<PAGE> 1
- --------------------------------------------------------------------------------
CONECTIV
----------------------
FORM U5S
ANNUAL REPORT
TO
SECURITIES AND EXCHANGE COMMISSION
---------------
FOR THE YEAR 1999
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ITEM PAGE REF.
- ---- ---------
<S> <C> <C>
1 System Companies and Investments Therein as of December 31, 1999 1
2 Acquisitions or Sales of Utility Assets 3
3 Issue, Sale, Pledge, Guarantee or Assumption of System Securities 4
4 Acquisition, Redemption or Retirement of System Securities 5
5 Investments in Securities of Nonsystem Companies 7
6 Officers and Directors 8
7 Contributions and Public Relations 28
8 Service, Sales and Construction Contracts 29
9 Wholesale Generators and Foreign Utility Companies 29
10 Financial Statements and Exhibits 30
Consolidating Financial Statements F-1 to F-4
Signature of Registrant's Officer 32
Exhibits:
SEC Act of 1934 Reports A
Corporate Organization & By-Laws B
Indentures or Contracts C
Tax Allocation Agreement D
Other Documents Prescribed by Rule or Order E
Report of Independent Public Accountants F
Financial Data Tables G
Organizational Chart of Exempt Wholesale Generators or Foreign
Utility Holding Companies H
Financial Statements Regarding Exempt Wholesale Generators
or Foreign Utility Holding Companies I
</TABLE>
<PAGE> 3
ITEM 1. SYSTEM COMPANIES AND INVESTMENT THEREIN AS OF DECEMBER 31, 1999
<TABLE>
<CAPTION>
NUMBER OF
COMMON % OF OWNER'S
SHARES VOTING ISSUER BOOK BOOK VALUE
NAME OF COMPANY OWNED POWER VALUE ($000) ($000)
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
CONECTIV (a)
Atlantic City Electric Company (ACE) 18,320,937 100 677,849 677,849
ACE REIT, Inc (ACE REIT) (b) 1,000 100 102 102
Atlantic Capital I (ACE Capital I) N/A 100 2,165 2,165
Atlantic Capital II (ACE Capital II) N/A 100 773 773
Atlantic Generation, Inc. (AGI) (c) 100 100 39,212 39,212
Binghamton General, Inc. (BING GEN) 100 100 252 252
Binghamton Limited, Inc. (BING LTD) 100 100 468 468
Pedrick General., Inc. (PED GEN) 100 100 9,819 9,819
Vineland General, Inc. (VINE LTD) 100 100 3,951 3,951
Vineland Limited, Inc. (VINE GEN) 100 100 400 400
Atlantic Southern Properties, Inc. (ASP) 100 100 906 906
Conectiv Atlantic Generation, L.L.C * * * *
Conectiv Brands, Inc. * * * *
Conectiv Communications, Inc. (CCI) (d) 1,000 100 2,845 2,845
Conectiv Communications of Virginia, Inc.(CCV) (e) 1,000 100 -- --
Conectiv Energy Holding Company * * * *
Conectiv Energy, Inc. (Conectiv Energy) 1,000 100 80 80
Conectiv Energy Supply, Inc. (CES) 1,000 100 14,574 14,574
Conectiv Operating Services Company (COSC) 1,000 100 6,339 6,339
Conectiv Resource Partners, Inc. (CRP) 1,000 100 (130) (130)
Conectiv Services, Inc. (CSI) 1,000 100 12,460 12,460
Conectiv Plumbing LLC (Plumbing) 1,000 100 6,628 6,628
Conectiv Thermal Systems, Inc. (CTS) (f) 100 100 8,079 8,079
Atlantic Jersey Thermal Systems, Inc. (AJTS) 100 100 11 11
Atlantic-Pacific Glendale, L.L.C. (AP Glendale) N/A 50 3,270 3,270
Atlantic-Pacific Las Vegas, LLC (AP Las Vegas) N/A 50 38,120 38,120
ATS Operating Services, Inc. (ATS Operating) 50 100 -- --
Thermal Energy Limited Partnership (TELP) N/A 100 6,977 6,977
Enerval, L.L.C. (Enerval) N/A 100 (654) (654)
Conectiv Solutions, LLC (Solutions) (g) N/A 100 36,359 36,359
ATE Investment, Inc. (ATE) (h) 100 100 54,491 54,491
King Street Assurance Ltd. (KSA) (i) 120,000 100 49,914 49,914
Millennium Account Services, LLC (MAS) N/A 50 279 279
Delmarva Capital Investments, Inc. (DCI) (j) 1,000 100 21,812 21,812
DCI I, Inc. (DCI I) 1,000 100 (4,430) (4,430)
DCI II, Inc. (DCI II) 1,000 100 4,337 4,337
DCTC-Burney, Inc. (Burney) (k) 1,000 100 12,539 12,539
Delmarva Power & Light Company (DPL) 1,000 100 676,081 676,081
Conectiv Delmarva Generation, Inc. (CDG) (l) 1,000 100 102 102
Delmarva Financing I (DPL Financing) N/A 100 2,165 2,165
Delmarva Services Company (DSC) (m) 1,000 100 8,549 8,549
</TABLE>
* Inactive company
(1)
<PAGE> 4
ITEM 1. Continued.
NOTES ($ in Thousands):
(a) Conectiv owns 1,875,000 shares of Class D Preferred Stock, which is
convertible, under certain terms and conditions, into approximately
5.6% of the outstanding common stock of EMAX Solutions Partners, Inc.,
a Delaware corporation that helps pharmaceutical companies manage
reagent and compound inventories. As of December 31, 1999, the book
value was $840. Conectiv also owns an approximate 1.5% limited
partnership interest in Tech Leaders II, a Delaware limited partnership
that invests in energy and technology companies. As of December 31,
1999, the book value was $1,329.
(b) ACE REIT is a Delaware Corporation incorporated on March 12, 1998 to
hold real estate investments.
(c) AGI owns a 4.9% limited partnership interest in Energy Investors Fund
III, L.P. (Project Finance Fund), a Delaware limited partnership that
invests in independent power production facilities. As of December 31,
1999, the book value was $3,294.
(d) CCI owns 55,161 unregistered shares, or approximately 1% of the
outstanding shares, of D&E Communications, Inc., a Pennsylvania
corporation and publicly-held telecommunications company that holds a
broadband PCS license. As of December 31, 1999, the book value was
$1,048.
(e) CCV is a Virginia corporation incorporated on November 12, 1999 to
provide telecommunications services in Virginia.
(f) CTS holds a 50% interest in AP Glendale, a Delaware limited liability
company formed to construct, own and operate integrated energy
facilities. The book value as of December 31, 1999 was $3,270. CTS
holds a 50% interest in AP Las Vegas, a Delaware limited liability
company formed to finance, own and operate integrated energy
facilities. The book value as of December 31, 1999 was $38,120.
(g) Solutions holds a 50% interest in MAS, a Delaware limited liability
company formed on January 1, 1999 to provide meter reading services in
southern New Jersey. The book value as of December 31, 1999 was $279.
(h) ATE owns 160 shares of common stock of Black Light Power, Inc., a
development stage company that is engaged in hydrogen based energy
production. As of December 31, 1999, the book value was $240.
(i) KSA is a Bermuda corporation incorporated on April 4, 1999 to provide
reinsurance associated with risks of warranties issued for heating,
ventilation and cooling equipment. KSA owns a 94% limited partnership
interest in EnerTech Capital Partners L.P., a limited partnership that
invests in and supports a variety of energy technology growth
companies. The book value as of December 31, 1999 was $25,101. At
December 31, 1999, KSA held an approximate 30% limited partnership
interest in EnerTech Capital Partners II L.P., a limited partnership
that invests in and supports a variety of energy technology growth
companies. The book value as of December 31, 1999 was $1,500.
(j) DCI holds a 4.7% limited partnership interest in Luz Solar Partners,
Ltd. IV which owns a solar powered generating station. The book value
as of December 31, 1999, was $1,337. DCI owns a 27.5% limited
partnership interest in UAH-Hydro Kennebec, L.P., a New York limited
partnership which owns a hydro-electric project. The book value as of
December 31, 1999, was $1,746.
(2)
<PAGE> 5
(k) Forest Products, L.P. is a Delaware limited partnership in which Burney
is the sole 1% general partner, and which is a general partner in
Burney Forest Products, A Joint Venture. Burney Forest Products, A
Joint Venture, is a California general partnership which is owned by
Burney and Forest Products, L.P. The partnership owns a wood-burning
qualifying facility in Burney, CA. Burney's total direct and indirect
ownership interest is 45%. The book value as of December 31, 1999, was
$4,505.
(l) CDG, formerly known as DPL REIT, Inc., is a Delaware corporation
incorporated on March 12, 1998 to hold real estate investments.
(m) As of December 31, 1999, DSC held 127,750 shares (or 2.5%) of the
common stock of Chesapeake Utilities Corporation, a publicly traded
utility company with gas utility operations in Delaware, Maryland and
Florida. As of December 31, 1999, the book value was $1,571.
ITEM 2. ACQUISITIONS OR SALES OF UTILITY ASSETS
<TABLE>
<CAPTION>
BRIEF DESCRIPTION OF
NAME OF COMPANY TRANSACTION CONSIDERATION EXEMPTION
- --------------- ------------------------- ------------- ---------
<S> <C> <C> <C>
Delmarva Power & Sale of Dupont Substation
Light Seaford, Delaware $3,804,200 44(b)
</TABLE>
(3)
<PAGE> 6
ITEM 3. ISSUES, SALE, PLEDGE, GUARANTEE OR ASSUMPTION OF SYSTEM SECURITIES
DURING 1999
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT OR
STATED VALUE
------------
NAME OF COMPANY PLEDGED,
NAME OF ISSUER ISSUING, SELLING, PLEDGING ISSUED AND GUARANTEED,
AND GUARANTEEING, OR SOLD OR ASSUMED DATE OF PROCEEDS
TITLE OF ISSUE ASSUMING SECURITIES ($000) ($000) TRANSACTION ($000)
-------------- ------------------- ------ ------ ----------- ------
<S> <C> <C> <C> <C> <C>
DPL
Variable Rate Tax-Exempt Pollution Control Bonds DPL 22,330 7/1/99 22,330
Variable Rate Tax-Exempt Pollution Control Bonds DPL 11,000 7/1/99 11,000
ACE
5.47% Short Term Notes due 3/10/00 ACE 30,000 6/14/99 30,000
ACE
Credit Facility ACE 228,500 12/28/99 228,500
Various
Surety Bonds Various 98,462 Various n/a
</TABLE>
<TABLE>
<CAPTION>
NAME OF ISSUER
AND COMMISSION
TITLE OF ISSUE AUTHORIZATION
-------------- -------------
<S> <C>
DPL
Variable Rate Tax-Exempt Pollution Control Bonds Rule 52
Variable Rate Tax-Exempt Pollution Control Bonds Rule 52
ACE
5.47% Short Term Notes due 3/10/00 Rule 52
ACE
Credit Facility Rule 52
Various
Surety Bonds Rule 45
</TABLE>
The above do not include guarantees of system companies which have been
authorized by Commission order under the Public Utility Holding Company
Act of 1935 and which are subject to Rule 24 certificate filing
requirements.
(4)
<PAGE> 7
ITEM 4. ACQUISITION, REDEMPTION OR RETIREMENT OF SYSTEM SECURITIES DURING 1999
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT
COMPANY ACQUIRING REDEEMED AND EXTINGUISHMENT (E)
NAME OF ISSUER AND REDEEMING OR RETIRED DATE OF CONSIDERATION OR HELD FOR FURTHER COMMISSION
TITLE OF ISSUE RETIRING SECURITIES ($000) TRANSACTION ($000) DISPOSITION (D) AUTHORIZATION
-------------- ------------------- ------ ----------- ------ --------------- -------------
<S> <C> <C> <C> <C> <C> <C>
DP&L
7.50% Medium Term Notes DPL 30,000 (a) 5/1/99 30,000 E Rule 42
6.95% First Mortgage Bonds DPL 1,187 (b) 6/1/99 1,187 E Rule 42
7.3% Pollution Control Bonds DPL 22,330 (c) 9/1/99 23,000 E Rule 42
7.5% Pollution Control Bonds DPL 11,000 (d) 10/1/99 11,220 E Rule 42
7.25% Tax exempt DPL 50 12/1/99 50 E Rule 42
7.125% Tax exempt DPL 50 12/1/99 50 E Rule 42
</TABLE>
(a) All $30,000,000 7.5% Series MTN's due on May 1, 1999 were
retired on May 1, 1999 at a cost of $30,000,000, plus
$1,125,000 accrued Interest
(b) Sinking Fund payment of $1,186,800 was made on June 1, 1999 as
per the Prospectus Supplement dated February 3, 1995 for the
issuance of $25,800,000 of 6.95% Amortizing Bonds due June 1,
2008
(c) $22,330,000 of the 7.3% PC DEDA bonds due on 9/1/2015 were
retired on September 1, 1999 at a cost of $22,999,999 plus
$815,045 accrued interest
(d) $11,000,000 of the 7.5% PC DEDA bonds due on 10/1/17 were
redeemed on October 1, 1999 at a cost of $11,220,000 plus
accrued interest of 412,500.
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
ACE
7.54% Medium Term Notes ACE 4,000 (a) 5/19/99 4,000 E Rule 42
7.52% Medium Term Notes ACE 26,000 (b) 5/19/99 26,000 E Rule 42
7.0% First Mortgage Bonds ACE 4,000 (c) 6/8/99 3,995 E Rule 42
7.52% First Mortgage Bonds ACE 8,500 (d) 6/11/99 8,490 E Rule 42
6.625% First Mortgage Bonds ACE 6,400 (e) 6/14/99 6,373 E Rule 42
6.375%Pollution Control Bonds ACE 75 12/1/99 75 E Rule 42
</TABLE>
(a) All 4,000,000 7.54% Medium Term Notes due on May 15, 1999
were retired on May 15, 1999 At a cost of $4,000,000, plus
$150,800 accrued Interest
(b) All $26,000,000 7.25% Medium Term Notes due on May 19, 1999
were retired on May 19, 1999 At a cost of $2,500,000, plus
$90,625 accrued Interest
(c) $4,000,000 of the First Mortgage Bonds due 9/1/23 were
redeemed on June 9, 1999 at a cost of $3,995,000 plus accrued
interest of $76,222.22
(d) $8,500,000 of the First Mortgage Bonds due 9/1/23 were
redeemed on June 11, 1999 at a cost of $8,489,375 plus accrued
interest of $165,277.78 (e)$6,400,000 of the First Mortgage
Bonds due 8/1/13 were redeemed on June 14, 1999 at a cost of
6,373,120 plus accrued interest of $156,644.44
(5)
<PAGE> 8
ITEM 4 (CONTINUED)
<TABLE>
<CAPTION>
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
-------------- ------------------- -------- ----------- ------ --------------- -------------
<S> <C> <C> <C> <C> <C> <C>
Conectiv
Common Stock Conectiv 1,670,000 various 31,397 E Rule 42
Conectiv
Common Stock Conectiv 1,060 various 24 D Rule 42
Conectiv
Common Stock Conectiv 12,768,215 Jun-99 345,610 E Rule 42
Conectiv
Class A Common Stock Conectiv 818,297 Jun-99 13,366 E Rule 42
</TABLE>
(6)
<PAGE> 9
ITEM 5. INVESTMENTS IN SECURITIES OF NONSYSTEM COMPANIES
The aggregate amount of investments at December 31, 1999, in persons operating
in the system's retail area are shown below. Please refer to the footnotes to
Item 1 for a description of other investments in nonsystem companies.
<TABLE>
<CAPTION>
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
- -------------- ----------------------------------- ---------- -------------------------
<S> <C> <C> <C>
ACE (1) 351 (3) Retail Company Securities
DPL (1) 250 (8) Retail Company Securities
</TABLE>
(1) All of DPL's and ACE's investments in securities represent
bankruptcy distributions applicable to obligations of
customers incurred in the ordinary course of business
(7)
<PAGE> 10
ITEM 6. OFFICERS AND DIRECTORS
Part I. Names, principal business address and positions held as of December 31,
1999.
The names and positions held as of December 31, 1999 of the officers
and directors of System companies is presented in the tables on the
pages that follow. The principal business address of each officer and
director is:
800 King Street
Wilmington, Delaware 19899
The symbols used to indicate the positions held by officers and
directors are shown in the position symbol key as follows:
POSITION KEY CODE
-------------------------------------
AS - Assistant Secretary
AT - Assistant Treasurer
C - Controller
CB - Chairman of the Board
CEO - Chief Executive Officer
CFO - Chief Financial Officer
COO - Chief Operating Officer
D - Director
EVP - Executive Vice President
GC - General Counsel
GM -General Manager
P - President
S - Secretary
SVP - Senior Vice President
T - Treasurer
VC - Vice Chairman
VP - Vice President
(8)
<PAGE> 11
Item 6, Part 1 Continued
<TABLE>
<CAPTION>
ATE ACE AGI AJTS ASP ATS BING GEN BING LTD CONECTIV CCI
-------- ---------- -------- -------- ---------- -------- -------- -------- ---------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Arturo F. Agra VP,AT,AS VP,AT,AS VP,AT,AS VP,AT,AS VP,AT,AS
Robert L. Aveyard VP
John Bagnell AS
Larry J. Bainter VP
Frank Balotti D
David Blake VP
Roberta S. Brown VP VP
Robert D. Burris D
Donald E. Cain VP
Robert W. Carr VP
Skip M. Castaldi VP
Peter F. Clark GC GC
G.Edwin Collier
Howard E. Cosgrove CB,CEO,D CB,CEO,P,D CB,CEO,D CB,CEO,D CB,CEO,P,D CB,CEO,D CB,CEO,D CB,CEO,D CB,CEO,P,D CB,CEO,D
Diana C. DeAngelis AS AS AS AS AS AS AS AS AS AS
Frank E. DiCola VP,COO VP,COO VP VP VP
Audrey K. Doberstein D
Richard J. Donnelly
Moira K. Donoghue S,D S S,D S,D S,D S,D S,D S,D S S,D
David J. Doyle
Barry R. Elson P EVP,D EVP
Michael B. Emery D
Stacey L. Evans
Robert H. Fiedler VP VP
Christopher Frechette
</TABLE>
<TABLE>
<CAPTION>
CCV
--------
<S> <C>
Arturo F. Agra
Robert L. Aveyard
John Bagnell
Larry J. Bainter
Frank Balotti
David Blake
Roberta S. Brown
Robert D. Burris
Donald E. Cain
Robert W. Carr
Skip M. Castaldi
Peter F. Clark
G.Edwin Collier
Howard E. Cosgrove CB,CEO,D
Diana C. DeAngelis AS
Frank E. DiCola
Audrey K. Doberstein
Richard J. Donnelly
Moira K. Donoghue S,D
David J. Doyle
Barry R. Elson
Michael B. Emery
Stacey L. Evans
Robert H. Fiedler
Christopher Frechette
</TABLE>
(9)
<PAGE> 12
Item 6, Part 1 Continued
<TABLE>
<CAPTION>
CDG CES COSC CRP CSI CTS DCI I DCI II BURNEY DCI
-------- -------- -------- ---------- -------- -------- ---------- ---------- -------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Arturo F. Agra VP,AT,AS VP,AT,AS VP,AT,AS VP,AT,AS
Robert L. Aveyard VP
John Bagnell
Larry J. Bainter VP
Frank Balotti
David Blake VP
Roberta S. Brown
Robert D. Burris
Donald E. Cain VP
Robert W. Carr VP VP
Skip M. Castaldi
Peter F. Clark
G.Edwin Collier AS
Howard E. Cosgrove CB,CEO,D CB,CEO,D CB,CEO,D CB,CEO,P,D CB,CEO,D CB,CEO,D CB,CEO,P,D CB,CEO,P,D CB,CEO,D CB,CEO,P,D
Diana C. DeAngelis AS AS AS AS AS AS AS AS AS
Frank E. DiCola VP VP VP
Audrey K. Doberstein
Richard J. Donnelly AS
Moira K. Donoghue S,D S,D S,D S S,D S,D S,D S,D S,D S,D
David J. Doyle
Barry R. Elson EVP,D P
Michael B. Emery
Stacey L. Evans AS
Robert H. Fiedler
Christopher Frechette AS
</TABLE>
<TABLE>
<CAPTION>
DPL
----------
<S> <C>
Arturo F. Agra
Robert L. Aveyard
John Bagnell
Larry J. Bainter
Frank Balotti
David Blake
Roberta S. Brown VP
Robert D. Burris
Donald E. Cain
Robert W. Carr
Skip M. Castaldi
Peter F. Clark GC
G.Edwin Collier
Howard E. Cosgrove CB,CEO,P,D
Diana C. DeAngelis AS
Frank E. DiCola
Audrey K. Doberstein
Richard J. Donnelly
Moira K. Donoghue S
David J. Doyle
Barry R. Elson EVP,D
Michael B. Emery
Stacey L. Evans
Robert H. Fiedler VP
Christopher Frechette
</TABLE>
(10)
<PAGE> 13
Item 6, Part 1 Continued
<TABLE>
<CAPTION>
DSC KSA PED GEN VIN GEN VIN LTD CEI SOLUTIONS
- ------------------ ---------- ---------- -------- -------- -------- -------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Arturo F. Agra VP,AT,AS VP,AT,AS VP,AT,AS VP VP,AT,AS
Robert L. Aveyard
John Bagnell
Larry J. Bainter
Frank Balotti
David Blake
Roberta S. Brown
Robert D. Burris
Donald E. Cain
Robert W. Carr VP,GM,COO
Skip M. Castaldi
Peter F. Clark
G.Edwin Collier
Howard E. Cosgrove CB,CEO,P,D CB,CEO,P,D CB,CEO,D CB,CEO,D CB,CEO,D CB,CEO,D CB,CEO,D
Diana C. DeAngelis AS AS AS AS AS AS
Frank E. DiCola VP VP VP
Audrey K. Doberstein
Richard J. Donnelly
Moira K. Donoghue S,D AS,D S,D S,D S,D S S,D
David J. Doyle D
Barry R. Elson D
Michael B. Emery
Stacey L. Evans
Robert H. Fiedler
Christopher Frechette
</TABLE>
(11)
<PAGE> 14
Item 6, Part 1 Continued
<TABLE>
<CAPTION>
ATE ACE AGI AJTS ASP ATS BING GEN BING LTD CONECTIV CCI CCV CDG
--- --- --- ---- --- --- -------- -------- -------- --- --- ---
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Sarah I. Gore D
Barbara S. Graham SVP SVP,D SVP SVP SVP SVP SVP SVP SVP SVP SVP SVP
Andrei M. Grecu
Nina J. Hertz AS AS AS AS AS AS AS AS
Hudson P. Hoen III VP
Cyrus H. Holley D
George C. Hunt
Frederick Hutchinson
Jerrold L. Jacobs VC,D
James B. Jacoby
Donna Johns AT,AS AT,AS AT,AS
Donna Kinzel AT AT
Albert F. Kirby
John. W. Land VP VP VP
James P. Lavin C C C C C C C C C C C C
James M. MacDonald
J. David McCann VP VP
Richard B. McGlynn D
Thomas A. McHugh
Elizabeth M. Miller AS AS AS AS
Bernard J. Morgan D
Wayne Morgan
Dean Musser
I.S. Outerbridge
James E. Parrish VP
</TABLE>
(12)
<PAGE> 15
Item 6, Part 1 Continued
<TABLE>
<CAPTION>
CES COSC CRP CSI CTS DCI I DCI II BURNEY DCI DPL DSC KSA
--- ---- --- --- --- ----- ------ ------ --- --- --- ---
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Sarah I. Gore
Barbara S. Graham SVP SVP SVP,D SVP SVP SVP SVP,D SVP SVP SVP,D SVP VP
Andrei M. Grecu AS
Nina J. Hertz AS AS AS
Hudson P. Hoen III VP
Cyrus H. Holley
George C. Hunt
Frederick Hutchinson AS
Jerrold L. Jacobs GM
James B. Jacoby
Donna Johns AT,AS
Donna Kinzel AT
Albert F. Kirby VP
John. W. Land VP VP VP VP
James P. Lavin C C C C C C C C C C C C
James M. MacDonald D (Alt.)
