proxy or proxies. In the event that any form of proxy shall designate two or more persons to act as proxies, a majority of such persons present at the meeting or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by the form of proxy upon all of the persons so designated unless the form of proxy shall otherwise provide. (b) The Board of Directors may, in advance of any annual or special meeting of the stockholders, prescribe additional regulations concerning the validation of the same, which are intended to be voted at any such meeting. 3.10 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the stockholders. In the absence of the Chairman of the Board, the Vice Chairman of the Board or, in his or her absence, any Director designated by the Chairman of the Board or the Board of Directors shall act as chairman of the meeting. 3 4 The Secretary of the Corporation shall act as secretary of all meetings of the stockholders, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the stockholders, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 3.11 Procedure. At each meeting of stockholders, the chairman of the meeting shall fix and announce the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at the meeting and shall determine the order of business and all other matters of procedure. Except to the extent inconsistent with any such rules and regulations as adopted by the Board of Directors, the chairman of the meeting may establish rules, which need not be in writing, to maintain order and safety and for the conduct of the meeting. Without limiting the foregoing, he or she may: (a) restrict attendance at any time to bona fide stockholders of record and their proxies and other persons in attendance at the invitation of the chairman; (b) restrict dissemination of solicitation materials and use of audio or visual recording devices at the meeting; (c) adjourn the meeting without a vote of the stockholders, whether or not there is a quorum present; and (d) make rules governing speeches and debate, including time limits and access to microphones. The chairman of the meeting shall be entitled to act in his or her absolute discretion and his or her rulings shall not be subject to appeal. 4. DIRECTORS. 4.1 Powers and Number. The Board of Directors shall exercise all of the powers of the Corporation except such as are by law, or by the Certificate of Incorporation of this Corporation or by these Bylaws conferred upon or reserved to the stockholders of any class or classes. The number of directors that shall constitute the whole Board of Directors shall be no fewer than three (3) and no greater than nine (9), the exact number of directors to be determined from time to time by resolution adopted by the Board of Directors or the stockholders, and until otherwise determined by the Board of Directors or the stockholders, the number of directors that shall constitute the whole Board of Directors shall be three (3). 4.2 Resignations. Any Director may resign at any time by giving written notice to the Board of Directors or the Secretary. Such resignation shall take effect at the date of receipt of such notice or at any later time specified therein. Acceptance of such resignation shall not be necessary to make it effective. 4.3 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the Board of Directors. In the absence of the Chairman of the Board, the Vice Chairman of the Board, or in his absence, the Chief Executive Officer or other person designated by the Board of Directors shall act as chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the Board of Directors, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the Board of Directors, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 4 5 4.4 Annual Meetings. The Board of Directors shall meet each year immediately following the annual meeting of stockholders, at the place where such meeting of stockholders has been held, or at such other place as shall be fixed by the person presiding over the meeting of the stockholders, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. In the event that in any year Directors are elected by written consent in lieu of an annual meeting of stockholders, the Board of Directors shall meet in such year as soon as practicable after receipt of such written consent by the Corporation at such time and place as shall be fixed by the Chairman of the Board, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. 4.5 Regular Meetings. Regular meetings of the Board of Directors shall be held on such dates and at such times and places, within or without the state of Delaware, as shall from time to time be determined by the Board of Directors. In the absence of any such determination, such meetings shall be held at such times and places, within or without the State of Delaware, as shall be designated by the Chairman of the Board on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex or by electronic mail or by other electronic means, or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. 4.6 Special Meetings. Special meetings of the Board of Directors shall be held at the call of the Chairman of the Board at such times and places, within or without the State of Delaware, as he or she shall designate, on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex, by electronic mail or by other electronic means or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. Special meetings shall be called by the Secretary on like notice at the written request of a majority of the Directors then in office. 4.7 Quorum and Powers of a Majority. At all meetings of the Board of Directors and of each committee thereof, a majority of the members shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which a quorum is present shall be the act of the Board of Directors or such committee, unless by express provision of law, of the Certificate of Incorporation, or of these Bylaws, a different vote is required, in which case such express provision shall govern and control. In the absence of a quorum, a majority of the members present at any meeting may, without notice other than announcement at the meeting, adjourn such meeting from time to time until a quorum is present. 4.8 Waiver of Notice. Notice of any meeting of the Board of Directors, or any committee thereof, need not be given to any member if waived by him or her in writing, whether before or after such meeting is held, or if he or she shall sign the minutes or attend the meeting, except that if such Director attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, then such Director shall not be deemed to have waived notice of such meeting. 4.9 Manner of Acting. (a) Members of the Board of Directors, or any committee thereof, may participate in any meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating therein can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting. (b) Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board of Directors or 5 6 such committee, as the case may be, consent thereto in writing, and the writings are filed with the minutes of proceedings of the Board of Directors or such committee. 4.10 Compensation. (a) The Board of Directors, by a resolution or resolutions, may fix, and from time to time change, the compensation of Directors. (b) Each Director shall be entitled to reimbursement from the Corporation for his or her reasonable expenses incurred with respect to duties as a member of the Board of Directors or any committee thereof. (c) Nothing contained in these Bylaws shall be construed to preclude any Director from serving the Corporation in any other capacity and from receiving compensation from the Corporation for service rendered to it in such other capacity. 4.11 Committees. The Board of Directors (or any committee thereof having the power and authority to do so) may designate one or more committees, each committee to consist of one or more Directors, which to the extent provided in said resolution or resolutions shall have and may exercise the powers and authority of the Board of Directors in the management of the business and affairs of the corporation; provided, however, that no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the General Corporation Law of Delaware (the "GCLD") to be submitted to stockholders for approval or (ii) adopting, amending, or repealing any bylaw of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting of such committee and not disqualified from voting, whether or not such member of members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of such absent or disqualified director. 4.12 Committee Procedure, Limitations of Committee Powers. (a) Except as otherwise provided by these Bylaws, each committee shall adopt its own rules governing the time, place and method of holding its meetings and the conduct of its proceedings and shall meet as provided by such rules or by resolution of the Board of Directors. Unless otherwise provided by these Bylaws or any such rules or resolutions, notice of the time and place of each meeting of a committee shall be given to each member of such committee as provided in Section 4.6 of these Bylaws with respect to notices of special meetings of the Board of Directors. (b) Each committee shall keep regular minutes of its proceedings and report the same to the Board of Directors when required. (c) Any member of any committee may be removed from such committee either with or without cause, at any time, by the Board of Directors at any meeting thereof. Any vacancy in any committee shall be filled by the Board of Directors in the manner prescribed by the Certificate of Incorporation or these Bylaws for the original appointment of the members of such committee. 5. OFFICERS. 5.1 Number. (a) The officers of the Corporation shall include a Chief Executive Officer, a President, one or more Vice Presidents (including one or more Executive Vice Presidents and one or more Senior Vice Presidents if deemed appropriate by the Board of Directors), a Chief Financial Officer, a Secretary, a Treasurer, and a Controller. The Board of Directors shall also elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except for the Chairman of the Board, the Vice Chairman of the Board, and the Chief Executive Officer, none of the officers of the Corporation needs to be a director of the Corporation. Any two or more offices may be held by the same person to the extent permitted by the GCLD. 6 7 (b) The Chief Executive Officer shall have the power to appoint one or more employees of the Corporation as divisional or departmental vice presidents and fix the duties of such appointees. However, no such divisional or departmental vice president shall be considered as an officer of the Corporation. 5.2 Election of Officers, Qualification and Term. The Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President, the Chief Financial Officer, the Secretary and the Treasurer of the Corporation shall be elected from time to time by the Board of Directors and, except as may otherwise be expressly provided in a contract of employment duly authorized by the Board of Directors, shall hold office at the pleasure of the Board of Directors. The Board of Directors and the Chief Executive Officer also may elect such other officers as the Board of Directors or the Chief Executive Officer may from time to time deem appropriate or necessary. 5.3 Removal. Any officer elected by the Board of Directors may be removed, either with or without cause, by the Board of Directors at any meeting thereof, or to the extent delegated to the Chairman of the Board or the Chief Executive Officer, by the Chairman of the Board or the Chief Executive Officer. 5.4 Resignations. Any officer of the Corporation may resign at any time by giving written notice to the Board of Directors or to the Chairman of the Board or to the Chief Executive Officer. Such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 5.5 Compensation. The compensation of all officers of the Corporation shall be fixed by or in the manner provided by the Board of Directors from time to time, and no officer shall be prevented from receiving such compensation by reason of the fact that he or she is also a Director of the Corporation. 5.6 The Chairman of the Board. The Chairman of the Board shall have the powers and duties customarily and usually associated with the office of the Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. The Chairman of the Board shall preside at meetings of the stockholders and of the Board of Directors. 5.7 Vice Chairman of the Board. The Vice Chairman of the Board, if any, shall have the powers and duties customarily and usually associated with the office of the Vice Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. 5.8 Chief Executive Officer. The Chief Executive Officer shall have, subject to the supervision, direction and control of the Board of Directors, the general powers and duties of supervision, direction and management of the affairs and business of the Corporation usually vested in the chief executive officer of a corporation, including, without limitation, all powers necessary to direct and control the organizational and reporting relationships within the Corporation. In addition, the Chief Executive Officer shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. If at any time the office of the Chairman of the Board and the Vice Chairman of the Board shall not be filled, or in the event of the temporary absence or disability of the Chairman of the Board and the Vice Chairman of the Board, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board. 5.9 The President. The President shall serve as chief operating officer, shall have the powers and duties customarily and usually associated with the office of the President and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.10 The Vice Presidents. Each Vice President shall have such powers and duties customarily and usually associated with the office of Vice President and shall have such other powers and perform 7 8 such other duties as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, or the President. 5.11 The Chief Financial Officer. The Chief Financial Officer shall be responsible for the financial affairs of the Corporation, including overseeing the duties performed by the Treasurer of the Corporation. In addition, the Chief Financial Officer shall have such powers and duties customarily and usually associated with the office of the Chief Financial Officer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.12 The Secretary and the Assistant Secretary. (a) The Secretary shall attend meetings of the Board of Directors and meetings of the stockholders and record all votes and minutes of all such proceedings in a book kept for such purpose. In addition, the Secretary shall have such powers and duties customarily and usually associated with the office of Secretary and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors, the Chief Executive Officer, or the President. (b) Each Assistant Secretary shall have such powers and perform such duties customarily and usually associated with the office of Assistant Secretary and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Secretary. In case of the absence or disability of the Secretary, the Assistant Secretary designated by the Chief Executive Officer (or, in the absence of such designation, by the Secretary) shall perform the duties and exercise the powers of the Secretary. 5.13 The Treasurer and the Assistant Treasurer. (a) The Treasurer shall have custody of the Corporation's funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit or cause to be deposited moneys or other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall also maintain adequate records of all assets, liabilities, and transactions of the Corporation and shall see that adequate audits thereof are currently and regularly made. In addition, the Treasurer shall have such powers and duties customarily and usually associated with the office of Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. (b) Each Assistant Treasurer shall have such powers and perform such duties customarily and usually associated with the office of Assistant Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Treasurer. In case of the absence or disability of the Treasurer, the Assistant Treasurer designated by the Chief Executive Officer (or, in the absence of such designation, by the Treasurer) shall perform the duties and exercise the powers of the Treasurer. 5.14 Controller. The Controller shall be responsible for maintaining the accounting records and statements, and shall properly account for all monies and obligations due the Corporation and all properties, assets, and liabilities of the Corporation. The Controller shall render to the Chairman of the Board, the President or the Chief Financial Officer such periodic reports covering the results of operations of the Corporation as may be required by either of them or by law. In addition, the Controller shall have such powers and duties customarily and usually associated with the office of Controller and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. 6. STOCK 6.1 Certificates. Certificates for shares of stock of the Corporation shall be issued under the seal of the Corporation, or a facsimile thereof, and shall be numbered and shall be entered in the books of the 8 9 Corporation as they are issued. Each certificate shall bear a serial number, shall exhibit the holder's name and the number of shares evidenced thereby, and shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the Chief Executive Officer or the President or any Vice President, and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person or entity were such officer, transfer agent, or registrar at the date of issue. 6.2 Transfers. Transfers of stock of the Corporation shall be made on the books of the Corporation only upon surrender to the Corporation of a certificate (if any) for the shares duly endorsed or accompanied by proper evidence of succession, assignment, or authority to transfer, provided such succession, assignment, or transfer is not prohibited by the Certificate of Incorporation, these Bylaws, applicable law or contract. Thereupon, the Corporation shall issue a new certificate (if requested) to the person entitled thereto, cancel the old certificate (if any), and record the transaction upon its books. 6.3 Lost, Stolen, or Destroyed Certificates. Any person claiming a certificate of stock to be lost, stolen, or destroyed shall make an affidavit or an affirmation of that fact, and shall give the Corporation a bond of indemnity in satisfactory form and with one or more satisfactory sureties, whereupon a new certificate (if requested) may be issued of the same tenor and for the same number of shares as the one alleged to be lost, stolen, or destroyed. 6.4 Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares as the person entitled to exercise the rights of a stockholder and shall not be bound to recognize any equitable or other claim to or interest in any such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by the GCLD. 6.5 Additional Powers of the Board. (a) In addition to those powers set forth in Section 4.1, the Board of Directors shall have power and authority to make all such rules and regulations as it shall deem expedient concerning the issue, transfer, and registration of certificates for shares of stock of the Corporation, including the use of uncertificated shares of stock subject to the provisions of the GCLD. (b) The Board of Directors may appoint and remove transfer agents and registrars of transfers, and may require all stock certificates to bear the signature of any such transfer agent and/or any such registrar of transfers. 7. INDEMNIFICATION 7.1 Each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or the person of whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation, as a director, officer, employee, or agent of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to employee benefit plans, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the GCLD, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expenses, liability, and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of his or her heirs, executors, and administrators; provided, however, that, except as provided in this Article 7, the Corporation shall indemnify any 9 10 such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if authorized by the Board of Directors of the Corporation. Any indemnification under this Article 7 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard set forth in the GCLD. Such a determination shall be made (a) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum; (b) by a committee of such directors designated by majority vote of such directors, even though less than a quorum; (c) by independent legal counsel (compensated by the Corporation) in a written opinion; (d) by the stockholders; or (e) in any other manner permitted by the GCLD. In addition to the right to indemnification conferred in this Article 7, each of the above persons shall have the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the GCLD requires, the payment of such expenses incurred by a present director or officer in his or her capacity as a director or officer of the corporation (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such present director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Article 7 or otherwise. The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers. The right to indemnification and to an advancement of expenses conferred in this Article 7 shall be a contract right. 7.2 If a claim under Section 7.1 of this Article 7 is not paid in full by the Corporation within 30 days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim (including attorneys' fees). 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 Corporation) that the claimant has not met the standard of conduct which makes it permissible under the GCLD for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD, nor an actual determination by the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) that the claimant has not met such 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. In any suit brought by the claimant to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the claimant is not entitled to be indemnified, or to such advancement of expenses, under this Article 7 or otherwise shall be on the Corporation. 7.3 The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article 7, shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, provision of the certificate of incorporation of the Corporation, this bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. 7.4 The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee, or agent of the Corporation or another corporation, partnership, joint venture, trust, or other enterprise against any such expense, liability, or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability, or loss under the GCLD. 7.5 The Corporation may enter into an indemnity agreement with any director, officer, employee, or agent of the Corporation, or of another corporation, partnership, joint venture, trust, or other 10 11 enterprise, upon terms and conditions that the Board of Directors deems appropriate, as long as the provisions of the agreement are not impermissible under applicable law. 7.6 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.7 In case any provision in this Article 7 shall be determined at any time to be unenforceable in any respect, the other provisions shall not in any way be affected or impaired thereby, and the affected provision shall be given the fullest possible enforcement in the circumstances, it being the intention of the Corporation to afford indemnification and advancement of expenses to the persons indemnified hereby to the fullest extent permitted by law. 7.8 The Corporation may, by action of the Board of Directors, authorize one or more officers to grant rights to indemnification and advancement of expenses to former directors and officers or to other employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances. 8. MISCELLANEOUS 8.1 Place and Inspection of Books. (a) The books of the Corporation other than such books as are required by law to be kept within the State of Delaware shall be kept in such place or places either within or without the State of Delaware as the Board of Directors may from time to time determine. (b) At least ten days before each meeting of stockholders, the officer in charge of the stock ledger of the Corporation shall prepare a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. (c) The Board of Directors shall determine from time to time whether and, if allowed, when and under what conditions and regulations the accounts and books of the Corporation (except such as may be by law specifically open to inspection or as otherwise provided by these Bylaws) or any of them shall be open to the inspection of the stockholders and the stockholders' rights in respect thereof. 8.2 Voting Shares in Other Corporations. The Chief Executive Officer, the President, the Chief Financial Officer or any other officer of the Corporation designated by the Board of Directors may vote any and all shares held by the Corporation in any other corporation. 8.3 Fiscal Year. The fiscal year of the Corporation shall be such fiscal year as the Board of Directors from time to time by resolution shall determine. 8.4 Gender/Number. As used in these Bylaws, the masculine, feminine, or neuter gender, and the singular or plural number, shall each include the others whenever the context so indicates. 8.5 Paragraph Titles. The titles of the paragraphs have been inserted as a matter of reference only and shall not control or affect the meaning or construction of any of the terms and provisions hereof. 11 12 8.6 Amendment. These Bylaws may be altered, amended, or repealed by (a) the affirmative vote of 80% or more of the aggregate number of votes that the holders of the then outstanding shares of common stock and preferred stock are entitled to cast on the amendment, or (b) by resolution adopted by the affirmative vote of not less than a majority of the Directors in office, at any annual or regular meeting of the Board of Directors or at any special meeting of the Board of Directors if notice of the proposed alteration, amendment, or repeal be contained in written notice of such special meeting. Notwithstanding the foregoing, the amendment of any provision of these Bylaws that requires an affirmative vote in excess of a majority of the Directors in office shall require the affirmative vote of at least the number of directors the affirmative vote of whom is required by such provision. 8.7 Certificate of Incorporation. Notwithstanding anything to the contrary contained herein, if any provision contained in these Bylaws is inconsistent with or conflicts with a provision of the Certificate of Incorporation, such provision of these Bylaws shall be superseded by the inconsistent provision in the Certificate of Incorporation to the extent necessary to give effect to such provision in the Certificate of Incorporation. 12 EX-99.B.22.1 29 CERTIFICATE OF FORMATION OF MILLENIUM ACCOUNTS 1 Millenium Account Services, LLC B.22.1 Certificate of Formation 2 STATE OF DELAWARE LIMITED LIABILITY COMPANY CERTIFICATE OF FORMATION FIRST: The name of the limited liability company is Millenium Account Services, LLC SECOND: The address of its Registered Office in the State of Delaware is 800 King Street in the City of Wilmington, County of New Castle. The name of its Registered Agent at such address is Joseph Rigby. THIRD: (Use this paragraph only if the company is to have a specific effective date of dissolution: "The latest date on which the limited liability company is to dissolve is January 4, 2002.") FOURTH: (Insert any other matters the members determine to include herein.) The effective date of this Certificate of Formation for Millenium Account Services, LLC shall be January 1, 1999. IN WITNESS WHEREOF, the undersigned have executed this Certificate of Formation of 28th this day of December, 1998. By: _________________________ Authorized Person(s) Albert V. Ruggiero Name: _______________________ (Typed or Printed) EX-99.B.22.2 30 LIMITED LIABILITY COMPANY OPERATING AGREEMENT 1 Millenium Account Services, LLC B.22.2 Limited Liability Company Operating Agreement (Confidential Treatment Requested) EX-99.B.24.3 31 AMENDED & RESTATED BYLAWS AS AMENDED 12/31/99 1 Atlantic Southern Properties, Inc. B.24.3 Amended and Restated Bylaws Adopted December 31, 1999 2 AMENDED AND RESTATED B Y L A W S OF ATLANTIC SOUTHERN PROPERTIES, INC. 1. OFFICES. 1.1 Offices. In addition to its registered office in the State of Delaware, the Corporation shall have a corporate office in Wilmington, Delaware, and such other offices, either within or without the State of Delaware, at such locations as the Board of Directors may from time to time determine or the business of the Corporation may require. 2. SEAL. 2.1 Seal. The Corporation shall have a seal, which shall have inscribed thereon its name and year of incorporation and the words, "Corporate Seal New Jersey." 3. MEETINGS OF STOCKHOLDERS. 3.1 Annual Meetings. The annual meeting of stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as shall be determined by the Board of Directors from time to time. 3.2 Special Meetings. Special meetings of the stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as may be designated by the Chairman of the Board or by the Board of Directors. 3.3 Notice of Meetings. (a) Notices of meetings of stockholders shall be in writing and shall state the place, date, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which a meeting is called. No business other than that specified in the notice thereof shall be transacted at any special meeting. (b) Such notice shall either be delivered personally, mailed, postage prepaid, or delivered by any other lawful means to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. If mailed, the notice shall be directed to the stockholder at his or her address as it appears on the records of the Corporation. Delivery of any such notice to any officer of a corporation or association or to any member of a partnership shall constitute delivery of such notice to such corporation, association, or partnership. (c) Notice of any meeting of stockholders need not be given to any stockholder if waived by such stockholder in writing, whether before or after such meeting is held, or if such stockholder shall sign the minutes or attend the meeting, except that if such stockholder attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, such stockholder shall not be deemed to have waived notice of such meeting. 3.4 Adjourned Meetings. When a meeting is adjourned to another time or place, unless otherwise provided by these Bylaws, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the stockholders may transact any business that might have been transacted at the original meeting. If an adjournment 2 3 is for more than 30 days, or if after an adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting. 3.5 Quorum and Adjournment. Except as otherwise provided by law, by the Certificate of Incorporation of the Corporation, or by these Bylaws, the presence, in person or by proxy, of the holders of a majority of the aggregate voting power of the stock issued and outstanding, entitled to vote thereat, shall constitute a quorum for the transaction of business at all meetings of stockholders. If such majority shall not be present or represented at any meeting of stockholders, the stockholders present, although less than a quorum, shall have the power to adjourn the meeting. 3.6 Vote Required. Except as otherwise provided by law or by the Certificate of Incorporation: (a) Directors shall be elected by a plurality of the votes present in person or represented by proxy at a meeting of stockholders and entitled to vote in the election of directors, and (b) whenever any corporate action other than the election of Directors is to be taken, it shall be authorized by a majority in voting power of the shares present in person or by proxy at a meeting of stockholders and entitled to vote on the subject matter. 3.7 Manner of Voting. At each meeting of stockholders, each stockholder having the right to vote shall be entitled to vote in person or by proxy. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed before being voted. Each stockholder shall be entitled to vote each share of stock having voting power registered in his or her name on the books of the Corporation on the record date fixed for determination of stockholders entitled to vote at such meeting. 3.8 Stockholder Action Without a Meeting. Except as otherwise provided by law or by the Certificate of Incorporation, any action required to be taken at any meeting of stockholders of the corporation, or any action that may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice, and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of the holders to take the action were delivered to the Corporation. 3.9 Proxies. (a) At any meeting of stockholders, any stockholder may be represented and vote by proxy or proxies. In the event that any form of proxy shall designate two or more persons to act as proxies, a majority of such persons present at the meeting or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by the form of proxy upon all of the persons so designated unless the form of proxy shall otherwise provide. (b) The Board of Directors may, in advance of any annual or special meeting of the stockholders, prescribe additional regulations concerning the validation of the same, which are intended to be voted at any such meeting. 3.10 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the stockholders. In the absence of the Chairman of the Board, the Vice Chairman of the Board or, in his or her absence, any Director designated by the Chairman of the Board or the Board of Directors shall act as chairman of the meeting. 3 4 The Secretary of the Corporation shall act as secretary of all meetings of the stockholders, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the stockholders, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 3.11 Procedure. At each meeting of stockholders, the chairman of the meeting shall fix and announce the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at the meeting and shall determine the order of business and all other matters of procedure. Except to the extent inconsistent with any such rules and regulations as adopted by the Board of Directors, the chairman of the meeting may establish rules, which need not be in writing, to maintain order and safety and for the conduct of the meeting. Without limiting the foregoing, he or she may: (a) restrict attendance at any time to bona fide stockholders of record and their proxies and other persons in attendance at the invitation of the chairman; (b) restrict dissemination of solicitation materials and use of audio or visual recording devices at the meeting; (c) adjourn the meeting without a vote of the stockholders, whether or not there is a quorum present; and (d) make rules governing speeches and debate, including time limits and access to microphones. The chairman of the meeting shall be entitled to act in his or her absolute discretion and his or her rulings shall not be subject to appeal. 4. DIRECTORS. 4.1 Powers and Number. The Board of Directors shall exercise all of the powers of the Corporation except such as are by law, or by the Certificate of Incorporation of this Corporation or by these Bylaws conferred upon or reserved to the stockholders of any class or classes. The number of directors that shall constitute the whole Board of Directors shall be no fewer than three (3) and no greater than nine (9), the exact number of directors to be determined from time to time by resolution adopted by the Board of Directors or the stockholders, and until otherwise determined by the Board of Directors or the stockholders, the number of directors that shall constitute the whole Board of Directors shall be three (3). 4.2 Resignations. Any Director may resign at any time by giving written notice to the Board of Directors or the Secretary. Such resignation shall take effect at the date of receipt of such notice or at any later time specified therein. Acceptance of such resignation shall not be necessary to make it effective. 4.3 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the Board of Directors. In the absence of the Chairman of the Board, the Vice Chairman of the Board, or in his absence, the Chief Executive Officer or other person designated by the Board of Directors shall act as chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the Board of Directors, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the Board of Directors, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 4 5 4.4 Annual Meetings. The Board of Directors shall meet each year immediately following the annual meeting of stockholders, at the place where such meeting of stockholders has been held, or at such other place as shall be fixed by the person presiding over the meeting of the stockholders, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. In the event that in any year Directors are elected by written consent in lieu of an annual meeting of stockholders, the Board of Directors shall meet in such year as soon as practicable after receipt of such written consent by the Corporation at such time and place as shall be fixed by the Chairman of the Board, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. 4.5 Regular Meetings. Regular meetings of the Board of Directors shall be held on such dates and at such times and places, within or without the state of Delaware, as shall from time to time be determined by the Board of Directors. In the absence of any such determination, such meetings shall be held at such times and places, within or without the State of Delaware, as shall be designated by the Chairman of the Board on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex or by electronic mail or by other electronic means, or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. 4.6 Special Meetings. Special meetings of the Board of Directors shall be held at the call of the Chairman of the Board at such times and places, within or without the State of Delaware, as he or she shall designate, on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex, by electronic mail or by other electronic means or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. Special meetings shall be called by the Secretary on like notice at the written request of a majority of the Directors then in office. 4.7 Quorum and Powers of a Majority. At all meetings of the Board of Directors and of each committee thereof, a majority of the members shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which a quorum is present shall be the act of the Board of Directors or such committee, unless by express provision of law, of the Certificate of Incorporation, or of these Bylaws, a different vote is required, in which case such express provision shall govern and control. In the absence of a quorum, a majority of the members present at any meeting may, without notice other than announcement at the meeting, adjourn such meeting from time to time until a quorum is present. 4.8 Waiver of Notice. Notice of any meeting of the Board of Directors, or any committee thereof, need not be given to any member if waived by him or her in writing, whether before or after such meeting is held, or if he or she shall sign the minutes or attend the meeting, except that if such Director attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, then such Director shall not be deemed to have waived notice of such meeting. 4.9 Manner of Acting. (a) Members of the Board of Directors, or any committee thereof, may participate in any meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating therein can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting. (b) Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board of Directors or 5 6 such committee, as the case may be, consent thereto in writing, and the writings are filed with the minutes of proceedings of the Board of Directors or such committee. 4.10 Compensation. (a) The Board of Directors, by a resolution or resolutions, may fix, and from time to time change, the compensation of Directors. (b) Each Director shall be entitled to reimbursement from the Corporation for his or her reasonable expenses incurred with respect to duties as a member of the Board of Directors or any committee thereof. (c) Nothing contained in these Bylaws shall be construed to preclude any Director from serving the Corporation in any other capacity and from receiving compensation from the Corporation for service rendered to it in such other capacity. 4.11 Committees. The Board of Directors (or any committee thereof having the power and authority to do so) may designate one or more committees, each committee to consist of one or more Directors, which to the extent provided in said resolution or resolutions shall have and may exercise the powers and authority of the Board of Directors in the management of the business and affairs of the corporation; provided, however, that no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the General Corporation Law of Delaware (the "GCLD") to be submitted to stockholders for approval or (ii) adopting, amending, or repealing any bylaw of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting of such committee and not disqualified from voting, whether or not such member of members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of such absent or disqualified director. 4.12 Committee Procedure, Limitations of Committee Powers. (a) Except as otherwise provided by these Bylaws, each committee shall adopt its own rules governing the time, place and method of holding its meetings and the conduct of its proceedings and shall meet as provided by such rules or by resolution of the Board of Directors. Unless otherwise provided by these Bylaws or any such rules or resolutions, notice of the time and place of each meeting of a committee shall be given to each member of such committee as provided in Section 4.6 of these Bylaws with respect to notices of special meetings of the Board of Directors. (b) Each committee shall keep regular minutes of its proceedings and report the same to the Board of Directors when required. (c) Any member of any committee may be removed from such committee either with or without cause, at any time, by the Board of Directors at any meeting thereof. Any vacancy in any committee shall be filled by the Board of Directors in the manner prescribed by the Certificate of Incorporation or these Bylaws for the original appointment of the members of such committee. 5. OFFICERS. 5.1 Number. (a) The officers of the Corporation shall include a Chief Executive Officer, a President, one or more Vice Presidents (including one or more Executive Vice Presidents and one or more Senior Vice Presidents if deemed appropriate by the Board of Directors), a Chief Financial Officer, a Secretary, a Treasurer, and a Controller. The Board of Directors shall also elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except for the Chairman of the Board, the Vice Chairman of the Board, and the Chief Executive Officer, none of the officers of the Corporation needs to be a director of the Corporation. Any two or more offices may be held by the same person to the extent permitted by the GCLD. 6 7 (b) The Chief Executive Officer shall have the power to appoint one or more employees of the Corporation as divisional or departmental vice presidents and fix the duties of such appointees. However, no such divisional or departmental vice president shall be considered as an officer of the Corporation. 5.2 Election of Officers, Qualification and Term. The Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President, the Chief Financial Officer, the Secretary and the Treasurer of the Corporation shall be elected from time to time by the Board of Directors and, except as may otherwise be expressly provided in a contract of employment duly authorized by the Board of Directors, shall hold office at the pleasure of the Board of Directors. The Board of Directors and the Chief Executive Officer also may elect such other officers as the Board of Directors or the Chief Executive Officer may from time to time deem appropriate or necessary. 5.3 Removal. Any officer elected by the Board of Directors may be removed, either with or without cause, by the Board of Directors at any meeting thereof, or to the extent delegated to the Chairman of the Board or the Chief Executive Officer, by the Chairman of the Board or the Chief Executive Officer. 5.4 Resignations. Any officer of the Corporation may resign at any time by giving written notice to the Board of Directors or to the Chairman of the Board or to the Chief Executive Officer. Such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 5.5 Compensation. The compensation of all officers of the Corporation shall be fixed by or in the manner provided by the Board of Directors from time to time, and no officer shall be prevented from receiving such compensation by reason of the fact that he or she is also a Director of the Corporation. 5.6 The Chairman of the Board. The Chairman of the Board shall have the powers and duties customarily and usually associated with the office of the Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. The Chairman of the Board shall preside at meetings of the stockholders and of the Board of Directors. 5.7 Vice Chairman of the Board. The Vice Chairman of the Board, if any, shall have the powers and duties customarily and usually associated with the office of the Vice Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. 5.8 Chief Executive Officer. The Chief Executive Officer shall have, subject to the supervision, direction and control of the Board of Directors, the general powers and duties of supervision, direction and management of the affairs and business of the Corporation usually vested in the chief executive officer of a corporation, including, without limitation, all powers necessary to direct and control the organizational and reporting relationships within the Corporation. In addition, the Chief Executive Officer shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. If at any time the office of the Chairman of the Board and the Vice Chairman of the Board shall not be filled, or in the event of the temporary absence or disability of the Chairman of the Board and the Vice Chairman of the Board, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board. 5.9 The President. The President shall serve as chief operating officer, shall have the powers and duties customarily and usually associated with the office of the President and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.10 The Vice Presidents. Each Vice President shall have such powers and duties customarily and usually associated with the office of Vice President and shall have such other powers and perform 7 8 such other duties as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, or the President. 5.11 The Chief Financial Officer. The Chief Financial Officer shall be responsible for the financial affairs of the Corporation, including overseeing the duties performed by the Treasurer of the Corporation. In addition, the Chief Financial Officer shall have such powers and duties customarily and usually associated with the office of the Chief Financial Officer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.12 The Secretary and the Assistant Secretary. (a) The Secretary shall attend meetings of the Board of Directors and meetings of the stockholders and record all votes and minutes of all such proceedings in a book kept for such purpose. In addition, the Secretary shall have such powers and duties customarily and usually associated with the office of Secretary and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors, the Chief Executive Officer, or the President. (b) Each Assistant Secretary shall have such powers and perform such duties customarily and usually associated with the office of Assistant Secretary and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Secretary. In case of the absence or disability of the Secretary, the Assistant Secretary designated by the Chief Executive Officer (or, in the absence of such designation, by the Secretary) shall perform the duties and exercise the powers of the Secretary. 5.13 The Treasurer and the Assistant Treasurer. (a) The Treasurer shall have custody of the Corporation's funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit or cause to be deposited moneys or other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall also maintain adequate records of all assets, liabilities, and transactions of the Corporation and shall see that adequate audits thereof are currently and regularly made. In addition, the Treasurer shall have such powers and duties customarily and usually associated with the office of Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. (b) Each Assistant Treasurer shall have such powers and perform such duties customarily and usually associated with the office of Assistant Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Treasurer. In case of the absence or disability of the Treasurer, the Assistant Treasurer designated by the Chief Executive Officer (or, in the absence of such designation, by the Treasurer) shall perform the duties and exercise the powers of the Treasurer. 5.14 Controller. The Controller shall be responsible for maintaining the accounting records and statements, and shall properly account for all monies and obligations due the Corporation and all properties, assets, and liabilities of the Corporation. The Controller shall render to the Chairman of the Board, the President or the Chief Financial Officer such periodic reports covering the results of operations of the Corporation as may be required by either of them or by law. In addition, the Controller shall have such powers and duties customarily and usually associated with the office of Controller and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. 6. STOCK 6.1 Certificates. Certificates for shares of stock of the Corporation shall be issued under the seal of the Corporation, or a facsimile thereof, and shall be numbered and shall be entered in the books of the 8 9 Corporation as they are issued. Each certificate shall bear a serial number, shall exhibit the holder's name and the number of shares evidenced thereby, and shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the Chief Executive Officer or the President or any Vice President, and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person or entity were such officer, transfer agent, or registrar at the date of issue. 6.2 Transfers. Transfers of stock of the Corporation shall be made on the books of the Corporation only upon surrender to the Corporation of a certificate (if any) for the shares duly endorsed or accompanied by proper evidence of succession, assignment, or authority to transfer, provided such succession, assignment, or transfer is not prohibited by the Certificate of Incorporation, these Bylaws, applicable law or contract. Thereupon, the Corporation shall issue a new certificate (if requested) to the person entitled thereto, cancel the old certificate (if any), and record the transaction upon its books. 6.3 Lost, Stolen, or Destroyed Certificates. Any person claiming a certificate of stock to be lost, stolen, or destroyed shall make an affidavit or an affirmation of that fact, and shall give the Corporation a bond of indemnity in satisfactory form and with one or more satisfactory sureties, whereupon a new certificate (if requested) may be issued of the same tenor and for the same number of shares as the one alleged to be lost, stolen, or destroyed. 6.4 Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares as the person entitled to exercise the rights of a stockholder and shall not be bound to recognize any equitable or other claim to or interest in any such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by the GCLD. 6.5 Additional Powers of the Board. (a) In addition to those powers set forth in Section 4.1, the Board of Directors shall have power and authority to make all such rules and regulations as it shall deem expedient concerning the issue, transfer, and registration of certificates for shares of stock of the Corporation, including the use of uncertificated shares of stock subject to the provisions of the GCLD. (b) The Board of Directors may appoint and remove transfer agents and registrars of transfers, and may require all stock certificates to bear the signature of any such transfer agent and/or any such registrar of transfers. 7. INDEMNIFICATION 7.1 Each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or the person of whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation, as a director, officer, employee, or agent of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to employee benefit plans, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the GCLD, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expenses, liability, and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of his or her heirs, executors, and administrators; provided, however, that, except as provided in this Article 7, the Corporation shall indemnify any 9 10 such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if authorized by the Board of Directors of the Corporation. Any indemnification under this Article 7 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard set forth in the GCLD. Such a determination shall be made (a) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum; (b) by a committee of such directors designated by majority vote of such directors, even though less than a quorum; (c) by independent legal counsel (compensated by the Corporation) in a written opinion; (d) by the stockholders; or (e) in any other manner permitted by the GCLD. In addition to the right to indemnification conferred in this Article 7, each of the above persons shall have the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the GCLD requires, the payment of such expenses incurred by a present director or officer in his or her capacity as a director or officer of the corporation (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such present director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Article 7 or otherwise. The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers. The right to indemnification and to an advancement of expenses conferred in this Article 7 shall be a contract right. 