-----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, KVPd1Y1flzJfYdh+wJcwabU0wtSrp+Iep31wGrwFqK8ox9SIIEB6e+OyfGae54Bs Ijl5YbMMAyhUGPBtOt/S4A== 0000893220-02-000483.txt : 20020422 0000893220-02-000483.hdr.sgml : 20020422 ACCESSION NUMBER: 0000893220-02-000483 CONFORMED SUBMISSION TYPE: U5S PUBLIC DOCUMENT COUNT: 38 CONFORMED PERIOD OF REPORT: 20011231 FILED AS OF DATE: 20020422 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: 1935 Act SEC FILE NUMBER: 030-00304 FILM NUMBER: 02616574 BUSINESS ADDRESS: STREET 1: 800 KING ST STREET 2: 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 w59746u5s.txt CONECTIV FORM U5S FOR THE YEAR 2001 As filed with the Securities and Exchange Commission on April 22, 2002 CONECTIV --------------- FORM U5S ANNUAL REPORT TO SECURITIES AND EXCHANGE COMMISSION --------------- FOR THE YEAR 2001 TABLE OF CONTENTS
ITEM PAGE REF. - ---- ---------- 1 System Companies and Investments Therein as of December 31, 2001 1 2 Acquisitions or Sales of Utility Assets 2 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 29 8 Service, Sales and Construction Contracts 30 9 Wholesale Generators and Foreign Utility Companies 30 10 Financial Statements and Exhibits 32 Consolidating Financial Statements F-1 to F-4 Selected Financial Information for Companies Accounted For by the Equity Method F-5 Signature of Registrant's Officer 34 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 Organizational Chart of Exempt Wholesale Generators or Foreign Utility Holding Companies G Financial Statements Regarding Exempt Wholesale Generators or Foreign Utility Holding Companies H
ITEM 1. SYSTEM COMPANIES AND INVESTMENT THEREIN AS OF DECEMBER 31, 2001
NUMBER OF % OF OWNER'S COMMON SHARES VOTING ISSUER BOOK BOOK VALUE NAME OF COMPANY OWNED POWER VALUE ($000) ($000) - ----------------------------------------------------------------------------------------------------------------------------------- CONECTIV (Conectiv or Company) (a) Atlantic City Electric Company (ACE) 18,320,937 100 621,309 621,309 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 City Electric Company Transition Funding LLC (ACETF)* (b) N/A 100 N/A N/A Atlantic Generation, Inc. (AGI) (c) 100 100 793 793 Binghamton General, Inc. (BING GEN) 100 100 239 239 Binghamton Limited, Inc. (BING LTD) 100 100 415 415 Pedrick Gen., Inc. (PED GEN) 100 100 9,553 9,553 Vineland General, Inc. (VIN GEN) 100 100 294 294 Vineland Ltd., Inc. (VIN LTD) 100 100 2,910 2,910 Atlantic Southern Properties, Inc. (ASP) 100 100 (525) (525) Conectiv Communications, Inc. (CCI) (d) 433 100 42,230 42,230 Conectiv Energy Holding Company (CEH) 1,000 100 566,108 566,108 ACE REIT, Inc. (ACE REIT) 1,000 100 99,531 99,531 Conectiv Atlantic Generation, L.L.C. (CAG) N/A 100 99,419 99,419 Conectiv Bethlehem, Inc. (CBI) (e)** 1,000 100 (128) (128) Conectiv Energy Supply, Inc. (CESI) 1,000 100 (28,309) (28,309) Conectiv Operating Services Company (COSC) 1,000 100 12,877 12,877 Conectiv Delmarva Generation, Inc. (CDG) 1,000 100 433,133 433,133 Conectiv Mid-Merit, Inc. (CMM)** 1,000 100 (3,193) (3,193) Energy Systems North East, L.L.C. (ESNE) (f)** N/A 50 1,645 823 Conectiv Properties and Investments, Inc. (CPI) (g) 1,000 100 22,541 22,541 DCI I, Inc. (DCI I) 1,000 100 5,740 5,740 DCI II, Inc. (DCI II) 1,000 100 13,150 13,150 DCTC-Burney, Inc. (Burney) (h) 1,000 100 11,636 11,636 Conectiv Resource Partners, Inc. (CRP) 1,000 100 38 38 Conectiv Solutions, LLC (Solutions) N/A 100 37,224 37,224 ATE Investment, Inc. (ATE) (i) (j) 100 100 15,717 15,717 King Street Assurance Ltd. (KSA) (k) 120,000 100 71,551 71,551 VitalServicesHome.com, L.L.C. (Vital Services)* N/A 38.5254 -- -- Millenium Account Services, LLC (MAS) N/A 50 1,674 837 Conectiv Services, Inc. (CSI) 1,000 100 13,864 13,864 Conectiv Plumbing LLC (Plumbing)* 1,000 100 -- -- Conectiv Thermal Systems, Inc. (CTS) 100 100 1,828 1,828 Atlantic Jersey Thermal Systems, Inc. (AJTS) 100 100 114 114 ATS Operating Services, Inc. (ATS) 50 100 0 0 Thermal Energy Limited Partnership (TELP)(l) N/A 100 7,047 7,047 Delmarva Power & Light Company (Delmarva or DPL) 1,000 100 578,278 578,278 Delmarva Financing I (DPL Financing) N/A 100 2,165 2,165
* Inactive company ** Exempt Wholesale Generator (1) ITEM 1. Continued. NOTES ($ in Thousands): (a) Conectiv owns 106,811 shares of common stock of SciQuest, a corporation that helps pharmaceutical companies manage reagent and compound inventories. As of December 31, 2001, the book value was $180. 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, 2001, the book value was $1,066. In addition, Conectiv owns 89,837 shares of Internet Capital Group, a Delaware corporation involved in internet commerce. As of December 31, 2001, the book value was $108. Conectiv also owns 19,398 shares of Adolor Corp., a development stage pharmaceutical company, the book value at December 31, 2001 was $348. (b) ACETF, a Delaware limited liability company, is a financing subsidiary of ACE established to issue securitization securities. It is currently inactive. (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, 2001, the book value was $4,138. (d) CCI's common stock issued consists of 100 shares of common stock and 333 shares of Class B common stock. CCI is owned 60% by Conectiv and 40% by Solutions. (e) CBI, a Delaware corporation, is a direct subsidiary of CEH established to construct a mid-merit generation plant in Bethlehem, PA. (f) ESNE, a direct subsidiary of CMM, holds a 50% interest in an EWG project located in North East, PA. (g) CPI 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, 2001, was $1,779. CPI 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, 2001, was $2,013. (h) 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 ("BFP"). BFP 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, 2001, was $3,536. (i) ATE is owned 85% by Solutions and 15% by AGI. (j) 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, 2001, the book value was $240. (k) KSA owns a 94% limited partnership interest in EnerTech Capital Partners L.P. (Enertech), a limited partnership that invests in and supports a variety of energy technology growth companies. The book value as of December 31, 2001 was $8,861. At December 31, 2001, KSA held an approximate 11% limited partnership interest in EnerTech Capital Partners II L.P. (Enertech II), a limited partnership that invests in and supports a variety of energy technology growth companies. The book value as of December 31, 2001 was $5,465. As of December 31, 2001, KSA owned 291,584 shares of Pacwest, a California corporation involved in the telecommunications industry. The book value at December 31, 2001 was $160. In addition, KSA owns 790,838 shares of (2) Capstone Turbine Corporation, a company that designs, develops, assembles and sells Microturbines. The book value was $4,278 at December 31, 2001. (l) TELP is owned by CTS (99%), as limited partner, and by AJTS (1%), as general partner. ITEM 2. ACQUISITIONS OR SALES OF UTILITY ASSETS
Item Acquisition or Sale Acquirer/Seller Consideration Exemption - -------------------------------------------------------------------------------------------------------------------------------- Indian River Generation Station and Vienna Sale Delmarva $ 508,500,000 Section 32(c) Generation Station - -------------------------------------------------------------------------------------------------------------------------------- Interests in Salem, Peach Bottom and Hope Creek Sale ACE $8,750,000 (1) Section 32(c) Nuclear Power Plants (1) Total consideration was $11,300,000. $2,550,000 was reported in a certificate pursuant to Rule 24.
(3) Item 3. ISSUE, SALE, PLEDGE, GUARANTEE OR ASSUMPTION OF SYSTEM SECURITIES DURING 2001
Principal Amount or Stated Value ------------ Name of Company Issuing, Selling, Pledged, Name of Issuer Pledging Issued and Guaranteed, and Guaranteeing, or Sold or Assumed Date of Proceeds Commission Title of Issue Assuming Securities ($000) ($000) Transaction ($000) Authorization -------------- ------------------- ---------- ---------- ----------- -------- -------------- DPL Gas Facilities Refunding Revenue Bonds DPL 20,000 5/10/01 20,000 Rule 52 Gas Facilities Refunding Revenue Bonds DPL 4,500 5/10/01 4,500 Rule 52 Pollution Control Refunding Revenue Bonds DPL 34,500 5/1/01 34,500 Rule 52 ACE Commercial Paper ACE 44,950 12/31/01 44,950 Rule 52 Various Surety Bonds Various 56,622 12/31/01 N/A Rule 45
The above do not include issuances of system companies that 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 or quarterly reporting on Form U-6B-2 or Form U-9C-3. (4) Item 4. ACQUISITION, REDEMPTION OR RETIREMENT OF SYSTEM SECURITIES DURING 2001
Company Principal Extinguishment Acquiring Amount (E) Redeeming or Redeemed and or Held Name of Issuer and Retiring Retired Date of Consideration for further Commission Title of Issue Securities ($000) Transaction ($000) Disposition (D) Authorization -------------- ----------------- ------------ ----------- ------------- --------------- ------------- 7.30% TE - Gas Facilities DPL 20,000 07/02/01 20,400 E Rule 42 7.15% TE - Pollution Control DPL 34,500 07/02/01 35,190 E Rule 42 7.15% TE - Gas Facilities DPL 4,500 07/02/01 4,590 E Rule 42 8.50% FMB DPL 22,500 07/18/01 23,893 E Rule 42 8.15% FMB DPL 34,000 07/18/01 36,665 E Rule 42 6.40% FMB DPL 5,000 07/18/01 5,145 E Rule 42 7.54% MTN C DPL 15,700 07/18/01 16,333 E Rule 42 7.72%MTN C DPL 20,000 07/18/01 21,240 E Rule 42 7.62% MTN C DPL 4,000 07/18/01 4,172 E Rule 42 7.55% MTN C DPL 4,000 07/18/01 4,146 E Rule 42 8.30% MTN A DPL 30,500 07/18/01 33,058 E Rule 42 6.81% MTN C DPL 29,000 07/19/01 28,405 E Rule 42 7.56% MTN C DPL 3,000 07/20/01 3,124 E Rule 42 6.84% MTN C DPL 10,000 07/20/01 10,400 E Rule 42 9.875% MTN A DPL 5,000 07/25/01 5,292 E Rule 42 9.95% MTN A DPL 17,500 07/25/01 18,545 E Rule 42 9.875% MTN A DPL 1,000 07/25/01 1,059 E Rule 42 9.90% MTN A DPL 1,500 07/25/01 1,589 E Rule 42 9.95% MTN A DPL 7,000 07/25/01 7,418 E Rule 42 9.875% MTN A DPL 14,000 07/25/01 14,771 E Rule 42 7.06% MTN C DPL 10,000 08/01/01 10,554 E Rule 42 7.11% MTN C DPL 10,000 08/14/01 10,618 E Rule 42 5.50% Adjustable Rate Pfd. DPL 10,200 08/14/01 10,124 E Rule 42 5.50% Adjustable Rate Pfd. DPL 2,885 08/14/01 2,770 E Rule 42 5.50% Adjustable Rate Pfd. DPL 1,785 09/28/01 1,767 E Rule 42 N/A Auction Preferred, A DPL 45,000 09/06/01 45,000 E Rule 42 7.06% MTN C DPL 10,000 09/20/01 10,959 E Rule 42 8.96% MTN A DPL 3,000 11/06/01 3,134 E Rule 42 8.96% MTN A DPL 12,000 11/06/01 12,538 E Rule 42 7.25% TE-Pollution Control DPL 550 12/01/01 550 E Rule 42 7.0% MTN C ACE 10,000 5/15/01 10,000 E Rule 42 6.81% MTN C ACE 30,000 8/1/01 30,000 E Rule 42 6.38% TE-Pollution Control ACE 75,000 12/3/01 75,000 E Rule 42
(5)
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 -------------- ------------------- ---------------- ----------- ------------- ------------------- ------------- Preferred Stock ACE 115,000 5/1/01 11,500 E Rule 42
(6) Item 5. INVESTMENTS IN SECURITIES OF NONSYSTEM COMPANIES The aggregate amount of investments at December 31, 2001, 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) (2) (2) Retail Company Securities DPL (1) (2) (2) 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 (2) All remaining shares held by ACE and DPL are considered worthless. (7) ITEM 6. OFFICERS AND DIRECTORS Part I. Names, principal business address and positions held as of December 31, 2001 The names and positions held as of December 31, 2001 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 CIO - Chief Information 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 VP - Vice President (8) Item 6, Part 1 Continued
ACE REIT ATE ACE AGI --------- --------- ------- --------- Arturo F. Agra VP,AT,AS VP,AT,AS VP,AT,AS John Bagnell AS Frank Balotti Roberta S. Brown Robert D. Burris Donald E. Cain Denis M. Canty Skip M. Castaldi VP Peter F. Clark VP,S,GC,D VP,S,GC,D VP,S,GC VP,S,GC,D Nina J. Clements AS AS AS AS Howard E. Cosgrove CB,CEO,D CB,CEO,D CB,D CB,CEO,D Diana C. DeAngelis AS AS AS AS Audrey K. Doberstein David J. Doyle Stacey L. Evans Carl Fogler
AJTS ASP ATS BING GEN BING LTD CONECTIV CAG --------- --------- --------- --------- --------- -------- --------- Arturo F. Agra VP,AT,AS VP,AT,AS VP,AT,AS VP,AT,AS VP,AT,AS John Bagnell Frank Balotti D Roberta S. Brown VP VP Robert D. Burris D Donald E. Cain VP Denis M. Canty VP Skip M. Castaldi VP Peter F. Clark VP,S,GC,D VP,S,GC,D VP,S,GC,D VP,S,GC,D VP,S,GC,D VP,S,GC VP,S,GC,D Nina J. Clements AS AS AS AS AS AS AS Howard E. Cosgrove CB,CEO,D CB,CEO,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 AS Audrey K. Doberstein D David J. Doyle Stacey L. Evans Carl Fogler VP
(9) Item 6, Part 1 Continued
CBI CCI CDG CEH CESI --------- --------- ------- --------- --------- Arturo F. Agra VP,AT,AS VP,AT,AS VP,AT,AS John Bagnell Frank Balotti Roberta S. Brown VP VP Robert D. Burris Donald E. Cain Denis M. Canty Skip M. Castaldi Peter F. Clark VP,S,GC,D VP,S,GC,D VP,S,GC,D VP,S,GC,D Nina J. Clements AS AS AS AS Howard E. Cosgrove CB,CEO,D CB,CEO,D CB,CEO,D CB,CEO,D Diana C. DeAngelis AS AS AS AS Audrey K. Doberstein David J. Doyle Stacey L. Evans AS Carl Fogler
CMM COSC CPI CRP CSI --------- --------- --------- --------- --------- Arturo F. Agra VP,AT,AS VP,AT,AS John Bagnell Frank Balotti Roberta S. Brown VP Robert D. Burris Donald E. Cain VP Denis M. Canty Skip M. Castaldi Peter F. Clark VP,S,GC,D VP,S,GC,D VP,S,GC,D VP,S,GC VP,S,GC,D Nina J. Clements AS AS AS AS AS Howard E. Cosgrove CB,CEO,D CB,CEO,D CB,CEO,D CB,CEO,D CB,CEO,D Diana C. DeAngelis AS AS AS AS AS Audrey K. Doberstein David J. Doyle Stacey L. Evans Carl Fogler
(10) Item 6, Part 1 Continued
SOLUTIONS CTS DCI I DCI II BURNEY --------- --------- --------- --------- --------- Arturo F. Agra VP,AT,AS VP,AT,AS VP,AT,AS John Bagnell Frank Balotti Roberta S. Brown Robert D. Burris Donald E. Cain Denis M. Canty Skip M. Castaldi Peter F. Clark VP,S,GC,D VP,S,GC,D VP,S,GC,D VP,S,GC,D VP,S,GC,D Nina J. Clements AS AS AS AS Howard E. Cosgrove CB,CEO,D CB,CEO,D CB,CEO,D CB,CEO,D CB,CEO,D Diana C. DeAngelis AS AS AS AS AS Audrey K. Doberstein David J. Doyle Stacey L. Evans Carl Fogler VP
DPL KSA PED GEN VIN GEN VIN LTD -------- -------- --------- --------- --------- Arturo F. Agra VP,AT,AS VP,AT,AS VP,AT,AS John Bagnell Frank Balotti Roberta S. Brown VP Robert D. Burris Donald E. Cain Denis M. Canty Skip M. Castaldi Peter F. Clark VP,S,GC, AS,D VP,S,GC,D VP,S,GC,D VP,S,GC,D Nina J. Clements AS AS AS AS AS Howard E. Cosgrove CB,CEO,D CB,CEO,D CB,CEO,D CB,CEO,D CB,CEO,D Diana C. DeAngelis AS AS AS AS AS Audrey K. Doberstein David J. Doyle D Stacey L. Evans Carl Fogler
(11) Item 6, Part 1 Continued
ACE REIT ATE ACE AGI AJTS -------- ------- ------ ------- ------- Robert Gabbard Sarah I. Gore Barbara S. Graham SVP, CIO SVP,CIO D SVP,CIO SVP,CIO Gary L. Hanson AS,AT Cyrus H. Holley David F. Hughes James B. Jacoby Donna Kinzel AT Albert F. Kirby John. W. Land VP James P. Lavin C C C C C George F. MacCormick James M. MacDonald D. Bruce McClenathan VP Richard B. McGlynn Bernard J. Morgan I.S. Outerbridge
ASP ATS BING GEN BING LTD CONECTIV CAG ------- ------- -------- -------- -------- ------- Robert Gabbard VP Sarah I. Gore D Barbara S. Graham SVP,CIO SVP,CIO SVP,CIO SVP,CIO SVP,CIO SVP,CIO Gary L. Hanson Cyrus H. Holley D David F. Hughes VP James B. Jacoby Donna Kinzel AT Albert F. Kirby VP VP John. W. Land VP VP James P. Lavin C C C C C C George F. MacCormick D James M. MacDonald D. Bruce McClenathan VP VP Richard B. McGlynn D Bernard J. Morgan D I.S. Outerbridge
(12) Item 6, Part 1 Continued
CBI CCI CDG CEH CESI ------- ------- ------- ------- ------- Robert Gabbard VP Sarah I. Gore Barbara S. Graham SVP,CIO SVP,CIO SVP,CIO SVP,CIO SVP Gary L. Hanson Cyrus H. Holley David F. Hughes James B. Jacoby GM Donna Kinzel Albert F. Kirby VP VP VP VP John. W. Land James P. Lavin C C C C C George F. MacCormick James M. MacDonald D. Bruce McClenathan VP VP VP VP Richard B. McGlynn Bernard J. Morgan I.S. Outerbridge
CMM COSC CPI CRP CSI ------- ------- ------- --------- ------- Robert Gabbard Sarah I. Gore Barbara S. Graham SVP,CIO SVP,CIO SVP,CIO SVP,CIO,D SVP,CIO Gary L. Hanson Cyrus H. Holley David F. Hughes VP James B. Jacoby Donna Kinzel AT Albert F. Kirby VP John. W. Land VP VP James P. Lavin C C C C C George F. MacCormick James M. MacDonald D. Bruce McClenathan VP VP Richard B. McGlynn Bernard J. Morgan I.S. Outerbridge
(13) Item 6, Part 1 Continued
SOLUTIONS CTS DCI I DCI II BURNEY --------- ------- ------- ------ ------- Robert Gabbard Sarah I. Gore Barbara S. Graham SVP,CIO SVP,CIO SVP,CIO SVP,D SVP,CIO Gary L. Hanson Cyrus H. Holley David F. Hughes James B. Jacoby Donna Kinzel Albert F. Kirby John. W. Land James P. Lavin C C C C C George F. MacCormick James M. MacDonald D. Bruce McClenathan VP Richard B. McGlynn Bernard J. Morgan I.S. Outerbridge
DPL KSA PED GEN VIN GEN VIN LTD --------- -------- ------- ------- ------- Robert Gabbard Sarah I. Gore Barbara S. Graham SVP,CIO,D SVP SVP,CIO SVP,CIO SVP,CIO Gary L. Hanson AT,AS Cyrus H. Holley David F. Hughes James B. Jacoby Donna Johns Donna Kinzel AT Albert F. Kirby John. W. Land VP James P. Lavin C C C C C George F. MacCormick James M. MacDonald D (alt.) D. Bruce McClenathan Richard B. McGlynn Bernard J. Morgan AS I.S. Outerbridge S
(14) Item 6, Part 1 Continued
ACE REIT ATE ACE AGI AJTS --------- --------- ------ --------- --------- Michael J. Ratchford Philip S. Reese VP,T VP,T VP,T VP,T VP,T Joseph M. Rigby P, COO Susan S. Seipel Thomas E. Shaw P,COO P,COO D P,COO P,COO William H. Spence SVP SVP SVP SVP Leslie Thomas-Dawson Louis A. Tonelli John C. van Roden Jr. SVP,CFO,D SVP,CFO,D CFO,D SVP,CFO,D SVP,CFO,D David M. Velazquez J. Mack Wathen AS,AT James C. Weller VP Nathan L. Wilson AS M. Howard Yourinson
ASP ATS BING GEN BING LTD CONECTIV CAG --------- --------- --------- --------- -------- --------- Michael J. Ratchford VP Philip S. Reese VP,T VP,T VP,T VP,T VP,T VP,T Joseph M. Rigby SVP Susan S. Seipel Thomas E. Shaw P,COO P,COO P,COO P,COO P,COO P,COO William H. Spence SVP SVP SVP Leslie Thomas-Dawson Louis A. Tonelli John C. van Roden Jr. SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO SVP,CFO,D David M. Velazquez J. Mack Wathen James C. Weller VP Nathan L. Wilson M. Howard Yourinson
(15) Item 6, Part 1 Continued
CBI CCI CDG CEH CESI ------- --------- ------ --------- --------- Michael J. Ratchford Philip S. Reese VP,T VP,T VP,T VP,T VP,T Joseph M. Rigby Susan S. Seipel Thomas E. Shaw P,COO,D P,COO P,COO P,COO William H. Spence SVP SVP SVP SVP Leslie Thomas-Dawson Louis A. Tonelli AT John C. van Roden Jr. SVP,CFO SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D David M. Velazquez VP J. Mack Wathen James C. Weller Nathan L. Wilson AS M. Howard Yourinson
CMM COSC CPI CRP CSI --------- --------- --------- --------- --------- Michael J. Ratchford Philip S. Reese VP,T VP,T VP,T VP,T VP,T Joseph M. Rigby Susan S. Seipel Thomas E. Shaw P,COO P,COO P P,COO,D P William H. Spence SVP SVP Leslie Thomas-Dawson Louis A. Tonelli John C. van Roden Jr. SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D David M. Velazquez J. Mack Wathen James C. Weller Nathan L. Wilson M. Howard Yourinson
(16) Item 6, Part 1 Continued
SOLUTIONS CTS DCI I DCI II BURNEY --------- --------- --------- --------- --------- Michael J. Ratchford Philip S. Reese VP,T VP,T VP,T VP,T VP,T Joseph M. Rigby Susan S. Seipel VP,D Thomas E. Shaw P P,COO P,COO P P William H. Spence SVP SVP SVP Leslie Thomas-Dawson AS,D Louis A. Tonelli John C. van Roden Jr. SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D David M. Velazquez J. Mack Wathen James C. Weller Nathan L. Wilson M. Howard Yourinson
DPL KSA PED GEN VIN GEN VIN LTD --------- --------- --------- --------- --------- Michael J. Ratchford Philip S. Reese VP,T T VP,T VP,T VP,T Joseph M. Rigby SVP Susan S. Seipel Thomas E. Shaw P,COO,D P P P P William H. Spence SVP SVP SVP Leslie Thomas-Dawson Louis A. Tonelli John C. van Roden Jr. SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D David M. Velazquez J. Mack Wathen AT,AS James C. Weller VP Nathan L. Wilson AS M. Howard Yourinson VP
(17) ITEM 6. OFFICERS AND DIRECTORS (Continued) PART II. FINANCIAL CONNECTIONS OF DIRECTORS AND EXECUTIVE OFFICERS AS OF DECEMBER 31, 2001 See Item 6, Part III (a) below. ITEM 6, PART III (a). COMPENSATION OF DIRECTORS AND OFFICERS EXECUTIVE COMPENSATION (conforms with presentations in Conectiv's Form 10-K for the year ended December 31, 2001 and in Delmarva Power and Light Company's Form 10-K for the year ended December 31, 2001) The following table shows information regarding the compensation earned during the last three years by the Company's Chief Executive Officer and by the Company's other four most highly compensated executive officers for the fiscal year ending December 31, 2001: TABLE 1 -- SUMMARY COMPENSATION TABLE
Long Term Compensation --------------------------------- Annual Compensation Awards PAYOUTS ---------------------------------------- ----------------------- ------- Restricted Variable Stock Securities LTIP All Other Name and Principal Compensation Other Annual Awards Underlying Payouts Compensation Position Year Salary (1) (Bonus) (2) Compensation (3) Options (4) (5) -------- ---- ---------- ----------- ------------ --- ------- --- --- H. E. Cosgrove 2001 $650,000 $261,300 0 $310,500 169,600 -- $106,950 Chairman of the Board and 2000 $600,000 $248,400 0 $271,875 124,000 -- $ 17,682 Chief Executive Officer 1999 $600,000 $217,500 0 $187,500 57,000 $ 18,204 T. S. Shaw 2001 $425,000 $142,375 0 $245,000 68,800 -- $ 60,935 President and Chief 2000 $354,700 $122,500 0 $150,000 51,900 -- $ 10,606 Operating Officer 1999 $325,000 $120,000 0 $291,500 26,000 $ 8,258 J. C. van Roden Senior Vice President and 2001 $294,700 $ 90,535 0 $106,750 39,300 -- $ 23,569 Chief Financial Officer 2000 $275,000 $ 85,400 0 $ 90,625 34,700 -- $ 8,406 1999 $250,000 $ 72,500 0 -- 170,000 -- $ 8,342 B. S. Graham 2001 $274,800 $120,032 0 $ 36,225 36,700 -- $ 47,886 Senior Vice President 2000 $262,500 $115,920 0 $ 90,625 33,100 -- $ 7,971 1999 $250,000 $ 72,500 0 $ 62,750 14,000 $ 7,504 W. H. Spence 2001 $239,900 $500,944 0 $ 26,725 32,000 -- $ 42,429 Senior Vice President, 2000 $198,100 $ 85,520 0 $ 22,238 28,500 -- $ 6,021 Energy 1999 -- $ 71,159 0 -- 8,000 -- --
1. In 2001, Mr. Cosgrove and Mr. Shaw were paid approximately an additional $37,000 and $16,000, respectively, for unused vacation. 2. The target award is 60% of annualized salary for Mr. Cosgrove, 50% for Mr. Shaw, 45% for Mr. van Roden, 40% for Mrs. Graham and 30% for Mr. Spence. For 1999, the dollar value of the bonus reported above has been reduced by the portion of the bonus deferred and reported above as a 2000 Restricted Stock Award, as follows: H. E. Cosgrove ($435,000 bonus with $217,500 purchasing Restricted Stock Units (which we refer to as RSU's)); T. S. Shaw ($240,000 bonus with $120,000 purchasing RSU's); J. C. van Roden ($145,000 bonus with $72,500 purchasing RSU's); B. S. Graham ($145,000 bonus with $72,500 purchasing RSU's); W. H. Spence ($88,949 bonus with $17,790 purchasing RSU's). For 2000, the dollar value of the bonus reported above has been reduced by the portion of the bonus deferred, as follows: H. E. Cosgrove ($496,800 bonus with $248,400 purchasing RSU's); T. S. Shaw ($245,000 bonus with $122,500 purchasing RSU's); J. C. van Roden ($170,800 bonus with $85,400 purchasing RSU's); B. S. Graham ($144,900 bonus with $28,980 purchasing RSU's); W. H. Spence ($106,900 bonus with $21,380 purchasing RSU's). For 2001, the dollar value of the bonus reported has been reduced by the portion of the bonus deferred, as follows: H. E. Cosgrove ($522,600 bonus with $261,300 purchasing RSU's); T. S. Shaw ($284,750 bonus with $142,375 purchasing RSU's); J. C. van Roden ($181,071 bonus with $90,536 purchasing RSU's); B. S. Graham ($150,040 bonus with $30,008 purchasing RSU's); W. H.Spence ($163,680 bonus with 18 $32,736 purchasing RSU's. In addition, in 2001, Mr. Spence received a $370,000 retention bonus related to the Conectiv/Pepco Merger. 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 (which we refer to as MSPP) and used to purchase RSU's at a 20% discount. The dollar value of RSU's deferred under MSPP in 2001 (inclusive of the discounted portion), based on the fair market value at the award date, was as follows: H. E. Cosgrove ($310,500 of which $62,100 is the discount); T. S. Shaw ($245,000 of which $49,000 is the discount); J. C. van Roden ($106,750 of which $21,350 is the discount); B. S. Graham ($36,225 of which $7,245 is the discount); W. H. Spence ($26,725 of which $5,345 is the discount). At the end of 2001, the number and value of the aggregate restricted stock holdings (including RSU's, Performance Accelerated Restricted Stock (which we refer to as PARS) and special grants) for the individuals identified in the Summary Compensation Table were as follows: for Mr. Cosgrove, 86,536 restricted stock holdings valued at $2,119,267; for Mr. Shaw, 59,132 restricted stock holdings valued at $1,448,143; for Mr. van Roden 20,359 restricted stock holdings valued at $498,592; for Mrs. Graham 23,042 restricted stock holdings valued at $564,299; for Mr. Spence 10,299 restricted stock holdings valued at $252,223. 4. As of December 31, 2001, Mr. Cosgrove held 55,100 shares of restricted stock (with grants of 8,500 for 1999, 16,600 for 2000 and 20,000 for 2001); Mr. Shaw held 31,100 shares of restricted stock (with grants of 12,000 for 1999, 7,000 for 2000 and 8,100 for 2001); Mr. van Roden held 12,300 shares of restricted stock (3,000 for 1999, 4,700 for 2000 and 4,600 for 2001); Mrs. Graham held 15,300 shares of restricted stock (with grants of 2,500 for 1999, 4,500 for 2000 and 4,300 for 2001); and Mr. Spence held 8,300 shares of restricted stock (with grants of 1,400 for 1999, 1,900 for 2000 and 3,800 for 2001). No new grants of Dividend Equivalent Units (which we refer to as DEU's) were made to executives in 2001. For the years prior to 2001, Mr. Cosgrove received DEU grants of 28,500 for 1999, 62,000 for 2000; Mr. Shaw received DEU grants of 13,000 for 1999, 25,950 for 2000; Mr. van Roden received DEU grants of 10,000 for 1999, 17,350 for 2000; Mrs. Graham received DEU grants of 7,000 for 1999, 16,550 for 2000; Mr. Spence received DEU grants of 4,000 for 1999, 6,850 for 2000. All DEU's granted in years prior to 2001 lapsed following the dividend declared in the fourth quarter of 2000, which was payable in January of 2001. Dividends paid on DEU's for 1999 were as follows: Mr. Cosgrove, $48,263, all of which was deferred into the Conectiv Deferred Compensation Plan; Mr. Shaw, $18,975, all of which was deferred into the Conectiv Deferred Compensation Plan; Mr. van Roden, $8,250, all of which was deferred into the Conectiv Deferred Compensation Plan; and Mrs. Graham, $14,025, all of which was deferred into the Conectiv Deferred Compensation Plan. Dividends paid on DEU's for 2000 were as follows: Mr. Cosgrove, $92,400, all of which was deferred into the Conectiv Deferred Compensation Plan; Mr. Shaw, $37,367, all of which was deferred into the Conectiv Deferred Compensation Plan; Mr. Van Roden, $20,251, all of which was deferred into the Conectiv Deferred Compensation Plan; Mrs. Graham, $25,883, all of which was deferred into the Conectiv Deferred Compensation Plan; and Mr. Spence, $10,901. Dividends paid on DEU's for 2001 were as follows: Mr. Cosgrove, $26,510, all of which was deferred into the Conectiv Deferred Compensation Plan; Mr. Shaw, $10,769, all of which was deferred into the Conectiv Deferred Compensation Plan; Mr. Van Roden, $6,017, all of which was deferred into the Conectiv Deferred Compensation Plan; Mrs. Graham, $7,381, all of which was deferred into the Conectiv Deferred Compensation Plan; and Mr. Spence, $3,102. Dividends on shares of restricted stock and DEU's are accrued at the same rate as that paid to all holders of common stock. Holders of restricted stock are entitled to receive dividends as, if and when declared. 5. The amount of All Other Compensation for each of the named executive officers for fiscal year 2001 includes the following: Mr. Cosgrove, $3,250 in Company matching contributions to the Company's Savings and Investment Plan, $16,250 in Company matching contributions to the Conectiv Deferred Compensation Plan, $5,110 in term life insurance premiums paid by the Company, $17,347 in financial planning services and related taxes, and $64,993 as a result of the conversion from a split dollar life insurance coverage to a term life insurance plan; for Mr. Shaw, $3,187 in Company matching contributions to the Company's Savings and Investment Plan, $9,562 in Company matching contributions to the Conectiv Deferred Compensation Plan, $1,627 in term life insurance premiums paid by the Company, $15,769 in financial planning services and related taxes, and $30,790 as a result of the conversion from a split dollar life insurance coverage to term life insurance plan; for Mr. van Roden, $5,100 in Company matching contributions to the Company's Savings and Investment Plan, $2,250 in Company matching contributions to the Conectiv Deferred Compensation Plan, $1,039 in term life insurance premiums paid by the Company, and $15,180 in financial planning services and related taxes; for Mrs. Graham, $5,100 in Company matching contributions to the Company's Savings and Investment Plan, $3,150 in Company matching contributions to the Conectiv Deferred Compensation Plan, $1,364 in term life insurance premiums paid by the Company, $14,829 in financial planning services and related taxes, and $23,443 as a result of the conversion from a split dollar life insurance coverage to a term life insurance plan; for Mr. Spence, $5,100 in Company matching contributions to the Company's Savings and Investment Plan, $2,100 in Company matching contributions to the Conectiv Deferred Compensation Plan, $400 in term life insurance premiums paid by the Company, $14,829 in financial planning services and related taxes, and $20,000 as a result of the conversion from a split dollar life insurance coverage to a term life insurance plan. 19 TABLE 2 -- OPTION GRANTS IN LAST FISCAL YEAR (1)
Number of % of Total Securities Options Underlying Granted to Exercise Grant Date Options Employees in Price Expiration Present Name Granted (#) Fiscal Year ($/Sh) Date Value (3) ---- ----------- ----------- ------ ---- --------- H. E. Cosgrove 169,600 (2) 25% $19.53125 1/2/11 $581,219 T. S. Shaw 68,800 (2) 10% $19.53125 1/2/11 $235,778 J. C. van Roden 39,300 (2) 6% $19.53125 1/2/11 $134,681 B. S. Graham 36,700 (2) 5.5% $19.53125 1/2/11 $125,771 W. H. Spence 32,000 (2) 5% $19.53125 1/2/11 $109,664
1. Currently, the Company does not grant stock appreciation rights. 2. Denotes Nonqualified Stock Options. Unless vesting is accelerated under the terms of Conectiv's Long-Term Incentive Plan (which we refer to as LTIP), one-half of such Options 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. Determined using the Black-Scholes model, incorporating the following material assumptions and adjustments: (a) exercise price of $19.53125, equal to the Fair Market Value as of date of grant, (b) an option term of ten years, (c) risk-free rate of return of 5.00%, (d) volatility of 20.00%, and (e) dividend yield of 4.75%. TABLE 3 -- AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR AND FY-END OPTION VALUES
Number of Securities Value of Unexercised in- Shares Underlying Unexercised the-Money Acquired Value Options at FY-End (2) Options at FY-End (1) NAME On Exercise Realized ($)(1) Exercisable/Unexercisable Exercisable/Unexercisable ---- ----------- --------------- ------------------------- ------------------------- H. E. Cosgrove 0 0 94,400/622,100 $ 129,156/2,324,729 T. S. Shaw 0 0 33,000/283,700 $ 36,045/1,002,657 J. C. van Roden 0 0 10,000/234,000 $ 2,400/508,363 B. S. Graham 0 0 27,000/226,800 $ 34,605/693,004 W. H. Spence 0 0 11,000/64,500 $ 13,656/385,574
1. The closing price for the Company's common stock as reported by the New York Stock Exchange on December 31, 2001 was $24.49. Any value in the options is based on the difference between the exercise price of the options and the value at the time of the exercise (e.g., $24.49 as of the close of business on December 31, 2001), which difference is multiplied by the number of exercisable options. 2. All of the unexercisable options listed on Table 3 are in the money. Unless vesting is accelerated under the terms of Conectiv's LTIP, none of the unexercised options may be exercised earlier than two years from date of grant for regular, non-performance based options and nine and one half years from date of grant for performance based options (subject to accelerated vesting for favorable stock price performance). 20 TABLE 4 -- LONG-TERM INCENTIVE PLANS - AWARDS IN LAST FISCAL YEAR
Performance Period Number of Restricted Until Maturation NAME Shares (#) Or Payout (1) H. E. Cosgrove 20,000 shares 1/2/08 T. S. Shaw 8,100 shares 1/2/08 J. C. van Roden 4,600 shares 1/2/08 B. S. Graham 4,300 shares 1/2/08 W. H. Spence 3,800 shares 1/2/08
1. Awards of PARS were made to all of the named executive officers. The payout of shares of PARS may potentially be "performance accelerated." Restrictions may lapse any time after 3 years (i.e., after January 2, 2004) upon achievement of favorable stock price performance goals. In the absence of such favorable performance, restrictions lapse after 7 years (i.e., January 2, 2008), provided that at least a defined level of average, total return to stockholders is achieved (and subject to vesting upon a change in control as described under "Change in Control Severance Agreements and Other Provisions Relating to Possible Change in Control" below). As of December 31, 2001, Mr. Cosgrove's 20,000 PARS were valued at $489,800, Mr. Shaw's 8,100 PARS were valued at $198,369, Mr. van Roden's 4,600 PARS were valued at $112,654, Mrs. Graham's 4,300 PARS were valued at $105,307 and Mr. Spence's 3,800 PARS were valued at $93,062. These values are based on the December 31, 2001 closing stock price of $24.49. PENSION PLAN The Conectiv Retirement Plan includes the Cash Balance Pension Plan and certain "grandfathering" 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 pay, overtime and bonuses, depending on the participant's age at the end of the plan year, as follows:
AGE AT END OF PLAN YEAR % OF 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 Retirement Plan and Atlantic Retirement Plan 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. 21 ESTIMATED RETIREMENT BENEFITS PAYABLE TO NAMED EXECUTIVES OFFICERS The following table shows the estimated retirement benefits, including supplemental retirement benefits under the plans applicable to the named executives, that 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. Cosgrove -- 42; Mrs. Graham -- 30; Mr. Shaw - -- 41, Mr. Van Roden -- 16, and Mr. Spence -- 35.