J. David McCann
Richard B. McGlynn
Thomas A. McHugh AS
Elizabeth M. Miller AS AS AS AS AS AS AS AS
Bernard J. Morgan
Wayne Morgan AS
Dean Musser
I.S. Outerbridge S
James E. Parrish SVP,COO
</TABLE>
(13)
<PAGE> 16
Item 6, Part 1 Continued
<TABLE>
<CAPTION>
PED GEN VIN GEN VIN LTD CEI SOLUTIONS
------- ------- ------- --- ---------
<S> <C> <C> <C> <C> <C>
Sarah I. Gore
Barbara S. Graham SVP SVP SVP SVP,D SVP
Andrei M. Grecu
Nina J. Hertz AS AS AS AS
Hudson P. Hoen III
Cyrus H. Holley
George C. Hunt VP
Frederick Hutchinson
Jerrold L. Jacobs
James B. Jacoby
Donna Johns
Donna Kinzel
Albert F. Kirby
John. W. Land
James P. Lavin C C C C C
James M. MacDonald
J. David McCann
Richard B. McGlynn
Thomas A. McHugh
Elizabeth M. Miller AS
Bernard J. Morgan
Wayne Morgan
Dean Musser VP
I.S. Outerbridge
James E. Parrish
</TABLE>
(14)
<PAGE> 17
Item 6, Part 1 Continued
<TABLE>
<CAPTION>
ATE ACE AGI AJTS ASP ATS BING GEN BING LTD CONECTIV CCI
--------- --------- --------- --------- --------- --------- --------- --------- -------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Michael J. Ratchford VP
Philip S. Reese VP,T VP,T VP,T VP,T VP,T VP,T VP,T VP,T VP,T VP,T
Joseph M. Rigby VP VP
Richard B. Robertson VP P,COO
Timothy J. Sanborn
Mark J. Schaefer
Lonnie C. Scott VP VP
Susan S. Seipel
Thomas E. Shaw EVP,D P P P P P EVP
Brian M. Shivery
Janet L. Shorter
William H. Spence VP VP
Leslie Thomas-Dawson
Louis A. Tonelli
Richard H. Treml
Eileen K. Unger
John C. van Roden Jr. SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO SVP,CFO,D
Gregory M. Warshaw
Mack J. Wathen AT,AS
James C. Weller VP VP VP VP VP VP
Nathan L. Wilson AS
</TABLE>
<TABLE>
<CAPTION>
CCV
---------
<S> <C>
Michael J. Ratchford
Philip S. Reese VP,T
Joseph M. Rigby
Richard B. Robertson P,COO
Timothy J. Sanborn
Mark J. Schaefer
Lonnie C. Scott
Susan S. Seipel
Thomas E. Shaw
Brian M. Shivery
Janet L. Shorter
William H. Spence
Leslie Thomas-Dawson
Louis A. Tonelli
Richard H. Treml
Eileen K. Unger
John C. van Roden Jr. SVP,CFO,D
Gregory M. Warshaw
Mack J. Wathen
James C. Weller
Nathan L. Wilson
</TABLE>
(15)
<PAGE> 18
Item 6, Part 1 Continued
<TABLE>
<CAPTION>
CDG CES COSC CRP CSI CTS DCI I DCI II BURNEY DCI
--------- --------- --------- --------- --------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Michael J. Ratchford
Philip S. Reese VP,T VP,T VP,T VP,T VP,T VP,T VP,T VP,T VP,T
Joseph M. Rigby
Richard B. Robertson
Timothy J. Sanborn VP
Mark J. Schaefer
Lonnie C. Scott VP
Susan S. Seipel VP,D
Thomas E. Shaw P P P EVP,D P P
Brian M. Shivery AS
Janet L. Shorter
William H. Spence VP
Leslie Thomas-Dawson AS,D
Louis A. Tonelli AT
Richard H. Treml AS
Eileen K. Unger
John C. van Roden Jr. SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D
Gregory M. Warshaw VP
Mack J. Wathen
James C. Weller VP VP VP
Nathan L. Wilson AS
</TABLE>
<TABLE>
<CAPTION>
DPL
---------
<S> <C>
Michael J. Ratchford
Philip S. Reese VP,T
Joseph M. Rigby VP
Richard B. Robertson
Timothy J. Sanborn
Mark J. Schaefer
Lonnie C. Scott VP
Susan S. Seipel
Thomas E. Shaw EVP,D
Brian M. Shivery
Janet L. Shorter
William H. Spence VP
Leslie Thomas-Dawson
Louis A. Tonelli
Richard H. Treml
Eileen K. Unger
John C. van Roden Jr. SVP,CFO,D
Gregory M. Warshaw
Mack J. Wathen AT,AS
James C. Weller VP
Nathan L. Wilson AS
</TABLE>
(16)
<PAGE> 19
Item 6, Part 1 Continued
<TABLE>
<CAPTION>
DSC KSA PED GEN VIN GEN VIN LTD CEI SOLUTIONS
--------- --------- --------- --------- --------- ------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Michael J. Ratchford
Philip S. Reese VP,T VP,T VP,T VP,T VP,T VP,T VP,T
Joseph M. Rigby
Richard B. Robertson
Timothy J. Sanborn
Mark J. Schaefer VP
Lonnie C. Scott
Susan S. Seipel
Thomas E. Shaw P P P P,D P
Brian M. Shivery
Janet L. Shorter AS
William H. Spence VP
Leslie Thomas-Dawson
Louis A. Tonelli
Richard H. Treml
Eileen K. Unger VP
John C. van Roden Jr. SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO,D SVP,CFO SVP,CFO,D
Gregory M. Warshaw
Mack J. Wathen
James C. Weller VP VP VP VP
Nathan L. Wilson
</TABLE>
(17)
<PAGE> 20
ITEM 6. OFFICERS AND DIRECTORS (Continued)
PART II. FINANCIAL CONNECTIONS OF DIRECTORS AND EXECUTIVE OFFICERS AS OF
DECEMBER 31, 1999
See Item 6, Part III (a) below.
PART III (a). COMPENSATION OF OFFICERS AND DIRECTORS
PERSONNEL & COMPENSATION COMMITTEE REPORT
COMPENSATION PHILOSOPHY
Our philosophy is to:
- Link compensation to business strategies and results
- Align the compensation of executives with the long-term interests of
stockholders
- Motivate executives to exceed the challenging objectives the Board
has established for Conectiv, and
- Create urgency for success in an increasingly competitive business
environment.
The Committee has designed an executive compensation program that:
- Provides total compensation emphasizing long-term performance that
creates stockholder value
- Facilitates a rapid transition to a competitive business environment
- Reflects the challenging market conditions for attracting and
retaining high-quality executives and ensures that executives have a
continuing personal financial stake in Conectiv's long-term success,
and
- Creates significant levels of executive stock ownership.
EXECUTIVE TOTAL COMPENSATION PROGRAM
PROGRAM ELEMENTS
- Base pay that reflects job responsibilities and individual
performance against goals
- Annual performance-based variable pay
- Long-term variable compensation tied directly to stockholder value
- Special grants for alignment and retention purposes.
The program uses performance measures directly related to shareholder
total return. In addition to these measures, shareholder total return
is viewed in light of conditions in the deregulating utility industry,
industries in which Conectiv is developing new businesses, the general
economy and the stock market.
TOTAL COMPENSATION AND MARKET TARGETS. The program provides total
compensation that is competitive with companies similar in revenue size
to Conectiv, in a blend of utility and industrial markets. Total
compensation levels and opportunities are determined by Conectiv's
Personnel & Compensation Committee, in consultation with Watson Wyatt,
a leading executive compensation consulting firm. Watson Wyatt uses
their experience, knowledge of Conectiv and its industries, and
published compensation data to define competitive levels of total
compensation targeted at the median of the market. To strengthen the
tie to stockholder value, base pay is generally set somewhat below the
market target, and targets for the annual and long-term variable
elements are set above the market targets.(1)
- --------
(1) At least 30 of the companies in the Dow Jones Electric Utility Index and 19
of the companies in the S&P 500 index participate in at least one of the survey
sources used by Watson Wyatt.
(18)
<PAGE> 21
BASE PAY reflects the job responsibilities, experience and annual performance of
individual executives and of Conectiv, and compensation for comparable positions
at other companies. The Committee reviews base pay annually and adjusts it for
individual and corporate performance.
1999 COMMITTEE ACTION ON BASE PAY. The Committee set base pay for the
five-named executive officers that in aggregate is slightly below the median
market targets. In setting Mr. Cosgrove's base pay, the Committee considered the
results achieved by Conectiv, including the successful merger that created
Conectiv, the startup and expansion of new businesses, and Mr. Cosgrove's
leadership in setting a new direction for Conectiv in the deregulating utility
market. The Committee determined that this initial success was adequately
rewarded in base pay and set his 1999 base pay at $600,000, the same level as in
1998 and at the level of the 1999 median market target.
2000 COMMITTEE ACTION ON BASE PAY FOR MR. COSGROVE. The Committee
continues to believe that Mr. Cosgrove's leadership is best rewarded through
compensation linked directly to shareholder value rather than base pay.
Therefore, his base pay remains at $600,000 for 2000, the same level as in 1998
and 1999. A portion of the amount by which Mr. Cosgrove's salary could have been
increased based on market data was used instead to increase his 2000 grant of
long-term incentives to further align his interests with those of Stockholders.
ANNUAL VARIABLE PAY is designed to motivate executives to achieve "stretch"
financial, planning, and operating goals and to increase the sense of urgency to
deliver significant performance levels. Goals and annual variable pay
opportunities are set for each executive at the beginning of the year.
Opportunities are set at or above the median of competitive companies and are
related to line of business and corporate performance. Participants may earn
awards from 0% to 150% of the preset target. For the highest paid officers, this
can mean awards from 0% to between 60% and 75% of base pay. Awards are made only
if Conectiv achieves earnings targets approved by the Committee.
PARTIAL AWARD IN STOCK. Twenty percent of annual awards are paid in
Restricted Stock Units ("RSU's") under the Management Stock Purchase
Plan ("MSPP") at a 20% discount to the fair market value of Conectiv
Common Stock. Each RSU is a proxy for one share of Common Stock, has a
value equal to one share, and earns dividends at the same rate as one
share. RSU's cannot be sold or used for three years from the date
acquired, and are distributed in Conectiv Common Stock at the end of
that period. Participants can purchase additional RSU's up to a maximum
of 50% of their annual award.
MR. COSGROVE'S AWARD FOR 1998. Mr. Cosgrove was eligible to earn
between 0% and 150% of his target opportunity of $300,000 (50% of his
1998 base pay). The Committee originally intended that earning this
award would depend entirely on company financial performance on three
measures set by the Committee at the beginning of the year, on the
assumption that the merger that created Conectiv would close at the
beginning of 1998. These measures were consolidated corporate earnings,
cash flow and cash flow return on capital employed.
The merger closed instead on March 1, 1998, when the final regulatory
approval was received. This made it extremely difficult to obtain
reliable information to determine performance against the second and
third measures. In 1999, the Committee instead based Mr. Cosgrove's
award entirely on corporate earnings. 1998 corporate earnings met the
target level adjusted by the Committee for unexpected merger impacts,
resulting in a payout of 100% of the target, or $300,000.
1998 AWARDS FOR OTHER NAMED EXECUTIVE OFFICERS. 1998 awards for Messrs.
Shaw and Elson and Mrs. Graham made in 1999 totaled $386,400. These
awards were based, as was Mr. Cosgrove's, on corporate earnings and on
the performance of the business areas managed by those officers.
OPPORTUNITIES FOR 1999. In setting performance measures for these
awards, the Committee considered the industry restructuring and
regulatory issues that Conectiv would address during 1999 and how their
resolution might affect earnings. The Committee decided that earnings
before interest and taxes ("EBIT") provided the best measure of
Conectiv's performance for that year and adopted an EBIT target for all
named executive officers. Consistent with this, the Committee also
modified the payout opportunities by setting maximum and minimum
(19)
<PAGE> 22
payout levels relative to the new EBIT target. The maximum payout
occurs at 105% of the EBIT target and the minimum payout or threshold
occurs at 90% of the EBIT target. The Committee also reserved the
ability to adjust the EBIT target after the full impact of industry
deregulation on Conectiv's earnings was known. The Committee has not
yet determined 1999 awards for the named executive officers.
LONG-TERM VARIABLE COMPENSATION aligns the interests of executives with those of
Stockholders by linking a significant portion of an executive's total
compensation opportunities to the performance of Conectiv Common Stock. To that
end, grant levels are generally above market target. Grants may include some or
all of the following:
NON-QUALIFIED STOCK OPTIONS which give the executive the right
to acquire Common Stock at the grant price of the option,
which in all cases is the fair market value of the Common
Stock on the day of grant. Options have value to the executive
in direct relation to increases in share price above grant
price.
DIVIDEND EQUIVALENT UNITS which provide the executive with
income equivalent to the dividend on Conectiv Common Stock.
These "DEU's" have value to the executive in direct relation
to the amount of that dividend. The combination of options and
DEU's help to focus executives on the blend of stock price and
dividend growth that creates the most value to Stockholders.
PERFORMANCE ACCELERATED RESTRICTED STOCK which vests as
unrestricted Common Stock seven years after grant and will
vest earlier if (for 1999 grants) pre-determined levels of
Total Shareholder Return ("TSR") are met. If early vesting
doesn't occur for the highest paid executives, vesting will
occur after seven years only if TSR is at or above the level
produced by the stock price and dividends on the date of the
grant. "PARS" have their greatest value to the executive when
vesting accelerates.
PERFORMANCE ACCELERATED STOCK OPTIONS, another form of
non-qualified stock option, vest 9 1/2 years and expire 10
years after grant. These "PASO's" will vest earlier if share
price reaches predetermined levels. PASO's have little value
to executives unless vesting accelerates as a result of
increased share price.
1999 GRANTS. Based on Watson Wyatt data and recommendations, the
Committee set targets as a percentage of base salary for each of the
named executive officers to continue to strengthen focus on total
shareholder value and competitive total compensation. Targets were
converted to actual grants using the Black-Scholes method for options
and time and forfeiture discount methods for the other types of grants.
All named executive officers received grants of options, DEU's and PARS
for 1999.
1999 SPECIAL GRANTS OF RESTRICTED STOCK AND PASO'S. From time to time,
the Committee makes special grants to address specific business needs.
During 1999, the Committee made grants of restricted stock to Mr. Elson
(8000 shares) and Mr. Shaw (8000 shares) to encourage their continued
employment with Conectiv; the grants lapse if they leave prior to four
years from the date of the grant. The Committee also granted 150,000
shares of PASO's to Mr. van Roden, following his employment as Senior
Vice President and Chief Financial Officer.
OPTION GRANTS FOR OTHER KEY EMPLOYEES. In addition, the Committee
authorized Mr. Cosgrove to make grants of up to 100,000 shares of
options to purchase Common Stock to other key employees to increase
their focus and motivation and encourage their continued employment
with Conectiv.
(20)
<PAGE> 23
EXECUTIVE AND DIRECTOR STOCK OWNERSHIP GUIDELINES
In 1998, the Committee established the following guidelines, consistent
with its belief in the value to Stockholders of a strong link between the
interests of Directors and executives and those of Stockholders.
<TABLE>
<CAPTION>
----------------------- -------------------------
MULTIPLE BY
- ---------------------------------------- ----------------------- -------------------------
<S> <C> <C>
CHAIRMAN AND CHIEF EXECUTIVE OFFICER 5 times base pay 2003
- ---------------------------------------- ----------------------- -------------------------
SENIOR EXECUTIVES 3 times base pay 2003
- ---------------------------------------- ----------------------- -------------------------
VICE PRESIDENTS, GENERAL MANAGERS, OTHER
MEMBERS OF MANAGEMENT 1 - 2 times base pay 2003
- ---------------------------------------- ----------------------- -------------------------
BOARD OF DIRECTORS 3 times annual retainer 3 years after election to
Board
- ---------------------------------------- ----------------------- -------------------------
</TABLE>
RESPONSE TO IRS LIMITS ON DEDUCTIBILITY OF COMPENSATION
Section 162(m) of the Internal Revenue Code limits the deduction of
certain forms of compensation above $1,000,000 paid to a highly compensated
executive. The Committee tries to structure executive compensation to minimize
the amount of compensation that is not deductible. The Committee believes,
however, that this limitation should not compromise Conectiv's ability to create
compensation programs that support the business strategy and attract and retain
the executive talent required for success. As a result, there may at times be
some compensation that is not deductible for federal income tax purposes.
Following a review of current plans and practices, the Committee
believes that no part of the executive compensation program is not deductible
under the terms of this section.