7.2 If a claim under Section 7.1 of this Article 7 is not paid in full by the Corporation within 30 days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim (including attorneys' fees). 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 Corporation) that the claimant has not met the standard of conduct which makes it permissible under the GCLD for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD, nor an actual determination by the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) that the claimant has not met such 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. In any suit brought by the claimant to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the claimant is not entitled to be indemnified, or to such advancement of expenses, under this Article 7 or otherwise shall be on the Corporation. 7.3 The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article 7, shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, provision of the certificate of incorporation of the Corporation, this bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. 7.4 The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee, or agent of the Corporation or another corporation, partnership, joint venture, trust, or other enterprise against any such expense, liability, or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability, or loss under the GCLD. 7.5 The Corporation may enter into an indemnity agreement with any director, officer, employee, or agent of the Corporation, or of another corporation, partnership, joint venture, trust, or other 10 11 enterprise, upon terms and conditions that the Board of Directors deems appropriate, as long as the provisions of the agreement are not impermissible under applicable law. 7.6 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.7 In case any provision in this Article 7 shall be determined at any time to be unenforceable in any respect, the other provisions shall not in any way be affected or impaired thereby, and the affected provision shall be given the fullest possible enforcement in the circumstances, it being the intention of the Corporation to afford indemnification and advancement of expenses to the persons indemnified hereby to the fullest extent permitted by law. 7.8 The Corporation may, by action of the Board of Directors, authorize one or more officers to grant rights to indemnification and advancement of expenses to former directors and officers or to other employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances. 8. MISCELLANEOUS 8.1 Place and Inspection of Books. (a) The books of the Corporation other than such books as are required by law to be kept within the State of Delaware shall be kept in such place or places either within or without the State of Delaware as the Board of Directors may from time to time determine. (b) At least ten days before each meeting of stockholders, the officer in charge of the stock ledger of the Corporation shall prepare a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. (c) The Board of Directors shall determine from time to time whether and, if allowed, when and under what conditions and regulations the accounts and books of the Corporation (except such as may be by law specifically open to inspection or as otherwise provided by these Bylaws) or any of them shall be open to the inspection of the stockholders and the stockholders' rights in respect thereof. 8.2 Voting Shares in Other Corporations. The Chief Executive Officer, the President, the Chief Financial Officer or any other officer of the Corporation designated by the Board of Directors may vote any and all shares held by the Corporation in any other corporation. 8.3 Fiscal Year. The fiscal year of the Corporation shall be such fiscal year as the Board of Directors from time to time by resolution shall determine. 8.4 Gender/Number. As used in these Bylaws, the masculine, feminine, or neuter gender, and the singular or plural number, shall each include the others whenever the context so indicates. 8.5 Paragraph Titles. The titles of the paragraphs have been inserted as a matter of reference only and shall not control or affect the meaning or construction of any of the terms and provisions hereof. 11 12 8.6 Amendment. These Bylaws may be altered, amended, or repealed by (a) the affirmative vote of 80% or more of the aggregate number of votes that the holders of the then outstanding shares of common stock and preferred stock are entitled to cast on the amendment, or (b) by resolution adopted by the affirmative vote of not less than a majority of the Directors in office, at any annual or regular meeting of the Board of Directors or at any special meeting of the Board of Directors if notice of the proposed alteration, amendment, or repeal be contained in written notice of such special meeting. Notwithstanding the foregoing, the amendment of any provision of these Bylaws that requires an affirmative vote in excess of a majority of the Directors in office shall require the affirmative vote of at least the number of directors the affirmative vote of whom is required by such provision. 8.7 Certificate of Incorporation. Notwithstanding anything to the contrary contained herein, if any provision contained in these Bylaws is inconsistent with or conflicts with a provision of the Certificate of Incorporation, such provision of these Bylaws shall be superseded by the inconsistent provision in the Certificate of Incorporation to the extent necessary to give effect to such provision in the Certificate of Incorporation. 12 EX-99.B.25.2 32 AMENDED & RESTATED BYLAWS AS AMENDED 12/31/99 1 ATE Investment, Inc. B.25.2 Amended and Restated Bylaws Adopted December 31, 1999 2 AMENDED AND RESTATED B Y L A W S OF ATE INVESTMENT, INC. 1. OFFICES. 1.1 Offices. In addition to its registered office in the State of Delaware, the Corporation shall have a corporate office in Wilmington, Delaware, and such other offices, either within or without the State of Delaware, at such locations as the Board of Directors may from time to time determine or the business of the Corporation may require. 2. SEAL. 2.1 Seal. The Corporation shall have a seal, which shall have inscribed thereon its name and year of incorporation and the words, "Corporate Seal New Jersey." 3. MEETINGS OF STOCKHOLDERS. 3.1 Annual Meetings. The annual meeting of stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as shall be determined by the Board of Directors from time to time. 3.2 Special Meetings. Special meetings of the stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as may be designated by the Chairman of the Board or by the Board of Directors. 3.3 Notice of Meetings. (a) Notices of meetings of stockholders shall be in writing and shall state the place, date, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which a meeting is called. No business other than that specified in the notice thereof shall be transacted at any special meeting. (b) Such notice shall either be delivered personally, mailed, postage prepaid, or delivered by any other lawful means to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. If mailed, the notice shall be directed to the stockholder at his or her address as it appears on the records of the Corporation. Delivery of any such notice to any officer of a corporation or association or to any member of a partnership shall constitute delivery of such notice to such corporation, association, or partnership. (c) Notice of any meeting of stockholders need not be given to any stockholder if waived by such stockholder in writing, whether before or after such meeting is held, or if such stockholder shall sign the minutes or attend the meeting, except that if such stockholder attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, such stockholder shall not be deemed to have waived notice of such meeting. 3.4 Adjourned Meetings. When a meeting is adjourned to another time or place, unless otherwise provided by these Bylaws, notice need not be given of the adjourned meeting if the time and place 2 3 thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the stockholders may transact any business that might have been transacted at the original meeting. If an adjournment is for more than 30 days, or if after an adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting. 3.5 Quorum and Adjournment. Except as otherwise provided by law, by the Certificate of Incorporation of the Corporation, or by these Bylaws, the presence, in person or by proxy, of the holders of a majority of the aggregate voting power of the stock issued and outstanding, entitled to vote thereat, shall constitute a quorum for the transaction of business at all meetings of stockholders. If such majority shall not be present or represented at any meeting of stockholders, the stockholders present, although less than a quorum, shall have the power to adjourn the meeting. 3.6 Vote Required. Except as otherwise provided by law or by the Certificate of Incorporation: (a) Directors shall be elected by a plurality of the votes present in person or represented by proxy at a meeting of stockholders and entitled to vote in the election of directors, and (b) whenever any corporate action other than the election of Directors is to be taken, it shall be authorized by a majority in voting power of the shares present in person or by proxy at a meeting of stockholders and entitled to vote on the subject matter. 3.7 Manner of Voting. At each meeting of stockholders, each stockholder having the right to vote shall be entitled to vote in person or by proxy. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed before being voted. Each stockholder shall be entitled to vote each share of stock having voting power registered in his or her name on the books of the Corporation on the record date fixed for determination of stockholders entitled to vote at such meeting. 3.8 Stockholder Action Without a Meeting. Except as otherwise provided by law or by the Certificate of Incorporation, any action required to be taken at any meeting of stockholders of the corporation, or any action that may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice, and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of the holders to take the action were delivered to the Corporation. 3.9 Proxies. (a) At any meeting of stockholders, any stockholder may be represented and vote by proxy or proxies. In the event that any form of proxy shall designate two or more persons to act as proxies, a majority of such persons present at the meeting or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by the form of proxy upon all of the persons so designated unless the form of proxy shall otherwise provide. (b) The Board of Directors may, in advance of any annual or special meeting of the stockholders, prescribe additional regulations concerning the validation of the same, which are intended to be voted at any such meeting. 3.10 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the stockholders. In the absence of the Chairman of the Board, the Vice Chairman of the Board 3 4 or, in his or her absence, any Director designated by the Chairman of the Board or the Board of Directors shall act as chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the stockholders, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the stockholders, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 3.11 Procedure. At each meeting of stockholders, the chairman of the meeting shall fix and announce the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at the meeting and shall determine the order of business and all other matters of procedure. Except to the extent inconsistent with any such rules and regulations as adopted by the Board of Directors, the chairman of the meeting may establish rules, which need not be in writing, to maintain order and safety and for the conduct of the meeting. Without limiting the foregoing, he or she may: (a) restrict attendance at any time to bona fide stockholders of record and their proxies and other persons in attendance at the invitation of the chairman; (b) restrict dissemination of solicitation materials and use of audio or visual recording devices at the meeting; (c) adjourn the meeting without a vote of the stockholders, whether or not there is a quorum present; and (d) make rules governing speeches and debate, including time limits and access to microphones. The chairman of the meeting shall be entitled to act in his or her absolute discretion and his or her rulings shall not be subject to appeal. 4. DIRECTORS. 4.1 Powers and Number. The Board of Directors shall exercise all of the powers of the Corporation except such as are by law, or by the Certificate of Incorporation of this Corporation or by these Bylaws conferred upon or reserved to the stockholders of any class or classes. The number of directors that shall constitute the whole Board of Directors shall be no fewer than three (3) and no greater than nine (9), the exact number of directors to be determined from time to time by resolution adopted by the Board of Directors or the stockholders, and until otherwise determined by the Board of Directors or the stockholders, the number of directors that shall constitute the whole Board of Directors shall be three (3). 4.2 Resignations. Any Director may resign at any time by giving written notice to the Board of Directors or the Secretary. Such resignation shall take effect at the date of receipt of such notice or at any later time specified therein. Acceptance of such resignation shall not be necessary to make it effective. 4.3 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the Board of Directors. In the absence of the Chairman of the Board, the Vice Chairman of the Board, or in his absence, the Chief Executive Officer or other person designated by the Board of Directors shall act as chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the Board of Directors, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the Board of Directors, but in the absence of a 4 5 designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 4.4 Annual Meetings. The Board of Directors shall meet each year immediately following the annual meeting of stockholders, at the place where such meeting of stockholders has been held, or at such other place as shall be fixed by the person presiding over the meeting of the stockholders, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. In the event that in any year Directors are elected by written consent in lieu of an annual meeting of stockholders, the Board of Directors shall meet in such year as soon as practicable after receipt of such written consent by the Corporation at such time and place as shall be fixed by the Chairman of the Board, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. 4.5 Regular Meetings. Regular meetings of the Board of Directors shall be held on such dates and at such times and places, within or without the state of Delaware, as shall from time to time be determined by the Board of Directors. In the absence of any such determination, such meetings shall be held at such times and places, within or without the State of Delaware, as shall be designated by the Chairman of the Board on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex or by electronic mail or by other electronic means, or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. 4.6 Special Meetings. Special meetings of the Board of Directors shall be held at the call of the Chairman of the Board at such times and places, within or without the State of Delaware, as he or she shall designate, on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex, by electronic mail or by other electronic means or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. Special meetings shall be called by the Secretary on like notice at the written request of a majority of the Directors then in office. 4.7 Quorum and Powers of a Majority. At all meetings of the Board of Directors and of each committee thereof, a majority of the members shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which a quorum is present shall be the act of the Board of Directors or such committee, unless by express provision of law, of the Certificate of Incorporation, or of these Bylaws, a different vote is required, in which case such express provision shall govern and control. In the absence of a quorum, a majority of the members present at any meeting may, without notice other than announcement at the meeting, adjourn such meeting from time to time until a quorum is present. 4.8 Waiver of Notice. Notice of any meeting of the Board of Directors, or any committee thereof, need not be given to any member if waived by him or her in writing, whether before or after such meeting is held, or if he or she shall sign the minutes or attend the meeting, except that if such Director attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, then such Director shall not be deemed to have waived notice of such meeting. 4.9 Manner of Acting. (a) Members of the Board of Directors, or any committee thereof, may participate in any meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating therein can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting. 5 6 (b) Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing, and the writings are filed with the minutes of proceedings of the Board of Directors or such committee. 4.10 Compensation. (a) The Board of Directors, by a resolution or resolutions, may fix, and from time to time change, the compensation of Directors. (b) Each Director shall be entitled to reimbursement from the Corporation for his or her reasonable expenses incurred with respect to duties as a member of the Board of Directors or any committee thereof. (c) Nothing contained in these Bylaws shall be construed to preclude any Director from serving the Corporation in any other capacity and from receiving compensation from the Corporation for service rendered to it in such other capacity. 4.11 Committees. The Board of Directors (or any committee thereof having the power and authority to do so) may designate one or more committees, each committee to consist of one or more Directors, which to the extent provided in said resolution or resolutions shall have and may exercise the powers and authority of the Board of Directors in the management of the business and affairs of the corporation; provided, however, that no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the General Corporation Law of Delaware (the "GCLD") to be submitted to stockholders for approval or (ii) adopting, amending, or repealing any bylaw of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting of such committee and not disqualified from voting, whether or not such member of members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of such absent or disqualified director. 4.12 Committee Procedure, Limitations of Committee Powers. (a) Except as otherwise provided by these Bylaws, each committee shall adopt its own rules governing the time, place and method of holding its meetings and the conduct of its proceedings and shall meet as provided by such rules or by resolution of the Board of Directors. Unless otherwise provided by these Bylaws or any such rules or resolutions, notice of the time and place of each meeting of a committee shall be given to each member of such committee as provided in Section 4.6 of these Bylaws with respect to notices of special meetings of the Board of Directors. (b) Each committee shall keep regular minutes of its proceedings and report the same to the Board of Directors when required. (c) Any member of any committee may be removed from such committee either with or without cause, at any time, by the Board of Directors at any meeting thereof. Any vacancy in any committee shall be filled by the Board of Directors in the manner prescribed by the Certificate of Incorporation or these Bylaws for the original appointment of the members of such committee. 6 7 5. OFFICERS. 5.1 Number. (a) The officers of the Corporation shall include a Chief Executive Officer, a President, one or more Vice Presidents (including one or more Executive Vice Presidents and one or more Senior Vice Presidents if deemed appropriate by the Board of Directors), a Chief Financial Officer, a Secretary, a Treasurer, and a Controller. The Board of Directors shall also elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except for the Chairman of the Board, the Vice Chairman of the Board, and the Chief Executive Officer, none of the officers of the Corporation needs to be a director of the Corporation. Any two or more offices may be held by the same person to the extent permitted by the GCLD. (b) The Chief Executive Officer shall have the power to appoint one or more employees of the Corporation as divisional or departmental vice presidents and fix the duties of such appointees. However, no such divisional or departmental vice president shall be considered as an officer of the Corporation. 5.2 Election of Officers, Qualification and Term. The Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President, the Chief Financial Officer, the Secretary and the Treasurer of the Corporation shall be elected from time to time by the Board of Directors and, except as may otherwise be expressly provided in a contract of employment duly authorized by the Board of Directors, shall hold office at the pleasure of the Board of Directors. The Board of Directors and the Chief Executive Officer also may elect such other officers as the Board of Directors or the Chief Executive Officer may from time to time deem appropriate or necessary. 5.3 Removal. Any officer elected by the Board of Directors may be removed, either with or without cause, by the Board of Directors at any meeting thereof, or to the extent delegated to the Chairman of the Board or the Chief Executive Officer, by the Chairman of the Board or the Chief Executive Officer. 5.4 Resignations. Any officer of the Corporation may resign at any time by giving written notice to the Board of Directors or to the Chairman of the Board or to the Chief Executive Officer. Such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 5.5 Compensation. The compensation of all officers of the Corporation shall be fixed by or in the manner provided by the Board of Directors from time to time, and no officer shall be prevented from receiving such compensation by reason of the fact that he or she is also a Director of the Corporation. 5.6 The Chairman of the Board. The Chairman of the Board shall have the powers and duties customarily and usually associated with the office of the Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. The Chairman of the Board shall preside at meetings of the stockholders and of the Board of Directors. 5.7 Vice Chairman of the Board. The Vice Chairman of the Board, if any, shall have the powers and duties customarily and usually associated with the office of the Vice Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. 5.8 Chief Executive Officer. The Chief Executive Officer shall have, subject to the supervision, direction and control of the Board of Directors, the general powers and duties of supervision, direction and management of the affairs and business of the Corporation usually vested in the chief executive officer of a corporation, including, without limitation, all powers necessary to direct and control the organizational and reporting relationships within the Corporation. In addition, the Chief Executive Officer shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. If at any time the office of the Chairman of the Board and the Vice Chairman of the Board shall not be 7 8 filled, or in the event of the temporary absence or disability of the Chairman of the Board and the Vice Chairman of the Board, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board. 5.9 The President. The President shall serve as chief operating officer, shall have the powers and duties customarily and usually associated with the office of the President and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.10 The Vice Presidents. Each Vice President shall have such powers and duties customarily and usually associated with the office of Vice President and shall have such other powers and perform such other duties as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, or the President. 5.11 The Chief Financial Officer. The Chief Financial Officer shall be responsible for the financial affairs of the Corporation, including overseeing the duties performed by the Treasurer of the Corporation. In addition, the Chief Financial Officer shall have such powers and duties customarily and usually associated with the office of the Chief Financial Officer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.12 The Secretary and the Assistant Secretary. (a) The Secretary shall attend meetings of the Board of Directors and meetings of the stockholders and record all votes and minutes of all such proceedings in a book kept for such purpose. In addition, the Secretary shall have such powers and duties customarily and usually associated with the office of Secretary and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors, the Chief Executive Officer, or the President. (b) Each Assistant Secretary shall have such powers and perform such duties customarily and usually associated with the office of Assistant Secretary and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Secretary. In case of the absence or disability of the Secretary, the Assistant Secretary designated by the Chief Executive Officer (or, in the absence of such designation, by the Secretary) shall perform the duties and exercise the powers of the Secretary. 5.13 The Treasurer and the Assistant Treasurer. (a) The Treasurer shall have custody of the Corporation's funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit or cause to be deposited moneys or other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall also maintain adequate records of all assets, liabilities, and transactions of the Corporation and shall see that adequate audits thereof are currently and regularly made. In addition, the Treasurer shall have such powers and duties customarily and usually associated with the office of Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. (b) Each Assistant Treasurer shall have such powers and perform such duties customarily and usually associated with the office of Assistant Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Treasurer. In case of the absence or disability of the Treasurer, the Assistant Treasurer designated by the Chief Executive Officer (or, in the absence of such designation, by the Treasurer) shall perform the duties and exercise the powers of the Treasurer. 5.14 Controller. The Controller shall be responsible for maintaining the accounting records and statements, and shall properly account for all monies and obligations due the Corporation and all properties, assets, and liabilities of the Corporation. The Controller shall render to the Chairman of the Board, the President 8 9 or the Chief Financial Officer such periodic reports covering the results of operations of the Corporation as may be required by either of them or by law. In addition, the Controller shall have such powers and duties customarily and usually associated with the office of Controller and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. 6. STOCK 6.1 Certificates. Certificates for shares of stock of the Corporation shall be issued under the seal of the Corporation, or a facsimile thereof, and shall be numbered and shall be entered in the books of the Corporation as they are issued. Each certificate shall bear a serial number, shall exhibit the holder's name and the number of shares evidenced thereby, and shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the Chief Executive Officer or the President or any Vice President, and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person or entity were such officer, transfer agent, or registrar at the date of issue. 6.2 Transfers. Transfers of stock of the Corporation shall be made on the books of the Corporation only upon surrender to the Corporation of a certificate (if any) for the shares duly endorsed or accompanied by proper evidence of succession, assignment, or authority to transfer, provided such succession, assignment, or transfer is not prohibited by the Certificate of Incorporation, these Bylaws, applicable law or contract. Thereupon, the Corporation shall issue a new certificate (if requested) to the person entitled thereto, cancel the old certificate (if any), and record the transaction upon its books. 6.3 Lost, Stolen, or Destroyed Certificates. Any person claiming a certificate of stock to be lost, stolen, or destroyed shall make an affidavit or an affirmation of that fact, and shall give the Corporation a bond of indemnity in satisfactory form and with one or more satisfactory sureties, whereupon a new certificate (if requested) may be issued of the same tenor and for the same number of shares as the one alleged to be lost, stolen, or destroyed. 6.4 Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares as the person entitled to exercise the rights of a stockholder and shall not be bound to recognize any equitable or other claim to or interest in any such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by the GCLD. 6.5 Additional Powers of the Board. (a) In addition to those powers set forth in Section 4.1, the Board of Directors shall have power and authority to make all such rules and regulations as it shall deem expedient concerning the issue, transfer, and registration of certificates for shares of stock of the Corporation, including the use of uncertificated shares of stock subject to the provisions of the GCLD. (b) The Board of Directors may appoint and remove transfer agents and registrars of transfers, and may require all stock certificates to bear the signature of any such transfer agent and/or any such registrar of transfers. 7. INDEMNIFICATION 7.1 Each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or the person of whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the 9 10 Corporation, as a director, officer, employee, or agent of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to employee benefit plans, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the GCLD, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expenses, liability, and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of his or her heirs, executors, and administrators; provided, however, that, except as provided in this Article 7, the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if authorized by the Board of Directors of the Corporation. Any indemnification under this Article 7 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard set forth in the GCLD. Such a determination shall be made (a) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum; (b) by a committee of such directors designated by majority vote of such directors, even though less than a quorum; (c) by independent legal counsel (compensated by the Corporation) in a written opinion; (d) by the stockholders; or (e) in any other manner permitted by the GCLD. In addition to the right to indemnification conferred in this Article 7, each of the above persons shall have the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the GCLD requires, the payment of such expenses incurred by a present director or officer in his or her capacity as a director or officer of the corporation (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such present director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Article 7 or otherwise. The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers. The right to indemnification and to an advancement of expenses conferred in this Article 7 shall be a contract right. 7.2 If a claim under Section 7.1 of this Article 7 is not paid in full by the Corporation within 30 days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim (including attorneys' fees). 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 Corporation) that the claimant has not met the standard of conduct which makes it permissible under the GCLD for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD, nor an actual determination by the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) that the claimant has not met such 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. In any suit brought by the claimant to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the claimant is not entitled to be indemnified, or to such advancement of expenses, under this Article 7 or otherwise shall be on the Corporation. 7.3 The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article 7, shall not be exclusive of any other right 10 11 that any person may have or hereafter acquire under any statute, provision of the certificate of incorporation of the Corporation, this bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. 7.4 The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee, or agent of the Corporation or another corporation, partnership, joint venture, trust, or other enterprise against any such expense, liability, or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability, or loss under the GCLD. 7.5 The Corporation may enter into an indemnity agreement with any director, officer, employee, or agent of the Corporation, or of another corporation, partnership, joint venture, trust, or other enterprise, upon terms and conditions that the Board of Directors deems appropriate, as long as the provisions of the agreement are not impermissible under applicable law. 7.6 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.7 In case any provision in this Article 7 shall be determined at any time to be unenforceable in any respect, the other provisions shall not in any way be affected or impaired thereby, and the affected provision shall be given the fullest possible enforcement in the circumstances, it being the intention of the Corporation to afford indemnification and advancement of expenses to the persons indemnified hereby to the fullest extent permitted by law. 7.8 The Corporation may, by action of the Board of Directors, authorize one or more officers to grant rights to indemnification and advancement of expenses to former directors and officers or to other employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances. 8. MISCELLANEOUS 8.1 Place and Inspection of Books. (a) The books of the Corporation other than such books as are required by law to be kept within the State of Delaware shall be kept in such place or places either within or without the State of Delaware as the Board of Directors may from time to time determine. (b) At least ten days before each meeting of stockholders, the officer in charge of the stock ledger of the Corporation shall prepare a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. (c) The Board of Directors shall determine from time to time whether and, if allowed, when and under what conditions and regulations the accounts and books of the Corporation (except such as may be by law specifically open to inspection or as otherwise provided by these Bylaws) or any of them shall be open to the inspection of the stockholders and the stockholders' rights in respect thereof. 8.2 Voting Shares in Other Corporations. The Chief Executive Officer, the President, the Chief Financial Officer or any other officer of the Corporation designated by the Board of Directors may vote any and all shares held by the Corporation in any other corporation. 11 12 8.3 Fiscal Year. The fiscal year of the Corporation shall be such fiscal year as the Board of Directors from time to time by resolution shall determine. 8.4 Gender/Number. As used in these Bylaws, the masculine, feminine, or neuter gender, and the singular or plural number, shall each include the others whenever the context so indicates. 8.5 Paragraph Titles. The titles of the paragraphs have been inserted as a matter of reference only and shall not control or affect the meaning or construction of any of the terms and provisions hereof. 8.6 Amendment. These Bylaws may be altered, amended, or repealed by (a) the affirmative vote of 80% or more of the aggregate number of votes that the holders of the then outstanding shares of common stock and preferred stock are entitled to cast on the amendment, or (b) by resolution adopted by the affirmative vote of not less than a majority of the Directors in office, at any annual or regular meeting of the Board of Directors or at any special meeting of the Board of Directors if notice of the proposed alteration, amendment, or repeal be contained in written notice of such special meeting. Notwithstanding the foregoing, the amendment of any provision of these Bylaws that requires an affirmative vote in excess of a majority of the Directors in office shall require the affirmative vote of at least the number of directors the affirmative vote of whom is required by such provision. 8.7 Certificate of Incorporation. Notwithstanding anything to the contrary contained herein, if any provision contained in these Bylaws is inconsistent with or conflicts with a provision of the Certificate of Incorporation, such provision of these Bylaws shall be superseded by the inconsistent provision in the Certificate of Incorporation to the extent necessary to give effect to such provision in the Certificate of Incorporation. 12 EX-99.B.26.1 33 CERTIFICATION OF INCORPORATION FILED 8/9/99 1 King Street Assurance, Ltd. B.26.1 Certificate of Incorporation Filed August 9, 1999 2 FORM NO. 6 Registration No. 26789 BERMUDA CERTIFICATE OF INCORPORATION I hereby in accordance with section 14 of the Companies Act 1981 issue this Certificate of Incorporation and do certify that on the 9th day of AUGUST, 1999 KING STREET ASSURANCE LTD. was registered by me in the Register maintained by me under the provisions of the said section and that the status of the said company is that of an EXEMPTED company. Given under my hand and the Seal of the REGISTRAR OF COMPANIES this 11th day of AUGUST, 1999. for REGISTRAR OF COMPANIES EX-99.B.26.2 34 BYLAWS 1 King Street Assurance, Ltd. B.26.2 Bylaws 2 BYE-LAWS of King Street Assurance Ltd. I. S. Outerbridge Secretary ADOPTED: 11th August, 1999 3 INTERPRETATION 1. Interpretation (1) In these Bye-laws the following words and expressions shall, where not inconsistent with the context, have the following meanings respectively:- (a) "Act" means the Companies Act 1981 as amended from time to time; (b) "Alternate Director" means an alternate Director appointed in accordance with these Bye-laws; (c) "Auditor" includes any individual or partnership; (d) "Board" means the Board of Directors appointed or elected pursuant to these Bye-laws and acting by resolution in accordance with the Act and these Bye-laws or the Directors present at a meeting of Directors at which there is a quorum; (e) "Company" means the company for which these Bye-laws are approved and confirmed; (f) "Director" means a director of the Company and shall include an Alternate Director; (g) "Member" means the person registered in the Register of Members as the holder of shares in the Company and, when two or more persons are so registered as Joint holders of shares, means the person whose name stands first in the Register of Members as one of such joint holders or all of such persons as the context so requires; (h) "notice" means written notice as further defined in these Bye-laws unless otherwise specifically stated; (i) "Officer" means any person appointed by the Board to hold an office in the Company; (j) "Register of Directors and Officers" means the Register of Directors and Officers referred to in these Bye-laws; (k) "Register of Members" means the Register of Members referred to in these Bye-laws; and 4 (1) "Resident Representative" means any person appointed to act as resident representative and includes any deputy or assistant resident representative. (m) "Secretary" means the person appointed to perform any or all the duties of secretary of the Company and includes any deputy or assistant secretary. (2) In these Bye-laws, where not inconsistent with the context:- (a) words denoting the plural number include the singular number and vice versa; (b) words denoting the masculine gender include the feminine gender; (c) words importing persons include companies, associations or bodies of persons whether corporate or not; (d) the word; (i) "may" shall be construed as permissive; (ii) "shall" shall be construed as imperative; and (e) unless otherwise provided herein words or expressions defined in the Act shall bear the same meaning in these Bye-laws. (3) Expressions referring to writing or written shall, unless the contrary intention appears, include facsimile, printing, lithography, photography and other modes of representing words in a visible form. (4) Headings used in these Bye-laws are for convenience only and are not to be used or relied upon in the construction hereof BOARD OF DIRECTORS 2. Board of Directors The business of the Company shall be managed and conducted by the Board. 3 . Management of the Company (1) In managing the business of the Company, the Board may exercise all such powers of the Company as are not, by statute or by these Bye-laws, required to be exercised by the Company in general meeting subject, nevertheless, to these Bye-laws, the provisions of any statute and to such directions as may be prescribed by the Company in general meeting. 5 (2) No regulation or alteration to these Bye-laws made by the Company in general meeting shall invalidate any prior act of the Board which would have been valid if that regulation or alteration had not been made. (3) The Board may procure that the Company pays all expenses incurred in promoting and incorporating the Company. 4. Power to appoint managing director or chief executive officer The Board may from time to time appoint one or more Directors to the office of managing director or chief executive officer of the Company who shall, subject to the control of the Board, supervise and administer all of the general business and affairs of the Company. 5. Power to appoint manager The Board may appoint a person to act as manager of the Company's day to day business and may entrust to and confer upon such manager such powers and duties as it deems appropriate for the transaction or conduct of such business. 6. Power to authorise specific actions The Board may from time to time and at any time authorise any company, firm, person or body of persons to act on behalf of the Company for any specific purpose and in connection therewith to execute any agreement, document or instrument on behalf of the Company. 7. Power to appoint attorney The Board may from time to time and at any time by power of attorney appoint any company, firm, person or body of persons, whether nominated directly or indirectly by the Board, to be an attorney of the Company for such purposes and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the Board) and for such period and subject to such conditions as it may think fit and any such power of attorney may contain such provisions for the protection and convenience of persons dealing with any such attorney as the Board may think fit and may also authorise any such attorney to sub-delegate all or any of the powers, authorities and discretions so vested in the attorney. Such attorney may, if so authorised under the seal of -the Company, execute any deed or instrument under such attorney's personal seal with the same effect as the affixation of the seal of the Company. 8. Power to delegate. to a committee The Board may delegate any of its powers to a committee appointed by the Board which may consist partly or entirely of non-Directors and every such committee shall conform to such directions as the Board shall impose on them. 9. Power to appoint and dismiss employees The Board may appoint, suspend or remove any manager, secretary, clerk, agent or employee of the Company and may fix their remuneration and determine their duties. 6 10. Power to borrow and charge property The Board may exercise all the powers of the Company to borrow money and to mortgage or charge its undertaking, property and uncalled capital, or any part thereof, and may issue debentures, debenture stock and other securities whether outright or as security for any debt, liability or obligation of the Company or any third party. 11. Exercise of power to purchase shares of or discontinue the Company (1) The Board may exercise all the powers of the Company to purchase all or any part of its own shares pursuant to Section 42A of the Act. (2) The Board may exercise all the powers of the Company to discontinue the Company to a named country or Jurisdiction outside Bermuda pursuant to Section 132G of the Act. 12. Election of Directors The Board shall consist of riot less than two Directors or such number in excess thereof as the Members may from time to time determine who shall be elected or appointed in the first place at the statutory meeting of the Company and thereafter, except in the case of casual vacancy, at the annual general meeting or at any special general meeting called for the purpose and who shall hold office for such term as the Members may determine or, in the absence of such determination, until the next annual general meeting or until their successors are elected or appointed or their office is otherwise vacated, and any general meeting may authorise the Board to fill any vacancy in their number left unfilled at a general meeting. 13. Defects in appointment of Directors All acts done bona fide by any meeting of the Board or by a committee of the Board or by any person acting as a Director shall, notwithstanding that it be afterwards discovered that there was some defect in the appointment of any Director or person acting as aforesaid, or that they or any of them were disqualified, be as valid as if every such person had been duly appointed and was qualified to be a Director. 14. Alternate Directors (1) Any general meeting of the Company may elect a person or persons to act as a Director in the alternative to any one or more of the Directors of the Company or may authorise the Board to appoint such Alternate Directors. Unless the Members otherwise resolve, any Director may appoint a person or persons to act as a Director in the alternative to himself or herself by notice in writing deposited with the Secretary. Any person so elected or appointed shall have all the rights and powers of the Director or Directors for whom such person is appointed in the alternative provided that such person shall not be counted more than once in determining whether or not a quorum is present. (2) An Alternate Director shall be entitled to receive notice of all meetings of the Board and to attend and vote at any such meeting at which a Director for whom such Alternate Director was appointed in the alternative is not personally present and generally 7 to perform at such meeting all the functions of such Director for whom such Alternate Director was appointed. (3) An Alternate Director shall cease to be such if the Director for whom such Alternate Director was appointed ceases for any reason to be a Director but may be re-appointed by the Board as alternate to the person appointed to fill the vacancy in accordance with these Bye-laws. 15. Removal of Directors (1) Subject to any provision to the contrary in these Bye-laws, the Members may, at any special general meeting convened and held in accordance with these Bye-laws, remove a Director provided that the notice of any such meeting convened for the purpose of removing a Director shall contain a statement of the intention so to do and be served on such Director not less than 14 days before the meeting and at such meeting such Director shall be entitled to be heard on the motion for such Director's removal. (2) A vacancy on the Board created by the removal of a Director under the provisions of subparagraph (1) of this Bye-law may be filled by the Members at the meeting at which such Director is removed and, in the absence of such election or appointment, the Board may fill the vacancy. 16. Vacancies on the Board (1) The Board shall have the power from time to time and at any time to appoint any person as a Director to fill a vacancy on the Board occurring as the result of the death, disability, disqualification or resignation of any Director and to appoint an Alternate Director to any Director so appointed. (2) The Board may act notwithstanding any vacancy in its number but, if and so long as its number is reduced below the number fixed by these Bye-laws as the quorum necessary for the transaction of business at meetings of the Board, the continuing Directors or Director may act for the purpose of (i) summoning a general meeting of the Company or (ii) preserving the assets of the Company. (3) The office of Director shall be vacated if the Director: (a) is removed from office pursuant to these Bye-laws or is prohibited from being a Director by law; (b) is or becomes bankrupt or makes any arrangement or composition with his creditors generally; (c) is or becomes of unsound mind or dies; (d) resigns his or her office by notice in writing to the Company. 8 17. Notice of meetings of the Board (1) A Director may, and the Secretary on the requisition of a Director shall, at any time summon a meeting of the Board. (2) Notice of a meeting of the Board shall be deemed to be duly given to a Director if it is given to such Director verbally in person or by telephone or otherwise communicated or sent to such Director by post, cable, telex, telecopier, facsimile or other mode of representing words in a legible and non-transitory form at such Director's last known address or any other address given by such Director to the Company for this purpose. 18. Quorum at meetings of the Board The quorum necessary for the transaction of business at a meeting of the Board shall be two Directors. 19. Meetings of the Board (1) The Board may meet for the transaction of business, adjourn and otherwise regulate its meetings as it sees fit. (2) Directors may participate in any meeting of the Board by means of such telephone, electronic or other communication facilities as permit all persons participating in the meeting to communicate with each other simultaneously and instantaneously, and participation in such a meeting shall constitute presence in person at such meeting. (3) A resolution put to the vote at a meeting of the Board shall be carried by the affirmative votes of a majority of the votes cast and in the case of an equality of votes the resolution shall fail. 20. Unanimous written resolutions A resolution in writing signed by all the Directors which may be in counterparts, shall be as valid as if it had been passed at a meeting of the Board duly called and constituted, such resolution to be effective on the date on which the last Director signs the resolution. For the purposes of this Bye-law only, "Director" shall not include an Alternate Director. 21. Contracts and disclosure of Directors' interests (1) Any Director, or any Director's firm, partner or any company with whom any Director is associated, may act in a professional capacity for the Company and such Director or such Director's firm, partner or such company shall be entitled to remuneration for professional services as if such Director were not a Director, provided that nothing herein contained shall authorise a Director or Director's firm, partner or such company to act as Auditor of the Company. 9 (2) A Director who is directly or indirectly interested in a contract or proposed contract or arrangement with the Company shall declare the nature of such interest as required by the Act. (3) Following a declaration being made pursuant to this Bye-law, and unless disqualified by the chairman of the relevant Board meeting, a Director may vote in respect of any contract or proposed contract or arrangement in which such Director is interested and may be counted in the quorum at such meeting. 22. Remuneration of Directors The remuneration (if any) of the Directors shall be determined by the Company in general meeting and shall be deemed to accrue from day to day. The Directors may also be paid all travel, hotel and other expenses properly incurred by them in attending and returning from meetings of the Board, any committee appointed by the Board, general meetings of the Company, or in connection with the business of the Company or their duties as Directors generally. OFFICERS 23. Officers of the Company The Officers of the Company shall consist of a President and a Vice President or a Chairman and a Deputy Chairman, a Secretary and such additional Officers as the Board may from time to time determine all of whom shall be deemed to be Officers for the purposes of these Bye-laws. 24. Appointment of Officers (1) The Board shall, as soon as possible after the statutory meeting of Members and after each annual general meeting, appoint a President and a Vice President or a Chairman and a Deputy Chairman who shall be Directors. (2) The Secretary and additional Officers, if any, shall be appointed by the Board from time to time. 25. Remuneration of Officers The Officers shall receive such remuneration as the Board may from time to time determine. 