Name Year of 65th Birthday Lump Sum Value ---- --------------------- -------------- H. E. Cosgrove 2008 $9,863,000 B. S. Graham 2013 $2,057,000 T. S. Shaw 2012 $5,341,000 J. C. van Roden 2014 $1,056,000(1) W. H. Spence 2022 $2,340,000(1)
1. Amounts include (i) interest credits for cash balances projected to be 5.32% per annum on annual salary credits and prior service balances, if any, and (ii) accrued benefits as of December 31, 2001, 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 pay or total pay. Under the Conectiv Retirement Plan's grandfathering provisions, employees who participated in the Delmarva Retirement Plan or Atlantic Retirement Plan 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 the higher benefit. Estimated benefits are based on the Delmarva Retirement Plan for Messrs. Cosgrove and Shaw and for Mrs. Graham. Estimated benefits are based on the Cash Balance Pension Plan for Messrs. van Roden and Spence (neither of whom was 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 CLASSIFICATION
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. - ----------------------------- ------- ------- ------- ------- ------- $ 100,000 $ 24,000 $ 32,000 $ 40,000 $ 48,000 $ 56,000 200,000 (1) 48,000 64,000 80,000 96,000 112,000 300,000 (1) 72,000 96,000 120,000 144,000(2) 168,000(2) 400,000 (1) 96,000 128,000 160,000(2) 192,000(2) 224,000(2) 500,000 (1) 120,000 160,000(2) 200,000(2) 240,000(2) 280,000(2) 600,000 (1) 144,000(2) 192,000(2) 240,000(2) 288,000(2) 336,000(2) 700,000 (1) 168,000(2) 224,000(2) 280,000(2) 336,000(2) 392,000(2) 800,000 (1) 192,000(2) 256,000(2) 320,000(2) 384,000(2) 448,000(2) 900,000 (1) 216,000(2) 288,000(2) 360,000(2) 432,000(2) 504,000(2) 1,000,000 (1) 240,000(2) 320,000(2) 400,000(2) 480,000(2) 560,000(2) 1,100,000 (1) 264,000(2) 352,000(2) 440,000(2) 528,000(2) 616,000(2) 1,200,000 (1) 288,000(2) 384,000(2) 480,000(2) 576,000(2) 672,000(2)
(1) Effective January 1, 2001 annual compensation recognized may not exceed $170,000. (2) For 2001, the annual limit on annual benefits is $140,000. Benefits are payable in the form of a 50% joint and surviving spouse annuity or lump sum. Earnings include base salary, overtime and bonus. 22 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, Shaw, van Roden, Spence, and Mrs. Graham and two other senior executives. The agreements are intended to encourage the continued dedication of Conectiv's senior management team. The agreements provide 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 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, variable compensation deferred under the MSPP will be immediately distributed, and payment of variable compensation, if any, for the current year will be decided by the Personnel and 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. EXECUTIVE COMPENSATION - ATLANTIC CITY ELECTRIC COMPANY (conforms with presentation in Atlantic City Electric Company's Form 10-K for the year ended December 31, 2001) The following table shows information regarding the compensation earned during the past year by the ACE President and by the Company's other four most highly compensated executive officers for the fiscal year ending December 31, 2001. TABLE 1 -- SUMMARY COMPENSATION TABLE
Long Term Compensation ---------------------------------- Annual Compensation Awards PAYOUTS -------------------------------------- ------------------------ ------- Restricted Variable Stock Securities LTIP All Other NAME AND PRINCIPAL POSITION Year Salary Compensation Other Annual Awards Underlying PAYOUTS COMPENSATION (1) (2) (Bonus) (3) Compensation (4) Options (5) (6) --- --- ----------- ------------ --- ------- --- --- J. M. Rigby, President 2001 $239,600 $428,567 0 $ 21,950 32,000 -- $22,285 2000 $182,800 $ 70,240 0 $ 12,500 28,500 -- $ 4,884 J. C. van Roden, Senior Vice 2001 $294,700 $ 90,535 0 $106,725 39,300 -- $23,569 President 2000 $275,000 $ 85,400 0 $ 90,625 34,700 -- $ 8,406 J. C. Weller, Vice President 2001 $171,500 $ 33,501 0 $ 43,125 13,100 -- $ 3,923 2000 $158,794 $ 34,500 0 $ 41,000 11,100 -- $ 4,429 J. M. Castaldi, Vice President 2001 $130,900 $ 30,192 0 $ 9,025 7,500 -- $ 3,856 2000 $126,000 $ 28,880 0 $ 0 6,800 -- $ 4,580 J. M. Wathen, Director 2001 $125,300 $ 17,180 0 $ 21,000 7,200 -- $ 3,874 2000 $120,000 $ 16,800 0 $ 20,571 6,500 -- $ 4,362
1. This group of executive officers was appointed as of June 2000 and, therefore, only compensation for years 2000 and 2001 is listed. 2. In 2001 and 2000, Mr. Castaldi was paid an additional $3,528 and $6,057, respectively, for unused vacation. 3. The target award is 40% of annualized salary for Mr. Rigby, 45% for Mr. Van Roden, 30% for Mr. Weller, 20% for Mr. Castaldi and 20% for Mr. Wathen. For 2000, the dollar value of the bonus reported above has been reduced by the portion of the bonus deferred, as follows: J. M Rigby ($87,800 bonus with $17,560 purchasing Restricted Stock Units ("RSU's")); J. C. van Roden ($170,800 bonus with $85,400 purchasing RSU's); J. C. Weller ($69,000 bonus with $34,500 purchasing RSU's); J. M. Castaldi ($36,100 bonus with $7,220 purchasing RSU's); and J. M. Wathen ($33,600 bonus with $16,800 23 purchasing RSU's). For 2001, the dollar value of the bonus reported above has been reduced by the portion of the bonus deferred, as follows: J. M. Rigby ($157,133 bonus with $78,567 purchasing RSU's); J. C. van Roden ($181,071 bonus with $90,536 purchasing RSU's); J. C. Weller ($67,001 bonus with $33,501 purchasing RSU's); J. M. Castaldi ($37,740 bonus with $7,548 purchasing RSU's); and J. M. Wathen ($34,360 bonus with $17,180 purchasing RSU's). In addition, in 2001, Mr. Rigby received a $350,000 retention bonus related to the Conectiv/Pepco merger. 4. 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 2001 (inclusive of the discounted portion), based on the fair market value at the award date, was J. M. Rigby ($21,950 of which $4,390 is the discount); J. C. van Roden ($106,750 of which $21,350 is the discount); J. C. Weller ($43,125 of which $8,625 is the discount); J. M. Castaldi ($9,025 of which $1,805 is the discount); and J. M. Wathen ($21,000 of which $4,200 is the discount). At the end of 2001, the number and value of the aggregate restricted stock holdings (including RSU's, Performance Accelerated Restricted Stock ("PARS") and special grants) valued at $24.49, the closing stock price on December 31, 2001, for the individuals identified in the Summary Compensation Table was as follows: for Mr. Rigby, 9,007 restricted stock holdings valued at $220,581; for Mr. Van Roden, 20,539 restricted stock holdings valued at $498,592; for Mr. Weller, 8,935 restricted stock holdings valued at $218,818; for Mr. Castaldi 2,269 restricted stock holdings valued at $55,568; and for Mr. Wathen 4,797 restricted stock holdings valued at $117,479. 5. As of December 31, 2001, Mr. Rigby held 7,600 shares of restricted stock (with grants of 1,600 for 2000 and 3,800 for 2001); Mr. Van Roden held 12,300 shares of restricted stock (with grants of 4,700 for 2000 and 4,600 for 2001); Mr. Weller held 5,500 shares of restricted stock (with grants of 1,500 for 2000 and 1,500 for 2001); Mr. Castaldi held 1,900 shares of restricted stock (with grants of 1,000 for 2000 and 900 for 2001); and Mr. Wathen held 3,100 shares of restricted stock (with grants of 900 for 2000 and 800 for 2001). No new grants of Dividend Equivalent Units ("DEU's") were made to executives in 2001. For the year 2000, Mr. Rigby received DEU grants of 5,750; Mr. Van Roden received DEU grants of 17,350; Mr. Weller received DEU grants of 5,550; Mr. Castaldi received DEU grants of 3,400; and Mr Wathen received DEU grants of 3,250. All DEU's granted in years prior to 2001 lapsed following the dividend declared in the fourth quarter of 2000, which was payable in January of 2001. Dividends paid on DEU's for 2000 were as follows: Mr. Rigby, $9,075, $5,280 of which was deferred into the Conectiv Deferred Compensation Plan; Mr. Van Roden, $20,251, all of which was deferred into the Conectiv Deferred Compensation Plan; Mr. Weller, $9,691; Mr. Castaldi $2,244, and Mr. Wathen, $5,665, $3,520 of which was deferred into the Conectiv Deferred Compensation Plan. Dividends on shares of restricted stock and DEU's are accrued at the same rate as that paid to all holders of common stock. Holders of restricted stock are entitled to receive dividends as, if and when declared. 6. The amount of All Other Compensation for each of the named executive officers for fiscal year 2001 include the following: Mr. Rigby, $4,500 in Company matching contributions to the Company's Savings and Investment Plan, $2,700 in Company matching to the Company's Deferred Compensation Plan, $257 in term life insurance premiums paid by the Company and $14,828 in financial planning services and related taxes; for Mr. van Roden, $5,100 in Company matching contributions to the Company's Savings and Investment Plan, $2,250 in Company matching contributions to the Conectiv Deferred Compensation Plan, $1,039 in term life insurance premiums paid by the Company, and $15,180 in financial planning services and related taxes; for Mr. Weller, $3,218 in Company matching contributions to the Company's Savings and Investment Plan, and $705 in term life insurance premiums paid by the Company; for Mr. Castaldi, $3,175 in Company matching contributions to the Company's Savings and Investment Plan, and $681 in term life insurance premiums paid by the Company; and for Mr. Wathen, $3,526 in Company matching contributions to the Company's Savings and Investment Plan and $348 in term life insurance premiums paid by the Company. 24 TABLE 2 - OPTION GRANTS IN LAST FISCAL YEAR (1)
Number of % of Total Securities Options Underlying Granted to Exercise Grant Date Options Employees in Price Expiration Present NAME Granted (#) FISCAL YEAR ($/Sh) DATE Value (3) - ---- ----------- ----------- ------ ---- --------- J.M. RIGBY 32,000 (2) 5% $19.53125 1/2/11 $109,664 J.C.VAN RODEN 39,300 (2) 6% $19.53125 1/2/11 $134,681 J.C. WELLER 13,100 (2) 2% $19.53125 1/2/11 $ 44,894 J.M. CASTALDI 7,500 (2) 1% $19.53125 1/2/11 $ 25,703 J.M. WATHEN 7,200 (2) 1% $19.53125 1/2/11 $ 25,703
1. Currently, the Company does not grant stock appreciation rights. 2. Denotes Nonqualified Stock Options. One-half of such Options vest and are exercisable at the end of the second year from date of grant. Second one-half vest and are exercisable at end of the third year from the date of grant. 3. Determined using the Black-Scholes model, incorporating the following material assumptions and adjustments: (a) exercise price of $19.53125, equal to the Fair Market Value as of date of grant (b) an option term of ten years (c) risk-free rate of return of 5.00% (d) volatility of 20.00% and (e) dividend yield of 4.75%. TABLE 3 - AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR AND FY-END OPTION VALUES
Number of Securities Value of Unexercised in- Shares Underlying Unexercised the-Money Acquired Value Options at FY-End (2) Options at FY-End (1) NAME ON EXERCISE Realized ($)(1) EXERCISABLE/UNEXERCISABLE EXERCISABLE/UNEXERCISABLE - ---- ----------- --------------- ------------------------- ------------------------- J. M. Rigby 0 0 9,000/63,500 $ 10,598/385,334 J. C. van Roden 0 0 10,000/234,000 2,400/508,363 J. C. Weller 0 0 17,700/35,200 $ 11,870/153,795 J. M. Castaldi 0 0 0/14,300 $ 0/91,098 J. M. Wathen 0 0 6,000/15,700 $ 7,065/87,712
1. The closing price for the Company's common stock as reported by the New York Stock Exchange on December 31, 2001 was $24.49. Any value in the options is based on the difference between the exercise price of the options and the value at the time of the exercise (e.g., $24.49 as of the close of business on December 31, 2001), which difference is multiplied by the number of options exercised. 2. All of the unexercisable options listed on Table 3 are in the money except for Mr. Weller's, of which 27,700 out of 35,200 unexercisable options are in the money. Unless vesting is accelerated under the terms of Conectiv's Long-Term Incentiv Plan ("LTIP"), none of the remaining options may be exercised earlier than two years from date of grant for regular, non-performance based options and nine and one half years from date of grant for performance based options (subject to accelerated vesting for favorable stock price performance). 25 TABLE 4 - LONG-TERM INCENTIVE PLANS - AWARDS IN LAST FISCAL YEAR (1)
Number of Restricted Performance Period Shares Until Maturation NAME (#) Or Payout (1) ---- --- ------------- J. M. Rigby 3,800 shares 1/2/08 J. C. van Roden 4,600 shares 1/2/08 J. C. Weller 1,500 shares 1/2/08 J. M. Castaldi 900 shares 1/2/08 J. M. Wathen 800 shares 1/2/08
1. Awards of PARS were made to all of the named executive officers. The payout of shares of PARS may potentially be "performance accelerated." Restrictions may lapse any time after 3 years (i.e., after January 2, 2004) upon achievement of favorable stock price performance goals. In the absence of such favorable performance or accelerated vesting under the terms of Conectiv's LTIP, restrictions lapse after 7 years (i.e., January 2, 2008), provided that at least a defined level of average, total return to stockholders is achieved. As of December 31, 2001, Mr. Rigby's 3,800 PARS were valued at $93,062, Mr.van Roden's 4,600 PARS were valued at $112,654, Mr. Weller's 1,500 PARS were valued at $36,735, Mr. Castaldi's 900 PARS were valued at $22,041, and Mr Wathen's 800 PARS were valued at $19,592. These values are based on the December 31, 2001 closing stock price of $24.49. PENSION PLAN The Conectiv Retirement Plan includes the Cash Balance Pension Plan and certain "grandfathering" 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 pay, overtime and bonuses, depending on the participant's age at the end of the plan year, as follows:
AGE AT END OF PLAN YEAR % OF 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 Retirement Plan and Atlantic Retirement Plan 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. 26 ESTIMATED RETIREMENT BENEFITS PAYABLE TO NAMED EXECUTIVES OFFICERS The following table shows the estimated retirement benefits, including supplemental retirement benefits under the plans applicable to the named executives, that 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. Rigby -- 43, Mr. van Roden -- 16, Mr. Weller - -- 21, Mr. Castaldi -- 42, and Mr. Wathen -- 27.
Name Year of 65th Birthday Lump Sum Value ---- --------------------- -------------- J. M. Rigby 2021 $2,152,000(1) J. C. van Roden 2014 $1,056,000(1) J. C. Weller 2014 $ 530,000(1) J. M. Castaldi 2012 $1,206,000(1) J. M. Wathen 2020 $ 733,000(1)
(1) Amounts include (i) interest credits for cash balances projected to be 5.32% per annum on annual salary credits and prior service balances, if any, and (ii) accrued benefits as of December 31, 2001, 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 pay or total pay. Under the Conectiv Retirement Plan's grandfathering provisions, employees who participated in the Delmarva or Atlantic Retirement Plans and who met certain age and service requirements as of January 1, 1999, will have retirement benefits for all years of service up to the earlier of December 31, 2008, or 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. For years after December 31, 2008, all participants' benefits will be calculated under the cash balance plan. Current actuarial estimates and assumptions indicate that all five of the above executives will receive retirement benefits based on the Cash Balance Pension Plan. CHANGE IN CONTROL SEVERANCE AGREEMENTS AND OTHER PROVISIONS RELATING TO POSSIBLE CHANGE IN CONTROL For the executive officers of ACE, Conectiv has entered into change in control severance agreements with Messrs. Rigby and van Roden. 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 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, 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 and 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. 27 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, 2001 by: - - Each person or company that we know beneficially owns more than 5% of the outstanding shares of Conectiv Common Stock or Class A Common Stock; - - Each member of the Conectiv 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 of Conectiv as a group.
SHARES OF SHARES OF CLASS A COMMON STOCK (1)(2) COMMON STOCK (1) ------------------- ---------------- INCUMBENT DIRECTORS: Class I - Term Expiring in 2002 R. Franklin Balotti 11,323 0 Richard B. McGlynn 9,083 522 Cyrus H. Holley 4,373 724 Class II - Term Expiring in 2003 Robert D. Burris 7,848 0 Sarah I. Gore 8,152 0 George F. MacCormack 4,513 0 Class III - Term Expiring in 2004 Howard E. Cosgrove 179,882(3) 0 Audrey K. Doberstein 9,643 0 Bernard J. Morgan 10,138 618 OTHER EXECUTIVE OFFICERS: (3) Thomas S. Shaw, President and Chief Operating Officer 77,852(3) 0 John C. van Roden, Senior Vice President and Chief Financial Officer 32,098(3) 0 Barbara S. Graham, Senior Vice President 46,518(3) 0 William H. Spence, Senior Vice President 16,953(3) 0
As of December 31, 2002, all current Directors and executive officers as a group (13 persons) owned beneficially 418,376 shares of Conectiv Common Stock, representing 0.5% of the shares of Conectiv Common Stock outstanding and 1,864 shares of Conectiv Class A Common Stock, representing 0.03% of the shares of Conectiv 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 Conectiv Common Stock or Conectiv Class A Common Stock. (1) Each of the individuals listed beneficially owned less than 1% of Conectiv's outstanding Common Stock (including Conectiv Common Stock and Conectiv Class A Common Stock.) (2) Includes shares owned beneficially by Mr. Cosgrove 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 55,100 shares for Mr. Cosgrove, 23,000 shares for Mr. Shaw, 12,300 shares for Mr. Van Roden, 15,300 shares for Mrs. Graham, and 8,300 shares for Mr. Spence of Performance Accelerated Restricted Stock (which we refer to as PARS). Unless the restrictions lapse under the terms of Conectiv's Long-Term Incentive Plan (which we refer to as the LTIP), the number of shares actually earned will depend on meeting pre-determined financial performance measures related to stockholder value at the end of the seven-year restriction period. 28 ITEM 6, PART III(c). CONTRACTS AND TRANSACTIONS. None. ITEM 6, PART III(d). INDEBTEDNESS. None. 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 Conectiv's directors and executive officers, plus the directors and officers of the subsidiary companies. This insurance also indemnifies Conectiv and its subsidiary companies against any amounts paid by them as allowed by corporate law or By-Laws of Conectiv 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. PART II. Expenditures for any citizens group or public relations counsel.
NAME OF ACCOUNTS AMOUNT COMPANY NAME OF RECIPIENT PURPOSE CHARGED ($000) - ------- ----------------- ------- ------- ------ General public Conectiv Stanton Communications relations consulting Admin. & Gen. 345
29 ITEM 8. SERVICE, SALES AND CONSTRUCTION CONTRACTS PART I. Intercompany Contracts.
Serving Receiving 2001 Compensation Transaction Company Company ($000) ----------- ------- ------- ------ Sublease of water rights DPL CDG * Operating and maintenance services COSC ATS * Labor ATS COSC * Meter reading services MAS ACE *
Note: All of the above contracts were still in existence as of December 31, 2001. * Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Act. 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 PART I (a). Location of and interest in Exempt Wholesale Generators (EWGs) Conectiv holds a 100% indirect interest in CMM, which is an EWG. CMM is in the process of constructing combined-cycle generating plants. CMM is located at 800 King Street, Wilmington, Delaware. Conectiv holds a 100% indirect interest in CBI, which is an EWG. CBI is in the process of constructing combined-cycle generating plants in Bethlehem, PA. CBI is located at 800 King Street, Wilmington, Delaware. CMM holds a 50% interest in ESNE. ESNE is an EWG Project located in North East, Pennsylvania. PART I (b). Type and amount of capital invested in EWGs CMM and CBI are financed entirely with intercompany debt. CMM's investment in ESNE consists of a $0.5 million capital contribution and a $11.5 million demand note. PART 1 (c) Debt to equity ratio and earnings of EWGs The ratio is not applicable for CMM and CBI since they are 100% debt financed. ESNE's debt ratio as of December 31, 2001 was approximately 90%. PART 1 (d) Service, sales or construction contracts None 30 PART II Organizational Chart See Exhibit H and Item 1. PART III Aggregate Investment in EWGs As of December 31, 2001, Conectiv's investment in EWGs amounted to $275.4 million. Conectiv's aggregate investment in its public utility companies was $1,732.1 million as of December 31, 2001. The ratio of investment in EWGs to investment in public utility companies was 15.9%. 31 ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS
Page Ref -------- CONSOLIDATING FINANCIAL STATEMENTS CONSOLIDATING STATEMENT OF INCOME FOR THE YEAR ENDED DECEMBER 31, 2001 Conectiv and Subsidiaries F-1A Delmarva Power & Light Company and Subsidiaries F-1B Atlantic City Electric Company and Subsidiaries F-1C Conectiv Properties and Investments, Inc. and Subsidiaries F-1D Conectiv Energy Holding Company and Subsidiaries F-1E Conectiv Communications, Inc. and Subsidiary F-1F Conectiv Solutions LLC and Subsidiaries F-1G Conectiv Services, Inc and Subsidiaries F-1H Conectiv Thermal Systems, Inc. and Subsidiaries F-1I Atlantic Generation, Inc. and Subsidiaries F-1J Haymoor LLC and Subsidiary F-1K CONSOLIDATING BALANCE SHEET AS OF DECEMBER 31, 2001 Conectiv and Subsidiaries F-2A Delmarva Power & Light Company and Subsidiaries F-2B Atlantic City Electric Company and Subsidiaries F-2C Conectiv Properties and Investments, Inc. and Subsidiaries F-2D Conectiv Energy Holding Company and Subsidiaries F-2E Conectiv Communications, Inc F-2F Conectiv Solutions LLC and Subsidiaries F-2G Conectiv Services, Inc and Subsidiaries F-2H Conectiv Thermal Systems, Inc. and Subsidiaries F-2I Atlantic Generation, Inc. and Subsidiaries F-2J CONSOLIDATING STATEMENT OF CASH FLOWS FOR THE YEAR ENDED DECEMBER 31, 2001 Conectiv and Subsidiaries F-3A Delmarva Power & Light Company and Subsidiaries F-3B Atlantic City Electric Company and Subsidiaries F-3C Conectiv Properties and Investments, Inc. and Subsidiaries F-3D Conectiv Energy Holding Company and Subsidiaries F-3E Conectiv Communications, Inc. and Subsidiary F-3F Conectiv Solutions LLC and Subsidiaries F-3G Conectiv Services, Inc and Subsidiaries F-3H Conectiv Thermal Systems, Inc. and Subsidiaries F-3I Atlantic Generation, Inc. and Subsidiaries F-3J Haymoor LLC and Subsidiary F-3K CONSOLIDATING STATEMENT OF RETAINED EARNINGS FOR THE YEAR ENDED DECEMBER 31, 2001 Conectiv and Subsidiaries F-4A Delmarva Power & Light Company and Subsidiaries F-4B Atlantic City Electric Company and Subsidiaries F-4C Conectiv Properties and Investments, Inc. and Subsidiaries F-4D Conectiv Energy Holding Company and Subsidiaries F-4E Conectiv Communications and Subsidiary, Inc. F-4F Conectiv Solutions LLC and Subsidiaries F-4G Conectiv Services, Inc and Subsidiaries F-4H Conectiv Thermal Systems, Inc. and Subsidiaries F-4I Atlantic Generation, Inc. and Subsidiaries F-4J Haymoor LLC and Subsidiary F-4K
32 ITEM 10. (Continued) SELECTED FINANCIAL INFORMATION FOR COMPANIES ACCOUNTED FOR BY EQUITY METHOD Multiple Companies F-5
Consolidated Notes 1 through 27, pages II-41 through II-81, to the Consolidated Financial Statements of Conectiv's 2001 Form 10-K filed on March 19, 2002 are incorporated herein by reference. Consolidated Notes 1 through 21, pages II-22 through II-42, to the Consolidated Financial Statements of Atlantic City Electric Company's 2001 Form 10-K filed on March 27, 2002 are incorporated herein by reference. Consolidated Notes 1through 20, pages II-22 through II-40, to the Consolidated Financial Statements of Delmarva Power & Light Company's 2001 Form 10-K filed on March 27, 2002 are incorporated herein by reference. 33 Conectiv and Subsidiaries Consolidating Statement of Income For the Year Ended December 31, 2001 (Dollars in Thousands)
ELIMINATIONS TOTAL RECLASSES & CONECTIV DPL CONECTIV CONSOLIDATIONS PARENT CONSOLIDATED ----------- ----------- ----------- ----------- OPERATING REVENUES Electric $ 1,948,203 $ (146,487) $ -- $ 1,059,100 Gain on sale of electric plants 221,224 -- -- 221,224 Gas 229,497 (1,125) -- 230,622 Other services (22,323) (283,039) -- 22,144 ----------- ----------- ----------- ----------- 2,376,601 (430,651) -- 1,533,090 ----------- ----------- ----------- ----------- OPERATING EXPENSES Electric fuel and purchased energy and capacity 1,190,141 (93,283) -- 646,872 Gas purchased 126,642 (52,024) -- 178,666 Other services' cost of sales (24,877) (45,399) -- 20,522 Operation and maintenance 398,868 (245,205) 17,513 162,343 Depreciation and amortization 199,819 7,239 -- 95,307 Taxes other than income taxes 69,078 37 151 34,382 Deferred expenses of basic generation service (143,190) -- -- -- ----------- ----------- ----------- ----------- 1,816,481 (428,635) 17,664 1,138,092 ----------- ----------- ----------- ----------- OPERATING INCOME 560,120 (2,016) (17,664) 394,998 ----------- ----------- ----------- ----------- OTHER INCOME Other income 87,935 59,885 (341) 18,540 Minority interest inc. or exp -- -- -- -- Equity in consol subs 184 (286,410) 286,594 -- ----------- ----------- ----------- ----------- 88,119 (226,525) 286,253 18,540 ----------- ----------- ----------- ----------- INTEREST EXPENSE Interest charges 157,077 (14,238) 42,341 63,333 Allowance for borrowed funds used during -- construction and capitalized interest (2,530) (1) (1,047) (701) ----------- ----------- ----------- ----------- 154,547 (14,239) 41,294 62,632 ----------- ----------- ----------- ----------- PREFERRED STOCK DIVIDEND REQUIREMENTS OF SUBSIDIARIES 18,734 5,428 -- 5,687 ----------- ----------- ----------- ----------- INCOME FROM CONTINUING OPERATIONS BEFORE INCOME TAXES 474,958 (219,730) 227,295 345,219 INCOME TAXES 200,044 32,755 (20,953) 141,810 ----------- ----------- ----------- ----------- INCOME FROM CONTINUING OPERATIONS 274,914 (252,485) 248,248 203,409 DISCONTINUED TELECOMMUNICATION OPERATIONS LOSS FROM OPERATIONS, NET OF INCOME TAXES -- -- -- -- LOSS FROM DISPOSAL, NET OF INCOME TAXES -- -- -- -- ----------- ----------- ----------- ----------- INCOME BEFORE EXTRAORDINARY ITEMS 274,914 (252,485) 248,248 203,409 EXTRAORDINARY ITEM (2,790) -- -- (2,790) ----------- ----------- ----------- ----------- NET INCOME (LOSS) 272,124 (252,485) 248,248 200,619 DIVIDENDS ON PREFERRED STOCK -- (6,273) -- 3,744 ----------- ----------- ----------- ----------- EARNINGS APPLICABLE TO COMMON STOCK $ 272,124 $ (246,212) $ 248,248 $ 196,875 =========== =========== =========== ===========
* Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F-1A Page 1 Of 4 Conectiv and Subsidiaries Consolidating Statement of Income For the Year Ended December 31, 2001 (Dollars in Thousands)
ACE CPI* CEH* CONSOLIDATED CONSOLIDATED CONSOLIDATED ASP* ----------- ---------- ---------- ---------- OPERATING REVENUES Electric $ 1,035,590 $ -- $ -- $ -- Gain on sale of electric plants -- -- -- -- Gas -- -- -- -- Other services 5,581 -- -- -- ----------- ---------- ---------- ---------- 1,041,171 -- -- -- ----------- ---------- ---------- ---------- OPERATING EXPENSES Electric fuel and purchased energy and capacity 636,552 -- -- -- Gas purchased -- -- -- -- Other services' cost of sales -- -- -- -- Operation and maintenance 249,247 -- -- -- Depreciation and amortization 84,703 -- -- -- Taxes other than income taxes 34,118 -- -- -- Deferred expenses of basic generation service (143,190) -- -- -- ----------- ---------- ---------- ---------- 861,430 -- -- -- ----------- ---------- ---------- ---------- OPERATING INCOME 179,741 -- -- -- ----------- ---------- ---------- ---------- OTHER INCOME Other income 11,504 -- -- -- Minority interest inc. or exp -- -- -- -- Equity in consol subs -- -- -- -- ----------- ---------- ---------- ---------- 11,504 -- -- -- ----------- ---------- ---------- ---------- INTEREST EXPENSE Interest charges 62,166 -- -- -- Allowance for borrowed funds used during construction and capitalized interest (714) -- -- -- ----------- ---------- ---------- ---------- 61,452 -- -- -- ----------- ---------- ---------- ---------- PREFERRED STOCK DIVIDEND REQUIREMENTS OF SUBSIDIARIES 7,619 -- -- -- ----------- ---------- ---------- ---------- INCOME FROM CONTINUING OPERATIONS BEFORE INCOME TAXES 122,174 -- -- -- INCOME TAXES 46,698 -- -- -- ----------- ---------- ---------- ---------- INCOME FROM CONTINUING OPERATIONS 75,476 -- -- -- DISCONTINUED TELECOMMUNICATION OPERATIONS LOSS FROM OPERATIONS, NET OF INCOME TAXES -- -- -- -- LOSS FROM DISPOSAL, NET OF INCOME TAXES -- -- -- -- ----------- ---------- ---------- ---------- INCOME BEFORE EXTRAORDINARY ITEMS 75,476 -- -- -- EXTRAORDINARY ITEM -- -- -- -- ----------- ---------- ---------- ---------- NET INCOME (LOSS) 75,476 -- -- -- DIVIDENDS ON PREFERRED STOCK 1,683 -- -- -- ----------- ---------- ---------- ---------- EARNINGS APPLICABLE TO COMMON STOCK $ 73,793 $ -- $ -- $ -- =========== ========== ========== ==========
* Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F-1A Page 2 Of 4 Conectiv and Subsidiaries Consolidating Statement of Income For the Year Ended December 31, 2001 (Dollars in Thousands)
CCI* SOLUTIONS* AGI * CONSOLIDATED CONSOLIDATED CRP CONSOLIDATED ---------- --------- --------- ---------- OPERATING REVENUES Electric $ -- $ -- $ -- $ -- Gain on sale of electric plants -- -- -- -- Gas -- -- -- -- Other services -- -- 232,991 -- ---------- --------- --------- ---------- -- -- 232,991 -- ---------- --------- --------- ---------- OPERATING EXPENSES Electric fuel and purchased energy and capacity -- -- -- -- Gas purchased -- -- -- -- Other services' cost of sales -- -- -- -- Operation and maintenance -- -- 214,970 -- Depreciation and amortization -- -- 12,570 -- Taxes other than income taxes -- -- 390 -- Deferred expenses of basic generation service -- -- -- -- ---------- --------- --------- ---------- -- -- 227,930 -- ---------- --------- --------- ---------- OPERATING INCOME -- -- 5,061 -- ---------- --------- --------- ---------- OTHER INCOME Other income -- -- (1,653) -- Minority interest inc. or exp -- -- -- -- Equity in consol subs -- -- -- -- ---------- --------- --------- ---------- -- -- (1,653) -- ---------- --------- --------- ---------- INTEREST EXPENSE Interest charges -- -- 3,475 -- Allowance for borrowed funds used during construction and capitalized interest -- -- (67) -- ---------- --------- --------- ---------- -- -- 3,408 -- ---------- --------- --------- ---------- PREFERRED STOCK DIVIDEND REQUIREMENTS OF SUBSIDIARIES -- -- -- -- ---------- --------- --------- ---------- INCOME FROM CONTINUING OPERATIONS BEFORE INCOME TAXES -- -- -- -- INCOME TAXES -- -- (266) -- ---------- --------- --------- ---------- INCOME FROM CONTINUING OPERATIONS -- -- 266 -- DISCONTINUED TELECOMMUNICATION OPERATIONS LOSS FROM OPERATIONS, NET OF INCOME TAXES -- -- -- -- LOSS FROM DISPOSAL, NET OF INCOME TAXES -- -- -- -- ---------- --------- --------- ---------- INCOME BEFORE EXTRAORDINARY ITEMS -- -- 266 -- EXTRAORDINARY ITEM -- -- -- -- ---------- --------- --------- ---------- NET INCOME (LOSS) -- -- 266 -- DIVIDENDS ON PREFERRED STOCK -- -- -- -- ---------- --------- --------- ---------- EARNINGS APPLICABLE TO COMMON STOCK $ -- $ -- $ 266 $ -- ========== ========= ========= ==========
* Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F-1A Page 3 Of 4 Conectiv and Subsidiaries Consolidating Statement of Income For the Year Ended December 31, 2001 (Dollars in Thousands)
HAYMOOR* CONSOLIDATED ---------- OPERATING REVENUES Electric $ -- Gain on sale of electric plants -- Gas -- Other services -- ---------- -- ---------- OPERATING EXPENSES Electric fuel and purchased energy and capacity -- Gas purchased -- Other services' cost of sales -- Operation and maintenance -- Depreciation and amortization -- Taxes other than income taxes -- Deferred expenses of basic generation service -- ---------- -- ---------- OPERATING INCOME -- ---------- OTHER INCOME 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 FROM CONTINUING OPERATIONS BEFORE INCOME TAXES -- INCOME TAXES -- ---------- INCOME FROM CONTINUING OPERATIONS -- DISCONTINUED TELECOMMUNICATION OPERATIONS LOSS FROM OPERATIONS, NET OF INCOME TAXES -- LOSS FROM DISPOSAL, NET OF INCOME TAXES -- ---------- INCOME BEFORE EXTRAORDINARY ITEMS -- EXTRAORDINARY ITEM -- ---------- NET INCOME (LOSS) -- DIVIDENDS ON PREFERRED STOCK -- ---------- EARNINGS APPLICABLE TO COMMON STOCK $ -- ==========
* Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F-1A Page 4 Of 4 Delmarva Power and Light Company and Subsidiaries Consolidating Statement of Income For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations, Total DPL Reclasses & DPL DPL Consolidated Consol. Entries Parent Financing ----------- ----------- ----------- ----------- OPERATING REVENUES Electric $ 1,059,100 $ -- $ 1,059,100 $ -- Gain on sale of electric plants 221,224 -- $ 221,224 -- Gas 230,622 -- 230,622 -- Other services 22,144 -- 22,144 -- ----------- ----------- ----------- ----------- 1,533,090 -- 1,533,090 -- ----------- ----------- ----------- ----------- OPERATING EXPENSES Electric fuel and purchased energy and capacity 646,872 -- 646,872 -- Gas purchased 178,666 -- 178,666 -- Other services' cost of sales 20,522 -- 20,522 -- Operation and maintenance 162,343 -- 162,343 -- Depreciation and amortization 95,307 -- 95,307 -- Taxes other than income taxes 34,382 -- 34,382 -- ----------- ----------- ----------- ----------- 1,138,092 -- 1,138,092 -- ----------- ----------- ----------- ----------- OPERATING INCOME 394,998 -- 394,998 -- ----------- ----------- ----------- ----------- OTHER INCOME Other income 18,540 (5,863) 18,716 5,687 Minority interest inc. or exp -- -- -- -- Equity in consol subs -- -- -- -- ----------- ----------- ----------- ----------- 18,540 (5,863) 18,716 5,687 ----------- ----------- ----------- ----------- INTEREST EXPENSE Interest charges 63,333 (5,863) 69,196 -- Allowance for borrowed funds used during construction and capitalized interest (701) -- (701) -- ----------- ----------- ----------- ----------- 62,632 (5,863) 68,495 -- ----------- ----------- ----------- ----------- PREFERRED STOCK DIVIDEND REQUIREMENTS OF SUBSIDIARIES 5,687 5,687 -- -- ----------- ----------- ----------- ----------- INCOME FROM CONTINUING OPERATIONS BEFORE INCOME TAXES 345,219 (5,687) 345,219 5,687 INCOME TAXES 141,810 -- 141,810 -- ----------- ----------- ----------- ----------- INCOME FROM CONTINUING OPERATIONS 203,409 (5,687) 203,409 5,687 DISCONTINUED TELECOMMUNICATION OPERATIONS LOSS FROM OPERATIONS, NET OF INCOME TAXES -- -- -- -- LOSS FROM DISPOSAL, NET OF INCOME TAXES -- -- -- -- ----------- ----------- ----------- ----------- INCOME BEFORE EXTRAORDINARY ITEMS 203,409 (5,687) 203,409 5,687 EXTRAORDINARY ITEM (NET OF INCOME TAXES OF $1,885) (2,790) -- (2,790) -- ----------- ----------- ----------- ----------- NET INCOME (LOSS) 200,619 (5,687) 200,619 5,687 DIVIDENDS ON PREFERRED STOCK 3,744 (5,687) 3,744 5,687 ----------- ----------- ----------- ----------- EARNINGS APPLICABLE TO COMMON STOCK $ 196,875 $ -- $ 196,875 $ -- =========== =========== =========== ===========
* Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F-1B Page 1 Of 2 Atlantic City Electric Company and Subsidiaries Consolidating Statement of Income For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations, Reclasses & Total ACE Consol ACE ACE ACE Consolidated Entries Parent Capital I Capital II ----------- ----------- ----------- ----------- ----------- OPERATING REVENUES Electric $ 1,035,590 $ -- $ 1,035,590 $ -- $ -- Gas -- -- -- -- -- Other services 5,581 -- 5,581 -- -- ----------- ----------- ----------- ----------- ----------- 1,041,171 -- 1,041,171 -- -- ----------- ----------- ----------- ----------- ----------- OPERATING EXPENSES Electric fuel and purchased energy and capacity 636,552 -- 636,552 -- -- Operation and maintenance 249,247 -- 249,247 -- -- Depreciation and amortization 84,703 -- 84,703 -- -- Taxes other than income taxes 34,118 -- 34,118 -- -- Deferred expenses of basic generation service (143,190) -- (143,190) -- -- ----------- ----------- ----------- ----------- ----------- 861,430 -- 861,430 -- -- ----------- ----------- ----------- ----------- ----------- OPERATING INCOME 179,741 -- 179,741 -- -- ----------- ----------- ----------- ----------- ----------- OTHER INCOME Other income 11,504 (7,855) 11,740 5,775 1,844 Minority interest inc. or exp -- -- -- -- -- Equity in consol subs -- -- -- -- -- ----------- ----------- ----------- ----------- ----------- 11,504 (7,855) 11,740 5,775 1,844 ----------- ----------- ----------- ----------- ----------- INTEREST EXPENSE Interest charges 62,166 (7,855) 70,021 -- -- Allowance for borrowed funds used during construction and capitalized interest (714) -- (714) -- -- ----------- ----------- ----------- ----------- ----------- 61,452 (7,855) 69,307 -- -- ----------- ----------- ----------- ----------- ----------- PREFERRED STOCK DIVIDEND REQUIREMENTS OF SUBSIDIARIES 7,619 7,619 -- -- -- ----------- ----------- ----------- ----------- ----------- INCOME FROM CONTINUING OPERATIONS BEFORE INCOME TAXES 122,174 (7,619) 122,174 5,775 1,844 INCOME TAXES 46,698 -- 46,698 -- -- ----------- ----------- ----------- ----------- ----------- INCOME FROM CONTINUING OPERATIONS 75,476 (7,619) 75,476 5,775 1,844 DISCONTINUED TELECOMMUNICATION OPERATIONS LOSS FROM OPERATIONS, NET OF INCOME TAXES -- -- -- -- -- LOSS FROM DISPOSAL, NET OF INCOME TAXES -- -- -- -- -- ----------- ----------- ----------- ----------- ----------- INCOME BEFORE EXTRAORDINARY ITEMS 75,476 (7,619) 75,476 5,775 1,844 EXTRAORDINARY ITEM -- -- -- -- -- ----------- ----------- ----------- ----------- ----------- NET INCOME (LOSS) 75,476 (7,619) 75,476 5,775 1,844 DIVIDENDS ON PREFERRED STOCK 1,683 (7,619) 1,683 5,775 1,844 ----------- ----------- ----------- ----------- ----------- EARNINGS APPLICABLE TO COMMON STOCK $ 73,793 $ -- $ 73,793 $ -- $ -- =========== =========== =========== =========== ===========
* Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F-1C Page 1 Of 1 Conectiv Properties and Investments, Inc. and Subsidiaries Consolidating Statement of Income For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations,* Reclasses & Total CPI* Consol, CPI* Consolidated Entries Parent DCI I* DCI II* Burney* ---------- ---------- ---------- ---------- ---------- ---------- OPERATING REVENUES Other services $ -- $ -- $ -- $ -- $ -- $ -- ---------- ---------- ---------- ---------- ---------- ---------- -- -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- ---------- OPERATING EXPENSES Other services' cost of sales -- -- -- -- -- -- Operation and maintenance -- -- -- -- -- -- Depreciation and amortization -- -- -- -- -- -- Taxes other than income taxes -- -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- ---------- -- -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- ---------- OPERATING INCOME -- -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- ---------- OTHER INCOME 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 FROM CONTINUING OPERATIONS BEFORE INCOME TAXES -- -- -- -- -- -- INCOME TAXES -- -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- ---------- INCOME FROM CONTINUING OPERATIONS -- -- -- -- -- -- DISCONTINUED TELECOMMUNICATION OPERATIONS LOSS FROM OPERATIONS, NET OF INCOME TAXES -- -- -- -- -- -- LOSS FROM DISPOSAL, NET OF INCOME TAXES -- -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- ---------- INCOME BEFORE EXTRAORDINARY ITEMS -- -- -- -- -- -- EXTRAORDINARY ITEM -- -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- ---------- NET INCOME (LOSS) -- -- -- -- -- -- DIVIDENDS ON PREFERRED STOCK -- -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- ---------- EARNINGS APPLICABLE TO COMMON STOCK $ -- $ -- $ -- $ -- $ -- $ -- ========== ========== ========== ========== ========== ==========
* Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F-1D Page 1 Of 1 Conectiv Energy Holding Company and Subsidiaries Consolidating Statement of Income For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations,* Reclasses & Total CEH* Consol, CEH* Consolidated Entries Parent CESI* COSC* ---------- ---------- ---------- ---------- ---------- OPERATING REVENUES Electric $ -- $ -- $ -- $ -- $ -- Gas -- -- -- -- -- Gain on sale of electric plants -- -- -- -- -- Other services -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- OPERATING EXPENSES Electric fuel and purchased energy and capacity -- -- -- -- -- Gas purchased -- -- -- -- -- Other services' cost of sales -- -- -- -- -- Operation and maintenance -- -- -- -- -- Depreciation and amortization -- -- -- -- -- Taxes other than income taxes -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- OPERATING INCOME -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- OTHER INCOME 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 FROM CONTINUING OPERATIONS BEFORE INCOME TAXES -- -- -- -- -- INCOME TAXES -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- INCOME FROM CONTINUING OPERATIONS -- -- -- -- -- DISCONTINUED TELECOMMUNICATION OPERATIONS LOSS FROM OPERATIONS, NET OF INCOME TAXES -- -- -- -- -- LOSS FROM DISPOSAL, NET OF INCOME TAXES -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- INCOME BEFORE EXTRAORDINARY ITEMS -- -- -- -- -- EXTRAORDINARY ITEM -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- NET INCOME (LOSS) -- -- -- -- -- DIVIDENDS ON PREFERRED STOCK -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- EARNINGS APPLICABLE TO COMMON STOCK $ -- $ -- $ -- $ -- $ -- ========== ========== ========== ========== ==========
* Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F-1E Page 1 Of 2
ACE * REIT CAG* CDG* CMM* CBI* ---------- ---------- ---------- ---------- ---------- OPERATING REVENUES Electric $ -- $ -- $ -- $ -- $ -- Gas -- -- -- -- -- Gain on sale of electric plants -- -- -- -- -- Other services -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- OPERATING EXPENSES Electric fuel and purchased energy and capacity -- -- -- -- -- Gas purchased -- -- -- -- -- Other services' cost of sales -- -- -- -- -- Operation and maintenance -- -- -- -- -- Depreciation and amortization -- -- -- -- -- Taxes other than income taxes -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- OPERATING INCOME -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- OTHER INCOME 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 FROM CONTINUING OPERATIONS BEFORE INCOME TAXES -- -- -- -- -- INCOME TAXES -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- INCOME FROM CONTINUING OPERATIONS -- -- -- -- -- DISCONTINUED TELECOMMUNICATION OPERATIONS LOSS FROM OPERATIONS, NET OF INCOME TAXES -- -- -- -- -- LOSS FROM DISPOSAL, NET OF INCOME TAXES -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- INCOME BEFORE EXTRAORDINARY ITEMS -- -- -- -- -- EXTRAORDINARY ITEM -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- NET INCOME (LOSS) -- -- -- -- -- DIVIDENDS ON PREFERRED STOCK -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- EARNINGS APPLICABLE TO COMMON STOCK $ -- $ -- $ -- $ -- $ -- ========== ========== ========== ========== ==========
* Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F-1E Page 2 Of 2 Conectiv Communications, Inc. and Subsidiary Consolidating Statement of Income For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations,* Conectiv* Total CCI* Reclasses & CCI* Communications Consolidated Consol. Entries Parent of Virginia, Inc. ---------- ---------- ---------- ---------- OPERATING REVENUES Other services $ -- $ -- $ -- $ -- ---------- ---------- ---------- ---------- -- -- -- -- ---------- ---------- ---------- ---------- OPERATING EXPENSES Other services' cost of sales -- -- -- -- Operation and maintenance -- -- -- -- Depreciation and amortization -- -- -- -- Taxes other than income taxes -- -- -- -- ---------- ---------- ---------- ---------- -- -- -- -- ---------- ---------- ---------- ---------- OPERATING INCOME -- -- -- -- ---------- ---------- ---------- ---------- OTHER INCOME Other income -- -- -- -- 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 FROM CONTINUING OPERATIONS BEFORE INCOME TAXES -- -- -- -- INCOME TAXES -- -- -- -- ---------- ---------- ---------- ---------- INCOME FROM CONTINUING OPERATIONS -- -- -- -- DISCONTINUED TELECOMMUNICATION OPERATIONS LOSS FROM OPERATIONS, NET OF INCOME TAXES -- -- -- -- LOSS FROM DISPOSAL, NET OF INCOME TAXES -- -- -- -- ---------- ---------- ---------- ---------- INCOME BEFORE EXTRAORDINARY ITEMS -- -- -- -- EXTRAORDINARY ITEM -- -- -- -- ---------- ---------- ---------- ---------- NET INCOME (LOSS) -- -- -- -- DIVIDENDS ON PREFERRED STOCK -- -- -- -- ---------- ---------- ---------- ---------- EARNINGS APPLICABLE TO COMMON STOCK $ -- $ -- $ -- $ -- ========== ========== ========== ==========
* Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F-1F Page 1 Of 1 Conectiv Solutions LLC and Subsidiaries Consolidating Statement of Income For the Year Ended December 31, 2001 (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 energy and capacity -- -- -- -- Gas purchased -- -- -- -- Other services' cost of sales -- -- -- -- Operation and maintenance -- -- -- -- Depreciation and amortization -- -- -- -- Taxes other than income taxes -- -- -- -- ---------- ---------- ---------- ---------- -- -- -- -- ---------- ---------- ---------- ---------- OPERATING INCOME -- -- -- -- ---------- ---------- ---------- ---------- OTHER INCOME 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 FROM CONTINUING OPERATIONS BEFORE INCOME TAXES -- -- -- -- INCOME TAXES -- -- -- -- ---------- ---------- ---------- ---------- INCOME FROM CONTINUING OPERATIONS -- -- -- -- DISCONTINUED TELECOMMUNICATION OPERATIONS LOSS FROM OPERATIONS, NET OF INCOME TAXES -- -- -- -- LOSS FROM DISPOSAL, NET OF INCOME TAXES -- -- -- -- ---------- ---------- ---------- ---------- INCOME BEFORE EXTRAORDINARY ITEMS -- -- -- -- EXTRAORDINARY ITEM -- -- -- -- ---------- ---------- ---------- ---------- NET INCOME (LOSS) -- -- -- -- DIVIDENDS ON PREFERRED STOCK -- -- -- -- ---------- ---------- ---------- ---------- EARNINGS APPLICABLE TO COMMON STOCK $ -- $ -- $ -- $ -- ========== ========== ========== ==========
* Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F-1G Page 1 Of 2 Conectiv Solutions LLC and Subsidiaries Consolidating Statement of Income For the Year Ended December 31, 2001 (Dollars in Thousands)
Elimination* CSI * ATE/King St. ATE* KSA* Consolidated ---------- ---------- ---------- ---------- OPERATING REVENUES Electric $ -- $ -- $ -- $ -- Gas -- -- -- -- Other services -- -- -- -- ---------- ---------- ---------- ---------- -- -- -- -- ---------- ---------- ---------- ---------- OPERATING EXPENSES Electric fuel and purchased energy and capacity -- -- -- -- Gas purchased -- -- -- -- Other services' cost of sales -- -- -- -- Operation and maintenance -- -- -- -- Depreciation and amortization -- -- -- -- Taxes other than income taxes -- -- -- -- ---------- ---------- ---------- ---------- -- -- -- -- ---------- ---------- ---------- ---------- OPERATING INCOME -- -- -- -- ---------- ---------- ---------- ---------- OTHER INCOME 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 FROM CONTINUING OPERATIONS BEFORE INCOME TAXES -- -- -- -- INCOME TAXES -- -- -- -- ---------- ---------- ---------- ---------- INCOME FROM CONTINUING OPERATIONS -- -- -- -- DISCONTINUED TELECOMMUNICATION OPERATIONS LOSS FROM OPERATIONS, NET OF INCOME TAXES -- -- -- -- LOSS FROM DISPOSAL, NET OF INCOME TAXES -- -- -- -- ---------- ---------- ---------- ---------- INCOME BEFORE EXTRAORDINARY ITEMS -- -- -- -- EXTRAORDINARY ITEM -- -- -- -- ---------- ---------- ---------- ---------- NET INCOME (LOSS) -- -- -- -- DIVIDENDS ON PREFERRED STOCK -- -- -- -- ---------- ---------- ---------- ---------- EARNINGS APPLICABLE TO COMMON STOCK $ -- $ -- $ -- $ -- ========== ========== ========== ==========
* Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F-1G Page 2 Of 2 Conectiv Services, Inc. and Subsidiaries Consolidating Statement of Income For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations,* Reclasses & Total CSI * Consol. CSI I* CTS* Consolidated Entries Parent Plumbing* Consolidated ---------- ---------- ---------- ---------- ---------- OPERATING REVENUES Electric $ -- $ -- $ -- $ -- $ -- Gas -- -- -- -- -- Other services -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- OPERATING EXPENSES Electric fuel and purchased energy and capacity -- -- -- -- -- Gas purchased -- -- -- -- -- Other services' cost of sales -- -- -- -- -- Operation and maintenance -- -- -- -- -- Depreciation and amortization -- -- -- -- -- Taxes other than income taxes -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- OPERATING INCOME -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- OTHER INCOME 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 FROM CONTINUING OPERATIONS BEFORE INCOME TAXES -- -- -- -- -- INCOME TAXES -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- INCOME FROM CONTINUING OPERATIONS -- -- -- -- -- DISCONTINUED TELECOMMUNICATION OPERATIONS LOSS FROM OPERATIONS, NET OF INCOME TAXES -- -- -- -- -- LOSS FROM DISPOSAL, NET OF INCOME TAXES -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- INCOME BEFORE EXTRAORDINARY ITEMS -- -- -- -- -- EXTRAORDINARY ITEM -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- NET INCOME (LOSS) -- -- -- -- -- DIVIDENDS ON PREFERRED STOCK -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- EARNINGS APPLICABLE TO COMMON STOCK $ -- $ -- $ -- $ -- $ -- ========== ========== ========== ========== ==========
* Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F-1H Page 1 Of 1 Conectiv Thermal Systems, Inc. and Subsidiaries Consolidating Statement of Income For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations,* Reclasses & Total CTS* Consol. CTS* Consolidated Entries Parent ATS* AJTS* TELP* ---------- ---------- ---------- ---------- ---------- ---------- OPERATING REVENUES Other services $ -- $ -- $ -- $ -- $ -- $ -- ---------- ---------- ---------- ---------- ---------- ---------- -- -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- ---------- OPERATING EXPENSES Other services' cost of sales -- -- -- -- -- -- Operation and maintenance -- -- -- -- -- -- Depreciation and amortization -- -- -- -- -- -- Taxes other than income taxes -- -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- ---------- -- -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- ---------- OPERATING INCOME -- -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- ---------- OTHER INCOME Other income -- -- -- -- -- -- 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 FROM CONTINUING OPERATIONS BEFORE INCOME TAXES -- -- -- -- -- -- INCOME TAXES -- -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- ---------- INCOME FROM CONTINUING OPERATIONS -- -- -- -- -- -- DISCONTINUED TELECOMMUNICATION OPERATIONS LOSS FROM OPERATIONS, NET OF INCOME TAXES -- -- -- -- -- -- LOSS FROM DISPOSAL, NET OF INCOME TAXES -- -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- ---------- INCOME BEFORE EXTRAORDINARY ITEMS -- -- -- -- -- -- EXTRAORDINARY ITEM -- -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- ---------- NET INCOME (LOSS) -- -- -- -- -- -- DIVIDENDS ON PREFERRED STOCK -- -- -- -- -- -- ---------- ---------- ---------- ---------- ---------- ---------- EARNINGS APPLICABLE TO COMMON STOCK $ -- $ -- $ -- $ -- $ -- $ -- ========== ========== ========== ========== ========== ==========
* Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F-1I Page 1 Of 1 Atlantic Generation, Inc. and Subsidiaries Consolidating Statement of Income For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations, Total AGI Reclasses & AGI Consolidated Consol. Entries Parent Vin LTD Vin Gen ------------ --------------- --------- --------- --------- OPERATING REVENUES Other services $ -- $ -- $ -- $ -- $ -- --------- --------- --------- --------- --------- -- -- -- -- -- --------- --------- --------- --------- --------- OPERATING EXPENSES Operation and maintenance -- -- -- -- -- Depreciation and amortization -- -- -- -- -- --------- --------- --------- --------- --------- -- -- -- -- -- --------- --------- --------- --------- --------- OPERATING INCOME -- -- -- -- -- --------- --------- --------- --------- --------- OTHER INCOME Other income -- -- -- -- -- Minority interest inc. or exp -- -- -- -- -- Equity in consol subs -- -- -- -- -- --------- --------- --------- --------- --------- -- -- -- -- -- --------- --------- --------- --------- --------- INTEREST EXPENSE Interest charges -- -- -- -- -- --------- --------- --------- --------- --------- -- -- -- -- -- --------- --------- --------- --------- --------- PREFERRED STOCK DIVIDEND REQUIREMENTS OF SUBSIDIARIES -- -- -- -- -- --------- --------- --------- --------- --------- INCOME FROM CONTINUING OPERATIONS BEFORE INCOME TAXES -- -- -- -- -- INCOME TAXES -- -- -- -- -- --------- --------- --------- --------- --------- INCOME FROM CONTINUING OPERATIONS -- -- -- -- -- DISCONTINUED TELECOMMUNICATION OPERATIONS LOSS FROM OPERATIONS, NET OF INCOME TAXES -- -- -- -- -- LOSS FROM DISPOSAL, NET OF INCOME TAXES -- -- -- -- -- --------- --------- --------- --------- --------- INCOME BEFORE EXTRAORDINARY ITEMS -- -- -- -- -- EXTRAORDINARY ITEM -- -- -- -- -- --------- --------- --------- --------- --------- NET INCOME (LOSS) -- -- -- -- -- DIVIDENDS ON PREFERRED STOCK -- -- -- -- -- --------- --------- --------- --------- --------- EARNINGS APPLICABLE TO COMMON STOCK $ -- $ -- $ -- $ -- $ -- ========= ========= ========= ========= =========
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F-1J Page 1 Of 2 Atlantic Generation, Inc. and Subsidiaries Consolidating Statement of Income For the Year Ended December 31, 2001 (Dollars in Thousands)
Bing LTD Bing Gen Ped Gen ------------- ------------- ------------- OPERATING REVENUES Other services $ -- $ -- $ -- ------------- ------------- ------------- -- -- -- ------------- ------------- ------------- OPERATING EXPENSES Operation and maintenance -- -- -- Depreciation and amortization -- -- -- ------------- ------------- ------------- -- -- -- ------------- ------------- ------------- OPERATING INCOME -- -- -- ------------- ------------- ------------- OTHER INCOME Other income -- -- -- Minority interest inc. or exp -- -- -- Equity in consol subs -- -- -- ------------- ------------- ------------- -- -- -- ------------- ------------- ------------- INTEREST EXPENSE Interest charges -- -- -- ------------- ------------- ------------- -- -- -- ------------- ------------- ------------- PREFERRED STOCK DIVIDEND REQUIREMENTS OF SUBSIDIARIES -- -- -- ------------- ------------- ------------- INCOME FROM CONTINUING OPERATIONS BEFORE INCOME TAXES -- -- -- INCOME TAXES -- -- -- ------------- ------------- ------------- INCOME FROM CONTINUING OPERATIONS -- -- -- DISCONTINUED TELECOMMUNICATION OPERATIONS LOSS FROM OPERATIONS, NET OF INCOME TAXES -- -- -- LOSS FROM DISPOSAL, NET OF INCOME TAXES -- -- -- ------------- ------------- ------------- INCOME BEFORE EXTRAORDINARY ITEMS -- -- -- EXTRAORDINARY ITEM -- -- -- ------------- ------------- ------------- NET INCOME (LOSS) -- -- -- DIVIDENDS ON PREFERRED STOCK -- -- -- ------------- ------------- ------------- EARNINGS APPLICABLE TO COMMON STOCK $ -- $ -- $ -- ============= ============= =============
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F-1J Page 2 Of 2 Haymoor LLC and Subsidiaries Consolidating Statement of Income For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations, Total Haymoor Reclasses & Haymoor Conectiv Consolidated Consol. Entries Parent Energy Inc ------------- --------------- -------- ---------- OPERATING REVENUES Other services $ -- $ -- $ -- $ -- -------- -------- -------- -------- -- -- -- -- -------- -------- -------- -------- OPERATING EXPENSES Operation and maintenance -- -- -- -- Depreciation and amortization -- -- -- -- -------- -------- -------- -------- -- -- -- -- -------- -------- -------- -------- OPERATING INCOME -- -- -- -- -------- -------- -------- -------- OTHER INCOME Other income -- -- -- -- 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 FROM CONTINUING OPERATIONS BEFORE INCOME TAXES -- -- -- -- INCOME TAXES -- -- -- -- -------- -------- -------- -------- INCOME FROM CONTINUING OPERATIONS -- -- -- -- DISCONTINUED TELECOMMUNICATION OPERATIONS LOSS FROM OPERATIONS, NET OF INCOME TAXES -- -- -- -- LOSS FROM DISPOSAL, NET OF INCOME TAXES -- -- -- -- -------- -------- -------- -------- INCOME BEFORE EXTRAORDINARY ITEMS -- -- -- -- EXTRAORDINARY ITEM -- -- -- -- -------- -------- -------- -------- NET INCOME (LOSS) -- -- -- -- DIVIDENDS ON PREFERRED STOCK -- -- -- -- -------- -------- -------- -------- EARNINGS APPLICABLE TO COMMON STOCK $ -- $ -- $ -- $ -- ======== ======== ======== ========
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F-1K Page 1 Of 1 Conectiv and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 2001 (Dollars in Thousands)
ELIMINATIONS TOTAL RECLASSES & CONECTIV DPL ACE CONECTIV CONSOLIDATIONS PARENT CONSOLIDATED CONSOLIDATED ----------- -------------- ----------- ------------ ------------ CURRENT ASSETS Cash and cash equivalents $ (54,359) $ (620,142) $ 374,372 $ 174,876 $ 14,261 Accounts receivable 376,815 1 1,208 204,579 167,483 Allowance for doubtful accounts (25,073) 1 -- (17,270) (7,804) Accounts receivable from associated companies -- (38,223) 19,924 -- -- Inventories, at average cost Fuel (coal, oil and gas) 36,683 (1) -- 16,353 20,331 Materials and supplies 24,374 -- -- 13,636 10,738 Deferred energy supply costs 25,525 -- -- 25,525 -- Prepaid income taxes (71,579) (134,904) 20,955 41,044 Other prepayments 37,871 (54) -- 35,154 1,756 ----------- ----------- ----------- ----------- ----------- Deferred income taxes, net (9,287) (9,468) -- -- 181 ----------- ----------- ----------- ----------- ----------- 340,970 (802,790) 416,459 452,853 247,990 INVESTMENTS Investment in leveraged leases -- -- -- -- -- Funds held by trustee 12,116 (1) -- 4,213 3,666 Note receivable -- -- -- -- -- Note receivable from associated companies -- (100,588) 100,588 -- -- Investment in consolidated companies (23,144) (2,036,932) 2,013,788 -- -- Other investments 2,681 (1) 1,703 979 -- ----------- ----------- ----------- ----------- ----------- (8,347) (2,137,522) 2,116,079 5,192 3,666 ----------- ----------- ----------- ----------- ----------- PROPERTY, PLANT AND EQUIPMENT Electric generation 136,154 2 -- -- 136,152 Electric transmission and distribution 2,792,615 -- -- 1,510,640 1,276,896 Gas transmission and distribution 291,052 (1) -- 291,053 -- Other electric and gas facilities 363,317 (2) -- 167,612 116,215 Other property, plant, and equipment 11,004 1 -- 5,231 5,772 ----------- ----------- ----------- ----------- ----------- 3,594,142 -- -- 1,974,536 1,535,035 Less: Accumulated depreciation 1,368,288 (1) -- 770,287 569,495 ----------- ----------- ----------- ----------- ----------- Net plant in service 2,225,854 1 -- 1,204,249 965,540 Construction work-in-progress 153,731 1 -- 76,718 74,780 Leased nuclear fuel, at amortized cost -- -- -- -- -- Goodwill, net 327,255 261,340 -- 65,915 -- ----------- ----------- ----------- ----------- ----------- 2,706,840 261,342 -- 1,346,882 1,040,320 ----------- ----------- ----------- ----------- ----------- DEFERRED CHARGES AND OTHER ASSETS Recoverable stranded costs 944,529 -- -- 14,493 930,036 Deferred energy supply costs 106,259 -- -- -- 106,259 Deferred recoverable income taxes 76,681 -- -- 65,702 10,979 Unrecovered purchased power costs 12,490 -- -- -- 12,490 Other regulatory assets 22,430 1 -- 1,874 20,555 Deferred debt refinancing costs 31,317 -- -- 19,879 11,438 Deferred other postretirement benefit costs 27,482 -- -- -- 27,482 Prepaid employee benefits costs 91,304 (100,551) -- 192,181 -- Unamortized debt expense 24,653 (1) 1,604 10,084 12,966 License fees -- -- -- -- -- Other 14,798 -- -- 2,586 8,149 ----------- ----------- ----------- ----------- ----------- 1,351,943 (100,551) 1,604 306,799 1,140,354 ----------- ----------- ----------- ----------- ----------- TOTAL ASSETS $ 4,391,406 $(2,779,521) $ 2,534,142 $ 2,111,726 $ 2,432,330 =========== =========== =========== =========== ===========
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 2A Page 1 Of 6 Conectiv and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 2001 (Dollars in Thousands)
CPI* CEH* CCI* SOLUTIONS* CONSOLIDATED CONSOLIDATED ASP* CONSOLIDATED CONSOLIDATED ------------ ------------ -------- ------------ ------------ CURRENT ASSETS Cash and cash equivalents $ -- $ -- $ -- $ -- $ -- Accounts receivable -- -- -- -- -- Allowance for doubtful accounts -- -- -- -- -- Accounts receivable from associated companies -- -- -- -- -- Inventories, at average cost Fuel (coal, oil and gas) -- -- -- -- -- Materials and supplies -- -- -- -- -- Deferred energy supply costs -- -- -- -- -- Prepaid income taxes Other prepayments -- -- -- -- -- Deferred income taxes, net -- -- -- -- -- -------- -------- -------- -------- -------- -- -- -- -- -- -------- -------- -------- -------- -------- INVESTMENTS Investment in leveraged leases -- -- -- -- -- Funds held by trustee -- -- -- -- -- Note receivable -- -- -- -- -- Note receivable from associated companies -- -- -- -- -- 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 -- -- -- -- -- 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 energy supply costs -- -- -- -- -- Deferred recoverable income taxes -- -- -- -- -- Unrecovered purchased power costs -- -- -- -- -- Other regulatory assets -- -- -- -- -- Deferred debt refinancing costs -- -- -- -- -- Deferred other postretirement benefit costs -- -- -- -- -- Prepaid employee benefits costs -- -- -- -- -- Unamortized debt expense -- -- -- -- -- License fees -- -- -- -- -- Other -- -- -- -- -- -------- -------- -------- -------- -------- -- -- -- -- -- -------- -------- -------- -------- -------- TOTAL ASSETS $ -- $ -- $ -- $ -- $ -- ======== ======== ======== ======== ========
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 2A Page 2 Of 6 Conectiv and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 2001 (Dollars in Thousands)
AGI * CRP CONSOLIDATED -------- ------------ CURRENT ASSETS Cash and cash equivalents $ 2,274 $ -- Accounts receivable 3,544 -- Allowance for doubtful accounts -- -- Accounts receivable from associated companies 18,299 -- Inventories, at average cost Fuel (coal, oil and gas) -- -- Materials and supplies -- -- Deferred energy supply costs -- -- Prepaid income taxes 1,326 Other prepayments 1,015 -- Deferred income taxes, net -- -------- -------- 26,458 -- -------- -------- INVESTMENTS Investment in leveraged leases -- -- Funds held by trustee 4,238 -- Note receivable -- -- Note receivable from associated companies -- -- Investment in consolidated companies -- -- Other investments -- -- -------- -------- 4,238 -- -------- -------- PROPERTY, PLANT AND EQUIPMENT Electric generation -- -- Electric transmission and distribution 5,079 -- Gas transmission and distribution -- -- Other electric and gas facilities 79,492 -- Other property, plant, and equipment -- -- -------- -------- 84,571 -- Less: Accumulated depreciation 28,507 -- -------- -------- Net plant in service 56,064 -- Construction work-in-progress 2,232 -- Leased nuclear fuel, at amortized cost -- -- Goodwill, net -- -- -------- -------- 58,296 -- -------- -------- DEFERRED CHARGES AND OTHER ASSETS Recoverable stranded costs -- -- Deferred energy supply costs -- -- Deferred recoverable income taxes -- -- Unrecovered purchased power costs -- -- Other regulatory assets -- -- Deferred debt refinancing costs -- -- Deferred other postretirement benefit costs -- -- Prepaid employee benefits costs (326) -- Unamortized debt expense -- -- License fees -- -- Other 4,063 -- -------- -------- 3,737 -- -------- -------- TOTAL ASSETS $ 92,729 $ -- ======== ========
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 2A Page 3 Of 6 Conectiv and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 2001 (Dollars in Thousands)
ELIMINATIONS TOTAL RECLASSES & CONECTIV DPL ACE CONECTIV CONSOLIDATIONS PARENT CONSOLIDATED CONSOLIDATED ----------- -------------- ----------- ------------ ------------ CURRENT LIABILITIES Short-term debt $ 1,039,820 $ -- $ 994,869 $ -- $ 44,951 Long-term debt due within one year 396,911 -- 100,000 75,461 221,450 Variable rate demand bonds 127,430 -- -- 104,830 22,600 Money pool borrowings -- (30,991) -- -- -- Accounts payable 124,244 159 -- 64,407 52,570 Accounts payable to associated companies -- (25,433) -- 20,002 5,431 Notes payable to associated companies -- (20,051) -- -- -- Taxes accrued (15,673) (134,904) -- 119,231 -- Interest accrued 32,569 (2) 2,566 11,093 17,224 Dividends payable 22,094 (19,630) 20,284 15,138 6,302 Current capital lease obligation 130 -- -- 130 -- Above-market purchased energy contracts and other electric restructuring liabilities 16,106 -- -- 15,664 442 Deferred income taxes, net 1,708 (181) -- 1,889 -- Derivative instruments -- -- -- -- -- Other 91,273 (9,134) 492 46,527 40,019 ----------- ----------- ----------- ----------- ----------- 1,836,612 (240,167) 1,118,211 474,372 410,989 ----------- ----------- ----------- ----------- ----------- DEFERRED CREDITS AND OTHER LIABILITIES Other postretirement benefits obligation 88,049 45,096 -- -- 36,429 Deferred income taxes, net 717,757 (54,472) 1,830 290,319 470,420 Deferred investment tax credits 42,986 -- -- 14,504 28,482 Regulatory liability for New Jersey income tax benefit 49,262 -- -- -- 49,262 Above-market purchased energy contracts and other electric restructuring liabilities 85,326 -- -- 68,711 16,615 Minority interest liability (3,326) (3,326) -- -- -- Derivative instruments -- -- -- -- -- Other 31,240 (36,416) -- 15,516 48,840 ----------- ----------- ----------- ----------- ----------- 1,011,294 (49,118) 1,830 389,050 650,048 ----------- ----------- ----------- ----------- ----------- CAPITALIZATION Common stock: $0.01 per share par value 150,000,000 shares authorized; 82,957,613 shares outstanding 830 (54,966) 830 2 54,963 Class A common stock, $0.01 par value; 10,000,000 shares authorized; 5,742,315 shares outstanding 57 -- 57 -- Additional paid-in capital - - common stock 1,027,790 (623,599) 1,027,790 213,405 410,194 Additional paid-in capital - - Class A common stock 93,738 -- 93,738 -- -- Retained (deficit) earnings 209,336 (521,060) 209,336 364,871 156,152 ----------- ----------- ----------- ----------- ----------- 1,331,751 (1,199,625) 1,331,751 578,278 621,309 Unearned compensation (1,719) -- (1,719) -- -- Accumulated other comprehensive income (131) 65,800 (65,931) -- -- ----------- ----------- ----------- ----------- ----------- Total common stockholders' equity 1,329,901 (1,133,825) 1,264,101 578,278 621,309 Preferred stock of subsidiaries: Not subject to mandatory redemption 813 (35,001) -- 29,583 6,231 Subject to mandatory redemption 12,450 -- -- -- 12,450 Company obligated mandatorily redeemable preferred securities of subsidiary trusts holding solely company debentures 165,000 -- -- 70,000 95,000 Long-term debt 1,356,003 (1) 150,000 569,701 636,303 Long-term capital lease obligation 742 -- -- 742 -- ----------- ----------- ----------- ----------- ----------- 2,864,909 (1,168,827) 1,414,101 1,248,304 1,371,293 ----------- ----------- ----------- ----------- ----------- ----------- ----------- ----------- ----------- ----------- TOTAL CAPITALIZATION AND LIABILITIES $ 5,712,815 $(1,458,112) $ 2,534,142 $ 2,111,726 $ 2,432,330 =========== =========== =========== =========== ===========
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 2A Page 4 Of 6 Conectiv and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 2001 (Dollars in Thousands)
CPI* CEH* CCI* SOLUTIONS* CONSOLIDATED CONSOLIDATED ASP* CONSOLIDATED CONSOLIDATED ------------ ------------ -------- ------------ ------------ CURRENT LIABILITIES Short-term debt $ -- $ -- $ -- $ -- $ -- Long-term debt due within one year -- -- -- -- -- Variable rate demand bonds -- -- -- -- -- Money pool borrowings -- -- -- -- -- Accounts payable -- -- -- -- -- Accounts payable to associated companies -- -- -- -- -- Notes payable to associated companies -- -- -- -- -- Taxes accrued -- -- -- -- -- Interest accrued -- -- -- -- -- Dividends payable -- -- -- -- -- Current capital lease obligation -- -- -- -- -- Above-market purchased energy contracts and other electric restructuring liabilities -- -- -- -- -- Deferred income taxes, net -- -- -- -- -- Derivative instruments -- -- -- -- -- 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 -- -- -- -- -- Minority interest liability -- -- -- -- -- Derivative instruments -- -- -- -- -- Other -- -- -- -- -- -------- -------- -------- -------- -------- -- -- -- -- -- -------- -------- -------- -------- -------- CAPITALIZATION Common stock: $0.01 per share par value 150,000,000 shares authorized; 82,957,613 shares outstanding -- -- -- -- -- Class A common stock, $0.01 par value; 10,000,000 shares authorized; 5,742,315 shares outstanding -- -- -- -- -- Additional paid-in capital - - common stock -- -- -- -- -- Additional paid-in capital - - Class A common stock -- -- -- -- -- Retained (deficit) earnings -- -- -- -- -- -------- -------- -------- -------- -------- -- -- -- -- -- Unearned compensation -- -- -- -- -- Accumulated other comprehensive income -- -- -- -- -- -------- -------- -------- -------- -------- Total common stockholders' equity -- -- -- -- -- Preferred stock of subsidiaries: Not subject to mandatory redemption -- -- -- -- -- Subject to mandatory redemption -- -- -- -- -- Company obligated mandatorily redeemable preferred securities of subsidiary trusts holding solely company debentures -- -- -- -- -- Long-term debt -- -- -- -- -- Long-term capital lease obligation -- -- -- -- -- -------- -------- -------- -------- -------- -- -- -- -- -- -------- -------- -------- -------- -------- -------- -------- -------- -------- -------- TOTAL CAPITALIZATION AND LIABILITIES $ -- $ -- $ -- $ -- $ -- ======== ======== ======== ======== ========
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 2A Page 5 Of 6 Conectiv and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 2001 (Dollars in Thousands)
AGI * CRP CONSOLIDATED ------- ------------ CURRENT LIABILITIES Short-term debt $ -- $ -- Long-term debt due within one year -- -- Variable rate demand bonds -- -- Money pool borrowings 30,991 -- Accounts payable 7,108 -- Accounts payable to associated companies -- -- Notes payable to associated companies 20,051 -- Taxes accrued -- -- Interest accrued 1,688 -- Dividends payable -- -- Current capital lease obligation -- -- Above-market purchased energy contracts and other electric restructuring liabilities -- -- Deferred income taxes, net -- -- Derivative instruments -- -- Other 13,369 -- ------- -------- 73,207 -- ------- -------- DEFERRED CREDITS AND OTHER LIABILITIES Other postretirement benefits obligation 6,524 -- Deferred income taxes, net 9,660 -- Deferred investment tax credits -- -- Regulatory liability for New Jersey income tax benefit -- -- Above-market purchased energy contracts and other electric restructuring liabilities -- -- Minority interest liability -- -- Derivative instruments -- -- Other 3,300 -- ------- -------- 19,484 -- ------- -------- CAPITALIZATION Common stock: $0.01 per share par value 150,000,000 shares authorized; 82,957,613 shares outstanding 1 -- Class A common stock, $0.01 par value; 10,000,000 shares authorized; 5,742,315 shares outstanding -- -- Additional paid-in capital - - common stock -- -- Additional paid-in capital - - Class A common stock -- -- Retained (deficit) earnings 37 -- ------- -------- 38 -- Unearned compensation -- -- Accumulated other comprehensive income -- -- ------- -------- Total common stockholders' equity 38 -- Preferred stock of subsidiaries: Not subject to mandatory redemption -- -- Subject to mandatory redemption -- -- Company obligated mandatorily redeemable preferred securities of subsidiary trusts holding solely company debentures -- -- Long-term debt -- -- Long-term capital lease obligation -- -- ------- -------- 38 -- ------- -------- ------- -------- TOTAL CAPITALIZATION AND LIABILITIES $92,729 $ -- ======= ========
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 2A Page 6 Of 6 Delmarva Power and Light Company and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations, Total DPL Reclasses & DPL DPL Consolidated Consol. Entries Parent Financing ------------ --------------- ----------- ----------- CURRENT ASSETS Cash and cash equivalents $ 174,876 $ -- $ 174,876 $ -- Accounts receivable 204,579 -- 204,579 -- Allowance for doubtful accounts (17,270) -- (17,270) -- Accounts receivable from associated companies -- -- -- -- Inventories, at average cost Fuel (coal, oil and gas) 16,353 -- 16,353 -- Materials and supplies 13,636 -- 13,636 -- Deferred energy supply costs 25,525 -- 25,525 -- Other prepayments 35,154 -- 35,154 -- ----------- ----------- ----------- ----------- 452,853 -- 452,853 -- ----------- ----------- ----------- ----------- INVESTMENTS Funds held by trustee 4,213 -- 4,213 -- Investment in consolidated companies -- (2,165) 2,165 -- Other investments 979 (72,165) 979 72,165 ----------- ----------- ----------- ----------- 5,192 (74,330) 7,357 72,165 ----------- ----------- ----------- ----------- PROPERTY, PLANT AND EQUIPMENT Electric generation -- -- -- -- Electric transmission and distribution 1,510,640 -- 1,510,640 -- Gas transmission and distribution 291,053 -- 291,053 -- Other electric and gas facilities 167,612 -- 167,612 -- Other property, plant, and equipment 5,231 -- 5,231 -- ----------- ----------- ----------- ----------- 1,974,536 -- 1,974,536 -- Less: Accumulated depreciation 770,287 -- 770,287 -- ----------- ----------- ----------- ----------- Net plant in service 1,204,249 -- 1,204,249 -- ----------- ----------- ----------- ----------- Construction work-in-progress 76,718 -- 76,718 -- Goodwill, net 65,915 -- 65,915 -- ----------- ----------- ----------- ----------- 1,346,882 -- 1,346,882 -- ----------- ----------- ----------- ----------- DEFERRED CHARGES AND OTHER ASSETS Deferred recoverable income taxes 65,702 -- 65,702 -- Recoverable stranded cost 14,493 -- 14,493 -- Deferred debt refinancing costs 19,879 -- 19,879 -- Other regulatory assets 1,874 -- 1,874 -- Prepaid employee benefits costs 192,181 -- 192,181 -- Unamortized debt expense 10,084 -- 10,084 -- Other 2,586 -- 2,586 -- ----------- ----------- ----------- ----------- 306,799 -- 306,799 -- ----------- ----------- ----------- ----------- TOTAL ASSETS $ 2,111,726 $ (74,330) $ 2,113,891 $ 72,165 =========== =========== =========== ===========
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 2B Page 1 Of 2 Delmarva Power and Light Company and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations, Total DPL Reclasses & DPL DPL Consolidated Consol. Entries Parent Financing ------------ --------------- ----------- ----------- CURRENT LIABILITIES Long-term debt due within one year 75,461 $ -- $ 75,461 $ -- Variable rate demand bonds 104,830 -- 104,830 -- Accounts payable 64,407 -- 64,407 -- Accounts payable to associated companies 20,002 -- 20,002 -- Taxes accrued 119,231 -- 119,231 -- Interest accrued 11,093 -- 11,093 -- Other 79,348 -- 79,348 -- ----------- ----------- ----------- ----------- 474,372 -- 474,372 -- ----------- ----------- ----------- ----------- DEFERRED CREDITS AND OTHER LIABILITIES Deferred income taxes, net 290,319 -- 290,319 -- Deferred investment tax credits 14,504 -- 14,504 -- Above-market purchased energy contracts and other electric restructuring liabilities 68,711 -- 68,711 -- Other 15,516 -- 15,516 -- ----------- ----------- ----------- ----------- 389,050 -- 389,050 -- ----------- ----------- ----------- ----------- CAPITALIZATION Common Stock 2 (2,165) 2 2,165 Additional paid-in capital - - common stock 213,405 -- 213,405 -- Retained (deficit) earnings 364,871 -- 364,871 -- ----------- ----------- ----------- ----------- Total common stockholders' equity 578,278 (2,165) 578,278 2,165 Preferred stock of subsidiaries: Not subject to mandatory redemption 29,583 -- 29,583 -- Company obligated mandatorily redeemable preferred securities of subsidiary trusts holding solely company debentures 70,000 -- -- 70,000 Advances from Associated Companies -- (72,165) 72,165 Long-term debt 569,701 -- 569,701 -- Long-term capital lease obligation 742 -- 742 -- ----------- ----------- ----------- ----------- 1,248,304 (74,330) 1,250,469 72,165 ----------- ----------- ----------- ----------- ----------- ----------- ----------- ----------- TOTAL CAPITALIZATION AND LIABILITIES $ 2,111,726 $ (74,330) $ 2,113,891 $ 72,165 =========== =========== =========== ===========
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 2B Page 2 Of 2 Atlantic City Electric Company and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations, Total ACE Reclasses & ACE ACE ACE Consolidated Consol. Entries Parent Capital I Capital II ------------ --------------- ----------- ----------- ----------- CURRENT ASSETS Cash and cash equivalents $ 14,261 $ -- $ 14,261 $ -- $ -- Accounts receivable 167,483 -- 167,483 -- -- Allowance for doubtful accounts (7,804) -- (7,804) -- -- Intercompany loan receivable (money pool) -- -- -- -- -- Inventories, at average cost Fuel (coal, oil and gas) 20,331 -- 20,331 -- -- Materials and supplies 10,738 -- 10,738 -- -- Prepaid income taxes 41,044 -- 41,044 -- -- Other prepayments 1,756 -- 1,756 -- -- Deferred income taxes, net 181 -- 181 -- -- ----------- ----------- ----------- ----------- ----------- 247,990 -- 247,990 -- -- ----------- ----------- ----------- ----------- ----------- INVESTMENTS Funds held by trustee 3,666 -- 3,666 -- -- Investment in consolidated companies -- (2,938) 2,938 -- -- Other investments -- (97,938) -- 72,165 25,773 ----------- ----------- ----------- ----------- ----------- 3,666 (100,876) 6,604 72,165 25,773 ----------- ----------- ----------- ----------- ----------- PROPERTY, PLANT AND EQUIPMENT Electric generation 136,152 -- 136,152 -- -- Electric transmission and distribution 1,276,896 -- 1,276,896 -- -- Other electric and gas facilities 116,215 -- 116,215 -- -- Other property, plant, and equipment 5,772 -- 5,772 -- -- ----------- ----------- ----------- ----------- ----------- 1,535,035 -- 1,535,035 -- -- Less: Accumulated depreciation 569,495 -- 569,495 -- -- ----------- ----------- ----------- ----------- ----------- Net plant in service 965,540 -- 965,540 -- -- ----------- ----------- ----------- ----------- ----------- Construction work-in-progress 74,780 -- 74,780 -- -- Leased nuclear fuel, at amortized cost -- -- -- -- -- ----------- ----------- ----------- ----------- ----------- 1,040,320 -- 1,040,320 -- -- ----------- ----------- ----------- ----------- ----------- DEFERRED CHARGES AND OTHER ASSETS Recoverable stranded costs 930,036 -- 930,036 -- -- Deferred energy supply costs 106,259 -- 106,259 -- -- Deferred recoverable income taxes 10,979 -- 10,979 -- -- Unrecovered purchased power costs 12,490 -- 12,490 -- -- Other regulatory assets 20,555 -- 20,555 -- -- Deferred debt refinancing costs 11,438 -- 11,438 -- -- Deferred other postretirement benefit costs 27,482 -- 27,482 -- -- Unamortized debt expense 12,966 -- 12,966 -- -- Other 8,149 -- 8,149 -- -- ----------- ----------- ----------- ----------- ----------- 1,140,354 -- 1,140,354 -- -- ----------- ----------- ----------- ----------- ----------- TOTAL ASSETS $ 2,432,330 $ (100,876) $ 2,435,268 $ 72,165 $ 25,773 =========== =========== =========== =========== ===========
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 2C Page 1 Of 2 Atlantic City Electric Company and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations, Total ACE Reclasses & ACE ACE ACE Consolidated Consol. Entries Parent Capital I Capital II ------------ --------------- ----------- ----------- ----------- CURRENT LIABILITIES Short-term debt $ 44,951 $ -- $ 44,951 $ -- $ -- Long-term debt due within one year 221,450 -- 221,450 -- -- Variable rate demand bonds 22,600 -- 22,600 -- -- Accounts payable 52,570 -- 52,570 -- -- Accounts payable from associated companies 5,431 -- 5,431 -- -- Interest accrued 17,224 -- 17,224 -- -- Dividends payable 6,302 -- 6,302 -- -- Above-market purchased energy contracts and other electric restructuring liabilities 442 -- 442 -- -- Other 40,019 -- 40,019 -- -- ----------- ----------- ----------- ----------- ----------- 410,989 -- 410,989 -- -- ----------- ----------- ----------- ----------- ----------- DEFERRED CREDITS AND OTHER LIABILITIES Other postretirement benefits obligation 36,429 -- 36,429 -- -- Deferred income taxes, net 470,420 -- 470,420 -- -- Deferred investment tax credits 28,482 -- 28,482 -- -- Regulatory liability for New Jersey income tax benefit 49,262 -- 49,262 -- -- Above-market purchased energy contracts and other electric restructuring liabilities 16,615 -- 16,615 -- -- Long-term capital lease obligation -- -- -- -- -- Other 48,840 -- 48,840 -- -- ----------- ----------- ----------- ----------- ----------- 650,048 -- 650,048 -- -- ----------- ----------- ----------- ----------- ----------- CAPITALIZATION Common stock 54,963 (2,938) 54,963 2,165 773 Additional paid-in capital - - common stock 410,194 -- 410,194 -- -- Retained (deficit) earnings 156,152 -- 156,152 -- -- ----------- ----------- ----------- ----------- ----------- Total common stockholders' equity 621,309 (2,938) 621,309 2,165 773 Preferred stock of subsidiaries: Not subject to mandatory redemption 6,231 -- 6,231 -- -- Subject to mandatory redemption 12,450 -- 12,450 -- -- Company obligated mandatorily redeemable preferred securities of subsidiary trusts holding solely company debentures 95,000 -- -- 70,000 25,000 Advances from associated companies -- (97,938) 97,938 Long-term debt 636,303 -- 636,303 -- -- ----------- ----------- ----------- ----------- ----------- 1,371,293 (100,876) 1,374,231 72,165 25,773 ----------- ----------- ----------- ----------- ----------- ----------- ----------- ----------- ----------- ----------- TOTAL CAPITALIZATION AND LIABILITIES $ 2,432,330 $ (100,876) $ 2,435,268 $ 72,165 $ 25,773 =========== =========== =========== =========== ===========
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 2C Page 2 Of 2 Conectiv Properties and Investments, Inc. and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations,* Total CPI* Reclasses & CPI* Consolidated Consol. Entries Parent DCI I* DCI II* Burney* ------------ --------------- --------- --------- --------- -------- CURRENT ASSETS Cash and cash equivalents $ -- $ -- $ -- $ -- $ -- $ -- Accounts receivable -- -- -- -- -- -- Accounts receivable from associated companies -- -- -- -- -- -- Other prepayments -- -- -- -- -- -- --------- --------- --------- --------- --------- -------- -- -- -- -- -- -- --------- --------- --------- --------- --------- -------- INVESTMENTS Investment in leveraged leases -- -- -- -- -- -- Investment in consolidated companies -- -- -- -- -- -- Other investments -- -- -- -- -- -- --------- --------- --------- --------- --------- -------- -- -- -- -- -- -- --------- --------- --------- --------- --------- -------- PROPERTY, PLANT AND EQUIPMENT Other property, plant, and equipment -- -- -- -- -- -- --------- --------- --------- --------- --------- -------- -- -- -- -- -- -- Less: Accumulated depreciation -- -- -- -- -- -- --------- --------- --------- --------- --------- -------- Net plant in service -- -- -- -- -- -- Construction work-in-progress -- -- -- -- -- -- --------- --------- --------- --------- --------- -------- -- -- -- -- -- -- --------- --------- --------- --------- --------- -------- DEFERRED CHARGES AND OTHER ASSETS Unamortized debt expense -- -- -- -- -- -- Other -- -- -- -- -- -- --------- --------- --------- --------- --------- -------- -- -- -- -- -- -- --------- --------- --------- --------- --------- -------- TOTAL ASSETS $ -- $ -- $ -- $ -- $ -- $ -- ========= ========= ========= ========= ========= ========
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 2D Page 1 Of 2 Conectiv Properties and Investments, Inc. and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations,* Total CPI* Reclasses & CPI* Consolidated Consol. Entries Parent DCI I* DCI II* Burney* ------------ --------------- -------- -------- -------- -------- CURRENT LIABILITIES Money pool borrowings $ -- $ -- $ -- $ -- $ -- $ -- Accounts payable to associated companies -- -- -- -- -- -- Long-term debt due within one year -- -- -- -- -- -- Accounts payable -- -- -- -- -- -- Taxes accrued -- -- -- -- -- -- Interest accrued -- -- -- -- -- -- Other -- -- -- -- -- -- -------- -------- -------- -------- -------- -------- -- -- -- -- -- -- -------- -------- -------- -------- -------- -------- DEFERRED CREDITS AND OTHER LIABILITIES Deferred income taxes, net -- -- -- -- -- -- Minority interest liability -- -- -- -- -- -- Other -- -- -- -- -- -- -------- -------- -------- -------- -------- -------- -- -- -- -- -- -- -------- -------- -------- -------- -------- -------- CAPITALIZATION Common stock -- -- -- -- -- -- Additional paid-in capital - - common stock -- -- -- -- -- -- Retained (deficit) earnings -- -- -- -- -- -- -------- -------- -------- -------- -------- -------- Total common stockholders' equity -- -- -- -- -- -- -------- -------- -------- -------- -------- -------- Long-term debt -- -- -- -- -- -- -------- -------- -------- -------- -------- -------- -- -- -- -- -- -- -------- -------- -------- -------- -------- -------- -------- -------- -------- -------- -------- -------- TOTAL CAPITALIZATION AND LIABILITIES $ -- $ -- $ -- $ -- $ -- $ -- ======== ======== ======== ======== ======== ========
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 2D Page 2 Of 2 Conectiv Energy Holding Company and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations,* Total CEH* Reclasses & ACE * Consolidated Consol. Entries CEH* CESI* COSC* REIT ------------ --------------- -------- -------- -------- -------- CURRENT ASSETS Cash and cash equivalents $ -- $ -- $ -- $ -- $ -- $ -- Accounts receivable -- -- -- -- -- -- Allowance for doubtful accounts -- -- -- -- -- -- Accounts receivable from associated companies -- -- -- -- -- -- Inventories, at average cost Fuel (coal, oil and gas) -- -- -- -- -- -- Materials and supplies -- -- -- -- -- -- Prepaid income tax -- -- -- -- -- -- Other prepayments -- -- -- -- -- -- -------- -------- -------- -------- -------- -------- -- -- -- -- -- -- -------- -------- -------- -------- -------- -------- INVESTMENTS Investment in consolidated companies -- -- -- -- -- -- Note receivable from associated companies -- -- -- -- -- -- Funds held by trustee -- -- -- -- -- -- Other investments -- -- -- -- -- -- -------- -------- -------- -------- -------- -------- -- -- -- -- -- -- -------- -------- -------- -------- -------- -------- PROPERTY, PLANT AND EQUIPMENT Electric generation -- -- -- -- -- -- Other electric and gas facilities -- -- -- -- -- -- Other property, plant, and equipment -- -- -- -- -- -- -------- -------- -------- -------- -------- -------- -- -- -- -- -- -- Less: Accumulated depreciation -- -- -- -- -- -- -------- -------- -------- -------- -------- -------- Net plant in service -- -- -- -- -- -- -------- -------- -------- -------- -------- -------- Construction work-in-progress -- -- -- -- -- -- Goodwill, net -- -- -- -- -- -- -------- -------- -------- -------- -------- -------- -- -- -- -- -- -- -------- -------- -------- -------- -------- -------- DEFERRED CHARGES AND OTHER ASSETS Prepaid employee benefits costs -- -- -- -- -- -- Deferred income taxes, net -- -- -- -- -- -- Other -- -- -- -- -- -- -------- -------- -------- -------- -------- -------- -- -- -- -- -- -- -------- -------- -------- -------- -------- -------- TOTAL ASSETS $ -- $ -- $ -- $ -- $ -- $ -- ======== ======== ======== ======== ======== ========
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 2E Page 1 Of 4 Conectiv Energy Holding Company and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 2001 (Dollars in Thousands)
CAG* CDG* CMM* CBI* -------- -------- -------- -------- CURRENT ASSETS Cash and cash equivalents $ -- $ -- $ -- $ -- Accounts receivable -- -- -- -- Allowance for doubtful accounts -- -- -- -- Accounts receivable from associated companies -- -- -- -- Inventories, at average cost Fuel (coal, oil and gas) -- -- -- -- Materials and supplies -- -- -- -- Prepaid income tax -- -- -- -- Other prepayments -- -- -- -- -------- -------- -------- -------- -- -- -- -- -------- -------- -------- -------- INVESTMENTS Investment in consolidated companies -- -- -- -- Note receivable from associated companies -- -- -- -- Funds held by trustee -- -- -- -- Other investments -- -- -- -- -------- -------- -------- -------- -- -- -- -- -------- -------- -------- -------- PROPERTY, PLANT AND EQUIPMENT Electric generation -- -- -- -- Other electric and gas facilities -- -- -- -- Other property, plant, and equipment -- -- -- -- -------- -------- -------- -------- -- -- -- -- Less: Accumulated depreciation -- -- -- -- -------- -------- -------- -------- Net plant in service -- -- -- -- -------- -------- -------- -------- Construction work-in-progress -- -- -- -- Goodwill, net -- -- -- -- -------- -------- -------- -------- -- -- -- -- -------- -------- -------- -------- DEFERRED CHARGES AND OTHER ASSETS Prepaid employee benefits costs -- -- -- -- Deferred income taxes, net -- -- -- -- Other -- -- -- -- -------- -------- -------- -------- -- -- -- -- -------- -------- -------- -------- TOTAL ASSETS $ -- $ -- $ -- $ -- ======== ======== ======== ========
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 2E Page 2 Of 4 Conectiv Energy Holding Company and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations,* Total CEH* Reclasses & ACE * Consolidated Consol. Entries CEH* CESI* COSC* REIT ------------ --------------- -------- -------- -------- -------- CURRENT LIABILITIES Money pool borrowings $ -- $ -- $ -- $ -- $ -- $ -- Accounts payable -- -- -- -- -- -- Accounts payable to associated companies -- -- -- -- -- -- Notes payable to associated companies -- -- -- -- -- -- Taxes accrued -- -- -- -- -- -- Interest accrued -- -- -- -- -- -- Derivative instruments -- -- -- -- -- -- Other -- -- -- -- -- -- -------- -------- -------- -------- -------- -------- -- -- -- -- -- -- -------- -------- -------- -------- -------- -------- DEFERRED CREDITS AND OTHER LIABILITIES Other postretirement benefits obligation -- -- -- -- -- -- Deferred income taxes, net -- -- -- -- -- -- Deferred investment tax credits -- -- -- -- -- -- Derivative instruments -- -- -- -- -- -- Other -- -- -- -- -- -- -------- -------- -------- -------- -------- -------- -- -- -- -- -- -- -------- -------- -------- -------- -------- -------- CAPITALIZATION Common stock -- -- -- -- -- -- Additional paid-in capital - - common stock -- -- -- -- -- -- Retained (deficit) earnings -- -- -- -- -- -- -------- -------- -------- -------- -------- -------- -- -- -- -- -- -- Other comprehensive income -- -- -- -- -- -- -------- -------- -------- -------- -------- -------- Total common stockholders' equity -- -- -- -- -- -- -------- -------- -------- -------- -------- -------- TOTAL CAPITALIZATION AND LIABILITIES $ -- $ -- $ -- $ -- $ -- $ -- ======== ======== ======== ======== ======== ========
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 2E Page 3 Of 4 Conectiv Energy Holding Company and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 2001 (Dollars in Thousands)
CAG* CDG* CMM* CBI* -------- -------- -------- -------- CURRENT LIABILITIES Money pool borrowings $ -- $ -- $ -- $ -- Accounts payable -- -- -- -- Accounts payable to associated companies -- -- -- -- Notes payable to associated companies -- -- -- -- Taxes accrued -- -- -- -- Interest accrued -- -- -- -- Derivative instruments -- -- -- -- Other -- -- -- -- -------- -------- -------- -------- -- -- -- -- -------- -------- -------- -------- DEFERRED CREDITS AND OTHER LIABILITIES Other postretirement benefits obligation -- -- -- -- Deferred income taxes, net -- -- -- -- Deferred investment tax credits -- -- -- -- Derivative instruments -- -- -- -- Other -- -- -- -- -------- -------- -------- -------- -- -- -- -- -------- -------- -------- -------- CAPITALIZATION Common stock -- -- -- -- Additional paid-in capital - - common stock -- -- -- -- Retained (deficit) earnings -- -- -- -- -------- -------- -------- -------- -- -- -- -- Other comprehensive income -- -- -- -- -------- -------- -------- -------- Total common stockholders' equity -- -- -- -- -------- -------- -------- -------- TOTAL CAPITALIZATION AND LIABILITIES $ -- $ -- $ -- $ -- ======== ======== ======== ========
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 2E Page 4 Of 4 Conectiv Communications, Inc. Consolidating Balance Sheet For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations,* Total CCI* Reclasses & CCI* Consolidated Consol. Entries Parent ------------ --------------- -------- CURRENT ASSETS Cash and cash equivalents $ -- $ -- $ -- Accounts receivable -- -- -- Inventories, at average cost Materials and supplies -- -- -- Prepaid income taxes -- -- -- Other prepayments -- -- -- Deferred income taxes, net -- -- -- -------- -------- -------- -- -- -- -------- -------- -------- INVESTMENTS Note receivable from associated companies -- -- -- Note receivable -- -- -- -------- -------- -------- -- -- -- -------- -------- -------- PROPERTY, PLANT AND EQUIPMENT Other property, plant, and equipment -- -- -- -------- -------- -------- -- -- -- Less: Accumulated depreciation -- -- -- -------- -------- -------- Net plant in service -- -- -- -------- -------- -------- Construction work-in-progress -- -- -- Goodwill, net -- -- -- -------- -------- -------- -- -- -- -------- -------- -------- DEFERRED CHARGES AND OTHER ASSETS -------- -------- -------- Prepaid employee benefits costs -- -- -- -------- -------- -------- TOTAL ASSETS $ -- $ -- $ -- ======== ======== ========
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 2F Page 1 Of 2 Conectiv Communications, Inc. Consolidating Balance Sheet For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations,* Total CCI* Reclasses & CCI* Consolidated Consol. Entries Parent ------------ --------------- -------- CURRENT LIABILITIES Accounts payable $ -- $ -- $ -- Accounts payable to associated companies -- -- -- Notes payable to associated companies -- -- -- Other -- -- -- -------- -------- -------- -- -- -- -------- -------- -------- DEFERRED CREDITS AND OTHER LIABILITIES -------- -------- -------- Other postretirement benefits obligation -- -- -- -------- -------- -------- CAPITALIZATION Common stock -- -- -- Additional paid-in capital - - common stock -- -- -- Retained (deficit) earnings -- -- -- -------- -------- -------- Total common stockholders' equity -- -- -- -------- -------- -------- Preferred stock -- -- -- -------- -------- -------- -------- -------- -------- TOTAL CAPITALIZATION AND LIABILITIES $ -- $ -- $ -- ======== ======== ========
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 2F Page 2 Of 2 Conectiv Solutions LLC and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations,* Total Solutions* Reclasses & Solutions* Consolidated Consol. Entries Parent ----------- ----------- ----------- CURRENT ASSETS Cash and cash equivalents $ -- $ -- $ -- Accounts receivable -- -- -- Allowance for doubtful accounts -- -- -- Inventories, at average cost Fuel (coal, oil and gas) -- -- -- Materials and supplies -- -- -- Prepaid income taxes -- -- -- Other prepayments -- -- -- ---------- ---------- ----------- -- -- -- ---------- ---------- ----------- INVESTMENTS Investment in leveraged leases -- -- -- Funds held by trustee -- -- -- Notes receivable -- -- -- Notes receivable from associated companies -- -- -- Investment in consolidated companies -- -- -- Other investments -- -- -- ---------- ---------- ----------- -- -- -- ---------- ---------- ----------- PROPERTY, PLANT AND EQUIPMENT Other property, plant, and equipment -- -- -- ---------- ---------- ----------- -- -- -- ---------- ---------- ----------- Less: Accumulated depreciation -- -- -- ---------- ---------- ----------- Net plant in service -- -- -- Construction work-in-progress -- -- -- Goodwill, net -- -- -- ---------- ---------- ----------- -- -- -- ---------- ---------- ----------- DEFERRED CHARGES AND OTHER ASSETS Prepaid employee benefits costs -- -- -- Deferred income taxes, net -- -- -- Unamortized debt expense -- -- -- License fees -- -- -- Other -- -- -- ---------- ---------- ----------- -- -- -- ---------- ---------- ----------- TOTAL ASSETS $ -- $ -- $ -- ========== ========== ===========
ATE* Elimination* Consolidated ATE/KSA ATE* ------------ ------------ ------------ CURRENT ASSETS Cash and cash equivalents $ -- $ -- $ -- Accounts receivable -- -- -- Allowance for doubtful accounts -- -- -- Inventories, at average cost Fuel (coal, oil and gas) -- -- -- Materials and supplies -- -- -- Prepaid income taxes -- -- -- Other prepayments -- -- -- ---------- ---------- ----------- -- -- -- ---------- ---------- ----------- INVESTMENTS Investment in leveraged leases -- -- -- Funds held by trustee -- -- -- Notes receivable -- -- -- Notes receivable from associated companies -- -- -- Investment in consolidated companies -- -- -- Other investments -- -- -- ---------- ---------- ----------- -- -- -- ---------- ---------- ----------- PROPERTY, PLANT AND EQUIPMENT Other property, plant, and equipment -- -- -- ---------- ---------- ----------- -- -- -- ---------- ---------- ----------- Less: Accumulated depreciation -- -- -- ---------- ---------- ----------- Net plant in service -- -- -- Construction work-in-progress -- -- -- Goodwill, net -- -- -- ---------- ---------- ----------- -- -- -- ---------- ---------- ----------- DEFERRED CHARGES AND OTHER ASSETS Prepaid employee benefits costs -- -- -- Deferred income taxes, net -- -- -- Unamortized debt expense -- -- -- License fees -- -- -- Other -- -- -- ---------- ---------- ----------- -- -- -- ---------- ---------- ----------- TOTAL ASSETS $ -- $ -- $ -- ========== ========== ===========
Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F-2G Page 1 Of 4 Conectiv Solutions LLC and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 2001 (Dollars in Thousands)