PERSONNEL & COMPENSATION COMMITTEE:
Sarah I. Gore, Chair
Michael B. Emery
Richard B. McGlynn
Bernard J. Morgan
PERSONNEL & COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
The Personnel & Compensation Committee is comprised solely of
non-employee Directors. Logical Business Solutions, which is owned by Mr.
Emery's son-in-law, Paul Kleiman, had contracts with Conectiv Resource Partners,
Inc., a subsidiary of Conectiv, with a gross value of $239,000 during 1999, for
information technology consulting services. There are no other Personnel &
Compensation Committee interlocks.
(21)
<PAGE> 24
EXECUTIVE COMPENSATION
TABLE 1- SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Variable Restricted Securities LTIP All Other
Year Annualized Compensation Other Annual Stock Underlying Payouts Compensation
NAME AND PRINCIPAL POSITION (1) Salary (Bonus) (2) Compensation Awards (3) Options (4) (5)
- -------------------------------------- ---- ---------- ------------ ------------ ---------- ---------- -------- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
H.E. Cosgrove, Chairman of the Board, 1999 $600,000 --- 0 $187,500 57,000 --- $18,204
President and Chief Executive Officer 1998 $600,000 $150,000 0 0 360,000 $572,134 $12,329
- -------------------------------------- ---- ---------- ------------ ------------ ---------- ---------- -------- ------------
T. S. Shaw, Executive Vice President 1999 $325,000 --- 0 $291,500 26,000 --- $8,258
1998 $325,000 $78,000 0 0 170,000 $155,267 $9,478
- -------------------------------------- ---- ---------- ------------ ------------ ---------- ---------- -------- ------------
B. R. Elson, Executive Vice President 1999 $325,000 --- 0 $259,000 26,000 --- $6,116
1998 $325,000 $78,000 0 0 170,000 $21,560 $4,074
- -------------------------------------- ---- ---------- ------------ ------------ ---------- ---------- -------- ------------
J. C. van Roden, Jr., Senior Vice 1999 $250,000 --- 0 0 170,000 --- $8,342
President/Chief Financial Officer (6) 1998 $17,686 --- 0 0 --- --- ---
- -------------------------------------- ---- ---------- ------------ ------------ ---------- ---------- -------- ------------
B.S. Graham, Senior Vice President 1999 $250,000 --- 0 $62,750 14,000 --- $7,504
1998 $250,000 $50,200 0 0 170,000 $155,267 $5,308
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
1. The 1998 merger involving Atlantic Energy, Inc. and Delmarva Power &
Light Company was effective as of March 1, 1998. Accordingly, except
for Mr. Van Roden, 1998 salary is shown as an annualized amount. Mr.
Van Roden joined Conectiv on November 30,1998 and 1998 salary shown is
his actual salary. Other 1998 items of compensation reflect full
calendar 1998 compensation received from Conectiv or Delmarva Power &
Light Company.
2. The 1999 bonus, which is an annual variable award, has not yet been
determined. The 1999 target award is 50% of salary for Mr. Cosgrove,
45% for Messrs. Elson and Shaw, 40% for Mr. van Roden and Mrs. Graham.
For 1998, the dollar value of the bonus reported above has been reduced
by the portion of the bonus deferred and reported above as a 1999
Restricted Stock Award as follows: H. E. Cosgrove ($300,000 bonus with
$150,000 purchasing Restricted Stock Units ("RSU's")); T.S. Shaw
($156,000 bonus with $78,000 purchasing RSU's); B. R. Elson ($130,000
bonus with $52,000 purchasing RSU's); B. S. Graham ($100,400 bonus with
$50,200 purchasing RSU's).
3. A mandatory 20% of the bonus (reported in this Table as "Variable
Compensation") and any additional portion of the bonus that an
executive elects to defer (up to an additional 30%) is deferred for at
least three years under the Management Stock Purchase Program ("MSPP")
and used to purchase RSU's at a 20% discount. The dollar value of RSU's
deferred under MSPP in 1999 (inclusive of the discounted portion),
based on the fair market value at the award date, was: H. E. Cosgrove
($187,500, of which $37,500 is the discount); T.S. Shaw ($97,500, of
which $19,500 is the discount); B. R. Elson ($65,000, of which $13,000
is the discount); B. S. Graham ($62,750, of which $12,550 is the
discount). In addition, Messrs. Shaw and Elson each received in 1999 an
8,000 share award of Restricted Stock valued at $194,000, based on a
fair market value of $24.25 per share of Common stock on the award
date. One-half of the awards to Messrs. Shaw and Elson vest after three
years, the balance after four years. Dividends accrue and are paid as
the awards vest. The RSU awards do not vest in under three years but do
accrue dividends. At the end of 1999, the number and value of the
aggregate restricted stock holdings (including RSUs, PARS and special
grants of the individuals identified in the Summary Compensation Table
was as follows: for Mr. Cosgrove, 28,298 restricted stock holdings
values at $475,757; for Mr. Shaw, 21,149 restricted stock holdings
valued at $445,067; for Mr. Elson, 19,397 restricted stock holdings
values at $385,605; for Mr. van Roden, 3,000 restricted stock holdings
valued at $50,438; and for Mrs. Graham, 9,779 restricted stock holdings
valued at $164,410.
4. During 1998 all restrictions lapsed on the performance-based restricted
stock granted in 1995 and 1996 under the Delmarva LTIP due to the
merger involving Delmarva and Atlantic Energy. Under the "change in
control" provisions, the awards fully vested resulting in a payout to
Mr. Cosgrove of 21,160 shares (11,570 for 1995 and 9,950 for 1996)
valued at $454,940; to Mr. Shaw of 5,450 shares (2,870 for 1995 and
2,580 for 1996) valued at $117,175; and to Mrs. Graham of 5,540 shares
(2,870 for 1995 and 2,580 for 1996) valued at $117,175. Shares were
valued at $21.50 at the time of payout. Dividends on shares of
restricted stock and dividend equivalents are accrued at the same rate
as that paid to all holders of Common Stock. As of December 31, 1998,
Mr. Cosgrove held 45,520 shares of restricted stock
(22)
<PAGE> 25
5. (35,520 for 1997 and 10,000 for 1998) and 30,000 Dividend Equivalent
Units ("DEU's"); Mr. Elson held 4,000 shares of restricted stock for
1998 and 10,000 DEU's; Mr. Shaw held 12,010 shares of restricted stock
(8,010 for 1997 and 4,000 for 1998) and 10,000 DEU's; Mrs. Graham held
12,010 shares of restricted stock (8,010 for 1997 and 4,000 for 1998)
and 10,000 DEU's. Holders of restricted stock are entitled to receive
dividends as declared.
6. "All Other Compensation" includes the following for 1999: For Mr.
Cosgrove, $3,000 in Company matching contributions to the Savings and
Investment Plan, $15,000 in Company matching contributions to the
Deferred Compensation Plan and $204 in term life insurance premiums
paid by Conectiv. For Mr. Shaw, $3,104 in Company matching
contributions to the Savings and Investment Plan, $4,950 in Company
matching contribution to the Deferred Compensation Plan and $204 in
term life insurance premiums paid by Conectiv. For Mrs. Graham, $4,800
in Company matching contributions to the Savings and Investment Plan,
$2,500 in Company matching contributions to the Deferred Compensation
Plan and $204 in term life insurance premiums paid by Conectiv. For Mr.
Elson, $4,800 in Company matching contributions to the Savings and
Investment Plan and $1,316 in term life insurance premiums paid by
Conectiv. For Mr. van Roden, $4,800 in Company matching contributions
to the Savings and Investment Plan, $2,814 in Company matching
contributions to the Deferred Compensation Plan and $728 in term life
insurance premiums paid by Conectiv.
7. Mr. van Roden was elected Senior Vice President and Chief Financial
Officer as of January 4, 1999.
TABLE 2 - OPTION GRANTS IN LAST FISCAL YEAR (1)
<TABLE>
<CAPTION>
NUMBER OF % OF TOTAL
SECURITIES OPTIONS
UNDERLYING GRANTED TO EXERCISE GRANT DATE
OPTIONS EMPLOYEES IN PRICE EXPIRATION PRESENT
NAME GRANTED (#) FISCAL YEAR ($/SH) DATE VALUE (4)
---- ----------- ----------- ------ ---- ---------
<S> <C> <C> <C> <C> <C>
H. E. Cosgrove 57,000 (2) 11% $24.25 1/4/09 $114,969
B. R. Elson 26,000 (2) 5% $24.25 1/4/09 $52,442
T. S. Shaw 26,000 (2) 5% $24.25 1/4/09 $52,442
J. C. van Roden 20,000 (2) 4% $24.25 1/4/09 $40,340
150,000 (3) 29% $24.25 1/4/09 $178,050
B. S. Graham 14,000 (2) 3% $24.25 1/4/09 $28,238
</TABLE>
1. Currently, Conectiv does not grant stock appreciation rights.
2. Denotes Nonqualified Stock Options ("NQSO's"). One-half vest and are
exercisable at end of second year from date of grant. Second one-half
vest and are exercisable at end of third year from date of grant.
3. Denotes Performance Accelerated Stock Options ("PASO's") granted on a
one-time basis. PASO's have a ten-year term and vest and are first
exercisable 9 and 1/2 years from date of grant without regard to stock
price performance. Exercise date will accelerate for favorable stock
price performance (i.e. first 1/3, second 1/3 and third 1/3 of PASO's
vest after stock trades at $26, $28 or $30 per share, respectively, for
ten consecutive trading days). PASO's must be held for three years from
date of grant before they can be exercised.
4. Determined using the Black-Scholes model, incorporating the following
material assumptions and adjustments: (a) exercise price of $24.25,
equal to the Fair Market Value ("FMV") as of date of grant; (b) an
option term of ten years; (c) risk-free rate of return of 5.6%; (d)
volatility of 16.0%; and (e) dividend yield of 6.4%. For valuation
purposes, PASO's are valued as a premium-priced stock option as of the
date of grant with an exercise price of $30 on a FMV of $24.25.
(23)
<PAGE> 26
TABLE 3 - AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR
AND FY-END OPTION VALUES
<TABLE>
<CAPTION>
NAME SHARES VALUE NUMBER OF SECURITIES VALUE OF UNEXERCISED IN-
---- ACQUIRED REALIZED ($) (1) UNDERLYING UNEXERCISED THE-MONEY
ON EXERCISE (#) ---------------- OPTIONS AT FY-END (2) OPTIONS AT FY-END (1)
--------------- EXERCISABLE/UNEXERCISABLE (#) EXERCISABLE/UNEXERCISABLE($)
----------------------------- ----------------------------
<S> <C> <C> <C> <C>
H. E. Cosgrove 0 $0 14,400 / 417,000 $0 /$0
B. R. Elson 0 0 0 / 196,000 0 / 0
T. S. Shaw 0 0 0 / 196,000 0 / 0
J. C. van Roden 0 0 0 / 170,000 0 / 0
B. S. Graham 0 0 0 / 184,000 0 / 0
</TABLE>
1. The closing price for Conectiv Common Stock on the New York Stock
Exchange on December 31, 1999 was $16.8125. Option value would be based
on the difference between grant price (i.e., closing price shown above)
and exercise price, multiplied by the number of options exercised.
2. 14,400 stock options of Mr. Cosgrove are currently exercisable. None of
the remaining options may be exercised earlier than two years from date
of grant for NQSO and nine and 1/2 years from date of grant for PASO's
(subject to accelerated vesting for certain levels of stock price
performance).
TABLE 4 - LONG-TERM INCENTIVE PLANS - AWARDS IN LAST FISCAL YEAR
<TABLE>
<CAPTION>
NAME NUMBER OF RESTRICTED PERFORMANCE PERIOD
- ---- SHARES/DIVIDEND UNTIL MATURATION
EQUIVALENT UNITS (#) (1) OR PAYOUT (2)
------------------------ -------------
<S> <C> <C>
H.E. Cosgrove 8,500 shares/28,500 units 1/4/06
B. R. Elson 4,000 shares/13,000 units 1/4/06
T. S. Shaw 4,000 shares/13,000 units 1/4/06
J. C. van Roden 3,000 shares/10,000 units 1/4/06
B. S. Graham 2,500 shares/7,000 units 1/4/06
</TABLE>
1. In addition, Mr. Cosgrove held 35,520 performance shares (valued at
$597,180) and Mr. Shaw and Mrs. Graham each held 8,010 performance
shares (valued at $134,668) from a 1997 award with a four-year
performance cycle under the former Delmarva Power Long Term Incentive
Plan. These are pre-existing awards as reported in the 1999 Proxy
Statement and valued at the share price of Common Stock on December 31,
1999.
2. Awards of Restricted Shares (Performance Accelerated Restricted Stock
or "PARS") and Dividend Equivalent Units ("DEU's") were made to the
five named executive officers on January 4, 1999. The payout of PARS
may potentially be "performance accelerated". Restrictions may lapse
and vesting may accelerate any time after 3 years (i.e., after January
4, 2002) upon achievement of pre-determined levels of total return to
shareholders. Otherwise, restrictions lapse after 7 years (i.e.,
January 4, 2006), provided that at least a defined level of average,
total return to shareholders is achieved. As of December 31, 1999, Mr.
Cosgrove's 8,500 PARS were valued at $142,906, Messrs. Elson and Shaw's
4,000 PARS were valued at $67,250, Mr. van Roden's 3,000 PARS were
valued at $50,438 and Mrs. Graham's 2,500 PARS were valued at $42,032.
These values for PARS are based on the December 31, 1999 closing stock
price of $16.8125 per share of Common Stock. One DEU equals the regular
quarterly dividend paid on one share of Conectiv Common Stock. The
DEU's shown are payable in cash for eight quarters over a two year
period ending with the DEU payable January 31, 2001. At that point, the
1999 DEU award lapses.
(24)
<PAGE> 27
PENSION PLAN
The Conectiv Retirement Plan includes the Cash Balance Pension Plan and
grandfathered provisions relating to the Delmarva Retirement Plan and the
Atlantic Retirement Plan that apply to employees who had either 20 years of
service or were age 50 on the effective date of the Cash Balance Pension Plan
(January 1, 1999). Certain executives whose benefits from the Conectiv
Retirement Plan are limited by the application of federal tax laws also receive
benefits from the Supplemental Executive Retirement Plan.
CASH BALANCE PENSION PLAN
The named executive officers participate in the Conectiv Retirement Plan
and earn benefits that generally become vested after five years of service.
Annually, a recordkeeping account in a participant's name is credited with an
amount equal to a percentage of the participant's total pay, including base
salary, overtime and bonuses, depending on the participant's age at the end of
the plan year, as follows:
<TABLE>
<CAPTION>
% OF
AGE AT END OF PLAN YEAR PAY
----------------------- ---
<S> <C>
Under 30 .................................. 5
30 to 34 .................................. 6
35 to 39 .................................. 7
40 to 44 .................................. 8
45 to 49 .................................. 9
50 and over ............................. 10
</TABLE>
These accounts also receive interest credits based on average U.S. Treasury
Bill rates for the year. In addition, certain annuity benefits earned by
participants under the former Delmarva and Atlantic Retirement Plans are fully
protected as of December 31, 1998, and were converted to an equivalent cash
amount and included in each participant's initial cash balance account. When a
participant terminates employment, the amount credited to his or her account is
converted into an annuity or paid in a lump sum.
SUPPLEMENTAL RETIREMENT BENEFITS
Supplemental retirement benefits are provided to certain employees,
including each executive officer, whose benefits under the Conectiv Retirement
Plan are limited by type of compensation or amount under federal tax laws and
regulations.
ESTIMATED RETIREMENT BENEFITS PAYABLE TO NAMED EXECUTIVE OFFICERS
The following table shows the estimated retirement benefits, including
supplemental retirement benefits under the plans applicable to the named
executive officers, which would be payable if he or she were to retire at normal
retirement age (65), expressed in the form of a lump sum payment. Years of
service credited to each named executive officer as of his or her normal
retirement date are as follows: Mr. Cosgove, 42; Ms. Graham, 30; Mr. Shaw, 40;
Mr. Elson, 16 (8 of which are additional years of service for purposes of the
supplemental retirement benefits), and Mr. van Roden, 15.
<TABLE>
<CAPTION>
NAME YEAR OF 65TH BIRTHDAY LUMP SUM VALUE
---- --------------------- --------------
<S> <C> <C>
H. E. Cosgrove ................ 2008 $4,066,000
B. S. Graham .................. 2013 1,763,000(l)
T. S. Shaw .................... 2012 2,289,000
B. R. Elson ................... 2006 957,000
J. C. van Roden................ 2014 597,000(1)
</TABLE>
(1) Amounts include (i) interest credits for cash balances projected to be
6.26% per annum on annual salary credits and prior service balances, if
any, and (ii) accrued benefits as of December 31, 1999 under retirement
plans then applicable to the named executive officer. Benefits are not
subject to any offset for Social Security payments or other offset
amounts and assume no future increases in base salary or total pay.
(25)
<PAGE> 28
Under the Conectiv Retirement Plan's grandfather provisions, employees who
participated in the Delmarva or Atlantic Retirement Plans and who met certain
age and service requirements as of December 31, 1998, will have retirement
benefits for all years of service up to retirement calculated according to their
original benefit formula. This benefit will be compared to the cash balance
account and the employee will receive whichever is greater. Estimated benefits
are based on the Delmarva Retirement Plan for Messrs. Cosgrove, Shaw and Elson
and the Cash Balance Pension Plan for Mrs. Graham (whose benefits under the Cash
Balance Pension Plan exceed the benefits under the Delmarva Retirement Plan) and
Mr. van Roden (who was not grandfathered into the Delmarva Retirement Plan). The
amount of benefit under such grandfathering is illustrated in the following
table:
DELMARVA RETIREMENT PLAN
PENSION PLAN TABLE
ANNUAL RETIREMENT BENEFITS IN SPECIFIED REMUNERATION AND
YEARS OF SERVICE CLASSIFICATIONS
<TABLE>
<CAPTION>
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.
- ----------------------------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C>
$300,000(1) 70,500 94,000 117,500 141,000(2) 164,500(2)
400,000(1) 94,500 126,000 157,500 189,000(2) 220,500(2)
500,000(1) 118,500 158,000(2) 197,500(2) 237,000(2) 276,500(2)
600,000(1) 142,500(2) 190,000(2) 237,500(2) 285,000(2) 332,500(2)
700,000(1) 166,500(2) 222,000(2) 277,500(2) 333,000(2) 388,500(2)
800,000(1) 190,500(2) 254,000(2) 317,500(2) 381,000(2) 444,500(2)
</TABLE>
(1) Effective January 1, 1999, annual compensation recognized may not
exceed $160,000.
(2) For 1999, the annual limit on annual benefits is $130,000.
Benefits are payable in the form of a 50% joint and surviving spouse
annuity or lump sum. Earnings include base salary, overtime and bonus.
CHANGE IN CONTROL SEVERANCE AGREEMENTS AND
OTHER PROVISIONS RELATING TO POSSIBLE CHANGE IN CONTROL
Conectiv has entered into change in control severance agreements with
Messrs. Cosgrove, Elson, Shaw, and van Roden and Mrs. Graham and one other
senior executive. The agreements are intended to encourage the continued
dedication of Conectiv's senior management team. The agreements provide
potential benefits for these executives upon actual or constructive termination
of employment (other than for cause) following a change in control of Conectiv,
as defined in the agreements. Each affected executive would receive a severance
payment equal to three times base salary and bonus, medical, dental, vision,
group life and disability benefits for three years after termination of
employment, and a cash payment equal to the actuarial equivalent of accrued
retirement pension credits equal to 36 months of additional service.
In the event of a change in control, the Variable Compensation Plan
provides that outstanding options become exercisable in full immediately, all
conditions to the vesting of PARS are deemed satisfied and shares will be fully
vested and nonforfeitable, DEU's will become fully vested and be immediately
payable, variable compensation deferred under the Management Stock Purchase
Program will be immediately distributed, and payment of variable compensation,
if any, for the current year will be decided by the Personnel & Compensation
Committee. For the Deferred Compensation Plan, this Committee may decide to
distribute all deferrals in cash immediately or continue the deferral elections
of participants, in which case Conectiv will fully fund a "springing rabbi
trust" to satisfy the obligations. An independent institutional trustee will
maintain any trust established by reason of this provision.
(26)
<PAGE> 29
ITEM 6, PART III (b). SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS, DIRECTORS
AND MANAGEMENT.