26. Duties of Officers The Officers shall have such powers and perform such duties in the management, business and affairs of the Company as may be delegated to them by the Board from time to time. 27. Chairman of meetings Unless otherwise agreed by a majority of those attending and entitled to attend and vote thereat, the Chairman, if there be one, and if not the President shall act as chairman at all meetings of the Members and of the Board at which such person is present. In their absence the Deputy Chairman or Vice President, if present, shall act as 10 chairman and in the absence of all of them a chairman shall be appointed or elected by those present at the meeting and entitled to vote. 28. Register of Directors and Officers The Board shall cause to be kept in one or more books at the registered office of the Company a Register of Directors and Officers and shall enter therein the particulars required by the Act. MINUTES 29. Obligations of Board to keep minutes (1) The Board shall cause minutes to be duly entered in books provided for the purpose: (a) of all elections and appointments of Officers; (b) of the names of the Directors present at each meeting of the Board and of any committee appointed by the Board, and (c) of all resolutions and proceedings of general meetings of the Members, meetings of the Board, meetings of managers and meetings of committees appointed by the Board. (2) Minutes prepared in accordance with the Act and these Bye-laws shall be kept by the Secretary at the registered office of the Company. INDEMNITY 30. Indemnification of Directors and Officers of the Company The Directors, Secretary and other Officers (such term to include, for the purposes of Byelaws 30 and 31, any person appointed to any committee by the Board) for the time being Acting in relation to any of the affairs of the Company and the liquidator or trustees (if any) for the time being acting in relation to any of the affairs of the Company and every one of them, and their heirs, executors and administrators, shall be indemnified and secured harmless out of the assets of the Company from and against all actions, costs, charges, losses, damages and expenses which they or any of them, their heirs, executors or administrators, shall or may incur or sustain by or by reason of any act done, concurred in or omitted in or about the execution of their duty, or supposed duty, or in their respective offices or trusts, and none of them shall be answerable for the acts, receipts, neglects or defaults of the others of them or forjoining in any receipts for the sake of conformity, or for any bankers or other persons with whom any moneys or effects belonging to the Company shall or may be lodged or deposited for safe custody, or for insufficiency or deficiency of any security upon which any moneys of or belonging to the Company shall be placed out on or invested, or for any other loss, misfortune or damage which may happen in the execution of their respective offices or trusts, or in relation thereto, PROVIDED THAT this indemnity shall not extend to any matter in respect of any fraud or dishonesty which may attach to any of said persons. 31. Waiver of claim by Member Each Member agrees to waive any claim or right of action such Member might have, whether individually or by or in the right of the Company, against any Director or Officer on 11 account of any action taken by such Director or Officer, or the failure of such Director or Officer to take any action in the performance of his duties with or for the Company, PROVIDED THAT such waiver shall not extend to any matter in respect of any fraud or dishonesty which may attach to such Director or Officer. MEETINGS 32. Notice of annual general meeting The annual general meeting of the Company shall be held in each year other than the year of incorporation at such time and place as the President or the Chairman or any two Directors or any Director and the Secretary or the Board shall appoint. At least five days notice of such meeting shall be given to each Member stating the date, place and time at which the meeting is to be held, that the election of Directors will take place thereat, and as far as practicable, the other business to be conducted at the meeting. 33. Notice of special general meeting The President or the Chairman or any two Directors or any Director and the Secretary or the Board may convene a special general meeting of the Company whenever in their judgment such a meeting is necessary, upon not less than five days' notice which shall state the date, time, place and the general nature of the business to be considered at the meeting. 34. Accidental omission of notice of general meeting The accidental omission to give notice of a general meeting to, or the non-receipt of notice of a general meeting by, any person entitled to receive notice shall not invalidate the proceedings at that meeting. 35. Meeting called on requisition of Members Notwithstanding anything herein, the Board shall, on the requisition of Members holding at the date of the deposit of the requisition not less than one-tenth of such of the paid-up share capital of the Company as at the date of the deposit carries the right to vote at general meetings of the Company, forthwith proceed to convene a special general meeting of the Company and the provisions of Section 74 of the Act shall apply. 36. Short notice A general meeting of the Company shall, notwithstanding that it is called by shorter notice than that specified in these Bye-laws, be deemed to have been properly called if it is so agreed by (i) all the Members entitled to attend and vote thereat in the case of an annual general meeting; and (ii) by a majority in number of the Members having the right to attend and vote at the meeting, being a majority together holding not less than 95% in nominal value of the shares giving a right to attend and vote thereat in the case of a special general meeting. 37. Postponement of meetings The Secretary may postpone any general meeting called in accordance with the provisions of these Bye-laws (other than a meeting requisitioned under these Bye-laws) provided that notice of postponement is given to each Member before the time for such meeting. Fresh notice of the date, time and place for the postponed meeting shall be given to each Member in accordance with the provisions of these Bye-laws. 12 38. Quorum for general meeting At any general meeting of the Company two or more persons present in person and representing in person or by proxy in excess of 50% of the total issued voting shares in the Company throughout the meeting shall form a quorum for the transaction of business, PROVIDED that if the Company shall at any time have only one Member, one Member present in person or by proxy shall form a quorum for the transaction of business at any general meeting of the Company held during such time. If within half an hour from the time appointed for the meeting a quorum is not present, the meeting shall stand adjourned to the same day one week later, at the same time and place or to such other day, time or place as the Secretary may determine. 39. Adjournment of meetings The chairman of a general meeting may, with the consent of the Members at any general meeting at which a quorum is present (and shall if so directed), adjourn the meeting. Unless the meeting is adjourned to a specific date and time, fresh notice of the date, time and place for the resumption of the adjourned meeting shall be given to each Member in accordance with the provisions of these Bye-laws. 40. Attendance at meetings Members may participate in any general meeting by means of such telephone, electronic or other communication facilities as permit all persons participating in the meeting to communicate with each other simultaneously and instantaneously, and participation in such a meeting shall constitute presence in person at such meeting. 41. Written resolutions (1) Subject to subparagraph (6), anything which may be done by resolution of the Company in general meeting or by resolution of a meeting of any class of the Members of the Company, may, without a meeting and without any previous notice being required, be done by resolution in writing signed by, or, in the case of a Member that is a corporation whether or not a company within the meaning of the Act, on behalf of, all the Members who at the date of the resolution would be entitled to attend the meeting and vote on the resolution. (2) A resolution in writing may be signed by, or, in the case of a Member that is a corporation whether or not a company within the meaning of the Act, on behalf of, all the Members, or any class thereof, in as many counterparts as may be necessary. (3) For the purposes of this Bye-law, the date of the resolution is the date when the resolution is signed by, or, in the case of a Member that is a corporation whether or not a company within the meaning of the Act, on behalf of, the last Member to sign and any reference in any Bye-law to the date of passing of a resolution is, in relation to a resolution made in accordance with this Byelaw, a reference to such date. (4) A resolution in writing made in accordance with this Bye-law is as valid as if it had been passed by the Company in general meeting or by a meeting of the relevant class of Members, as the case may be, and any reference in any Bye-law to a 13 meeting at which a resolution is passed or to Members voting in favour of a resolution shall be construed accordingly. (5) A resolution in writing made in accordance with this Bye-law shall constitute minutes for the purposes of Sections 81 and 82 of the Act. (6) This Bye-law shall not apply to: (a) a resolution passed pursuant to Section 89(5) of the Act; or (b) a resolution passed for the purpose of removing a Director before the expiration of his term of office under these Bye-laws. 42. Attendance of Directors The Directors of the Company shall be entitled to receive notice of and to attend and be heard at any general meeting. 43. Voting at meetings (1) Subject to the provisions of the Act and these Bye-laws, any question proposed for the consideration of the Members at any general meeting shall be decided by the affirmative votes of a majority of the votes cast in accordance with the provisions of these Bye-laws and in the case of an equality of votes the resolution shall fall. (2) No Member shall be entitled to vote at any general meeting unless such Member has paid all the calls on all shares held by such Member. 44. Voting on show of hands At any general meeting a resolution put to the vote of the meeting shall, in the first instance, be voted upon by a show of hands and, subject to any rights or restrictions for the time being lawfully attached to any class of shares and subject to the provisions of these Bye-laws, every Member present in person and every person holding a valid proxy at such meeting shall be entitled to one vote and shall cast such vote by raising his or her hand. 45. Decision of chairman At any general meeting a declaration by the chairman of the meeting that a question proposed for consideration has, on a show of hands, been carried, or carried unanimously, or by a particular majority, or lost, and an entry to that effect in a book containing the minutes of the proceedings of the Company shall, subject to the provisions of these Bye-laws, be conclusive evidence of that fact. 46. Demand for a poll (1) Notwithstanding the provisions of the immediately preceding two Bye-laws, at any general meeting of the Company, in respect of any question proposed for the consideration of the Members (whether before or on the declaration of the result of a 14 show of hands as provided for in these Bye-laws), a poll may be demanded by any of the following persons: (a) the chairman of such meeting; or (b) at least three Members present in person or represented by proxy; or (c) any Member or Members present in person or represented by proxy and holding between them not less than one-tenth of the total voting rights of all the Members having the right to vote at such meeting, or (d) any Member or Members present in person or represented by proxy holding shares in the Company conferring the right to vote at such meeting, being shares on ,which an aggregate sum has been paid up equal to not less than one-tenth of the total sum paid up on all such shares conferring such right. (2) Where, in accordance with the provisions of subparagraph (1) of this Bye-law, a poll is demanded, subject to any rights or restrictions for the time being lawfully attached to any class of shares, every person present at such meeting shall have one vote for each share of which such person is the holder or for which such person holds a proxy and such vote shall be counted in the manner set out in subparagraph (4) of this Bye-Law or in the case of a general meeting at which one or more Members are present by telephone in such manner as the chairman of the meeting may direct and the result of such poll shall be deemed to be the resolution of the meeting at which the poll was demanded and shall replace any previous resolution upon the same matter which has been the subject of a show of hands. (3) A poll demanded in accordance with the provisions of subparagraph (1) of this Bye-law, for the purpose of electing, a chairman of the meeting or on a question of adjournment, shall be taken forthwith and a poll demanded on any other question shall be taken in such manner and at such time and place as the Chairman (or acting chairman) may direct and any business other than that upon which a poll has been demanded may be proceeded with pending the taking of the poll. (4) Where a vote is taken by poll, each person present and entitled to vote shall be furnished with a ballot paper on which such person shall record his or her vote in such manner as shall be determined at the meeting having regard to the nature of the question on which the vote is taken, and each ballot paper shall be signed or initialed or otherwise marked so as to identify the voter and the registered holder in the case of a proxy. At the conclusion of the poll, the ballot papers shall be examined and counted by a committee of not less than two Members or proxy holders appointed by the chairman for the purpose and the result of the poll shall be declared by the chairman. 15 47. Seniority of joint holders voting In the case of joint holders the vote of the senior who tenders a vote, whether in person or by proxy, shall be accepted to the exclusion of the votes of the other joint holders, and for this purpose seniority shall be determined by the order in which the names stand in the Register of Members. 48. Instrument of proxy The instrument appointing a proxy shall be in writing in the form, or as near thereto as circumstances admit, of Form "A" in the Schedule hereto, under the hand of the appointor or of the appointor's attorney duly authorised in writing, or if the appointor is a corporation, either under its seal, or under the hand of a duly authorised officer or attorney. The decision of the chairman of any general meeting as to the validity of any instrument of proxy shall be final. 49. Representation of corporations at meetings A corporation which is a Member may, by written instrument, authorise such person as it thinks fit to act as its representative at any meeting of the Members and the person so authorised shall be entitled to exercise the same powers on behalf of the corporation which such person represents as that corporation could exercise if it were an individual Member. Notwithstanding the foregoing, the chairman of the meeting may accept such assurances as he or she thinks fit as to the right of any person to attend and vote at general meetings on behalf of a corporation which is a Member. SHARE CAPITAL AND SHARES 50. Rights of shares Subject to any resolution of the Members to the contrary and without prejudice to any special rights previously conferred on the holders of any existing shares or class of shares, the share capital of the Company shall be divided into shares of a single class the holders of which shall, subject to the provisions of these Bye-laws. (a) be entitled to one vote per share; (b) be entitled to such dividends as the Board may from time to time declare; (c) in the event of a winding-up or dissolution of the Company, whether voluntary or involuntary or for the purpose of a reorganisation or otherwise or upon any distribution of capital, be entitled to the surplus assets of the Company; and (d) generally be entitled to enjoy all of the rights attaching to shares. 51. Power to issue shares (1) Subject to these Bye-laws and to any resolution of the Members to the contrary and without prejudice to any special rights previously conferred on the holders 16 of any existing shares or class of shares, the Board shall have power to issue any unissued shares of the Company on such terms and conditions as it may determine and any shares or class of shares may be issued with such preferred, deferred or other special rights or such restrictions, whether in regard to dividend, voting, return of capital or otherwise as the Company may from time to time by resolution of the Members prescribe. (2) The Board shall, in connection with the issue of any share, have the power to pay such commission and brokerage as may be permitted by law. (3) The Company shall not give, whether directly or indirectly, whether by means of loan guarantee, provision of security or otherwise, any financial assistance for the purpose of a purchase or subscription made or to be made by any person of or for any shares in the Company, but nothing in this Bye-Law shall prohibit transactions mentioned in Sections 39A, 39B and 39C of the Act. (4) The Company may from time to time do any one or more of the following things: (a) make arrangements on the issue of shares for a difference between the Members in the amounts and times of payments of calls on their shares; (b) accept from any Member the whole or a part of the amount remaining unpaid on any shares held by him, although no part of that amount has been called up; (c) pay dividends in proportion to the amount paid up on each share where a larger amount is paid up on some shares than on others; and (d) issue its shares in fractional denominations and deal with such fractions to the same extent as its whole shares and shares in fractional denominations shall have in proportion to the respective fractions represented thereby all of the rights of whole shares including (but without limiting the generality of the foregoing) the right to vote, to receive dividends and distributions and to participate in a winding up. 52. Variation of rights, alteration of share capital and purchase of shares of the Company (1) Subject to the provisions of Sections 42 and 43 of the Act any preference shares may be issued or converted into shares that, at a determinable date or at the option of the Company, are liable to be redeemed on such terms and in such manner as the Company before the issue or conversion may by resolution of the Members determine. (2) If at any time the share capital is divided into different classes of shares, the rights attached to any class (unless otherwise provided by the terms of issue of the shares of that class) may, whether or not the Company is being wound-up, be varied with 17 the consent in writing of the holders of three-fourths of the issued shares of that class or with the sanction of a resolution passed by a majority of the votes cast at a separate general meeting of the holders of the shares of the class in accordance with Section 47(7) of the Act. The rights conferred upon the holders of the shares of any class issued with preferred or other rights shall not, unless otherwise expressly provided by the terms of issue of the shares of that class, be deemed to be varied by the creation or issue of further shares ranking pari passu therewith. (3) The Company may from time to time by resolution of the Members change the currency denomination of, increase, alter or reduce its share capital in accordance with the provisions of Sections 45 and 46 of the Act. Where, on any alteration of share capital, fractions of shares or some other difficulty would arise, the Board may deal with or resolve the same in such manner as it thinks fit including, without limiting the generality of the foregoing, the issue to Members, as appropriate, of fractions of shares and/or arranging for the sale or transfer of the fractions of shares of Members. (4) The Company may from time to time purchase its own shares in accordance with the provisions of Section 42A of the Act. 53. Registered holder of shares (1) The Company shall be entitled to treat the registered holder of any share as the absolute owner thereof and accordingly shall not be bound to recognise any equitable or other claim to, or interest in, such share on the part of any other person. (2) Any dividend, interest or other moneys payable in cash in respect of shares may be paid by cheque or draft sent through the post directed to the Member at such Member's address in the Register of Members or, in the case of joint holders, to such address of the holder first named in the Register of Members, or to such person and to such address as the holder or joint holders may in writing direct. If two or more persons are registered as joint holders of any shares any one can give an effectual receipt for any dividend paid in respect of such shares. 54. Death of a joint holder Where two or more persons are registered as joint holders of a share or shares then in the event of the death of any joint holder or holders the remaining joint holder or holders shall be absolutely entitled to the said share or shares and the Company shall recognise no claim in respect of the estate of any joint holder except in the case of the last survivor of such joint holders. 55. Share certificates (1) Every Member shall be entitled to a certificate under the seal of the Company (or a facsimile thereof) specifying the number and, where appropriate, the class of shares held by such Member and whether the same are fully paid up and, if not, how much has been paid thereon. The Board may by resolution determine, either generally or 18 in a particular case, that any or all signatures on certificates may be printed thereon or affixed by mechanical means. (2) The Company shall be under no obligation to complete and deliver a share certificate unless specifically called upon to do so by the person to whom such shares have been allotted. (3) If any such certificate shall be proved to the satisfaction of the Board to have been worn out, lost, mislaid or destroyed the Board may cause a new certificate to be issued and request an indemnity for the lost certificate if it sees fit. 56. Calls on shares (1) The Board may from time to time make such calls as it thinks fit upon the Members in respect of any monies unpaid on the shares allotted to or held by such Members and, if a call is not paid on or before the day appointed for payment thereof, the Member may at the discretion of the Board be liable to pay the Company interest on the amount of such call at such rate as the Board may determine, from the date when such call was payable up to the actual date of payment. The joint holders of a share shall be jointly and severally liable to pay all calls in respect thereof (2) The Board may, on the issue of shares, differentiate between the holders as to the amount of calls to be paid and the times of payment of such calls. 57. Forfeiture of shares (1) If any Member fails to pay, on the day appointed for payment thereof, any call in respect of any share allotted to or held by such Member, the Board may, at any time thereafter during such time as the call remains unpaid, direct the Secretary to forward to such Member a notice in the form, or as near thereto as circumstances admit, of Form "B" in the Schedule hereto. (2) If the requirements of such notice are not complied with, any such share may at any time thereafter before the payment of such call and the interest due in respect thereof be forfeited by a resolution of the Board to that effect, and such share shall thereupon become the property of the Company and may be disposed of as the Board shall determine. (3) A Member whose share or shares have been forfeited as aforesaid shall, notwithstanding such forfeiture, be liable to pay to the Company all calls owing on such share or shares at the time of the forfeiture and all interest due thereon. REGISTER OF MEMBERS 58. Contents of Register of Members The Board shall cause to be kept in one or more books a Register of Members and shall enter therein the particulars required by the Act. 19 59. Inspection of Register of Members The Register of Members shall be open to inspection at the registered office of the Company on every business day, subject to such reasonable restrictions as the Board may impose, so that not less than two hours in each business day be allowed for inspection. The Register of Members may, after notice has been given by advertisement in an appointed newspaper to that effect, be closed for any time or times not exceeding in the whole thirty days in each year. 60. Determination of record dates Notwithstanding any other provision of these Bye-laws, the Board may fix any date as the record date for: (a) determining the members entitled to receive any dividend; and (b) determining the Members entitled to receive notice of and to vote at any general meeting of the Company. TRANSFER OF SHARES 61. Instrument of transfer (1) An instrument of transfer shall be in the form or as near thereto as circumstances admit of Form "C" in the Schedule hereto or in such other common form as the Board may accept. Such instrument of transfer shall be signed by or on behalf of the transferor and transferee provided that, in the case of a fully paid share, the Board may accept the instrument signed by or on behalf of the transferor alone. The transferor shall be deemed to remain the holder of such share until the same has been transferred to the transferee in the Register of Members. (2) The Board may refuse to recognise any instrument of transfer unless it is accompanied by the certificate in respect of the shares to which it relates and by such other evidence as the Board may reasonably require to show the right of the transferor to make the transfer. 62. Restriction on transfer (1) The Board may in its absolute discretion and without assigning any reason therefor refuse to register the transfer of a share. The Board shall refuse to register a transfer unless all applicable consents, authorisations and permissions of any governmental body or agency in Bermuda have been obtained. (2) If the Board refuses to register a transfer of any share the Secretary shall, within three months after the date on which the transfer was lodged with the Company, send to the transferor and transferee notice of the refusal. 63. Transfers by joint holders The joint holders of any share or shares may transfer such share or shares to one or more of such joint holders, and the surviving holder or holders of any share or shares 20 previously held by them jointly with a deceased Member may transfer any such share to the executors or administrators of such deceased Member. TRANSMISSION OF SHARES 64. Representative of deceased Member In the case of the death of a Member, the survivor or survivors where the deceased Member was a joint holder, and the legal personal representatives of the deceased Member where the deceased Member was a sole holder, shall be the only persons recognised by the Company as having any title to the deceased Member's interest in the shares. Nothing herein contained shall release the estate of a deceased joint holder from any liability in respect of any share which had been jointly held by such deceased Member with other persons. Subject to the provisions of Section 52 of the Act, for the purpose of this Bye-law, legal personal representative means the executor or administrator of a deceased Member or such other person as the Board may in its absolute discretion decide as being properly authorised to deal with the shares of a deceased Member. 65 Registration on death or bankruptcy Any person becoming entitled to a share in consequence of the death or bankruptcy of any Member may be registered as a Member upon such evidence as the Board may deem sufficient or may elect to nominate some person to be registered as a transferee of such share, and in such case the person becoming entitled shall execute in favour of such nominee an instrument of transfer in the form, or as near thereto as circumstances admit, of Form "D" in the Schedule hereto. On the presentation thereof to the Board, accompanied by such evidence as the Board may require to prove the title of the transferor, the transferee shall be registered as a Member but the Board shall, in either case, have the same right to decline or suspend registration as it would have had in the case of a transfer of the share by that Member before such Member's death or bankruptcy, as the case may be. DIVIDENDS AND OTHER DISTRIBUTIONS 66. Declaration of dividends by the Board The Board may, subject to these Bye-laws and in accordance with Section 54 of the Act, declare a dividend to be paid to the Members, in proportion to the number of shares held by them and such dividend may be paid in cash or wholly or partly in specie in which case the Board may fix the value for distribution in specie of any assets. 67. Other distributions The Board may declare and make such other distributions (in cash or in specie) to the Members as may be lawfully made out of the assets of the Company. 21 68. Reserve fund The Board may from time to time before declaring a dividend set aside, out of the surplus or profits of the Company, such sum as it thinks proper as a reserve to be used to meet contingencies or for equalising dividends or for any other special purpose. 69. Deduction of Amounts due to the Company The Board may deduct from the dividends or distributions payable to any Member all monies due from such Member to the Company on account of calls or otherwise. CAPITALISATION 70. Issue of bonus shares (1) The Board may resolve to capitalise any part of the amount for the time being standing to the credit of any of the Company's share premium or other reserve accounts or to the credit of the profit and loss account or otherwise available for distribution by applying such sum in paying up unissued shares to be allotted as fully paid bonus shares pro rata to the Members. (2) The Company may capitalise any sum standing to the credit of a reserve account or sums otherwise available for dividend or distribution by applying such amounts in paying up in full partly paid shares of those Members who would have been entitled to such sums if they were distributed by way of dividend or distribution. ACCOUNTS AND FINANCIAL STATEMENTS 71. Records of account The Board shall cause to be kept proper records of account with respect to all transactions of the Company and in particular with respect to: (a) all sums of money received and expended by the Company and the matters in respect of which the receipt and expenditure relates; (b) all sales and purchases of goods by the Company; and (c) the assets and liabilities of the Company. Such records of account shall be kept at the registered office of the Company or, subject to Section 83 (2) of the Act, at such other place as the Board thinks fit and shall be available for inspection by the Directors during normal business hours. 72. Financial year end The financial year end of the Company may be determined by resolution of the Board and failing such resolution shall be 31st December in each year. 22 73. Financial statements Subject to any rights to waive laying of accounts pursuant to Section 88 of the Act, financial statements as required by the Act shall be laid before the Members in general meeting. AUDIT 74. Appointment of Auditor Subject to Section 88 of the Act, at the annual general meeting or at a subsequent special general meeting in each year, an independent representative of the Members shall be appointed by them as Auditor of the accounts of the Company. Such Auditor may be a Member but no Director, Officer or employee of the Company shall, during his or her continuance in office, be eligible to act as an Auditor of the Company. 75. Remuneration of Auditor The remuneration of the Auditor shall be fixed by the Company in general meeting or in such manner as the Members may determine. 76. Vacation of office of Auditor If the office of Auditor becomes vacant by the resignation or death of the Auditor, or by the Auditor becoming incapable of acting, by reason of illness or other disability at a time when the Auditor's services are required, the Board shall, as soon as practicable, convene a special general meeting to fill the vacancy thereby created. 77. Access to books of the Company The Auditor shall at all reasonable times have access to all books kept by the Company and to all accounts and vouchers relating thereto, and the Auditor may call on the Directors or Officers of the Company for any information in their possession relating to the books or affairs of the Company. 78. Report of the Auditor (1) Subject to any rights to waive laying of accounts or appointment of an Auditor pursuant to Section 88 of the Act, the accounts of the Company shall be audited at least once in every year. (2) The financial statements provided for by these Bye-laws shall be audited by the Auditor in accordance with generally accepted auditing standards. The Auditor shall make a written report thereon in accordance with generally accepted auditing standards and the report of the Auditor shall be submitted to the Members in general meeting. (3) The generally accepted auditing standards referred to in subparagraph (2) of this Bye-law may be those of a country or jurisdiction other than Bermuda. If so, the 23 financial statements and the report of the Auditor must disclose this fact and name such country or jurisdiction. NOTICES 79. Notices to Members of the Company A notice may be given by the Company to any Member either by delivering it to such Member in person or by sending it to such Member's address in the Register of Members or to such other address given for the purpose. For the purposes of this Bye-law, a notice may be sent by mail, courier service, cable, telex, telecopier, facsimile or other mode of representing words in a legible and non-transitory form. 80. Notices to joint Members Any notice required to be given to a Member shall, with respect to any shares held jointly by two or more persons, be given to whichever of such persons is named first in the Register of Members and notice so given shall be sufficient notice to all the holders of such shares. 81. Service and delivery of notice Any notice shall be deemed to have been served at the time when the same would be delivered in the ordinary course of transmission and, in proving such service, it shall be sufficient to prove that the notice was properly addressed and prepaid, if posted, and the time when it was posted, delivered to the courier or to the cable company or transmitted by telex, facsimile or other method as the case may be. SEAL OF THE COMPANY 82. The seal The seal of the Company shall be in such form as the Board may from time to time determine. The Board may adopt one or more duplicate seals for use outside Bermuda. 83. Manner in which seal is to be affixed The seal of the Company shall not be affixed to any instrument except attested by the signature of a Director and the Secretary or any two Directors, or any person appointed by the Board for the purpose, provided that any Director, Officer or Resident Representative, may affix the seal of the Company attested by such Director, Officer or Resident Representative's signature to any authenticated copies of these Bye-laws, the incorporating documents of the Company, the minutes of any meetings or any other documents required to be authenticated by such Director, Officer or Resident Representative. 24 WINDING-UP 84. Winding-up/distribution by liquidator If the Company shall be wound up the liquidator may, with the sanction of a resolution of the Members, divide amongst the Members in specie or in kind the whole or any part of the assets of the Company (whether they shall consist of property of the same kind or not) and may, for such purpose, set such value as he or she deems fair upon any property to be divided as aforesaid and may determine how such division shall be carried out as between the Members or different classes of Members. The liquidator may, with the like sanction, vest the whole or any part of such assets in trustees upon such trusts for the benefit of the Members as the liquidator shall think fit, but so that no Member shall be compelled to accept any shares or other securities or assets whereon there is any liability. ALTERATION OF BYE-LAWS 85. Alteration of Bye-laws No Bye-law shall be rescinded, altered or amended and no new Bye-law shall be made until the same has been approved by a resolution of the Board and by a resolution of the Members. EX-99.B.27.3 35 AMENDED & RESTATED BYLAWS AS AMENDED 12/31/99 1 Conectiv Thermal Systems, Inc B.27.3 Amended and Restated Bylaws Adopted December 31, 1999 2 AMENDED AND RESTATED B Y L A W S OF CONECTIV THERMAL SYSTEM, INC. 1. OFFICES. 1.1 Offices. In addition to its registered office in the State of Delaware, the Corporation shall have a corporate office in Wilmington, Delaware, and such other offices, either within or without the State of Delaware, at such locations as the Board of Directors may from time to time determine or the business of the Corporation may require. 2. SEAL. 2.1 Seal. The Corporation shall have a seal, which shall have inscribed thereon its name and year of incorporation and the words, "Corporate Seal Delaware." 3. MEETINGS OF STOCKHOLDERS. 3.1 Annual Meetings. The annual meeting of stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as shall be determined by the Board of Directors from time to time. 3.2 Special Meetings. Special meetings of the stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as may be designated by the Chairman of the Board or by the Board of Directors. 3.3 Notice of Meetings. (a) Notices of meetings of stockholders shall be in writing and shall state the place, date, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which a meeting is called. No business other than that specified in the notice thereof shall be transacted at any special meeting. (b) Such notice shall either be delivered personally, mailed, postage prepaid, or delivered by any other lawful means to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. If mailed, the notice shall be directed to the stockholder at his or her address as it appears on the records of the Corporation. Delivery of any such notice to any officer of a corporation or association or to any member of a partnership shall constitute delivery of such notice to such corporation, association, or partnership. (c) Notice of any meeting of stockholders need not be given to any stockholder if waived by such stockholder in writing, whether before or after such meeting is held, or if such stockholder shall sign the minutes or attend the meeting, except that if such stockholder attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, such stockholder shall not be deemed to have waived notice of such meeting. 3.4 Adjourned Meetings. When a meeting is adjourned to another time or place, unless otherwise provided by these Bylaws, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the stockholders may transact any business that might have been transacted at the original meeting. If an adjournment 2 3 is for more than 30 days, or if after an adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting. 3.5 Quorum and Adjournment. Except as otherwise provided by law, by the Certificate of Incorporation of the Corporation, or by these Bylaws, the presence, in person or by proxy, of the holders of a majority of the aggregate voting power of the stock issued and outstanding, entitled to vote thereat, shall constitute a quorum for the transaction of business at all meetings of stockholders. If such majority shall not be present or represented at any meeting of stockholders, the stockholders present, although less than a quorum, shall have the power to adjourn the meeting. 3.6 Vote Required. Except as otherwise provided by law or by the Certificate of Incorporation: (a) Directors shall be elected by a plurality of the votes present in person or represented by proxy at a meeting of stockholders and entitled to vote in the election of directors, and (b) whenever any corporate action other than the election of Directors is to be taken, it shall be authorized by a majority in voting power of the shares present in person or by proxy at a meeting of stockholders and entitled to vote on the subject matter. 3.7 Manner of Voting. At each meeting of stockholders, each stockholder having the right to vote shall be entitled to vote in person or by proxy. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed before being voted. Each stockholder shall be entitled to vote each share of stock having voting power registered in his or her name on the books of the Corporation on the record date fixed for determination of stockholders entitled to vote at such meeting. 3.8 Stockholder Action Without a Meeting. Except as otherwise provided by law or by the Certificate of Incorporation, any action required to be taken at any meeting of stockholders of the corporation, or any action that may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice, and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of the holders to take the action were delivered to the Corporation. 3.9 Proxies. (a) At any meeting of stockholders, any stockholder may be represented and vote by proxy or proxies. In the event that any form of proxy shall designate two or more persons to act as proxies, a majority of such persons present at the meeting or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by the form of proxy upon all of the persons so designated unless the form of proxy shall otherwise provide. (b) The Board of Directors may, in advance of any annual or special meeting of the stockholders, prescribe additional regulations concerning the validation of the same, which are intended to be voted at any such meeting. 3.10 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the stockholders. In the absence of the Chairman of the Board, the Vice Chairman of the Board or, in his or her absence, any Director designated by the Chairman of the Board or the Board of Directors shall act as chairman of the meeting. 3 4 The Secretary of the Corporation shall act as secretary of all meetings of the stockholders, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the stockholders, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 3.11 Procedure. At each meeting of stockholders, the chairman of the meeting shall fix and announce the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at the meeting and shall determine the order of business and all other matters of procedure. Except to the extent inconsistent with any such rules and regulations as adopted by the Board of Directors, the chairman of the meeting may establish rules, which need not be in writing, to maintain order and safety and for the conduct of the meeting. Without limiting the foregoing, he or she may: (a) restrict attendance at any time to bona fide stockholders of record and their proxies and other persons in attendance at the invitation of the chairman; (b) restrict dissemination of solicitation materials and use of audio or visual recording devices at the meeting; (c) adjourn the meeting without a vote of the stockholders, whether or not there is a quorum present; and (d) make rules governing speeches and debate, including time limits and access to microphones. The chairman of the meeting shall be entitled to act in his or her absolute discretion and his or her rulings shall not be subject to appeal. 4. DIRECTORS. 4.1 Powers and Number. The Board of Directors shall exercise all of the powers of the Corporation except such as are by law, or by the Certificate of Incorporation of this Corporation or by these Bylaws conferred upon or reserved to the stockholders of any class or classes. The number of directors that shall constitute the whole Board of Directors shall be no fewer than three (3) and no greater than nine (9), the exact number of directors to be determined from time to time by resolution adopted by the Board of Directors or the stockholders, and until otherwise determined by the Board of Directors or the stockholders, the number of directors that shall constitute the whole Board of Directors shall be three (3). 4.2 Resignations. Any Director may resign at any time by giving written notice to the Board of Directors or the Secretary. Such resignation shall take effect at the date of receipt of such notice or at any later time specified therein. Acceptance of such resignation shall not be necessary to make it effective. 4.3 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the Board of Directors. In the absence of the Chairman of the Board, the Vice Chairman of the Board, or in his absence, the Chief Executive Officer or other person designated by the Board of Directors shall act as chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the Board of Directors, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the Board of Directors, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 4 5 4.4 Annual Meetings. The Board of Directors shall meet each year immediately following the annual meeting of stockholders, at the place where such meeting of stockholders has been held, or at such other place as shall be fixed by the person presiding over the meeting of the stockholders, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. In the event that in any year Directors are elected by written consent in lieu of an annual meeting of stockholders, the Board of Directors shall meet in such year as soon as practicable after receipt of such written consent by the Corporation at such time and place as shall be fixed by the Chairman of the Board, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. 4.5 Regular Meetings. Regular meetings of the Board of Directors shall be held on such dates and at such times and places, within or without the state of Delaware, as shall from time to time be determined by the Board of Directors. In the absence of any such determination, such meetings shall be held at such times and places, within or without the State of Delaware, as shall be designated by the Chairman of the Board on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex or by electronic mail or by other electronic means, or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. 4.6 Special Meetings. Special meetings of the Board of Directors shall be held at the call of the Chairman of the Board at such times and places, within or without the State of Delaware, as he or she shall designate, on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex, by electronic mail or by other electronic means or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. Special meetings shall be called by the Secretary on like notice at the written request of a majority of the Directors then in office. 4.7 Quorum and Powers of a Majority. At all meetings of the Board of Directors and of each committee thereof, a majority of the members shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which a quorum is present shall be the act of the Board of Directors or such committee, unless by express provision of law, of the Certificate of Incorporation, or of these Bylaws, a different vote is required, in which case such express provision shall govern and control. In the absence of a quorum, a majority of the members present at any meeting may, without notice other than announcement at the meeting, adjourn such meeting from time to time until a quorum is present. 4.8 Waiver of Notice. Notice of any meeting of the Board of Directors, or any committee thereof, need not be given to any member if waived by him or her in writing, whether before or after such meeting is held, or if he or she shall sign the minutes or attend the meeting, except that if such Director attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, then such Director shall not be deemed to have waived notice of such meeting. 4.9 Manner of Acting. (a) Members of the Board of Directors, or any committee thereof, may participate in any meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating therein can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting. (b) Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board of Directors or 5 6 such committee, as the case may be, consent thereto in writing, and the writings are filed with the minutes of proceedings of the Board of Directors or such committee. 4.10 Compensation. (a) The Board of Directors, by a resolution or resolutions, may fix, and from time to time change, the compensation of Directors. (b) Each Director shall be entitled to reimbursement from the Corporation for his or her reasonable expenses incurred with respect to duties as a member of the Board of Directors or any committee thereof. (c) Nothing contained in these Bylaws shall be construed to preclude any Director from serving the Corporation in any other capacity and from receiving compensation from the Corporation for service rendered to it in such other capacity. 4.11 Committees. The Board of Directors (or any committee thereof having the power and authority to do so) may designate one or more committees, each committee to consist of one or more Directors, which to the extent provided in said resolution or resolutions shall have and may exercise the powers and authority of the Board of Directors in the management of the business and affairs of the corporation; provided, however, that no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the General Corporation Law of Delaware (the "GCLD") to be submitted to stockholders for approval or (ii) adopting, amending, or repealing any bylaw of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting of such committee and not disqualified from voting, whether or not such member of members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of such absent or disqualified director. 4.12 Committee Procedure, Limitations of Committee Powers. (a) Except as otherwise provided by these Bylaws, each committee shall adopt its own rules governing the time, place and method of holding its meetings and the conduct of its proceedings and shall meet as provided by such rules or by resolution of the Board of Directors. Unless otherwise provided by these Bylaws or any such rules or resolutions, notice of the time and place of each meeting of a committee shall be given to each member of such committee as provided in Section 4.6 of these Bylaws with respect to notices of special meetings of the Board of Directors. (b) Each committee shall keep regular minutes of its proceedings and report the same to the Board of Directors when required. (c) Any member of any committee may be removed from such committee either with or without cause, at any time, by the Board of Directors at any meeting thereof. Any vacancy in any committee shall be filled by the Board of Directors in the manner prescribed by the Certificate of Incorporation or these Bylaws for the original appointment of the members of such committee. 5. OFFICERS. 5.1 Number. (a) The officers of the Corporation shall include a Chief Executive Officer, a President, one or more Vice Presidents (including one or more Executive Vice Presidents and one or more Senior Vice Presidents if deemed appropriate by the Board of Directors), a Chief Financial Officer, a Secretary, a Treasurer, and a Controller. The Board of Directors shall also elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except for the Chairman of the Board, the Vice Chairman of the Board, and the Chief Executive Officer, none of the officers of the Corporation needs to be a director of the Corporation. Any two or more offices may be held by the same person to the extent permitted by the GCLD. 6 7 (b) The Chief Executive Officer shall have the power to appoint one or more employees of the Corporation as divisional or departmental vice presidents and fix the duties of such appointees. However, no such divisional or departmental vice president shall be considered as an officer of the Corporation. 5.2 Election of Officers, Qualification and Term. The Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President, the Chief Financial Officer, the Secretary and the Treasurer of the Corporation shall be elected from time to time by the Board of Directors and, except as may otherwise be expressly provided in a contract of employment duly authorized by the Board of Directors, shall hold office at the pleasure of the Board of Directors. The Board of Directors and the Chief Executive Officer also may elect such other officers as the Board of Directors or the Chief Executive Officer may from time to time deem appropriate or necessary. 5.3 Removal. Any officer elected by the Board of Directors may be removed, either with or without cause, by the Board of Directors at any meeting thereof, or to the extent delegated to the Chairman of the Board or the Chief Executive Officer, by the Chairman of the Board or the Chief Executive Officer. 5.4 Resignations. Any officer of the Corporation may resign at any time by giving written notice to the Board of Directors or to the Chairman of the Board or to the Chief Executive Officer. Such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 5.5 Compensation. The compensation of all officers of the Corporation shall be fixed by or in the manner provided by the Board of Directors from time to time, and no officer shall be prevented from receiving such compensation by reason of the fact that he or she is also a Director of the Corporation. 5.6 The Chairman of the Board. The Chairman of the Board shall have the powers and duties customarily and usually associated with the office of the Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. The Chairman of the Board shall preside at meetings of the stockholders and of the Board of Directors. 