CSI* KSA* Consolidated --------- ------------- Current Assets Cash and cash equivalents $ -- $ -- Accounts receivable -- -- Allowance for doubtful accounts -- -- Inventories, at average cost Fuel (coal, oil and gas) -- -- Materials and supplies -- -- Prepaid income taxes -- -- Other prepayments -- -- --------- ---------- -- -- --------- ---------- Investments Investment in leveraged leases -- -- Funds held by trustee -- -- Notes receivable -- -- Notes receivable from associated companies -- -- Investment in consolidated companies -- -- Other investments -- -- --------- ---------- -- -- --------- ---------- Property, Plant and Equipment Other property, plant, and equipment -- -- --------- ---------- -- -- Less: Accumulated depreciation -- -- --------- ---------- Net plant in service -- -- --------- ---------- Construction work-in-progress -- -- Goodwill, net -- -- --------- ---------- -- -- --------- ---------- Deferred Charges and Other Assets Prepaid employee benefits costs -- -- Deferred income taxes, net -- -- Unamortized debt expense -- -- License fees -- -- Other -- -- --------- ---------- -- -- --------- ---------- Total Assets $ -- $ -- ========= ==========
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F-2G Page 2 Of 4 Conectiv Solutions LLC and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations,* Total Solutions* Reclasses & Solutions* ATE* Consolidated Consol. Entries Parent Consolidated ---------------- --------------- ---------- ------------ CURRENT LIABILITIES Long-term debt due within one year $ -- $ -- $ -- $ -- Variable rate demand bonds -- -- -- -- Money pool borrowing -- -- -- -- Accounts payable -- -- -- -- Accounts payable to associated companies -- -- -- -- Taxes accrued -- -- -- -- Interest accrued -- -- -- -- Notes payable to associated companies -- -- -- -- Other -- -- -- -- ------------- -------------- ----------- ------------- -- -- -- -- ------------- -------------- ----------- ------------- DEFERRED CREDITS AND OTHER LIABILITIES Other postretirement benefits obligation -- -- -- -- Deferred income taxes, net -- -- -- -- Minority interest liability -- -- -- -- Other -- -- -- -- ------------- -------------- ----------- ------------- -- -- -- -- ------------- -------------- ----------- ------------- CAPITALIZATION Common stock -- -- -- -- Additional paid-in capital - - common stock -- -- -- -- Retained (deficit) earnings -- -- -- -- ------------- -------------- ----------- ------------- -- -- -- -- Other comprehensive income -- -- -- -- ------------- -------------- ----------- ------------- Total common stockholders' equity -- -- -- -- Long-term debt -- -- -- -- ------------- -------------- ----------- ------------- -- -- -- -- ------------- -------------- ----------- ------------- ------------- -------------- ----------- ------------- TOTAL CAPITALIZATION AND LIABILITIES $ -- $ -- $ -- $ -- ============= ============== =========== =============
Elimination* ATE/KSA ATE* ------------ --------- CURRENT LIABILITIES Long-term debt due within one year $ -- $ -- Variable rate demand bonds -- -- Money pool borrowing -- -- Accounts payable -- -- Accounts payable to associated companies -- -- Taxes accrued -- -- Interest accrued -- -- Notes payable to associated companies -- -- Other -- -- ------------ --------- -- -- ------------ --------- DEFERRED CREDITS AND OTHER LIABILITIES Other postretirement benefits obligation -- -- Deferred income taxes, net -- -- Minority interest liability -- -- Other -- -- ------------ --------- -- -- ------------ --------- CAPITALIZATION Common stock -- -- Additional paid-in capital - - common stock -- -- Retained (deficit) earnings -- -- ------------ --------- -- -- Other comprehensive income -- -- ------------ --------- Total common stockholders' equity -- -- Long-term debt -- -- ------------ --------- -- -- ------------ --------- ------------ --------- TOTAL CAPITALIZATION AND LIABILITIES $ -- $ -- ============ =========
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F-2G Page 3 Of 4 Conectiv Solutions LLC and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 2001 (Dollars in Thousands)
CSI* KSA* Consolidated ----------- ------------ CURRENT LIABILITIES Long-term debt due within one year $ -- $ -- Variable rate demand bonds -- -- Money pool borrowing -- -- Accounts payable -- -- Accounts payable to associated companies -- -- Taxes accrued -- -- Interest accrued -- -- Notes payable to associated companies -- -- Other -- -- ----------- ------------ -- -- ----------- ------------ DEFERRED CREDITS AND OTHER LIABILITIES Other postretirement benefits obligation -- -- Deferred income taxes, net -- -- Minority interest liability -- -- Other -- -- ----------- ------------ -- -- ----------- ------------ CAPITALIZATION Common stock -- -- Additional paid-in capital - - common stock -- -- Retained (deficit) earnings -- -- ----------- ------------ -- -- Other comprehensive income -- -- ----------- ------------ Total common stockholders' equity -- -- Long-term debt -- -- ----------- ------------ -- -- ----------- ------------ ----------- ------------ TOTAL CAPITALIZATION AND LIABILITIES $ -- $ -- =========== ============
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F-2G Page 4 Of 4 Conectiv Services, Inc. and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations,* Total CSI* Reclasses & CSI* CTS* Consolidated Consol. Entries Parent Plumbing* Consolidated ------------ --------------- -------- ---------- ------------ CURRENT ASSETS Cash and cash equivalents $-- $-- $-- $-- $-- Accounts receivable -- -- -- -- -- Allowance for doubtful accounts -- -- -- -- -- Inventories, at average cost Fuel (coal, oil and gas) -- -- -- -- -- Materials and supplies -- -- -- -- -- Prepaid income taxes -- -- -- -- -- Other prepayments -- -- -- -- -- ------------ --------------- -------- ---------- ------------ -- -- -- -- -- ------------ --------------- -------- ---------- ------------ INVESTMENTS Funds held by trustee -- -- -- -- -- Investment in consolidated companies -- -- -- -- -- Note receivable -- -- -- -- -- Other investments -- -- -- -- -- ------------ --------------- -------- ---------- ------------ -- -- -- -- -- ------------ --------------- -------- ---------- ------------ PROPERTY, PLANT AND EQUIPMENT Other property, plant, and equipment -- -- -- -- -- ------------ --------------- -------- ---------- ------------ -- -- -- -- -- Less: Accumulated depreciation -- -- -- -- -- ------------ --------------- -------- ---------- ------------ Net plant in service -- -- -- -- -- ------------ --------------- -------- ---------- ------------ Construction work-in-progress -- -- -- -- -- ------------ --------------- -------- ---------- ------------ -- -- -- -- -- ------------ --------------- -------- ---------- ------------ DEFERRED CHARGES AND OTHER ASSETS Prepaid employee benefits costs -- -- -- -- -- Deferred income taxes, net -- -- -- -- -- Unamortized debt expense -- -- -- -- -- License fees -- -- -- -- -- Other -- -- -- -- -- ------------ --------------- -------- ---------- ------------ -- -- -- -- -- ------------ --------------- -------- ---------- ------------ TOTAL ASSETS $-- $-- $-- $-- $-- ============ =============== ======== ========== ============
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F-2H Page 1 Of 2 Conectiv Services, Inc. and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations,* Total CSI* Reclasses & CSI* CTS* Consolidated Consol. Entries Parent Plumbing* Consolidated ------------- ---------------- -------- --------- ----------- CURRENT LIABILITIES Long-term debt due within one year $-- $-- $-- $-- $-- Variable rate demand bonds -- -- -- -- -- Money pool borrowing -- -- -- -- -- Accounts payable -- -- -- -- -- Accounts payable to associated companies -- -- -- -- -- Taxes accrued -- -- -- -- -- Interest accrued -- -- -- -- -- Note payable to associated companies -- -- -- -- -- Other -- -- -- -- -- ------------- ---------------- -------- --------- ----------- -- -- -- -- -- ------------- ---------------- -------- --------- ----------- DEFERRED CREDITS AND OTHER LIABILITIES Other postretirement benefits obligation -- -- -- -- -- Deferred income taxes, net -- -- -- -- -- Other -- -- -- -- -- ------------- ---------------- -------- --------- ----------- -- -- -- -- -- ------------- ---------------- -------- --------- ----------- CAPITALIZATION Common stock -- -- -- -- -- Additional paid-in capital - - common stock -- -- -- -- -- Additional paid-in capital - - Class A common stock -- -- -- -- -- Retained (deficit) earnings -- -- -- -- -- ------------- ---------------- -------- --------- ----------- Total common stockholders' equity -- -- -- -- -- Long-term debt -- -- -- -- -- ------------- ---------------- -------- --------- ----------- -- -- -- -- -- ------------- ---------------- -------- --------- ----------- ------------- ---------------- -------- --------- ----------- TOTAL CAPITALIZATION AND LIABILITIES $-- $-- $-- $-- $-- ============= ================ ======== ========= ===========
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F-2H Page 2 Of 2 Conectiv Thermal Systems, Inc. and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations,* Total CTS* Reclasses & CTS* Consolidated Consol. Entries Parent ATS* AJTS* TELP* ------------ -------------- ---------- --------- --------- ------ CURRENT ASSETS Cash and cash equivalents $-- $-- $-- $-- $-- $-- Accounts receivable -- -- -- -- -- -- Accounts receivable from associated companies -- -- -- -- -- -- Inventories, at average cost Fuel (coal, oil and gas) -- -- -- -- -- -- Materials and supplies -- -- -- -- -- -- Prepaid income taxes -- -- -- -- -- -- Other prepayments -- -- -- -- -- -- ------------ -------------- ---------- --------- --------- ------ -- -- -- -- -- -- ------------ -------------- ---------- --------- --------- ------ INVESTMENTS Funds held by trustee -- -- -- -- -- -- Investment in consolidated companies -- -- -- -- -- -- Other investments -- -- -- -- -- -- ------------ -------------- ---------- --------- --------- ------ -- -- -- -- -- -- ------------ -------------- ---------- --------- --------- ------ PROPERTY, PLANT AND EQUIPMENT Other property, plant, and equipment -- -- -- -- -- -- ------------ -------------- ---------- --------- --------- ------ -- -- -- -- -- -- Less: Accumulated depreciation -- -- -- -- -- -- ------------ -------------- ---------- --------- --------- ------ Net plant in service -- -- -- -- -- -- ------------ -------------- ---------- --------- --------- ------ Construction work-in-progress -- -- -- -- -- -- ------------ -------------- ---------- --------- --------- ------ -- -- -- -- -- -- ------------ -------------- ---------- --------- --------- ------ DEFERRED CHARGES AND OTHER ASSETS Prepaid employee benefits costs -- -- -- -- -- -- Deferred income taxes, net -- -- -- -- -- -- Unamortized debt expense -- -- -- -- -- -- License fees -- -- -- -- -- -- Other -- -- -- -- -- -- ------------ -------------- ---------- --------- --------- ------ -- -- -- -- -- -- ------------ -------------- ---------- --------- --------- ------ TOTAL ASSETS $-- $-- $-- $-- $-- $-- ============ ============== ========== ========= ========= =====
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F-2I Page 1 Of 2 Conectiv Thermal Systems, Inc. and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations,* Total CTS* Reclasses & CTS* Consolidated Consol. Entries Parent ATS* AJTS* TELP* ------------ ---------------- --------- ------- ------- ------- CURRENT LIABILITIES Variable rate demand bonds $-- $-- $-- $-- $-- $-- Money pool borrowing -- -- -- -- -- -- Accounts payable -- -- -- -- -- -- Accounts payable to associated companies -- -- -- -- -- -- Taxes accrued -- -- -- -- -- -- Interest accrued -- -- -- -- -- -- Note payable to associated companies -- -- -- -- -- -- Other -- -- -- -- -- -- ------------ ---------------- --------- ------- ------- ------- --- --- --- --- --- --- ------------ ---------------- --------- ------- ------- ------- DEFERRED CREDITS AND OTHER LIABILITIES Other postretirement benefits obligation -- -- -- -- -- -- Deferred income taxes, net -- -- -- -- -- -- Other -- -- -- -- -- -- ------------ ---------------- --------- ------- ------- ------- --- --- --- --- --- --- ------------ ---------------- --------- ------- ------- ------- CAPITALIZATION Additional paid-in capital - - common stock -- -- -- -- -- -- Retained (deficit) earnings -- -- -- -- -- -- ------------ ---------------- --------- ------- ------- ------- Total common stockholders' equity -- -- -- -- -- -- ------------ ---------------- --------- ------- ------- ------- ------------ ---------------- --------- ------- ------- ------- TOTAL CAPITALIZATION AND LIABILITIES $-- $-- $-- $-- $-- $-- ============ ================ ========= ======= ======= =======
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F-2I Page 2 Of 2 Atlantic Generation, Inc. and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations,* Total AGI* Reclasses & AGI* Consolidated Consol. Entries Parent Vin LTD* ------------ --------------- ---------- ----------- CURRENT ASSETS Accounts receivable $-- $-- $-- $-- Accounts receivable from associated companies -- -- -- -- Prepaid income taxes -- -- -- -- ------------ --------------- ---------- ----------- -- -- -- -- ------------ --------------- ---------- ----------- INVESTMENTS Investment in consolidated companies -- -- -- -- Other investments -- -- -- -- ------------ --------------- ---------- ----------- -- -- -- -- ------------ --------------- ---------- ----------- PROPERTY, PLANT AND EQUIPMENT Other property, plant, and equipment -- -- -- -- ------------ --------------- ---------- ----------- -- -- -- -- Less: Accumulated depreciation -- -- -- -- ------------ --------------- ---------- ----------- Net plant in service -- -- -- -- ------------ --------------- ---------- ----------- DEFERRED CHARGES AND OTHER ASSETS Deferred income taxes, net -- -- -- -- Other -- -- -- -- ------------ --------------- ---------- ----------- -- -- -- -- ------------ --------------- ---------- ----------- ------------ --------------- ---------- ----------- TOTAL ASSETS $-- $-- $-- $-- ============ =============== =========== ===========
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F-2J Page 1 Of 4 Atlantic Generation, Inc. and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 2001 (Dollars in Thousands)
Vin Gen* Bing LTD Bing Gen* Ped Gen* ---------- ---------- ----------- ---------- CURRENT ASSETS Accounts receivable $-- $-- $-- $-- Accounts receivable from associated companies -- -- -- -- Prepaid income taxes -- -- -- -- ---------- ---------- ----------- ---------- -- -- -- -- ---------- ---------- ----------- ---------- INVESTMENTS Investment in consolidated companies -- -- -- -- Other investments -- -- -- -- ---------- ---------- ----------- ---------- -- -- -- -- ---------- ---------- ----------- ---------- PROPERTY, PLANT AND EQUIPMENT Other property, plant, and equipment -- -- -- -- ---------- ---------- ----------- ---------- -- -- -- -- Less: Accumulated depreciation -- -- -- -- ---------- ---------- ----------- ---------- Net plant in service -- -- -- -- ---------- ---------- ----------- ---------- DEFERRED CHARGES AND OTHER ASSETS Deferred income taxes, net -- -- -- -- Other -- -- -- -- ---------- ---------- ----------- ---------- -- -- -- -- ---------- ---------- ----------- ---------- TOTAL ASSETS $-- $-- $-- $-- ========== ========== =========== ==========
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F-2J Page 2 Of 4 Atlantic Generation, Inc. and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations,* Total AGI* Reclasses & AGI* Consolidated Consol. Entries Parent Vin LTD* ------------ --------------- ------------ ----------- CURRENT LIABILITIES Money pool borrowings $-- $-- $-- $-- Accounts payable -- -- -- -- Accounts payable to associated companies -- -- -- -- Interest accrued -- -- -- -- ------------ --------------- ------------ ----------- --- --- --- --- ------------ --------------- ------------ ----------- DEFERRED CREDITS AND OTHER LIABILITIES Deferred income taxes, net -- -- -- -- Other -- -- -- -- ------------ --------------- ------------ ----------- --- --- --- --- ------------ --------------- ------------ ----------- CAPITALIZATION Common stock -- -- -- -- Additional paid-in capital - - common stock -- -- -- -- Retained (deficit) earnings -- -- -- -- ------------ --------------- ------------ ----------- Total common stockholders' equity -- -- -- -- ------------ --------------- ------------ ----------- ------------ --------------- ------------ ----------- TOTAL CAPITALIZATION AND LIABILITIES $-- $-- $-- $-- ============ =============== ============ ===========
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F-2J Page 3 Of 4 Atlantic Generation, Inc. and Subsidiaries Consolidating Balance Sheet For the Year Ended December 31, 2001 (Dollars in Thousands)
Vin Gen* Bing LTD Bing Gen* Ped Gen* --------- ---------- ---------- ----------- CURRENT LIABILITIES Money pool borrowings $-- $-- $-- $-- Accounts payable -- -- -- -- Accounts payable to associated companies -- -- -- -- Interest accrued -- -- -- -- --------- ---------- ---------- ----------- --- --- --- --- --------- ---------- ---------- ----------- DEFERRED CREDITS AND OTHER LIABILITIES Deferred income taxes, net -- -- -- -- Other -- -- -- -- --------- ---------- ---------- ----------- --- --- --- --- --------- ---------- ---------- ----------- CAPITALIZATION Common stock -- -- -- -- Additional paid-in capital - - common stock -- -- -- -- Retained (deficit) earnings -- -- -- -- --------- ---------- ---------- ----------- Total common stockholders' equity -- -- -- -- --------- ---------- ---------- ----------- --------- ---------- ---------- ----------- TOTAL CAPITALIZATION AND LIABILITIES $-- $-- $-- $-- ========= ========== ========== ===========
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F-2J Page 4 Of 4 Conectiv and Subsidiaries Consolidating Statement of Cash Flows For the Year Ended December 31, 2001 (Dollars in Thousands)
ELIMINATIONS TOTAL RECLASSES & CONECTIV DPL CONECTIV CONSOLIDATIONS PARENT CONSOLIDATED -------- -------------- ------ ------------ CASH FLOWS FROM OPERATING ACTIVITIES Net income (loss) $ 248,248 ($ 276,361) $ 248,248 $ 200,619 Adjustments to reconcile net income (loss) to net cash provided by operating activities Equity in loss / (earnings) of subsidiaries -- 286,594 (286,594) -- Minority Interest -- -- -- -- Extraordinary item, net of income taxes 2,790 -- -- 2,790 Gain on sales of electric plants (221,224) -- -- (221,224) Dissolution of CCI Virginia (7) (7) -- -- Deferred gain on contract termination (73,014) (73,014) -- -- Loss on sale of telecommunication assets -- -- -- -- Sale of Plumbing assets (6,717) (6,717) -- -- Depreciation and amortization 212,442 11,385 -- 95,361 Investment tax credit adjustments, net 1,403 14,773 -- (6,001) Deferred income taxes, net 72,250 32,961 -- (46,343) Deferred electric service and energy supply costs (142,756) 434 -- -- Pension expense credit -- 18,618 -- (18,618) Net change in: Accounts receivable (13,298) (145,949) 410 107,892 Inventories (27,468) (474) -- (11,349) Notes payable to associated companies -- 67 -- -- Accounts payable (57,829) 31,475 -- (90,146) Prepaid New Jersey sales and excise taxes -- (7,145) -- -- Accrued/Prepaid Taxes 59,041 19,121 (6,582) 94,270 Dividends received from subsidiaries (32,550) (229,628) 197,078 -- Other current assets & liabilities(1) (55,249) (28,545) (1,605) (20,751) Other, net 70,922 91,698 7,250 (25,751) --------- ----------- --------- --------- Net cash provided by operating activities 36,984 (260,714) 158,205 60,749 --------- ----------- --------- --------- CASH FLOWS FROM INVESTING ACTIVITIES Investment in partnerships (2,064) (2,064) -- -- Money pool borrowings (390,813) (290,820) -- -- Notes receivable from associated companies 393,746 465,967 (72,221) -- Capital expenditures (154,792) (1,272) (1,047) (85,593) Proceeds from sales of electric generating plants 556,898 (885) -- 528,215 Proceeds from sale of other assets 2,694 (5,849) -- 8,543 Capital contributions to subsidiaries -- 54,264 (54,264) -- Return of invested capital from subsidiaries -- (42,098) 42,098 -- Deposits to nuclear decommissioning trust funds -- 825 -- -- Leveraged leases, net (2,191) (2,191) -- -- Other, net 5,816 7,763 1,047 1,056 --------- ----------- --------- --------- Net cash used by investing activities 409,294 183,640 (84,387) 452,221 --------- ----------- --------- --------- CASH FLOWS FROM FINANCING ACTIVITIES Common dividends paid (86,962) 124,838 (86,962) (80,666) Preferred dividends paid -- 5,163 -- (3,480) Capital contributions (30,949) (30,949) -- -- Note payable from associated companies (435,936) (435,936) -- -- Common stock issued (9,999) (9,999) -- -- Preferred stock issued (35,000) (35,000) -- -- Common stock redeemed 25,000 25,000 -- -- Preferred stock redeemed (71,620) 1 -- (60,121) Long-term debt issued 59,000 -- -- 59,000 Long-term debt redeemed (427,368) (215) -- (329,953) Principal portion of capital lease payments (29,823) 55 -- (54) Net change in short-term debt 434,790 373 389,466 -- Cost of issuances and refinancings (22,065) (1,792) (2,849) (17,424) Other, net -- 973 -- -- --------- ----------- --------- --------- Net cash used by financing activities (630,932) (357,488) 299,655 (432,698) --------- ----------- --------- --------- Net change in cash and cash equivalents (184,654) (434,562) 373,473 80,272 Beginning of year cash and cash equivalents 123,562 (192,313) 899 94,604 --------- ----------- --------- --------- End of year cash and cash equivalents $ (61,092) $ (626,875) $ 374,372 $ 174,876 ========= =========== ========= =========
(1) Other than debt and deferred income taxes classified as current. * Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 3A Page 1 Of 4 Conectiv and Subsidiaries Consolidating Statement of Cash Flows For the Year Ended December 31, 2001 (Dollars in Thousands)
ACE CPI* CEH* CCI* CONSOLIDATED CONSOLIDATED CONSOLIDATED ASP* CONSOLIDATED ------------ ------------ ------------ ---- ------------ CASH FLOWS FROM OPERATING ACTIVITIES Net income (loss) $ 75,476 -- -- -- -- Adjustments to reconcile net income (loss) to net cash provided by operating activities Equity in loss / (earnings) of subsidiaries -- -- -- -- -- Minority Interest -- -- -- -- -- Extraordinary item, net of income taxes -- -- -- -- -- Gain on sales of electric plants -- -- -- -- -- Dissolution of CCI Virginia -- -- -- -- -- Deferred gain on contract termination -- -- -- -- -- Loss on sale of telecommunication assets -- -- -- -- -- Sale of Plumbing assets -- -- -- -- -- Depreciation and amortization 93,987 -- -- -- -- Investment tax credit adjustments, net (7,369) -- -- -- -- Deferred income taxes, net 83,603 -- -- -- -- Deferred electric service and energy supply costs (143,190) -- -- -- -- Pension expense credit -- -- -- -- -- Net change in: Accounts receivable (17,359) -- -- -- -- Inventories (15,645) -- -- -- -- Notes payable to associated companies -- -- -- -- -- Accounts payable 5,697 -- -- -- -- Prepaid New Jersey sales and excise taxes 7,145 -- -- -- -- Accrued/Prepaid Taxes (51,287) -- -- -- -- Dividends received from subsidiaries -- -- -- -- -- Other current assets & liabilities(1) 9,004 -- -- -- -- Other, net 3,926 -- -- -- -- --------- ------- ------- ------- ------- Net cash provided by operating activities 43,988 -- -- -- -- --------- ------- ------- ------- ------- CASH FLOWS FROM INVESTING ACTIVITIES Investment in partnerships -- -- -- -- -- Money pool borrowings -- -- -- -- -- Notes receivable from associated companies -- -- -- -- -- Capital expenditures (70,023) -- -- -- -- Proceeds from sales of electric generating plants 29,568 -- -- -- -- Proceeds from sale of other assets -- -- -- -- -- Capital contributions to subsidiaries -- -- -- -- -- Return of invested capital from subsidiaries -- -- -- -- -- Deposits to nuclear decommissioning trust funds (825) -- -- -- -- Leveraged leases, net -- -- -- -- -- Other, net (4,117) -- -- -- -- --------- ------- ------- ------- ------- Net cash used by investing activities (45,397) -- -- -- -- --------- ------- ------- ------- ------- CASH FLOWS FROM FINANCING ACTIVITIES Common dividends paid (44,172) -- -- -- -- Preferred dividends paid (1,683) -- -- -- -- Capital contributions -- -- -- -- -- Note payable from associated companies -- -- -- -- -- Common stock issued -- -- -- -- -- Preferred stock issued -- -- -- -- -- Common stock redeemed -- -- -- -- -- Preferred stock redeemed (11,500) -- -- -- -- Long-term debt issued -- -- -- -- -- Long-term debt redeemed (97,200) -- -- -- -- Principal portion of capital lease payments (29,824) -- -- -- -- Net change in short-term debt 44,951 -- -- -- -- Cost of issuances and refinancings -- -- -- -- -- Other, net (973) -- -- -- -- --------- ------- ------- ------- ------- Net cash used by financing activities (140,401) -- -- -- -- --------- ------- ------- ------- ------- Net change in cash and cash equivalents (141,810) -- -- -- -- Beginning of year cash and cash equivalents 156,071 -- -- -- -- --------- ------- ------- ------- ------- End of year cash and cash equivalents $ 14,261 $ -- $ -- $ -- $ -- ========= ======= ======= ======= =======
(1) Other than debt and deferred income taxes classified as current. * Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 3A Page 2 Of 4 Conectiv and Subsidiaries Consolidating Statement of Cash Flows For the Year Ended December 31, 2001 (Dollars in Thousands)
SOLUTIONS* AGI* HAYMOOR* CONSOLIDATED CRP CONSOLIDATED CONSOLIDATED ------------ --- ------------ ------------ CASH FLOWS FROM OPERATING ACTIVITIES Net income (loss) -- $ 266 -- -- Adjustments to reconcile net income (loss) to net cash provided by operating activities Equity in loss / (earnings) of subsidiaries -- -- -- -- Minority Interest -- -- -- -- Extraordinary item, net of income taxes -- -- -- -- Gain on sales of electric plants -- -- -- -- Dissolution of CCI Virginia -- -- -- -- Deferred gain on contract termination -- -- -- -- Loss on sale of telecommunication assets -- -- -- -- Sale of Plumbing assets -- -- -- -- Depreciation and amortization -- 11,709 -- -- Investment tax credit adjustments, net -- -- -- -- Deferred income taxes, net -- 2,029 -- -- Deferred electric service and energy supply costs -- -- -- -- Pension expense credit -- -- -- -- Net change in: Accounts receivable -- 41,708 -- -- Inventories -- -- -- -- Notes payable to associated companies -- (67) -- -- Accounts payable -- (4,855) -- -- Prepaid New Jersey sales and excise taxes -- -- -- -- Accrued/Prepaid Taxes -- 3,519 -- -- Dividends received from subsidiaries -- -- -- -- Other current assets & liabilities(1) -- (13,352) -- -- Other, net -- (6,201) -- -- -------- -------- -------- -------- Net cash provided by operating activities -- 34,756 -- -- -------- -------- -------- -------- CASH FLOWS FROM INVESTING ACTIVITIES Investment in partnerships -- -- -- -- Money pool borrowings -- (99,993) -- -- Notes receivable from associated companies -- -- -- -- Capital expenditures -- 3,143 -- -- Proceeds from sales of electric generating plants -- -- -- -- Proceeds from sale of other assets -- -- -- -- Capital contributions to subsidiaries -- -- -- -- Return of invested capital from subsidiaries -- -- -- -- Deposits to nuclear decommissioning trust funds -- -- -- -- Leveraged leases, net -- -- -- -- Other, net -- 67 -- -- -------- -------- -------- -------- Net cash used by investing activities -- (96,783) -- -- -------- -------- -------- -------- CASH FLOWS FROM FINANCING ACTIVITIES Common dividends paid -- -- -- -- Preferred dividends paid -- -- -- -- Capital contributions -- -- -- -- Note payable from associated companies -- -- -- -- Common stock issued -- -- -- -- Preferred stock issued -- -- -- -- Common stock redeemed -- -- -- -- Preferred stock redeemed -- -- -- -- Long-term debt issued -- -- -- -- Long-term debt redeemed -- -- -- -- Principal portion of capital lease payments -- -- -- -- Net change in short-term debt -- -- -- -- Cost of issuances and refinancings -- -- -- -- Other, net -- -- -- -- -------- -------- -------- -------- Net cash used by financing activities -- -- -- -- -------- -------- -------- -------- Net change in cash and cash equivalents -- (62,027) -- -- Beginning of year cash and cash equivalents -- 64,301 -- -- -------- -------- -------- -------- End of year cash and cash equivalents $ -- $ 2,274 $ -- $ -- ======== ======== ======== ========
(1) Other than debt and deferred income taxes classified as current. * Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 3A Page 3 Of 4 Delmarva Power and Light Company and Subsidiaries Consolidating Statement of Cash Flows For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations, Total DPL Reclasses & DPL DPL Consolidated Consol. Entries Parent Financing ------------ --------------- ------ --------- CASH FLOWS FROM OPERATING ACTIVITIES Net income (loss) $ 200,619 ($ 5,687) $ 200,619 $ 5,687 Adjustments to reconcile net income (loss) to net cash provided by operating activities: Gain on sales of electric generating plants (221,224) -- (221,224) Extraordinary items, net of income taxes 2,790 -- 2,790 Depreciation and amortization 95,361 -- 95,361 -- Investment tax credit adjustments, net (6,001) -- (6,001) -- Deferred income taxes, net (46,343) -- (46,343) -- Pension expense credit (18,618) -- (18,618) -- Net change in: Accounts receivable 107,892 -- 107,892 -- Inventories (11,349) -- (11,349) -- Accounts payable (90,146) -- (90,146) -- Accrued taxes 94,270 -- 94,270 -- Other current assets & liabilities(1) (20,751) -- (20,751) -- Other, net (25,751) -- (25,751) -- --------- --------- --------- --------- Net cash provided by operating activities 60,749 (5,687) 60,749 5,687 --------- --------- --------- --------- CASH FLOWS FROM INVESTING ACTIVITIES Proceeds from sales of electric generating plants 528,215 -- 528,215 -- Proceeds from other assets sold 8,543 -- 8,543 -- Capital expenditures (85,593) -- (85,593) -- Other, net 1,056 -- 1,056 -- --------- --------- --------- --------- Net cash used by investing activities 452,221 -- 452,221 -- --------- --------- --------- --------- CASH FLOWS FROM FINANCING ACTIVITIES Common dividends paid (80,666) -- (80,666) -- Preferred dividends paid (3,480) 5,687 (3,480) (5,687) Preferred stock redeemed (60,121) -- (60,121) -- Long-term debt issued 59,000 -- 59,000 -- Long-term debt redeemed (329,953) -- (329,953) -- Principal portion of capital lease payments (54) -- (54) -- Cost of issuances and refinancings (17,424) -- (17,424) -- --------- --------- --------- --------- Net cash used by financing activities (432,698) 5,687 (432,698) (5,687) --------- --------- --------- --------- Net change in cash and cash equivalents 80,272 -- 80,272 -- Beginning of year cash and cash equivalents 94,604 -- 94,604 -- --------- --------- --------- --------- End of year cash and cash equivalents $ 174,876 $ -- $ 174,876 $ -- ========= ========= ========= =========
(1) Other than debt and deferred income taxes classified as current * Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 3B Page 1 Of 1 Atlantic City Electric Company and Subsidiaries Consolidating Statement of Cash Flows For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations, Total ACE Reclasses & ACE ACE ACE Consolidated Consol. Entries Parent Capital I Capital II ------------ --------------- ------ --------- ---------- CASH FLOWS FROM OPERATING ACTIVITIES Net income (loss) $ 75,476 ($ 7,619) $ 75,476 $ 5,775 $ 1,844 Adjustments to reconcile net income (loss) to net cash provided by operating activities Depreciation and amortization 93,987 -- 93,987 -- -- Investment tax credit adjustments, net (7,369) -- (7,369) -- -- Deferred income taxes, net 83,603 -- 83,603 -- -- Deferred electric service and energy supply costs (143,190) -- (143,190) -- -- Net change in: Accounts receivable (17,359) -- (17,359) -- -- Inventories (15,645) -- (15,645) -- -- Prepaid NJ sales and excise taxes 7,145 -- 7,145 -- -- Accounts payable 5,697 -- 5,697 -- -- Accrued taxes (51,287) -- (51,287) Other current assets & liabilities(1) 9,004 -- 9,004 -- -- Other, net 3,926 -- 3,926 -- -- --------- --------- --------- --------- --------- Net cash provided by operating activities 43,988 (7,619) 43,988 5,775 1,844 --------- --------- --------- --------- --------- CASH FLOWS FROM INVESTING ACTIVITIES Capital expenditures (70,023) -- (70,023) -- -- Sale of electric generating plants 29,568 -- 29,568 -- -- Deposits to nuclear decommissioning trust funds (825) -- (825) -- -- Other, net (4,117) -- (4,117) -- -- --------- --------- --------- --------- --------- Net cash used by investing activities (45,397) -- (45,397) -- -- --------- --------- --------- --------- --------- CASH FLOWS FROM FINANCING ACTIVITIES Common dividends paid (44,172) -- (44,172) -- -- Preferred dividends paid (1,683) 7,619 (1,683) (5,775) (1,844) Preferred stock redeemed (11,500) -- (11,500) -- -- Long-term debt redeemed (97,200) -- (97,200) -- -- Principal portion of capital lease payments (29,824) -- (29,824) -- -- Net change in short-term debt 44,951 -- 44,951 -- -- Other, net (973) -- (973) -- -- --------- --------- --------- --------- --------- Net cash used by financing activities (140,401) 7,619 (140,401) (5,775) (1,844) --------- --------- --------- --------- --------- Net change in cash and cash equivalents (141,810) -- (141,810) -- -- Beginning of year cash and cash equivalents 156,071 -- 156,071 -- -- --------- --------- --------- --------- --------- End of year cash and cash equivalents $ 14,261 $ -- $ 14,261 $ -- $ -- ========= ========= ========= ========= =========
(1) Other than debt and deferred income taxes classified as current. * Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 3C Page 1 Of 1 Conectiv Properties and Investments, Inc. and Subsidiaries Consolidating Statement of Cash Flows For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations,* Total CPI* Reclasses & CPI* Consolidated Consol. Entries Parent 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 Equity in loss / (earnings) of subsidiaries -- -- -- -- -- -- Minority interest liability -- -- -- -- -- -- Depreciation and amortization -- -- -- -- -- -- Deferred income taxes, net -- -- -- -- -- -- Net change in: Accounts receivable -- -- -- -- -- -- Accounts payable -- -- -- -- -- -- Accrued/Prepaid taxes -- -- -- -- -- -- Other current assets & liabilities(1) -- -- -- -- -- -- Dividends received from subsidiaries -- -- -- -- -- -- Other, net -- -- -- -- -- -- -------- -------- -------- -------- -------- -------- Net cash provided by operating activities -- -- -- -- -- -- -------- -------- -------- -------- -------- -------- CASH FLOWS FROM INVESTING ACTIVITIES Sale of assets -- -- -- -- -- -- Money pool borrowings -- -- -- -- -- -- Capital expenditures -- -- -- -- -- -- Leveraged leases, net -- -- -- -- -- -- Other, net -- -- -- -- -- -- -------- -------- -------- -------- -------- -------- Net cash used by investing activities -- -- -- -- -- -- -------- -------- -------- -------- -------- -------- CASH FLOWS FROM FINANCING ACTIVITIES Capital contributions -- -- -- -- -- -- Common dividends paid -- -- -- -- -- -- Common stock issued -- -- -- -- -- -- Long-term debt redeemed -- -- -- -- -- -- -------- -------- -------- -------- -------- -------- 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. * Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 3D Page 1 Of 1 Conectiv Energy Holding Company and Subsidiaries Consolidating Statement of Cash Flows For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations,* Total CEH* Reclasses & Consolidated Consol. Entries CEH* ------------ --------------- ---- CASH FLOWS FROM OPERATING ACTIVITIES Net income (loss) $ -- $ -- $ -- Adjustments to reconcile net income (loss) to net cash provided by operating activities Equity in loss / (earnings) of subsidiaries -- -- -- Gain on sales of electric generating plants -- -- -- Depreciation and amortization -- -- -- Investment tax credit adjustments, net -- -- -- Deferred income taxes, net -- -- -- Net change in: Accounts receivable -- -- -- Inventories -- -- -- Accounts payable -- -- -- Accrued/Prepaid taxes -- -- -- Dividends received from subsidiaries -- -- -- Other current assets & liabilities(1) -- -- -- Other, net -- -- -- --------- --------- --------- Net cash provided by operating activities -- -- -- --------- --------- --------- CASH FLOWS FROM INVESTING ACTIVITIES Notes receivable from associated companies -- -- -- Investment in partnerships -- -- -- Money pool borrowings -- -- -- Capital expenditures -- -- -- Other, net -- -- -- --------- --------- --------- Net cash used by investing activities -- -- -- --------- --------- --------- CASH FLOWS FROM FINANCING ACTIVITIES Capital contributions -- -- -- Notes payable to associated companies -- -- -- Common stock issued -- -- -- Common stock dividend -- -- -- --------- --------- --------- 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. * Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 3E Page 1 Of 3 Conectiv Energy Holding Company and Subsidiaries Consolidating Statement of Cash Flows For the Year Ended December 31, 2001 (Dollars in Thousands)
ACE* CESI* COSC* REIT CAG* ----- ----- ---- ---- CASH FLOWS FROM OPERATING ACTIVITIES Net income (loss) $ -- $ -- $ -- $ -- Adjustments to reconcile net income (loss) to net cash provided by operating activities Equity in loss / (earnings) of subsidiaries -- -- -- -- Gain on sales of electric generating plants -- -- -- -- Depreciation and amortization -- -- -- -- Investment tax credit adjustments, net -- -- -- -- Deferred income taxes, net -- -- -- -- Net change in: Accounts receivable -- -- -- -- Inventories -- -- -- -- Accounts payable -- -- -- -- Accrued/Prepaid taxes -- -- -- -- Dividends received from subsidiaries -- -- -- -- Other current assets & liabilities(1) -- -- -- -- Other, net -- -- -- -- ------- ------- ------- ------- Net cash provided by operating activities -- -- -- -- ------- ------- ------- ------- CASH FLOWS FROM INVESTING ACTIVITIES Notes receivable from associated companies -- -- -- -- Investment in partnerships -- -- -- -- Money pool borrowings -- -- -- -- Capital expenditures -- -- -- -- Other, net -- -- -- -- ------- ------- ------- ------- Net cash used by investing activities -- -- -- -- ------- ------- ------- ------- CASH FLOWS FROM FINANCING ACTIVITIES Capital contributions -- -- -- -- Notes payable to associated companies -- -- -- -- Common stock issued -- -- -- -- Common stock dividend -- -- -- -- ------- ------- ------- ------- 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. * Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 3E Page 2 Of 3 Conectiv Energy Holding Company and Subsidiaries Consolidating Statement of Cash Flows For the Year Ended December 31, 2001 (Dollars in Thousands)
CDG* CBI* CMM* ---- ---- ---- CASH FLOWS FROM OPERATING ACTIVITIES Net income (loss) $ -- $ -- $ -- Adjustments to reconcile net income (loss) to net cash provided by operating activities Equity in loss / (earnings) of subsidiaries -- -- -- Gain on sales of electric generating plants -- -- -- Depreciation and amortization -- -- -- Investment tax credit adjustments, net -- -- -- Deferred income taxes, net -- -- -- Net change in: Accounts receivable -- -- -- Inventories -- -- -- Accounts payable -- -- -- Accrued/Prepaid taxes -- -- -- Dividends received from subsidiaries -- -- -- Other current assets & liabilities(1) -- -- -- Other, net -- -- -- ------- ------- ------- Net cash provided by operating activities -- -- -- ------- ------- ------- CASH FLOWS FROM INVESTING ACTIVITIES Notes receivable from associated companies -- -- -- Investment in partnerships -- -- -- Money pool borrowings -- -- -- Capital expenditures -- -- -- Other, net -- -- -- ------- ------- ------- Net cash used by investing activities -- -- -- ------- ------- ------- CASH FLOWS FROM FINANCING ACTIVITIES Capital contributions -- -- -- Notes payable to associated companies -- -- -- Common stock issued -- -- -- Common stock dividend -- -- -- ------- ------- ------- 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. * Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 3E Page 3 Of 3 Conectiv Communications, Inc. and Subsidiary Consolidating Statement of Cash Flows For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations,* Conectiv* Total CCI* Reclasses & CCI* Communications Consolidated Consol. Entries Parent of Virginia, Inc. ------------ --------------- ------ ----------------- Cash Flows From Operating Activities Net income (loss) $ -- $ -- $ -- $ -- Adjustments to reconcile net income (loss) to net cash provided by operating activities Equity in loss / (earnings) of subsidiaries -- -- -- -- Dissolution of CCI Virginia -- -- -- -- Depreciation and amortization -- -- -- -- Deferred income taxes, net -- -- -- -- Loss on sale of telecommunication assets -- -- -- -- Net change in: Accounts receivable -- -- -- -- Inventories -- -- -- -- Accounts payable -- -- -- -- Accrued/Prepaid taxes -- -- -- -- Other current assets & liabilities(1) -- -- -- -- Other, net -- -- -- -- --------- --------- --------- --------- Net cash provided by operating activities -- -- -- -- --------- --------- --------- --------- Cash Flows From Investing Activities Notes receivable from associated companies -- -- -- -- Capital expenditures -- -- -- -- Proceeds from sale of assets -- -- -- -- Other, net -- -- -- -- --------- --------- --------- --------- Net cash used by investing activities -- -- -- -- --------- --------- --------- --------- Cash Flows From Financing Activities Preferred dividends paid -- -- -- -- Capital contributions -- -- -- -- Note payable from associated companies -- -- -- -- Common stock issued -- -- -- -- Preferred stock issued -- -- -- -- Common stock redeemed -- -- -- -- --------- --------- --------- --------- 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. * Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 3F Page 1 Of 1 Conectiv Solutions LLC and Subsidiaries Consolidating Statement of Cash Flows For the Year Ended December 31, 2001 (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 Equity in loss / (earnings) of subsidiaries -- -- -- Minority Interest -- -- -- Sale of Plumbing assets -- -- -- Deferred gain on contract termination -- -- -- Depreciation and amortization -- -- -- Deferred income taxes, net -- -- -- Net change in: Accounts receivable -- -- -- Inventories -- -- -- Accounts payable -- -- -- Accrued/Prepaid taxes -- -- -- Other current assets & liabilities(1) -- -- -- Dividends received from subsidiaries -- -- -- Other, net -- -- -- ----------- ----------- ----------- Net cash provided by operating activities -- -- -- ----------- ----------- ----------- CASH FLOWS FROM INVESTING ACTIVITIES Money pool borrowings -- -- -- Note receivable from associated company -- -- -- Capital expenditures -- -- -- Investments in partnerships -- -- -- Sale of assets -- -- -- Leveraged leases, net -- -- -- Other, net -- -- -- ----------- ----------- ----------- Net cash used by investing activities -- -- -- ----------- ----------- ----------- CASH FLOWS FROM FINANCING ACTIVITIES Common dividends paid -- -- -- Capital contributions -- -- -- Note payable from associated company -- -- -- ----------- ----------- ----------- 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 $ -- $ -- $ -- =========== =========== ===========
* Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 3G Page 1 Of 3 Conectiv Solutions LLC and Subsidiaries Consolidating Statement of Cash Flows For the Year Ended December 31, 2001 (Dollars in Thousands)
ATE* Elimination* Consolidated ATE/KSA ATE* ------------ ------- ---- CASH FLOWS FROM OPERATING ACTIVITIES Net income (loss) $ -- $ -- $ -- Adjustments to reconcile net income (loss) to net cash provided by operating activities Equity in loss / (earnings) of subsidiaries -- -- -- Minority Interest -- -- -- Sale of Plumbing assets -- -- -- Deferred gain on contract termination -- -- -- Depreciation and amortization -- -- -- Deferred income taxes, net -- -- -- Net change in: Accounts receivable -- -- -- Inventories -- -- -- Accounts payable -- -- -- Accrued/Prepaid taxes -- -- -- Other current assets & liabilities(1) -- -- -- Dividends received from subsidiaries -- -- -- Other, net -- -- -- ----------- ----------- --------- Net cash provided by operating activities -- -- -- ----------- ----------- --------- CASH FLOWS FROM INVESTING ACTIVITIES Money pool borrowings -- -- -- Note receivable from associated company -- -- -- Capital expenditures -- -- -- Investments in partnerships -- -- -- Sale of assets -- -- -- Leveraged leases, net -- -- -- Other, net -- -- -- ----------- ----------- --------- Net cash used by investing activities -- -- -- ----------- ----------- --------- CASH FLOWS FROM FINANCING ACTIVITIES Common dividends paid -- -- -- Capital contributions -- -- -- Note payable from associated company -- -- -- ----------- ----------- --------- 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 $ -- $ -- $ -- =========== ============ =========
* Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 3G Page 2 Of 3 Conectiv Solutions LLC and Subsidiaries Consolidating Statement of Cash Flows For the Year Ended December 31, 2001 (Dollars in Thousands)
CSI * KSA* Consolidated -------- ------------ CASH FLOWS FROM OPERATING ACTIVITIES Net income (loss) $ -- $ -- Adjustments to reconcile net income (loss) to net cash provided by operating activities Equity in loss / (earnings) of subsidiaries -- -- Minority Interest -- -- Sale of Plumbing assets -- -- Deferred gain on contract termination -- -- Depreciation and amortization -- -- Deferred income taxes, net -- -- Net change in: Accounts receivable -- -- Inventories -- -- Accounts payable -- -- Accrued/Prepaid taxes -- -- Other current assets & liabilities(1) -- -- Dividends received from subsidiaries -- -- Other, net -- -- --------- --------- Net cash provided by operating activities -- -- --------- --------- CASH FLOWS FROM INVESTING ACTIVITIES Money pool borrowings -- -- Note receivable from associated company -- -- Capital expenditures -- -- Investments in partnerships -- -- Sale of assets -- -- Leveraged leases, net -- -- Other, net -- -- --------- --------- Net cash used by investing activities -- -- --------- --------- CASH FLOWS FROM FINANCING ACTIVITIES Common dividends paid -- -- Capital contributions -- -- Note payable from associated company -- -- --------- --------- 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 $ -- $ -- ========= =========
* Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 3G Page 3 Of 3 Conectiv Services, Inc. and Subsidiaries Consolidating Statement of Cash Flows For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations,* Total CSI * Reclasses & CTS* Consolidated Consol. Entries CSI* Plumbing* Consolidated ------------ --------------- ---- --------- ------------ CASH FLOWS FROM OPERATING ACTIVITIES Net income (loss) $ -- $ -- $ -- $ -- $ -- Adjustments to reconcile net income (loss) to net cash provided by operating activities Equity in loss / (earnings) of subsidiaries -- -- -- -- -- Sale of Plumbing assets -- -- -- -- -- Depreciation and amortization -- -- -- -- -- Deferred income taxes, net -- -- -- -- -- Net change in: Accounts receivable -- -- -- -- -- Inventories -- -- -- -- -- Accounts payable -- -- -- -- -- Accrued/Prepaid taxes -- -- -- -- -- Other current assets & liabilities(1) -- -- -- -- -- Other, net -- -- -- -- -- --------- --------- --------- --------- --------- Net cash provided by operating activities -- -- -- -- -- --------- --------- --------- --------- --------- CASH FLOWS FROM INVESTING ACTIVITIES Money pool borrowings -- -- -- -- -- Capital expenditures -- -- -- -- -- Notes receivable from associated companies -- -- -- -- -- Other, net -- -- -- -- -- --------- --------- --------- --------- --------- Net cash used by investing activities -- -- -- -- -- --------- --------- --------- --------- --------- CASH FLOWS FROM FINANCING ACTIVITIES Notes payable from associated companies -- -- -- -- -- Common stock dividend -- -- -- -- -- --------- --------- --------- --------- --------- 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. * Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 3H Page 1 Of 1 Conectiv Thermal Systems, Inc. and Subsidiaries Consolidating Statement of Cash Flows For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations,* Total CTS* Reclasses & CTS* Consolidated Consol. Entries Parent ATS* AJTS* TELP* ------------ --------------- ------ ---- ----- ------ CASH FLOWS FROM OPERATING ACTIVITIES Net income (loss) $-- $-- $-- $-- $-- $-- Adjustments to reconcile net income (loss) to net cash provided by operating activities Equity in loss / (earnings) of subsidiaries -- -- -- -- -- -- Depreciation and amortization -- -- -- -- -- -- Provision for loss on the sale of businesses -- -- -- -- -- -- Deferred income taxes, net -- -- -- -- -- -- Net change in: Accounts receivable -- -- -- -- -- -- Inventories -- -- -- -- -- -- Accounts payable -- -- -- -- -- -- Accrued/Prepaid taxes -- -- -- -- -- -- Other current assets & liabilities(1) -- -- -- -- -- -- Other, net -- -- -- -- -- -- --- --- --- --- --- --- Net cash provided by operating activities -- -- -- -- -- -- --- --- --- --- --- --- CASH FLOWS FROM INVESTING ACTIVITIES Money pool borrowings -- -- -- -- -- -- Capital expenditures -- -- -- -- -- -- Other, net -- -- -- -- -- -- --- --- --- --- --- --- Net cash used by investing activities -- -- -- -- -- -- --- --- --- --- --- --- CASH FLOWS FROM FINANCING ACTIVITIES Notes payable from associated companies -- -- -- -- -- -- --- --- --- --- --- --- 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. *Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 3I Page 1 of 1 Atlantic Generation, Inc. and Subsidiaries Consolidating Statement of Cash Flows For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations,* Total AGI* Reclasses & AGI* Vin Vin Bing Bing Ped Consolidated Consol. Entries Parent LTD* Gen* LTD* Gen* Gen* ------------ --------------- ------ ---- ---- ---- ---- ---- CASH FLOWS FROM OPERATING ACTIVITIES Net income (loss) $ -- $ -- $ -- $ -- $ -- $ -- $ -- $ -- Adjustments to reconcile net income (loss) to net cash provided by operating activities Equity in loss / (earnings) of subsidiaries -- -- -- -- -- -- -- -- Minority Interest -- -- -- -- -- -- -- -- Depreciation and amortization -- -- -- -- -- -- -- -- Deferred income taxes, net -- -- -- -- -- -- -- -- Net change in: Accounts receivable -- -- -- -- -- -- -- -- Accounts payable -- -- -- -- -- -- -- -- Accrued/Prepaid taxes -- -- -- -- -- -- -- -- Other current assets & liabilities(1) -- -- -- -- -- -- -- -- Dividends received from subsidiaries -- -- -- -- -- -- -- -- Other, net -- -- -- -- -- -- -- -- ---- ---- ---- ---- ---- ---- ---- ---- Net cash provided by operating activities -- -- -- -- -- -- -- -- ---- ---- ---- ---- ---- ---- ---- ---- CASH FLOWS FROM INVESTING ACTIVITIES Investments in partnerships -- -- -- -- -- -- -- -- Money pool borrowings -- -- -- -- -- -- -- -- ---- ---- ---- ---- ---- ---- ---- ---- Net cash used by investing activities -- -- -- -- -- -- -- -- ---- ---- ---- ---- ---- ---- ---- ---- CASH FLOWS FROM FINANCING ACTIVITIES Common dividends paid -- -- -- -- -- -- -- -- ---- ---- ---- ---- ---- ---- ---- ---- 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. * Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 3J Page 1 of 1 Haymoor LLC and Subsidiary Consolidating Statement of Cash Flows For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations, Total Haymoor Reclasses & Haymoor Conectiv Consolidated Consol. Entries Parent Energy Inc ------------ --------------- ------ ---------- Cash Flows From Operating Activities Net income (loss) $ -- $ -- $ -- $ -- Adjustments to reconcile net income (loss) to net cash provided by operating activities Equity in loss / (earnings) of subsidiaries -- -- -- -- Deferred income taxes, net -- -- -- -- Net change in: Accounts receivable -- -- -- -- Accounts payable -- -- -- -- Other current assets & liabilities(1) -- -- -- -- Dividends received from subsidiaries -- -- -- -- Other, net -- -- -- -- ---- ---- ---- ---- Net cash provided by operating activities -- -- -- -- ---- ---- ---- ---- Cash Flows From Investing Activities Capital expenditures -- -- -- -- Proceeds from sales of electric generating plants -- -- -- -- Other, net -- -- -- -- ---- ---- ---- ---- Net cash used by investing activities -- -- -- -- ---- ---- ---- ---- Cash Flows From Financing Activities Dividend to Haymoor -- -- -- -- Capital contributions -- -- -- -- Note payable from associated company -- -- -- -- 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. *Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 3K Page 1 Of 1 Conectiv and Subsidiaries Consolidating Statement of Retained Earnings For the Year Ended December 31, 2001 (Dollars in Thousands)
ELIMINATIONS TOTAL RECLASSES & CONECTIV DPL ACE CONECTIV CONSOLIDATIONS PARENT CONSOLIDATED CONSOLIDATED -------- -------------- ------ ------------ ------------ Retained Earnings / (Accumulated Deficit) Balance as of December 31, 2000 $ 151,164 $(264,203) $ 42,768 $ 257,866 $ 114,962 Transfer of Mid Merit into CEH -- -- -- -- Enerval Dissolution -- -- -- -- -- Effect of like-kind exchange -- -- -- -- -- Net Income / (Loss) 248,248 (276,361) 248,248 200,619 75,476 Cash dividends declared Common stock (72,780) 121,680 (72,780) (89,077) (32,603) Class A common stock (8,900) -- (8,900) -- -- Preferred stock -- 5,427 -- (3,744) (1,683) Repurchase and retirement of preferred stock -- 793 -- (793) -- --------- --------- --------- --------- --------- Balance as of December 31, 2001 $ 317,732 $(412,664) $ 209,336 $ 364,871 $ 156,152 ========= ========= ========= ========= =========
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 4A Page 1 Of 3 Conectiv and Subsidiaries Consolidating Statement of Retained Earnings For the Year Ended December 31, 2001 (Dollars in Thousands)
CPI* CEH* CCI* SOLUTIONS* CONSOLIDATED CONSOLIDATED ASP* CONSOLIDATED CONSOLIDATED ------------ ------------ ---- ------------ ------------ Retained Earnings / (Accumulated Deficit) Balance as of December 31, 2000 $-- $-- $-- $-- $-- Transfer of Mid Merit into CEH -- -- -- -- -- Enerval Dissolution -- -- -- -- -- Effect of like-kind exchange -- -- -- -- -- Net Income / (Loss) -- -- -- -- -- Cash dividends declared Common stock -- -- -- -- -- Class A common stock -- -- -- -- -- Preferred stock -- -- -- -- -- Repurchase and retirement of preferred stock -- -- -- -- -- --- --- --- --- --- Balance as of December 31, 2001 $-- $-- $-- $-- $-- === === === === ===
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 4A Page 2 Of 3 Conectiv and Subsidiaries Consolidating Statement of Retained Earnings For the Year Ended December 31, 2001 (Dollars in Thousands)
AGI * HAYMOOR* CRP CONSOLIDATED CONSOLIDATED ENERVAL* CMM* --- ------------ ------------ -------- ---- Retained Earnings / (Accumulated Deficit) Balance as of December 31, 2000 $(229) $-- $-- $-- $-- Transfer of Mid Merit into CEH -- -- -- -- -- Enerval Dissolution -- -- -- -- -- Effect of like-kind exchange -- -- -- -- -- Net Income / (Loss) 266 -- -- -- -- Cash dividends declared Common stock -- -- -- -- -- Class A common stock -- -- -- -- -- Preferred stock -- -- -- -- -- Repurchase and retirement of preferred stock -- -- -- -- -- ----- --- --- --- --- Balance as of December 31, 2001 $ 37 $-- $-- $-- $-- ===== === === === ===
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 4A Page 3 Of 3 Delmarva Power and Light Company and Subsidiaries Consolidating Statement of Retained Earnings For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations, Total DPL Reclasses & DPL DPL Consolidated Consol. Entries Parent Financing ------------ --------------- ------ --------- Retained Earnings / (Accumulated Deficit) Balance as of December 31, 2000 $ 257,866 $ -- $ 257,866 $ -- Net Income / (Loss) 200,619 (5,687) 200,619 5,687 Cash dividends declared Common stock (89,077) -- (89,077) -- Preferred stock (3,744) 5,687 (3,744) (5,687) Repurchase and retirement of preferred stock (793) -- (793) -- --------- ------- --------- ------- Balance as of December 31, 2001 $ 364,871 $ -- $ 364,871 $ -- ========= ======= ========= =======
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 4B 1 Of 1 Atlantic City Electric Company and Subsidiaries Consolidating Statement of Retained Earnings For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations, Total ACE Reclasses & ACE ACE ACE Consolidated Consol. Entries Parent Capital I Capital II ------------ --------------- ------ --------- ---------- Retained Earnings / (Accumulated Deficit) Balance as of December 31, 2000 $ 114,962 $ -- $ 114,962 $ -- $ -- Net Income / (Loss) 75,476 (7,659) 75,476 5,775 1,884 Cash dividends declared Common stock (32,603) -- (32,603) -- -- Preferred stock (1,683) 7,659 (1,683) (5,775) (1,884) --------- --------- --------- --------- --------- Balance as of December 31, 2001 $ 156,152 $ -- $ 156,152 $ -- $ -- ========= ========= ========= ========= =========
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 4C Page 1 Of 1 Conectiv Properties and Investments, Inc. and and Subsidiaries Consolidating Statement of Retained Earnings For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations,* Total CPI* Reclasses & CPI* Consolidated Consol. Entries Parent DCI I* DCI II* Burney* ------------ --------------- ------ ------ ------- ------- Retained Earnings / (Accumulated Deficit) Balance as of December 31, 2000 $-- $-- $-- $-- $-- $-- Net Income / (Loss) -- -- -- -- -- -- Cash dividends declared Common stock -- -- -- -- -- -- --- --- --- --- --- --- Balance as of December 31, 2001 $-- $-- $-- $-- $-- $-- === === === === === ===
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 4D Page 1 Of 1 Conectiv Energy Holding Company and Subsidiaries Consolidating Statement of Retained Earnings For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations,* CEH* Reclasses & CEH* Consolidated Consol. Entries Parent CESI* COSC* ------------ --------------- ------ ----- ----- Retained Earnings / (Accumulated Deficit) Balance as of December 31, 2000 $-- $-- $-- $-- $-- Transfer of Mid Merit into CEH -- -- -- -- -- Net Income / (Loss) -- -- -- -- -- Cash dividends declared CDG common stock to CEH -- -- -- -- -- CEH common stock to Conectiv -- -- -- -- -- --- --- --- --- --- Balance as of December 31, 2001 $-- $-- $-- $-- $-- === === === === ===
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 4E Page 1 Of 2 Conectiv Energy Holding Company and Subsidiaries Consolidating Statement of Retained Earnings For the Year Ended December 31, 2001 (Dollars in Thousands)
ACE REIT* CAG* CDG* CMM* CBI* --------- ---- ---- ---- ---- Retained Earnings / (Accumulated Deficit) Balance as of December 31, 2000 $-- $-- $-- $-- $-- Transfer of Mid Merit into CEH -- -- -- -- -- Net Income / (Loss) -- -- -- -- -- Cash dividends declared CDG common stock to CEH -- -- -- -- -- CEH common stock to Conectiv -- -- -- -- -- --- --- --- --- --- Balance as of December 31, 2001 $-- $-- $-- $-- $-- === === === === ===
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 4E Page 2 Of 2 Conectiv Communications, Inc. and Subsidiary Consolidating Statement of Retained Earnings For the Year Ended December 31, 2001 (Dollars in Thousands)
Conectiv* Eliminations,* Communications Total CCI* Reclasses & CCI* of Virginia Consolidated Consol. Entries Parent Inc. ------------ --------------- ------ ---- Retained Earnings / (Accumulated Deficit) Balance as of December 31, 2000 $-- $-- $-- $-- Dissolution of CCI VA -- -- -- -- Net Income / (Loss) -- -- -- -- Cash dividends declared Preferred stock -- -- -- -- --- --- --- --- Balance as of December 31, 2001 $-- $-- $-- $-- === === === ===
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 4F Page 1 Of 1 Conectiv Solutions LLC and Subsidiaries Consolidating Statement of Retained Earnings For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations,* Total Solutions* Reclasses & Solutions* Consolidated Consol. Entries Parent ------------ --------------- ------ Retained Earnings / (Accumulated Deficit) Balance as of December 31, 2000 $-- $-- $-- --- --- --- Dissolution of VHS -- -- -- Net Income / (Loss) -- -- -- Cash dividends declared ATE common stock -- -- -- --- --- --- Balance as of December 31, 2001 $-- $-- $-- === === ===
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 4G Page 1 Of 2 Conectiv Solutions LLC and Subsidiaries Consolidating Statement of Retained Earnings For the Year Ended December 31, 2001 (Dollars in Thousands)
ATE* Elimination* Vital* CSI* Consolidated ATE/KSA ATE* KSA* Services Consolidated ------------ ------- ---- ---- -------- ------------ Retained Earnings / (Accumulated Deficit) Balance as of December 31, 2000 $-- $-- $-- $-- $-- $-- --- --- --- --- --- --- Dissolution of VHS -- -- -- -- -- -- Net Income / (Loss) -- -- -- -- -- -- Cash dividends declared ATE common stock -- -- -- -- -- -- --- --- --- --- --- --- Balance as of December 31, 2001 $-- $-- $-- $-- $-- $-- === === === === === ===
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 4G Page 2 Of 2 Conectiv Services, Inc. and Subsidiaries Consolidating Statement of Retained Earnings For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations,* Total CSI* Reclasses & CSI* CTS* Consolidated Consol. Entries Parent Plumbing* Consolidated ------------ --------------- ------ --------- ------------ Retained Earnings / (Accumulated Deficit) Balance as of December 31, 2000 $-- $-- $-- $-- $-- Sale of Plumbing -- -- -- -- -- Net Income / (Loss) -- -- -- -- -- --- --- --- --- --- Balance as of December 31, 2001 $-- $-- $-- $-- $-- === === === === ===
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 4H Page 1 Of 1 Conectiv Thermal Systems, Inc. and Subsidiaries Consolidating Statement of Retained Earnings For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations,* Total CTS* Reclasses & CTS* Consolidated Consol. Entries Parent ATS* AJTS* TELP* ------------ --------------- ------ ---- ----- ----- Retained Earnings / (Accumulated Deficit) Balance as of December 31, 2000 $-- $-- $-- $-- $-- $-- Net Income / (Loss) -- -- -- -- -- -- --- --- --- --- --- --- Balance as of December 31, 2001 $-- $-- $-- $-- $-- $-- === === === === === ===
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 4I Page 1 Of 1 Atlantic Generation, Inc. and Subsidiaries Consolidating Statement of Retained Earnings For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations,* Total AGI* Reclasses & AGI* Consolidated Consol. Entries Parent Vin LTD* ------------ --------------- ------ -------- Retained Earnings / (Accumulated Deficit) Balance as of December 31, 2000 $ -- $ -- $ -- $ -- Net Income / (Loss) -- -- -- -- Cash dividends declared Common stock -- -- -- -- ----- ----- ----- ----- Balance as of December 31, 2001 $ -- $ -- $ -- $ -- ===== ===== ===== =====
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 4J Page 1 Of 2 Atlantic Generation, Inc. and Subsidiaries Consolidating Statement of Retained Earnings For the Year Ended December 31, 2001 (Dollars in Thousands)
Vin Gen* Bing LTD* Bing Gen* Ped Gen* -------- --------- --------- -------- Retained Earnings / (Accumulated Deficit) Balance as of December 31, 2000 $ -- $ -- $ -- $ -- Net Income / (Loss) -- -- -- -- Cash dividends declared Common stock -- -- -- -- ------ ------ ------ ------ Balance as of December 31, 2001 $ -- $ -- $ -- $ -- ====== ====== ====== ======
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 4J Page 2 Of 2 Haymoor LLC and Subsidiary Consolidating Statement of Retained Earnings For the Year Ended December 31, 2001 (Dollars in Thousands)
Eliminations,* Conectiv* Total Haymoor* Reclasses & Haymoor* Energy Consolidated Consol. Entries Parent Inc. ------ ------ ------ ------ Retained Earnings / (Accumulated Deficit) Balance as of December 31, 2000 $ -- $ -- $ -- $ -- Net Income / (Loss) -- -- -- -- Effect of like-kind exchange -- -- -- -- ------ ------ ------ ------ Balance as of December 31, 2001 $ -- $ -- $ -- $ -- ====== ====== ====== ======
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F - 4K Page 1 Of 1
YEAR 2001 SELECTED FINANCIAL DATA -------------------------------------------------------------------------------------------------- HYDRO LUZ SOLAR Enertech* Enertech II* BFP* MAS* ESNE* Kennebec* Partners* -------------------------------------------------------------------------------------------------- - ------------------------- Income Statement 2001 ========================= Operating Revenues -- -- -- -- -- -- -- INCOME BEFORE TAX -- -- -- -- -- -- -- - ------------------------- BALANCE SHEET @ 12/31/01 ========================= TOTAL ASSETS -- -- -- -- -- -- -- TOTAL LIABILITIES -- -- -- -- -- -- -- TOTAL EQUITY -- -- -- -- -- -- --
*Filed under Request for Confidential Treatment pursuant to Rule 104(b) of the Public Utility Holding Company Act of 1935 F-5 Page 1 of 1 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 22, 2002 34 EXHIBIT A Conectiv's Annual Report on Form 10-K for the year ended December 31, 2001 which was filed with the Commission on March 19, 2002 (File No. 1-13895) is incorporated herein by reference. Atlantic City Electric Company's Annual Report on Form 10-K for the year ended December 31, 2001 which was filed with the Commission on March 27, 2002 (File No. 1-3559) is incorporated herein by reference. Delmarva Power & Light Company's Annual Report on Form 10-K for the year ended December 31, 2001 which was filed with the Commission on March 27, 2002 (File No. 1-1405) is incorporated herein by reference. 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 (filed with 1999 Form U5S) 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) B.2.8* Amended and Restated Bylaws as amended February 9, 2001 DPL REIT HOLDING, INC. B.3.1 Certificate of Incorporation filed March 12, 1998 in the office of the Delaware Secretary of State (filed with 1999 Form U5S) B.3.2 Amended and Restated Bylaws as amended December 31, 1999 (filed with 1999 Form U5S) CONECTIV DELMARVA GENERATION, INC. (F/K/A DPL REIT, INC.) B.4.1 Certificate of Incorporation filed March 12, 1998 in the office of the Delaware Secretary of State (filed with 1999 Form U5S) B.4.2 Amended and Restated Bylaws as amended December 31, 1999 (filed with 1999 Form U5S) B.4.3 Certificate of Ownership and Merger merging DPL REIT Holding, Inc. with and into DPL REIT, Inc. and changing name to Conectiv Delmarva Generation, Inc. (filed with 2000 Form U5S) B.4.4* Certificate of Amendment of Certificate of Incorporation deleting the last sentence of Article 8 dated July 31, 2001 B.4.5* Amended and Restated Bylaws as amended July 31, 2001
* Filed herewith 1
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 (filed with 1999 Form U5S) B.5.3* Amended and Restated Bylaws as amended July 31, 2001 ACE REIT HOLDING, INC. B.6.1 Certificate of Incorporation filed March 12, 1998 in the office of the Delaware Secretary of State (filed with 1999 Form U5S) B.6.2 Amended and Restated Bylaws as amended December 31, 1999 (filed with 1999 Form U5S) ACE REIT, INC. B.7.1 Certificate of Incorporation filed March 12, 1998 in the office of the Delaware Secretary of State (filed with 1999 Form U5S) B.7.2 Amended and Restated Bylaws as amended December 31, 1999 (filed with 1999 Form U5S) B.7.3 Certificate of Ownership and Merger merging ACE REIT Holding, Inc. with and into ACE REIT, Inc. (filed with 2000 Form U5S) B.7.4* Certificate of Amendment of Certificate of Incorporation deleting last sentence of Article 8 dated July 31, 2001 B.7.5* Amended and Restated Bylaws as amended July 31, 2001 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 (filed with 1999 Form U5S) B.8.3* Certificate of Amendment of Certificate of Incorporation deleting the last sentence of Article 8 dated July 31, 2001 B.8.4* Amended and Restated Bylaws as amended July 31, 2001 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 (filed with 1999 Form U5S)
* Filed herewith 2
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 B.10.4* Restated Certificate of Incorporation dated May 2001 B.10.5* Certificate of Amendment of Certificate of Incorporation deleting the last sentence of Article 8 dated July 31, 2001 B.10.6* Amended and Restated Bylaws as amended July 31, 2001 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 (filed with 1999 Form U5S) B.11.2 Bylaws (filed with 1999 Form U5S) 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 (filed with 1999 Form U5S) 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 (filed with 1999 Form U5S) B.13.4* Certificate of Amendment of Certificate of Incorporation deleting the last sentence of Article 8 dated July 31, 2001 B.13.5* Amended and Restated Bylaws as amended July 31, 2001 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)
* Filed herewith 3
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 (filed with 1999 Form U5S) B.15.5* Certificate of Amendment of Certificate of Incorporation deleting the last sentence of Article 12 dated July 31, 2001 B.15.6* Amended and Restated Bylaws as amended July 31, 2001 CONECTIV PROPERTIES AND INVESTMENTS, INC. (F/K/A 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 (filed with 1999 Form U5S) B.16.4 Certificate of Merger merging Delmarva Services Company into Delmarva Capital Investments, Inc. and changing name to Conectiv Investments and Properties, Inc. (filed with 2000 Form U5S) B.16.5* Amended and Restated Bylaws as amended July 31, 2001 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 (filed with 1999 Form U5S) B.17.4* Amended and Restated Bylaws as amended July 31, 2001 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)
* Filed herewith 4
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 (filed with 1999 Form U5S) B.19.3* Amended and Restated Bylaws as amended July 31, 2001 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 (filed with 1999 Form U5S) B.20.4* Certificate of Amendment of Certificate of Incorporation deleting the last sentence of Article 8 dated July 31, 2001 B.20.5* Amended and Restated Bylaws as amended July 31, 2001 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 (filed with 1999 Form U5S) B.22.2 Limited Liability Company Operating Agreement of Millenium Account Services LLC dated January 4, 1999 (confidential treatment requested) (filed with 1999 Form U5S) 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)
* Filed herewith 5
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 (filed with 1999 Form U5S) B.24.4* Amended and Restated Bylaws as amended July 31, 2001 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 (filed with 1999 Form U5S) B.25.3* Amended and Restated Bylaws as amended July 31, 2001 KING STREET ASSURANCE, LTD. B.26.1 Certificate of Incorporation filed August 9, 1999 in the office of the Bermuda Registrar of Companies (filed with 1999 Form U5S) B.26.2 Bye-Laws (filed with 1999 Form U5S) 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 (filed with 1999 Form U5S) B.27.4* Amended and Restated Bylaws as amended July 31, 2001 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 (filed with 1999 Form U5S) B.28.4* Amended and Restated Bylaws as amended July 31, 2001
* Filed herewith 6
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 (filed with 1999 Form U5S) B.29.3* Amended and Restated Bylaws as amended July 31, 2001 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 (filed with 1999 Form U5S) B.32.3* Amended and Restated Bylaws as amended July 31, 2001 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 (filed with 1999 Form U5S) B.33.3* Amended and Restated Bylaws as amended July 31, 2001 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 (filed with 1999 Form U5S) B.34.3* Amended and Restated Bylaws as amended July 31, 2001 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 (filed with 1999 Form U5S) B.35.3* Amended and Restated Bylaws as amended July 31, 2001
* Filed herewith 7
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 (filed with 1999 Form U5S) B.36.3* Amended and Restated Bylaws as amended July 31, 2001 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 (filed with 1999 Form U5S) B.37.3* Amended and Restated Bylaws as amended July 31, 2001 CONECTIV MID-MERIT, INC. (F/K/A CONECTIV BRANDS, INC.) B.38.1 Certificate of Amendment of Certificate of Incorporation changing name to Conectiv Mid-Merit, Inc. (filed with 2000 Form U5S) B.38.2 Bylaws (filed with 2000 Form U5S) B.38.3* Certificate of Amendment of Certificate of Incorporation deleting the last sentence of Article 8 dated July 31, 2001 B.38.4* Amended and Restated Bylaws as amended July 31, 2001 ENERGY SYSTEMS NORTH EAST, LLC B.39.1 Certificate of Formation (filed with 2000 U5S) B.39.2 Limited Liability Company Agreement (Confidential Treatment Requested) (filed with 2000 Form U5S) CONECTIV ENERGY HOLDING COMPANY B.40.1 Certificate of Incorporation (filed with 2000 Form U5S) B.40.2 Bylaws (filed with 2000 Form U5S) B.40.3* Certificate of Amendment of Certificate of Incorporation deleting the last sentence of Article 8 dated July 31, 2001 B.40.4* Amended and Restated Bylaws as amended July 31, 2001 CONECTIV ATLANTIC GENERATION, L.L.C. B.41.1 Certificate of Formation (filed with 2000 Form U5S) DCI-BURNEY HOLDING, INC. B.42.1 Certificate of Incorporation (filed with 2000 Form U5S) CONECTIV SERVICES II, INC. B.43.1 Certificate of Incorporation of Conectiv Services II, Inc. (filed with 2000 Form U5S) B.43.2 Certificate of Amendment of Certificate of Incorporation changing the name to Conectiv Services, Inc. (filed with 2000 Form U5S) B.43.3 Bylaws (filed with 2000 Form U5S)
* Filed herewith 8
VITALSERVICESHOME.COM, L.L.C. B.44.1 Amended and Restated Limited Liability Company Agreement of VitalHomeServices.com, L.L.C. dated as of March 31, 2000 (Confidential Treatment Requested) (filed with 2000 Form U5S) B.44.2 Amendment to Amended and Restated Limited Liability Company Agreement of VitalHomeServices.com, L.L.C. dated as of October 31, 2000 (Confidential Treatment Requested) (filed with 2000 Form U5S) B.44.3 Second Amendment to Amended and Restated Limited Liability Company Agreement of VitalHomeServices.com, L.L.C. dated as of December 28, 2000 (Confidential Treatment Requested) (filed with 2000 Form U5S) CONECTIV BETHLEHEM, INC. B.45.1* Certificate of Incorporation of Conectiv Bethlehem, Inc. dated August 1, 2001 B.45.2* Bylaws
* Filed herewith 9 EXHIBIT C (a) * Reference is made to Delmarva Power & Light Company's 2001 Form 10-K, pages IV-2 through IV-3, filed with the Commission on March 27, 2002 (File No. 1-1405) and to Atlantic City Electric Company's 2001 Form 10-K, pages IV-2 through IV-3, filed with the Commission on March 27, 2002; 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. * Incorporated herein by reference. EXHIBIT D A copy of the current System Tax Allocation Agreement was filed as Exhibit D to the 1998 Form U5S and is incorporated by reference herein. EXHIBIT E Copies of other documents prescribed by rule or order. None. 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, of retained earnings, and of cash flows present fairly, in all material respects, the financial position of Conectiv and subsidiary companies as of December 31, 2001 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 of America. 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 Company'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 of America 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 8, 2002 EXHIBIT G See Item 1 for an organizational chart showing the relationship of each EWG in which the system holds an interest to other system companies. EXHIBIT H See Item 10 for the financial statements of the EWGs in the Conectiv System. EX-99.B.2.8 3 w59746ex99-b_28.txt AMENDED & RESTATED BYLAWS AS AMENDED 2/9/01 DELMARVA POWER & LIGHT COMPANY B.2.8 Amended and Restated Bylaws as amended February 9, 2001 AMENDED AND RESTATED B Y L A W S OF DELMARVA POWER & LIGHT COMPANY 1. OFFICES. 1.1 Offices. In addition to its registered office in the State of Delaware, Delmarva Power & Light Company (the "Corporation") shall have 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. MEETINGS OF STOCKHOLDERS. 2.1 Annual Meetings. (a) 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. (b) To be properly brought before the annual meeting, business must be either (i) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board, or (ii) otherwise properly brought before the meeting by or at the direction of the Board, or (iii) otherwise properly brought before the meeting by a stockholder. In addition to any other applicable requirements, for business to be properly brought before an annual meeting by a stockholder, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation. To be timely, a stockholder's notice must be delivered to or mailed and received at the principal executive offices of the Corporation, not less than fifty (50) days nor more than seventy-five (75) days prior to the meeting; provided, however, that in the event that less than sixty-five (65) days' notice or prior public disclosure of the date of the meeting is given or made to stockholders, notice by the stockholder to be timely must be so received not later than the close of business on the fifteenth (15th) day following the day on which such notice of the date of the annual meeting was mailed or such public disclosure was made, whichever first occurs. A stockholder's notice to the secretary shall set forth as to each matter the stockholder proposes to bring before the annual meeting (i) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (ii) the name and record address of the stockholder proposing such business, (iii) the class and number of shares of the Corporation which are beneficially owned by Adopted February 9, 2001 the stockholder, and (iv) any material interest of the stockholder in such business. 2.2 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. 2.3 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. 2.4 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. 2.5 Quorum and Adjournment. Except as otherwise provided by law, by the Restated Certificate and 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. 2.6 Vote Required. Except as otherwise provided by law or by the Restated Certificate and 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. 2.7 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. 2.8 Stockholder Action Without a Meeting. Except as otherwise provided by law or by the Restated Certificate and 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 the requisite number of shares of capital stock of the Corporation entitled to vote on such matter as required by the Restated Certificate and Articles of Incorporation and applicable law. 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. 2.9 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. 2.10 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 4.11(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. 2.11 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. 3. DIRECTORS. 3.1 The Board of Directors. The business and affairs of the Corporation shall be managed under the direction of a Board of Directors consisting of not less than three (3) nor more than fifteen (15) directors, the exact number of directors to be determined from time to time by resolution adopted by the affirmative vote of a majority of the directors then in office or two-thirds of the shares, represented by proxy or in person, entitled to vote at a meeting at which a quorum is present. 3.2 Powers. The Board of Directors shall exercise all of the powers of the Corporation except such as are by law, or by the Restated Certificate and Articles of Incorporation of this Corporation or by these Bylaws conferred upon or reserved to the stockholders of any class or classes. 3.3 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. 3.4 Nominations. Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors. Nominations of persons for election to the Board of Directors of the Corporation may be made at a meeting of stockholders by the Board of Directors, at the direction of the Board by any nominating committee or person appointed by the Board, or by any stockholder of the Corporation entitled to vote for the election of Directors at the meeting who complies with the notice procedures set forth in this Section 3. Such nominations, other than those made by or at the direction of the Board, shall be made pursuant to timely notice in writing to the Secretary of the Corporation. To be timely, a stockholder's notice shall be delivered to or mailed and received at the principal executive offices of the Corporation not less than fifty (50) days nor more than ninety (90) days prior to the meeting; provided, however, that in the event that less than sixty-five (65) days' notice or prior public disclosure of the date of the meeting is given or made to stockholders, notice by the stockholder to be timely must be so received not later than the close of business on the fifteenth (15th) day following the day on which such notice of the date of the meeting was mailed or such public disclosure was made, whichever first occurs. Such stockholders' notice to the Secretary shall set forth (a) as to each person whom the stockholder proposes to nominate for election or re-election as a director, (i) the name, age, business address and residence address of the person, (ii) the principal occupation or employment of the person, (iii) the class and number of shares of capital stock of the Corporation which are beneficially owned by the person and (iv) any other information relating to the person that is required to be disclosed in solicitations for proxies for election of directors pursuant to Rule 14A under the Securities Exchange Act of 1934, as amended; and (b) as to the stockholder giving the notice (i) the name and record address of such stockholder and (ii) the class and number of shares of capital stock of the Corporation which are beneficially owned by such stockholder. The Corporation may require any proposed nominee to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as a director of the Corporation. No persons shall be eligible for election as a director of the Corporation unless nominated in accordance with the procedures set forth herein. The Chairman of the meeting shall, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the foregoing procedure and if he/she should so determine, he/she shall so declare to the meeting, and the defective nomination shall be disregarded. 3.5 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 4.11(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. 3.6 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. 3.7 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. 3.8 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. 3.9 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 Restated Certificate and 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. 3.10 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. 3.11 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. 3.12 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. 3.13 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 two 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") or the Stock Corporation Act of the Commonwealth of Virginia ("SCAV") to be submitted to stockholders for approval, (ii) adopting, amending, or repealing any bylaw of the Corporation, or (iii) any other matter that may not be delegated to a committee of the Board of Directors pursuant to applicable law. 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. A majority of the Committee shall be necessary to constitute a quorum for the transaction of business. 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. 3.14 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 3.8 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 Restated Certificate and Articles of Incorporation or these Bylaws for the original appointment of the members of such committee. 3.15 Vacancies. Newly created directorships resulting from any increase in the number of directors and any vacancies in the Board of Directors resulting from death, resignation, disqualification, removal or other cause shall be filled by the Board of Directors or at an annual meeting of stockholders by the stockholders entitled to vote on the election of directors. If the directors remaining in office constitute fewer than a quorum of the Board, they may fill the vacancy by the affirmative vote of a majority of the directors remaining in office. 4. OFFICERS. 4.1 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 and 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. 4.2 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. 4.3 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. 4.4 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. 4.5 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. 4.6 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. 4.7 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. 4.8 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. 4.9 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. 4.10 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. 4.11 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. 4.12 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. 4.13 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. 5. STOCK 5.1 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. 5.2 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 Restated Certificate and 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. 5.3 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. 5.4 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 or the SCAV. 5.5 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 or 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. 6. MISCELLANEOUS 6.1 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. 6.2 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. 6.3 Fiscal Year. The fiscal year of the Corporation shall be the calendar year. 6.4 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. 6.5 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. 6.6 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 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. 6.7 Restated Certificate and 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 Restated Certificate and Articles of Incorporation, such provision of these Bylaws shall be superseded by the inconsistent provision in the Restated Certificate and Articles of Incorporation to the extent necessary to give effect to such provision in the Restated Certificate and Articles of Incorporation. 6.8 Control Share Acquisition Statute. Article 14.1 of the Virginia Stock Corporation Act shall not apply to acquisitions of shares of stock of the Corporation. EX-99.B.4.4 4 w59746ex99-b_44.txt CERTIFICATE OF INCORPORATION DATED 7/31/01 CONECTIV DELMARVA GENERATION, INC. B.4.4 Certificate of Amendment of Certificate of Incorporation deleting the last sentence of Article 8 dated July 31, 2001 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF CONECTIV DELMARVA GENERATION, INC. Pursuant to Section 242 Of the General Corporation Law Of the State of Delaware Conectiv Delmarva Generation, Inc., a corporation duly organized and validly existing under and by virtue of the General Corporation Law of the State of Delaware ("GCL"), does hereby certify that: 1. The Board of Directors of Conectiv Delmarva Generation, Inc. (the "Company") duly adopted by Unanimous Written Consent pursuant to Section 141 of the GCL, all in accordance with Section 242 of the GCL, the following resolution setting forth a proposed amendment to the Certificate of Incorporation of the Company, declaring said amendment to be advisable and submitting it to the sole stockholder of the Company for consideration thereof: RESOLVED, That the amendment to the Certificate of Incorporation to delete the last sentence of Article EIGHTH be, and hereby is, approved and adopted. 2. In accordance with the provisions of Sections 228 and 242 of the GCL, the amendment was adopted by the sole shareholder of the Company without a meeting, pursuant to the written consent of the shareholder. IN WITNESS WHEREOF, the Company has caused this certificate to be executed by its Senior Vice President and Chief Financial Officer and attested to by its Assistant Secretary this 31st day of July, 2001. CONECTIV DELMARVA GENERATION, INC. By: ------------------------ John C. van Roden, Jr. Senior Vice President and Chief Financial Officer Attest: By: --------------------------------- Nina J. Clements, Asst. Secretary EX-99.B.4.5 5 w59746ex99-b_45.txt AMENDED & RESTATED BYLAWS AS AMENDED 7/31/01 CONECTIV DELMARVA GENERATION, INC. B.4.5 Amended and Restated Bylaws as amended July 31, 2001 AMENDED AND RESTATED B Y L A W S OF CONECTIV DELMARVA 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 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. 1 (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. 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 2 Adopted July 31, 2001 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 or consents 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 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, 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; 3 Adopted July 31, 2001 (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 the Vice Chairman's 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 4 Adopted July 31, 2001 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, 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 5 Adopted July 31, 2001 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 the resolution or resolutions designating such committee 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. 6 Adopted July 31, 2001 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. (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 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 7 Adopted July 31, 2001 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 offices 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 8 Adopted July 31, 2001 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 or books 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 9 Adopted July 31, 2001 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 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. 10 Adopted July 31, 2001 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 Section 7.2 of this Article 7, the Corporation shall not be required to indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation prior to commencement of such proceeding (or part thereof). In addition to the right to indemnification conferred in this Section 7.1, each person who 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 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 11 Adopted July 31, 2001 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 of the Corporation, 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. 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 under Section 7.1 of this Article 7, 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 with respect to indemnification and advancement of expenses conferred in Sections 7.1 and 7.2 of this Article 7 shall be contract rights. 7.4 The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation. 7.5 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 present or former director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD. Such a determination shall be made, with respect to a person who Adopted by July 31, 2001 12 is a director or officer of the Corporation at the time of such determination, (a) by a majority vote of the directors who are not parties to such 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) if there are no such directors or if such directors so direct, by independent legal counsel (compensated by the Corporation) in a written opinion; or (d) by the stockholders. Such a determination shall be made, with respect to a person who is a former director or officer of the Corporation, who is a present or former employee or agent of the corporation, or who 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, in any manner permitted by the GCLD, including in any of the manners set forth above governing such determination with respect to present directors and officers of the Corporation. 7.6 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, these bylaws, agreement, vote of stockholders or disinterested directors, or otherwise. 7.7 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. 7.8 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. 7.9 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.10 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. 7.11 The Corporation may, by action of the Board of Directors, authorize one or more officers (i) to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances, or (ii) to establish policies relating to the indemnification of and Adopted by July 31, 2001 13 advancement of expenses to employees and agents of the Corporation, including, without limitation, policies specifying officers or senior employees (or categories of officers or senior employees) who shall have the power to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officers or senior employees 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 or other interests held by the Corporation in any other corporation, limited partnership, limited liability company, or other business entity. 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. Adopted by July 31, 2001 14 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 the holders of a majority of the voting power represented by the then outstanding shares of voting stock entitled to vote 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. Adopted by July 31, 2001 15 EX-99.B.5.3 6 w59746ex99-b_53.txt AMENDED & RESTATED BYLAWS AS AMENDED 7/31/01 Atlantic City Electric Company B.5.3 Amended and Restated Bylaws as amended July 31, 2001 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 New Jersey, the Corporation shall have a corporate office in Wilmington, Delaware, and such other offices, either within or without the State of New Jersey, 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 New Jersey 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 New Jersey 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 Adopted by July 31, 2001 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. 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 or consents 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 2 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 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, 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. 3 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 the Vice Chairman's 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. 4.4 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 New Jersey, 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 New Jersey, as shall be designated by the Chairman of the Board on not less than twelve hours notice to each 4 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. 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 New Jersey, 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 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 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 the resolution or resolutions designating such committee 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 New Jersey Business Corporation Act (the "NJBCA") 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. 6 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 NJBCA. (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 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. 7 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 offices 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 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 or books 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 8 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, 9 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 NJBCA. 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 NJBCA. (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 NJBCA, 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, 10 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 Section 7.2 of this Article 7, the Corporation shall not be required to indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation prior to commencement of such proceeding (or part thereof). In addition to the right to indemnification conferred in this Section 7.1, each person who 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 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 NJBCA 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 of the Corporation, 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. 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 NJBCA 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 NJBCA, 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 under Section 7.1 of this Article 7, 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. 11 7.3 The rights with respect to indemnification and advancement of expenses conferred in Sections 7.1 and 7.2 of this Article 7 shall be contract rights. 7.4 The Corporation may, by any manner permitted by the NJBCA, provide indemnification and advancement of expenses to employees and agents of the Corporation. 7.5 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 present or former director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the NJBCA. Such a determination shall be made, with respect to a person who is a director or officer of the Corporation at the time of such determination, (a) by a majority vote of the directors who are not parties to such 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) if there are no such directors or if such directors so direct, by independent legal counsel (compensated by the Corporation) in a written opinion; or (d) by the stockholders. Such a determination shall be made, with respect to a person who is a former director or officer of the Corporation, who is a present or former employee or agent of the corporation, or who 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, in any manner permitted by the NJBCA, including in any of the manners set forth above governing such determination with respect to present directors and officers of the Corporation. 