The following table shows the number of shares of Conectiv Common Stock
and Class A Common Stock beneficially owned as of December 31, 1999 by:
- - Each person or company that we know beneficially owns more than 5% of
the outstanding shares of Common Stock or Class A Common Stock;
- - Each member of and nominee to the Board of Directors;
- - Each Executive Officer of Conectiv whose compensation is listed in the
Summary Compensation Table in Item 6, Part III (a) above;
- - The Directors and Executive Officers as a group.
<TABLE>
<CAPTION>
- ------------------------------------------ ------------------- -------------------
SHARES OF SHARES OF CLASS A
COMMON STOCK (1)(2) COMMON STOCK (1)(2)
- ------------------------------------------ ------------------- -------------------
<S> <C> <C>
Nominees for Director:
Class 1 - Term Expiring in 2002
Cyrus H. Holley 4,098 724
Class II - Term Expiring in 2003
Robert D. Burris 3,352 0
Sarah I. Gore 3,954 0
George F. MacCormack 1,000 0
- ------------------------------------------ ------------------- -------------------
- ------------------------------------------ ------------------- -------------------
Incumbent Directors:
Class 1 - Term Expiring in 2002
R. Franklin Balotti 5,922 0
Richard B. McGlynn 3,603 522
Class III - Term Expiring in 2001
Howard E. Cosgrove 121,937 (3)(4) 0
Audrey K. Doberstein 5,378 0
Bernard J. Morgan 5,504 618
- ------------------------------------------ ------------------- -------------------
- ------------------------------------------ ------------------- -------------------
Retiring Directors:
Class II - Term Expiring at 2000 Annual
Meeting
Michael B. Emery 5,549 0
Jerrold L. Jacobs 5,532 922
- ------------------------------------------ ------------------- -------------------
- ------------------------------------------ ------------------- -------------------
Other Executive Officers:
Barry E. Elson, Executive Vice President 21,446 (4) 0
Barbara S. Graham, Senior Vice President 30,911 (3)(4) 0
Thomas S. Shaw, Executive Vice President 43,500 (3)(4) 0
John C. van Roden, Senior Vice President 6,855 (4) 0
and Chief Financial Officer
- ------------------------------------------ ------------------- -------------------
</TABLE>
As of December 31, 1999, all current Directors and executive officers
as a group (14 persons) owned beneficially 267,541 shares of Common Stock,
representing 0.31% of the shares of Common Stock outstanding and 2,786 shares of
Class A Common Stock, representing 0.05% of the shares of Class A Common Stock
outstanding. Conectiv is not aware of any person or company that beneficially
owns more than 5% of the outstanding shares of Common Stock or Class A Common
Stock.
(27)
<PAGE> 30
NOTES
(1) Each of the individuals listed beneficially owned less than 1% of
Conectiv's outstanding Common Stock (including Common Stock and Class A
Common Stock.)
(2) Includes shares owned beneficially by Mr. Cosgrove and Mr. Jacobs and
other executive officers of Conectiv pursuant to the Conectiv Savings
and Investment Plan (including Payroll-Based Employee Stock Ownership
Plan and Employee Stock Ownership Plan), Deferred Compensation Plan and
Conectiv Incentive Compensation Plan.
(3) Includes 35,520, 8,010 and 8,010 shares of performance-based restricted
stock for Messrs. Cosgrove and Shaw and Mrs. Graham, respectively,
granted under the Long-Term Incentive Plan of Delmarva Power & Light
Company, which was adopted by the Conectiv Board of Directors. The
number of shares actually earned will depend on the Total Shareholder
Return (stock price appreciation and dividends paid) of Delmarva from
January 1997 through February 1998 and of Conectiv from March 1998
through the end of the four-year performance cycle in December 2000,
relative to the Edison Electric Institute electric utility peer group.
(4) Includes 18,500 shares for Mr. Cosgrove, 8,000 shares each for Messrs.
Shaw and Elson, 6,500 shares for Mrs. Graham and 3,000 shares for Mr.
van Roden of Performance Accelerated Restricted Stock ("PARS"). The
number of shares actually earned will depend on meeting pre-determined
financial performance measures related to shareholder value at the end
of the seven- year restriction period.
ITEM 6, PART III(c). CONTRACTS AND TRANSACTIONS.
See Item 6, Part III (a) above
ITEM 6, PART III(d). INDEBTEDNESS.
See Item 6, Part III (a) above
ITEM 6, PART III(e). PARTICIPATION IN BONUS AND PROFIT SHARING ARRANGEMENT.
See Item 6, Part III (a) above
ITEM 6, PART III(f). DIRECTORS AND OFFICERS RIGHTS TO INDEMNITY.
Provisions for indemnification of directors and executive officers are included
in the Certificate of Incorporation or By-Laws in accordance with applicable
laws.
Insurance is purchased for all the Registrant's directors and executive
officers, plus the directors and officers of the subsidiary companies. This
insurance also indemnifies the Registrant and its subsidiary companies against
any amounts paid by them as allowed by corporate law or By-laws of the
Registrant to covered directors and executive officers.
ITEM 7. CONTRIBUTIONS AND PUBLIC RELATIONS
PART I. Expenditures for any political party, candidate for public office or
holder of such office, or any committee or agent therefor.
None.
(28)
<PAGE> 31
PART II. Expenditures for any citizens group or public relations counsel.
<TABLE>
<CAPTION>
- -------- ---------------------- -------------- -------- --------
NAME OF ACCOUNTS
COMPANY NAME OF RECIPIENT PURPOSE CHARGED AMOUNT
- -------- ---------------------- -------------- -------- --------
<S> <C> <C> <C> <C>
General public
relations Admin. &
Conectiv Stanton Communications consulting Gen. $328,500
- -------- ---------------------- -------------- -------- --------
</TABLE>
ITEM 8. SERVICE, SALES AND CONSTRUCTION CONTRACTS
PART I. Intercompany Contracts.
None
PART II. System contracts to purchase goods or services from any affiliate
(other than a System company) or a company in which any director or
executive officer is a partner or owns 5% or more of any class of
equity securities.
None.
PART III. System contracts with others on a continuing basis for management,
supervisory, or financial advisory review.
None.
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
Burney, an indirect subsidiary of Conectiv, holds a 45% direct and indirect
interest in Burney Forest Products, A Joint Venture, which is an EWG. Conectiv
Energy, also an EWG, is in the process of developing two new combustion turbine
generation facilities. As of December 31, 1999, Conectiv's investment in EWGs
totaled $18.7 million.
(29)
<PAGE> 32
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS
<TABLE>
<CAPTION>
Page Ref
--------
<S> <C>
CONSOLIDATING FINANCIAL STATEMENTS
CONSOLIDATING STATEMENT OF INCOME FOR THE YEAR ENDED DECEMBER 31, 1999
Conectiv and Subsidiaries F-1A
Delmarva Power and Light Company and Subsidiaries F-1B
Atlantic City Electric Company and Subsidiaries F-1C
Delmarva Capital Investments, Inc. and Subsidiaries F-1D
Conectiv Energy Supply, Inc. and Subsidiary F-1E
Conectiv Services, Inc. and Subsidiaries F-1F
Conectiv Thermal Systems, Inc. and Subsidiaries F-1G
Conectiv Solutions LLC and Subsidiaries F-1H
Atlantic Generation, Inc. and Subsidiaries F-1I
CONSOLIDATING BALANCE SHEET AS OF DECEMBER 31, 1999
Conectiv and Subsidiaries F-2A
Delmarva Power and Light Company and Subsidiaries F-2B
Atlantic City Electric Company and Subsidiaries F-2C
Delmarva Capital Investments, Inc. and Subsidiaries F-2D
Conectiv Energy Supply, Inc. and Subsidiary F-2E
Conectiv Services, Inc. and Subsidiaries F-2F
Conectiv Thermal Systems, Inc. and Subsidiaries F-2G
Conectiv Solutions LLC and Subsidiaries F-2H
Atlantic Generation, Inc. and Subsidiaries F-2I
CONSOLIDATING STATEMENT OF CASH FLOWS FOR THE YEAR ENDED DECEMBER 31, 1999
Conectiv and Subsidiaries F-3A
Delmarva Power and Light Company and Subsidiaries F-3B
Atlantic City Electric Company and Subsidiaries F-3C
Delmarva Capital Investments, Inc. and Subsidiaries F-3D
Conectiv Energy Supply, Inc. and Subsidiary F-3E
Conectiv Services, Inc. and Subsidiaries F-3F
Conectiv Thermal Systems, Inc. and Subsidiaries F-3G
Conectiv Solutions LLC and Subsidiaries F-3H
Atlantic Generation, Inc. and Subsidiaries F-3I
CONSOLIDATING STATEMENT OF RETAINED EARNINGS FOR THE YEAR ENDED DECEMBER 31, 1999
Conectiv and Subsidiaries F-4A
Delmarva Power and Light Company and Subsidiaries F-4B
Atlantic City Electric Company and Subsidiaries F-4C
Delmarva Capital Investments, Inc. and Subsidiaries F-4D
Conectiv Energy Supply, Inc. and Subsidiary F-4E
Conectiv Services, Inc. and Subsidiaries F-4F
Conectiv Thermal Systems, Inc. and Subsidiaries F-4G
Conectiv Solutions LLC and Subsidiaries F-4H
Atlantic Generation, Inc. and Subsidiaries F-4I
</TABLE>
<PAGE> 33
ITEM 10. Continued
Consolidated Notes 1 through 26, pages II-33 through II-74, to the Consolidated
Financial Statements of Conectiv's 1999 Form 10-K filed on March 29, 2000 is
incorporated herein by reference.
Consolidated Notes 1 through 23, pages II-23 through II-45, to the Consolidated
Financial Statements of Atlantic City Electric Company's 1999 Form 10-K filed on
March 29, 2000 is incorporated herein by reference.
Consolidated Notes 1 through 23, pages II-23 through II-47 to the Consolidated
Financial Statements of Delmarva Power & Light Company's 1999 Form 10-K filed on
March 29, 2000 is incorporated herein by reference.
<PAGE> 34
Conectiv and Subsidiaries
Consolidating Statement of Income
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations
Total Reclasses & Conectiv DPL ACE
Conectiv Consolidations Parent Consolidated Consolidated
----------- -------------- ----------- ------------ -------------
<S> <C> <C> <C> <C> <C>
OPERATING REVENUES
Electric $ 2,459,970 $ -- $ -- $ 1,391,429 $ 1,068,541
Gas 816,245 (27,699) -- 810,573 --
Other services 468,682 (286,600) -- 33,521 8,044
----------- ----------- ----------- ----------- -----------
$ 3,744,897 (314,298) -- 2,235,523 1,076,585
----------- ----------- ----------- ----------- -----------
OPERATING EXPENSES
Electric fuel and purchased power 952,348 -- -- 645,594 306,753
Gas purchased 754,990 (27,268) -- 754,990 --
Other services' cost of sales 374,918 (26,653) -- 24,805 --
Purchased electric capacity 216,444 -- -- 42,815 173,628
Special charges 105,648 -- -- 10,504 12,301
Operation and maintenance 634,966 (265,588) 1,732 271,693 253,970
Depreciation and amortization 271,348 7,073 -- 128,927 113,714
Taxes other than income taxes 88,646 -- 271 41,934 44,288
----------- ----------- ----------- ----------- -----------
3,399,308 (312,436) 2,003 1,921,262 904,655
----------- ----------- ----------- ----------- -----------
OPERATING INCOME 345,589 (1,862) (2,003) 314,262 171,931
----------- ----------- ----------- ----------- -----------
OTHER INCOME
Allowance for equity
funds used during construction 2,461 -- -- 1,677 783
Other income 68,421 (67,851) 513 4,441 7,929
Minority interest inc. or exp. -- (1,755) -- -- --
Equity in consol subs 0 (117,506) 129,209 -- --
----------- ----------- ----------- ----------- -----------
70,881 (187,113) 129,722 6,118 8,712
----------- ----------- ----------- ----------- -----------
INTEREST EXPENSE
Interest charges 182,821 -- 22,557 78,754 60,562
Allowance for borrowed funds used during
construction and capitalized interest (5,639) -- -- (1,562) (809)
----------- ----------- ----------- ----------- -----------
177,183 -- 22,557 77,193 59,753
----------- ----------- ----------- ----------- -----------
PREFERRED STOCK DIVIDEND
REQUIREMENTS OF SUBSIDIARIES 19,894 6,572 -- 5,687 7,634
----------- ----------- ----------- ----------- -----------
INCOME BEFORE INCOME TAXES AND
EXTRAORDINARY ITEM 219,394 (195,547) 105,162 237,500 113,256
INCOME TAXES, EXCLUDING INCOME TAXES
APPLICABLE TO EXTRAORDINARY ITEM 105,816 (25,588) (8,416) 95,321 49,326
----------- ----------- ----------- ----------- -----------
INCOME BEFORE EXTRAORDINARY ITEM 113,578 (169,959) 113,578 142,179 63,930
EXTRAORDINARY ITEM (311,718) 311,718 (311,718) (253,622) (58,095)
----------- ----------- ----------- ----------- -----------
NET INCOME (LOSS) (198,140) 141,759 (198,140) (111,443) 5,835
----------- ----------- ----------- ----------- -----------
DIVIDENDS ON PREFERRED STOCK -- (6,572) 4,440 2,132
----------- ----------- ----------- ----------- -----------
EARNINGS APPLICABLE TO COMMON STOCK (198,140) 148,331 (198,140) (115,883) 3,703
=========== =========== =========== =========== ===========
EARNINGS (LOSS) APPLICABLE TO:
Common stock
Income before extraordinary item $ 106,639
Extraordinary item, net of income taxes (295,161)
-----------
$ (188,522)
Class A common stock
Income before extraordinary item $ 6,939
Extraordinary item, net of income taxes (16,557)
===========
$ (9,618)
===========
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
F-1A Page 1 of 3
<PAGE> 35
Conectiv and Subsidiaries
Consolidating Statement of Income
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
DCI* CES*
Consolidated Consolidated ASP* DSC*
------------ ------------ ------------ -------------
<S> <C> <C> <C> <C>
OPERATING REVENUES
Electric $ -
Gas -
Other services -
------------ ------------ ------------ -------------
------------ ------------ ------------ -------------
OPERATING EXPENSES
Electric fuel and purchased power -
Gas purchased -
Other services' cost of sales -
Purchased electric capacity -
Special charges -
Operation and maintenance (1,902)
Depreciation and amortization 394
Taxes other than income taxes 95
------------ ------------ ------------ -------------
(1,412)
------------ ------------ ------------ -------------
OPERATING INCOME 1,412
------------ ------------ ------------ -------------
OTHER INCOME
Allowance for equity
funds used during construction -
Other income 130
Minority interest inc. or exp. -
Equity in consol subs -
------------ ------------ ------------ -------------
130
------------ ------------ ------------ -------------
INTEREST EXPENSE
Interest charges 260
Allowance for borrowed funds used during
construction and capitalized interest -
------------ ------------ ------------ -------------
260
------------ ------------ ------------ -------------
PREFERRED STOCK DIVIDEND
REQUIREMENTS OF SUBSIDIARIES -
------------ ------------ ------------ -------------
INCOME BEFORE INCOME TAXES AND
EXTRAORDINARY ITEM 1,283
INCOME TAXES, EXCLUDING INCOME TAXES
APPLICABLE TO EXTRAORDINARY ITEM 484
------------ ------------ ------------ -------------
INCOME BEFORE EXTRAORDINARY ITEM 798
EXTRAORDINARY ITEM -
------------ ------------ ------------ -------------
NET INCOME (LOSS) 798
------------ ------------ ------------ -------------
DIVIDENDS ON PREFERRED STOCK
------------ ------------ ------------ -------------
EARNINGS APPLICABLE TO COMMON STOCK 798
============ ============ ============ =============
</TABLE>
EARNINGS (LOSS) APPLICABLE TO:
Common stock
Income before extraordinary item
Extraordinary item, net of income taxes
Class A common stock
Income before extraordinary item
Extraordinary item, net of income taxes
<TABLE>
<CAPTION>
CSI*
Consolidated CCI*
------------ ----------
<S> <C> <C>
OPERATING REVENUES
Electric
Gas
Other services
------------ ----------
------------ ----------
OPERATING EXPENSES
Electric fuel and purchased power
Gas purchased
Other services' cost of sales
Purchased electric capacity
Special charges
Operation and maintenance
Depreciation and amortization
Taxes other than income taxes
------------ ----------
------------ ----------
OPERATING INCOME
------------ ----------
OTHER INCOME
Allowance for equity
funds used during construction
Other income
Minority interest inc. or exp.