5.7 Vice Chairman of the Board. The Vice Chairman of the Board, if any, shall have the powers and duties customarily and usually associated with the office of the Vice Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. 5.8 Chief Executive Officer. The Chief Executive Officer shall have, subject to the supervision, direction and control of the Board of Directors, the general powers and duties of supervision, direction and management of the affairs and business of the Corporation usually vested in the chief executive officer of a corporation, including, without limitation, all powers necessary to direct and control the organizational and reporting relationships within the Corporation. In addition, the Chief Executive Officer shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. If at any time the office of the Chairman of the Board and the Vice Chairman of the Board shall not be filled, or in the event of the temporary absence or disability of the Chairman of the Board and the Vice Chairman of the Board, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board. 5.9 The President. The President shall serve as chief operating officer, shall have the powers and duties customarily and usually associated with the office of the President and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.10 The Vice Presidents. Each Vice President shall have such powers and duties customarily and usually associated with the office of Vice President and shall have such other powers and perform 7 8 such other duties as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, or the President. 5.11 The Chief Financial Officer. The Chief Financial Officer shall be responsible for the financial affairs of the Corporation, including overseeing the duties performed by the Treasurer of the Corporation. In addition, the Chief Financial Officer shall have such powers and duties customarily and usually associated with the office of the Chief Financial Officer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.12 The Secretary and the Assistant Secretary. (a) The Secretary shall attend meetings of the Board of Directors and meetings of the stockholders and record all votes and minutes of all such proceedings in a book kept for such purpose. In addition, the Secretary shall have such powers and duties customarily and usually associated with the office of Secretary and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors, the Chief Executive Officer, or the President. (b) Each Assistant Secretary shall have such powers and perform such duties customarily and usually associated with the office of Assistant Secretary and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Secretary. In case of the absence or disability of the Secretary, the Assistant Secretary designated by the Chief Executive Officer (or, in the absence of such designation, by the Secretary) shall perform the duties and exercise the powers of the Secretary. 5.13 The Treasurer and the Assistant Treasurer. (a) The Treasurer shall have custody of the Corporation's funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit or cause to be deposited moneys or other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall also maintain adequate records of all assets, liabilities, and transactions of the Corporation and shall see that adequate audits thereof are currently and regularly made. In addition, the Treasurer shall have such powers and duties customarily and usually associated with the office of Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. (b) Each Assistant Treasurer shall have such powers and perform such duties customarily and usually associated with the office of Assistant Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Treasurer. In case of the absence or disability of the Treasurer, the Assistant Treasurer designated by the Chief Executive Officer (or, in the absence of such designation, by the Treasurer) shall perform the duties and exercise the powers of the Treasurer. 5.14 Controller. The Controller shall be responsible for maintaining the accounting records and statements, and shall properly account for all monies and obligations due the Corporation and all properties, assets, and liabilities of the Corporation. The Controller shall render to the Chairman of the Board, the President or the Chief Financial Officer such periodic reports covering the results of operations of the Corporation as may be required by either of them or by law. In addition, the Controller shall have such powers and duties customarily and usually associated with the office of Controller and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. 6. STOCK 6.1 Certificates. Certificates for shares of stock of the Corporation shall be issued under the seal of the Corporation, or a facsimile thereof, and shall be numbered and shall be entered in the books of the 8 9 Corporation as they are issued. Each certificate shall bear a serial number, shall exhibit the holder's name and the number of shares evidenced thereby, and shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the Chief Executive Officer or the President or any Vice President, and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person or entity were such officer, transfer agent, or registrar at the date of issue. 6.2 Transfers. Transfers of stock of the Corporation shall be made on the books of the Corporation only upon surrender to the Corporation of a certificate (if any) for the shares duly endorsed or accompanied by proper evidence of succession, assignment, or authority to transfer, provided such succession, assignment, or transfer is not prohibited by the Certificate of Incorporation, these Bylaws, applicable law or contract. Thereupon, the Corporation shall issue a new certificate (if requested) to the person entitled thereto, cancel the old certificate (if any), and record the transaction upon its books. 6.3 Lost, Stolen, or Destroyed Certificates. Any person claiming a certificate of stock to be lost, stolen, or destroyed shall make an affidavit or an affirmation of that fact, and shall give the Corporation a bond of indemnity in satisfactory form and with one or more satisfactory sureties, whereupon a new certificate (if requested) may be issued of the same tenor and for the same number of shares as the one alleged to be lost, stolen, or destroyed. 6.4 Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares as the person entitled to exercise the rights of a stockholder and shall not be bound to recognize any equitable or other claim to or interest in any such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by the GCLD. 6.5 Additional Powers of the Board. (a) In addition to those powers set forth in Section 4.1, the Board of Directors shall have power and authority to make all such rules and regulations as it shall deem expedient concerning the issue, transfer, and registration of certificates for shares of stock of the Corporation, including the use of uncertificated shares of stock subject to the provisions of the GCLD. (b) The Board of Directors may appoint and remove transfer agents and registrars of transfers, and may require all stock certificates to bear the signature of any such transfer agent and/or any such registrar of transfers. 7. INDEMNIFICATION 7.1 Each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or the person of whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation, as a director, officer, employee, or agent of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to employee benefit plans, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the GCLD, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expenses, liability, and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of his or her heirs, executors, and administrators; provided, however, that, except as provided in this Article 7, the Corporation shall indemnify any 9 10 such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if authorized by the Board of Directors of the Corporation. Any indemnification under this Article 7 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard set forth in the GCLD. Such a determination shall be made (a) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum; (b) by a committee of such directors designated by majority vote of such directors, even though less than a quorum; (c) by independent legal counsel (compensated by the Corporation) in a written opinion; (d) by the stockholders; or (e) in any other manner permitted by the GCLD. In addition to the right to indemnification conferred in this Article 7, each of the above persons shall have the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the GCLD requires, the payment of such expenses incurred by a present director or officer in his or her capacity as a director or officer of the corporation (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such present director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Article 7 or otherwise. The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers. The right to indemnification and to an advancement of expenses conferred in this Article 7 shall be a contract right. 7.2 If a claim under Section 7.1 of this Article 7 is not paid in full by the Corporation within 30 days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim (including attorneys' fees). 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 Corporation) that the claimant has not met the standard of conduct which makes it permissible under the GCLD for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD, nor an actual determination by the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) that the claimant has not met such 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. In any suit brought by the claimant to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the claimant is not entitled to be indemnified, or to such advancement of expenses, under this Article 7 or otherwise shall be on the Corporation. 7.3 The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article 7, shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, provision of the certificate of incorporation of the Corporation, this bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. 7.4 The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee, or agent of the Corporation or another corporation, partnership, joint venture, trust, or other enterprise against any such expense, liability, or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability, or loss under the GCLD. 7.5 The Corporation may enter into an indemnity agreement with any director, officer, employee, or agent of the Corporation, or of another corporation, partnership, joint venture, trust, or other 10 11 enterprise, upon terms and conditions that the Board of Directors deems appropriate, as long as the provisions of the agreement are not impermissible under applicable law. 7.6 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.7 In case any provision in this Article 7 shall be determined at any time to be unenforceable in any respect, the other provisions shall not in any way be affected or impaired thereby, and the affected provision shall be given the fullest possible enforcement in the circumstances, it being the intention of the Corporation to afford indemnification and advancement of expenses to the persons indemnified hereby to the fullest extent permitted by law. 7.8 The Corporation may, by action of the Board of Directors, authorize one or more officers to grant rights to indemnification and advancement of expenses to former directors and officers or to other employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances. 8. MISCELLANEOUS 8.1 Place and Inspection of Books. (a) The books of the Corporation other than such books as are required by law to be kept within the State of Delaware shall be kept in such place or places either within or without the State of Delaware as the Board of Directors may from time to time determine. (b) At least ten days before each meeting of stockholders, the officer in charge of the stock ledger of the Corporation shall prepare a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. (c) The Board of Directors shall determine from time to time whether and, if allowed, when and under what conditions and regulations the accounts and books of the Corporation (except such as may be by law specifically open to inspection or as otherwise provided by these Bylaws) or any of them shall be open to the inspection of the stockholders and the stockholders' rights in respect thereof. 8.2 Voting Shares in Other Corporations. The Chief Executive Officer, the President, the Chief Financial Officer or any other officer of the Corporation designated by the Board of Directors may vote any and all shares held by the Corporation in any other corporation. 8.3 Fiscal Year. The fiscal year of the Corporation shall be such fiscal year as the Board of Directors from time to time by resolution shall determine. 8.4 Gender/Number. As used in these Bylaws, the masculine, feminine, or neuter gender, and the singular or plural number, shall each include the others whenever the context so indicates. 8.5 Paragraph Titles. The titles of the paragraphs have been inserted as a matter of reference only and shall not control or affect the meaning or construction of any of the terms and provisions hereof. 11 12 8.6 Amendment. These Bylaws may be altered, amended, or repealed by (a) the affirmative vote of 80% or more of the aggregate number of votes that the holders of the then outstanding shares of common stock and preferred stock are entitled to cast on the amendment, or (b) by resolution adopted by the affirmative vote of not less than a majority of the Directors in office, at any annual or regular meeting of the Board of Directors or at any special meeting of the Board of Directors if notice of the proposed alteration, amendment, or repeal be contained in written notice of such special meeting. Notwithstanding the foregoing, the amendment of any provision of these Bylaws that requires an affirmative vote in excess of a majority of the Directors in office shall require the affirmative vote of at least the number of directors the affirmative vote of whom is required by such provision. 8.7 Certificate of Incorporation. Notwithstanding anything to the contrary contained herein, if any provision contained in these Bylaws is inconsistent with or conflicts with a provision of the Certificate of Incorporation, such provision of these Bylaws shall be superseded by the inconsistent provision in the Certificate of Incorporation to the extent necessary to give effect to such provision in the Certificate of Incorporation. 12 EX-99.B.28.3 36 AMENDED & RESTATED BYLAWS AS AMENDED 12/31/99 1 ATS Operating Services, Inc. B.28.3 Amended and Restated Bylaws Adopted December 31, 1999 2 AMENDED AND RESTATED B Y L A W S OF ATS OPERATING SERVICES, INC. 1. OFFICES. 1.1 Offices. In addition to its registered office in the State of Delaware, the Corporation shall have a corporate office in Wilmington, Delaware, and such other offices, either within or without the State of Delaware, at such locations as the Board of Directors may from time to time determine or the business of the Corporation may require. 2. SEAL. 2.1 Seal. The Corporation shall have a seal, which shall have inscribed thereon its name and year of incorporation and the words, "Corporate Seal Delaware." 3. MEETINGS OF STOCKHOLDERS. 3.1 Annual Meetings. The annual meeting of stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as shall be determined by the Board of Directors from time to time. 3.2 Special Meetings. Special meetings of the stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as may be designated by the Chairman of the Board or by the Board of Directors. 3.3 Notice of Meetings. (a) Notices of meetings of stockholders shall be in writing and shall state the place, date, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which a meeting is called. No business other than that specified in the notice thereof shall be transacted at any special meeting. (b) Such notice shall either be delivered personally, mailed, postage prepaid, or delivered by any other lawful means to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. If mailed, the notice shall be directed to the stockholder at his or her address as it appears on the records of the Corporation. Delivery of any such notice to any officer of a corporation or association or to any member of a partnership shall constitute delivery of such notice to such corporation, association, or partnership. (c) Notice of any meeting of stockholders need not be given to any stockholder if waived by such stockholder in writing, whether before or after such meeting is held, or if such stockholder shall sign the minutes or attend the meeting, except that if such stockholder attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, such stockholder shall not be deemed to have waived notice of such meeting. 3.4 Adjourned Meetings. When a meeting is adjourned to another time or place, unless otherwise provided by these Bylaws, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the stockholders may transact any business that might have been transacted at the original meeting. If an adjournment 2 3 is for more than 30 days, or if after an adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting. 3.5 Quorum and Adjournment. Except as otherwise provided by law, by the Certificate of Incorporation of the Corporation, or by these Bylaws, the presence, in person or by proxy, of the holders of a majority of the aggregate voting power of the stock issued and outstanding, entitled to vote thereat, shall constitute a quorum for the transaction of business at all meetings of stockholders. If such majority shall not be present or represented at any meeting of stockholders, the stockholders present, although less than a quorum, shall have the power to adjourn the meeting. 3.6 Vote Required. Except as otherwise provided by law or by the Certificate of Incorporation: (a) Directors shall be elected by a plurality of the votes present in person or represented by proxy at a meeting of stockholders and entitled to vote in the election of directors, and (b) whenever any corporate action other than the election of Directors is to be taken, it shall be authorized by a majority in voting power of the shares present in person or by proxy at a meeting of stockholders and entitled to vote on the subject matter. 3.7 Manner of Voting. At each meeting of stockholders, each stockholder having the right to vote shall be entitled to vote in person or by proxy. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed before being voted. Each stockholder shall be entitled to vote each share of stock having voting power registered in his or her name on the books of the Corporation on the record date fixed for determination of stockholders entitled to vote at such meeting. 3.8 Stockholder Action Without a Meeting. Except as otherwise provided by law or by the Certificate of Incorporation, any action required to be taken at any meeting of stockholders of the corporation, or any action that may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice, and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of the holders to take the action were delivered to the Corporation. 3.9 Proxies. (a) At any meeting of stockholders, any stockholder may be represented and vote by proxy or proxies. In the event that any form of proxy shall designate two or more persons to act as proxies, a majority of such persons present at the meeting or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by the form of proxy upon all of the persons so designated unless the form of proxy shall otherwise provide. (b) The Board of Directors may, in advance of any annual or special meeting of the stockholders, prescribe additional regulations concerning the validation of the same, which are intended to be voted at any such meeting. 3.10 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the stockholders. In the absence of the Chairman of the Board, the Vice Chairman of the Board or, in his or her absence, any Director designated by the Chairman of the Board or the Board of Directors shall act as chairman of the meeting. 3 4 The Secretary of the Corporation shall act as secretary of all meetings of the stockholders, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the stockholders, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 3.11 Procedure. At each meeting of stockholders, the chairman of the meeting shall fix and announce the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at the meeting and shall determine the order of business and all other matters of procedure. Except to the extent inconsistent with any such rules and regulations as adopted by the Board of Directors, the chairman of the meeting may establish rules, which need not be in writing, to maintain order and safety and for the conduct of the meeting. Without limiting the foregoing, he or she may: (a) restrict attendance at any time to bona fide stockholders of record and their proxies and other persons in attendance at the invitation of the chairman; (b) restrict dissemination of solicitation materials and use of audio or visual recording devices at the meeting; (c) adjourn the meeting without a vote of the stockholders, whether or not there is a quorum present; and (d) make rules governing speeches and debate, including time limits and access to microphones. The chairman of the meeting shall be entitled to act in his or her absolute discretion and his or her rulings shall not be subject to appeal. 4. DIRECTORS. 4.1 Powers and Number. The Board of Directors shall exercise all of the powers of the Corporation except such as are by law, or by the Certificate of Incorporation of this Corporation or by these Bylaws conferred upon or reserved to the stockholders of any class or classes. The number of directors that shall constitute the whole Board of Directors shall be no fewer than three (3) and no greater than nine (9), the exact number of directors to be determined from time to time by resolution adopted by the Board of Directors or the stockholders, and until otherwise determined by the Board of Directors or the stockholders, the number of directors that shall constitute the whole Board of Directors shall be three (3). 4.2 Resignations. Any Director may resign at any time by giving written notice to the Board of Directors or the Secretary. Such resignation shall take effect at the date of receipt of such notice or at any later time specified therein. Acceptance of such resignation shall not be necessary to make it effective. 4.3 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the Board of Directors. In the absence of the Chairman of the Board, the Vice Chairman of the Board, or in his absence, the Chief Executive Officer or other person designated by the Board of Directors shall act as chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the Board of Directors, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the Board of Directors, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 4 5 4.4 Annual Meetings. The Board of Directors shall meet each year immediately following the annual meeting of stockholders, at the place where such meeting of stockholders has been held, or at such other place as shall be fixed by the person presiding over the meeting of the stockholders, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. In the event that in any year Directors are elected by written consent in lieu of an annual meeting of stockholders, the Board of Directors shall meet in such year as soon as practicable after receipt of such written consent by the Corporation at such time and place as shall be fixed by the Chairman of the Board, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. 4.5 Regular Meetings. Regular meetings of the Board of Directors shall be held on such dates and at such times and places, within or without the state of Delaware, as shall from time to time be determined by the Board of Directors. In the absence of any such determination, such meetings shall be held at such times and places, within or without the State of Delaware, as shall be designated by the Chairman of the Board on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex or by electronic mail or by other electronic means, or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. 4.6 Special Meetings. Special meetings of the Board of Directors shall be held at the call of the Chairman of the Board at such times and places, within or without the State of Delaware, as he or she shall designate, on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex, by electronic mail or by other electronic means or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. Special meetings shall be called by the Secretary on like notice at the written request of a majority of the Directors then in office. 4.7 Quorum and Powers of a Majority. At all meetings of the Board of Directors and of each committee thereof, a majority of the members shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which a quorum is present shall be the act of the Board of Directors or such committee, unless by express provision of law, of the Certificate of Incorporation, or of these Bylaws, a different vote is required, in which case such express provision shall govern and control. In the absence of a quorum, a majority of the members present at any meeting may, without notice other than announcement at the meeting, adjourn such meeting from time to time until a quorum is present. 4.8 Waiver of Notice. Notice of any meeting of the Board of Directors, or any committee thereof, need not be given to any member if waived by him or her in writing, whether before or after such meeting is held, or if he or she shall sign the minutes or attend the meeting, except that if such Director attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, then such Director shall not be deemed to have waived notice of such meeting. 4.9 Manner of Acting. (a) Members of the Board of Directors, or any committee thereof, may participate in any meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating therein can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting. (b) Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board of Directors or 5 6 such committee, as the case may be, consent thereto in writing, and the writings are filed with the minutes of proceedings of the Board of Directors or such committee. 4.10 Compensation. (a) The Board of Directors, by a resolution or resolutions, may fix, and from time to time change, the compensation of Directors. (b) Each Director shall be entitled to reimbursement from the Corporation for his or her reasonable expenses incurred with respect to duties as a member of the Board of Directors or any committee thereof. (c) Nothing contained in these Bylaws shall be construed to preclude any Director from serving the Corporation in any other capacity and from receiving compensation from the Corporation for service rendered to it in such other capacity. 4.11 Committees. The Board of Directors (or any committee thereof having the power and authority to do so) may designate one or more committees, each committee to consist of one or more Directors, which to the extent provided in said resolution or resolutions shall have and may exercise the powers and authority of the Board of Directors in the management of the business and affairs of the corporation; provided, however, that no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the General Corporation Law of Delaware (the "GCLD") to be submitted to stockholders for approval or (ii) adopting, amending, or repealing any bylaw of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting of such committee and not disqualified from voting, whether or not such member of members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of such absent or disqualified director. 4.12 Committee Procedure, Limitations of Committee Powers. (a) Except as otherwise provided by these Bylaws, each committee shall adopt its own rules governing the time, place and method of holding its meetings and the conduct of its proceedings and shall meet as provided by such rules or by resolution of the Board of Directors. Unless otherwise provided by these Bylaws or any such rules or resolutions, notice of the time and place of each meeting of a committee shall be given to each member of such committee as provided in Section 4.6 of these Bylaws with respect to notices of special meetings of the Board of Directors. (b) Each committee shall keep regular minutes of its proceedings and report the same to the Board of Directors when required. (c) Any member of any committee may be removed from such committee either with or without cause, at any time, by the Board of Directors at any meeting thereof. Any vacancy in any committee shall be filled by the Board of Directors in the manner prescribed by the Certificate of Incorporation or these Bylaws for the original appointment of the members of such committee. 5. OFFICERS. 5.1 Number. (a) The officers of the Corporation shall include a Chief Executive Officer, a President, one or more Vice Presidents (including one or more Executive Vice Presidents and one or more Senior Vice Presidents if deemed appropriate by the Board of Directors), a Chief Financial Officer, a Secretary, a Treasurer, and a Controller. The Board of Directors shall also elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except for the Chairman of the Board, the Vice Chairman of the Board, and the Chief Executive Officer, none of the officers of the Corporation needs to be a director of the Corporation. Any two or more offices may be held by the same person to the extent permitted by the GCLD. 6 7 (b) The Chief Executive Officer shall have the power to appoint one or more employees of the Corporation as divisional or departmental vice presidents and fix the duties of such appointees. However, no such divisional or departmental vice president shall be considered as an officer of the Corporation. 5.2 Election of Officers, Qualification and Term. The Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President, the Chief Financial Officer, the Secretary and the Treasurer of the Corporation shall be elected from time to time by the Board of Directors and, except as may otherwise be expressly provided in a contract of employment duly authorized by the Board of Directors, shall hold office at the pleasure of the Board of Directors. The Board of Directors and the Chief Executive Officer also may elect such other officers as the Board of Directors or the Chief Executive Officer may from time to time deem appropriate or necessary. 5.3 Removal. Any officer elected by the Board of Directors may be removed, either with or without cause, by the Board of Directors at any meeting thereof, or to the extent delegated to the Chairman of the Board or the Chief Executive Officer, by the Chairman of the Board or the Chief Executive Officer. 5.4 Resignations. Any officer of the Corporation may resign at any time by giving written notice to the Board of Directors or to the Chairman of the Board or to the Chief Executive Officer. Such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 5.5 Compensation. The compensation of all officers of the Corporation shall be fixed by or in the manner provided by the Board of Directors from time to time, and no officer shall be prevented from receiving such compensation by reason of the fact that he or she is also a Director of the Corporation. 5.6 The Chairman of the Board. The Chairman of the Board shall have the powers and duties customarily and usually associated with the office of the Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. The Chairman of the Board shall preside at meetings of the stockholders and of the Board of Directors. 5.7 Vice Chairman of the Board. The Vice Chairman of the Board, if any, shall have the powers and duties customarily and usually associated with the office of the Vice Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. 5.8 Chief Executive Officer. The Chief Executive Officer shall have, subject to the supervision, direction and control of the Board of Directors, the general powers and duties of supervision, direction and management of the affairs and business of the Corporation usually vested in the chief executive officer of a corporation, including, without limitation, all powers necessary to direct and control the organizational and reporting relationships within the Corporation. In addition, the Chief Executive Officer shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. If at any time the office of the Chairman of the Board and the Vice Chairman of the Board shall not be filled, or in the event of the temporary absence or disability of the Chairman of the Board and the Vice Chairman of the Board, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board. 5.9 The President. The President shall serve as chief operating officer, shall have the powers and duties customarily and usually associated with the office of the President and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.10 The Vice Presidents. Each Vice President shall have such powers and duties customarily and usually associated with the office of Vice President and shall have such other powers and perform 7 8 such other duties as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, or the President. 5.11 The Chief Financial Officer. The Chief Financial Officer shall be responsible for the financial affairs of the Corporation, including overseeing the duties performed by the Treasurer of the Corporation. In addition, the Chief Financial Officer shall have such powers and duties customarily and usually associated with the office of the Chief Financial Officer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.12 The Secretary and the Assistant Secretary. (a) The Secretary shall attend meetings of the Board of Directors and meetings of the stockholders and record all votes and minutes of all such proceedings in a book kept for such purpose. In addition, the Secretary shall have such powers and duties customarily and usually associated with the office of Secretary and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors, the Chief Executive Officer, or the President. (b) Each Assistant Secretary shall have such powers and perform such duties customarily and usually associated with the office of Assistant Secretary and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Secretary. In case of the absence or disability of the Secretary, the Assistant Secretary designated by the Chief Executive Officer (or, in the absence of such designation, by the Secretary) shall perform the duties and exercise the powers of the Secretary. 5.13 The Treasurer and the Assistant Treasurer. (a) The Treasurer shall have custody of the Corporation's funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit or cause to be deposited moneys or other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall also maintain adequate records of all assets, liabilities, and transactions of the Corporation and shall see that adequate audits thereof are currently and regularly made. In addition, the Treasurer shall have such powers and duties customarily and usually associated with the office of Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. (b) Each Assistant Treasurer shall have such powers and perform such duties customarily and usually associated with the office of Assistant Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Treasurer. In case of the absence or disability of the Treasurer, the Assistant Treasurer designated by the Chief Executive Officer (or, in the absence of such designation, by the Treasurer) shall perform the duties and exercise the powers of the Treasurer. 5.14 Controller. The Controller shall be responsible for maintaining the accounting records and statements, and shall properly account for all monies and obligations due the Corporation and all properties, assets, and liabilities of the Corporation. The Controller shall render to the Chairman of the Board, the President or the Chief Financial Officer such periodic reports covering the results of operations of the Corporation as may be required by either of them or by law. In addition, the Controller shall have such powers and duties customarily and usually associated with the office of Controller and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. 6. STOCK 6.1 Certificates. Certificates for shares of stock of the Corporation shall be issued under the seal of the Corporation, or a facsimile thereof, and shall be numbered and shall be entered in the books of the 8 9 Corporation as they are issued. Each certificate shall bear a serial number, shall exhibit the holder's name and the number of shares evidenced thereby, and shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the Chief Executive Officer or the President or any Vice President, and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person or entity were such officer, transfer agent, or registrar at the date of issue. 6.2 Transfers. Transfers of stock of the Corporation shall be made on the books of the Corporation only upon surrender to the Corporation of a certificate (if any) for the shares duly endorsed or accompanied by proper evidence of succession, assignment, or authority to transfer, provided such succession, assignment, or transfer is not prohibited by the Certificate of Incorporation, these Bylaws, applicable law or contract. Thereupon, the Corporation shall issue a new certificate (if requested) to the person entitled thereto, cancel the old certificate (if any), and record the transaction upon its books. 6.3 Lost, Stolen, or Destroyed Certificates. Any person claiming a certificate of stock to be lost, stolen, or destroyed shall make an affidavit or an affirmation of that fact, and shall give the Corporation a bond of indemnity in satisfactory form and with one or more satisfactory sureties, whereupon a new certificate (if requested) may be issued of the same tenor and for the same number of shares as the one alleged to be lost, stolen, or destroyed. 6.4 Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares as the person entitled to exercise the rights of a stockholder and shall not be bound to recognize any equitable or other claim to or interest in any such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by the GCLD. 6.5 Additional Powers of the Board. (a) In addition to those powers set forth in Section 4.1, the Board of Directors shall have power and authority to make all such rules and regulations as it shall deem expedient concerning the issue, transfer, and registration of certificates for shares of stock of the Corporation, including the use of uncertificated shares of stock subject to the provisions of the GCLD. (b) The Board of Directors may appoint and remove transfer agents and registrars of transfers, and may require all stock certificates to bear the signature of any such transfer agent and/or any such registrar of transfers. 7. INDEMNIFICATION 7.1 Each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or the person of whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation, as a director, officer, employee, or agent of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to employee benefit plans, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the GCLD, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expenses, liability, and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of his or her heirs, executors, and administrators; provided, however, that, except as provided in this Article 7, the Corporation shall indemnify any 9 10 such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if authorized by the Board of Directors of the Corporation. Any indemnification under this Article 7 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard set forth in the GCLD. Such a determination shall be made (a) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum; (b) by a committee of such directors designated by majority vote of such directors, even though less than a quorum; (c) by independent legal counsel (compensated by the Corporation) in a written opinion; (d) by the stockholders; or (e) in any other manner permitted by the GCLD. In addition to the right to indemnification conferred in this Article 7, each of the above persons shall have the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the GCLD requires, the payment of such expenses incurred by a present director or officer in his or her capacity as a director or officer of the corporation (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such present director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Article 7 or otherwise. The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers. The right to indemnification and to an advancement of expenses conferred in this Article 7 shall be a contract right. 7.2 If a claim under Section 7.1 of this Article 7 is not paid in full by the Corporation within 30 days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim (including attorneys' fees). 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 Corporation) that the claimant has not met the standard of conduct which makes it permissible under the GCLD for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD, nor an actual determination by the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) that the claimant has not met such 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. In any suit brought by the claimant to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the claimant is not entitled to be indemnified, or to such advancement of expenses, under this Article 7 or otherwise shall be on the Corporation. 7.3 The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article 7, shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, provision of the certificate of incorporation of the Corporation, this bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. 7.4 The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee, or agent of the Corporation or another corporation, partnership, joint venture, trust, or other enterprise against any such expense, liability, or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability, or loss under the GCLD. 7.5 The Corporation may enter into an indemnity agreement with any director, officer, employee, or agent of the Corporation, or of another corporation, partnership, joint venture, trust, or other 10 11 enterprise, upon terms and conditions that the Board of Directors deems appropriate, as long as the provisions of the agreement are not impermissible under applicable law. 7.6 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.7 In case any provision in this Article 7 shall be determined at any time to be unenforceable in any respect, the other provisions shall not in any way be affected or impaired thereby, and the affected provision shall be given the fullest possible enforcement in the circumstances, it being the intention of the Corporation to afford indemnification and advancement of expenses to the persons indemnified hereby to the fullest extent permitted by law. 7.8 The Corporation may, by action of the Board of Directors, authorize one or more officers to grant rights to indemnification and advancement of expenses to former directors and officers or to other employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances. 8. MISCELLANEOUS 8.1 Place and Inspection of Books. (a) The books of the Corporation other than such books as are required by law to be kept within the State of Delaware shall be kept in such place or places either within or without the State of Delaware as the Board of Directors may from time to time determine. (b) At least ten days before each meeting of stockholders, the officer in charge of the stock ledger of the Corporation shall prepare a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. (c) The Board of Directors shall determine from time to time whether and, if allowed, when and under what conditions and regulations the accounts and books of the Corporation (except such as may be by law specifically open to inspection or as otherwise provided by these Bylaws) or any of them shall be open to the inspection of the stockholders and the stockholders' rights in respect thereof. 8.2 Voting Shares in Other Corporations. The Chief Executive Officer, the President, the Chief Financial Officer or any other officer of the Corporation designated by the Board of Directors may vote any and all shares held by the Corporation in any other corporation. 8.3 Fiscal Year. The fiscal year of the Corporation shall be such fiscal year as the Board of Directors from time to time by resolution shall determine. 8.4 Gender/Number. As used in these Bylaws, the masculine, feminine, or neuter gender, and the singular or plural number, shall each include the others whenever the context so indicates. 8.5 Paragraph Titles. The titles of the paragraphs have been inserted as a matter of reference only and shall not control or affect the meaning or construction of any of the terms and provisions hereof. 11 12 8.6 Amendment. These Bylaws may be altered, amended, or repealed by (a) the affirmative vote of 80% or more of the aggregate number of votes that the holders of the then outstanding shares of common stock and preferred stock are entitled to cast on the amendment, or (b) by resolution adopted by the affirmative vote of not less than a majority of the Directors in office, at any annual or regular meeting of the Board of Directors or at any special meeting of the Board of Directors if notice of the proposed alteration, amendment, or repeal be contained in written notice of such special meeting. Notwithstanding the foregoing, the amendment of any provision of these Bylaws that requires an affirmative vote in excess of a majority of the Directors in office shall require the affirmative vote of at least the number of directors the affirmative vote of whom is required by such provision. 8.7 Certificate of Incorporation. Notwithstanding anything to the contrary contained herein, if any provision contained in these Bylaws is inconsistent with or conflicts with a provision of the Certificate of Incorporation, such provision of these Bylaws shall be superseded by the inconsistent provision in the Certificate of Incorporation to the extent necessary to give effect to such provision in the Certificate of Incorporation. 12 EX-99.B.29.2 37 AMENDED & RESTATED BYLAWS AS AMENDED 12/31/99 1 Atlantic Jersey Thermal Systems, Inc. B.29.2 Amended and Restated Bylaws Adopted December 31, 1999 2 AMENDED AND RESTATED B Y L A W S OF ATLANTIC JERSEY THERMAL SYSTEMS, INC. 1. OFFICES. 1.1 Offices. In addition to its registered office in the State of Delaware, the Corporation shall have a corporate office in Wilmington, Delaware, and such other offices, either within or without the State of Delaware, at such locations as the Board of Directors may from time to time determine or the business of the Corporation may require. 2. SEAL. 2.1 Seal. The Corporation shall have a seal, which shall have inscribed thereon its name and year of incorporation and the words, "Corporate Seal Delaware." 3. MEETINGS OF STOCKHOLDERS. 3.1 Annual Meetings. The annual meeting of stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as shall be determined by the Board of Directors from time to time. 3.2 Special Meetings. Special meetings of the stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as may be designated by the Chairman of the Board or by the Board of Directors. 3.3 Notice of Meetings. (a) Notices of meetings of stockholders shall be in writing and shall state the place, date, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which a meeting is called. No business other than that specified in the notice thereof shall be transacted at any special meeting. (b) Such notice shall either be delivered personally, mailed, postage prepaid, or delivered by any other lawful means to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. If mailed, the notice shall be directed to the stockholder at his or her address as it appears on the records of the Corporation. Delivery of any such notice to any officer of a corporation or association or to any member of a partnership shall constitute delivery of such notice to such corporation, association, or partnership. (c) Notice of any meeting of stockholders need not be given to any stockholder if waived by such stockholder in writing, whether before or after such meeting is held, or if such stockholder shall sign the minutes or attend the meeting, except that if such stockholder attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, such stockholder shall not be deemed to have waived notice of such meeting. 3.4 Adjourned Meetings. When a meeting is adjourned to another time or place, unless otherwise provided by these Bylaws, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the stockholders may transact any business that might have been transacted at the original meeting. If an adjournment 2 3 is for more than 30 days, or if after an adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting. 3.5 Quorum and Adjournment. Except as otherwise provided by law, by the Certificate of Incorporation of the Corporation, or by these Bylaws, the presence, in person or by proxy, of the holders of a majority of the aggregate voting power of the stock issued and outstanding, entitled to vote thereat, shall constitute a quorum for the transaction of business at all meetings of stockholders. If such majority shall not be present or represented at any meeting of stockholders, the stockholders present, although less than a quorum, shall have the power to adjourn the meeting. 3.6 Vote Required. Except as otherwise provided by law or by the Certificate of Incorporation: (a) Directors shall be elected by a plurality of the votes present in person or represented by proxy at a meeting of stockholders and entitled to vote in the election of directors, and (b) whenever any corporate action other than the election of Directors is to be taken, it shall be authorized by a majority in voting power of the shares present in person or by proxy at a meeting of stockholders and entitled to vote on the subject matter. 3.7 Manner of Voting. At each meeting of stockholders, each stockholder having the right to vote shall be entitled to vote in person or by proxy. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed before being voted. Each stockholder shall be entitled to vote each share of stock having voting power registered in his or her name on the books of the Corporation on the record date fixed for determination of stockholders entitled to vote at such meeting. 3.8 Stockholder Action Without a Meeting. Except as otherwise provided by law or by the Certificate of Incorporation, any action required to be taken at any meeting of stockholders of the corporation, or any action that may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice, and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of the holders to take the action were delivered to the Corporation. 3.9 Proxies. (a) At any meeting of stockholders, any stockholder may be represented and vote by proxy or proxies. In the event that any form of proxy shall designate two or more persons to act as proxies, a majority of such persons present at the meeting or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by the form of proxy upon all of the persons so designated unless the form of proxy shall otherwise provide. (b) The Board of Directors may, in advance of any annual or special meeting of the stockholders, prescribe additional regulations concerning the validation of the same, which are intended to be voted at any such meeting. 3.10 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the stockholders. In the absence of the Chairman of the Board, the Vice Chairman of the Board or, in his or her absence, any Director designated by the Chairman of the Board or the Board of Directors shall act as chairman of the meeting. 3 4 The Secretary of the Corporation shall act as secretary of all meetings of the stockholders, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the stockholders, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 3.11 Procedure. At each meeting of stockholders, the chairman of the meeting shall fix and announce the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at the meeting and shall determine the order of business and all other matters of procedure. Except to the extent inconsistent with any such rules and regulations as adopted by the Board of Directors, the chairman of the meeting may establish rules, which need not be in writing, to maintain order and safety and for the conduct of the meeting. Without limiting the foregoing, he or she may: (a) restrict attendance at any time to bona fide stockholders of record and their proxies and other persons in attendance at the invitation of the chairman; (b) restrict dissemination of solicitation materials and use of audio or visual recording devices at the meeting; (c) adjourn the meeting without a vote of the stockholders, whether or not there is a quorum present; and (d) make rules governing speeches and debate, including time limits and access to microphones. The chairman of the meeting shall be entitled to act in his or her absolute discretion and his or her rulings shall not be subject to appeal. 4. DIRECTORS. 4.1 Powers and Number. The Board of Directors shall exercise all of the powers of the Corporation except such as are by law, or by the Certificate of Incorporation of this Corporation or by these Bylaws conferred upon or reserved to the stockholders of any class or classes. The number of directors that shall constitute the whole Board of Directors shall be no fewer than three (3) and no greater than nine (9), the exact number of directors to be determined from time to time by resolution adopted by the Board of Directors or the stockholders, and until otherwise determined by the Board of Directors or the stockholders, the number of directors that shall constitute the whole Board of Directors shall be three (3). 