7.6 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, these bylaws, agreement, vote of stockholders or disinterested directors, or otherwise. 7.7 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 NJBCA. 7.8 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. 7.9 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.10 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 12 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. 7.11 The Corporation may, by action of the Board of Directors, authorize one or more officers (i) to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances, or (ii) to establish policies relating to the indemnification of and advancement of expenses to employees and agents of the Corporation, including, without limitation, policies specifying officers or senior employees (or categories of officers or senior employees) who shall have the power to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officers or senior employees 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 New Jersey shall be kept in such place or places either within or without the State of New Jersey 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 or other interests held by the Corporation in any other corporation, limited partnership, limited liability company, or other business entity. 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. 13 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 the holders of a majority of the voting power represented by the then outstanding shares of voting stock entitled to vote 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. 14 EX-99.B.7.4 7 w59746ex99-b_74.txt CERTIFICATE OF INCORPORATION DATED 7/31/01 ACE REIT, Inc. B.7.4 Certificate of Amendment of Certificate of Incorporation dated July 31, 2001 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF ACE REIT, INC. Pursuant to Section 242 Of the General Corporation Law Of the State of Delaware ACE REIT, Inc., a corporation duly organized and validly existing under and by virtue of the General Corporation Law of the State of Delaware ("GCL"), does hereby certify that: 1. The Board of Directors of ACE REIT, Inc. (the "Company") duly adopted by Unanimous Written Consent pursuant to Section 141 of the GCL, all in accordance with Section 242 of the GCL, the following resolution setting forth a proposed amendment to the Certificate of Incorporation of the Company, declaring said amendment to be advisable and submitting it to the sole stockholder of the Company for consideration thereof: RESOLVED, That the Certificate of Incorporation (the "Certificate") of the Company be, and hereby is, amended by deleting the last sentence of Article EIGHTH of the Certificate. 2. In accordance with the provisions of Sections 228 and 242 of the GCL, the amendment was adopted by the sole shareholder of the Company without a meeting, pursuant to the written consent of the shareholder. IN WITNESS WHEREOF, the Company has caused this certificate to be executed by its Senior Vice President and Chief Financial Officer and attested to by its Assistant Secretary this 31st day of July, 2001. ACE REIT, INC. By: ----------------------------------- John C. van Roden, Jr. Senior Vice President and Chief Financial Officer Attest: By: -------------------------------- Nina J. Clements, Asst. Secretary EX-99.B.7.5 8 w59746ex99-b_75.txt AMENDED & RESTATED BYLAWS DATED 7/31/01 ACE REIT, Inc. B.7.5 Amended and Restated Bylaws of ACE REIT, Inc. adopted July 31, 2001 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 1 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. 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 2 notice, and without a vote, if a consent or consents 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 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, 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; 3 (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 the Vice Chairman's 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 4 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, 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 5 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 the resolution or resolutions designating such committee 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 6 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 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. 7 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 offices 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. 8 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 or books 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 9 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 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. 10 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 Section 7.2 of this Article 7, the Corporation shall not be required to indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation prior to commencement of such proceeding (or part thereof). In addition to the right to indemnification conferred in this Section 7.1, each person who 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 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 11 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 of the Corporation, 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. 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 under Section 7.1 of this Article 7, 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 with respect to indemnification and advancement of expenses conferred in Sections 7.1 and 7.2 of this Article 7 shall be contract rights. 7.4 The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation. 7.5 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 present or former director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD. Such a determination shall be made, with respect to a person who 12 is a director or officer of the Corporation at the time of such determination, (a) by a majority vote of the directors who are not parties to such 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) if there are no such directors or if such directors so direct, by independent legal counsel (compensated by the Corporation) in a written opinion; or (d) by the stockholders. Such a determination shall be made, with respect to a person who is a former director or officer of the Corporation, who is a present or former employee or agent of the corporation, or who 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, in any manner permitted by the GCLD, including in any of the manners set forth above governing such determination with respect to present directors and officers of the Corporation. 7.6 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, these bylaws, agreement, vote of stockholders or disinterested directors, or otherwise. 7.7 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. 7.8 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. 7.9 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.10 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. 7.11 The Corporation may, by action of the Board of Directors, authorize one or more officers (i) to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances, or (ii) to establish policies relating to the indemnification of and 13 advancement of expenses to employees and agents of the Corporation, including, without limitation, policies specifying officers or senior employees (or categories of officers or senior employees) who shall have the power to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officers or senior employees 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 or other interests held by the Corporation in any other corporation, limited partnership, limited liability company, or other business entity. 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. 14 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 the holders of a majority of the voting power represented by the then outstanding shares of voting stock entitled to vote 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. 15 EX-99.B.8.3 9 w59746ex99-b_83.txt CERTIFICATE OF INCORPORATION DATED 7/31/01 Conectiv Resource Partners, Inc. B.8.3 Certificate of Amendment of Certificate of Incorporation dated July 31, 2001 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF CONECTIV RESOURCE PARTNERS, INC. Pursuant to Section 242 Of the General Corporation Law Of the State of Delaware Conectiv Resource Partners, Inc., a corporation duly organized and validly existing under and by virtue of the General Corporation Law of the State of Delaware ("GCL"), does hereby certify that: 1. The Board of Directors of Conectiv Resource Partners, Inc. (the "Company") duly adopted by Unanimous Written Consent pursuant to Section 141 of the GCL, all in accordance with Section 242 of the GCL, the following resolution setting forth a proposed amendment to the Certificate of Incorporation of the Company, declaring said amendment to be advisable and submitting it to the sole stockholder of the Company for consideration thereof: RESOLVED, That the amendment to the Certificate of Incorporation to delete the last sentence of Article EIGHTH be, and hereby is, approved and adopted; and 2. In accordance with the provisions of Sections 228 and 242 of the GCL, the amendment was adopted by the sole shareholder of the Company without a meeting, pursuant to the written consent of the shareholder. IN WITNESS WHEREOF, the Company has caused this certificate to be executed by its Senior Vice President and Chief Financial Officer and attested to by its Assistant Secretary this 31st day of July, 2001. CONECTIV RESOURCE PARTNERS, INC. By: ------------------------ John C. van Roden, Jr. Senior Vice President and Chief Financial Officer Attest: By: --------------------------------- Nina J. Clements, Asst. Secretary EX-99.B.8.4 10 w59746ex99-b_84.txt AMENDED AND RESTATED BYLAWS AS AMENDED 7/31/01 Conectiv Resource Partners, Inc. B.8.4 Amended and Restated Bylaws Adopted July 31, 2001 AMENDED AND RESTATED BY LAWS 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 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. Adopted July 31, 2001 1 (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. 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 Adopted July 31, 2001 2 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 or consents 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 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, 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; Adopted July 31, 2001 3 (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 the Vice Chairman's 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 Adopted July 31, 2001 4 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, 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 Adopted July 31, 2001 5 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 the resolution or resolutions designating such committee 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. Adopted July 31, 2001 6 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. (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 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 Adopted July 31, 2001 7 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 offices 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 Adopted July 31, 2001 8 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 or books 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 Adopted July 31, 2001 9 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 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. Adopted July 31, 2001 10 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 Section 7.2 of this Article 7, the Corporation shall not be required to indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation prior to commencement of such proceeding (or part thereof). In addition to the right to indemnification conferred in this Section 7.1, each person who 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 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 Adopted July 31, 2001 11 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 of the Corporation, 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. 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 under Section 7.1 of this Article 7, 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 with respect to indemnification and advancement of expenses conferred in Sections 7.1 and 7.2 of this Article 7 shall be contract rights. 7.4 The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation. 7.5 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 present or former director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD. Such a determination shall be made, with respect to a person who Adopted July 31, 2001 12 is a director or officer of the Corporation at the time of such determination, (a) by a majority vote of the directors who are not parties to such 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) if there are no such directors or if such directors so direct, by independent legal counsel (compensated by the Corporation) in a written opinion; or (d) by the stockholders. Such a determination shall be made, with respect to a person who is a former director or officer of the Corporation, who is a present or former employee or agent of the corporation, or who 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, in any manner permitted by the GCLD, including in any of the manners set forth above governing such determination with respect to present directors and officers of the Corporation. 7.6 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, these bylaws, agreement, vote of stockholders or disinterested directors, or otherwise. 7.7 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. 7.8 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. 7.9 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.10 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. 7.11 The Corporation may, by action of the Board of Directors, authorize one or more officers (i) to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances, or (ii) to establish policies relating to the indemnification of and Adopted July 31, 2001 13 advancement of expenses to employees and agents of the Corporation, including, without limitation, policies specifying officers or senior employees (or categories of officers or senior employees) who shall have the power to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officers or senior employees 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 or other interests held by the Corporation in any other corporation, limited partnership, limited liability company, or other business entity. 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. Adopted July 31, 2001 14 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 the holders of a majority of the voting power represented by the then outstanding shares of voting stock entitled to vote 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. Adopted July 31, 2001 15 EX-99.B.10.4 11 w59746ex99-b_104.txt RESTATED CERTIFICATE OF INCORPORATION MAY 2001 Conectiv Communications, Inc. B.10.4 Restated Certificate of Incorporation dated May 2001 RESTATED CERTIFICATE OF INCORPORATION OF CONECTIV COMMUNICATIONS, INC. A. The present name of the corporation is Conectiv Communications, Inc. The corporation was incorporated under the name "Delmarva Telecommunications, Inc." by the filing of its original Certificate of Incorporation with the Secretary of State of the State of Delaware on October 21, 1996. B. This Restated Certificate of Incorporation of the corporation, which both restates and further amends the provisions of the corporation's Certificate of Incorporation, as amended, was duly adopted in accordance with the provisions of Sections 242 and 245 of the General Corporation Law of the State of Delaware and by the written consent of its sole stockholder in accordance with Section 228 of the General Corporation Law of the State of Delaware. C. The Certificate of Incorporation of the corporation is hereby amended and restated to read in its entirety as follows: FIRST: The name of this corporation is "Conectiv Communications, Inc." (the "Corporation"). SECOND: The address of the Corporation's registered office in the State of Delaware is 800 King Street in the City of Wilmington, County of New Castle, 19801. The name of its registered agent at such address is Conectiv Resource Partners, Inc. c/o Legal Department. THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. FOURTH: (a) Authorized Stock. The Corporation is authorized to issue three classes of stock, designated as "Preferred Stock," "Common Stock," and "Class B Common Stock." The total number of shares which the Corporation shall have authority to issue is 3,000 of which 1,000 shares shall be Preferred Stock, with a par value of $.01 per share, 1,000 shares shall be Common Stock, with a par value of $1.00 per share, and 1,000 shares shall be Class B Common Stock, with a par value of $1.00 per share. (b) Preferred Stock. The board of directors of the Corporation (the "Board of Directors" or "Board") is authorized, subject to limitations prescribed by law and the provisions of this Article Fourth, to provide for the issuance of the shares of Preferred Stock in series, and by filing a certificate pursuant to the applicable law of the State of Delaware, to establish from time to time the number of shares to be included in each such series, and to fix the designations, powers, preferences and rights of the shares of each such series and the qualifications, limitations or restrictions thereof. The shares of Preferred Stock may be issued from time to time in one or more series. The authority of the Board with respect to each series shall include, but not be limited to, determination of the following: (1) The number of shares constituting that series and the distinctive designation of that series; (2) The dividend rate on the shares of that series, whether dividends shall be cumulative, and, if so, from which date or dates, and the relative rights or priority, if any, of payment of dividends on shares of that series; (3) Whether that series shall have voting rights, in addition to voting rights provided by law, and, if so, the terms of such voting rights; (4) Whether that series shall have conversion rights and, if so, the terms of such conversion rights; (5) Whether or not the shares of that series shall be redeemable, and, if so, the terms and conditions of such redemption, including the date or dates upon or after which they shall be redeemable, and the amount per share payable in case of redemption, which amount may vary under different conditions and at different redemption dates; (6) Whether that series shall have a sinking fund for the redemption or purchase of shares of that series, and, if so, the terms and amount of such sinking fund; (7) The rights of shares of that series in the event of voluntary or involuntary liquidation, dissolution or winding up of the Corporation, and the relative rights of priority, if any, of payment of shares of that series; (8) The rights of shares of that series in the event of merger or consolidation of the Corporation; and (9) Any other relative or participating rights, preferences and limitations of that series. (c) Common Stock and Class B Common Stock. (1) Voting Rights. Each share of Common Stock shall be entitled to one vote per share for the election of directors and on all other matters submitted to the stockholders of the Corporation for a vote. Each share of Class B Common Stock shall be entitled to one-fifth (1/5) vote per share for the election of directors and on all other matters submitted to the stockholders of the Corporation for a vote. (2) Dividend Rights. Dividends shall be payable on the shares of Common Stock and the Class B Common Stock only when, as and if declared thereon by the Board of Directors out of assets or funds legally available therefore, subject to the rights of the holders of the Preferred Stock. At the discretion of the Board of Directors, dividends may be declared and paid on shares of Class B Common Stock without the payment of any dividend on the Common Stock. No dividends shall be paid on shares of Common Stock unless the same dividend shall be paid on shares of Class B Common Stock. (3) All Other Rights. Except for the voting rights and dividend rights as set forth above, the powers preferences and rights of the Common Stock and the Class B Common Stock shall be identical and the Common Stock and the Class B Common Stock shall rank pari passu with respect to the distribution of assets on any liquidation, dissolution, or winding up of the Corporation. FIFTH: In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors is expressly authorized to make, alter and repeal the by-laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any by-law whether adopted by them or otherwise. SIXTH: 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 SIXTH 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. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal. SEVENTH: Unless and except to the extent that the by-laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot. EIGHTH: The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Restated Certificate of Incorporation, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Restated Certificate of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article. IN WITNESS WHEREOF, Conectiv Communications, Inc. has caused this Restated Certificate of Incorporation to be executed by ______________, its ___________, as of the day of May, 2001. Conectiv Communications, Inc. By: Name: Title: 467849v4 4 EX-99.B.10.5 12 w59746ex99-b_105.txt CERTIFICATE OF INCORPORATION DATED 7/31/01 Conectiv Communications, Inc. B.10.5 Certificate of Amendment of Certificate of Incorporation dated July 31, 2001 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF CONECTIV COMMUNICATIONS, INC. Pursuant to Section 242 Of the General Corporation Law Of the State of Delaware Conectiv Communications, Inc., a corporation duly organized and validly existing under and by virtue of the General Corporation Law of the State of Delaware ("GCL"), does hereby certify that: 1. The Board of Directors of Conectiv Communications, Inc. (the "Company") duly adopted by Unanimous Written Consent pursuant to Section 141 of the GCL, all in accordance with Section 242 of the GCL, the following resolution setting forth a proposed amendment to the Certificate of Incorporation of the Company, declaring said amendment to be advisable and submitting it to the sole stockholder of the Company for consideration thereof: RESOLVED, That the Certificate of Incorporation (the "Certificate") of the Company be, and hereby is, amended by deleting the last sentence of Article EIGHTH of the Certificate. 2. In accordance with the provisions of Sections 228 and 242 of the GCL, the amendment was adopted by the sole shareholder of the Company without a meeting, pursuant to the written consent of the shareholder. IN WITNESS WHEREOF, the Company has caused this certificate to be executed by its Senior Vice President and Chief Financial Officer and attested to by its Assistant Secretary this 31st day of July, 2001. CONECTIV COMMUNICATIONS, INC. By: ----------------------------- John C. van Roden, Jr. Senior Vice President and Chief Financial Officer Attest: By: --------------------------------- Nina J. Clements, Asst. Secretary EX-99.B.10.6 13 w59746ex99-b_106.txt AMENDED AND RESTATED BYLAWS AMENDED 7/31/01 Conectiv Communications, Inc. B.10.6 Amended and Restated Bylaws Adopted July 31, 2001 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. 1 Adopted July 31, 2001 (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. 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 2 Adopted July 31, 2001 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 or consents 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 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, 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; 3 Adopted July 31, 2001 (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 the Vice Chairman's 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 4 Adopted July 31, 2001 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, 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 5 Adopted July 31, 2001 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 the resolution or resolutions designating such committee 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. 6 Adopted July 31, 2001 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. (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 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 7 Adopted July 31, 2001 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 offices 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 8 Adopted July 31, 2001 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 or books 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 9 Adopted July 31, 2001 \ 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 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. 10 Adopted July 31, 2001 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 Section 7.2 of this Article 7, the Corporation shall not be required to indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation prior to commencement of such proceeding (or part thereof). In addition to the right to indemnification conferred in this Section 7.1, each person who 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 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 11 Adopted July 31, 2001 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 of the Corporation, 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. 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 under Section 7.1 of this Article 7, 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 with respect to indemnification and advancement of expenses conferred in Sections 7.1 and 7.2 of this Article 7 shall be contract rights. 7.4 The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation. 7.5 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 present or former director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD. Such a determination shall be made, with respect to a person who 12 Adopted July 31, 2001 is a director or officer of the Corporation at the time of such determination, (a) by a majority vote of the directors who are not parties to such 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) if there are no such directors or if such directors so direct, by independent legal counsel (compensated by the Corporation) in a written opinion; or (d) by the stockholders. Such a determination shall be made, with respect to a person who is a former director or officer of the Corporation, who is a present or former employee or agent of the corporation, or who 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, in any manner permitted by the GCLD, including in any of the manners set forth above governing such determination with respect to present directors and officers of the Corporation. 7.6 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, these bylaws, agreement, vote of stockholders or disinterested directors, or otherwise. 7.7 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. 7.8 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. 7.9 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.10 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. 7.11 The Corporation may, by action of the Board of Directors, authorize one or more officers (i) to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances, or (ii) to establish policies relating to the indemnification of and 13 Adopted July 31, 2001 advancement of expenses to employees and agents of the Corporation, including, without limitation, policies specifying officers or senior employees (or categories of officers or senior employees) who shall have the power to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officers or senior employees 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 or other interests held by the Corporation in any other corporation, limited partnership, limited liability company, or other business entity. 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. 14 Adopted July 31, 2001 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 the holders of a majority of the voting power represented by the then outstanding shares of voting stock entitled to vote 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. 15 Adopted July 31, 2001 EX-99.B.13.4 14 w59746ex99-b_134.txt CERTIFICATE OF INCORPORATION DATED 7/31/01 Conectiv Services, Inc. B.13.4 Certificate of Amendment of Certificate of Incorporation dated July 31, 2001 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF CONECTIV SERVICES, INC. Pursuant to Section 242 Of the General Corporation Law Of the State of Delaware Conectiv Services, Inc., a corporation duly organized and validly existing under and by virtue of the General Corporation Law of the State of Delaware ("GCL"), does hereby certify that: 1. The Board of Directors of Conectiv Services, Inc. (the "Company") duly adopted by Unanimous Written Consent pursuant to Section 141 of the GCL, all in accordance with Section 242 of the GCL, the following resolution setting forth a proposed amendment to the Certificate of Incorporation of the Company, declaring said amendment to be advisable and submitting it to the sole stockholder of the Company for consideration thereof: RESOLVED, That the amendment to the Certificate of Incorporation to delete the last sentence of Article EIGHTH be, and hereby is, approved and adopted; and 2. In accordance with the provisions of Sections 228 and 242 of the GCL, the amendment was adopted by the sole shareholder of the Company without a meeting, pursuant to the written consent of the shareholder. IN WITNESS WHEREOF, the Company has caused this certificate to be executed by its Senior Vice President and Chief Financial Officer and attested to by its Assistant Secretary this 31st day of July, 2001. CONECTIV SERVICES, INC. By: ---------------------------------- John C. van Roden, Jr. Senior Vice President & Chief Financial Officer Attest: By: --------------------------------- Nina J. Clements, Asst. Secretary EX-99.B.13.5 15 w59746ex99-b_135.txt AMENDED AND RESTATED BYLAWS AMENDED 7/31/01 Conectiv Services, Inc. B.13.5 Amended and Restated Bylaws Adopted July 31, 2001 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. 1 Adopted July 31, 2001 (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. 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 2 Adopted July 31, 2001 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 or consents 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 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, 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; 3 Adopted July 31, 2001 (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 the Vice Chairman's 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 4 Adopted July 31, 2001 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, 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 5 Adopted July 31, 2001 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 the resolution or resolutions designating such committee 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. 6 Adopted July 31, 2001 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 President & Chief Information Officers 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 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 & Chief Information Officer, 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. 7 Adopted July 31, 2001 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 offices 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. 8 Adopted July 31, 2001 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 or books 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 9 Adopted July 31, 2001 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 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 10 Adopted July 31, 2001 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 Section 7.2 of this Article 7, the Corporation shall not be required to indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation prior to commencement of such proceeding (or part thereof). In addition to the right to indemnification conferred in this Section 7.1, each person who 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 11 Adopted July 31, 2001 partnership, joint venture, trust, or other enterprise 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 of the Corporation, 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. 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 under Section 7.1 of this Article 7, 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 with respect to indemnification and advancement of expenses conferred in Sections 7.1 and 7.2 of this Article 7 shall be contract rights. 7.4 The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation. 7.5 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 12 Adopted July 31, 2001 that indemnification of the present or former director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD. Such a determination shall be made, with respect to a person who is a director or officer of the Corporation at the time of such determination, (a) by a majority vote of the directors who are not parties to such 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) if there are no such directors or if such directors so direct, by independent legal counsel (compensated by the Corporation) in a written opinion; or (d) by the stockholders. Such a determination shall be made, with respect to a person who is a former director or officer of the Corporation, who is a present or former employee or agent of the corporation, or who 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, in any manner permitted by the GCLD, including in any of the manners set forth above governing such determination with respect to present directors and officers of the Corporation. 7.6 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, these bylaws, agreement, vote of stockholders or disinterested directors, or otherwise. 7.7 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. 7.8 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. 7.9 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.10 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. 7.11 The Corporation may, by action of the Board of Directors, authorize one or more officers (i) to authorize in the specific case the indemnification of, or to grant 13 Adopted July 31, 2001 rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances, or (ii) to establish policies relating to the indemnification of and advancement of expenses to employees and agents of the Corporation, including, without limitation, policies specifying officers or senior employees (or categories of officers or senior employees) who shall have the power to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officers or senior employees 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 or other interests held by the Corporation in any other corporation, limited partnership, limited liability company, or other business entity. 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. 14 Adopted July 31, 2001 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 the holders of a majority of the voting power represented by the then outstanding shares of voting stock entitled to vote 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. 15 Adopted July 31, 2001 EX-99.B.15.5 16 w59746ex99-b_155.txt CERTIFICATE OF INCORPORATION OF ARTICLE 12 7/31/01 Conectiv Energy Supply, Inc. B.15.5 Certificate of Amendment of Certificate of Incorporation dated July 31, 2001 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF CONECTIV ENERGY SUPPLY, INC. Pursuant to Section 242 Of the General Corporation Law Of the State of Delaware Conectiv Energy Supply, Inc., a corporation duly organized and validly existing under and by virtue of the General Corporation Law of the State of Delaware ("GCL"), does hereby certify that: 1. The Board of Directors of Conectiv Energy Supply, Inc. (the "Company") duly adopted by Unanimous Written Consent pursuant to Section 141 of the GCL, all in accordance with Section 242 of the GCL, the following resolution setting forth a proposed amendment to the Certificate of Incorporation of the Company, declaring said amendment to be advisable and submitting it to the sole stockholder of the Company for consideration thereof: RESOLVED, That the Certificate of Incorporation (the "Certificate") of the Company be, and hereby is, amended by deleting the last sentence of Article TWELFTH of the Certificate. 2. In accordance with the provisions of Sections 228 and 242 of the GCL, the amendment was adopted by the sole shareholder of the Company without a meeting, pursuant to the written consent of the shareholder. IN WITNESS WHEREOF, the Company has caused this certificate to be executed by its Senior Vice President and Chief Financial Officer and attested to by its Assistant Secretary this 31st day of July, 2001. CONECTIV ENERGY SUPPLY, INC. By: ---------------------------- John C. van Roden, Jr. Senior Vice President and Chief Financial Officer Attest: By: --------------------------------- Nina J. Clements, Asst. Secretary EX-99.B.15.6 17 w59746ex99-b_156.txt AMENDED & RESTATED BYLAWS AMENDED 7/31/01 Conectiv Energy Supply, Inc. B.15.6 Amended and Restated Bylaws Adopted July 31, 2001 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. 1 Adopted July 31, 2001 (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. 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 2 Adopted July 31, 2001 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 or consents 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 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, 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; 3 Adopted July 31, 2001 (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 the Vice Chairman's 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 4 Adopted July 31, 2001 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, 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 5 Adopted July 31, 2001 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 the resolution or resolutions designating such committee 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. 6 Adopted July 31, 2001 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. (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 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 7 Adopted July 31, 2001 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 offices 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 8 Adopted July 31, 2001 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 or books 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 9 Adopted July 31, 2001 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 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. 10 Adopted July 31, 2001 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 Section 7.2 of this Article 7, the Corporation shall not be required to indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation prior to commencement of such proceeding (or part thereof). In addition to the right to indemnification conferred in this Section 7.1, each person who 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 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 11 Adopted July 31, 2001 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 of the Corporation, 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. 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 under Section 7.1 of this Article 7, 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 with respect to indemnification and advancement of expenses conferred in Sections 7.1 and 7.2 of this Article 7 shall be contract rights. 7.4 The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation. 7.5 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 present or former director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD. Such a determination shall be made, with respect to a person who 12 Adopted July 31, 2001 is a director or officer of the Corporation at the time of such determination, (a) by a majority vote of the directors who are not parties to such 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) if there are no such directors or if such directors so direct, by independent legal counsel (compensated by the Corporation) in a written opinion; or (d) by the stockholders. Such a determination shall be made, with respect to a person who is a former director or officer of the Corporation, who is a present or former employee or agent of the corporation, or who 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, in any manner permitted by the GCLD, including in any of the manners set forth above governing such determination with respect to present directors and officers of the Corporation. 7.6 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, these bylaws, agreement, vote of stockholders or disinterested directors, or otherwise. 7.7 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. 7.8 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. 7.9 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.10 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. 7.11 The Corporation may, by action of the Board of Directors, authorize one or more officers (i) to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances, or (ii) to establish policies relating to the indemnification of and 13 Adopted July 31, 2001 advancement of expenses to employees and agents of the Corporation, including, without limitation, policies specifying officers or senior employees (or categories of officers or senior employees) who shall have the power to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officers or senior employees 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 or other interests held by the Corporation in any other corporation, limited partnership, limited liability company, or other business entity. 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. 14 Adopted July 31, 2001 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 the holders of a majority of the voting power represented by the then outstanding shares of voting stock entitled to vote 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. 15 Adopted July 31, 2001 EX-99.B.16.5 18 w59746ex99-b_165.txt AMENDED & RESTATED BYLAWS AS AMENDED 7/31/01 CONECTIV PROPERTIES AND INVESTMENTS, INC. B.16.5 AMENDED AND RESTATED BYLAWS ADOPTED JULY 31, 2001 AMENDED AND RESTATED B Y L A W S OF CONECTIV PROPERTIES AND 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 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. Adopted July 31, 2001 1 (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. 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 Adopted July 31, 2001 2 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 or consents 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 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, 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; Adopted July 31, 2001 3 (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 the Vice Chairman's 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 Adopted July 31, 2001 4 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, 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 Adopted July 31, 2001 5 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 the resolution or resolutions designating such committee 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. Adopted July 31, 2001 6 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. (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 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 Adopted July 31, 2001 7 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 offices 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 Adopted July 31, 2001 8 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 or books 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 Adopted July 31, 2001 9 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 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. Adopted July 31, 2001 10 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 Section 7.2 of this Article 7, the Corporation shall not be required to indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation prior to commencement of such proceeding (or part thereof). In addition to the right to indemnification conferred in this Section 7.1, each person who 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 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 Adopted July 31, 2001 11 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 of the Corporation, 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. 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 under Section 7.1 of this Article 7, 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 with respect to indemnification and advancement of expenses conferred in Sections 7.1 and 7.2 of this Article 7 shall be contract rights. 7.4 The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation. 7.5 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 present or former director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD. Such a determination shall be made, with respect to a person who Adopted July 31, 2001 12 is a director or officer of the Corporation at the time of such determination, (a) by a majority vote of the directors who are not parties to such 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) if there are no such directors or if such directors so direct, by independent legal counsel (compensated by the Corporation) in a written opinion; or (d) by the stockholders. Such a determination shall be made, with respect to a person who is a former director or officer of the Corporation, who is a present or former employee or agent of the corporation, or who 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, in any manner permitted by the GCLD, including in any of the manners set forth above governing such determination with respect to present directors and officers of the Corporation. 7.6 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, these bylaws, agreement, vote of stockholders or disinterested directors, or otherwise. 7.7 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. 7.8 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. 7.9 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.10 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. 7.11 The Corporation may, by action of the Board of Directors, authorize one or more officers (i) to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances, or (ii) to establish policies relating to the indemnification of and Adopted July 31, 2001 13 advancement of expenses to employees and agents of the Corporation, including, without limitation, policies specifying officers or senior employees (or categories of officers or senior employees) who shall have the power to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officers or senior employees 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 or other interests held by the Corporation in any other corporation, limited partnership, limited liability company, or other business entity. 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. Adopted July 31, 2001 14 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 the holders of a majority of the voting power represented by the then outstanding shares of voting stock entitled to vote 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. Adopted July 31, 2001 15 EX-99.B.17.4 19 w59746ex99-b_174.txt AMENDED & RESTATED BYLAWS AS AMENDED 7/31/01 DCI I, INC. B.17.4 AMENDED AND RESTATED BYLAWS ADOPTED JULY 31, 2001 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. Adopted July 31, 2001 1 (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. 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 Adopted July 31, 2001 2 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 or consents 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 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, 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; Adopted July 31, 2001 3 (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 the Vice Chairman's 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 Adopted July 31, 2001 4 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, 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 Adopted July 31, 2001 5 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 the resolution or resolutions designating such committee 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. Adopted July 31, 2001 6 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. (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 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 Adopted July 31, 2001 7 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 offices 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 Adopted July 31, 2001 8 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 or books 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 Adopted July 31, 2001 9 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 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. Adopted July 31, 2001 10 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 Section 7.2 of this Article 7, the Corporation shall not be required to indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation prior to commencement of such proceeding (or part thereof). In addition to the right to indemnification conferred in this Section 7.1, each person who 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 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 Adopted July 31, 2001 11 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 of the Corporation, 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. 