Equity in consol subs
------------ ----------
------------ ----------
INTEREST EXPENSE
Interest charges
Allowance for borrowed funds used during
construction and capitalized interest
------------ ----------
------------ ----------
PREFERRED STOCK DIVIDEND
REQUIREMENTS OF SUBSIDIARIES
------------ ----------
INCOME BEFORE INCOME TAXES AND
EXTRAORDINARY ITEM
INCOME TAXES, EXCLUDING INCOME TAXES
APPLICABLE TO EXTRAORDINARY ITEM
------------ ----------
INCOME BEFORE EXTRAORDINARY ITEM
EXTRAORDINARY ITEM
------------ ----------
NET INCOME (LOSS)
------------ ----------
DIVIDENDS ON PREFERRED STOCK
------------ ----------
EARNINGS APPLICABLE TO COMMON STOCK
============ ==========
</TABLE>
EARNINGS (LOSS) APPLICABLE TO:
Common stock
Income before extraordinary item
Extraordinary item, net of income taxes
Class A common stock
Income before extraordinary item
Extraordinary item, net of income taxes
* CONFIDENTIAL TREATMENT REQUESTED
F-1A Page 2 of 3
<PAGE> 36
Conectiv and Subsidiaries
Consolidating Statement of Income
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Solutions* AGI* Conectiv*
Consolidated CRP* Consolidated Energy
------------ --------- ------------ --------
<S> <C> <C> <C> <C>
OPERATING REVENUES
Electric $ -
Gas -
Other services 253,145
------------ --------- ------------ --------
253,145
------------ --------- ------------ --------
OPERATING EXPENSES
Electric fuel and purchased power -
Gas purchased -
Other services' cost of sales -
Purchased electric capacity -
Special charges -
Operation and maintenance 241,960
Depreciation and amortization 7,194
Taxes other than income taxes 202
------------ --------- ------------ --------
249,356
------------ --------- ------------ --------
OPERATING INCOME 3,789
------------ --------- ------------ --------
OTHER INCOME
Allowance for equity
funds used during construction -
Other income 213
Minority interest inc. or exp. -
Equity in consol subs -
------------ --------- ------------ --------
213
------------ --------- ------------ --------
INTEREST EXPENSE
Interest charges 4,710
Allowance for borrowed funds used during
construction and capitalized interest (709)
------------ --------- ------------ --------
4,001
------------ --------- ------------ --------
PREFERRED STOCK DIVIDEND
REQUIREMENTS OF SUBSIDIARIES -
------------ --------- ------------ --------
INCOME BEFORE INCOME TAXES AND
EXTRAORDINARY ITEM 0
INCOME TAXES, EXCLUDING INCOME TAXES
APPLICABLE TO EXTRAORDINARY ITEM 105
------------ --------- ------------ --------
INCOME BEFORE EXTRAORDINARY ITEM (105)
EXTRAORDINARY ITEM -
------------ --------- ------------ --------
NET INCOME (LOSS) (105)
------------ --------- ------------ --------
DIVIDENDS ON PREFERRED STOCK
------------ --------- ------------ --------
EARNINGS APPLICABLE TO COMMON STOCK (105)
============ ========= ============ ========
</TABLE>
EARNINGS (LOSS) APPLICABLE TO:
Common stock
Income before extraordinary item
Extraordinary item, net of income taxes
Class A common stock
Income before extraordinary item
Extraordinary item, net of income taxes
* CONFIDENTIAL TREATMENT REQUESTED
F-1A Page 3 of 3
<PAGE> 37
Delmarva Power and Light and Subsidiaries
Consolidating Statement of Income
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations,
Total DPL Reclasses & DPL DPL
Consolidated Consol. Entries Parent Financing
------------ --------------- ---------- ---------
<S> <C> <C> <C> <C>
OPERATING REVENUES
Electric 1,391,429 -- 1,391,429 --
Gas 810,573 -- 810,573 --
Other services 33,521 -- 33,521 --
---------- ---------- ---------- ----------
2,235,523 -- 2,235,523 --
---------- ---------- ---------- ----------
OPERATING EXPENSES
Electric fuel and purchased power 645,594 -- 645,594 --
Gas purchased 754,990 -- 754,990 --
Other services' cost of sales 24,805 -- 24,805 --
Purchased electric capacity 42,815 -- 42,815 --
Special charges 10,504 -- 10,504 --
Operation and maintenance 271,693 -- 271,693 --
Depreciation and amortization 128,927 -- 128,927 --
Taxes other than income taxes 41,934 -- 41,934 --
---------- ---------- ---------- ----------
1,921,262 -- 1,921,262 --
---------- ---------- ---------- ----------
OPERATING INCOME 314,261 -- 314,261 --
---------- ---------- ---------- ----------
OTHER INCOME
Allowance for equity
funds used during construction 1,677 -- 1,677 --
Other income 4,441 (5,863) 4,617 5,688
Minority interest inc. or exp -- -- -- --
Equity in consol subs -- -- -- --
---------- ---------- ---------- ----------
6,118 (5,863) 6,294 5,688
---------- ---------- ---------- ----------
INTEREST EXPENSE
Interest charges 78,754 (5,863) 84,618 --
Allowance for borrowed funds used during
construction and capitalized interest (1,562) -- (1,562) --
---------- ---------- ---------- ----------
77,192 (5,863) 83,055 --
---------- ---------- ---------- ----------
PREFERRED STOCK DIVIDEND
REQUIREMENTS OF SUBSIDIARIES 5,687 -- -- 5,687
---------- ---------- ---------- ----------
INCOME BEFORE INCOME TAXES AND
EXTRAORDINARY ITEM 237,500 -- 237,500 0
INCOME TAXES, EXCLUDING INCOME TAXES
APPLICABLE TO EXTRAORDINARY ITEM 95,321 -- 95,321 --
---------- ---------- ---------- ----------
INCOME BEFORE EXTRAORDINARY ITEM 142,179 -- 142,179 0
EXTRAORDINARY ITEM (253,622) -- (253,622) --
---------- ---------- ---------- ----------
NET INCOME (LOSS) (111,443) -- (111,443) 0
---------- ---------- ---------- ----------
DIVIDENDS ON PREFERRED STOCK 4,440 -- 4,440 --
---------- ---------- ---------- ----------
EARNINGS APPLICABLE TO COMMON STOCK (115,883) -- (115,883) 0
========== ========== ========== ==========
</TABLE>
EARNINGS (LOSS) APPLICABLE TO:
Common stock
Income before extraordinary item
Extraordinary item, net of income taxes
Class A common stock
Income before extraordinary item
Extraordinary item, net of income taxes
F-1B
<PAGE> 38
Atlantic City Electric Company and Subsidiaries
Consolidating Statement of Income
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations,
Total ACE Reclasses & ACE ACE ACE
Consolidated Consol. Entries Parent Capital I Capital II
------------ -------------- --------- ---------- ----------
<S> <C> <C> <C> <C> <C>
OPERATING REVENUES
Electric 1,068,541 -- 1,068,541 -- --
Gas -- -- -- -- --
Other services 8,044 -- 8,044 -- --
---------- ---------- ---------- ---------- ----------
1,076,585 -- 1,076,585 -- --
---------- ---------- ---------- ---------- ----------
OPERATING EXPENSES
Electric fuel and purchased power 306,753 -- 306,753 -- --
Gas purchased -- -- -- -- --
Other services' cost of sales -- -- -- -- --
Purchased electric capacity 173,628 -- 173,628 -- --
Special charges 12,301 -- 12,301 -- --
Operation and maintenance 253,970 -- 253,970 -- --
Depreciation and amortization 113,714 -- 113,714 -- --
Taxes other than income taxes 44,288 -- 44,288 -- --
---------- ---------- ---------- ---------- ----------
904,654 -- 904,654 -- --
---------- ---------- ---------- ---------- ----------
OPERATING INCOME 171,931 -- 171,931 -- --
---------- ---------- ---------- ---------- ----------
OTHER INCOME
Allowance for equity
funds used during construction 783 -- 783 -- --
Other income 7,929 (7,854) 8,149 5,775 1,859
Minority interest inc. or exp -- -- -- -- --
Equity in consol subs -- -- -- -- --
---------- ---------- ---------- ---------- ----------
8,712 (7,854) 8,933 5,775 1,859
---------- ---------- ---------- ---------- ----------
INTEREST EXPENSE
Interest charges 60,562 (7,854) 68,417 -- --
Allowance for borrowed funds used during
construction and capitalized interest (809) -- (809) -- --
---------- ---------- ---------- ---------- ----------
59,753 (7,854) 67,608 -- --
---------- ---------- ---------- ---------- ----------
PREFERRED STOCK DIVIDEND
REQUIREMENTS OF SUBSIDIARIES 7,634 -- -- 5,775 1,859
---------- ---------- ---------- ---------- ----------
INCOME BEFORE INCOME TAXES AND
EXTRAORDINARY ITEM 113,255 -- 113,255 -- 0
INCOME TAXES, EXCLUDING INCOME TAXES
APPLICABLE TO EXTRAORDINARY ITEM 49,326 -- 49,326 -- --
---------- ---------- ---------- ---------- ----------
INCOME BEFORE EXTRAORDINARY ITEM 63,930 -- 63,930 -- 0
EXTRAORDINARY ITEM (58,095) -- (58,095) -- --
---------- ---------- ---------- ---------- ----------
NET INCOME (LOSS) 5,835 -- 5,835 -- 0
---------- ---------- ---------- ---------- ----------
DIVIDENDS ON PREFERRED STOCK 2,132 -- 2,132 -- --
---------- ---------- ---------- ---------- ----------
EARNINGS APPLICABLE TO COMMON STOCK 3,703 -- 3,703 -- 0
========== ========== ========== ========== ==========
</TABLE>
EARNINGS (LOSS) APPLICABLE TO:
Common stock
Income before extraordinary item
Extraordinary item, net of income taxes
Class A common stock
Income before extraordinary item
Extraordinary item, net of income taxes
F-1C
<PAGE> 39
Delmarva Capital Investments, Inc. and Subsidiaries*
Consolidating Statement of Income
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations
Total DCI Reclasses & DCI
Consolidated Consol. Entries Parent DCI I
------------ --------------- ----------- ------------
<S> <C> <C> <C> <C>
OPERATING REVENUES
Electric
Gas
Other services
------------ ------------ ------------ -------------
OPERATING EXPENSES
Electric fuel and purchased power
Gas purchased
Other services' cost of sales
Purchased electric capacity
Special charges
Operation and maintenance
Depreciation and amortization
Taxes other than income taxes
------------ ------------ ------------ -------------
------------ ------------ ------------ -------------
OPERATING INCOME
------------ ------------ ------------ -------------
OTHER INCOME
Allowance for equity
funds used during construction
Other income
Minority interest inc. or exp.
Equity in consol subs
------------ ------------ ------------ -------------
------------ ------------ ------------ -------------
INTEREST EXPENSE
Interest charges
Allowance for borrowed funds used during
construction and capitalized interest
------------ ------------ ------------ -------------
PREFERRED STOCK DIVIDEND
REQUIREMENTS OF SUBSIDIARIES
INCOME BEFORE INCOME TAXES AND
EXTRAORDINARY ITEM
INCOME TAXES, EXCLUDING INCOME TAXES
APPLICABLE TO EXTRAORDINARY ITEM
------------ ------------ ------------ -------------
INCOME BEFORE EXTRAORDINARY ITEM
EXTRAORDINARY ITEM
------------ ------------ ------------ -------------
NET INCOME (LOSS)
------------ ------------ ------------ -------------
DIVIDENDS ON PREFERRED STOCK
------------ ------------ ------------ -------------
EARNINGS APPLICABLE TO COMMON STOCK
============ ============ ============ =============
EARNINGS (LOSS) APPLICABLE TO:
Common stock
Income before extraordinary item
Extraordinary item, net of income taxes
Class A common stock
Income before extraordinary item
Extraordinary item, net of income taxes
</TABLE>
<TABLE>
<CAPTION>
DCI II Burney
------------ ----------
<S> <C> <C>
OPERATING REVENUES
Electric
Gas
Other services
------------ ----------
OPERATING EXPENSES
Electric fuel and purchased power
Gas purchased
Other services' cost of sales
Purchased electric capacity
Special charges
Operation and maintenance
Depreciation and amortization
Taxes other than income taxes
------------ ----------
------------ ----------
OPERATING INCOME
------------ ----------
OTHER INCOME
Allowance for equity
funds used during construction
Other income
Minority interest inc. or exp.
Equity in consol subs
------------ ----------
------------ ----------
INTEREST EXPENSE
Interest charges
Allowance for borrowed funds used during
construction and capitalized interest
------------ ----------
PREFERRED STOCK DIVIDEND
REQUIREMENTS OF SUBSIDIARIES
INCOME BEFORE INCOME TAXES AND
EXTRAORDINARY ITEM
INCOME TAXES, EXCLUDING INCOME TAXES
APPLICABLE TO EXTRAORDINARY ITEM
------------ ----------
INCOME BEFORE EXTRAORDINARY ITEM
EXTRAORDINARY ITEM
------------ ----------
NET INCOME (LOSS)
------------ ----------
DIVIDENDS ON PREFERRED STOCK
------------ ----------
EARNINGS APPLICABLE TO COMMON STOCK
============ ==========
EARNINGS (LOSS) APPLICABLE TO:
Common stock
Income before extraordinary item
Extraordinary item, net of income taxes
Class A common stock
Income before extraordinary item
Extraordinary item, net of income taxes
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
F-1D
<PAGE> 40
Conectiv Energy Supply, Inc. and Subsidiaries*
Consolidating Statement of Income
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations, Conectiv
Total CES Reclasses & Energy
Consolidated Consol. Entries Parent COSC
------------- --------------- ---------- ----------
<S> <C> <C> <C> <C>
OPERATING REVENUES
Electric
Gas
Other services
------------- --------------- ---------- ----------
------------- --------------- ---------- ----------
OPERATING EXPENSES
Electric fuel and purchased power
Gas purchased
Other services' cost of sales
Purchased electric capacity
Special charges
Operation and maintenance
Depreciation and amortization
Taxes other than income taxes
------------- --------------- ---------- ----------
------------- --------------- ---------- ----------
OPERATING INCOME
------------- --------------- ---------- ----------
OTHER INCOME
Allowance for equity
funds used during construction
Other income
Minority interest inc. or exp.
Equity in consol subs
------------- --------------- ---------- ----------
------------- --------------- ---------- ----------
INTEREST EXPENSE
Interest charges
Allowance for borrowed funds used during
construction and capitalized interest
------------- --------------- ---------- ----------
------------- --------------- ---------- ----------
PREFERRED STOCK DIVIDEND
REQUIREMENTS OF SUBSIDIARIES
------------- --------------- ---------- ----------
INCOME BEFORE INCOME TAXES AND
EXTRAORDINARY ITEM
INCOME TAXES, EXCLUDING INCOME TAXES
APPLICABLE TO EXTRAORDINARY ITEM
------------- --------------- ---------- ----------
INCOME BEFORE EXTRAORDINARY ITEM
EXTRAORDINARY ITEM
------------- --------------- ---------- ----------
NET INCOME (LOSS)
------------- --------------- ---------- ----------
DIVIDENDS ON PREFERRED STOCK
------------- --------------- ---------- ----------
EARNINGS APPLICABLE TO COMMON STOCK
============= =============== ========== ==========
EARNINGS (LOSS) APPLICABLE TO:
Common stock
Income before extraordinary item
Extraordinary item, net of income taxes
Class A common stock
Income before extraordinary item
Extraordinary item, net of income taxes
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
F-1E
<PAGE> 41
Conectiv Services, Inc. and Subsidiaries
Consolidating Statement of Income
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations,
Total CSI Reclasses &
Consolidated Consol. Entries CSI
------------ --------------- ---------
<S> <C> <C> <C>
OPERATING REVENUES
Electric
Gas
Other services
------------ --------------- ---------
------------ --------------- ---------
OPERATING EXPENSES
Electric fuel and purchased power
Gas purchased
Other services' cost of sales
Purchased electric capacity
Special charges
Operation and maintenance
Depreciation and amortization
Taxes other than income taxes
------------ --------------- ---------
------------ --------------- ---------
OPERATING INCOME
------------ --------------- ---------
OTHER INCOME
Allowance for equity
funds used during construction
Other income
Minority interest inc. or exp.
Equity in consol subs
------------ --------------- ---------
------------ --------------- ---------
INTEREST EXPENSE
Interest charges
Allowance for borrowed funds used during
construction and capitalized interest
------------ --------------- ---------
------------ --------------- ---------
PREFERRED STOCK DIVIDEND
REQUIREMENTS OF SUBSIDIARIES
------------ --------------- ---------
INCOME BEFORE INCOME TAXES AND
EXTRAORDINARY ITEM
INCOME TAXES, EXCLUDING INCOME TAXES
APPLICABLE TO EXTRAORDINARY ITEM
------------ --------------- ---------
INCOME BEFORE EXTRAORDINARY ITEM
EXTRAORDINARY ITEM
------------ --------------- ---------
NET INCOME (LOSS)
------------ --------------- ---------
DIVIDENDS ON PREFERRED STOCK
------------ --------------- ---------
EARNINGS APPLICABLE TO COMMON STOCK
============ =============== =========
</TABLE>
EARNINGS (LOSS) APPLICABLE TO:
Common stock
Income before extraordinary item
Extraordinary item, net of income taxes
Class A common stock
Income before extraordinary item
Extraordinary item, net of income taxes
<TABLE>
<CAPTION>
CTS
Plumbing Consolidated ENERVAL
-------- ------------ -------
<S> <C> <C> <C>
OPERATING REVENUES
Electric
Gas
Other services
-------- ------------ -------
-------- ------------ -------
OPERATING EXPENSES
Electric fuel and purchased power
Gas purchased
Other services' cost of sales
Purchased electric capacity
Special charges
Operation and maintenance
Depreciation and amortization
Taxes other than income taxes
-------- ------------ -------
-------- ------------ -------
OPERATING INCOME
-------- ------------ -------
OTHER INCOME
Allowance for equity
funds used during construction
Other income
Minority interest inc. or exp.
Equity in consol subs
-------- ------------ -------
-------- ------------ -------
INTEREST EXPENSE
Interest charges
Allowance for borrowed funds used during
construction and capitalized interest
-------- ------------ -------
-------- ------------ -------
PREFERRED STOCK DIVIDEND
REQUIREMENTS OF SUBSIDIARIES
-------- ------------ -------
INCOME BEFORE INCOME TAXES AND
EXTRAORDINARY ITEM
INCOME TAXES, EXCLUDING INCOME TAXES
APPLICABLE TO EXTRAORDINARY ITEM
-------- ------------ -------
INCOME BEFORE EXTRAORDINARY ITEM
EXTRAORDINARY ITEM
-------- ------------ -------
NET INCOME (LOSS)
-------- ------------ -------
DIVIDENDS ON PREFERRED STOCK
-------- ------------ -------
EARNINGS APPLICABLE TO COMMON STOCK
======== ============ =======
</TABLE>
EARNINGS (LOSS) APPLICABLE TO:
Common stock
Income before extraordinary item
Extraordinary item, net of income taxes
Class A common stock
Income before extraordinary item
Extraordinary item, net of income taxes
* CONFIDENTIAL TREATMENT REQUESTED
F-1F
<PAGE> 42
Conectiv Thermal Systems, Inc. and Subsidiaries
Consolidating Statement of Income
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations,
Total CTS Reclasses & CTS
Consolidated Consol. Entries Parent
------------ --------------- -----------
<S> <C> <C> <C>
OPERATING REVENUES
Electric
Gas
Other services
------------ --------------- -----------
------------ --------------- -----------
OPERATING EXPENSES
Electric fuel and purchased power
Gas purchased
Other services' cost of sales
Purchased electric capacity
Special charges
Operation and maintenance
Depreciation and amortization
Taxes other than income taxes
------------ --------------- -----------
------------ --------------- -----------
OPERATING INCOME
------------ --------------- -----------
OTHER INCOME
Allowance for equity
funds used during construction
Other income
Minority interest inc. or exp.
Equity in consol subs
------------ --------------- -----------
------------ --------------- -----------
INTEREST EXPENSE
Interest charges
Allowance for borrowed funds used during
construction and capitalized interest
------------ --------------- -----------
------------ --------------- -----------
PREFERRED STOCK DIVIDEND
REQUIREMENTS OF SUBSIDIARIES
------------ --------------- -----------
INCOME BEFORE INCOME TAXES AND
EXTRAORDINARY ITEM
INCOME TAXES, EXCLUDING INCOME TAXES
APPLICABLE TO EXTRAORDINARY ITEM
------------ --------------- -----------
INCOME BEFORE EXTRAORDINARY ITEM
EXTRAORDINARY ITEM
------------ --------------- -----------
NET INCOME (LOSS)
------------ --------------- -----------
DIVIDENDS ON PREFERRED STOCK
------------ --------------- -----------
EARNINGS APPLICABLE TO COMMON STOCK
============ =============== ===========
</TABLE>
EARNINGS (LOSS) APPLICABLE TO:
Common stock
Income before extraordinary item
Extraordinary item, net of income taxes
Class A common stock
Income before extraordinary item
Extraordinary item, net of income taxes
<TABLE>
<CAPTION>
ATS
Operations AJTS TELP
---------- ---------- ---------
<S> <C> <C> <C>
OPERATING REVENUES
Electric
Gas
Other services
---------- ---------- ---------
---------- ---------- ---------
OPERATING EXPENSES
Electric fuel and purchased power
Gas purchased
Other services' cost of sales
Purchased electric capacity
Special charges
Operation and maintenance
Depreciation and amortization
Taxes other than income taxes
---------- ---------- ---------
---------- ---------- ---------
OPERATING INCOME
---------- ---------- ---------
OTHER INCOME
Allowance for equity
funds used during construction
Other income
Minority interest inc. or exp.
Equity in consol subs
---------- ---------- ---------
---------- ---------- ---------
INTEREST EXPENSE
Interest charges
Allowance for borrowed funds used during
construction and capitalized interest
---------- ---------- ---------
---------- ---------- ---------
PREFERRED STOCK DIVIDEND
REQUIREMENTS OF SUBSIDIARIES
---------- ---------- ---------
INCOME BEFORE INCOME TAXES AND
EXTRAORDINARY ITEM
INCOME TAXES, EXCLUDING INCOME TAXES
APPLICABLE TO EXTRAORDINARY ITEM
---------- ---------- ---------
INCOME BEFORE EXTRAORDINARY ITEM
EXTRAORDINARY ITEM
---------- ---------- ---------
NET INCOME (LOSS)
---------- ---------- ---------
DIVIDENDS ON PREFERRED STOCK
---------- ---------- ---------
EARNINGS APPLICABLE TO COMMON STOCK
========== ========== =========
</TABLE>
EARNINGS (LOSS) APPLICABLE TO:
Common stock
Income before extraordinary item
Extraordinary item, net of income taxes
Class A common stock
Income before extraordinary item
Extraordinary item, net of income taxes
* CONFIDENTIAL TREATMENT REQUESTED
F-1G
<PAGE> 43
Conectiv Solutions, Inc. and Subsidiaries
Consolidating Statement of Income
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations,
Total Solutions Reclasses & Solutions ATE
Consolidated Consol. Entries Parent Consolidated
------------ --------------- --------- -------------
<S> <C> <C> <C> <C>
OPERATING REVENUES
Electric
Gas
Other services
------------ --------------- --------- -------------
------------ --------------- --------- -------------
OPERATING EXPENSES
Electric fuel and purchased power
Gas purchased
Other services' cost of sales
Purchased electric capacity
Special charges
Operation and maintenance
Depreciation and amortization
Taxes other than income taxes
------------ --------------- --------- -------------
------------ --------------- --------- -------------
OPERATING INCOME
------------ --------------- --------- -------------
OTHER INCOME
Allowance for equity
funds used during construction
Other income
Minority interest inc. or exp.