4.2 Resignations. Any Director may resign at any time by giving written notice to the Board of Directors or the Secretary. Such resignation shall take effect at the date of receipt of such notice or at any later time specified therein. Acceptance of such resignation shall not be necessary to make it effective. 4.3 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the Board of Directors. In the absence of the Chairman of the Board, the Vice Chairman of the Board, or in his absence, the Chief Executive Officer or other person designated by the Board of Directors shall act as chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the Board of Directors, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the Board of Directors, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 4 5 4.4 Annual Meetings. The Board of Directors shall meet each year immediately following the annual meeting of stockholders, at the place where such meeting of stockholders has been held, or at such other place as shall be fixed by the person presiding over the meeting of the stockholders, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. In the event that in any year Directors are elected by written consent in lieu of an annual meeting of stockholders, the Board of Directors shall meet in such year as soon as practicable after receipt of such written consent by the Corporation at such time and place as shall be fixed by the Chairman of the Board, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. 4.5 Regular Meetings. Regular meetings of the Board of Directors shall be held on such dates and at such times and places, within or without the state of Delaware, as shall from time to time be determined by the Board of Directors. In the absence of any such determination, such meetings shall be held at such times and places, within or without the State of Delaware, as shall be designated by the Chairman of the Board on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex or by electronic mail or by other electronic means, or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. 4.6 Special Meetings. Special meetings of the Board of Directors shall be held at the call of the Chairman of the Board at such times and places, within or without the State of Delaware, as he or she shall designate, on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex, by electronic mail or by other electronic means or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. Special meetings shall be called by the Secretary on like notice at the written request of a majority of the Directors then in office. 4.7 Quorum and Powers of a Majority. At all meetings of the Board of Directors and of each committee thereof, a majority of the members shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which a quorum is present shall be the act of the Board of Directors or such committee, unless by express provision of law, of the Certificate of Incorporation, or of these Bylaws, a different vote is required, in which case such express provision shall govern and control. In the absence of a quorum, a majority of the members present at any meeting may, without notice other than announcement at the meeting, adjourn such meeting from time to time until a quorum is present. 4.8 Waiver of Notice. Notice of any meeting of the Board of Directors, or any committee thereof, need not be given to any member if waived by him or her in writing, whether before or after such meeting is held, or if he or she shall sign the minutes or attend the meeting, except that if such Director attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, then such Director shall not be deemed to have waived notice of such meeting. 4.9 Manner of Acting. (a) Members of the Board of Directors, or any committee thereof, may participate in any meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating therein can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting. (b) Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board of Directors or 5 6 such committee, as the case may be, consent thereto in writing, and the writings are filed with the minutes of proceedings of the Board of Directors or such committee. 4.10 Compensation. (a) The Board of Directors, by a resolution or resolutions, may fix, and from time to time change, the compensation of Directors. (b) Each Director shall be entitled to reimbursement from the Corporation for his or her reasonable expenses incurred with respect to duties as a member of the Board of Directors or any committee thereof. (c) Nothing contained in these Bylaws shall be construed to preclude any Director from serving the Corporation in any other capacity and from receiving compensation from the Corporation for service rendered to it in such other capacity. 4.11 Committees. The Board of Directors (or any committee thereof having the power and authority to do so) may designate one or more committees, each committee to consist of one or more Directors, which to the extent provided in said resolution or resolutions shall have and may exercise the powers and authority of the Board of Directors in the management of the business and affairs of the corporation; provided, however, that no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the General Corporation Law of Delaware (the "GCLD") to be submitted to stockholders for approval or (ii) adopting, amending, or repealing any bylaw of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting of such committee and not disqualified from voting, whether or not such member of members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of such absent or disqualified director. 4.12 Committee Procedure, Limitations of Committee Powers. (a) Except as otherwise provided by these Bylaws, each committee shall adopt its own rules governing the time, place and method of holding its meetings and the conduct of its proceedings and shall meet as provided by such rules or by resolution of the Board of Directors. Unless otherwise provided by these Bylaws or any such rules or resolutions, notice of the time and place of each meeting of a committee shall be given to each member of such committee as provided in Section 4.6 of these Bylaws with respect to notices of special meetings of the Board of Directors. (b) Each committee shall keep regular minutes of its proceedings and report the same to the Board of Directors when required. (c) Any member of any committee may be removed from such committee either with or without cause, at any time, by the Board of Directors at any meeting thereof. Any vacancy in any committee shall be filled by the Board of Directors in the manner prescribed by the Certificate of Incorporation or these Bylaws for the original appointment of the members of such committee. 5. OFFICERS. 5.1 Number. (a) The officers of the Corporation shall include a Chief Executive Officer, a President, one or more Vice Presidents (including one or more Executive Vice Presidents and one or more Senior Vice Presidents if deemed appropriate by the Board of Directors), a Chief Financial Officer, a Secretary, a Treasurer, and a Controller. The Board of Directors shall also elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except for the Chairman of the Board, the Vice Chairman of the Board, and the Chief Executive Officer, none of the officers of the Corporation needs to be a director of the Corporation. Any two or more offices may be held by the same person to the extent permitted by the GCLD. 6 7 (b) The Chief Executive Officer shall have the power to appoint one or more employees of the Corporation as divisional or departmental vice presidents and fix the duties of such appointees. However, no such divisional or departmental vice president shall be considered as an officer of the Corporation. 5.2 Election of Officers, Qualification and Term. The Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President, the Chief Financial Officer, the Secretary and the Treasurer of the Corporation shall be elected from time to time by the Board of Directors and, except as may otherwise be expressly provided in a contract of employment duly authorized by the Board of Directors, shall hold office at the pleasure of the Board of Directors. The Board of Directors and the Chief Executive Officer also may elect such other officers as the Board of Directors or the Chief Executive Officer may from time to time deem appropriate or necessary. 5.3 Removal. Any officer elected by the Board of Directors may be removed, either with or without cause, by the Board of Directors at any meeting thereof, or to the extent delegated to the Chairman of the Board or the Chief Executive Officer, by the Chairman of the Board or the Chief Executive Officer. 5.4 Resignations. Any officer of the Corporation may resign at any time by giving written notice to the Board of Directors or to the Chairman of the Board or to the Chief Executive Officer. Such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 5.5 Compensation. The compensation of all officers of the Corporation shall be fixed by or in the manner provided by the Board of Directors from time to time, and no officer shall be prevented from receiving such compensation by reason of the fact that he or she is also a Director of the Corporation. 5.6 The Chairman of the Board. The Chairman of the Board shall have the powers and duties customarily and usually associated with the office of the Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. The Chairman of the Board shall preside at meetings of the stockholders and of the Board of Directors. 5.7 Vice Chairman of the Board. The Vice Chairman of the Board, if any, shall have the powers and duties customarily and usually associated with the office of the Vice Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. 5.8 Chief Executive Officer. The Chief Executive Officer shall have, subject to the supervision, direction and control of the Board of Directors, the general powers and duties of supervision, direction and management of the affairs and business of the Corporation usually vested in the chief executive officer of a corporation, including, without limitation, all powers necessary to direct and control the organizational and reporting relationships within the Corporation. In addition, the Chief Executive Officer shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. If at any time the office of the Chairman of the Board and the Vice Chairman of the Board shall not be filled, or in the event of the temporary absence or disability of the Chairman of the Board and the Vice Chairman of the Board, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board. 5.9 The President. The President shall serve as chief operating officer, shall have the powers and duties customarily and usually associated with the office of the President and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.10 The Vice Presidents. Each Vice President shall have such powers and duties customarily and usually associated with the office of Vice President and shall have such other powers and perform 7 8 such other duties as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, or the President. 5.11 The Chief Financial Officer. The Chief Financial Officer shall be responsible for the financial affairs of the Corporation, including overseeing the duties performed by the Treasurer of the Corporation. In addition, the Chief Financial Officer shall have such powers and duties customarily and usually associated with the office of the Chief Financial Officer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.12 The Secretary and the Assistant Secretary. (a) The Secretary shall attend meetings of the Board of Directors and meetings of the stockholders and record all votes and minutes of all such proceedings in a book kept for such purpose. In addition, the Secretary shall have such powers and duties customarily and usually associated with the office of Secretary and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors, the Chief Executive Officer, or the President. (b) Each Assistant Secretary shall have such powers and perform such duties customarily and usually associated with the office of Assistant Secretary and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Secretary. In case of the absence or disability of the Secretary, the Assistant Secretary designated by the Chief Executive Officer (or, in the absence of such designation, by the Secretary) shall perform the duties and exercise the powers of the Secretary. 5.13 The Treasurer and the Assistant Treasurer. (a) The Treasurer shall have custody of the Corporation's funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit or cause to be deposited moneys or other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall also maintain adequate records of all assets, liabilities, and transactions of the Corporation and shall see that adequate audits thereof are currently and regularly made. In addition, the Treasurer shall have such powers and duties customarily and usually associated with the office of Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. (b) Each Assistant Treasurer shall have such powers and perform such duties customarily and usually associated with the office of Assistant Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Treasurer. In case of the absence or disability of the Treasurer, the Assistant Treasurer designated by the Chief Executive Officer (or, in the absence of such designation, by the Treasurer) shall perform the duties and exercise the powers of the Treasurer. 5.14 Controller. The Controller shall be responsible for maintaining the accounting records and statements, and shall properly account for all monies and obligations due the Corporation and all properties, assets, and liabilities of the Corporation. The Controller shall render to the Chairman of the Board, the President or the Chief Financial Officer such periodic reports covering the results of operations of the Corporation as may be required by either of them or by law. In addition, the Controller shall have such powers and duties customarily and usually associated with the office of Controller and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. 6. STOCK 6.1 Certificates. Certificates for shares of stock of the Corporation shall be issued under the seal of the Corporation, or a facsimile thereof, and shall be numbered and shall be entered in the books of the 8 9 Corporation as they are issued. Each certificate shall bear a serial number, shall exhibit the holder's name and the number of shares evidenced thereby, and shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the Chief Executive Officer or the President or any Vice President, and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person or entity were such officer, transfer agent, or registrar at the date of issue. 6.2 Transfers. Transfers of stock of the Corporation shall be made on the books of the Corporation only upon surrender to the Corporation of a certificate (if any) for the shares duly endorsed or accompanied by proper evidence of succession, assignment, or authority to transfer, provided such succession, assignment, or transfer is not prohibited by the Certificate of Incorporation, these Bylaws, applicable law or contract. Thereupon, the Corporation shall issue a new certificate (if requested) to the person entitled thereto, cancel the old certificate (if any), and record the transaction upon its books. 6.3 Lost, Stolen, or Destroyed Certificates. Any person claiming a certificate of stock to be lost, stolen, or destroyed shall make an affidavit or an affirmation of that fact, and shall give the Corporation a bond of indemnity in satisfactory form and with one or more satisfactory sureties, whereupon a new certificate (if requested) may be issued of the same tenor and for the same number of shares as the one alleged to be lost, stolen, or destroyed. 6.4 Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares as the person entitled to exercise the rights of a stockholder and shall not be bound to recognize any equitable or other claim to or interest in any such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by the GCLD. 6.5 Additional Powers of the Board. (a) In addition to those powers set forth in Section 4.1, the Board of Directors shall have power and authority to make all such rules and regulations as it shall deem expedient concerning the issue, transfer, and registration of certificates for shares of stock of the Corporation, including the use of uncertificated shares of stock subject to the provisions of the GCLD. (b) The Board of Directors may appoint and remove transfer agents and registrars of transfers, and may require all stock certificates to bear the signature of any such transfer agent and/or any such registrar of transfers. 7. INDEMNIFICATION 7.1 Each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or the person of whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation, as a director, officer, employee, or agent of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to employee benefit plans, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the GCLD, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expenses, liability, and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of his or her heirs, executors, and administrators; provided, however, that, except as provided in this Article 7, the Corporation shall indemnify any 9 10 such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if authorized by the Board of Directors of the Corporation. Any indemnification under this Article 7 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard set forth in the GCLD. Such a determination shall be made (a) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum; (b) by a committee of such directors designated by majority vote of such directors, even though less than a quorum; (c) by independent legal counsel (compensated by the Corporation) in a written opinion; (d) by the stockholders; or (e) in any other manner permitted by the GCLD. In addition to the right to indemnification conferred in this Article 7, each of the above persons shall have the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the GCLD requires, the payment of such expenses incurred by a present director or officer in his or her capacity as a director or officer of the corporation (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such present director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Article 7 or otherwise. The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers. The right to indemnification and to an advancement of expenses conferred in this Article 7 shall be a contract right. 7.2 If a claim under Section 7.1 of this Article 7 is not paid in full by the Corporation within 30 days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim (including attorneys' fees). 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 Corporation) that the claimant has not met the standard of conduct which makes it permissible under the GCLD for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD, nor an actual determination by the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) that the claimant has not met such 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. In any suit brought by the claimant to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the claimant is not entitled to be indemnified, or to such advancement of expenses, under this Article 7 or otherwise shall be on the Corporation. 7.3 The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article 7, shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, provision of the certificate of incorporation of the Corporation, this bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. 7.4 The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee, or agent of the Corporation or another corporation, partnership, joint venture, trust, or other enterprise against any such expense, liability, or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability, or loss under the GCLD. 7.5 The Corporation may enter into an indemnity agreement with any director, officer, employee, or agent of the Corporation, or of another corporation, partnership, joint venture, trust, or other 10 11 enterprise, upon terms and conditions that the Board of Directors deems appropriate, as long as the provisions of the agreement are not impermissible under applicable law. 7.6 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.7 In case any provision in this Article 7 shall be determined at any time to be unenforceable in any respect, the other provisions shall not in any way be affected or impaired thereby, and the affected provision shall be given the fullest possible enforcement in the circumstances, it being the intention of the Corporation to afford indemnification and advancement of expenses to the persons indemnified hereby to the fullest extent permitted by law. 7.8 The Corporation may, by action of the Board of Directors, authorize one or more officers to grant rights to indemnification and advancement of expenses to former directors and officers or to other employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances. 8. MISCELLANEOUS 8.1 Place and Inspection of Books. (a) The books of the Corporation other than such books as are required by law to be kept within the State of Delaware shall be kept in such place or places either within or without the State of Delaware as the Board of Directors may from time to time determine. (b) At least ten days before each meeting of stockholders, the officer in charge of the stock ledger of the Corporation shall prepare a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. (c) The Board of Directors shall determine from time to time whether and, if allowed, when and under what conditions and regulations the accounts and books of the Corporation (except such as may be by law specifically open to inspection or as otherwise provided by these Bylaws) or any of them shall be open to the inspection of the stockholders and the stockholders' rights in respect thereof. 8.2 Voting Shares in Other Corporations. The Chief Executive Officer, the President, the Chief Financial Officer or any other officer of the Corporation designated by the Board of Directors may vote any and all shares held by the Corporation in any other corporation. 8.3 Fiscal Year. The fiscal year of the Corporation shall be such fiscal year as the Board of Directors from time to time by resolution shall determine. 8.4 Gender/Number. As used in these Bylaws, the masculine, feminine, or neuter gender, and the singular or plural number, shall each include the others whenever the context so indicates. 8.5 Paragraph Titles. The titles of the paragraphs have been inserted as a matter of reference only and shall not control or affect the meaning or construction of any of the terms and provisions hereof. 11 12 8.6 Amendment. These Bylaws may be altered, amended, or repealed by (a) the affirmative vote of 80% or more of the aggregate number of votes that the holders of the then outstanding shares of common stock and preferred stock are entitled to cast on the amendment, or (b) by resolution adopted by the affirmative vote of not less than a majority of the Directors in office, at any annual or regular meeting of the Board of Directors or at any special meeting of the Board of Directors if notice of the proposed alteration, amendment, or repeal be contained in written notice of such special meeting. Notwithstanding the foregoing, the amendment of any provision of these Bylaws that requires an affirmative vote in excess of a majority of the Directors in office shall require the affirmative vote of at least the number of directors the affirmative vote of whom is required by such provision. 8.7 Certificate of Incorporation. Notwithstanding anything to the contrary contained herein, if any provision contained in these Bylaws is inconsistent with or conflicts with a provision of the Certificate of Incorporation, such provision of these Bylaws shall be superseded by the inconsistent provision in the Certificate of Incorporation to the extent necessary to give effect to such provision in the Certificate of Incorporation. 12 EX-99.B.32.2 38 AMENDED & RESTATED BYLAWS AS AMENDED 12/31/99 1 Atlantic Generation, Inc. B.32.2 Amended and Restated Bylaws Adopted December 31,1999 2 AMENDED AND RESTATED B Y L A W S OF ATLANTIC GENERATION, INC. 1. OFFICES. 1.1 Offices. In addition to its registered office in the State of Delaware, the Corporation shall have a corporate office in Wilmington, Delaware, and such other offices, either within or without the State of Delaware, at such locations as the Board of Directors may from time to time determine or the business of the Corporation may require. 2. SEAL. 2.1 Seal. The Corporation shall have a seal, which shall have inscribed thereon its name and year of incorporation and the words, "Corporate Seal New Jersey." 3. MEETINGS OF STOCKHOLDERS. 3.1 Annual Meetings. The annual meeting of stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as shall be determined by the Board of Directors from time to time. 3.2 Special Meetings. Special meetings of the stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as may be designated by the Chairman of the Board or by the Board of Directors. 3.3 Notice of Meetings. (a) Notices of meetings of stockholders shall be in writing and shall state the place, date, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which a meeting is called. No business other than that specified in the notice thereof shall be transacted at any special meeting. (b) Such notice shall either be delivered personally, mailed, postage prepaid, or delivered by any other lawful means to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. If mailed, the notice shall be directed to the stockholder at his or her address as it appears on the records of the Corporation. Delivery of any such notice to any officer of a corporation or association or to any member of a partnership shall constitute delivery of such notice to such corporation, association, or partnership. (c) Notice of any meeting of stockholders need not be given to any stockholder if waived by such stockholder in writing, whether before or after such meeting is held, or if such stockholder shall sign the minutes or attend the meeting, except that if such stockholder attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, such stockholder shall not be deemed to have waived notice of such meeting. 3.4 Adjourned Meetings. When a meeting is adjourned to another time or place, unless otherwise provided by these Bylaws, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the stockholders may transact any business that might have been transacted at the original meeting. If an adjournment 2 3 is for more than 30 days, or if after an adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting. 3.5 Quorum and Adjournment. Except as otherwise provided by law, by the Certificate of Incorporation of the Corporation, or by these Bylaws, the presence, in person or by proxy, of the holders of a majority of the aggregate voting power of the stock issued and outstanding, entitled to vote thereat, shall constitute a quorum for the transaction of business at all meetings of stockholders. If such majority shall not be present or represented at any meeting of stockholders, the stockholders present, although less than a quorum, shall have the power to adjourn the meeting. 3.6 Vote Required. Except as otherwise provided by law or by the Certificate of Incorporation: (a) Directors shall be elected by a plurality of the votes present in person or represented by proxy at a meeting of stockholders and entitled to vote in the election of directors, and (b) whenever any corporate action other than the election of Directors is to be taken, it shall be authorized by a majority in voting power of the shares present in person or by proxy at a meeting of stockholders and entitled to vote on the subject matter. 3.7 Manner of Voting. At each meeting of stockholders, each stockholder having the right to vote shall be entitled to vote in person or by proxy. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed before being voted. Each stockholder shall be entitled to vote each share of stock having voting power registered in his or her name on the books of the Corporation on the record date fixed for determination of stockholders entitled to vote at such meeting. 3.8 Stockholder Action Without a Meeting. Except as otherwise provided by law or by the Certificate of Incorporation, any action required to be taken at any meeting of stockholders of the corporation, or any action that may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice, and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of the holders to take the action were delivered to the Corporation. 3.9 Proxies. (a) At any meeting of stockholders, any stockholder may be represented and vote by proxy or proxies. In the event that any form of proxy shall designate two or more persons to act as proxies, a majority of such persons present at the meeting or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by the form of proxy upon all of the persons so designated unless the form of proxy shall otherwise provide. (b) The Board of Directors may, in advance of any annual or special meeting of the stockholders, prescribe additional regulations concerning the validation of the same, which are intended to be voted at any such meeting. 3.10 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the stockholders. In the absence of the Chairman of the Board, the Vice Chairman of the Board or, in his or her absence, any Director designated by the Chairman of the Board or the Board of Directors shall act as chairman of the meeting. 3 4 The Secretary of the Corporation shall act as secretary of all meetings of the stockholders, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the stockholders, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 3.11 Procedure. At each meeting of stockholders, the chairman of the meeting shall fix and announce the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at the meeting and shall determine the order of business and all other matters of procedure. Except to the extent inconsistent with any such rules and regulations as adopted by the Board of Directors, the chairman of the meeting may establish rules, which need not be in writing, to maintain order and safety and for the conduct of the meeting. Without limiting the foregoing, he or she may: (a) restrict attendance at any time to bona fide stockholders of record and their proxies and other persons in attendance at the invitation of the chairman; (b) restrict dissemination of solicitation materials and use of audio or visual recording devices at the meeting; (c) adjourn the meeting without a vote of the stockholders, whether or not there is a quorum present; and (d) make rules governing speeches and debate, including time limits and access to microphones. The chairman of the meeting shall be entitled to act in his or her absolute discretion and his or her rulings shall not be subject to appeal. 4. DIRECTORS. 4.1 Powers and Number. The Board of Directors shall exercise all of the powers of the Corporation except such as are by law, or by the Certificate of Incorporation of this Corporation or by these Bylaws conferred upon or reserved to the stockholders of any class or classes. The number of directors that shall constitute the whole Board of Directors shall be no fewer than three (3) and no greater than nine (9), the exact number of directors to be determined from time to time by resolution adopted by the Board of Directors or the stockholders, and until otherwise determined by the Board of Directors or the stockholders, the number of directors that shall constitute the whole Board of Directors shall be three (3). 4.1 Resignations. Any Director may resign at any time by giving written notice to the Board of Directors or the Secretary. Such resignation shall take effect at the date of receipt of such notice or at any later time specified therein. Acceptance of such resignation shall not be necessary to make it effective. 4.2 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the Board of Directors. In the absence of the Chairman of the Board, the Vice Chairman of the Board, or in his absence, the Chief Executive Officer or other person designated by the Board of Directors shall act as chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the Board of Directors, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the Board of Directors, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 4 5 4.3 Annual Meetings. The Board of Directors shall meet each year immediately following the annual meeting of stockholders, at the place where such meeting of stockholders has been held, or at such other place as shall be fixed by the person presiding over the meeting of the stockholders, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. In the event that in any year Directors are elected by written consent in lieu of an annual meeting of stockholders, the Board of Directors shall meet in such year as soon as practicable after receipt of such written consent by the Corporation at such time and place as shall be fixed by the Chairman of the Board, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. 4.4 Regular Meetings. Regular meetings of the Board of Directors shall be held on such dates and at such times and places, within or without the state of Delaware, as shall from time to time be determined by the Board of Directors. In the absence of any such determination, such meetings shall be held at such times and places, within or without the State of Delaware, as shall be designated by the Chairman of the Board on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex or by electronic mail or by other electronic means, or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. 4.5 Special Meetings. Special meetings of the Board of Directors shall be held at the call of the Chairman of the Board at such times and places, within or without the State of Delaware, as he or she shall designate, on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex, by electronic mail or by other electronic means or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. Special meetings shall be called by the Secretary on like notice at the written request of a majority of the Directors then in office. 4.6 Quorum and Powers of a Majority. At all meetings of the Board of Directors and of each committee thereof, a majority of the members shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which a quorum is present shall be the act of the Board of Directors or such committee, unless by express provision of law, of the Certificate of Incorporation, or of these Bylaws, a different vote is required, in which case such express provision shall govern and control. In the absence of a quorum, a majority of the members present at any meeting may, without notice other than announcement at the meeting, adjourn such meeting from time to time until a quorum is present. 4.7 Waiver of Notice. Notice of any meeting of the Board of Directors, or any committee thereof, need not be given to any member if waived by him or her in writing, whether before or after such meeting is held, or if he or she shall sign the minutes or attend the meeting, except that if such Director attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, then such Director shall not be deemed to have waived notice of such meeting. 4.8 Manner of Acting. (a) Members of the Board of Directors, or any committee thereof, may participate in any meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating therein can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting. (b) Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board of Directors or 5 6 such committee, as the case may be, consent thereto in writing, and the writings are filed with the minutes of proceedings of the Board of Directors or such committee. 4.9 Compensation. (a) The Board of Directors, by a resolution or resolutions, may fix, and from time to time change, the compensation of Directors. (b) Each Director shall be entitled to reimbursement from the Corporation for his or her reasonable expenses incurred with respect to duties as a member of the Board of Directors or any committee thereof. (c) Nothing contained in these Bylaws shall be construed to preclude any Director from serving the Corporation in any other capacity and from receiving compensation from the Corporation for service rendered to it in such other capacity. 4.10 Committees. The Board of Directors (or any committee thereof having the power and authority to do so) may designate one or more committees, each committee to consist of one or more Directors, which to the extent provided in said resolution or resolutions shall have and may exercise the powers and authority of the Board of Directors in the management of the business and affairs of the corporation; provided, however, that no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the General Corporation Law of Delaware (the "GCLD") to be submitted to stockholders for approval or (ii) adopting, amending, or repealing any bylaw of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting of such committee and not disqualified from voting, whether or not such member of members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of such absent or disqualified director. 4.11 Committee Procedure, Limitations of Committee Powers. (a) Except as otherwise provided by these Bylaws, each committee shall adopt its own rules governing the time, place and method of holding its meetings and the conduct of its proceedings and shall meet as provided by such rules or by resolution of the Board of Directors. Unless otherwise provided by these Bylaws or any such rules or resolutions, notice of the time and place of each meeting of a committee shall be given to each member of such committee as provided in Section 4.6 of these Bylaws with respect to notices of special meetings of the Board of Directors. (b) Each committee shall keep regular minutes of its proceedings and report the same to the Board of Directors when required. (c) Any member of any committee may be removed from such committee either with or without cause, at any time, by the Board of Directors at any meeting thereof. Any vacancy in any committee shall be filled by the Board of Directors in the manner prescribed by the Certificate of Incorporation or these Bylaws for the original appointment of the members of such committee. 5. OFFICERS. 5.1 Number. (a) The officers of the Corporation shall include a Chief Executive Officer, a President, one or more Vice Presidents (including one or more Executive Vice Presidents and one or more Senior Vice Presidents if deemed appropriate by the Board of Directors), a Chief Financial Officer, a Secretary, a Treasurer, and a Controller. The Board of Directors shall also elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except for the Chairman of the Board, the Vice Chairman of the Board, and the Chief Executive Officer, none of the officers of the Corporation needs to be a director of the Corporation. Any two or more offices may be held by the same person to the extent permitted by the GCLD. 6 7 (b) The Chief Executive Officer shall have the power to appoint one or more employees of the Corporation as divisional or departmental vice presidents and fix the duties of such appointees. However, no such divisional or departmental vice president shall be considered as an officer of the Corporation. 5.2 Election of Officers, Qualification and Term. The Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President, the Chief Financial Officer, the Secretary and the Treasurer of the Corporation shall be elected from time to time by the Board of Directors and, except as may otherwise be expressly provided in a contract of employment duly authorized by the Board of Directors, shall hold office at the pleasure of the Board of Directors. The Board of Directors and the Chief Executive Officer also may elect such other officers as the Board of Directors or the Chief Executive Officer may from time to time deem appropriate or necessary. 5.3 Removal. Any officer elected by the Board of Directors may be removed, either with or without cause, by the Board of Directors at any meeting thereof, or to the extent delegated to the Chairman of the Board or the Chief Executive Officer, by the Chairman of the Board or the Chief Executive Officer. 5.4 Resignations. Any officer of the Corporation may resign at any time by giving written notice to the Board of Directors or to the Chairman of the Board or to the Chief Executive Officer. Such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 5.5 Compensation. The compensation of all officers of the Corporation shall be fixed by or in the manner provided by the Board of Directors from time to time, and no officer shall be prevented from receiving such compensation by reason of the fact that he or she is also a Director of the Corporation. 5.6 The Chairman of the Board. The Chairman of the Board shall have the powers and duties customarily and usually associated with the office of the Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. The Chairman of the Board shall preside at meetings of the stockholders and of the Board of Directors. 5.7 Vice Chairman of the Board. The Vice Chairman of the Board, if any, shall have the powers and duties customarily and usually associated with the office of the Vice Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. 5.8 Chief Executive Officer. The Chief Executive Officer shall have, subject to the supervision, direction and control of the Board of Directors, the general powers and duties of supervision, direction and management of the affairs and business of the Corporation usually vested in the chief executive officer of a corporation, including, without limitation, all powers necessary to direct and control the organizational and reporting relationships within the Corporation. In addition, the Chief Executive Officer shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. If at any time the office of the Chairman of the Board and the Vice Chairman of the Board shall not be filled, or in the event of the temporary absence or disability of the Chairman of the Board and the Vice Chairman of the Board, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board. 5.9 The President. The President shall serve as chief operating officer, shall have the powers and duties customarily and usually associated with the office of the President and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.10 The Vice Presidents. Each Vice President shall have such powers and duties customarily and usually associated with the office of Vice President and shall have such other powers and perform 7 8 such other duties as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, or the President. 5.11 The Chief Financial Officer. The Chief Financial Officer shall be responsible for the financial affairs of the Corporation, including overseeing the duties performed by the Treasurer of the Corporation. In addition, the Chief Financial Officer shall have such powers and duties customarily and usually associated with the office of the Chief Financial Officer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.12 The Secretary and the Assistant Secretary. (a) The Secretary shall attend meetings of the Board of Directors and meetings of the stockholders and record all votes and minutes of all such proceedings in a book kept for such purpose. In addition, the Secretary shall have such powers and duties customarily and usually associated with the office of Secretary and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors, the Chief Executive Officer, or the President. (b) Each Assistant Secretary shall have such powers and perform such duties customarily and usually associated with the office of Assistant Secretary and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Secretary. In case of the absence or disability of the Secretary, the Assistant Secretary designated by the Chief Executive Officer (or, in the absence of such designation, by the Secretary) shall perform the duties and exercise the powers of the Secretary. 5.13 The Treasurer and the Assistant Treasurer. (a) The Treasurer shall have custody of the Corporation's funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit or cause to be deposited moneys or other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall also maintain adequate records of all assets, liabilities, and transactions of the Corporation and shall see that adequate audits thereof are currently and regularly made. In addition, the Treasurer shall have such powers and duties customarily and usually associated with the office of Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. (b) Each Assistant Treasurer shall have such powers and perform such duties customarily and usually associated with the office of Assistant Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Treasurer. In case of the absence or disability of the Treasurer, the Assistant Treasurer designated by the Chief Executive Officer (or, in the absence of such designation, by the Treasurer) shall perform the duties and exercise the powers of the Treasurer. 5.14 Controller. The Controller shall be responsible for maintaining the accounting records and statements, and shall properly account for all monies and obligations due the Corporation and all properties, assets, and liabilities of the Corporation. The Controller shall render to the Chairman of the Board, the President or the Chief Financial Officer such periodic reports covering the results of operations of the Corporation as may be required by either of them or by law. In addition, the Controller shall have such powers and duties customarily and usually associated with the office of Controller and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. 6. STOCK 6.1 Certificates. Certificates for shares of stock of the Corporation shall be issued under the seal of the Corporation, or a facsimile thereof, and shall be numbered and shall be entered in the books of the 8 9 Corporation as they are issued. Each certificate shall bear a serial number, shall exhibit the holder's name and the number of shares evidenced thereby, and shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the Chief Executive Officer or the President or any Vice President, and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person or entity were such officer, transfer agent, or registrar at the date of issue. 6.2 Transfers. Transfers of stock of the Corporation shall be made on the books of the Corporation only upon surrender to the Corporation of a certificate (if any) for the shares duly endorsed or accompanied by proper evidence of succession, assignment, or authority to transfer, provided such succession, assignment, or transfer is not prohibited by the Certificate of Incorporation, these Bylaws, applicable law or contract. Thereupon, the Corporation shall issue a new certificate (if requested) to the person entitled thereto, cancel the old certificate (if any), and record the transaction upon its books. 6.3 Lost, Stolen, or Destroyed Certificates. Any person claiming a certificate of stock to be lost, stolen, or destroyed shall make an affidavit or an affirmation of that fact, and shall give the Corporation a bond of indemnity in satisfactory form and with one or more satisfactory sureties, whereupon a new certificate (if requested) may be issued of the same tenor and for the same number of shares as the one alleged to be lost, stolen, or destroyed. 6.4 Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares as the person entitled to exercise the rights of a stockholder and shall not be bound to recognize any equitable or other claim to or interest in any such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by the GCLD. 6.5 Additional Powers of the Board. (a) In addition to those powers set forth in Section 4.1, the Board of Directors shall have power and authority to make all such rules and regulations as it shall deem expedient concerning the issue, transfer, and registration of certificates for shares of stock of the Corporation, including the use of uncertificated shares of stock subject to the provisions of the GCLD. (b) The Board of Directors may appoint and remove transfer agents and registrars of transfers, and may require all stock certificates to bear the signature of any such transfer agent and/or any such registrar of transfers. 7. INDEMNIFICATION 7.1 Each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or the person of whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation, as a director, officer, employee, or agent of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to employee benefit plans, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the GCLD, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expenses, liability, and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of his or her heirs, executors, and administrators; provided, however, that, except as provided in this Article 7, the Corporation shall indemnify any 9 10 such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if authorized by the Board of Directors of the Corporation. Any indemnification under this Article 7 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard set forth in the GCLD. Such a determination shall be made (a) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum; (b) by a committee of such directors designated by majority vote of such directors, even though less than a quorum; (c) by independent legal counsel (compensated by the Corporation) in a written opinion; (d) by the stockholders; or (e) in any other manner permitted by the GCLD. In addition to the right to indemnification conferred in this Article 7, each of the above persons shall have the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the GCLD requires, the payment of such expenses incurred by a present director or officer in his or her capacity as a director or officer of the corporation (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such present director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Article 7 or otherwise. The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers. The right to indemnification and to an advancement of expenses conferred in this Article 7 shall be a contract right. 7.2 If a claim under Section 7.1 of this Article 7 is not paid in full by the Corporation within 30 days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim (including attorneys' fees). 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 Corporation) that the claimant has not met the standard of conduct which makes it permissible under the GCLD for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD, nor an actual determination by the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) that the claimant has not met such 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. In any suit brought by the claimant to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the claimant is not entitled to be indemnified, or to such advancement of expenses, under this Article 7 or otherwise shall be on the Corporation. 7.3 The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article 7, shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, provision of the certificate of incorporation of the Corporation, this bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. 7.4 The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee, or agent of the Corporation or another corporation, partnership, joint venture, trust, or other enterprise against any such expense, liability, or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability, or loss under the GCLD. 7.5 The Corporation may enter into an indemnity agreement with any director, officer, employee, or agent of the Corporation, or of another corporation, partnership, joint venture, trust, or other 10 11 enterprise, upon terms and conditions that the Board of Directors deems appropriate, as long as the provisions of the agreement are not impermissible under applicable law. 7.6 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.7 In case any provision in this Article 7 shall be determined at any time to be unenforceable in any respect, the other provisions shall not in any way be affected or impaired thereby, and the affected provision shall be given the fullest possible enforcement in the circumstances, it being the intention of the Corporation to afford indemnification and advancement of expenses to the persons indemnified hereby to the fullest extent permitted by law. 7.8 The Corporation may, by action of the Board of Directors, authorize one or more officers to grant rights to indemnification and advancement of expenses to former directors and officers or to other employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances. 8. MISCELLANEOUS 8.1 Place and Inspection of Books. (a) The books of the Corporation other than such books as are required by law to be kept within the State of Delaware shall be kept in such place or places either within or without the State of Delaware as the Board of Directors may from time to time determine. (b) At least ten days before each meeting of stockholders, the officer in charge of the stock ledger of the Corporation shall prepare a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. (c) The Board of Directors shall determine from time to time whether and, if allowed, when and under what conditions and regulations the accounts and books of the Corporation (except such as may be by law specifically open to inspection or as otherwise provided by these Bylaws) or any of them shall be open to the inspection of the stockholders and the stockholders' rights in respect thereof. 