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 under Section 7.1 of this Article 7, 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 with respect to indemnification and advancement of expenses conferred in Sections 7.1 and 7.2 of this Article 7 shall be contract rights. 7.4 The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation. 7.5 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 present or former director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD. Such a determination shall be made, with respect to a person who Adopted July 31, 2001 12 is a director or officer of the Corporation at the time of such determination, (a) by a majority vote of the directors who are not parties to such 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) if there are no such directors or if such directors so direct, by independent legal counsel (compensated by the Corporation) in a written opinion; or (d) by the stockholders. Such a determination shall be made, with respect to a person who is a former director or officer of the Corporation, who is a present or former employee or agent of the corporation, or who 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, in any manner permitted by the GCLD, including in any of the manners set forth above governing such determination with respect to present directors and officers of the Corporation. 7.6 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, these bylaws, agreement, vote of stockholders or disinterested directors, or otherwise. 7.7 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. 7.8 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. 7.9 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.10 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. 7.11 The Corporation may, by action of the Board of Directors, authorize one or more officers (i) to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances, or (ii) to establish policies relating to the indemnification of and Adopted July 31, 2001 13 advancement of expenses to employees and agents of the Corporation, including, without limitation, policies specifying officers or senior employees (or categories of officers or senior employees) who shall have the power to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officers or senior employees 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 or other interests held by the Corporation in any other corporation, limited partnership, limited liability company, or other business entity. 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. Adopted July 31, 2001 14 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 the holders of a majority of the voting power represented by the then outstanding shares of voting stock entitled to vote 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. Adopted July 31, 2001 15 EX-99.B.19.3 20 w59746ex99-b_193.txt AMENDED & RESTATED BYLAWS AMENDED 7/31/01 DCTC-BURNEY, INC. B.19.3 AMENDED AND RESTATED BYLAWS ADOPTED JULY 31, 2001 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. Adopted July 31, 2001 1 (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. 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 Adopted July 31, 2001 2 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 or consents 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 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, 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; Adopted July 31, 2001 3 (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 the Vice Chairman's 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 Adopted July 31, 2001 4 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, 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 Adopted July 31, 2001 5 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 the resolution or resolutions designating such committee 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. Adopted July 31, 2001 6 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. (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 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 Adopted July 31, 2001 7 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 offices 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 Adopted July 31, 2001 8 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 or books 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 Adopted July 31, 2001 9 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 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. Adopted July 31, 2001 10 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 Section 7.2 of this Article 7, the Corporation shall not be required to indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation prior to commencement of such proceeding (or part thereof). In addition to the right to indemnification conferred in this Section 7.1, each person who 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 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 Adopted July 31, 2001 11 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 of the Corporation, 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. 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 under Section 7.1 of this Article 7, 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 with respect to indemnification and advancement of expenses conferred in Sections 7.1 and 7.2 of this Article 7 shall be contract rights. 7.4 The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation. 7.5 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 present or former director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD. Such a determination shall be made, with respect to a person who Adopted July 31, 2001 12 is a director or officer of the Corporation at the time of such determination, (a) by a majority vote of the directors who are not parties to such 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) if there are no such directors or if such directors so direct, by independent legal counsel (compensated by the Corporation) in a written opinion; or (d) by the stockholders. Such a determination shall be made, with respect to a person who is a former director or officer of the Corporation, who is a present or former employee or agent of the corporation, or who 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, in any manner permitted by the GCLD, including in any of the manners set forth above governing such determination with respect to present directors and officers of the Corporation. 7.6 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, these bylaws, agreement, vote of stockholders or disinterested directors, or otherwise. 7.7 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. 7.8 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. 7.9 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.10 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. 7.11 The Corporation may, by action of the Board of Directors, authorize one or more officers (i) to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances, or (ii) to establish policies relating to the indemnification of and Adopted July 31, 2001 13 advancement of expenses to employees and agents of the Corporation, including, without limitation, policies specifying officers or senior employees (or categories of officers or senior employees) who shall have the power to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officers or senior employees 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 or other interests held by the Corporation in any other corporation, limited partnership, limited liability company, or other business entity. 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. Adopted July 31, 2001 14 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 the holders of a majority of the voting power represented by the then outstanding shares of voting stock entitled to vote 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. Adopted July 31, 2001 15 EX-99.B.20.4 21 w59746ex99-b_204.txt CERTIFICATE OF INCORPORATION DATED JULY 31, 2001 CONECTIV OPERATING SERVICES COMPANY B.20.4 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION DATED JULY 31, 2001 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF CONECTIV OPERATING SERVICES COMPANY Pursuant to Section 242 Of the General Corporation Law Of the State of Delaware Conectiv Operating Services Company, a corporation duly organized and validly existing under and by virtue of the General Corporation Law of the State of Delaware ("GCL"), does hereby certify that: 1. The Board of Directors of Conectiv Operating Services Company (the "Company") duly adopted by Unanimous Written Consent pursuant to Section 141 of the GCL, all in accordance with Section 242 of the GCL, the following resolution setting forth a proposed amendment to the Certificate of Incorporation of the Company, declaring said amendment to be advisable and submitting it to the sole stockholder of the Company for consideration thereof: RESOLVED, That the Certificate of Incorporation (the "Certificate") of the Company be, and hereby is, amended by deleting the last sentence of Article EIGHTH of the Certificate. 2. In accordance with the provisions of Sections 228 and 242 of the GCL, the amendment was adopted by the sole shareholder of the Company without a meeting, pursuant to the written consent of the shareholder. IN WITNESS WHEREOF, the Company has caused this certificate to be executed by its Senior Vice President and Chief Financial Officer and attested to by its Assistant Secretary this 31st day of July, 2001. CONECTIV OPERATING SERVICES COMPANY By: __________________________________ John C. van Roden, Jr. Senior Vice President and Chief Financial Officer Attest: By: _________________________________ Nina J. Clements, Asst. Secretary EX-99.B.20.5 22 w59746ex99-b_205.txt AMENDED & RESTATED BYLAWS AMENDED 7/31/01 CONECTIV OPERATING SERVICES COMPANY B.20.5 AMENDED AND RESTATED BYLAWS ADOPTED JULY 31, 2001 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. Adopted July 31, 2001 1 (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. 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 Adopted July 31, 2001 2 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 or consents 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 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, 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; Adopted July 31, 2001 3 (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 the Vice Chairman's 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 Adopted July 31, 2001 4 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, 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 Adopted July 31, 2001 5 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 the resolution or resolutions designating such committee 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. Adopted July 31, 2001 6 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. (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 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 Adopted July 31, 2001 7 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 offices 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 Adopted July 31, 2001 8 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 or books 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 Adopted July 31, 2001 9 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 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. Adopted July 31, 2001 10 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 Section 7.2 of this Article 7, the Corporation shall not be required to indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation prior to commencement of such proceeding (or part thereof). In addition to the right to indemnification conferred in this Section 7.1, each person who 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 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 Adopted July 31, 2001 11 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 of the Corporation, 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. 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 under Section 7.1 of this Article 7, 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 with respect to indemnification and advancement of expenses conferred in Sections 7.1 and 7.2 of this Article 7 shall be contract rights. 7.4 The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation. 7.5 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 present or former director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD. Such a determination shall be made, with respect to a person who Adopted July 31, 2001 12 is a director or officer of the Corporation at the time of such determination, (a) by a majority vote of the directors who are not parties to such 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) if there are no such directors or if such directors so direct, by independent legal counsel (compensated by the Corporation) in a written opinion; or (d) by the stockholders. Such a determination shall be made, with respect to a person who is a former director or officer of the Corporation, who is a present or former employee or agent of the corporation, or who 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, in any manner permitted by the GCLD, including in any of the manners set forth above governing such determination with respect to present directors and officers of the Corporation. 7.6 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, these bylaws, agreement, vote of stockholders or disinterested directors, or otherwise. 7.7 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. 7.8 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. 7.9 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.10 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. 7.11 The Corporation may, by action of the Board of Directors, authorize one or more officers (i) to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances, or (ii) to establish policies relating to the indemnification of and Adopted July 31, 2001 13 advancement of expenses to employees and agents of the Corporation, including, without limitation, policies specifying officers or senior employees (or categories of officers or senior employees) who shall have the power to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officers or senior employees 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 or other interests held by the Corporation in any other corporation, limited partnership, limited liability company, or other business entity. 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. Adopted July 31, 2001 14 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 the holders of a majority of the voting power represented by the then outstanding shares of voting stock entitled to vote 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. Adopted July 31, 2001 15 EX-99.B.24.4 23 w59746ex99-b_244.txt AMENDED & RESTATED BYLAWS AS AMENDED JULY 31,2001 ATLANTIC SOUTHERN PROPERTIES, INC. B.24.4 AMENDED AND RESTATED BYLAWS ADOPTED JULY 31, 2001 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 New Jersey, the Corporation shall have a corporate office in Wilmington, Delaware, and such other offices, either within or without the State of New Jersey, 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 New Jersey 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 New Jersey 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. Adopted July 31, 2001 1 (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. 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 Adopted July 31, 2001 2 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 or consents 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 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, 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; Adopted July 31, 2001 3 (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 the Vice Chairman's 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 Adopted July 31, 2001 4 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 New Jersey, 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 New Jersey, 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, 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 New Jersey, 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 Adopted July 31, 2001 5 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 the resolution or resolutions designating such committee 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 New Jersey Business Corporation Act (the "NJBCA") 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. Adopted July 31, 2001 6 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 NJBCA. (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 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 Adopted July 31, 2001 7 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 offices 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 Adopted July 31, 2001 8 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 or books 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 Adopted July 31, 2001 9 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 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. Adopted July 31, 2001 10 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 NJBCA. 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 NJBCA. (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 NJBCA, 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 Section 7.2 of this Article 7, the Corporation shall not be required to indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation prior to commencement of such proceeding (or part thereof). In addition to the right to indemnification conferred in this Section 7.1, each person who 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 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 NJBCA requires, the payment of such Adopted July 31, 2001 11 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 of the Corporation, 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. 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 NJBCA 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 NJBCA, 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 under Section 7.1 of this Article 7, 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 with respect to indemnification and advancement of expenses conferred in Sections 7.1 and 7.2 of this Article 7 shall be contract rights. 7.4 The Corporation may, by any manner permitted by the NJBCA, provide indemnification and advancement of expenses to employees and agents of the Corporation. 7.5 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 present or former director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the NJBCA. Such a determination shall be made, with respect to a person Adopted July 31, 2001 12 who is a director or officer of the Corporation at the time of such determination, (a) by a majority vote of the directors who are not parties to such 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) if there are no such directors or if such directors so direct, by independent legal counsel (compensated by the Corporation) in a written opinion; or (d) by the stockholders. Such a determination shall be made, with respect to a person who is a former director or officer of the Corporation, who is a present or former employee or agent of the corporation, or who 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, in any manner permitted by the NJBCA, including in any of the manners set forth above governing such determination with respect to present directors and officers of the Corporation. 7.6 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, these bylaws, agreement, vote of stockholders or disinterested directors, or otherwise. 7.7 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 NJBCA. 7.8 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. 7.9 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.10 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. 7.11 The Corporation may, by action of the Board of Directors, authorize one or more officers (i) to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances, or (ii) to establish policies relating to the indemnification of and Adopted July 31, 2001 13 advancement of expenses to employees and agents of the Corporation, including, without limitation, policies specifying officers or senior employees (or categories of officers or senior employees) who shall have the power to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officers or senior employees 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 New Jersey shall be kept in such place or places either within or without the State of New Jersey 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 or other interests held by the Corporation in any other corporation, limited partnership, limited liability company, or other business entity. 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. Adopted July 31, 2001 14 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 the holders of a majority of the voting power represented by the then outstanding shares of voting stock entitled to vote 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. Adopted July 31, 2001 15 EX-99.B.25.3 24 w59746ex99-b_253.txt AMENDED & RESTATED BYLAWS AS AMENDED JULY 31, 2001 ATE Investment, Inc. B.25.3 Amended and Restated Bylaws Adopted July 31, 2001 AMENDED AND RESTATED BY LAWS OF ATE INVESTMENT, INC. 1. OFFICES. 1.1 Offices. In addition to its registered office in the State of New Jersey, the Corporation shall have a corporate office in Wilmington, Delaware, and such other offices, either within or without the State of New Jersey, 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 New Jersey 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 New Jersey 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, Adopted July 31, 2001 1 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. 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 or consents in writing, setting forth the action so Adopted July 31, 2001 2 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 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, 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; Adopted July 31, 2001 3 (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 the Vice Chairman's 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 Adopted July 31, 2001 4 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 New Jersey, 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 New Jersey, 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, 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 New Jersey, 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 Adopted July 31, 2001 5 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 the resolution or resolutions designating such committee 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 New Jersey Business Corporation Act (the "NJBCA") 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 Adopted July 31, 2001 6 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 NJBCA. (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 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. Adopted July 31, 2001 7 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 offices 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. Adopted July 31, 2001 8 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 or books 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. Adopted July 31, 2001 9 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 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 Adopted July 31, 2001 10 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 NJBCA. 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 NJBCA. (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 NJBCA, 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 Section 7.2 of this Article 7, the Corporation shall not be required to indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation prior to commencement of such proceeding (or part thereof). In addition to the right to indemnification conferred in this Section 7.1, each person who 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 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 NJBCA 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 of the Corporation, including, without Adopted July 31, 2001 11 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. 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 NJBCA 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 NJBCA, 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 under Section 7.1 of this Article 7, 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 with respect to indemnification and advancement of expenses conferred in Sections 7.1 and 7.2 of this Article 7 shall be contract rights. 7.4 The Corporation may, by any manner permitted by the NJBCA, provide indemnification and advancement of expenses to employees and agents of the Corporation. 7.5 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 present or former director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the NJBCA. Such a determination shall be made, with respect to a person who is a director or officer of the Corporation at the time of such determination, (a) by a majority vote of the directors who are not parties to such proceeding, even though less than a quorum; (b) by a committee of such directors designated by majority vote of such Adopted July 31, 2001 12 directors, even though less than a quorum; (c) if there are no such directors or if such directors so direct, by independent legal counsel (compensated by the Corporation) in a written opinion; or (d) by the stockholders. Such a determination shall be made, with respect to a person who is a former director or officer of the Corporation, who is a present or former employee or agent of the corporation, or who 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, in any manner permitted by the NJBCA, including in any of the manners set forth above governing such determination with respect to present directors and officers of the Corporation. 7.6 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, these bylaws, agreement, vote of stockholders or disinterested directors, or otherwise. 7.7 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 NJBCA. 7.8 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. 7.9 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.10 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. 7.11 The Corporation may, by action of the Board of Directors, authorize one or more officers (i) to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances, or (ii) to establish policies relating to the indemnification of and advancement of expenses to employees and agents of the Corporation, including, without limitation, policies specifying officers or senior employees (or categories of officers or senior employees) who shall have the power to authorize in the specific case the Adopted July 31, 2001 13 indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officers or senior employees 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 New Jersey shall be kept in such place or places either within or without the State of New Jersey 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 or other interests held by the Corporation in any other corporation, limited partnership, limited liability company, or other business entity. 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. Adopted July 31, 2001 14 8.6 Amendment. These Bylaws may be altered, amended, or repealed by (a) the affirmative vote of the holders of a majority of the voting power represented by the then outstanding shares of voting stock entitled to vote 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. Adopted July 31, 2001 15 EX-99.B.27.4 25 w59746ex99-b_274.txt AMENDED & RESTATED BYLAWS AS AMENDED 7/31/01 Conectiv Thermal Systems, Inc. B.27.4 Amended and Restated Bylaws Adopted July 31, 2001 AMENDED AND RESTATED BY LAWS OF CONECTIV 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. Adopted July 31, 2001 1 (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. 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 Adopted July 31, 2001 2 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 or consents 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 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, 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; Adopted July 31, 2001 3 (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 the Vice Chairman's 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 Adopted July 31, 2001 4 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, 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 Adopted July 31, 2001 5 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 the resolution or resolutions designating such committee 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. Adopted July 31, 2001 6 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. (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 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 Adopted July 31, 2001 7 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 offices 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 Adopted July 31, 2001 8 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 or books 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 Adopted July 31, 2001 9 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 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. Adopted July 31, 2001 10 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 Section 7.2 of this Article 7, the Corporation shall not be required to indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation prior to commencement of such proceeding (or part thereof). In addition to the right to indemnification conferred in this Section 7.1, each person who 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 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 Adopted July 31, 2001 11 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 of the Corporation, 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. 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 under Section 7.1 of this Article 7, 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 with respect to indemnification and advancement of expenses conferred in Sections 7.1 and 7.2 of this Article 7 shall be contract rights. 7.4 The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation. 7.5 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 present or former director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD. Such a determination shall be made, with respect to a person who Adopted July 31, 2001 12 is a director or officer of the Corporation at the time of such determination, (a) by a majority vote of the directors who are not parties to such 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) if there are no such directors or if such directors so direct, by independent legal counsel (compensated by the Corporation) in a written opinion; or (d) by the stockholders. Such a determination shall be made, with respect to a person who is a former director or officer of the Corporation, who is a present or former employee or agent of the corporation, or who 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, in any manner permitted by the GCLD, including in any of the manners set forth above governing such determination with respect to present directors and officers of the Corporation. 7.6 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, these bylaws, agreement, vote of stockholders or disinterested directors, or otherwise. 7.7 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. 7.8 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. 7.9 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.10 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. 7.11 The Corporation may, by action of the Board of Directors, authorize one or more officers (i) to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances, or (ii) to establish policies relating to the indemnification of and Adopted July 31, 2001 13 advancement of expenses to employees and agents of the Corporation, including, without limitation, policies specifying officers or senior employees (or categories of officers or senior employees) who shall have the power to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officers or senior employees 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 or other interests held by the Corporation in any other corporation, limited partnership, limited liability company, or other business entity. 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. Adopted July 31, 2001 14 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 the holders of a majority of the voting power represented by the then outstanding shares of voting stock entitled to vote 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. Adopted July 31, 2001 15 EX-99.B.28.4 26 w59746ex99-b_284.txt AMENDED & RESTATED BYLAWS AS AMENDED JULY 31,2001 ATS Operating Services, Inc. B.28.4 Amended and Restated Bylaws Adopted July 31, 2001 AMENDED AND RESTATED BY LAWS 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 Adopted July 31, 2001 1 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. 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 Adopted July 31, 2001 2 notice, and without a vote, if a consent or consents 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 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, 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; Adopted July 31, 2001 3 (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 the Vice Chairman's 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 Adopted July 31, 2001 4 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, 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 Adopted July 31, 2001 5 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 the resolution or resolutions designating such committee 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 Adopted July 31, 2001 6 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 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. Adopted July 31, 2001 7 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 offices 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. Adopted July 31, 2001 8 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 or books 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 Adopted July 31, 2001 9 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 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. Adopted July 31, 2001 10 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 Section 7.2 of this Article 7, the Corporation shall not be required to indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation prior to commencement of such proceeding (or part thereof). In addition to the right to indemnification conferred in this Section 7.1, each person who 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 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 Adopted July 31, 2001 11 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 of the Corporation, 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. 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 under Section 7.1 of this Article 7, 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 with respect to indemnification and advancement of expenses conferred in Sections 7.1 and 7.2 of this Article 7 shall be contract rights. 7.4 The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation. 7.5 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 present or former director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD. Such a determination shall be made, with respect to a person who Adopted July 31, 2001 12 is a director or officer of the Corporation at the time of such determination, (a) by a majority vote of the directors who are not parties to such 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) if there are no such directors or if such directors so direct, by independent legal counsel (compensated by the Corporation) in a written opinion; or (d) by the stockholders. Such a determination shall be made, with respect to a person who is a former director or officer of the Corporation, who is a present or former employee or agent of the corporation, or who 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, in any manner permitted by the GCLD, including in any of the manners set forth above governing such determination with respect to present directors and officers of the Corporation. 7.6 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, these bylaws, agreement, vote of stockholders or disinterested directors, or otherwise. 7.7 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. 7.8 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. 7.9 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.10 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. 7.11 The Corporation may, by action of the Board of Directors, authorize one or more officers (i) to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances, or (ii) to establish policies relating to the indemnification of and Adopted July 31, 2001 13 advancement of expenses to employees and agents of the Corporation, including, without limitation, policies specifying officers or senior employees (or categories of officers or senior employees) who shall have the power to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officers or senior employees 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 or other interests held by the Corporation in any other corporation, limited partnership, limited liability company, or other business entity. 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. Adopted July 31, 2001 14 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 the holders of a majority of the voting power represented by the then outstanding shares of voting stock entitled to vote 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. Adopted July 31, 2001 15 EX-99.B.29.3 27 w59746ex99-b_293.txt AMENDED & RESTATED BYLAWS AS AMENDED JULY 31,2001 Atlantic Jersey Thermal Systems, Inc. B.29.3 Amended and Restated Bylaws Adopted July 31, 2001 AMENDED AND RESTATED BY LAWS 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. Adopted July 31, 2001 1 (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. 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 Adopted July 31, 2001 2 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 or consents 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 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, 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; Adopted July 31, 2001 3 (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 the Vice Chairman's 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 Adopted July 31, 2001 4 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, 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 Adopted July 31, 2001 5 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 the resolution or resolutions designating such committee 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. Adopted July 31, 2001 6 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. (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 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 Adopted July 31, 2001 7 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 offices 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 Adopted July 31, 2001 8 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 or books 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 Adopted July 31, 2001 9 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 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. Adopted July 31, 2001 10 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 Section 7.2 of this Article 7, the Corporation shall not be required to indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation prior to commencement of such proceeding (or part thereof). In addition to the right to indemnification conferred in this Section 7.1, each person who 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 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 Adopted July 31, 2001 11 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 of the Corporation, 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. 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 under Section 7.1 of this Article 7, 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 with respect to indemnification and advancement of expenses conferred in Sections 7.1 and 7.2 of this Article 7 shall be contract rights. 7.4 The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation. 7.5 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 present or former director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD. Such a determination shall be made, with respect to a person who Adopted July 31, 2001 12 is a director or officer of the Corporation at the time of such determination, (a) by a majority vote of the directors who are not parties to such 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) if there are no such directors or if such directors so direct, by independent legal counsel (compensated by the Corporation) in a written opinion; or (d) by the stockholders. Such a determination shall be made, with respect to a person who is a former director or officer of the Corporation, who is a present or former employee or agent of the corporation, or who 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, in any manner permitted by the GCLD, including in any of the manners set forth above governing such determination with respect to present directors and officers of the Corporation. 7.6 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, these bylaws, agreement, vote of stockholders or disinterested directors, or otherwise. 7.7 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. 7.8 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. 7.9 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.10 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. 7.11 The Corporation may, by action of the Board of Directors, authorize one or more officers (i) to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances, or (ii) to establish policies relating to the indemnification of and Adopted July 31, 2001 13 advancement of expenses to employees and agents of the Corporation, including, without limitation, policies specifying officers or senior employees (or categories of officers or senior employees) who shall have the power to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officers or senior employees 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 or other interests held by the Corporation in any other corporation, limited partnership, limited liability company, or other business entity. 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. Adopted July 31, 2001 14 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 the holders of a majority of the voting power represented by the then outstanding shares of voting stock entitled to vote 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. Adopted July 31, 2001 15 EX-99.B.32.3 28 w59746ex99-b_323.txt AMENDED & RESTATED BYLAWS AS AMENDED JULY 31, 2001 Atlantic Generation, Inc. B.32.3 Amended and Restated Bylaws Adopted July 31, 2001 AMENDED AND RESTATED BY LAWS OF ATLANTIC GENERATION, INC. 1. OFFICES. 1.1 Offices. In addition to its registered office in the State of New Jersey, the Corporation shall have a corporate office in Wilmington, Delaware, and such other offices, either within or without the State of New Jersey, 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 New Jersey 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 New Jersey 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, Adopted July 31, 2001 1 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. 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 or consents in writing, setting forth the action so Adopted July 31, 2001 2 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 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, 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; Adopted July 31, 2001 3 (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 the Vice Chairman's 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 Adopted July 31, 2001 4 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 New Jersey, 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 New Jersey, 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, 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 New Jersey, 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 Adopted July 31, 2001 5 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 the resolution or resolutions designating such committee 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 New Jersey Business Corporation Act (the "NJBCA") 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 Adopted July 31, 2001 6 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 NJBCA. (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 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. Adopted July 31, 2001 7 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 offices 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. Adopted July 31, 2001 8 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 or books 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. Adopted July 31, 2001 9 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 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 Adopted July 31, 2001 10 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 NJBCA. 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 NJBCA. (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 NJBCA, 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 Section 7.2 of this Article 7, the Corporation shall not be required to indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation prior to commencement of such proceeding (or part thereof). In addition to the right to indemnification conferred in this Section 7.1, each person who 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 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 NJBCA 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 of the Corporation, including, without Adopted July 31, 2001 11 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. 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 NJBCA 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 NJBCA, 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 under Section 7.1 of this Article 7, 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 with respect to indemnification and advancement of expenses conferred in Sections 7.1 and 7.2 of this Article 7 shall be contract rights. 7.4 The Corporation may, by any manner permitted by the NJBCA, provide indemnification and advancement of expenses to employees and agents of the Corporation. 7.5 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 present or former director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the NJBCA. Such a determination shall be made, with respect to a person who is a director or officer of the Corporation at the time of such determination, (a) by a majority vote of the directors who are not parties to such proceeding, even though less than a quorum; (b) by a committee of such directors designated by majority vote of such Adopted July 31, 2001 12 directors, even though less than a quorum; (c) if there are no such directors or if such directors so direct, by independent legal counsel (compensated by the Corporation) in a written opinion; or (d) by the stockholders. Such a determination shall be made, with respect to a person who is a former director or officer of the Corporation, who is a present or former employee or agent of the corporation, or who 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, in any manner permitted by the NJBCA, including in any of the manners set forth above governing such determination with respect to present directors and officers of the Corporation. 