Equity in consol subs
------------ --------------- --------- -------------
------------ --------------- --------- -------------
INTEREST EXPENSE
Interest charges
Allowance for borrowed funds used during
construction and capitalized interest
------------ --------------- --------- -------------
------------ --------------- --------- -------------
PREFERRED STOCK DIVIDEND
REQUIREMENTS OF SUBSIDIARIES
------------ --------------- --------- -------------
INCOME BEFORE INCOME TAXES AND
EXTRAORDINARY ITEM
INCOME TAXES, EXCLUDING INCOME TAXES
APPLICABLE TO EXTRAORDINARY ITEM
------------ --------------- --------- -------------
INCOME BEFORE EXTRAORDINARY ITEM
EXTRAORDINARY ITEM
------------ --------------- --------- -------------
NET INCOME (LOSS)
------------ --------------- --------- -------------
DIVIDENDS ON PREFERRED STOCK
------------ --------------- --------- -------------
EARNINGS APPLICABLE TO COMMON STOCK
============ =============== ========= =============
</TABLE>
EARNINGS (LOSS) APPLICABLE TO:
Common stock
Income before extraordinary item
Extraordinary item, net of income taxes
Class A common stock
Income before extraordinary item
Extraordinary item, net of income taxes
<TABLE>
<CAPTION>
King St. Elimination
ATE Assurance ATE/King St.
---------- --------- ------------
<S> <C> <C> <C>
OPERATING REVENUES
Electric
Gas
Other services
---------- --------- ------------
---------- --------- ------------
OPERATING EXPENSES
Electric fuel and purchased power
Gas purchased
Other services' cost of sales
Purchased electric capacity
Special charges
Operation and maintenance
Depreciation and amortization
Taxes other than income taxes
---------- --------- ------------
---------- --------- ------------
OPERATING INCOME
---------- --------- ------------
OTHER INCOME
Allowance for equity
funds used during construction
Other income
Minority interest inc. or exp.
Equity in consol subs
---------- --------- ------------
---------- --------- ------------
INTEREST EXPENSE
Interest charges
Allowance for borrowed funds used during
construction and capitalized interest
---------- --------- ------------
---------- --------- ------------
PREFERRED STOCK DIVIDEND
REQUIREMENTS OF SUBSIDIARIES
---------- --------- ------------
INCOME BEFORE INCOME TAXES AND
EXTRAORDINARY ITEM
INCOME TAXES, EXCLUDING INCOME TAXES
APPLICABLE TO EXTRAORDINARY ITEM
---------- --------- ------------
INCOME BEFORE EXTRAORDINARY ITEM
EXTRAORDINARY ITEM
---------- --------- ------------
NET INCOME (LOSS)
---------- --------- ------------
DIVIDENDS ON PREFERRED STOCK
---------- --------- ------------
EARNINGS APPLICABLE TO COMMON STOCK
========== ========= ============
</TABLE>
EARNINGS (LOSS) APPLICABLE TO:
Common stock
Income before extraordinary item
Extraordinary item, net of income taxes
Class A common stock
Income before extraordinary item
Extraordinary item, net of income taxes
* CONFIDENTIAL TREATMENT REQUESTED
F-1H
<PAGE> 44
Atlantic Generation, Inc. and Subsidiaries
Consolidating Statement of Income
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations,
Total AGI Reclasses & AGI
Consolidated Consol. Entries Parent Vin LTD
------------ --------------- -------- -------
<S> <C> <C> <C> <C>
OPERATING REVENUES
Electric
Gas
Other services
------------ --------------- -------- -------
------------ --------------- -------- -------
OPERATING EXPENSES
Electric fuel and purchased power
Gas purchased
Other services' cost of sales
Purchased electric capacity
Special charges
Operation and maintenance
Depreciation and amortization
Taxes other than income taxes
------------ --------------- -------- -------
------------ --------------- -------- -------
OPERATING INCOME
------------ --------------- -------- -------
OTHER INCOME
Allowance for equity
funds used during construction
Other income
Minority interest inc. or exp.
Equity in consol subs
------------ --------------- -------- -------
------------ --------------- -------- -------
INTEREST EXPENSE
Interest charges
Allowance for borrowed funds used during
construction and capitalized interest
------------ --------------- -------- -------
------------ --------------- -------- -------
PREFERRED STOCK DIVIDEND
REQUIREMENTS OF SUBSIDIARIES
------------ --------------- -------- -------
INCOME BEFORE INCOME TAXES AND
EXTRAORDINARY ITEM
INCOME TAXES, EXCLUDING INCOME TAXES
APPLICABLE TO EXTRAORDINARY ITEM
------------ --------------- -------- -------
INCOME BEFORE EXTRAORDINARY ITEM
EXTRAORDINARY ITEM
------------ --------------- -------- -------
NET INCOME (LOSS)
------------ --------------- -------- -------
DIVIDENDS ON PREFERRED STOCK
------------ --------------- -------- -------
EARNINGS APPLICABLE TO COMMON STOCK
============ =============== ======== =======
</TABLE>
EARNINGS (LOSS) APPLICABLE TO:
Common stock
Income before extraordinary item
Extraordinary item, net of income taxes
Class A common stock
Income before extraordinary item
Extraordinary item, net of income taxes
<TABLE>
<CAPTION>
Vin Gen Bing LTD Bing Gen Ped Gen
------- -------- -------- --------
<S> <C> <C> <C> <C>
OPERATING REVENUES
Electric
Gas
Other services
------- -------- -------- --------
------- -------- -------- --------
OPERATING EXPENSES
Electric fuel and purchased power
Gas purchased
Other services' cost of sales
Purchased electric capacity
Special charges
Operation and maintenance
Depreciation and amortization
Taxes other than income taxes
------- -------- -------- --------
------- -------- -------- --------
OPERATING INCOME
------- -------- -------- --------
OTHER INCOME
Allowance for equity
funds used during construction
Other income
Minority interest inc. or exp.
Equity in consol subs
------- -------- -------- --------
------- -------- -------- --------
INTEREST EXPENSE
Interest charges
Allowance for borrowed funds used during
construction and capitalized interest
------- -------- -------- --------
------- -------- -------- --------
PREFERRED STOCK DIVIDEND
REQUIREMENTS OF SUBSIDIARIES
------- -------- -------- --------
INCOME BEFORE INCOME TAXES AND
EXTRAORDINARY ITEM
INCOME TAXES, EXCLUDING INCOME TAXES
APPLICABLE TO EXTRAORDINARY ITEM
------- -------- -------- --------
INCOME BEFORE EXTRAORDINARY ITEM
EXTRAORDINARY ITEM
------- -------- -------- --------
NET INCOME (LOSS)
------- -------- -------- --------
DIVIDENDS ON PREFERRED STOCK
------- -------- -------- --------
EARNINGS APPLICABLE TO COMMON STOCK
======= ======== ======== ========
</TABLE>
EARNINGS (LOSS) APPLICABLE TO:
Common stock
Income before extraordinary item
Extraordinary item, net of income taxes
Class A common stock
Income before extraordinary item
Extraordinary item, net of income taxes
* CONFIDENTIAL TREATMENT REQUESTED
F-1I
<PAGE> 45
Conectiv and Subsidiaries
Consolidating Balance Sheet
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
ELIMINATIONS
TOTAL RECLASSES & CONECTIV DPL ACE
CONECTIV CONSOLIDATIONS PARENT CONSOLIDATED CONSOLIDATED
---------- -------------- ---------- ------------ ------------
<S> <C> <C> <C> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents 56,239 -- 3,960 648 7,924
Dividends receivable from subsidiaries -- (23,536) 23,536
Accounts receivable 556,027 (9,165) 600 315,169 137,379
Allowance for Doubtful Accounts (11,564) -- -- (6,479) (3,500)
Intercompany Loan Receivable (Money Pool) -- (280,245) 136,456 13,473 73,532
Inventories, at average cost
Fuel (coal, oil and gas) 65,360 -- -- 45,686 19,598
Materials and supplies 58,177 -- -- 31,855 8,890
Prepaid New Jersey sales and excise taxes (2,048) -- -- -- (2,048)
Deferred energy supply costs 8,612 -- -- 8,612 --
Other prepayments 20,295 -- -- 14,152 2,223
Taxes Receivable 15,584 (72,899) -- -- 88,483
Deferred income taxes, net 25,176 (1,842) 1,838 18,935 6,245
---------- ---------- ---------- ---------- ----------
791,857 (387,687) 166,390 442,050 338,726
---------- ---------- ---------- ---------- ----------
INVESTMENTS
Investment in leveraged leases 72,161 -- -- -- --
Funds held by trustee 173,247 -- -- 67,896 105,268
Investment in Consolidated Companies 205 (1,655,702) 1,647,529 103 103
Notes receivalbe from subsidiary companies -- (151,178) 151,178 --
Other investments 100,559 (2,383) 5,675 1,512 0
---------- ---------- ---------- ---------- ----------
346,172 (1,809,263) 1,804,382 69,510 105,371
---------- ---------- ---------- ---------- ----------
PROPERTY, PLANT AND EQUIPMENT
Electric generation 1,571,556 -- -- 1,314,657 256,899
Electric transmission and distribution 2,633,375 -- -- 1,398,574 1,224,644
Gas transmission and distribution 265,708 -- -- 265,708 --
Other electric and gas facilities 405,303 -- -- 202,953 128,388
Telecommunications, thermal systems, and other
property, plant, and equipment 238,229 (1) -- 5,469 5,772
---------- ---------- ---------- ---------- ----------
5,114,170 (1) -- 3,187,361 1,615,703
Less: Accumulated depreciation 2,097,529 -- -- 1,434,597 626,080
---------- ---------- ---------- ---------- ----------
Net plant in service 3,016,641 (1) -- 1,752,763 989,623
Construction work-in-progress 199,390 1 -- 64,747 46,025
Leased nuclear fuel, at amortized cost 55,983 25,592 30,391
Goodwill, net 369,468 275,792 -- 69,850 --
---------- ---------- ---------- ---------- ----------
3,641,482 275,792 -- 1,912,953 1,066,039
---------- ---------- ---------- ---------- ----------
DEFERRED CHARGES AND OTHER ASSETS
Recoverable stranded costs 1,030,049 -- -- 41,775 988,273
Deferred recoverable income taxes 93,853 -- -- 71,986 21,867
Unrecovered purchased power costs 28,923 -- -- -- 28,923
Unrecovered New Jersey state excise tax 22,567 -- -- -- 22,567
Deferred debt refinancing costs 21,113 -- -- 7,538 13,574
Deferred other postretirement benefit costs 32,479 -- -- -- 32,479
Prepaid employee benefits costs 35,005 (89,606) -- 129,962 --
Unamortized debt expense 28,045 -- 1,477 11,106 14,197
License fees 23,331 -- -- -- --
Other 41,450 460 297 17,904 19,818
---------- ---------- ---------- ---------- ----------
1,356,814 (89,146) 1,774 280,272 1,141,699
---------- ---------- ---------- ---------- ----------
TOTAL ASSETS 6,136,325 (2,010,304) 1,972,546 2,704,785 2,651,834
========== ========== ========== ========== ==========
</TABLE>
F-2A Page 1 0f 6
<PAGE> 46
Conectiv and Subsidiaries
Consolidating Balance Sheet
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
DCI * CES*
CONSOLIDATED CONSOLIDATED ASP*
------------ ------------ ------------
<S> <C> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents
Dividends receivable from subsidiaries
Accounts receivable
Allowance for Doubtful Accounts
Intercompany Loan Receivable (Money Pool)
Inventories, at average cost
Fuel (coal, oil and gas)
Materials and supplies
Prepaid New Jersey sales and excise taxes
Deferred energy supply costs
Other prepayments
Taxes Receivable
Deferred income taxes, net
---------------- ---------------- ----------------
---------------- ---------------- ----------------
INVESTMENTS
Investment in leveraged leases
Funds held by trustee
Investment in Consolidated Companies
Notes receivalbe from subsidiary companies
Other investments
---------------- ---------------- ----------------
---------------- ---------------- ----------------
PROPERTY, PLANT AND EQUIPMENT
Electric generation
Electric transmission and distribution
Gas transmission and distribution
Other electric and gas facilities
Telecommunications, thermal systems, and other
property, plant, and equipment
---------------- ---------------- ----------------
Less: Accumulated depreciation
---------------- ---------------- ----------------
Net plant in service
Construction work-in-progress
Leased nuclear fuel, at amortized cost
Goodwill, net
---------------- ---------------- ----------------
---------------- ---------------- ----------------
DEFERRED CHARGES AND OTHER ASSETS
Recoverable stranded costs
Deferred recoverable income taxes
Unrecovered purchased power costs
Unrecovered New Jersey state excise tax
Deferred debt refinancing costs
Deferred other postretirement benefit costs
Prepaid employee benefits costs
Unamortized debt expense
License fees
Other
---------------- ---------------- ----------------
---------------- ---------------- ----------------
TOTAL ASSETS
================ ================ ================
<CAPTION>
CSI *
DSC* Consolidated
------------ ------------
<S> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents -
Dividends receivable from subsidiaries
Accounts receivable 155
Allowance for Doubtful Accounts -
Intercompany Loan Receivable (Money Pool) 2,460
Inventories, at average cost
Fuel (coal, oil and gas) -
Materials and supplies -
Prepaid New Jersey sales and excise taxes
Deferred energy supply costs -
Other prepayments -
Taxes Receivable -
Deferred income taxes, net
---------------- ----------------
2,615
---------------- ----------------
INVESTMENTS
Investment in leveraged leases -
Funds held by trustee -
Investment in Consolidated Companies -
Notes receivalbe from subsidiary companies
Other investments 1,571
---------------- ----------------
1,571
---------------- ----------------
PROPERTY, PLANT AND EQUIPMENT
Electric generation -
Electric transmission and distribution -
Gas transmission and distribution -
Other electric and gas facilities -
Telecommunications, thermal systems, and other
property, plant, and equipment 15,479
---------------- ----------------
15,479
Less: Accumulated depreciation 5,128
---------------- ----------------
Net plant in service 10,350
Construction work-in-progress -
Leased nuclear fuel, at amortized cost -
Goodwill, net -
---------------- ----------------
10,350
---------------- ----------------
DEFERRED CHARGES AND OTHER ASSETS
Recoverable stranded costs -
Deferred recoverable income taxes -
Unrecovered purchased power costs -
Unrecovered New Jersey state excise tax -
Deferred debt refinancing costs -
Deferred other postretirement benefit costs -
Prepaid employee benefits costs -
Unamortized debt expense 32
License fees -
Other 43
---------------- ----------------
76
---------------- ----------------
TOTAL ASSETS 14,611
================ ================
</TABLE>
F-2A Page 2 of 6
<PAGE> 47
Conectiv and Subsidiaries
Consolidating Balance Sheet
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Solutions*
CCI* Consolidated CRP*
---------------- ---------------- ----------------
<S> <C> <C> <C>
ASSETS
Current Assets
Cash and cash equivalents 407
Dividends receivable from subsidiaries
Accounts receivable 39,694
Allowance for Doubtful Accounts -
Intercompany Loan Receivable (Money Pool) -
Inventories, at average cost
Fuel (coal, oil and gas) -
Materials and supplies -
Prepaid New Jersey sales and excise taxes
Deferred energy supply costs -
Other prepayments 1,193
Taxes Receivable -
Deferred income taxes, net
---------------- ---------------- ----------------
41,294
---------------- ---------------- ----------------
Investments
Investment in leveraged leases -
Funds held by trustee -
Investment in Consolidated Companies -
Notes receivalbe from subsidiary companies
Other investments -
---------------- ---------------- ----------------
-
---------------- ---------------- ----------------
Property, Plant and Equipment
Electric generation -
Electric transmission and distribution 10,157
Gas transmission and distribution -
Other electric and gas facilities 73,962
Telecommunications, thermal systems, and other
property, plant, and equipment -
---------------- ---------------- ----------------
84,119
Less: Accumulated depreciation 6,537
---------------- ---------------- ----------------
Net plant in service 77,582
Construction work-in-progress 8,286
Leased nuclear fuel, at amortized cost -
Goodwill, net -
---------------- ---------------- ----------------
85,867
---------------- ---------------- ----------------
Deferred Charges and Other Assets
Recoverable stranded costs -
Deferred recoverable income taxes -
Unrecovered purchased power costs -
Unrecovered New Jersey state excise tax -
Deferred debt refinancing costs -
Deferred other postretirement benefit costs -
Prepaid employee benefits costs (4,295)
Unamortized debt expense -
License fees -
Other (59)
---------------- ---------------- ----------------
(4,354)
---------------- ---------------- ----------------
Total Assets 122,807
================ ================ ================
<CAPTION>
AGI * Conectiv *
Consolidated Energy
---------------- ----------------
<S> <C> <C>
ASSETS
Current Assets
Cash and cash equivalents
Dividends receivable from subsidiaries
Accounts receivable
Allowance for Doubtful Accounts
Intercompany Loan Receivable (Money Pool)
Inventories, at average cost
Fuel (coal, oil and gas)
Materials and supplies
Prepaid New Jersey sales and excise taxes
Deferred energy supply costs
Other prepayments
Taxes Receivable
Deferred income taxes, net
---------------- ----------------
---------------- ----------------
Investments
Investment in leveraged leases
Funds held by trustee
Investment in Consolidated Companies
Notes receivalbe from subsidiary companies
Other investments
---------------- ----------------
---------------- ----------------
Property, Plant and Equipment
Electric generation
Electric transmission and distribution
Gas transmission and distribution
Other electric and gas facilities
Telecommunications, thermal systems, and other
property, plant, and equipment
---------------- ----------------
Less: Accumulated depreciation
---------------- ----------------
Net plant in service
Construction work-in-progress
Leased nuclear fuel, at amortized cost
Goodwill, net
---------------- ----------------
---------------- ----------------
Deferred Charges and Other Assets
Recoverable stranded costs
Deferred recoverable income taxes
Unrecovered purchased power costs
Unrecovered New Jersey state excise tax
Deferred debt refinancing costs
Deferred other postretirement benefit costs
Prepaid employee benefits costs
Unamortized debt expense
License fees
Other
---------------- ----------------
---------------- ----------------
Total Assets
================ ================
</TABLE>
F - 2A Page 3 of 6
<PAGE> 48
Conectiv and Subsidiaries
Consolidating Balance Sheet
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations
Total Reclasses & Conectiv
Conectiv Consolidations Parent
---------------- ---------------- -----------------
<S> <C> <C> <C>
CURRENT LIABILITIES
Short-term debt 579,688 - 549,685
Long-term debt due within one year 48,937 1,317 -
Variable rate demand bonds 158,430 - -
Intercompany Loan Payable (Money Pool) - (410,073) -
Accounts payable 307,764 (21,223) -
Taxes accrued - (72,899) 8,231
Interest accrued 41,137 (1,838) -
Dividends payable 27,545 (24,517) 25,983
Deferred energy supply costs 46,375 42,647 -
Current capital lease obligation 28,715 - -
Above-market purchased energy contracts - -
and other electric restructuring liabilities 41,101 - -
Other 89,215 25 474
---------------- ---------------- -----------------
1,368,907 (486,562) 584,373
---------------- ---------------- -----------------
DEFERRED CREDITS AND OTHER LIABILITIES
Other postretirement benefits obligation 96,388 31,083 -
Deferred income taxes, net 730,988 (82,457) -
Deferred investment tax credits 74,431 - -
Regulatory liability for New Jersey income tax benefit 49,262 - -
Above-market purchased energy contracts
and other electric restructuring liabilities 119,704 (42,646) -
Deferred gain on termination of purchased energy contract 70,849 70,849 -
Minority Interest Liability - (8,174) -
Long-term capital lease obligation 30,395 - -
Other 47,447 -
---------------- ---------------- -----------------
1,219,464 (31,345) -
---------------- ---------------- -----------------
CAPITALIZATION
Common stock: $0.01 per share par value
150,000,000 shares authorized; shares outstanding - -
86,173,169 in 1999, and 100,516,768 in 1998 863 (54,981) 863
Class A common stock, $0.01 par value;
10,000,000 shares authorized; shares outstanding - -
5,742,315 in 1999, 6,560,612 in 1998 57 - 57
Additional paid-in capital - - common stock 1,085,060 (1,235,897) 1,085,060
Additional paid-in capital - - Class A common stock 93,738 93,738
Retained (deficit) earnings (36,472) (200,202) (36,472)
--------------- ---------------- -----------------
1,143,246 (1,491,080) 1,143,246
Treasury shares, at cost:
167,513 shares in 1999; 185,030 shares in 1998 (3,446) - (3,446)
Unearned compensation (1,627) - (1,627)
--------------- ---------------- -----------------
Total common stockholders' equity 1,138,173 (1,491,080) 1,138,173
Preferred stock of subsidiaries:
Not subject to mandatory redemption 95,933 (23,950) -
Subject to mandatory redemption 188,950 23,950 -
Long-term debt 2,124,898 (1,317) 250,000
--------------- ---------------- -----------------
3,547,954 (1,492,398) 1,388,173
--------------- ---------------- -----------------
--------------- ---------------- -----------------
TOTAL CAPITALIZATION AND LIABILITIES 6,136,325 (2,010,304) 1,972,546
=============== ================ =================
<CAPTION>
DPL ACE
Consolidated Consolidated
--------------- ----------------