8.2 Voting Shares in Other Corporations. The Chief Executive Officer, the President, the Chief Financial Officer or any other officer of the Corporation designated by the Board of Directors may vote any and all shares held by the Corporation in any other corporation. 8.3 Fiscal Year. The fiscal year of the Corporation shall be such fiscal year as the Board of Directors from time to time by resolution shall determine. 8.4 Gender/Number. As used in these Bylaws, the masculine, feminine, or neuter gender, and the singular or plural number, shall each include the others whenever the context so indicates. 8.5 Paragraph Titles. The titles of the paragraphs have been inserted as a matter of reference only and shall not control or affect the meaning or construction of any of the terms and provisions hereof. 11 12 8.6 Amendment. These Bylaws may be altered, amended, or repealed by (a) the affirmative vote of 80% or more of the aggregate number of votes that the holders of the then outstanding shares of common stock and preferred stock are entitled to cast on the amendment, or (b) by resolution adopted by the affirmative vote of not less than a majority of the Directors in office, at any annual or regular meeting of the Board of Directors or at any special meeting of the Board of Directors if notice of the proposed alteration, amendment, or repeal be contained in written notice of such special meeting. Notwithstanding the foregoing, the amendment of any provision of these Bylaws that requires an affirmative vote in excess of a majority of the Directors in office shall require the affirmative vote of at least the number of directors the affirmative vote of whom is required by such provision. 8.7 Certificate of Incorporation. Notwithstanding anything to the contrary contained herein, if any provision contained in these Bylaws is inconsistent with or conflicts with a provision of the Certificate of Incorporation, such provision of these Bylaws shall be superseded by the inconsistent provision in the Certificate of Incorporation to the extent necessary to give effect to such provision in the Certificate of Incorporation. 12 EX-99.B.33.2 39 AMENDED & RESTATED BYLAWS AS AMENDED 12/31/99 1 Binghamton General, Inc. B.33.2 Amended and Restated Bylaws Adopted December 31,1999 2 AMENDED AND RESTATED B Y L A W S OF BINGHAMTON GENERAL, INC. 1. OFFICES. 1.1 Offices. In addition to its registered office in the State of Delaware, the Corporation shall have a corporate office in Wilmington, Delaware, and such other offices, either within or without the State of Delaware, at such locations as the Board of Directors may from time to time determine or the business of the Corporation may require. 2. SEAL. 2.1 Seal. The Corporation shall have a seal, which shall have inscribed thereon its name and year of incorporation and the words, "Corporate Seal Delaware." 3. MEETINGS OF STOCKHOLDERS. 3.1 Annual Meetings. The annual meeting of stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as shall be determined by the Board of Directors from time to time. 3.2 Special Meetings. Special meetings of the stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as may be designated by the Chairman of the Board or by the Board of Directors. 3.3 Notice of Meetings. (a) Notices of meetings of stockholders shall be in writing and shall state the place, date, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which a meeting is called. No business other than that specified in the notice thereof shall be transacted at any special meeting. (b) Such notice shall either be delivered personally, mailed, postage prepaid, or delivered by any other lawful means to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. If mailed, the notice shall be directed to the stockholder at his or her address as it appears on the records of the Corporation. Delivery of any such notice to any officer of a corporation or association or to any member of a partnership shall constitute delivery of such notice to such corporation, association, or partnership. (c) Notice of any meeting of stockholders need not be given to any stockholder if waived by such stockholder in writing, whether before or after such meeting is held, or if such stockholder shall sign the minutes or attend the meeting, except that if such stockholder attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, such stockholder shall not be deemed to have waived notice of such meeting. 3.4 Adjourned Meetings. When a meeting is adjourned to another time or place, unless otherwise provided by these Bylaws, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the stockholders may transact any business that might have been transacted at the original meeting. If an adjournment 2 3 is for more than 30 days, or if after an adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting. 3.5 Quorum and Adjournment. Except as otherwise provided by law, by the Certificate of Incorporation of the Corporation, or by these Bylaws, the presence, in person or by proxy, of the holders of a majority of the aggregate voting power of the stock issued and outstanding, entitled to vote thereat, shall constitute a quorum for the transaction of business at all meetings of stockholders. If such majority shall not be present or represented at any meeting of stockholders, the stockholders present, although less than a quorum, shall have the power to adjourn the meeting. 3.6 Vote Required. Except as otherwise provided by law or by the Certificate of Incorporation: (a) Directors shall be elected by a plurality of the votes present in person or represented by proxy at a meeting of stockholders and entitled to vote in the election of directors, and (b) whenever any corporate action other than the election of Directors is to be taken, it shall be authorized by a majority in voting power of the shares present in person or by proxy at a meeting of stockholders and entitled to vote on the subject matter. 3.7 Manner of Voting. At each meeting of stockholders, each stockholder having the right to vote shall be entitled to vote in person or by proxy. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed before being voted. Each stockholder shall be entitled to vote each share of stock having voting power registered in his or her name on the books of the Corporation on the record date fixed for determination of stockholders entitled to vote at such meeting. 3.8 Stockholder Action Without a Meeting. Except as otherwise provided by law or by the Certificate of Incorporation, any action required to be taken at any meeting of stockholders of the corporation, or any action that may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice, and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of the holders to take the action were delivered to the Corporation. 3.9 Proxies. (a) At any meeting of stockholders, any stockholder may be represented and vote by proxy or proxies. In the event that any form of proxy shall designate two or more persons to act as proxies, a majority of such persons present at the meeting or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by the form of proxy upon all of the persons so designated unless the form of proxy shall otherwise provide. (b) The Board of Directors may, in advance of any annual or special meeting of the stockholders, prescribe additional regulations concerning the validation of the same, which are intended to be voted at any such meeting. 3.10 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the stockholders. In the absence of the Chairman of the Board, the Vice Chairman of the Board or, in his or her absence, any Director designated by the Chairman of the Board or the Board of Directors shall act as chairman of the meeting. 3 4 The Secretary of the Corporation shall act as secretary of all meetings of the stockholders, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the stockholders, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 3.11 Procedure. At each meeting of stockholders, the chairman of the meeting shall fix and announce the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at the meeting and shall determine the order of business and all other matters of procedure. Except to the extent inconsistent with any such rules and regulations as adopted by the Board of Directors, the chairman of the meeting may establish rules, which need not be in writing, to maintain order and safety and for the conduct of the meeting. Without limiting the foregoing, he or she may: (a) restrict attendance at any time to bona fide stockholders of record and their proxies and other persons in attendance at the invitation of the chairman; (b) restrict dissemination of solicitation materials and use of audio or visual recording devices at the meeting; (c) adjourn the meeting without a vote of the stockholders, whether or not there is a quorum present; and (d) make rules governing speeches and debate, including time limits and access to microphones. The chairman of the meeting shall be entitled to act in his or her absolute discretion and his or her rulings shall not be subject to appeal. 4. DIRECTORS. 4.1 Powers and Number. The Board of Directors shall exercise all of the powers of the Corporation except such as are by law, or by the Certificate of Incorporation of this Corporation or by these Bylaws conferred upon or reserved to the stockholders of any class or classes. The number of directors that shall constitute the whole Board of Directors shall be no fewer than three (3) and no greater than nine (9), the exact number of directors to be determined from time to time by resolution adopted by the Board of Directors or the stockholders, and until otherwise determined by the Board of Directors or the stockholders, the number of directors that shall constitute the whole Board of Directors shall be three (3). 4.2 Resignations. Any Director may resign at any time by giving written notice to the Board of Directors or the Secretary. Such resignation shall take effect at the date of receipt of such notice or at any later time specified therein. Acceptance of such resignation shall not be necessary to make it effective. 4.3 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the Board of Directors. In the absence of the Chairman of the Board, the Vice Chairman of the Board, or in his absence, the Chief Executive Officer or other person designated by the Board of Directors shall act as chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the Board of Directors, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the Board of Directors, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 4.4 Annual Meetings. The Board of Directors shall meet each year immediately following the annual meeting of stockholders, at the place where such meeting of stockholders has been held, or at such 4 5 other place as shall be fixed by the person presiding over the meeting of the stockholders, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. In the event that in any year Directors are elected by written consent in lieu of an annual meeting of stockholders, the Board of Directors shall meet in such year as soon as practicable after receipt of such written consent by the Corporation at such time and place as shall be fixed by the Chairman of the Board, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. 4.5 Regular Meetings. Regular meetings of the Board of Directors shall be held on such dates and at such times and places, within or without the state of Delaware, as shall from time to time be determined by the Board of Directors. In the absence of any such determination, such meetings shall be held at such times and places, within or without the State of Delaware, as shall be designated by the Chairman of the Board on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex or by electronic mail or by other electronic means, or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. 4.6 Special Meetings. Special meetings of the Board of Directors shall be held at the call of the Chairman of the Board at such times and places, within or without the State of Delaware, as he or she shall designate, on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex, by electronic mail or by other electronic means or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. Special meetings shall be called by the Secretary on like notice at the written request of a majority of the Directors then in office. 4.7 Quorum and Powers of a Majority. At all meetings of the Board of Directors and of each committee thereof, a majority of the members shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which a quorum is present shall be the act of the Board of Directors or such committee, unless by express provision of law, of the Certificate of Incorporation, or of these Bylaws, a different vote is required, in which case such express provision shall govern and control. In the absence of a quorum, a majority of the members present at any meeting may, without notice other than announcement at the meeting, adjourn such meeting from time to time until a quorum is present. 4.8 Waiver of Notice. Notice of any meeting of the Board of Directors, or any committee thereof, need not be given to any member if waived by him or her in writing, whether before or after such meeting is held, or if he or she shall sign the minutes or attend the meeting, except that if such Director attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, then such Director shall not be deemed to have waived notice of such meeting. 4.9 Manner of Acting. (a) Members of the Board of Directors, or any committee thereof, may participate in any meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating therein can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting. (b) Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing, and the writings are filed with the minutes of proceedings of the Board of Directors or such committee. 5 6 4.10 Compensation. (a) The Board of Directors, by a resolution or resolutions, may fix, and from time to time change, the compensation of Directors. (b) Each Director shall be entitled to reimbursement from the Corporation for his or her reasonable expenses incurred with respect to duties as a member of the Board of Directors or any committee thereof. (c) Nothing contained in these Bylaws shall be construed to preclude any Director from serving the Corporation in any other capacity and from receiving compensation from the Corporation for service rendered to it in such other capacity. 4.11 Committees. The Board of Directors (or any committee thereof having the power and authority to do so) may designate one or more committees, each committee to consist of one or more Directors, which to the extent provided in said resolution or resolutions shall have and may exercise the powers and authority of the Board of Directors in the management of the business and affairs of the corporation; provided, however, that no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the General Corporation Law of Delaware (the "GCLD") to be submitted to stockholders for approval or (ii) adopting, amending, or repealing any bylaw of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting of such committee and not disqualified from voting, whether or not such member of members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of such absent or disqualified director. 4.12 Committee Procedure, Limitations of Committee Powers. (a) Except as otherwise provided by these Bylaws, each committee shall adopt its own rules governing the time, place and method of holding its meetings and the conduct of its proceedings and shall meet as provided by such rules or by resolution of the Board of Directors. Unless otherwise provided by these Bylaws or any such rules or resolutions, notice of the time and place of each meeting of a committee shall be given to each member of such committee as provided in Section 4.6 of these Bylaws with respect to notices of special meetings of the Board of Directors. (b) Each committee shall keep regular minutes of its proceedings and report the same to the Board of Directors when required. (c) Any member of any committee may be removed from such committee either with or without cause, at any time, by the Board of Directors at any meeting thereof. Any vacancy in any committee shall be filled by the Board of Directors in the manner prescribed by the Certificate of Incorporation or these Bylaws for the original appointment of the members of such committee. 5. OFFICERS. 5.1 Number. (a) The officers of the Corporation shall include a Chief Executive Officer, a President, one or more Vice Presidents (including one or more Executive Vice Presidents and one or more Senior Vice Presidents if deemed appropriate by the Board of Directors), a Chief Financial Officer, a Secretary, a Treasurer, and a Controller. The Board of Directors shall also elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except for the Chairman of the Board, the Vice Chairman of the Board, and the Chief Executive Officer, none of the officers of the Corporation needs to be a director of the Corporation. Any two or more offices may be held by the same person to the extent permitted by the GCLD. (b) The Chief Executive Officer shall have the power to appoint one or more employees of the Corporation as divisional or departmental vice presidents and fix the duties of such appointees. However, no such divisional or departmental vice president shall be considered as an officer of the Corporation. 6 7 5.2 Election of Officers, Qualification and Term. The Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President, the Chief Financial Officer, the Secretary and the Treasurer of the Corporation shall be elected from time to time by the Board of Directors and, except as may otherwise be expressly provided in a contract of employment duly authorized by the Board of Directors, shall hold office at the pleasure of the Board of Directors. The Board of Directors and the Chief Executive Officer also may elect such other officers as the Board of Directors or the Chief Executive Officer may from time to time deem appropriate or necessary. 5.3 Removal. Any officer elected by the Board of Directors may be removed, either with or without cause, by the Board of Directors at any meeting thereof, or to the extent delegated to the Chairman of the Board or the Chief Executive Officer, by the Chairman of the Board or the Chief Executive Officer. 5.4 Resignations. Any officer of the Corporation may resign at any time by giving written notice to the Board of Directors or to the Chairman of the Board or to the Chief Executive Officer. Such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 5.5 Compensation. The compensation of all officers of the Corporation shall be fixed by or in the manner provided by the Board of Directors from time to time, and no officer shall be prevented from receiving such compensation by reason of the fact that he or she is also a Director of the Corporation. 5.6 The Chairman of the Board. The Chairman of the Board shall have the powers and duties customarily and usually associated with the office of the Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. The Chairman of the Board shall preside at meetings of the stockholders and of the Board of Directors. 5.7 Vice Chairman of the Board. The Vice Chairman of the Board, if any, shall have the powers and duties customarily and usually associated with the office of the Vice Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. 5.8 Chief Executive Officer. The Chief Executive Officer shall have, subject to the supervision, direction and control of the Board of Directors, the general powers and duties of supervision, direction and management of the affairs and business of the Corporation usually vested in the chief executive officer of a corporation, including, without limitation, all powers necessary to direct and control the organizational and reporting relationships within the Corporation. In addition, the Chief Executive Officer shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. If at any time the office of the Chairman of the Board and the Vice Chairman of the Board shall not be filled, or in the event of the temporary absence or disability of the Chairman of the Board and the Vice Chairman of the Board, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board. 5.9 The President. The President shall serve as chief operating officer, shall have the powers and duties customarily and usually associated with the office of the President and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.10 The Vice Presidents. Each Vice President shall have such powers and duties customarily and usually associated with the office of Vice President and shall have such other powers and perform such other duties as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, or the President. 5.11 The Chief Financial Officer. The Chief Financial Officer shall be responsible for the financial affairs of the Corporation, including overseeing the duties performed by the Treasurer of the Corporation. In addition, the Chief Financial Officer shall have such powers and duties customarily and usually 7 8 associated with the office of the Chief Financial Officer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.12 The Secretary and the Assistant Secretary. (a) The Secretary shall attend meetings of the Board of Directors and meetings of the stockholders and record all votes and minutes of all such proceedings in a book kept for such purpose. In addition, the Secretary shall have such powers and duties customarily and usually associated with the office of Secretary and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors, the Chief Executive Officer, or the President. (b) Each Assistant Secretary shall have such powers and perform such duties customarily and usually associated with the office of Assistant Secretary and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Secretary. In case of the absence or disability of the Secretary, the Assistant Secretary designated by the Chief Executive Officer (or, in the absence of such designation, by the Secretary) shall perform the duties and exercise the powers of the Secretary. 5.13 The Treasurer and the Assistant Treasurer. (a) The Treasurer shall have custody of the Corporation's funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit or cause to be deposited moneys or other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall also maintain adequate records of all assets, liabilities, and transactions of the Corporation and shall see that adequate audits thereof are currently and regularly made. In addition, the Treasurer shall have such powers and duties customarily and usually associated with the office of Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. (b) Each Assistant Treasurer shall have such powers and perform such duties customarily and usually associated with the office of Assistant Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Treasurer. In case of the absence or disability of the Treasurer, the Assistant Treasurer designated by the Chief Executive Officer (or, in the absence of such designation, by the Treasurer) shall perform the duties and exercise the powers of the Treasurer. 5.14 Controller. The Controller shall be responsible for maintaining the accounting records and statements, and shall properly account for all monies and obligations due the Corporation and all properties, assets, and liabilities of the Corporation. The Controller shall render to the Chairman of the Board, the President or the Chief Financial Officer such periodic reports covering the results of operations of the Corporation as may be required by either of them or by law. In addition, the Controller shall have such powers and duties customarily and usually associated with the office of Controller and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. 6. STOCK 6.1 Certificates. Certificates for shares of stock of the Corporation shall be issued under the seal of the Corporation, or a facsimile thereof, and shall be numbered and shall be entered in the books of the Corporation as they are issued. Each certificate shall bear a serial number, shall exhibit the holder's name and the number of shares evidenced thereby, and shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the Chief Executive Officer or the President or any Vice President, and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is 8 9 issued, it may be issued by the corporation with the same effect as if such person or entity were such officer, transfer agent, or registrar at the date of issue. 6.2 Transfers. Transfers of stock of the Corporation shall be made on the books of the Corporation only upon surrender to the Corporation of a certificate (if any) for the shares duly endorsed or accompanied by proper evidence of succession, assignment, or authority to transfer, provided such succession, assignment, or transfer is not prohibited by the Certificate of Incorporation, these Bylaws, applicable law or contract. Thereupon, the Corporation shall issue a new certificate (if requested) to the person entitled thereto, cancel the old certificate (if any), and record the transaction upon its books. 6.3 Lost, Stolen, or Destroyed Certificates. Any person claiming a certificate of stock to be lost, stolen, or destroyed shall make an affidavit or an affirmation of that fact, and shall give the Corporation a bond of indemnity in satisfactory form and with one or more satisfactory sureties, whereupon a new certificate (if requested) may be issued of the same tenor and for the same number of shares as the one alleged to be lost, stolen, or destroyed. 6.4 Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares as the person entitled to exercise the rights of a stockholder and shall not be bound to recognize any equitable or other claim to or interest in any such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by the GCLD. 6.5 Additional Powers of the Board. (a) In addition to those powers set forth in Section 4.1, the Board of Directors shall have power and authority to make all such rules and regulations as it shall deem expedient concerning the issue, transfer, and registration of certificates for shares of stock of the Corporation, including the use of uncertificated shares of stock subject to the provisions of the GCLD. (b) The Board of Directors may appoint and remove transfer agents and registrars of transfers, and may require all stock certificates to bear the signature of any such transfer agent and/or any such registrar of transfers. 7. INDEMNIFICATION 7.1 Each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or the person of whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation, as a director, officer, employee, or agent of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to employee benefit plans, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the GCLD, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expenses, liability, and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of his or her heirs, executors, and administrators; provided, however, that, except as provided in this Article 7, the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if authorized by the Board of Directors of the Corporation. Any indemnification under this Article 7 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard set forth in the GCLD. Such a determination shall be made (a) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum; (b) by a committee of such directors designated by majority vote of such directors, even though less than a quorum; (c) by 9 10 independent legal counsel (compensated by the Corporation) in a written opinion; (d) by the stockholders; or (e) in any other manner permitted by the GCLD. In addition to the right to indemnification conferred in this Article 7, each of the above persons shall have the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the GCLD requires, the payment of such expenses incurred by a present director or officer in his or her capacity as a director or officer of the corporation (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such present director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Article 7 or otherwise. The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers. The right to indemnification and to an advancement of expenses conferred in this Article 7 shall be a contract right. 7.2 If a claim under Section 7.1 of this Article 7 is not paid in full by the Corporation within 30 days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim (including attorneys' fees). 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 Corporation) that the claimant has not met the standard of conduct which makes it permissible under the GCLD for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD, nor an actual determination by the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) that the claimant has not met such 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. In any suit brought by the claimant to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the claimant is not entitled to be indemnified, or to such advancement of expenses, under this Article 7 or otherwise shall be on the Corporation. 7.3 The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article 7, shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, provision of the certificate of incorporation of the Corporation, this bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. 7.4 The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee, or agent of the Corporation or another corporation, partnership, joint venture, trust, or other enterprise against any such expense, liability, or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability, or loss under the GCLD. 7.5 The Corporation may enter into an indemnity agreement with any director, officer, employee, or agent of the Corporation, or of another corporation, partnership, joint venture, trust, or other enterprise, upon terms and conditions that the Board of Directors deems appropriate, as long as the provisions of the agreement are not impermissible under applicable law. 7.6 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.7 In case any provision in this Article 7 shall be determined at any time to be unenforceable in any respect, the other provisions shall not in any way be affected or impaired thereby, and the affected provision shall be given the fullest possible enforcement in the circumstances, it being the intention of the 10 11 Corporation to afford indemnification and advancement of expenses to the persons indemnified hereby to the fullest extent permitted by law. 7.8 The Corporation may, by action of the Board of Directors, authorize one or more officers to grant rights to indemnification and advancement of expenses to former directors and officers or to other employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances. 8. MISCELLANEOUS 8.1 Place and Inspection of Books. (a) The books of the Corporation other than such books as are required by law to be kept within the State of Delaware shall be kept in such place or places either within or without the State of Delaware as the Board of Directors may from time to time determine. (b) At least ten days before each meeting of stockholders, the officer in charge of the stock ledger of the Corporation shall prepare a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. (c) The Board of Directors shall determine from time to time whether and, if allowed, when and under what conditions and regulations the accounts and books of the Corporation (except such as may be by law specifically open to inspection or as otherwise provided by these Bylaws) or any of them shall be open to the inspection of the stockholders and the stockholders' rights in respect thereof. 8.2 Voting Shares in Other Corporations. The Chief Executive Officer, the President, the Chief Financial Officer or any other officer of the Corporation designated by the Board of Directors may vote any and all shares held by the Corporation in any other corporation. 8.3 Fiscal Year. The fiscal year of the Corporation shall be such fiscal year as the Board of Directors from time to time by resolution shall determine. 8.4 Gender/Number. As used in these Bylaws, the masculine, feminine, or neuter gender, and the singular or plural number, shall each include the others whenever the context so indicates. 8.5 Paragraph Titles. The titles of the paragraphs have been inserted as a matter of reference only and shall not control or affect the meaning or construction of any of the terms and provisions hereof. 8.6 Amendment. These Bylaws may be altered, amended, or repealed by (a) the affirmative vote of 80% or more of the aggregate number of votes that the holders of the then outstanding shares of common stock and preferred stock are entitled to cast on the amendment, or (b) by resolution adopted by the affirmative vote of not less than a majority of the Directors in office, at any annual or regular meeting of the Board of Directors or at any special meeting of the Board of Directors if notice of the proposed alteration, amendment, or repeal be contained in written notice of such special meeting. Notwithstanding the foregoing, the amendment of any provision of these Bylaws that requires an affirmative vote in excess of a majority of the Directors in office shall require the affirmative vote of at least the number of directors the affirmative vote of whom is required by such provision. 11 12 8.7 Certificate of Incorporation. Notwithstanding anything to the contrary contained herein, if any provision contained in these Bylaws is inconsistent with or conflicts with a provision of the Certificate of Incorporation, such provision of these Bylaws shall be superseded by the inconsistent provision in the Certificate of Incorporation to the extent necessary to give effect to such provision in the Certificate of Incorporation. 12 EX-99.B.34.2 40 AMENDED & RESTATED BYLAWS AS AMENDED 12/31/99 1 Binghamton Limited, Inc. B.34.2 Amended and Restated Bylaws Adopted December 31, 1999 2 AMENDED AND RESTATED B Y L A W S OF BINGHAMTON LIMITED, INC. 1. OFFICES. 1.1 Offices. In addition to its registered office in the State of Delaware, the Corporation shall have a corporate office in Wilmington, Delaware, and such other offices, either within or without the State of Delaware, at such locations as the Board of Directors may from time to time determine or the business of the Corporation may require. 2. SEAL. 2.1 Seal. The Corporation shall have a seal, which shall have inscribed thereon its name and year of incorporation and the words, "Corporate Seal Delaware." 3. MEETINGS OF STOCKHOLDERS. 3.1 Annual Meetings. The annual meeting of stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as shall be determined by the Board of Directors from time to time. 3.2 Special Meetings. Special meetings of the stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as may be designated by the Chairman of the Board or by the Board of Directors. 3.3 Notice of Meetings. (a) Notices of meetings of stockholders shall be in writing and shall state the place, date, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which a meeting is called. No business other than that specified in the notice thereof shall be transacted at any special meeting. (b) Such notice shall either be delivered personally, mailed, postage prepaid, or delivered by any other lawful means to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. If mailed, the notice shall be directed to the stockholder at his or her address as it appears on the records of the Corporation. Delivery of any such notice to any officer of a corporation or association or to any member of a partnership shall constitute delivery of such notice to such corporation, association, or partnership. (c) Notice of any meeting of stockholders need not be given to any stockholder if waived by such stockholder in writing, whether before or after such meeting is held, or if such stockholder shall sign the minutes or attend the meeting, except that if such stockholder attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, such stockholder shall not be deemed to have waived notice of such meeting. 3.4 Adjourned Meetings. When a meeting is adjourned to another time or place, unless otherwise provided by these Bylaws, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the stockholders may transact any business that might have been transacted at the original meeting. If an adjournment 2 3 is for more than 30 days, or if after an adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting. 3.5 Quorum and Adjournment. Except as otherwise provided by law, by the Certificate of Incorporation of the Corporation, or by these Bylaws, the presence, in person or by proxy, of the holders of a majority of the aggregate voting power of the stock issued and outstanding, entitled to vote thereat, shall constitute a quorum for the transaction of business at all meetings of stockholders. If such majority shall not be present or represented at any meeting of stockholders, the stockholders present, although less than a quorum, shall have the power to adjourn the meeting. 3.6 Vote Required. Except as otherwise provided by law or by the Certificate of Incorporation: (a) Directors shall be elected by a plurality of the votes present in person or represented by proxy at a meeting of stockholders and entitled to vote in the election of directors, and (b) whenever any corporate action other than the election of Directors is to be taken, it shall be authorized by a majority in voting power of the shares present in person or by proxy at a meeting of stockholders and entitled to vote on the subject matter. 3.7 Manner of Voting. At each meeting of stockholders, each stockholder having the right to vote shall be entitled to vote in person or by proxy. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed before being voted. Each stockholder shall be entitled to vote each share of stock having voting power registered in his or her name on the books of the Corporation on the record date fixed for determination of stockholders entitled to vote at such meeting. 3.8 Stockholder Action Without a Meeting. Except as otherwise provided by law or by the Certificate of Incorporation, any action required to be taken at any meeting of stockholders of the corporation, or any action that may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice, and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of the holders to take the action were delivered to the Corporation. 3.9 Proxies. (a) At any meeting of stockholders, any stockholder may be represented and vote by proxy or proxies. In the event that any form of proxy shall designate two or more persons to act as proxies, a majority of such persons present at the meeting or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by the form of proxy upon all of the persons so designated unless the form of proxy shall otherwise provide. (b) The Board of Directors may, in advance of any annual or special meeting of the stockholders, prescribe additional regulations concerning the validation of the same, which are intended to be voted at any such meeting. 3.10 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the stockholders. In the absence of the Chairman of the Board, the Vice Chairman of the Board or, in his or her absence, any Director designated by the Chairman of the Board or the Board of Directors shall act as chairman of the meeting. 3 4 The Secretary of the Corporation shall act as secretary of all meetings of the stockholders, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the stockholders, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 3.11 Procedure. At each meeting of stockholders, the chairman of the meeting shall fix and announce the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at the meeting and shall determine the order of business and all other matters of procedure. Except to the extent inconsistent with any such rules and regulations as adopted by the Board of Directors, the chairman of the meeting may establish rules, which need not be in writing, to maintain order and safety and for the conduct of the meeting. Without limiting the foregoing, he or she may: (a) restrict attendance at any time to bona fide stockholders of record and their proxies and other persons in attendance at the invitation of the chairman; (b) restrict dissemination of solicitation materials and use of audio or visual recording devices at the meeting; (c) adjourn the meeting without a vote of the stockholders, whether or not there is a quorum present; and (d) make rules governing speeches and debate, including time limits and access to microphones. The chairman of the meeting shall be entitled to act in his or her absolute discretion and his or her rulings shall not be subject to appeal. 4. DIRECTORS. 4.1 Powers and Number. The Board of Directors shall exercise all of the powers of the Corporation except such as are by law, or by the Certificate of Incorporation of this Corporation or by these Bylaws conferred upon or reserved to the stockholders of any class or classes. The number of directors that shall constitute the whole Board of Directors shall be no fewer than three (3) and no greater than nine (9), the exact number of directors to be determined from time to time by resolution adopted by the Board of Directors or the stockholders, and until otherwise determined by the Board of Directors or the stockholders, the number of directors that shall constitute the whole Board of Directors shall be three (3). 4.2 Resignations. Any Director may resign at any time by giving written notice to the Board of Directors or the Secretary. Such resignation shall take effect at the date of receipt of such notice or at any later time specified therein. Acceptance of such resignation shall not be necessary to make it effective. 4.3 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the Board of Directors. In the absence of the Chairman of the Board, the Vice Chairman of the Board, or in his absence, the Chief Executive Officer or other person designated by the Board of Directors shall act as chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the Board of Directors, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the Board of Directors, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 4 5 4.4 Annual Meetings. The Board of Directors shall meet each year immediately following the annual meeting of stockholders, at the place where such meeting of stockholders has been held, or at such other place as shall be fixed by the person presiding over the meeting of the stockholders, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. In the event that in any year Directors are elected by written consent in lieu of an annual meeting of stockholders, the Board of Directors shall meet in such year as soon as practicable after receipt of such written consent by the Corporation at such time and place as shall be fixed by the Chairman of the Board, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. 4.5 Regular Meetings. Regular meetings of the Board of Directors shall be held on such dates and at such times and places, within or without the state of Delaware, as shall from time to time be determined by the Board of Directors. In the absence of any such determination, such meetings shall be held at such times and places, within or without the State of Delaware, as shall be designated by the Chairman of the Board on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex or by electronic mail or by other electronic means, or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. 4.6 Special Meetings. Special meetings of the Board of Directors shall be held at the call of the Chairman of the Board at such times and places, within or without the State of Delaware, as he or she shall designate, on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex, by electronic mail or by other electronic means or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. Special meetings shall be called by the Secretary on like notice at the written request of a majority of the Directors then in office. 4.7 Quorum and Powers of a Majority. At all meetings of the Board of Directors and of each committee thereof, a majority of the members shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which a quorum is present shall be the act of the Board of Directors or such committee, unless by express provision of law, of the Certificate of Incorporation, or of these Bylaws, a different vote is required, in which case such express provision shall govern and control. In the absence of a quorum, a majority of the members present at any meeting may, without notice other than announcement at the meeting, adjourn such meeting from time to time until a quorum is present. 4.8 Waiver of Notice. Notice of any meeting of the Board of Directors, or any committee thereof, need not be given to any member if waived by him or her in writing, whether before or after such meeting is held, or if he or she shall sign the minutes or attend the meeting, except that if such Director attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, then such Director shall not be deemed to have waived notice of such meeting. 4.9 Manner of Acting. (a) Members of the Board of Directors, or any committee thereof, may participate in any meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating therein can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting. (b) Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board of Directors or 5 6 such committee, as the case may be, consent thereto in writing, and the writings are filed with the minutes of proceedings of the Board of Directors or such committee. 4.10 Compensation. (a) The Board of Directors, by a resolution or resolutions, may fix, and from time to time change, the compensation of Directors. (b) Each Director shall be entitled to reimbursement from the Corporation for his or her reasonable expenses incurred with respect to duties as a member of the Board of Directors or any committee thereof. (c) Nothing contained in these Bylaws shall be construed to preclude any Director from serving the Corporation in any other capacity and from receiving compensation from the Corporation for service rendered to it in such other capacity. 4.11 Committees. The Board of Directors (or any committee thereof having the power and authority to do so) may designate one or more committees, each committee to consist of one or more Directors, which to the extent provided in said resolution or resolutions shall have and may exercise the powers and authority of the Board of Directors in the management of the business and affairs of the corporation; provided, however, that no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the General Corporation Law of Delaware (the "GCLD") to be submitted to stockholders for approval or (ii) adopting, amending, or repealing any bylaw of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting of such committee and not disqualified from voting, whether or not such member of members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of such absent or disqualified director. 4.12 Committee Procedure, Limitations of Committee Powers. (a) Except as otherwise provided by these Bylaws, each committee shall adopt its own rules governing the time, place and method of holding its meetings and the conduct of its proceedings and shall meet as provided by such rules or by resolution of the Board of Directors. Unless otherwise provided by these Bylaws or any such rules or resolutions, notice of the time and place of each meeting of a committee shall be given to each member of such committee as provided in Section 4.6 of these Bylaws with respect to notices of special meetings of the Board of Directors. (b) Each committee shall keep regular minutes of its proceedings and report the same to the Board of Directors when required. (c) Any member of any committee may be removed from such committee either with or without cause, at any time, by the Board of Directors at any meeting thereof. Any vacancy in any committee shall be filled by the Board of Directors in the manner prescribed by the Certificate of Incorporation or these Bylaws for the original appointment of the members of such committee. 5. OFFICERS. 5.1 Number. (a) The officers of the Corporation shall include a Chief Executive Officer, a President, one or more Vice Presidents (including one or more Executive Vice Presidents and one or more Senior Vice Presidents if deemed appropriate by the Board of Directors), a Chief Financial Officer, a Secretary, a Treasurer, and a Controller. The Board of Directors shall also elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except for the Chairman of the Board, the Vice Chairman of the Board, and the Chief Executive Officer, none of the officers of the Corporation needs to be a director of the Corporation. Any two or more offices may be held by the same person to the extent permitted by the GCLD. 6 7 (b) The Chief Executive Officer shall have the power to appoint one or more employees of the Corporation as divisional or departmental vice presidents and fix the duties of such appointees. However, no such divisional or departmental vice president shall be considered as an officer of the Corporation. 5.2 Election of Officers, Qualification and Term. The Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President, the Chief Financial Officer, the Secretary and the Treasurer of the Corporation shall be elected from time to time by the Board of Directors and, except as may otherwise be expressly provided in a contract of employment duly authorized by the Board of Directors, shall hold office at the pleasure of the Board of Directors. The Board of Directors and the Chief Executive Officer also may elect such other officers as the Board of Directors or the Chief Executive Officer may from time to time deem appropriate or necessary. 5.3 Removal. Any officer elected by the Board of Directors may be removed, either with or without cause, by the Board of Directors at any meeting thereof, or to the extent delegated to the Chairman of the Board or the Chief Executive Officer, by the Chairman of the Board or the Chief Executive Officer. 5.4 Resignations. Any officer of the Corporation may resign at any time by giving written notice to the Board of Directors or to the Chairman of the Board or to the Chief Executive Officer. Such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 5.5 Compensation. The compensation of all officers of the Corporation shall be fixed by or in the manner provided by the Board of Directors from time to time, and no officer shall be prevented from receiving such compensation by reason of the fact that he or she is also a Director of the Corporation. 5.6 The Chairman of the Board. The Chairman of the Board shall have the powers and duties customarily and usually associated with the office of the Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. The Chairman of the Board shall preside at meetings of the stockholders and of the Board of Directors. 5.7 Vice Chairman of the Board. The Vice Chairman of the Board, if any, shall have the powers and duties customarily and usually associated with the office of the Vice Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. 5.8 Chief Executive Officer. The Chief Executive Officer shall have, subject to the supervision, direction and control of the Board of Directors, the general powers and duties of supervision, direction and management of the affairs and business of the Corporation usually vested in the chief executive officer of a corporation, including, without limitation, all powers necessary to direct and control the organizational and reporting relationships within the Corporation. In addition, the Chief Executive Officer shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. If at any time the office of the Chairman of the Board and the Vice Chairman of the Board shall not be filled, or in the event of the temporary absence or disability of the Chairman of the Board and the Vice Chairman of the Board, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board. 5.9 The President. The President shall serve as chief operating officer, shall have the powers and duties customarily and usually associated with the office of the President and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.10 The Vice Presidents. Each Vice President shall have such powers and duties customarily and usually associated with the office of Vice President and shall have such other powers and perform 7 8 such other duties as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, or the President. 5.11 The Chief Financial Officer. The Chief Financial Officer shall be responsible for the financial affairs of the Corporation, including overseeing the duties performed by the Treasurer of the Corporation. In addition, the Chief Financial Officer shall have such powers and duties customarily and usually associated with the office of the Chief Financial Officer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.12 The Secretary and the Assistant Secretary. (a) The Secretary shall attend meetings of the Board of Directors and meetings of the stockholders and record all votes and minutes of all such proceedings in a book kept for such purpose. In addition, the Secretary shall have such powers and duties customarily and usually associated with the office of Secretary and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors, the Chief Executive Officer, or the President. (b) Each Assistant Secretary shall have such powers and perform such duties customarily and usually associated with the office of Assistant Secretary and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Secretary. In case of the absence or disability of the Secretary, the Assistant Secretary designated by the Chief Executive Officer (or, in the absence of such designation, by the Secretary) shall perform the duties and exercise the powers of the Secretary. 