7.6 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, these bylaws, agreement, vote of stockholders or disinterested directors, or otherwise. 7.7 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 NJBCA. 7.8 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. 7.9 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.10 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. 7.11 The Corporation may, by action of the Board of Directors, authorize one or more officers (i) to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances, or (ii) to establish policies relating to the indemnification of and advancement of expenses to employees and agents of the Corporation, including, without limitation, policies specifying officers or senior employees (or categories of officers or senior employees) who shall have the power to authorize in the specific case the Adopted July 31, 2001 13 indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officers or senior employees 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 New Jersey shall be kept in such place or places either within or without the State of New Jersey 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 or other interests held by the Corporation in any other corporation, limited partnership, limited liability company, or other business entity. 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. Adopted July 31, 2001 14 8.6 Amendment. These Bylaws may be altered, amended, or repealed by (a) the affirmative vote of the holders of a majority of the voting power represented by the then outstanding shares of voting stock entitled to vote 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. Adopted July 31, 2001 15 EX-99.B.33.3 29 w59746ex99-b_333.txt AMENDED & RESTATED BYLAWS AS AMENDED JULY 31, 2001 Binghamton General, Inc. B.33.3 Amended and Restated Bylaws Adopted July 31, 2001 AMENDED AND RESTATED BY LAWS 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. Adopted July 31, 2001 1 (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. 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 Adopted July 31, 2001 2 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 or consents 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 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, 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; Adopted July 31, 2001 3 (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 the Vice Chairman's 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 Adopted July 31, 2001 4 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, 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 Adopted July 31, 2001 5 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 the resolution or resolutions designating such committee 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. Adopted July 31, 2001 6 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. (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 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 Adopted July 31, 2001 7 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 offices 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 Adopted July 31, 2001 8 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 or books 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 Adopted July 31, 2001 9 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 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. Adopted July 31, 2001 10 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 Section 7.2 of this Article 7, the Corporation shall not be required to indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation prior to commencement of such proceeding (or part thereof). In addition to the right to indemnification conferred in this Section 7.1, each person who 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 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 Adopted July 31, 2001 11 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 of the Corporation, 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. 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 under Section 7.1 of this Article 7, 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 with respect to indemnification and advancement of expenses conferred in Sections 7.1 and 7.2 of this Article 7 shall be contract rights. 7.4 The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation. 7.5 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 present or former director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD. Such a determination shall be made, with respect to a person who Adopted July 31, 2001 12 is a director or officer of the Corporation at the time of such determination, (a) by a majority vote of the directors who are not parties to such 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) if there are no such directors or if such directors so direct, by independent legal counsel (compensated by the Corporation) in a written opinion; or (d) by the stockholders. Such a determination shall be made, with respect to a person who is a former director or officer of the Corporation, who is a present or former employee or agent of the corporation, or who 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, in any manner permitted by the GCLD, including in any of the manners set forth above governing such determination with respect to present directors and officers of the Corporation. 7.6 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, these bylaws, agreement, vote of stockholders or disinterested directors, or otherwise. 7.7 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. 7.8 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. 7.9 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.10 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. 7.11 The Corporation may, by action of the Board of Directors, authorize one or more officers (i) to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances, or (ii) to establish policies relating to the indemnification of and Adopted July 31, 2001 13 advancement of expenses to employees and agents of the Corporation, including, without limitation, policies specifying officers or senior employees (or categories of officers or senior employees) who shall have the power to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officers or senior employees 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 or other interests held by the Corporation in any other corporation, limited partnership, limited liability company, or other business entity. 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. Adopted July 31, 2001 14 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 the holders of a majority of the voting power represented by the then outstanding shares of voting stock entitled to vote 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. Adopted July 31, 2001 15 EX-99.B.34.3 30 w59746ex99-b_343.txt AMENDED & RESTATED BYLAWS AS AMENDED JULY 31, 2001 Binghamton Limited, Inc. B.34.3 Amended and Restated Bylaws Adopted July 31, 2001 AMENDED AND RESTATED BYLAWS 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. Adopted July 31, 2001 1 (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. 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 Adopted July 31, 2001 2 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 or consents 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 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, 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; Adopted July 31, 2001 3 (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 the Vice Chairman's 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 Adopted July 31, 2001 4 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, 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 Adopted July 31, 2001 5 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 the resolution or resolutions designating such committee 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. Adopted July 31, 2001 6 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. (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 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 Adopted July 31, 2001 7 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 offices 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 Adopted July 31, 2001 8 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 or books 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 Adopted July 31, 2001 9 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 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. Adopted July 31, 2001 10 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 Section 7.2 of this Article 7, the Corporation shall not be required to indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation prior to commencement of such proceeding (or part thereof). In addition to the right to indemnification conferred in this Section 7.1, each person who 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 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 Adopted July 31, 2001 11 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 of the Corporation, 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. 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 under Section 7.1 of this Article 7, 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 with respect to indemnification and advancement of expenses conferred in Sections 7.1 and 7.2 of this Article 7 shall be contract rights. 7.4 The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation. 7.5 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 present or former director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD. Such a determination shall be made, with respect to a person who Adopted July 31, 2001 12 is a director or officer of the Corporation at the time of such determination, (a) by a majority vote of the directors who are not parties to such 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) if there are no such directors or if such directors so direct, by independent legal counsel (compensated by the Corporation) in a written opinion; or (d) by the stockholders. Such a determination shall be made, with respect to a person who is a former director or officer of the Corporation, who is a present or former employee or agent of the corporation, or who 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, in any manner permitted by the GCLD, including in any of the manners set forth above governing such determination with respect to present directors and officers of the Corporation. 7.6 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, these bylaws, agreement, vote of stockholders or disinterested directors, or otherwise. 7.7 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. 7.8 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. 7.9 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.10 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. 7.11 The Corporation may, by action of the Board of Directors, authorize one or more officers (i) to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances, or (ii) to establish policies relating to the indemnification of and Adopted July 31, 2001 13 advancement of expenses to employees and agents of the Corporation, including, without limitation, policies specifying officers or senior employees (or categories of officers or senior employees) who shall have the power to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officers or senior employees 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 or other interests held by the Corporation in any other corporation, limited partnership, limited liability company, or other business entity. 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. Adopted July 31, 2001 14 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 the holders of a majority of the voting power represented by the then outstanding shares of voting stock entitled to vote 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. Adopted July 31, 2001 15 EX-99.B.35.3 31 w59746ex99-b_353.txt AMENDED & RESTATED BYLAWS AS AMENDED JULY 31, 2001 Vineland General, Inc. B.35.3 Amended and Restated Bylaws Adopted July 31, 2001 AMENDED AND RESTATED BYLAWS 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. 1 Adopted July 31, 2001 (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. 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 2 Adopted July 31, 2001 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 or consents 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 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, 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; 3 Adopted July 31, 2001 (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 the Vice Chairman's 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 4 Adopted July 31, 2001 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, 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 5 Adopted July 31, 2001 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 the resolution or resolutions designating such committee 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. 6 Adopted July 31, 2001 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. (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 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 7 Adopted July 31, 2001 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 offices 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 8 Adopted July 31, 2001 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 or books 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 9 Adopted July 31, 2001 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 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. 10 Adopted July 31, 2001 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 Section 7.2 of this Article 7, the Corporation shall not be required to indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation prior to commencement of such proceeding (or part thereof). In addition to the right to indemnification conferred in this Section 7.1, each person who 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 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 11 Adopted July 31, 2001 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 of the Corporation, 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. 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 under Section 7.1 of this Article 7, 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 with respect to indemnification and advancement of expenses conferred in Sections 7.1 and 7.2 of this Article 7 shall be contract rights. 7.4 The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation. 7.5 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 present or former director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD. Such a determination shall be made, with respect to a person who 12 Adopted July 31, 2001 is a director or officer of the Corporation at the time of such determination, (a) by a majority vote of the directors who are not parties to such 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) if there are no such directors or if such directors so direct, by independent legal counsel (compensated by the Corporation) in a written opinion; or (d) by the stockholders. Such a determination shall be made, with respect to a person who is a former director or officer of the Corporation, who is a present or former employee or agent of the corporation, or who 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, in any manner permitted by the GCLD, including in any of the manners set forth above governing such determination with respect to present directors and officers of the Corporation. 7.6 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, these bylaws, agreement, vote of stockholders or disinterested directors, or otherwise. 7.7 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. 7.8 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. 7.9 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.10 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. 7.11 The Corporation may, by action of the Board of Directors, authorize one or more officers (i) to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances, or (ii) to establish policies relating to the indemnification of and 13 Adopted July 31, 2001 advancement of expenses to employees and agents of the Corporation, including, without limitation, policies specifying officers or senior employees (or categories of officers or senior employees) who shall have the power to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officers or senior employees 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 or other interests held by the Corporation in any other corporation, limited partnership, limited liability company, or other business entity. 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. 14 Adopted July 31, 2001 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 the holders of a majority of the voting power represented by the then outstanding shares of voting stock entitled to vote 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. 15 Adopted July 31, 2001 EX-99.B.36.3 32 w59746ex99-b_363.txt AMENDED & RESTATED BYLAWS AS AMENDED JULY 31, 2001 Vineland Ltd., Inc. B.36.3 Amended and Restated Bylaws Adopted July 31, 2001 AMENDED AND RESTATED BYLAWS 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. 1 Adopted July 31, 2001 (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. 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 2 Adopted July 31, 2001 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 or consents 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 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, 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; 3 Adopted July 31, 2001 (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 the Vice Chairman's 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 4 Adopted July 31, 2001 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, 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 5 Adopted July 31, 2001 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 the resolution or resolutions designating such committee 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. 6 Adopted July 31, 2001 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. (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 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 7 Adopted July 31, 2001 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 offices 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 8 Adopted July 31, 2001 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 or books 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 9 Adopted July 31, 2001 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 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. 10 Adopted July 31, 2001 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 Section 7.2 of this Article 7, the Corporation shall not be required to indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation prior to commencement of such proceeding (or part thereof). In addition to the right to indemnification conferred in this Section 7.1, each person who 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 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 11 Adopted July 31, 2001 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 of the Corporation, 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. 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 under Section 7.1 of this Article 7, 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 with respect to indemnification and advancement of expenses conferred in Sections 7.1 and 7.2 of this Article 7 shall be contract rights. 7.4 The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation. 7.5 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 present or former director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD. Such a determination shall be made, with respect to a person who 12 Adopted July 31, 2001 is a director or officer of the Corporation at the time of such determination, (a) by a majority vote of the directors who are not parties to such 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) if there are no such directors or if such directors so direct, by independent legal counsel (compensated by the Corporation) in a written opinion; or (d) by the stockholders. Such a determination shall be made, with respect to a person who is a former director or officer of the Corporation, who is a present or former employee or agent of the corporation, or who 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, in any manner permitted by the GCLD, including in any of the manners set forth above governing such determination with respect to present directors and officers of the Corporation. 7.6 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, these bylaws, agreement, vote of stockholders or disinterested directors, or otherwise. 7.7 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. 7.8 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. 7.9 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.10 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. 7.11 The Corporation may, by action of the Board of Directors, authorize one or more officers (i) to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances, or (ii) to establish policies relating to the indemnification of and 13 Adopted July 31, 2001 advancement of expenses to employees and agents of the Corporation, including, without limitation, policies specifying officers or senior employees (or categories of officers or senior employees) who shall have the power to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officers or senior employees 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 or other interests held by the Corporation in any other corporation, limited partnership, limited liability company, or other business entity. 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. 14 Adopted July 31, 2001 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 the holders of a majority of the voting power represented by the then outstanding shares of voting stock entitled to vote 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. 15 Adopted July 31, 2001 EX-99.B.37.3 33 w59746ex99-b_373.txt AMENDED & RESTATED BYLAWS AS AMENDED JULY 31, 2001 PEDRICK GEN., INC. B.37.3 AMENDED AND RESTATED BYLAWS ADOPTED JULY 31, 2001 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 New Jersey, the Corporation shall have a corporate office in Wilmington, Delaware, and such other offices, either within or without the State of New Jersey, 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 New Jersey 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 New Jersey 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 Adopted July 31, 2001 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. 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 or consents 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 2 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 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, 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. 3 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 the Vice Chairman's 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. 4.4 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 New Jersey, 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 New Jersey, as shall be designated by the Chairman of the Board on not less than twelve hours notice to each 4 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. 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 New Jersey, 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 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 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 the resolution or resolutions designating such committee 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 New Jersey Business Corporation Act (the "NJBCA") 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. 6 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 NJBCA. (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 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. 7 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 offices 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 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 or books 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 8 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, 9 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 NJBCA. 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 NJBCA. (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 NJBCA, 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, 10 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 Section 7.2 of this Article 7, the Corporation shall not be required to indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation prior to commencement of such proceeding (or part thereof). In addition to the right to indemnification conferred in this Section 7.1, each person who 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 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 NJBCA 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 of the Corporation, 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. 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 NJBCA 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 NJBCA, 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 under Section 7.1 of this Article 7, 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. 11 7.3 The rights with respect to indemnification and advancement of expenses conferred in Sections 7.1 and 7.2 of this Article 7 shall be contract rights. 7.4 The Corporation may, by any manner permitted by the NJBCA, provide indemnification and advancement of expenses to employees and agents of the Corporation. 7.5 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 present or former director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the NJBCA. Such a determination shall be made, with respect to a person who is a director or officer of the Corporation at the time of such determination, (a) by a majority vote of the directors who are not parties to such 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) if there are no such directors or if such directors so direct, by independent legal counsel (compensated by the Corporation) in a written opinion; or (d) by the stockholders. Such a determination shall be made, with respect to a person who is a former director or officer of the Corporation, who is a present or former employee or agent of the corporation, or who 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, in any manner permitted by the NJBCA, including in any of the manners set forth above governing such determination with respect to present directors and officers of the Corporation. 7.6 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, these bylaws, agreement, vote of stockholders or disinterested directors, or otherwise. 7.7 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 NJBCA. 7.8 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. 7.9 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.10 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 12 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. 7.11 The Corporation may, by action of the Board of Directors, authorize one or more officers (i) to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances, or (ii) to establish policies relating to the indemnification of and advancement of expenses to employees and agents of the Corporation, including, without limitation, policies specifying officers or senior employees (or categories of officers or senior employees) who shall have the power to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officers or senior employees 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 New Jersey shall be kept in such place or places either within or without the State of New Jersey 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 or other interests held by the Corporation in any other corporation, limited partnership, limited liability company, or other business entity. 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. 13 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 the holders of a majority of the voting power represented by the then outstanding shares of voting stock entitled to vote 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. 14 EX-99.B.38.3 34 w59746ex99-b_383.txt CERTIFICATE OF INCORPORATION DATED JULY 31, 2001 CONECTIV MID-MERIT, INC. B.38.3 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION DATED JULY 31, 2001 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF CONECTIV MID-MERIT, INC. Pursuant to Section 242 Of the General Corporation Law Of the State of Delaware Conectiv Mid-Merit, Inc., a corporation duly organized and validly existing under and by virtue of the General Corporation Law of the State of Delaware ("GCL"), does hereby certify that: 1. The Board of Directors of Conectiv Mid-Merit, Inc. (the "Company") duly adopted by Unanimous Written Consent pursuant to Section 141 of the GCL, all in accordance with Section 242 of the GCL, the following resolution setting forth a proposed amendment to the Certificate of Incorporation of the Company, declaring said amendment to be advisable and submitting it to the sole stockholder of the Company for consideration thereof: RESOLVED, That the amendment to the Certificate of Incorporation to delete the last sentence of Article EIGHTH be, and hereby is, approved and adopted; and 2. In accordance with the provisions of Sections 228 and 242 of the GCL, the amendment was adopted by the sole shareholder of the Company without a meeting, pursuant to the written consent of the shareholder. IN WITNESS WHEREOF, the Company has caused this certificate to be executed by its Senior Vice President and Chief Financial Officer and attested to by its Assistant Secretary this 31st day of July, 2001. CONECTIV MID-MERIT, INC. By: ------------------------ John C. van Roden, Jr. Senior Vice President and Chief Financial Officer Attest: By: --------------------------------- Nina J. Clements, Asst. Secretary EX-99.B.38.4 35 w59746ex99-b_384.txt AMENDED & RESTATED BYLAWS AS AMENDED JULY 31, 2001 CONECTIV MID-MERIT, INC. B.38.4 AMENDED AND RESTATED BYLAWS ADOPTED JULY 31, 2001 AMENDED AND RESTATED B Y L A W S OF CONECTIV MID-MERIT, 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. Adopted July 31, 2001 1 (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. 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 Adopted July 31, 2001 2 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 or consents 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 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, 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; Adopted July 31, 2001 3 (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 the Vice Chairman's 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 Adopted July 31, 2001 4 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, 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 Adopted July 31, 2001 5 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 the resolution or resolutions designating such committee 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. Adopted July 31, 2001 6 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. (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 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 Adopted July 31, 2001 7 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 offices 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 Adopted July 31, 2001 8 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 or books 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 Adopted July 31, 2001 9 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 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. Adopted July 31, 2001 10 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 Section 7.2 of this Article 7, the Corporation shall not be required to indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation prior to commencement of such proceeding (or part thereof). In addition to the right to indemnification conferred in this Section 7.1, each person who 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 shall have the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its Adopted July 31, 2001 11 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 of the Corporation, 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. 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 under Section 7.1 of this Article 7, 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 with respect to indemnification and advancement of expenses conferred in Sections 7.1 and 7.2 of this Article 7 shall be contract rights. 7.4 The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation. 7.5 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 present or former director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard of conduct Adopted July 31, 2001 12 set forth in the GCLD. Such a determination shall be made, with respect to a person who is a director or officer of the Corporation at the time of such determination, (a) by a majority vote of the directors who are not parties to such 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) if there are no such directors or if such directors so direct, by independent legal counsel (compensated by the Corporation) in a written opinion; or (d) by the stockholders. Such a determination shall be made, with respect to a person who is a former director or officer of the Corporation, who is a present or former employee or agent of the corporation, or who 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, in any manner permitted by the GCLD, including in any of the manners set forth above governing such determination with respect to present directors and officers of the Corporation. 7.6 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, these bylaws, agreement, vote of stockholders or disinterested directors, or otherwise. 7.7 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. 7.8 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. 7.9 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.10 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. 7.11 The Corporation may, by action of the Board of Directors, authorize one or more officers (i) to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the Adopted July 31, 2001 13 circumstances, or (ii) to establish policies relating to the indemnification of and advancement of expenses to employees and agents of the Corporation, including, without limitation, policies specifying officers or senior employees (or categories of officers or senior employees) who shall have the power to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officers or senior employees 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 or other interests held by the Corporation in any other corporation, limited partnership, limited liability company, or other business entity. 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. Adopted July 31, 2001 14 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 the holders of a majority of the voting power represented by the then outstanding shares of voting stock entitled to vote 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. Adopted July 31, 2001 15 EX-99.B.40.3 36 w59746ex99-b_403.txt CERTIFICATE OF INCORPORATION DATED JULY 31, 2001 CONECTIV ENERGY HOLDING COMPANY B.40.3 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION DATED JULY 31, 2001 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF CONECTIV ENERGY HOLDING COMPANY Pursuant to Section 242 Of the General Corporation Law Of the State of Delaware Conectiv Energy Holding Company, a corporation duly organized and validly existing under and by virtue of the General Corporation Law of the State of Delaware ("GCL"), does hereby certify that: 1. The Board of Directors of Conectiv Energy Holding Company (the "Company") duly adopted by Unanimous Written Consent pursuant to Section 141 of the GCL, all in accordance with Section 242 of the GCL, the following resolution setting forth a proposed amendment to the Certificate of Incorporation of the Company, declaring said amendment to be advisable and submitting it to the sole stockholder of the Company for consideration thereof: RESOLVED, That the amendment to the Certificate of Incorporation to delete the last sentence of Article EIGHTH be, and hereby is, approved and adopted; and 2. In accordance with the provisions of Sections 228 and 242 of the GCL, the amendment was adopted by the sole shareholder of the Company without a meeting, pursuant to the written consent of the shareholder. IN WITNESS WHEREOF, the Company has caused this certificate to be executed by its Senior Vice President and Chief Financial Officer and attested to by its Assistant Secretary this 31st day of July, 2001. CONECTIV ENERGY HOLDING COMPANY By: __________________________ John C. van Roden, Jr. Senior Vice President and Chief Financial Officer Attest: By: __________________________________ Nina J. Clements, Asst. Secretary EX-99.B.40.4 37 w59746ex99-b_404.txt AMENDED & RESTATED BYLAWS AS AMENDED JULY 31, 2001 CONECTIV ENERGY HOLDING COMPANY B.40.4 AMENDED AND RESTATED BYLAWS ADOPTED JULY 31, 2001 AMENDED AND RESTATED B Y L A W S OF CONECTIV ENERGY HOLDING 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. Adopted July 31, 2001 1 (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. 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 Adopted July 31, 2001 2 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 or consents 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 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, 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; Adopted July 31, 2001 3 (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 the Vice Chairman's 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 Adopted July 31, 2001 4 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, 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 Adopted July 31, 2001 5 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 the resolution or resolutions designating such committee 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. Adopted July 31, 2001 6 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. (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 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 Adopted July 31, 2001 7 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 offices 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 Adopted July 31, 2001 8 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 or books 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 Adopted July 31, 2001 9 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 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. Adopted July 31, 2001 10 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 Section 7.2 of this Article 7, the Corporation shall not be required to indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation prior to commencement of such proceeding (or part thereof). In addition to the right to indemnification conferred in this Section 7.1, each person who 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 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 Adopted July 31, 2001 11 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 of the Corporation, 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. 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 under Section 7.1 of this Article 7, 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 with respect to indemnification and advancement of expenses conferred in Sections 7.1 and 7.2 of this Article 7 shall be contract rights. 7.4 The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation. 7.5 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 present or former director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD. Such a determination shall be made, with respect to a person who Adopted July 31, 2001 12 is a director or officer of the Corporation at the time of such determination, (a) by a majority vote of the directors who are not parties to such 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) if there are no such directors or if such directors so direct, by independent legal counsel (compensated by the Corporation) in a written opinion; or (d) by the stockholders. Such a determination shall be made, with respect to a person who is a former director or officer of the Corporation, who is a present or former employee or agent of the corporation, or who 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, in any manner permitted by the GCLD, including in any of the manners set forth above governing such determination with respect to present directors and officers of the Corporation. 7.6 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, these bylaws, agreement, vote of stockholders or disinterested directors, or otherwise. 7.7 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. 7.8 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. 7.9 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.10 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. 7.11 The Corporation may, by action of the Board of Directors, authorize one or more officers (i) to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances, or (ii) to establish policies relating to the indemnification of and Adopted July 31, 2001 13 advancement of expenses to employees and agents of the Corporation, including, without limitation, policies specifying officers or senior employees (or categories of officers or senior employees) who shall have the power to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officers or senior employees 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 or other interests held by the Corporation in any other corporation, limited partnership, limited liability company, or other business entity. 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. Adopted July 31, 2001 14 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 the holders of a majority of the voting power represented by the then outstanding shares of voting stock entitled to vote 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. Adopted July 31, 2001 15 EX-99.B.45.1 38 w59746ex99-b_451.txt CERTIFICATE OF INCORPORATION DATED AUGUST 1, 2001 Conectiv Bethlehem, Inc. B.45.1 Certificate of Incorporation dated August 1, 2001 CERTIFICATE OF INCORPORATION OF CONECTIV BETHLEHEM, INC. FIRST: The name of the corporation is Conectiv Bethlehem, Inc. SECOND: The registered office of Conectiv Bethlehem, Inc. in the State of Delaware is located at 800 King Street, Wilmington, County of New Castle, 19801, and its registered agent at such office shall be Conectiv Resource Partners, Inc., c/o Legal Department. 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 ---- ------- Nina J. Clements P.O. Box 231 Wilmington, DE 19899
SIXTH: The names and mailing addresses of the directors who shall serve until the first annual meeting of stockholders or until their successors are elected and qualify are:
Name Address ---- ------- Howard E. Cosgrove P.O. Box 231 Wilmington, DE 19899 Thomas S. Shaw P.O. Box 231 Wilmington, DE 19899 Peter F. Clark 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. 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. 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 stated herein are true and accordingly have hereunto set my hand and seal this 1st day of August, 2001. ---------------- Nina J. Clements EX-99.B.45.2 39 w59746ex99-b_452.txt CONECTIV BETHLEHEM, INC. BYLAWS Conectiv Bethlehem, Inc. B.45.2 Bylaws Adopted August 2, 2001 B Y L A W S OF CONECTIV BETHLEHEM, 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 1 Adopted August 2, 2001 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. 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 2 Adopted August 2, 2001 notice, and without a vote, if a consent or consents 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 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, 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; 3 Adopted August 2, 2001 (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 the Vice Chairman's 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 4 Adopted August 2, 2001 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, 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 5 Adopted August 2, 2001 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 the resolution or resolutions designating such committee 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 6 Adopted August 2, 2001 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 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. 7 Adopted August 2, 2001 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 offices 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. 8 Adopted August 2, 2001 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 or books 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 9 Adopted August 2, 2001 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 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. 10 Adopted August 2, 2001 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 Section 7.2 of this Article 7, the Corporation shall not be required to indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation prior to commencement of such proceeding (or part thereof). In addition to the right to indemnification conferred in this Section 7.1, each person who 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 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 11 Adopted August 2, 2001 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 of the Corporation, 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. 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 under Section 7.1 of this Article 7, 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 with respect to indemnification and advancement of expenses conferred in Sections 7.1 and 7.2 of this Article 7 shall be contract rights. 7.4 The Corporation may, by any manner permitted by the GCLD, provide indemnification and advancement of expenses to employees and agents of the Corporation. 7.5 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 present or former director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCLD. Such a determination shall be made, with respect to a person who 12 Adopted August 2, 2001 is a director or officer of the Corporation at the time of such determination, (a) by a majority vote of the directors who are not parties to such 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) if there are no such directors or if such directors so direct, by independent legal counsel (compensated by the Corporation) in a written opinion; or (d) by the stockholders. Such a determination shall be made, with respect to a person who is a former director or officer of the Corporation, who is a present or former employee or agent of the corporation, or who 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, in any manner permitted by the GCLD, including in any of the manners set forth above governing such determination with respect to present directors and officers of the Corporation. 7.6 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, these bylaws, agreement, vote of stockholders or disinterested directors, or otherwise. 7.7 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. 7.8 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. 7.9 Any amendment or repeal of this Article 7 shall not be retroactive in effect. 7.10 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. 7.11 The Corporation may, by action of the Board of Directors, authorize one or more officers (i) to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officer or officers deem appropriate under the circumstances, or (ii) to establish policies relating to the indemnification of and 13 Adopted August 2, 2001 advancement of expenses to employees and agents of the Corporation, including, without limitation, policies specifying officers or senior employees (or categories of officers or senior employees) who shall have the power to authorize in the specific case the indemnification of, or to grant rights to advancement of expenses to, employees or agents of the Corporation on such terms and conditions as such officers or senior employees 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 or other interests held by the Corporation in any other corporation, limited partnership, limited liability company, or other business entity. 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. 14 Adopted August 2, 2001 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 the holders of a majority of the voting power represented by the then outstanding shares of voting stock entitled to vote 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. 15 Adopted August 2, 2001 -----END PRIVACY-ENHANCED MESSAGE-----