<S> <C> <C>
CURRENT LIABILITIES
Short-term debt - 30,000
Long-term debt due within one year 1,545 46,075
Variable rate demand bonds 104,830 22,600
Intercompany Loan Payable (Money Pool) - -
Accounts payable 207,073 61,188
Taxes accrued 31,621 -
Interest accrued 20,160 20,182
Dividends payable 7,027 19,052
Deferred energy supply costs - 3,728
Current capital lease obligation 12,495 15,480
Above-market purchased energy contracts
and other electric restructuring liabilities 33,109 7,992
Other 26,226 29,845
--------------- ----------------
444,086 256,142
--------------- ----------------
DEFERRED CREDITS AND OTHER LIABILITIES
Other postretirement benefits obligation - 62,484
Deferred income taxes, net 341,748 389,594
Deferred investment tax credits 34,823 39,608
Regulatory liability for New Jersey income tax benefit - 49,262
Above-market purchased energy contracts
and other electric restructuring liabilities 102,781 59,568
Deferred gain on termination of purchased energy contract - -
Minority Interest Liability - -
Long-term capital lease obligation 14,175 14,911
Other 14,079 22,381
--------------- ----------------
507,606 637,809
--------------- ----------------
CAPITALIZATION
Common stock: $0.01 per share par value
150,000,000 shares authorized; shares outstanding - -
86,173,169 in 1999, and 100,516,768 in 1998 2 54,963
Class A common stock, $0.01 par value;
10,000,000 shares authorized; shares outstanding - -
5,742,315 in 1999, 6,560,612 in 1998 - -
Additional paid-in capital - - common stock 528,893 493,007
Additional paid-in capital - - Class A common stock - -
Retained (deficit) earnings 147,288 129,981
--------------- ----------------
676,183 677,951
Treasury shares, at cost:
167,513 shares in 1999; 185,030 shares in 1998 - -
Unearned compensation - -
--------------- ----------------
Total common stockholders' equity 676,183 677,951
Preferred stock of subsidiaries:
Not subject to mandatory redemption 89,703 30,181
Subject to mandatory redemption 70,000 95,000
Long-term debt 917,207 954,752
--------------- ----------------
1,753,093 1,757,884
--------------- ----------------
--------------- ----------------
TOTAL CAPITALIZATION AND LIABILITIES 2,704,785 2,651,834
=============== ================
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
F - 2A Page 4 of 6
<PAGE> 49
Conectiv and Subsidiaries
Consolidating Balance Sheet
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
DCI * CES*
Consolidated Consolidated ASP*
---------------- ---------------- ----------------
<S> <C> <C> <C>
Current Liabilities
Short-term debt
Long-term debt due within one year
Variable rate demand bonds
Intercompany Loan Payable (Money Pool)
Accounts payable
Taxes accrued
Interest accrued
Dividends payable
Deferred energy supply costs
Current capital lease obligation
Above-market purchased energy contracts
and other electric restructuring liabilities
Other
---------------- ---------------- ----------------
---------------- ---------------- ----------------
Deferred Credits and Other Liabilities
Other postretirement benefits obligation
Deferred income taxes, net
Deferred investment tax credits
Regulatory liability for New Jersey income tax benefit
Above-market purchased energy contracts
and other electric restructuring liabilities
Deferred gain on termination of purchased energy contract
Minority Interest Liability
Long-term capital lease obligation
Other
---------------- ---------------- ----------------
---------------- ---------------- ----------------
Capitalization
Common stock: $0.01 per share par value
150,000,000 shares authorized; shares outstanding --
86,173,169 in 1999, and 100,516,768 in 1998
Class A common stock, $0.01 par value;
10,000,000 shares authorized; shares outstanding --
5,742,315 in 1999, 6,560,612 in 1998
Additional paid-in capital -- common stock
Additional paid-in capital -- Class A common stock
Retained (deficit) earnings
---------------- ---------------- ----------------
Treasury shares, at cost:
167,513 shares in 1999; 185,030 shares in 1998
Unearned compensation
---------------- ---------------- ----------------
Total common stockholders' equity
Preferred stock of subsidiaires:
Not subject to mandatory redemption
Subject to mandatory redemption
Long-term debt
---------------- ---------------- ----------------
---------------- ---------------- ----------------
---------------- ---------------- ----------------
Total Capitalization and Liabilities
================ ================ ================
<CAPTION>
CSI *
DSC* Consolidated
---------------- ----------------
<S> <C> <C>
Current Liabilities
Short-term debt -
Long-term debt due within one year -
Variable rate demand bonds -
Intercompany Loan Payable (Money Pool) -
Accounts payable 1
Taxes accrued (99)
Interest accrued -
Dividends payable
Deferred energy supply costs -
Current capital lease obligation -
Above-market purchased energy contracts
and other electric restructuring liabilities -
Other -
---------------- ----------------
(98)
---------------- ----------------
Deferred Credits and Other Liabilities
Other postretirement benefits obligation -
Deferred income taxes, net 2,724
Deferred investment tax credits -
Regulatory liability for New Jersey income tax benefit -
Above-market purchased energy contracts
and other electric restructuring liabilities -
Deferred gain on termination of purchased energy contract -
Minority Interest Liability -
Long-term capital lease obligation -
Other -
---------------- ----------------
2,724
---------------- ----------------
Capitalization
Common stock: $0.01 per share par value
150,000,000 shares authorized; shares outstanding - -
86,173,169 in 1999, and 100,516,768 in 1998 1
Class A common stock, $0.01 par value;
10,000,000 shares authorized; shares outstanding - -
5,742,315 in 1999, 6,560,612 in 1998 -
Additional paid-in capital - - common stock 5,097
Additional paid-in capital - - Class A common stock -
Retained (deficit) earnings 3,451
---------------- ----------------
8,549
Treasury shares, at cost:
167,513 shares in 1999; 185,030 shares in 1998 -
Unearned compensation -
---------------- ----------------
Total common stockholders' equity 8,549
Preferred stock of subsidiaires:
Not subject to mandatory redemption -
Subject to mandatory redemption -
Long-term debt 3,437
---------------- ----------------
3,437
---------------- ----------------
---------------- ----------------
Total Capitalization and Liabilities 14,611
================ ================
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
F - 2A Page 5 of 6
<PAGE> 50
Conectiv and Subsidiaries
Consolidating Balance Sheet
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Solutions*
CCI* Consolidated CRP*
--------------- --------------- ---------------
<S> <C> <C> <C>
Current Liabilities
Short-term debt -
Long-term debt due within one year
Variable rate demand bonds
Intercompany Loan Payable (Money Pool) 85,030
Accounts payable 15,180
Taxes accrued (4,668)
Interest accrued 1,253
Dividends payable
Deferred energy supply costs -
Current capital lease obligation -
Above-market purchased energy contracts
and other electric restructuring
liabilities -
Other 15,914
--------------- --------------- ---------------
112,709
--------------- --------------- ---------------
Deferred Credits and Other Liabilities
Other postretirement benefits obligation 2,496
Deferred income taxes, net 7,695
Deferred investment tax credits -
Regulatory liability for New Jersey income
tax benefit -
Above-market purchased energy contracts
and other electric restructuring
liabilities -
Deferred gain on termination of purchased
energy contract -
Minority Interest Liability -
Long-term capital lease obligation -
Other 37
--------------- --------------- ---------------
10,228
--------------- --------------- ---------------
Capitalization
Common stock: $0.01 per share par value
150,000,000 shares authorized; shares
outstanding -- 86,173,169 in 1999, and
100,516,768 in 1998 1
Class A common stock, $0.01 par value;
10,000,000 shares authorized; shares
outstanding -- 5,742,315 in 1999,
6,560,612 in 1998 -
Additional paid-in capital -- common stock -
Additional paid-in capital -- Class A common
stock -
Retained (deficit) earnings (131)
--------------- --------------- ---------------
(130)
Treasury shares, at cost: 167,513 shares in 1999;
185,030 shares in 1998 -
Unearned compensation -
--------------- --------------- ---------------
Total common stockholders' equity (130)
Preferred stock of subsidiaires:
Not subject to mandatory redemption -
Subject to mandatory redemption -
Long-term debt -
--------------- --------------- ---------------
-
--------------- --------------- ---------------
--------------- --------------- ---------------
Total Capitalization and Liabilities 122,807
=============== =============== ===============
<CAPTION>
AGI * Conectiv *
Consolidated Energy
--------------- ---------------
<S> <C> <C>
Current Liabilities
Short-term debt
Long-term debt due within one year
Variable rate demand bonds
Intercompany Loan Payable (Money Pool)
Accounts payable
Taxes accrued
Interest accrued
Dividends payable
Deferred energy supply costs
Current capital lease obligation
Above-market purchased energy contracts
and other electric restructuring liabilities
Other
--------------- ---------------
--------------- ---------------
Deferred Credits and Other Liabilities
Other postretirement benefits obligation
Deferred income taxes, net
Deferred investment tax credits
Regulatory liability for New Jersey income tax benefit
Above-market purchased energy contracts
and other electric restructuring liabilities
Deferred gain on termination of purchased energy contract
Minority Interest Liability
Long-term capital lease obligation
Other
--------------- ---------------
--------------- ---------------
Capitalization
Common stock: $0.01 per share par value
150,000,000 shares authorized; shares outstanding --
86,173,169 in 1999, and 100,516,768 in 1998
Class A common stock, $0.01 par value;
10,000,000 shares authorized; shares outstanding --
5,742,315 in 1999, 6,560,612 in 1998
Additional paid-in capital -- common stock
Additional paid-in capital -- Class A common stock
Retained (deficit) earnings
--------------- ---------------
Treasury shares, at cost:
167,513 shares in 1999; 185,030 shares in 1998
Unearned compensation
--------------- ---------------
Total common stockholders' equity
Preferred stock of subsidiaires:
Not subject to mandatory redemption
Subject to mandatory redemption
Long-term debt
--------------- ---------------
--------------- ---------------
--------------- ---------------
Total Capitalization and Liabilities
=============== ===============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
F - 2A Page 6 0f 6
<PAGE> 51
Delmarva Power and Light and Subsidiaries
Consolidating Balance Sheet
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations,
Total DPL Reclasses & DPL DPL
Consolidated Consol. Entries Parent Financing
------------ --------------- ------ ---------
<S> <C> <C> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents 648 -- 648 --
Accounts receivable 315,169 -- 315,169 --
Allowance for Doubtful Accounts (6,479) -- (6,479) --
Intercompany Loan Receivable (Money Pool) 13,473 -- 13,473 --
Inventories, at average cost
Fuel (coal, oil and gas) 45,686 -- 45,686 --
Materials and supplies 31,855 -- 31,855 --
Prepaid New Jersey sales and excise taxes -- -- -- --
Deferred energy supply costs 8,612 -- 8,612 --
Other prepayments 14,152 -- 14,152 --
Taxes Receivable -- -- -- --
Deferred income taxes, net 18,935 -- 18,935 --
---------- ---------- ---------- ----------
442,050 -- 442,050 --
---------- ---------- ---------- ----------
INVESTMENTS
Investment in leveraged leases -- -- -- --
Funds held by trustee 67,896 -- 67,896 --
Investment in Consolidated Companies 103 (74,330) 2,268 72,165
Other investments 1,512 -- 1,512 --
---------- ---------- ---------- ----------
69,510 (74,330) 71,675 72,165
---------- ---------- ---------- ----------
PROPERTY, PLANT AND EQUIPMENT
Electric generation 1,314,657 -- 1,314,657 --
Electric transmission and distribution 1,398,574 -- 1,398,574 --
Gas transmission and distribution 265,708 -- 265,708 --
Other electric and gas facilities 202,953 -- 202,953 --
Telecommunications, thermal systems, and other
property, plant, and equipment 5,469 -- 5,469 --
---------- ---------- ---------- ----------
3,187,361 -- 3,187,361 --
Less: Accumulated depreciation 1,434,597 -- 1,434,597 --
---------- ---------- ---------- ----------
Net plant in service 1,752,763 -- 1,752,763 --
---------- ---------- ---------- ----------
Construction work-in-progress 64,747 -- 64,747 --
Leased nuclear fuel, at amortized cost 25,592 -- 25,592 --
Goodwill, net 69,850 -- 69,850 --
---------- ---------- ---------- ----------
1,912,953 -- 1,912,953 --
---------- ---------- ---------- ----------
DEFERRED CHARGES AND OTHER ASSETS
Recoverable stranded costs 41,775 -- 41,775 --
Deferred recoverable income taxes 71,986 -- 71,986 --
Unrecovered purchased power costs -- -- -- --
Unrecovered New Jersey state excise tax -- -- -- --
Deferred debt refinancing costs 7,538 -- 7,538 --
Deferred other postretirement benefit costs -- -- -- --
Prepaid employee benefits costs 129,962 -- 129,962 --
Unamortized debt expense 11,106 -- 11,106 --
License fees -- -- -- --
Other 17,904 -- 17,904 --
---------- ---------- ---------- ----------
280,272 -- 280,272 --
---------- ---------- ---------- ----------
TOTAL ASSETS 2,704,785 (74,330) 2,706,950 72,165
========== ========== ========== ==========
</TABLE>
F - 2B Page 1 of 2
<PAGE> 52
Delmarva Power and Light and Subsidiaries
Consolidating Balance Sheet
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations,
Total DPL Reclasses & DPL DPL
Consolidated Consol. Entries Parent Financing
------------ --------------- ------ ---------
<S> <C> <C> <C> <C>
CURRENT LIABILITIES
Short-term debt -- -- -- --
Long-term debt due within one year 1,545 -- 1,545 --
Variable rate demand bonds 104,830 -- 104,830 --
Accounts payable 207,073 -- 207,073 --
Taxes accrued 31,621 -- 31,621 --
Interest accrued 20,160 -- 20,160 --
Dividends payable 7,027 -- 7,027 --
Deferred energy supply costs -- -- -- --
Current capital lease obligation 12,495 -- 12,495 --
Above-market purchased energy contracts
and other electric restructuring liabilities 33,109 -- 33,109 --
Other 26,226 -- 26,226 --
---------- ---------- ---------- ----------
444,086 -- 444,086 --
---------- ---------- ---------- ----------
DEFERRED CREDITS AND OTHER LIABILITIES
Other postretirement benefits obligation -- -- -- --
Deferred income taxes, net 341,748 -- 341,748 --
Deferred investment tax credits 34,823 -- 34,823 --
Regulatory liability for New Jersey income tax benefit -- -- -- --
Above-market purchased energy contracts
and other electric restructuring liabilities 102,781 -- 102,781 --
Deferred gain on termination of purchased energy contract -- -- -- --
Minority Interest Liability -- -- -- --
Long-term capital lease obligation 14,175 -- 14,175 --
Other 14,079 -- 14,079 --
---------- ---------- ---------- ----------
507,606 -- 507,606 --
---------- ---------- ---------- ----------
CAPITALIZATION
Common stock: $0.01 per share par value
150,000,000 shares authorized; shares outstanding - -
86,173,169 in 1999, and 100,516,768 in 1998 2 (2,165) 2 2,165
Class A common stock, $0.01 par value;
10,000,000 shares authorized; shares outstanding - -
5,742,315 in 1999, 6,560,612 in 1998 -- -- -- --
Additional paid-in capital - - common stock 528,893 -- 528,893 --
Additional paid-in capital - - Class A common stock -- -- -- --
Retained (deficit) earnings 147,288 -- 147,288 --
---------- ---------- ---------- ----------
676,183 (2,165) 676,183 2,165
Treasury shares, at cost:
167,513 shares in 1999; 185,030 shares in 1998 -- -- -- --
Unearned compensation -- -- -- --
---------- ---------- ---------- ----------
Total common stockholders' equity 676,183 (2,165) 676,183 2,165
Preferred stock of subsidiaires:
Not subject to mandatory redemption 89,703 -- 89,703 --
Subject to mandatory redemption 70,000 -- -- 70,000
Advances from Associated Companies -- (72,165) 72,165
Long-term debt 917,207 -- 917,207 --
---------- ---------- ---------- ----------
1,076,910 (72,165) 1,079,075 70,000
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
TOTAL CAPITALIZATION AND LIABILITIES 2,704,785 (74,330) 2,706,950 72,165
========== ========== ========== ==========
</TABLE>
F - 2B Page 2 of 2
<PAGE> 53
Atlantic City Electric Company and Subsidiaries
Consolidating Balance Sheet
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations,
Total ACE Reclasses & ACE ACE ACE
Consolidated Consol. Entries Parent Capital I Capital II
------------ --------------- ------ --------- ----------
<S> <C> <C> <C> <C> <C>
ASSETS
Current Assets
Cash and cash equivalents 7,924 -- 7,924 -- --
Accounts receivable 137,379 -- 137,379 -- --
Allowance for Doubtful Accounts (3,500) -- (3,500) -- --
Intercompany Loan Receivable (Money Pool) 73,532 -- 73,532 -- --
Inventories, at average cost
Fuel (coal, oil and gas) 19,598 -- 19,598 -- --
Materials and supplies 8,890 -- 8,890 -- --
Prepaid New Jersey sales and excise taxes (2,048) -- (2,048) -- --
Deferred energy supply costs -- -- -- -- --
Other prepayments 2,223 -- 2,223 -- --
Taxes Receivable 88,483 -- 88,483 -- --
Deferred income taxes, net 6,245 -- 6,245 -- --
---------- ---------- ---------- ---------- ----------
338,726 -- 338,726 -- --
---------- ---------- ---------- ---------- ----------
Investments
Investment in leveraged leases -- -- -- -- --
Funds held by trustee 105,268 -- 105,268 -- --
Investment in Consolidated Companies 103 (100,876) 3,041 72,165 25,773
Other investments 0 -- 0 -- --
---------- ---------- ---------- ---------- ----------
105,371 (100,876) 108,309 72,165 25,773
---------- ---------- ---------- ---------- ----------
Property, Plant and Equipment
Electric generation 256,899 -- 256,899 -- --
Electric transmission and distribution 1,224,644 -- 1,224,644 -- --
Gas transmission and distribution -- -- -- -- --
Other electric and gas facilities 128,388 -- 128,388 -- --
Telecommunications, thermal systems, and other
property, plant, and equipment 5,772 -- 5,772 -- --
---------- ---------- ---------- ---------- ----------
1,615,703 -- 1,615,703 -- --
Less: Accumulated depreciation 626,080 -- 626,080 -- --
---------- ---------- ---------- ---------- ----------
Net plant in service 989,623 -- 989,623 -- --
---------- ---------- ---------- ---------- ----------
Construction work-in-progress 46,025 -- 46,025 -- --
Leased nuclear fuel, at amortized cost 30,391 -- 30,391 -- --
Goodwill, net -- -- -- -- --
---------- ---------- ---------- ---------- ----------
1,066,039 -- 1,066,039 -- --
---------- ---------- ---------- ---------- ----------
Deferred Charges and Other Assets
Recoverable stranded costs 988,273 -- 988,273 -- --
Deferred recoverable income taxes 21,867 -- 21,867 -- --
Unrecovered purchased power costs 28,923 -- 28,923 -- --
Unrecovered New Jersey state excise tax 22,567 -- 22,567 -- --
Deferred debt refinancing costs 13,574 -- 13,574 -- --
Deferred other postretirement benefit costs 32,479 -- 32,479 -- --
Prepaid employee benefits costs -- -- -- -- --
Unamortized debt expense 14,197 -- 14,197 -- --
License fees -- -- -- -- --
Other 19,818 -- 19,818 -- --
---------- ---------- ---------- ---------- ----------
1,141,698 -- 1,141,698 -- --
---------- ---------- ---------- ---------- ----------
Total Assets 2,651,834 (100,876) 2,654,772 72,165 25,773
========== ========== ========== ========== ==========
</TABLE>
F - 2C Page 1 of 2
<PAGE> 54
Atlantic City Electric Company and Subsidiaries
Consolidating Balance Sheet
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations,
Total ACE Reclasses & ACE ACE ACE
Consolidated Consol. Entries Parent Capital I Capital II
------------ --------------- ------ --------- ----------
<S> <C> <C> <C> <C> <C>
Current Liabilities
Short-term debt 30,000 -- 30,000 -- --
Long-term debt due within one year 46,075 -- 46,075 -- --
Variable rate demand bonds 22,600 -- 22,600 -- --
Accounts payable 61,188 -- 61,188 -- --
Taxes accrued -- -- -- -- --
Interest accrued 20,182 -- 20,182 -- --
Dividends payable 19,052 -- 19,052 -- --
Deferred energy supply costs 3,728 -- 3,728 -- --
Current capital lease obligation 15,480 -- 15,480 -- --
Above-market purchased energy contracts
and other electric restructuring
liabilities 7,992 -- 7,992 -- --
Other 29,845 -- 29,845 -- --
---------- ---------- ---------- ---------- ----------
256,142 -- 256,142 -- --
---------- ---------- ---------- ---------- ----------
Deferred Credits and Other Liabilities
Other postretirement benefits obligation 62,484 -- 62,484 -- --
Deferred income taxes, net 389,594 -- 389,594 -- --
Deferred investment tax credits 39,608 -- 39,608 -- --
Regulatory liability for New Jersey income
tax benefit 49,262 -- 49,262 -- --
Above-market purchased energy contracts