5.13 The Treasurer and the Assistant Treasurer. (a) The Treasurer shall have custody of the Corporation's funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit or cause to be deposited moneys or other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall also maintain adequate records of all assets, liabilities, and transactions of the Corporation and shall see that adequate audits thereof are currently and regularly made. In addition, the Treasurer shall have such powers and duties customarily and usually associated with the office of Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. (b) Each Assistant Treasurer shall have such powers and perform such duties customarily and usually associated with the office of Assistant Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Treasurer. In case of the absence or disability of the Treasurer, the Assistant Treasurer designated by the Chief Executive Officer (or, in the absence of such designation, by the Treasurer) shall perform the duties and exercise the powers of the Treasurer. 5.14 Controller. The Controller shall be responsible for maintaining the accounting records and statements, and shall properly account for all monies and obligations due the Corporation and all properties, assets, and liabilities of the Corporation. The Controller shall render to the Chairman of the Board, the President or the Chief Financial Officer such periodic reports covering the results of operations of the Corporation as may be required by either of them or by law. In addition, the Controller shall have such powers and duties customarily and usually associated with the office of Controller and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. 6. STOCK 6.1 Certificates. Certificates for shares of stock of the Corporation shall be issued under the seal of the Corporation, or a facsimile thereof, and shall be numbered and shall be entered in the books of the 8 9 Corporation as they are issued. Each certificate shall bear a serial number, shall exhibit the holder's name and the number of shares evidenced thereby, and shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the Chief Executive Officer or the President or any Vice President, and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person or entity were such officer, transfer agent, or registrar at the date of issue. 6.2 Transfers. Transfers of stock of the Corporation shall be made on the books of the Corporation only upon surrender to the Corporation of a certificate (if any) for the shares duly endorsed or accompanied by proper evidence of succession, assignment, or authority to transfer, provided such succession, assignment, or transfer is not prohibited by the Certificate of Incorporation, these Bylaws, applicable law or contract. Thereupon, the Corporation shall issue a new certificate (if requested) to the person entitled thereto, cancel the old certificate (if any), and record the transaction upon its books. 6.3 Lost, Stolen, or Destroyed Certificates. Any person claiming a certificate of stock to be lost, stolen, or destroyed shall make an affidavit or an affirmation of that fact, and shall give the Corporation a bond of indemnity in satisfactory form and with one or more satisfactory sureties, whereupon a new certificate (if requested) may be issued of the same tenor and for the same number of shares as the one alleged to be lost, stolen, or destroyed. 6.4 Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares as the person entitled to exercise the rights of a stockholder and shall not be bound to recognize any equitable or other claim to or interest in any such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by the GCLD. 6.5 Additional Powers of the Board. (a) In addition to those powers set forth in Section 4.1, the Board of Directors shall have power and authority to make all such rules and regulations as it shall deem expedient concerning the issue, transfer, and registration of certificates for shares of stock of the Corporation, including the use of uncertificated shares of stock subject to the provisions of the GCLD. (b) The Board of Directors may appoint and remove transfer agents and registrars of transfers, and may require all stock certificates to bear the signature of any such transfer agent and/or any such registrar of transfers. 7. INDEMNIFICATION 7.1 Each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or the person of whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation, as a director, officer, employee, or agent of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to employee benefit plans, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the GCLD, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expenses, liability, and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of his or her heirs, executors, and administrators; provided, however, that, except as provided in this Article 7, the Corporation shall indemnify any 9 10 such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if authorized by the Board of Directors of the Corporation. Any indemnification under this Article 7 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard set forth in the GCLD. Such a determination shall be made (a) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum; (b) by a committee of such directors designated by majority vote of such directors, even though less than a quorum; (c) by independent legal counsel (compensated by the Corporation) in a written opinion; (d) by the stockholders; or (e) in any other manner permitted by the GCLD. In addition to the right to indemnification conferred in this Article 7, each of the above persons shall have the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the GCLD requires, the payment of such expenses incurred by a present director or officer in his or her capacity as a director or officer of the corporation (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such present director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Article 7 or otherwise. The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers. The right to indemnification and to an advancement of expenses conferred in this Article 7 shall be a contract right. 7.2 If a claim under Section 7.1 of this Article 7 is not paid in full by the Corporation within 30 days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim (including attorneys' fees). 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 Corporation) that the claimant has not met the standard of conduct which makes it permissible under the GCLD for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD, nor an actual determination by the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) that the claimant has not met such 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. In any suit brought by the claimant to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the claimant is not entitled to be indemnified, or to such advancement of expenses, under this Article 7 or otherwise shall be on the Corporation. 7.3 The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article 7, shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, provision of the certificate of incorporation of the Corporation, this bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. 7.4 The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee, or agent of the Corporation or another corporation, partnership, joint venture, trust, or other enterprise against any such expense, liability, or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability, or loss under the GCLD. 7.5 The Corporation may enter into an indemnity agreement with any director, officer, employee, or agent of the Corporation, or of another corporation, partnership, joint venture, trust, or other 10 11 enterprise, upon terms and conditions that the Board of Directors deems appropriate, as long as the provisions of the agreement are not impermissible under applicable law. 7.6 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.7 In case any provision in this Article 7 shall be determined at any time to be unenforceable in any respect, the other provisions shall not in any way be affected or impaired thereby, and the affected provision shall be given the fullest possible enforcement in the circumstances, it being the intention of the Corporation to afford indemnification and advancement of expenses to the persons indemnified hereby to the fullest extent permitted by law. 7.8 The Corporation may, by action of the Board of Directors, authorize one or more officers to grant rights to indemnification and advancement of expenses to former directors and officers or to other employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances. 8. MISCELLANEOUS 8.1 Place and Inspection of Books. (a) The books of the Corporation other than such books as are required by law to be kept within the State of Delaware shall be kept in such place or places either within or without the State of Delaware as the Board of Directors may from time to time determine. (b) At least ten days before each meeting of stockholders, the officer in charge of the stock ledger of the Corporation shall prepare a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. (c) The Board of Directors shall determine from time to time whether and, if allowed, when and under what conditions and regulations the accounts and books of the Corporation (except such as may be by law specifically open to inspection or as otherwise provided by these Bylaws) or any of them shall be open to the inspection of the stockholders and the stockholders' rights in respect thereof. 8.2 Voting Shares in Other Corporations. The Chief Executive Officer, the President, the Chief Financial Officer or any other officer of the Corporation designated by the Board of Directors may vote any and all shares held by the Corporation in any other corporation. 8.3 Fiscal Year. The fiscal year of the Corporation shall be such fiscal year as the Board of Directors from time to time by resolution shall determine. 8.4 Gender/Number. As used in these Bylaws, the masculine, feminine, or neuter gender, and the singular or plural number, shall each include the others whenever the context so indicates. 8.5 Paragraph Titles. The titles of the paragraphs have been inserted as a matter of reference only and shall not control or affect the meaning or construction of any of the terms and provisions hereof. 11 12 8.6 Amendment. These Bylaws may be altered, amended, or repealed by (a) the affirmative vote of 80% or more of the aggregate number of votes that the holders of the then outstanding shares of common stock and preferred stock are entitled to cast on the amendment, or (b) by resolution adopted by the affirmative vote of not less than a majority of the Directors in office, at any annual or regular meeting of the Board of Directors or at any special meeting of the Board of Directors if notice of the proposed alteration, amendment, or repeal be contained in written notice of such special meeting. Notwithstanding the foregoing, the amendment of any provision of these Bylaws that requires an affirmative vote in excess of a majority of the Directors in office shall require the affirmative vote of at least the number of directors the affirmative vote of whom is required by such provision. 8.7 Certificate of Incorporation. Notwithstanding anything to the contrary contained herein, if any provision contained in these Bylaws is inconsistent with or conflicts with a provision of the Certificate of Incorporation, such provision of these Bylaws shall be superseded by the inconsistent provision in the Certificate of Incorporation to the extent necessary to give effect to such provision in the Certificate of Incorporation. 12 EX-99.B.35.2 41 AENDED & RESTATED BYLAWS AS AMENDED 12/31/99 1 Vineland General, Inc. B.35.2 Amended and Restated Bylaws Adopted December 31, 1999 2 AMENDED AND RESTATED B Y L A W S OF VINELAND GENERAL, INC. 1. OFFICES. 1.1 Offices. In addition to its registered office in the State of Delaware, the Corporation shall have a corporate office in Wilmington, Delaware, and such other offices, either within or without the State of Delaware, at such locations as the Board of Directors may from time to time determine or the business of the Corporation may require. 2. SEAL. 2.1 Seal. The Corporation shall have a seal, which shall have inscribed thereon its name and year of incorporation and the words, "Corporate Seal Delaware." 3. MEETINGS OF STOCKHOLDERS. 3.1 Annual Meetings. The annual meeting of stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as shall be determined by the Board of Directors from time to time. 3.2 Special Meetings. Special meetings of the stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as may be designated by the Chairman of the Board or by the Board of Directors. 3.3 Notice of Meetings. (a) Notices of meetings of stockholders shall be in writing and shall state the place, date, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which a meeting is called. No business other than that specified in the notice thereof shall be transacted at any special meeting. (b) Such notice shall either be delivered personally, mailed, postage prepaid, or delivered by any other lawful means to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. If mailed, the notice shall be directed to the stockholder at his or her address as it appears on the records of the Corporation. Delivery of any such notice to any officer of a corporation or association or to any member of a partnership shall constitute delivery of such notice to such corporation, association, or partnership. (c) Notice of any meeting of stockholders need not be given to any stockholder if waived by such stockholder in writing, whether before or after such meeting is held, or if such stockholder shall sign the minutes or attend the meeting, except that if such stockholder attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, such stockholder shall not be deemed to have waived notice of such meeting. 3.4 Adjourned Meetings. When a meeting is adjourned to another time or place, unless otherwise provided by these Bylaws, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the stockholders may transact any business that might have been transacted at the original meeting. If an adjournment 2 3 is for more than 30 days, or if after an adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting. 3.5 Quorum and Adjournment. Except as otherwise provided by law, by the Certificate of Incorporation of the Corporation, or by these Bylaws, the presence, in person or by proxy, of the holders of a majority of the aggregate voting power of the stock issued and outstanding, entitled to vote thereat, shall constitute a quorum for the transaction of business at all meetings of stockholders. If such majority shall not be present or represented at any meeting of stockholders, the stockholders present, although less than a quorum, shall have the power to adjourn the meeting. 3.6 Vote Required. Except as otherwise provided by law or by the Certificate of Incorporation: (a) Directors shall be elected by a plurality of the votes present in person or represented by proxy at a meeting of stockholders and entitled to vote in the election of directors, and (b) whenever any corporate action other than the election of Directors is to be taken, it shall be authorized by a majority in voting power of the shares present in person or by proxy at a meeting of stockholders and entitled to vote on the subject matter. 3.7 Manner of Voting. At each meeting of stockholders, each stockholder having the right to vote shall be entitled to vote in person or by proxy. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed before being voted. Each stockholder shall be entitled to vote each share of stock having voting power registered in his or her name on the books of the Corporation on the record date fixed for determination of stockholders entitled to vote at such meeting. 3.8 Stockholder Action Without a Meeting. Except as otherwise provided by law or by the Certificate of Incorporation, any action required to be taken at any meeting of stockholders of the corporation, or any action that may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice, and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of the holders to take the action were delivered to the Corporation. 3.9 Proxies. (a) At any meeting of stockholders, any stockholder may be represented and vote by proxy or proxies. In the event that any form of proxy shall designate two or more persons to act as proxies, a majority of such persons present at the meeting or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by the form of proxy upon all of the persons so designated unless the form of proxy shall otherwise provide. (b) The Board of Directors may, in advance of any annual or special meeting of the stockholders, prescribe additional regulations concerning the validation of the same, which are intended to be voted at any such meeting. 3.10 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the stockholders. In the absence of the Chairman of the Board, the Vice Chairman of the Board or, in his or her absence, any Director designated by the Chairman of the Board or the Board of Directors shall act as chairman of the meeting. 3 4 The Secretary of the Corporation shall act as secretary of all meetings of the stockholders, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the stockholders, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 3.11 Procedure. At each meeting of stockholders, the chairman of the meeting shall fix and announce the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at the meeting and shall determine the order of business and all other matters of procedure. Except to the extent inconsistent with any such rules and regulations as adopted by the Board of Directors, the chairman of the meeting may establish rules, which need not be in writing, to maintain order and safety and for the conduct of the meeting. Without limiting the foregoing, he or she may: (a) restrict attendance at any time to bona fide stockholders of record and their proxies and other persons in attendance at the invitation of the chairman; (b) restrict dissemination of solicitation materials and use of audio or visual recording devices at the meeting; (c) adjourn the meeting without a vote of the stockholders, whether or not there is a quorum present; and (d) make rules governing speeches and debate, including time limits and access to microphones. The chairman of the meeting shall be entitled to act in his or her absolute discretion and his or her rulings shall not be subject to appeal. 4. DIRECTORS. 4.1 Powers and Number. The Board of Directors shall exercise all of the powers of the Corporation except such as are by law, or by the Certificate of Incorporation of this Corporation or by these Bylaws conferred upon or reserved to the stockholders of any class or classes. The number of directors that shall constitute the whole Board of Directors shall be no fewer than three (3) and no greater than nine (9), the exact number of directors to be determined from time to time by resolution adopted by the Board of Directors or the stockholders, and until otherwise determined by the Board of Directors or the stockholders, the number of directors that shall constitute the whole Board of Directors shall be three (3). 4.2 Resignations. Any Director may resign at any time by giving written notice to the Board of Directors or the Secretary. Such resignation shall take effect at the date of receipt of such notice or at any later time specified therein. Acceptance of such resignation shall not be necessary to make it effective. 4.3 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the Board of Directors. In the absence of the Chairman of the Board, the Vice Chairman of the Board, or in his absence, the Chief Executive Officer or other person designated by the Board of Directors shall act as chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the Board of Directors, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the Board of Directors, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 4 5 4.4 Annual Meetings. The Board of Directors shall meet each year immediately following the annual meeting of stockholders, at the place where such meeting of stockholders has been held, or at such other place as shall be fixed by the person presiding over the meeting of the stockholders, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. In the event that in any year Directors are elected by written consent in lieu of an annual meeting of stockholders, the Board of Directors shall meet in such year as soon as practicable after receipt of such written consent by the Corporation at such time and place as shall be fixed by the Chairman of the Board, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. 4.5 Regular Meetings. Regular meetings of the Board of Directors shall be held on such dates and at such times and places, within or without the state of Delaware, as shall from time to time be determined by the Board of Directors. In the absence of any such determination, such meetings shall be held at such times and places, within or without the State of Delaware, as shall be designated by the Chairman of the Board on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex or by electronic mail or by other electronic means, or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. 4.6 Special Meetings. Special meetings of the Board of Directors shall be held at the call of the Chairman of the Board at such times and places, within or without the State of Delaware, as he or she shall designate, on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex, by electronic mail or by other electronic means or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. Special meetings shall be called by the Secretary on like notice at the written request of a majority of the Directors then in office. 4.7 Quorum and Powers of a Majority. At all meetings of the Board of Directors and of each committee thereof, a majority of the members shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which a quorum is present shall be the act of the Board of Directors or such committee, unless by express provision of law, of the Certificate of Incorporation, or of these Bylaws, a different vote is required, in which case such express provision shall govern and control. In the absence of a quorum, a majority of the members present at any meeting may, without notice other than announcement at the meeting, adjourn such meeting from time to time until a quorum is present. 4.8 Waiver of Notice. Notice of any meeting of the Board of Directors, or any committee thereof, need not be given to any member if waived by him or her in writing, whether before or after such meeting is held, or if he or she shall sign the minutes or attend the meeting, except that if such Director attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, then such Director shall not be deemed to have waived notice of such meeting. 4.9 Manner of Acting. (a) Members of the Board of Directors, or any committee thereof, may participate in any meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating therein can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting. (b) Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board of Directors or 5 6 such committee, as the case may be, consent thereto in writing, and the writings are filed with the minutes of proceedings of the Board of Directors or such committee. 4.10 Compensation. (a) The Board of Directors, by a resolution or resolutions, may fix, and from time to time change, the compensation of Directors. (b) Each Director shall be entitled to reimbursement from the Corporation for his or her reasonable expenses incurred with respect to duties as a member of the Board of Directors or any committee thereof. (c) Nothing contained in these Bylaws shall be construed to preclude any Director from serving the Corporation in any other capacity and from receiving compensation from the Corporation for service rendered to it in such other capacity. 4.11 Committees. The Board of Directors (or any committee thereof having the power and authority to do so) may designate one or more committees, each committee to consist of one or more Directors, which to the extent provided in said resolution or resolutions shall have and may exercise the powers and authority of the Board of Directors in the management of the business and affairs of the corporation; provided, however, that no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the General Corporation Law of Delaware (the "GCLD") to be submitted to stockholders for approval or (ii) adopting, amending, or repealing any bylaw of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting of such committee and not disqualified from voting, whether or not such member of members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of such absent or disqualified director. 4.12 Committee Procedure, Limitations of Committee Powers. (a) Except as otherwise provided by these Bylaws, each committee shall adopt its own rules governing the time, place and method of holding its meetings and the conduct of its proceedings and shall meet as provided by such rules or by resolution of the Board of Directors. Unless otherwise provided by these Bylaws or any such rules or resolutions, notice of the time and place of each meeting of a committee shall be given to each member of such committee as provided in Section 4.6 of these Bylaws with respect to notices of special meetings of the Board of Directors. (b) Each committee shall keep regular minutes of its proceedings and report the same to the Board of Directors when required. (c) Any member of any committee may be removed from such committee either with or without cause, at any time, by the Board of Directors at any meeting thereof. Any vacancy in any committee shall be filled by the Board of Directors in the manner prescribed by the Certificate of Incorporation or these Bylaws for the original appointment of the members of such committee. 5. OFFICERS. 5.1 Number. (a) The officers of the Corporation shall include a Chief Executive Officer, a President, one or more Vice Presidents (including one or more Executive Vice Presidents and one or more Senior Vice Presidents if deemed appropriate by the Board of Directors), a Chief Financial Officer, a Secretary, a Treasurer, and a Controller. The Board of Directors shall also elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except for the Chairman of the Board, the Vice Chairman of the Board, and the Chief Executive Officer, none of the officers of the Corporation needs to be a director of the Corporation. Any two or more offices may be held by the same person to the extent permitted by the GCLD. 6 7 (b) The Chief Executive Officer shall have the power to appoint one or more employees of the Corporation as divisional or departmental vice presidents and fix the duties of such appointees. However, no such divisional or departmental vice president shall be considered as an officer of the Corporation. 5.2 Election of Officers, Qualification and Term. The Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President, the Chief Financial Officer, the Secretary and the Treasurer of the Corporation shall be elected from time to time by the Board of Directors and, except as may otherwise be expressly provided in a contract of employment duly authorized by the Board of Directors, shall hold office at the pleasure of the Board of Directors. The Board of Directors and the Chief Executive Officer also may elect such other officers as the Board of Directors or the Chief Executive Officer may from time to time deem appropriate or necessary. 5.3 Removal. Any officer elected by the Board of Directors may be removed, either with or without cause, by the Board of Directors at any meeting thereof, or to the extent delegated to the Chairman of the Board or the Chief Executive Officer, by the Chairman of the Board or the Chief Executive Officer. 5.4 Resignations. Any officer of the Corporation may resign at any time by giving written notice to the Board of Directors or to the Chairman of the Board or to the Chief Executive Officer. Such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 5.5 Compensation. The compensation of all officers of the Corporation shall be fixed by or in the manner provided by the Board of Directors from time to time, and no officer shall be prevented from receiving such compensation by reason of the fact that he or she is also a Director of the Corporation. 5.6 The Chairman of the Board. The Chairman of the Board shall have the powers and duties customarily and usually associated with the office of the Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. The Chairman of the Board shall preside at meetings of the stockholders and of the Board of Directors. 5.7 Vice Chairman of the Board. The Vice Chairman of the Board, if any, shall have the powers and duties customarily and usually associated with the office of the Vice Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. 5.8 Chief Executive Officer. The Chief Executive Officer shall have, subject to the supervision, direction and control of the Board of Directors, the general powers and duties of supervision, direction and management of the affairs and business of the Corporation usually vested in the chief executive officer of a corporation, including, without limitation, all powers necessary to direct and control the organizational and reporting relationships within the Corporation. In addition, the Chief Executive Officer shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. If at any time the office of the Chairman of the Board and the Vice Chairman of the Board shall not be filled, or in the event of the temporary absence or disability of the Chairman of the Board and the Vice Chairman of the Board, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board. 5.9 The President. The President shall serve as chief operating officer, shall have the powers and duties customarily and usually associated with the office of the President and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.10 The Vice Presidents. Each Vice President shall have such powers and duties customarily and usually associated with the office of Vice President and shall have such other powers and perform 7 8 such other duties as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, or the President. 5.11 The Chief Financial Officer. The Chief Financial Officer shall be responsible for the financial affairs of the Corporation, including overseeing the duties performed by the Treasurer of the Corporation. In addition, the Chief Financial Officer shall have such powers and duties customarily and usually associated with the office of the Chief Financial Officer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.12 The Secretary and the Assistant Secretary. (a) The Secretary shall attend meetings of the Board of Directors and meetings of the stockholders and record all votes and minutes of all such proceedings in a book kept for such purpose. In addition, the Secretary shall have such powers and duties customarily and usually associated with the office of Secretary and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors, the Chief Executive Officer, or the President. (b) Each Assistant Secretary shall have such powers and perform such duties customarily and usually associated with the office of Assistant Secretary and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Secretary. In case of the absence or disability of the Secretary, the Assistant Secretary designated by the Chief Executive Officer (or, in the absence of such designation, by the Secretary) shall perform the duties and exercise the powers of the Secretary. 5.13 The Treasurer and the Assistant Treasurer. (a) The Treasurer shall have custody of the Corporation's funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit or cause to be deposited moneys or other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall also maintain adequate records of all assets, liabilities, and transactions of the Corporation and shall see that adequate audits thereof are currently and regularly made. In addition, the Treasurer shall have such powers and duties customarily and usually associated with the office of Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. (b) Each Assistant Treasurer shall have such powers and perform such duties customarily and usually associated with the office of Assistant Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Treasurer. In case of the absence or disability of the Treasurer, the Assistant Treasurer designated by the Chief Executive Officer (or, in the absence of such designation, by the Treasurer) shall perform the duties and exercise the powers of the Treasurer. 5.14 Controller. The Controller shall be responsible for maintaining the accounting records and statements, and shall properly account for all monies and obligations due the Corporation and all properties, assets, and liabilities of the Corporation. The Controller shall render to the Chairman of the Board, the President or the Chief Financial Officer such periodic reports covering the results of operations of the Corporation as may be required by either of them or by law. In addition, the Controller shall have such powers and duties customarily and usually associated with the office of Controller and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. 6. STOCK 6.1 Certificates. Certificates for shares of stock of the Corporation shall be issued under the seal of the Corporation, or a facsimile thereof, and shall be numbered and shall be entered in the books of the 8 9 Corporation as they are issued. Each certificate shall bear a serial number, shall exhibit the holder's name and the number of shares evidenced thereby, and shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the Chief Executive Officer or the President or any Vice President, and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person or entity were such officer, transfer agent, or registrar at the date of issue. 6.2 Transfers. Transfers of stock of the Corporation shall be made on the books of the Corporation only upon surrender to the Corporation of a certificate (if any) for the shares duly endorsed or accompanied by proper evidence of succession, assignment, or authority to transfer, provided such succession, assignment, or transfer is not prohibited by the Certificate of Incorporation, these Bylaws, applicable law or contract. Thereupon, the Corporation shall issue a new certificate (if requested) to the person entitled thereto, cancel the old certificate (if any), and record the transaction upon its books. 6.3 Lost, Stolen, or Destroyed Certificates. Any person claiming a certificate of stock to be lost, stolen, or destroyed shall make an affidavit or an affirmation of that fact, and shall give the Corporation a bond of indemnity in satisfactory form and with one or more satisfactory sureties, whereupon a new certificate (if requested) may be issued of the same tenor and for the same number of shares as the one alleged to be lost, stolen, or destroyed. 6.4 Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares as the person entitled to exercise the rights of a stockholder and shall not be bound to recognize any equitable or other claim to or interest in any such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by the GCLD. 6.5 Additional Powers of the Board. (a) In addition to those powers set forth in Section 4.1, the Board of Directors shall have power and authority to make all such rules and regulations as it shall deem expedient concerning the issue, transfer, and registration of certificates for shares of stock of the Corporation, including the use of uncertificated shares of stock subject to the provisions of the GCLD. (b) The Board of Directors may appoint and remove transfer agents and registrars of transfers, and may require all stock certificates to bear the signature of any such transfer agent and/or any such registrar of transfers. 7. INDEMNIFICATION 7.1 Each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or the person of whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation, as a director, officer, employee, or agent of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to employee benefit plans, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the GCLD, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expenses, liability, and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of his or her heirs, executors, and administrators; provided, however, that, except as provided in this Article 7, the Corporation shall indemnify any 9 10 such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if authorized by the Board of Directors of the Corporation. Any indemnification under this Article 7 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard set forth in the GCLD. Such a determination shall be made (a) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum; (b) by a committee of such directors designated by majority vote of such directors, even though less than a quorum; (c) by independent legal counsel (compensated by the Corporation) in a written opinion; (d) by the stockholders; or (e) in any other manner permitted by the GCLD. In addition to the right to indemnification conferred in this Article 7, each of the above persons shall have the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the GCLD requires, the payment of such expenses incurred by a present director or officer in his or her capacity as a director or officer of the corporation (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such present director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Article 7 or otherwise. The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers. The right to indemnification and to an advancement of expenses conferred in this Article 7 shall be a contract right. 7.2 If a claim under Section 7.1 of this Article 7 is not paid in full by the Corporation within 30 days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim (including attorneys' fees). 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 Corporation) that the claimant has not met the standard of conduct which makes it permissible under the GCLD for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD, nor an actual determination by the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) that the claimant has not met such 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. In any suit brought by the claimant to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the claimant is not entitled to be indemnified, or to such advancement of expenses, under this Article 7 or otherwise shall be on the Corporation. 7.3 The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article 7, shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, provision of the certificate of incorporation of the Corporation, this bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. 7.4 The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee, or agent of the Corporation or another corporation, partnership, joint venture, trust, or other enterprise against any such expense, liability, or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability, or loss under the GCLD. 7.5 The Corporation may enter into an indemnity agreement with any director, officer, employee, or agent of the Corporation, or of another corporation, partnership, joint venture, trust, or other 10 11 enterprise, upon terms and conditions that the Board of Directors deems appropriate, as long as the provisions of the agreement are not impermissible under applicable law. 7.6 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.7 In case any provision in this Article 7 shall be determined at any time to be unenforceable in any respect, the other provisions shall not in any way be affected or impaired thereby, and the affected provision shall be given the fullest possible enforcement in the circumstances, it being the intention of the Corporation to afford indemnification and advancement of expenses to the persons indemnified hereby to the fullest extent permitted by law. 7.8 The Corporation may, by action of the Board of Directors, authorize one or more officers to grant rights to indemnification and advancement of expenses to former directors and officers or to other employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances. 8. MISCELLANEOUS 8.1 Place and Inspection of Books. (a) The books of the Corporation other than such books as are required by law to be kept within the State of Delaware shall be kept in such place or places either within or without the State of Delaware as the Board of Directors may from time to time determine. (b) At least ten days before each meeting of stockholders, the officer in charge of the stock ledger of the Corporation shall prepare a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. (c) The Board of Directors shall determine from time to time whether and, if allowed, when and under what conditions and regulations the accounts and books of the Corporation (except such as may be by law specifically open to inspection or as otherwise provided by these Bylaws) or any of them shall be open to the inspection of the stockholders and the stockholders' rights in respect thereof. 8.2 Voting Shares in Other Corporations. The Chief Executive Officer, the President, the Chief Financial Officer or any other officer of the Corporation designated by the Board of Directors may vote any and all shares held by the Corporation in any other corporation. 8.3 Fiscal Year. The fiscal year of the Corporation shall be such fiscal year as the Board of Directors from time to time by resolution shall determine. 8.4 Gender/Number. As used in these Bylaws, the masculine, feminine, or neuter gender, and the singular or plural number, shall each include the others whenever the context so indicates. 8.5 Paragraph Titles. The titles of the paragraphs have been inserted as a matter of reference only and shall not control or affect the meaning or construction of any of the terms and provisions hereof. 11 12 8.6 Amendment. These Bylaws may be altered, amended, or repealed by (a) the affirmative vote of 80% or more of the aggregate number of votes that the holders of the then outstanding shares of common stock and preferred stock are entitled to cast on the amendment, or (b) by resolution adopted by the affirmative vote of not less than a majority of the Directors in office, at any annual or regular meeting of the Board of Directors or at any special meeting of the Board of Directors if notice of the proposed alteration, amendment, or repeal be contained in written notice of such special meeting. Notwithstanding the foregoing, the amendment of any provision of these Bylaws that requires an affirmative vote in excess of a majority of the Directors in office shall require the affirmative vote of at least the number of directors the affirmative vote of whom is required by such provision. 8.7 Certificate of Incorporation. Notwithstanding anything to the contrary contained herein, if any provision contained in these Bylaws is inconsistent with or conflicts with a provision of the Certificate of Incorporation, such provision of these Bylaws shall be superseded by the inconsistent provision in the Certificate of Incorporation to the extent necessary to give effect to such provision in the Certificate of Incorporation. 12 EX-99.B.36.2 42 AMENDED & RESTATED BYLAWS AS AMENDED 12/31/99 1 Vineland Limited, Inc. B.36.2 Amended and Restated Bylaws Adopted December 31, 1999 2 AMENDED AND RESTATED B Y L A W S OF VINELAND LIMITED, INC. 1. OFFICES. 1.1 Offices. In addition to its registered office in the State of Delaware, the Corporation shall have a corporate office in Wilmington, Delaware, and such other offices, either within or without the State of Delaware, at such locations as the Board of Directors may from time to time determine or the business of the Corporation may require. 2. SEAL. 2.1 Seal. The Corporation shall have a seal, which shall have inscribed thereon its name and year of incorporation and the words, "Corporate Seal Delaware." 3. MEETINGS OF STOCKHOLDERS. 3.1 Annual Meetings. The annual meeting of stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as shall be determined by the Board of Directors from time to time. 3.2 Special Meetings. Special meetings of the stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as may be designated by the Chairman of the Board or by the Board of Directors. 3.3 Notice of Meetings. (a) Notices of meetings of stockholders shall be in writing and shall state the place, date, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which a meeting is called. No business other than that specified in the notice thereof shall be transacted at any special meeting. (b) Such notice shall either be delivered personally, mailed, postage prepaid, or delivered by any other lawful means to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. If mailed, the notice shall be directed to the stockholder at his or her address as it appears on the records of the Corporation. Delivery of any such notice to any officer of a corporation or association or to any member of a partnership shall constitute delivery of such notice to such corporation, association, or partnership. (c) Notice of any meeting of stockholders need not be given to any stockholder if waived by such stockholder in writing, whether before or after such meeting is held, or if such stockholder shall sign the minutes or attend the meeting, except that if such stockholder attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, such stockholder shall not be deemed to have waived notice of such meeting. 3.4 Adjourned Meetings. When a meeting is adjourned to another time or place, unless otherwise provided by these Bylaws, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the stockholders may transact any business that might have been transacted at the original meeting. If an adjournment 2 3 is for more than 30 days, or if after an adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting. 3.5 Quorum and Adjournment. Except as otherwise provided by law, by the Certificate of Incorporation of the Corporation, or by these Bylaws, the presence, in person or by proxy, of the holders of a majority of the aggregate voting power of the stock issued and outstanding, entitled to vote thereat, shall constitute a quorum for the transaction of business at all meetings of stockholders. If such majority shall not be present or represented at any meeting of stockholders, the stockholders present, although less than a quorum, shall have the power to adjourn the meeting. 3.6 Vote Required. Except as otherwise provided by law or by the Certificate of Incorporation: (a) Directors shall be elected by a plurality of the votes present in person or represented by proxy at a meeting of stockholders and entitled to vote in the election of directors, and (b) whenever any corporate action other than the election of Directors is to be taken, it shall be authorized by a majority in voting power of the shares present in person or by proxy at a meeting of stockholders and entitled to vote on the subject matter. 3.7 Manner of Voting. At each meeting of stockholders, each stockholder having the right to vote shall be entitled to vote in person or by proxy. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed before being voted. Each stockholder shall be entitled to vote each share of stock having voting power registered in his or her name on the books of the Corporation on the record date fixed for determination of stockholders entitled to vote at such meeting. 3.8 Stockholder Action Without a Meeting. Except as otherwise provided by law or by the Certificate of Incorporation, any action required to be taken at any meeting of stockholders of the corporation, or any action that may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice, and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of the holders to take the action were delivered to the Corporation. 3.9 Proxies. (a) At any meeting of stockholders, any stockholder may be represented and vote by proxy or proxies. In the event that any form of proxy shall designate two or more persons to act as proxies, a majority of such persons present at the meeting or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by the form of proxy upon all of the persons so designated unless the form of proxy shall otherwise provide. (b) The Board of Directors may, in advance of any annual or special meeting of the stockholders, prescribe additional regulations concerning the validation of the same, which are intended to be voted at any such meeting. 3.10 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the stockholders. In the absence of the Chairman of the Board, the Vice Chairman of the Board or, in his or her absence, any Director designated by the Chairman of the Board or the Board of Directors shall act as chairman of the meeting. 3 4 The Secretary of the Corporation shall act as secretary of all meetings of the stockholders, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the stockholders, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 3.11 Procedure. At each meeting of stockholders, the chairman of the meeting shall fix and announce the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at the meeting and shall determine the order of business and all other matters of procedure. Except to the extent inconsistent with any such rules and regulations as adopted by the Board of Directors, the chairman of the meeting may establish rules, which need not be in writing, to maintain order and safety and for the conduct of the meeting. Without limiting the foregoing, he or she may: (a) restrict attendance at any time to bona fide stockholders of record and their proxies and other persons in attendance at the invitation of the chairman; (b) restrict dissemination of solicitation materials and use of audio or visual recording devices at the meeting; (c) adjourn the meeting without a vote of the stockholders, whether or not there is a quorum present; and (d) make rules governing speeches and debate, including time limits and access to microphones. The chairman of the meeting shall be entitled to act in his or her absolute discretion and his or her rulings shall not be subject to appeal. 4. DIRECTORS. 4.1 Powers and Number. The Board of Directors shall exercise all of the powers of the Corporation except such as are by law, or by the Certificate of Incorporation of this Corporation or by these Bylaws conferred upon or reserved to the stockholders of any class or classes. The number of directors that shall constitute the whole Board of Directors shall be no fewer than three (3) and no greater than nine (9), the exact number of directors to be determined from time to time by resolution adopted by the Board of Directors or the stockholders, and until otherwise determined by the Board of Directors or the stockholders, the number of directors that shall constitute the whole Board of Directors shall be three (3). 4.2 Resignations. Any Director may resign at any time by giving written notice to the Board of Directors or the Secretary. Such resignation shall take effect at the date of receipt of such notice or at any later time specified therein. Acceptance of such resignation shall not be necessary to make it effective. 4.3 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the Board of Directors. In the absence of the Chairman of the Board, the Vice Chairman of the Board, or in his absence, the Chief Executive Officer or other person designated by the Board of Directors shall act as chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the Board of Directors, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the Board of Directors, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 4 5 4.4 Annual Meetings. The Board of Directors shall meet each year immediately following the annual meeting of stockholders, at the place where such meeting of stockholders has been held, or at such other place as shall be fixed by the person presiding over the meeting of the stockholders, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. In the event that in any year Directors are elected by written consent in lieu of an annual meeting of stockholders, the Board of Directors shall meet in such year as soon as practicable after receipt of such written consent by the Corporation at such time and place as shall be fixed by the Chairman of the Board, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. 4.5 Regular Meetings. Regular meetings of the Board of Directors shall be held on such dates and at such times and places, within or without the state of Delaware, as shall from time to time be determined by the Board of Directors. In the absence of any such determination, such meetings shall be held at such times and places, within or without the State of Delaware, as shall be designated by the Chairman of the Board on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex or by electronic mail or by other electronic means, or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. 4.6 Special Meetings. Special meetings of the Board of Directors shall be held at the call of the Chairman of the Board at such times and places, within or without the State of Delaware, as he or she shall designate, on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex, by electronic mail or by other electronic means or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. Special meetings shall be called by the Secretary on like notice at the written request of a majority of the Directors then in office. 4.7 Quorum and Powers of a Majority. At all meetings of the Board of Directors and of each committee thereof, a majority of the members shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which a quorum is present shall be the act of the Board of Directors or such committee, unless by express provision of law, of the Certificate of Incorporation, or of these Bylaws, a different vote is required, in which case such express provision shall govern and control. In the absence of a quorum, a majority of the members present at any meeting may, without notice other than announcement at the meeting, adjourn such meeting from time to time until a quorum is present. 4.8 Waiver of Notice. Notice of any meeting of the Board of Directors, or any committee thereof, need not be given to any member if waived by him or her in writing, whether before or after such meeting is held, or if he or she shall sign the minutes or attend the meeting, except that if such Director attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, then such Director shall not be deemed to have waived notice of such meeting. 4.9 Manner of Acting. (a) Members of the Board of Directors, or any committee thereof, may participate in any meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating therein can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting. (b) Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board of Directors or 5 6 such committee, as the case may be, consent thereto in writing, and the writings are filed with the minutes of proceedings of the Board of Directors or such committee. 4.10 Compensation. (a) The Board of Directors, by a resolution or resolutions, may fix, and from time to time change, the compensation of Directors. (b) Each Director shall be entitled to reimbursement from the Corporation for his or her reasonable expenses incurred with respect to duties as a member of the Board of Directors or any committee thereof. (c) Nothing contained in these Bylaws shall be construed to preclude any Director from serving the Corporation in any other capacity and from receiving compensation from the Corporation for service rendered to it in such other capacity. 4.11 Committees. The Board of Directors (or any committee thereof having the power and authority to do so) may designate one or more committees, each committee to consist of one or more Directors, which to the extent provided in said resolution or resolutions shall have and may exercise the powers and authority of the Board of Directors in the management of the business and affairs of the corporation; provided, however, that no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the General Corporation Law of Delaware (the "GCLD") to be submitted to stockholders for approval or (ii) adopting, amending, or repealing any bylaw of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting of such committee and not disqualified from voting, whether or not such member of members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of such absent or disqualified director. 4.12 Committee Procedure, Limitations of Committee Powers. (a) Except as otherwise provided by these Bylaws, each committee shall adopt its own rules governing the time, place and method of holding its meetings and the conduct of its proceedings and shall meet as provided by such rules or by resolution of the Board of Directors. Unless otherwise provided by these Bylaws or any such rules or resolutions, notice of the time and place of each meeting of a committee shall be given to each member of such committee as provided in Section 4.6 of these Bylaws with respect to notices of special meetings of the Board of Directors. (b) Each committee shall keep regular minutes of its proceedings and report the same to the Board of Directors when required. (c) Any member of any committee may be removed from such committee either with or without cause, at any time, by the Board of Directors at any meeting thereof. Any vacancy in any committee shall be filled by the Board of Directors in the manner prescribed by the Certificate of Incorporation or these Bylaws for the original appointment of the members of such committee. 5. OFFICERS. 5.1 Number. (a) The officers of the Corporation shall include a Chief Executive Officer, a President, one or more Vice Presidents (including one or more Executive Vice Presidents and one or more Senior Vice Presidents if deemed appropriate by the Board of Directors), a Chief Financial Officer, a Secretary, a Treasurer, and a Controller. The Board of Directors shall also elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except for the Chairman of the Board, the Vice Chairman of the Board, and the Chief Executive Officer, none of the officers of the Corporation needs to be a director of the Corporation. Any two or more offices may be held by the same person to the extent permitted by the GCLD. 6 7 (b) The Chief Executive Officer shall have the power to appoint one or more employees of the Corporation as divisional or departmental vice presidents and fix the duties of such appointees. However, no such divisional or departmental vice president shall be considered as an officer of the Corporation. 5.2 Election of Officers, Qualification and Term. The Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President, the Chief Financial Officer, the Secretary and the Treasurer of the Corporation shall be elected from time to time by the Board of Directors and, except as may otherwise be expressly provided in a contract of employment duly authorized by the Board of Directors, shall hold office at the pleasure of the Board of Directors. The Board of Directors and the Chief Executive Officer also may elect such other officers as the Board of Directors or the Chief Executive Officer may from time to time deem appropriate or necessary. 5.3 Removal. Any officer elected by the Board of Directors may be removed, either with or without cause, by the Board of Directors at any meeting thereof, or to the extent delegated to the Chairman of the Board or the Chief Executive Officer, by the Chairman of the Board or the Chief Executive Officer. 5.4 Resignations. Any officer of the Corporation may resign at any time by giving written notice to the Board of Directors or to the Chairman of the Board or to the Chief Executive Officer. Such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 5.5 Compensation. The compensation of all officers of the Corporation shall be fixed by or in the manner provided by the Board of Directors from time to time, and no officer shall be prevented from receiving such compensation by reason of the fact that he or she is also a Director of the Corporation. 5.6 The Chairman of the Board. The Chairman of the Board shall have the powers and duties customarily and usually associated with the office of the Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. The Chairman of the Board shall preside at meetings of the stockholders and of the Board of Directors. 5.7 Vice Chairman of the Board. The Vice Chairman of the Board, if any, shall have the powers and duties customarily and usually associated with the office of the Vice Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. 5.8 Chief Executive Officer. The Chief Executive Officer shall have, subject to the supervision, direction and control of the Board of Directors, the general powers and duties of supervision, direction and management of the affairs and business of the Corporation usually vested in the chief executive officer of a corporation, including, without limitation, all powers necessary to direct and control the organizational and reporting relationships within the Corporation. In addition, the Chief Executive Officer shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. If at any time the office of the Chairman of the Board and the Vice Chairman of the Board shall not be filled, or in the event of the temporary absence or disability of the Chairman of the Board and the Vice Chairman of the Board, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board. 5.9 The President. The President shall serve as chief operating officer, shall have the powers and duties customarily and usually associated with the office of the President and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.10 The Vice Presidents. Each Vice President shall have such powers and duties customarily and usually associated with the office of Vice President and shall have such other powers and perform 7 8 such other duties as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, or the President. 5.11 The Chief Financial Officer. The Chief Financial Officer shall be responsible for the financial affairs of the Corporation, including overseeing the duties performed by the Treasurer of the Corporation. In addition, the Chief Financial Officer shall have such powers and duties customarily and usually associated with the office of the Chief Financial Officer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.12 The Secretary and the Assistant Secretary. (a) The Secretary shall attend meetings of the Board of Directors and meetings of the stockholders and record all votes and minutes of all such proceedings in a book kept for such purpose. In addition, the Secretary shall have such powers and duties customarily and usually associated with the office of Secretary and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors, the Chief Executive Officer, or the President. (b) Each Assistant Secretary shall have such powers and perform such duties customarily and usually associated with the office of Assistant Secretary and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Secretary. In case of the absence or disability of the Secretary, the Assistant Secretary designated by the Chief Executive Officer (or, in the absence of such designation, by the Secretary) shall perform the duties and exercise the powers of the Secretary. 5.13 The Treasurer and the Assistant Treasurer. (a) The Treasurer shall have custody of the Corporation's funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit or cause to be deposited moneys or other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall also maintain adequate records of all assets, liabilities, and transactions of the Corporation and shall see that adequate audits thereof are currently and regularly made. In addition, the Treasurer shall have such powers and duties customarily and usually associated with the office of Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. (b) Each Assistant Treasurer shall have such powers and perform such duties customarily and usually associated with the office of Assistant Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Treasurer. In case of the absence or disability of the Treasurer, the Assistant Treasurer designated by the Chief Executive Officer (or, in the absence of such designation, by the Treasurer) shall perform the duties and exercise the powers of the Treasurer. 5.14 Controller. The Controller shall be responsible for maintaining the accounting records and statements, and shall properly account for all monies and obligations due the Corporation and all properties, assets, and liabilities of the Corporation. The Controller shall render to the Chairman of the Board, the President or the Chief Financial Officer such periodic reports covering the results of operations of the Corporation as may be required by either of them or by law. In addition, the Controller shall have such powers and duties customarily and usually associated with the office of Controller and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. 6. STOCK 6.1 Certificates. Certificates for shares of stock of the Corporation shall be issued under the seal of the Corporation, or a facsimile thereof, and shall be numbered and shall be entered in the books of the 8 9 Corporation as they are issued. Each certificate shall bear a serial number, shall exhibit the holder's name and the number of shares evidenced thereby, and shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the Chief Executive Officer or the President or any Vice President, and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person or entity were such officer, transfer agent, or registrar at the date of issue. 6.2 Transfers. Transfers of stock of the Corporation shall be made on the books of the Corporation only upon surrender to the Corporation of a certificate (if any) for the shares duly endorsed or accompanied by proper evidence of succession, assignment, or authority to transfer, provided such succession, assignment, or transfer is not prohibited by the Certificate of Incorporation, these Bylaws, applicable law or contract. Thereupon, the Corporation shall issue a new certificate (if requested) to the person entitled thereto, cancel the old certificate (if any), and record the transaction upon its books. 6.3 Lost, Stolen, or Destroyed Certificates. Any person claiming a certificate of stock to be lost, stolen, or destroyed shall make an affidavit or an affirmation of that fact, and shall give the Corporation a bond of indemnity in satisfactory form and with one or more satisfactory sureties, whereupon a new certificate (if requested) may be issued of the same tenor and for the same number of shares as the one alleged to be lost, stolen, or destroyed. 6.4 Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares as the person entitled to exercise the rights of a stockholder and shall not be bound to recognize any equitable or other claim to or interest in any such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by the GCLD. 6.5 Additional Powers of the Board. (a) In addition to those powers set forth in Section 4.1, the Board of Directors shall have power and authority to make all such rules and regulations as it shall deem expedient concerning the issue, transfer, and registration of certificates for shares of stock of the Corporation, including the use of uncertificated shares of stock subject to the provisions of the GCLD. (b) The Board of Directors may appoint and remove transfer agents and registrars of transfers, and may require all stock certificates to bear the signature of any such transfer agent and/or any such registrar of transfers. 7. INDEMNIFICATION 7.1 Each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or the person of whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation, as a director, officer, employee, or agent of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to employee benefit plans, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the GCLD, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expenses, liability, and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of his or her heirs, executors, and administrators; provided, however, that, except as provided in this Article 7, the Corporation shall indemnify any 9 10 such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if authorized by the Board of Directors of the Corporation. Any indemnification under this Article 7 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard set forth in the GCLD. Such a determination shall be made (a) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum; (b) by a committee of such directors designated by majority vote of such directors, even though less than a quorum; (c) by independent legal counsel (compensated by the Corporation) in a written opinion; (d) by the stockholders; or (e) in any other manner permitted by the GCLD. In addition to the right to indemnification conferred in this Article 7, each of the above persons shall have the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the GCLD requires, the payment of such expenses incurred by a present director or officer in his or her capacity as a director or officer of the corporation (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such present director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Article 7 or otherwise. The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers. The right to indemnification and to an advancement of expenses conferred in this Article 7 shall be a contract right. 7.2 If a claim under Section 7.1 of this Article 7 is not paid in full by the Corporation within 30 days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim (including attorneys' fees). 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 Corporation) that the claimant has not met the standard of conduct which makes it permissible under the GCLD for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD, nor an actual determination by the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) that the claimant has not met such 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. In any suit brought by the claimant to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the claimant is not entitled to be indemnified, or to such advancement of expenses, under this Article 7 or otherwise shall be on the Corporation. 7.3 The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article 7, shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, provision of the certificate of incorporation of the Corporation, this bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. 7.4 The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee, or agent of the Corporation or another corporation, partnership, joint venture, trust, or other enterprise against any such expense, liability, or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability, or loss under the GCLD. 7.5 The Corporation may enter into an indemnity agreement with any director, officer, employee, or agent of the Corporation, or of another corporation, partnership, joint venture, trust, or other 10 11 enterprise, upon terms and conditions that the Board of Directors deems appropriate, as long as the provisions of the agreement are not impermissible under applicable law. 7.6 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.7 In case any provision in this Article 7 shall be determined at any time to be unenforceable in any respect, the other provisions shall not in any way be affected or impaired thereby, and the affected provision shall be given the fullest possible enforcement in the circumstances, it being the intention of the Corporation to afford indemnification and advancement of expenses to the persons indemnified hereby to the fullest extent permitted by law. 7.8 The Corporation may, by action of the Board of Directors, authorize one or more officers to grant rights to indemnification and advancement of expenses to former directors and officers or to other employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances. 8. MISCELLANEOUS 8.1 Place and Inspection of Books. (a) The books of the Corporation other than such books as are required by law to be kept within the State of Delaware shall be kept in such place or places either within or without the State of Delaware as the Board of Directors may from time to time determine. (b) At least ten days before each meeting of stockholders, the officer in charge of the stock ledger of the Corporation shall prepare a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. (c) The Board of Directors shall determine from time to time whether and, if allowed, when and under what conditions and regulations the accounts and books of the Corporation (except such as may be by law specifically open to inspection or as otherwise provided by these Bylaws) or any of them shall be open to the inspection of the stockholders and the stockholders' rights in respect thereof. 8.2 Voting Shares in Other Corporations. The Chief Executive Officer, the President, the Chief Financial Officer or any other officer of the Corporation designated by the Board of Directors may vote any and all shares held by the Corporation in any other corporation. 8.3 Fiscal Year. The fiscal year of the Corporation shall be such fiscal year as the Board of Directors from time to time by resolution shall determine. 8.4 Gender/Number. As used in these Bylaws, the masculine, feminine, or neuter gender, and the singular or plural number, shall each include the others whenever the context so indicates. 8.5 Paragraph Titles. The titles of the paragraphs have been inserted as a matter of reference only and shall not control or affect the meaning or construction of any of the terms and provisions hereof. 11 12 8.6 Amendment. These Bylaws may be altered, amended, or repealed by (a) the affirmative vote of 80% or more of the aggregate number of votes that the holders of the then outstanding shares of common stock and preferred stock are entitled to cast on the amendment, or (b) by resolution adopted by the affirmative vote of not less than a majority of the Directors in office, at any annual or regular meeting of the Board of Directors or at any special meeting of the Board of Directors if notice of the proposed alteration, amendment, or repeal be contained in written notice of such special meeting. Notwithstanding the foregoing, the amendment of any provision of these Bylaws that requires an affirmative vote in excess of a majority of the Directors in office shall require the affirmative vote of at least the number of directors the affirmative vote of whom is required by such provision. 8.7 Certificate of Incorporation. Notwithstanding anything to the contrary contained herein, if any provision contained in these Bylaws is inconsistent with or conflicts with a provision of the Certificate of Incorporation, such provision of these Bylaws shall be superseded by the inconsistent provision in the Certificate of Incorporation to the extent necessary to give effect to such provision in the Certificate of Incorporation. 12 EX-99.B.37.2 43 AMENDED & RESTATED BYLAWS AS AMENDED 12/31/99 1 Pedrick Gen, Inc. B.37.2 Amended and Restated Bylaws Adopted December 31, 1999 2 AMENDED AND RESTATED B Y L A W S OF PEDRICK GEN., INC. 1. OFFICES. 1.1 Offices. In addition to its registered office in the State of Delaware, the Corporation shall have a corporate office in Wilmington, Delaware, and such other offices, either within or without the State of Delaware, at such locations as the Board of Directors may from time to time determine or the business of the Corporation may require. 2. SEAL. 2.1 Seal. The Corporation shall have a seal, which shall have inscribed thereon its name and year of incorporation and the words, "Corporate Seal New Jersey." 3. MEETINGS OF STOCKHOLDERS. 3.1 Annual Meetings. The annual meeting of stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as shall be determined by the Board of Directors from time to time. 3.2 Special Meetings. Special meetings of the stockholders of the Corporation shall be held on such date, at such time and at such place within or without the State of Delaware as may be designated by the Chairman of the Board or by the Board of Directors. 3.3 Notice of Meetings. (a) Notices of meetings of stockholders shall be in writing and shall state the place, date, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which a meeting is called. No business other than that specified in the notice thereof shall be transacted at any special meeting. (b) Such notice shall either be delivered personally, mailed, postage prepaid, or delivered by any other lawful means to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. If mailed, the notice shall be directed to the stockholder at his or her address as it appears on the records of the Corporation. Delivery of any such notice to any officer of a corporation or association or to any member of a partnership shall constitute delivery of such notice to such corporation, association, or partnership. (c) Notice of any meeting of stockholders need not be given to any stockholder if waived by such stockholder in writing, whether before or after such meeting is held, or if such stockholder shall sign the minutes or attend the meeting, except that if such stockholder attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, such stockholder shall not be deemed to have waived notice of such meeting. 3.4 Adjourned Meetings. When a meeting is adjourned to another time or place, unless otherwise provided by these Bylaws, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the stockholders may transact any business that might have been transacted at the original meeting. If an adjournment 2 3 is for more than 30 days, or if after an adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting. 3.5 Quorum and Adjournment. Except as otherwise provided by law, by the Certificate of Incorporation of the Corporation, or by these Bylaws, the presence, in person or by proxy, of the holders of a majority of the aggregate voting power of the stock issued and outstanding, entitled to vote thereat, shall constitute a quorum for the transaction of business at all meetings of stockholders. If such majority shall not be present or represented at any meeting of stockholders, the stockholders present, although less than a quorum, shall have the power to adjourn the meeting. 3.6 Vote Required. Except as otherwise provided by law or by the Certificate of Incorporation: (a) Directors shall be elected by a plurality of the votes present in person or represented by proxy at a meeting of stockholders and entitled to vote in the election of directors, and (b) whenever any corporate action other than the election of Directors is to be taken, it shall be authorized by a majority in voting power of the shares present in person or by proxy at a meeting of stockholders and entitled to vote on the subject matter. 3.7 Manner of Voting. At each meeting of stockholders, each stockholder having the right to vote shall be entitled to vote in person or by proxy. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed before being voted. Each stockholder shall be entitled to vote each share of stock having voting power registered in his or her name on the books of the Corporation on the record date fixed for determination of stockholders entitled to vote at such meeting. 3.8 Stockholder Action Without a Meeting. Except as otherwise provided by law or by the Certificate of Incorporation, any action required to be taken at any meeting of stockholders of the corporation, or any action that may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice, and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of the holders to take the action were delivered to the Corporation. 3.9 Proxies. (a) At any meeting of stockholders, any stockholder may be represented and vote by proxy or proxies. In the event that any form of proxy shall designate two or more persons to act as proxies, a majority of such persons present at the meeting or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by the form of proxy upon all of the persons so designated unless the form of proxy shall otherwise provide. (b) The Board of Directors may, in advance of any annual or special meeting of the stockholders, prescribe additional regulations concerning the validation of the same, which are intended to be voted at any such meeting. 3.10 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the stockholders. In the absence of the Chairman of the Board, the Vice Chairman of the Board or, in his or her absence, any Director designated by the Chairman of the Board or the Board of Directors shall act as chairman of the meeting. 3 4 The Secretary of the Corporation shall act as secretary of all meetings of the stockholders, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the stockholders, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 3.11 Procedure. At each meeting of stockholders, the chairman of the meeting shall fix and announce the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at the meeting and shall determine the order of business and all other matters of procedure. Except to the extent inconsistent with any such rules and regulations as adopted by the Board of Directors, the chairman of the meeting may establish rules, which need not be in writing, to maintain order and safety and for the conduct of the meeting. Without limiting the foregoing, he or she may: (a) restrict attendance at any time to bona fide stockholders of record and their proxies and other persons in attendance at the invitation of the chairman; (b) restrict dissemination of solicitation materials and use of audio or visual recording devices at the meeting; (c) adjourn the meeting without a vote of the stockholders, whether or not there is a quorum present; and (d) make rules governing speeches and debate, including time limits and access to microphones. The chairman of the meeting shall be entitled to act in his or her absolute discretion and his or her rulings shall not be subject to appeal. 4. DIRECTORS. 4.1 Powers and Number. The Board of Directors shall exercise all of the powers of the Corporation except such as are by law, or by the Certificate of Incorporation of this Corporation or by these Bylaws conferred upon or reserved to the stockholders of any class or classes. The number of directors that shall constitute the whole Board of Directors shall be no fewer than three (3) and no greater than nine (9), the exact number of directors to be determined from time to time by resolution adopted by the Board of Directors or the stockholders, and until otherwise determined by the Board of Directors or the stockholders, the number of directors that shall constitute the whole Board of Directors shall be three (3). 4.2 Resignations. Any Director may resign at any time by giving written notice to the Board of Directors or the Secretary. Such resignation shall take effect at the date of receipt of such notice or at any later time specified therein. Acceptance of such resignation shall not be necessary to make it effective. 4.3 Presiding Officer and Secretary. The Chairman of the Board shall act as chairman of all meetings of the Board of Directors. In the absence of the Chairman of the Board, the Vice Chairman of the Board, or in his absence, the Chief Executive Officer or other person designated by the Board of Directors shall act as chairman of the meeting. The Secretary of the Corporation shall act as secretary of all meetings of the Board of Directors, but, in the absence of the Secretary, the Assistant Secretary designated in accordance with Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the Board of Directors, but in the absence of a designated Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting. 4 5 4.4 Annual Meetings. The Board of Directors shall meet each year immediately following the annual meeting of stockholders, at the place where such meeting of stockholders has been held, or at such other place as shall be fixed by the person presiding over the meeting of the stockholders, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. In the event that in any year Directors are elected by written consent in lieu of an annual meeting of stockholders, the Board of Directors shall meet in such year as soon as practicable after receipt of such written consent by the Corporation at such time and place as shall be fixed by the Chairman of the Board, for the purpose of election of officers and consideration of such other business as the Board of Directors considers relevant to the management of the Corporation. 4.5 Regular Meetings. Regular meetings of the Board of Directors shall be held on such dates and at such times and places, within or without the state of Delaware, as shall from time to time be determined by the Board of Directors. In the absence of any such determination, such meetings shall be held at such times and places, within or without the State of Delaware, as shall be designated by the Chairman of the Board on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex or by electronic mail or by other electronic means, or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. 4.6 Special Meetings. Special meetings of the Board of Directors shall be held at the call of the Chairman of the Board at such times and places, within or without the State of Delaware, as he or she shall designate, on not less than twelve hours notice to each Director, given verbally, in writing or electronically, whether personally, by telephone (including by message or recording device), by facsimile transmission, by telegram, by telex, by electronic mail or by other electronic means or on not less than three (3) calendar days' notice to each Director given by mail. Notice given by any of the foregoing means shall be sufficient to constitute notice of a meeting without the necessity of further notice. Special meetings shall be called by the Secretary on like notice at the written request of a majority of the Directors then in office. 4.7 Quorum and Powers of a Majority. At all meetings of the Board of Directors and of each committee thereof, a majority of the members shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which a quorum is present shall be the act of the Board of Directors or such committee, unless by express provision of law, of the Certificate of Incorporation, or of these Bylaws, a different vote is required, in which case such express provision shall govern and control. In the absence of a quorum, a majority of the members present at any meeting may, without notice other than announcement at the meeting, adjourn such meeting from time to time until a quorum is present. 4.8 Waiver of Notice. Notice of any meeting of the Board of Directors, or any committee thereof, need not be given to any member if waived by him or her in writing, whether before or after such meeting is held, or if he or she shall sign the minutes or attend the meeting, except that if such Director attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, then such Director shall not be deemed to have waived notice of such meeting. 4.9 Manner of Acting. (a) Members of the Board of Directors, or any committee thereof, may participate in any meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating therein can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting. (b) Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board of Directors or 5 6 such committee, as the case may be, consent thereto in writing, and the writings are filed with the minutes of proceedings of the Board of Directors or such committee. 4.10 Compensation. (a) The Board of Directors, by a resolution or resolutions, may fix, and from time to time change, the compensation of Directors. (b) Each Director shall be entitled to reimbursement from the Corporation for his or her reasonable expenses incurred with respect to duties as a member of the Board of Directors or any committee thereof. (c) Nothing contained in these Bylaws shall be construed to preclude any Director from serving the Corporation in any other capacity and from receiving compensation from the Corporation for service rendered to it in such other capacity. 4.11 Committees. The Board of Directors (or any committee thereof having the power and authority to do so) may designate one or more committees, each committee to consist of one or more Directors, which to the extent provided in said resolution or resolutions shall have and may exercise the powers and authority of the Board of Directors in the management of the business and affairs of the corporation; provided, however, that no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the General Corporation Law of Delaware (the "GCLD") to be submitted to stockholders for approval or (ii) adopting, amending, or repealing any bylaw of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting of such committee and not disqualified from voting, whether or not such member of members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of such absent or disqualified director. 4.12 Committee Procedure, Limitations of Committee Powers. (a) Except as otherwise provided by these Bylaws, each committee shall adopt its own rules governing the time, place and method of holding its meetings and the conduct of its proceedings and shall meet as provided by such rules or by resolution of the Board of Directors. Unless otherwise provided by these Bylaws or any such rules or resolutions, notice of the time and place of each meeting of a committee shall be given to each member of such committee as provided in Section 4.6 of these Bylaws with respect to notices of special meetings of the Board of Directors. (b) Each committee shall keep regular minutes of its proceedings and report the same to the Board of Directors when required. (c) Any member of any committee may be removed from such committee either with or without cause, at any time, by the Board of Directors at any meeting thereof. Any vacancy in any committee shall be filled by the Board of Directors in the manner prescribed by the Certificate of Incorporation or these Bylaws for the original appointment of the members of such committee. 5. OFFICERS. 5.1 Number. (a) The officers of the Corporation shall include a Chief Executive Officer, a President, one or more Vice Presidents (including one or more Executive Vice Presidents and one or more Senior Vice Presidents if deemed appropriate by the Board of Directors), a Chief Financial Officer, a Secretary, a Treasurer, and a Controller. The Board of Directors shall also elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except for the Chairman of the Board, the Vice Chairman of the Board, and the Chief Executive Officer, none of the officers of the Corporation needs to be a director of the Corporation. Any two or more offices may be held by the same person to the extent permitted by the GCLD. 6 7 (b) The Chief Executive Officer shall have the power to appoint one or more employees of the Corporation as divisional or departmental vice presidents and fix the duties of such appointees. However, no such divisional or departmental vice president shall be considered as an officer of the Corporation. 5.2 Election of Officers, Qualification and Term. The Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President, the Chief Financial Officer, the Secretary and the Treasurer of the Corporation shall be elected from time to time by the Board of Directors and, except as may otherwise be expressly provided in a contract of employment duly authorized by the Board of Directors, shall hold office at the pleasure of the Board of Directors. The Board of Directors and the Chief Executive Officer also may elect such other officers as the Board of Directors or the Chief Executive Officer may from time to time deem appropriate or necessary. 5.3 Removal. Any officer elected by the Board of Directors may be removed, either with or without cause, by the Board of Directors at any meeting thereof, or to the extent delegated to the Chairman of the Board or the Chief Executive Officer, by the Chairman of the Board or the Chief Executive Officer. 5.4 Resignations. Any officer of the Corporation may resign at any time by giving written notice to the Board of Directors or to the Chairman of the Board or to the Chief Executive Officer. Such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 5.5 Compensation. The compensation of all officers of the Corporation shall be fixed by or in the manner provided by the Board of Directors from time to time, and no officer shall be prevented from receiving such compensation by reason of the fact that he or she is also a Director of the Corporation. 5.6 The Chairman of the Board. The Chairman of the Board shall have the powers and duties customarily and usually associated with the office of the Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. The Chairman of the Board shall preside at meetings of the stockholders and of the Board of Directors. 5.7 Vice Chairman of the Board. The Vice Chairman of the Board, if any, shall have the powers and duties customarily and usually associated with the office of the Vice Chairman of the Board and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. 5.8 Chief Executive Officer. The Chief Executive Officer shall have, subject to the supervision, direction and control of the Board of Directors, the general powers and duties of supervision, direction and management of the affairs and business of the Corporation usually vested in the chief executive officer of a corporation, including, without limitation, all powers necessary to direct and control the organizational and reporting relationships within the Corporation. In addition, the Chief Executive Officer shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors. If at any time the office of the Chairman of the Board and the Vice Chairman of the Board shall not be filled, or in the event of the temporary absence or disability of the Chairman of the Board and the Vice Chairman of the Board, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board. 5.9 The President. The President shall serve as chief operating officer, shall have the powers and duties customarily and usually associated with the office of the President and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.10 The Vice Presidents. Each Vice President shall have such powers and duties customarily and usually associated with the office of Vice President and shall have such other powers and perform 7 8 such other duties as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, or the President. 5.11 The Chief Financial Officer. The Chief Financial Officer shall be responsible for the financial affairs of the Corporation, including overseeing the duties performed by the Treasurer of the Corporation. In addition, the Chief Financial Officer shall have such powers and duties customarily and usually associated with the office of the Chief Financial Officer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chief Executive Officer. 5.12 The Secretary and the Assistant Secretary. (a) The Secretary shall attend meetings of the Board of Directors and meetings of the stockholders and record all votes and minutes of all such proceedings in a book kept for such purpose. In addition, the Secretary shall have such powers and duties customarily and usually associated with the office of Secretary and shall have such other powers and perform such other duties as may be delegated to him or her by the Board of Directors, the Chief Executive Officer, or the President. (b) Each Assistant Secretary shall have such powers and perform such duties customarily and usually associated with the office of Assistant Secretary and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Secretary. In case of the absence or disability of the Secretary, the Assistant Secretary designated by the Chief Executive Officer (or, in the absence of such designation, by the Secretary) shall perform the duties and exercise the powers of the Secretary. 5.13 The Treasurer and the Assistant Treasurer. (a) The Treasurer shall have custody of the Corporation's funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit or cause to be deposited moneys or other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall also maintain adequate records of all assets, liabilities, and transactions of the Corporation and shall see that adequate audits thereof are currently and regularly made. In addition, the Treasurer shall have such powers and duties customarily and usually associated with the office of Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. (b) Each Assistant Treasurer shall have such powers and perform such duties customarily and usually associated with the office of Assistant Treasurer and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President, or the Treasurer. In case of the absence or disability of the Treasurer, the Assistant Treasurer designated by the Chief Executive Officer (or, in the absence of such designation, by the Treasurer) shall perform the duties and exercise the powers of the Treasurer. 5.14 Controller. The Controller shall be responsible for maintaining the accounting records and statements, and shall properly account for all monies and obligations due the Corporation and all properties, assets, and liabilities of the Corporation. The Controller shall render to the Chairman of the Board, the President or the Chief Financial Officer such periodic reports covering the results of operations of the Corporation as may be required by either of them or by law. In addition, the Controller shall have such powers and duties customarily and usually associated with the office of Controller and shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors, the Chief Executive Officer, the President or the Chief Financial Officer. 6. STOCK 6.1 Certificates. Certificates for shares of stock of the Corporation shall be issued under the seal of the Corporation, or a facsimile thereof, and shall be numbered and shall be entered in the books of the 8 9 Corporation as they are issued. Each certificate shall bear a serial number, shall exhibit the holder's name and the number of shares evidenced thereby, and shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the Chief Executive Officer or the President or any Vice President, and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person or entity were such officer, transfer agent, or registrar at the date of issue. 6.2 Transfers. Transfers of stock of the Corporation shall be made on the books of the Corporation only upon surrender to the Corporation of a certificate (if any) for the shares duly endorsed or accompanied by proper evidence of succession, assignment, or authority to transfer, provided such succession, assignment, or transfer is not prohibited by the Certificate of Incorporation, these Bylaws, applicable law or contract. Thereupon, the Corporation shall issue a new certificate (if requested) to the person entitled thereto, cancel the old certificate (if any), and record the transaction upon its books. 6.3 Lost, Stolen, or Destroyed Certificates. Any person claiming a certificate of stock to be lost, stolen, or destroyed shall make an affidavit or an affirmation of that fact, and shall give the Corporation a bond of indemnity in satisfactory form and with one or more satisfactory sureties, whereupon a new certificate (if requested) may be issued of the same tenor and for the same number of shares as the one alleged to be lost, stolen, or destroyed. 6.4 Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares as the person entitled to exercise the rights of a stockholder and shall not be bound to recognize any equitable or other claim to or interest in any such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by the GCLD. 6.5 Additional Powers of the Board. (a) In addition to those powers set forth in Section 4.1, the Board of Directors shall have power and authority to make all such rules and regulations as it shall deem expedient concerning the issue, transfer, and registration of certificates for shares of stock of the Corporation, including the use of uncertificated shares of stock subject to the provisions of the GCLD. (b) The Board of Directors may appoint and remove transfer agents and registrars of transfers, and may require all stock certificates to bear the signature of any such transfer agent and/or any such registrar of transfers. 7. INDEMNIFICATION 7.1 Each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or the person of whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation, as a director, officer, employee, or agent of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to employee benefit plans, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the GCLD, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expenses, liability, and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of his or her heirs, executors, and administrators; provided, however, that, except as provided in this Article 7, the Corporation shall indemnify any 9 10 such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if authorized by the Board of Directors of the Corporation. Any indemnification under this Article 7 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard set forth in the GCLD. Such a determination shall be made (a) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum; (b) by a committee of such directors designated by majority vote of such directors, even though less than a quorum; (c) by independent legal counsel (compensated by the Corporation) in a written opinion; (d) by the stockholders; or (e) in any other manner permitted by the GCLD. In addition to the right to indemnification conferred in this Article 7, each of the above persons shall have the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the GCLD requires, the payment of such expenses incurred by a present director or officer in his or her capacity as a director or officer of the corporation (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such present director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Article 7 or otherwise. The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers. The right to indemnification and to an advancement of expenses conferred in this Article 7 shall be a contract right. 7.2 If a claim under Section 7.1 of this Article 7 is not paid in full by the Corporation within 30 days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim (including attorneys' fees). 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 Corporation) that the claimant has not met the standard of conduct which makes it permissible under the GCLD for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD, nor an actual determination by the Corporation (including its Board of Directors, a committee thereof, independent legal counsel, or its stockholders) that the claimant has not met such 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. In any suit brought by the claimant to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the claimant is not entitled to be indemnified, or to such advancement of expenses, under this Article 7 or otherwise shall be on the Corporation. 7.3 The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article 7, shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, provision of the certificate of incorporation of the Corporation, this bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. 7.4 The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee, or agent of the Corporation or another corporation, partnership, joint venture, trust, or other enterprise against any such expense, liability, or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability, or loss under the GCLD. 7.5 The Corporation may enter into an indemnity agreement with any director, officer, employee, or agent of the Corporation, or of another corporation, partnership, joint venture, trust, or other 10 11 enterprise, upon terms and conditions that the Board of Directors deems appropriate, as long as the provisions of the agreement are not impermissible under applicable law. 7.6 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.7 In case any provision in this Article 7 shall be determined at any time to be unenforceable in any respect, the other provisions shall not in any way be affected or impaired thereby, and the affected provision shall be given the fullest possible enforcement in the circumstances, it being the intention of the Corporation to afford indemnification and advancement of expenses to the persons indemnified hereby to the fullest extent permitted by law. 7.8 The Corporation may, by action of the Board of Directors, authorize one or more officers to grant rights to indemnification and advancement of expenses to former directors and officers or to other employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances. 8. MISCELLANEOUS 8.1 Place and Inspection of Books. (a) The books of the Corporation other than such books as are required by law to be kept within the State of Delaware shall be kept in such place or places either within or without the State of Delaware as the Board of Directors may from time to time determine. (b) At least ten days before each meeting of stockholders, the officer in charge of the stock ledger of the Corporation shall prepare a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. (c) The Board of Directors shall determine from time to time whether and, if allowed, when and under what conditions and regulations the accounts and books of the Corporation (except such as may be by law specifically open to inspection or as otherwise provided by these Bylaws) or any of them shall be open to the inspection of the stockholders and the stockholders' rights in respect thereof. 8.2 Voting Shares in Other Corporations. The Chief Executive Officer, the President, the Chief Financial Officer or any other officer of the Corporation designated by the Board of Directors may vote any and all shares held by the Corporation in any other corporation. 8.3 Fiscal Year. The fiscal year of the Corporation shall be such fiscal year as the Board of Directors from time to time by resolution shall determine. 8.4 Gender/Number. As used in these Bylaws, the masculine, feminine, or neuter gender, and the singular or plural number, shall each include the others whenever the context so indicates. 8.5 Paragraph Titles. The titles of the paragraphs have been inserted as a matter of reference only and shall not control or affect the meaning or construction of any of the terms and provisions hereof. 11 12 8.6 Amendment. These Bylaws may be altered, amended, or repealed by (a) the affirmative vote of 80% or more of the aggregate number of votes that the holders of the then outstanding shares of common stock and preferred stock are entitled to cast on the amendment, or (b) by resolution adopted by the affirmative vote of not less than a majority of the Directors in office, at any annual or regular meeting of the Board of Directors or at any special meeting of the Board of Directors if notice of the proposed alteration, amendment, or repeal be contained in written notice of such special meeting. Notwithstanding the foregoing, the amendment of any provision of these Bylaws that requires an affirmative vote in excess of a majority of the Directors in office shall require the affirmative vote of at least the number of directors the affirmative vote of whom is required by such provision. 8.7 Certificate of Incorporation. Notwithstanding anything to the contrary contained herein, if any provision contained in these Bylaws is inconsistent with or conflicts with a provision of the Certificate of Incorporation, such provision of these Bylaws shall be superseded by the inconsistent provision in the Certificate of Incorporation to the extent necessary to give effect to such provision in the Certificate of Incorporation. 12 -----END PRIVACY-ENHANCED MESSAGE-----