and other electric restructuring
liabilities 59,568 -- 59,568 -- --
Deferred gain on termination of purchased
energy contract -- -- -- -- --
Minority Interest Liability -- -- -- -- --
Long-term capital lease obligation 14,911 -- 14,911 -- --
Other 22,381 -- 22,381 -- --
---------- ---------- ---------- ---------- ----------
637,808 -- 637,808 -- --
---------- ---------- ---------- ---------- ----------
Capitalization
Common stock: $0.01 per share par value
150,000,000 shares authorized; shares
outstanding - - 86,173,169 in 1999,
and 100,516,768 in 1998 54,963 (2,938) 54,963 2,165 773
Class A common stock, $0.01 par value;
10,000,000 shares authorized; shares
outstanding - - 5,742,315 in 1999,
6,560,612 in 1998 -- -- -- -- --
Additional paid-in capital - - common stock 493,007 -- 493,007 -- --
Additional paid-in capital - - Class A common
stock -- -- -- -- --
Retained (deficit) earnings 129,981 -- 129,981 -- --
---------- ---------- ---------- ---------- ----------
677,951 (2,938) 677,951 2,165 773
Treasury shares, at cost:
167,513 shares in 1999; 185,030 shares
in 1998 -- -- -- -- --
Unearned compensation -- -- -- -- --
---------- ---------- ---------- ---------- ----------
Total common stockholders' equity 677,951 (2,938) 677,951 2,165 773
Preferred stock of subsidiaires:
Not subject to mandatory redemption 30,181 -- 30,181 -- --
Subject to mandatory redemption 95,000 -- -- 70,000 25,000
Advances from Associated Companies 0 (97,938) 97,938
Long-term debt 954,752 -- 954,752 -- --
---------- ---------- ---------- ---------- ----------
1,079,933 (97,938) 1,082,871 70,000 25,000
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
Total Capitalization and Liabilities 2,651,834 (100,876) 2,654,772 72,165 25,773
========== ========== ========== ========== ==========
</TABLE>
F - 2C Page 2 of 2
<PAGE> 55
Delmarva Capital Investments, Inc. and Subsidiaries*
Consolidating Balance Sheet
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations,
Total DCI Reclasses & DCI
Consolidated Consol. Entries Parent
------------ -------------- ------
<S> <C> <C> <C>
ASSETS
Current Assets
Cash and cash equivalents
Accounts receivable
Allowance for Doubtful Accounts
Intercompany Loan Receivable
(Money Pool)
Inventories, at average cost
Fuel (coal, oil and gas)
Materials and supplies
Prepaid New Jersey sales
and excise taxes
Deferred energy supply costs
Other prepayments
Taxes Receivable
Deferred income taxes, net
------------- ------------ ------------
------------- ------------ ------------
Investments
Investment in leveraged leases
Funds held by trustee
Investment in Consolidated Companies
Other investments
------------- ----------- ------------
------------- ------------ ------------
Property, Plant and Equipment
Electric generation
Electric transmission and distribution
Gas transmission and distribution
Other electric and gas facilities
Telecommunications, thermal systems,
and other property, plant, and equipment
------------- ------------ ------------
Less: Accumulated depreciation
------------- ------------ ------------
Net plant in service
------------- ------------ ------------
Construction work-in-progress
Leased nuclear fuel, at amortized cost
Goodwill, net
------------- ------------ ------------
------------- ------------ ------------
Deferred Charges and Other Assets
Recoverable stranded costs
Deferred recoverable income taxes
Unrecovered purchased power costs
Unrecovered New Jersey state excise tax
Deferred debt refinancing costs
Deferred other postretirement benefit costs
Prepaid employee benefits costs
Unamortized debt expense
License fees
Other
------------- ------------ ------------
------------- ------------ ------------
Total Assets
============= ============ ============
<CAPTION>
DCI I DCI II Burney
----- ------ ------
<S> <C> <C> <C>
ASSETS
Current Assets
Cash and cash equivalents
Accounts receivable
Allowance for Doubtful Accounts
Intercompany Loan Receivable
(Money Pool)
Inventories, at average cost
Fuel (coal, oil and gas)
Materials and supplies
Prepaid New Jersey sales
and excise taxes
Deferred energy supply costs
Other prepayments
Taxes Receivable
Deferred income taxes, net
------------ ------------ -----------
------------ ------------ ------------
Investments
Investment in leveraged leases
Funds held by trustee
Investment in Consolidated Companies
Other investments
------------ ------------ ------------
------------ ------------ ------------
Property, Plant and Equipment
Electric generation
Electric transmission and distribution
Gas transmission and distribution
Other electric and gas facilities
Telecommunications, thermal systems,
and other property, plant, and equipment
------------ ------------ ------------
Less: Accumulated depreciation
------------ ------------ ------------
Net plant in service
------------ ------------ ------------
Construction work-in-progress
Leased nuclear fuel, at amortized cost
Goodwill, net
------------ ------------ ------------
------------ ------------ ------------
Deferred Charges and Other Assets
Recoverable stranded costs
Deferred recoverable income taxes
Unrecovered purchased power costs
Unrecovered New Jersey state excise tax
Deferred debt refinancing costs
Deferred other postretirement benefit costs
Prepaid employee benefits costs
Unamortized debt expense
License fees
Other
------------ ------------ ------------
------------ ------------ ------------
Total Assets
============ ============ ============
</TABLE>
F - 2D Page 1 of 2
<PAGE> 56
Delmarva Capital Investments, Inc. and Subsidiaries'
Consolidating Balance Sheet
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations,
Total DCI Reclasses & DCI
Consolidated Consol. Entries Parent DCI I DCI II Burney
------------ --------------- ------ ----- ------ ------
<S> <C> <C> <C> <C> <C> <C>
CURRENT LIABILITIES
Short-term debt
Long-term debt due within one year
Variable rate demand bonds
Intercompany Loan Payable (Money Pool)
Accounts payable
Taxes accrued
Interest accrued
Dividends payable
Deferred energy supply costs
Current capital lease obligation
Above-market purchased energy contracts
and other electric restructuring liabilities
Other
------------ --------------- ------ ----- ------ ------
------------ --------------- ------ ----- ------ ------
DEFERRED CREDITS AND OTHER LIABILITIES
Other postretirement benefits obligation
Deferred income taxes, net
Deferred investment tax credits
Regulatory liability for New Jersey income tax benefit
Above-market purchased energy contracts
and other electric restructuring liabilities
Deferred gain on termination of purchased energy contract
Minority Interest Liability
Long-term capital lease obligation
Other
------------ --------------- ------ ----- ------ ------
------------ --------------- ------ ----- ------ ------
CAPITALIZATION
Common stock: $0.01 per share par value
150,000,000 shares authorized; shares outstanding - -
86,173,169 in 1999, and 100,516,768 in 1998
Class A common stock, $0.01 par value;
10,000,000 shares authorized; shares outstanding - -
5,742,315 in 1999, 6,560,612 in 1998
Additional paid-in capital - - common stock
Additional paid-in capital - - Class A common stock
Retained (deficit) earnings
------------ --------------- ------ ----- ------ ------
Treasury shares, at cost:
167,513 shares in 1999; 185,030 shares in 1998
Unearned compensation
------------ --------------- ------ ----- ------ ------
Total common stockholders' equity
Preferred stock of subsidiaries:
Not subject to mandatory redemption
Subject to mandatory redemption
Advances from Associated Companies
Long-term debt
------------ --------------- ------ ----- ------ ------
------------ --------------- ------ ----- ------ ------
------------ --------------- ------ ----- ------ ------
TOTAL CAPITALIZATION AND LIABILITIES
============ =============== ====== ===== ====== ======
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
F-2D Page 2 Of 2
<PAGE> 57
Conectiv Energy Supply, Inc. and Subsidiaries*
Consolidating Balance Sheets
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations, Conectiv
Total CES Reclasses & Energy
Consolidated Consol. Entries Parent COSC
-------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents
Accounts receivable
Allowance for Doubtful Accounts
Intercompany Loan Receivable (Money Pool)
Inventories, at average cost
Fuel (coal, oil and gas)
Materials and supplies
Prepaid New Jersey sales and excise taxes
Deferred energy supply costs
Other prepayments
Taxes Receivable
Deferred income taxes, net
-------------- --------------- --------------- ---------------
-------------- --------------- --------------- ---------------
INVESTMENTS
Investment in leveraged leases
Funds held by trustee
Investment in Consolidated Companies
Other investments
-------------- --------------- --------------- ---------------
-------------- --------------- --------------- ---------------
PROPERTY, PLANT AND EQUIPMENT
Electric generation
Electric transmission and distribution
Gas transmission and distribution
Other electric and gas facilities
Telecommunications, thermal systems, and other
property, plant, and equipment
-------------- --------------- --------------- ---------------
Less: Accumulated depreciation
-------------- --------------- --------------- ---------------
Net plant in service
-------------- --------------- --------------- ---------------
Construction work-in-progress
Leased nuclear fuel, at amortized cost
Goodwill, net
-------------- --------------- --------------- ---------------
-------------- --------------- --------------- ---------------
DEFERRED CHARGES AND OTHER ASSETS
Recoverable stranded costs
Deferred recoverable income taxes
Unrecovered purchased power costs
Unrecovered New Jersey state excise tax
Deferred debt refinancing costs
Deferred other postretirement benefit costs
Prepaid employee benefits costs
Unamortized debt expense
License fees
Other
-------------- --------------- --------------- ---------------
-------------- --------------- --------------- ---------------
TOTAL ASSETS
============== =============== =============== ===============
</TABLE>
F-2E Page 1 Of 2
<PAGE> 58
Conectiv Energy Supply, Inc. and Subsidiaries*
Consolidating Balance Sheets
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations, Conectiv
Total CES Reclasses & Energy
Consolidated Consol. Entries Parent COSC
-------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C>
CURRENT LIABILITIES
Short-term debt
Long-term debt due within one year
Variable rate demand bonds
Intercompany Loan Payable (Money Pool)
Accounts payable Taxes accrued
Interest accrued
Dividends payable
Deferred energy supply costs
Current capital lease obligation
Above-market purchased energy contracts
and other electric restructuring liabilities
Other
-------------- --------------- --------------- ---------------
-------------- --------------- --------------- ---------------
DEFERRED CREDITS AND OTHER LIABILITIES
Other postretirement benefits obligation
Deferred income taxes, net
Deferred investment tax credits
Regulatory liability for New Jersey income tax benefit
Above-market purchased energy contracts
and other electric restructuring liabilities
Deferred gain on termination of purchased energy contract
Minority Interest Liability
Long-term capital lease obligation
Other
-------------- --------------- --------------- ---------------
-------------- --------------- --------------- ---------------
CAPITALIZATION
Common stock: $0.01 per share par value
150,000,000 shares authorized; shares outstanding - -
86,173,169 in 1999, and 100,516,768 in 1998
Class A common stock, $0.01 par value;
10,000,000 shares authorized; shares outstanding - -
5,742,315 in 1999, 6,560,612 in 1998
Additional paid-in capital - - common stock
Additional paid-in capital - - Class A common stock
Retained (deficit) earnings
-------------- --------------- --------------- ---------------
Treasury shares, at cost:
167,513 shares in 1999; 185,030 shares in 1998
Unearned compensation
-------------- --------------- --------------- ---------------
Total common stockholders' equity
Preferred stock of subsidiaires:
Not subject to mandatory redemption
Subject to mandatory redemption
Advances from Associated Companies
Long-term debt
-------------- --------------- --------------- ---------------
-------------- --------------- --------------- ---------------
-------------- --------------- --------------- ---------------
TOTAL CAPITALIZATION AND LIABILITIES
============== =============== =============== ===============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
F-2E Page 2 Of 2
<PAGE> 59
Conectiv Services, Inc. and Subsidiaries*
Consolidating Balance Sheet
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations,
Total CSI Reclasses & CTS
Consolidated Consol. Entries CSI Plumbing Consolidated ENERVAL
------------ --------------- --- -------- ------------ -------
<S> <C> <C> <C> <C> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents
Accounts receivable
Allowance for Doubtful Accounts
Intercompany Loan Receivable (Money Pool)
Inventories, at average cost
Fuel (coal, oil and gas)
Materials and supplies
Prepaid New Jersey sales and excise taxes
Deferred energy supply costs
Other prepayments
Taxes Receivable
Deferred income taxes, net
------------ --------------- --- -------- ------------ -------
------------ --------------- --- -------- ------------ -------
INVESTMENTS
Investment in leveraged leases
Funds held by trustee
Investment in Consolidated Companies
Other investments
------------ --------------- --- -------- ------------ -------
------------ --------------- --- -------- ------------ -------
PROPERTY, PLANT AND EQUIPMENT
Electric generation
Electric transmission and distribution
Gas transmission and distribution
Other electric and gas facilities
Telecommunications, thermal systems, and other
property, plant, and equipment
------------ --------------- --- -------- ------------ -------
Less: Accumulated depreciation
------------ --------------- --- -------- ------------ -------
Net plant in service
------------ --------------- --- -------- ------------ -------
Construction work-in-progress
Leased nuclear fuel, at amortized cost
Goodwill, net
------------ --------------- --- -------- ------------ -------
------------ --------------- --- -------- ------------ -------
DEFERRED CHARGES AND OTHER ASSETS
Recoverable stranded costs
Deferred recoverable income taxes
Unrecovered purchased power costs
Unrecovered New Jersey state excise tax
Deferred debt refinancing costs
Deferred other postretirement benefit costs
Prepaid employee benefits costs
Unamortized debt expense
License fees
Other
------------ --------------- --- -------- ------------ -------
------------ --------------- --- -------- ------------ -------
TOTAL ASSETS
============ =============== === ======== ============ =======
</TABLE>
F-2F Page 1 Of 2
<PAGE> 60
Conectiv Services, Inc. and Subsidiaries*
Consolidating Balance Sheet
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations,
Total CSI Reclasses & CTS
Consolidated Consol. Entries CSI Plumbing Consolidated ENERVAL
------------ --------------- --- -------- ------------ -------
<S> <C> <C> <C> <C> <C> <C>
CURRENT LIABILITIES
Short-term debt
Long-term debt due within one year
Variable rate demand bonds
Intercompany Loan Payable (Money Pool)
Accounts payable
Taxes accrued
Interest accrued
Dividends payable
Deferred energy supply costs
Current capital lease obligation
Above-market purchased energy contracts and
other electric restructuring
liabilities
Other
------------ --------------- --- -------- ------------ -------
------------ --------------- --- -------- ------------ -------
DEFERRED CREDITS AND OTHER LIABILITIES
Other postretirement benefits obligation
Deferred income taxes, net
Deferred investment tax credits
Regulatory liability for New Jersey income tax
benefit
Above-market purchased energy contracts and
other electric restructuring liabilities
Deferred gain on termination of purchased
energy contract
Minority Interest Liability
Long-term capital lease obligation
Other
------------ --------------- --- -------- ------------ -------
------------ --------------- --- -------- ------------ -------
CAPITALIZATION
Common stock: $0.01 per share par value
150,000,000 shares authorized; shares
outstanding - - 86,173,169 in 1999, and
100,516,768 in 1998
Class A common stock, $0.01 par value;
10,000,000 shares authorized; shares
outstanding - - 5,742,315 in 1999,
6,560,612 in 1998
Additional paid-in capital - - common stock
Additional paid-in capital - - Class A
common stock
Retained (deficit) earnings
------------ --------------- --- -------- ------------ -------
Treasury shares, at cost:
167,513 shares in 1999; 185,030 shares
in 1998
Unearned compensation
------------ --------------- --- -------- ------------ -------
Total common stockholders' equity
Preferred stock of subsidiaries:
Not subject to mandatory redemption
Subject to mandatory redemption
Advances from Associated Companies
Long-term debt
------------ --------------- --- -------- ------------ -------
------------ --------------- --- -------- ------------ -------
------------ --------------- --- -------- ------------ -------
TOTAL CAPITALIZATION AND LIABILITIES
============ =============== === ======== ============ =======
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
F-2F Page 2 Of 2
<PAGE> 61
Conectiv Thermal Systems, Inc. and Subsidiaries*
Consolidating Balance Sheet
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations,
Total CTS Reclasses & CTS ATS
Consolidated Consol. Entries Parent Operations AJTS TELP
------------ --------------- -------- ---------- ------ ------
<S> <C> <C> <C> <C> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents
Accounts receivable
Allowance for Doubtful Accounts
Intercompany Loan Receivable (Money Pool)
Inventories, at average cost
Fuel (coal, oil and gas)
Materials and supplies
Prepaid New Jersey sales and excise taxes
Deferred energy supply costs
Other prepayments
Taxes Receivable
Deferred income taxes, net
------------ --------------- -------- ---------- ------ ------
------------ --------------- -------- ---------- ------ ------
INVESTMENTS
Investment in leveraged leases
Funds held by trustee
Investment in Consolidated Companies
Other investments
------------ --------------- -------- ---------- ------ ------
------------ --------------- -------- ---------- ------ ------
PROPERTY, PLANT AND EQUIPMENT
Electric generation
Electric transmission and distribution
Gas transmission and distribution
Other electric and gas facilities
Telecommunications, thermal systems, and
other property, plant, and equipment
------------ --------------- -------- ---------- ------ ------
Less: Accumulated depreciation
------------ --------------- -------- ---------- ------ ------
Net plant in service
------------ --------------- -------- ---------- ------ ------
Construction work-in-progress
Leased nuclear fuel, at amortized cost
Goodwill, net
------------ --------------- -------- ---------- ------ ------
------------ --------------- -------- ---------- ------ ------
DEFERRED CHARGES AND OTHER ASSETS
Recoverable stranded costs
Deferred recoverable income taxes
Unrecovered purchased power costs
Unrecovered New Jersey state excise tax
Deferred debt refinancing costs
Deferred other postretirement benefit costs
Prepaid employee benefits costs
Unamortized debt expense
License fees
Other
------------ --------------- -------- ---------- ------ ------
------------ --------------- -------- ---------- ------ ------
TOTAL ASSETS
============ =============== ======== ========== ====== ======
</TABLE>
F-2G Page 1 Of 2
<PAGE> 62
Conectiv Thermal Systems, Inc. and Subsidiaries*
Consolidating Balance Sheet
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations,
Total CTS Reclasses & CTS ATS
Consolidated Consol. Entries Parent Operations AJTS TELP
------------ --------------- -------- ---------- ------ ------
<S> <C> <C> <C> <C> <C> <C>
CURRENT LIABILITIES
Short-term debt
Long-term debt due within one year
Variable rate demand bonds
Intercompany Loan Payable (Money Pool)
Accounts payable
Taxes accrued
Interest accrued
Dividends payable
Deferred energy supply costs
Current capital lease obligation
Above-market purchased energy contracts
and other electric restructuring
liabilities
Other
------------ --------------- -------- ---------- ------ ------
------------ --------------- -------- ---------- ------ ------
DEFERRED CREDITS AND OTHER LIABILITIES
Other postretirement benefits obligation
Deferred income taxes, net
Deferred investment tax credits
Regulatory liability for New Jersey income
tax benefit
Above-market purchased energy contracts
and other electric restructuring
liabilities
Deferred gain on termination of purchased
energy contract
Minority Interest Liability
Long-term capital lease obligation
Other
------------ --------------- -------- ---------- ------ ------
------------ --------------- -------- ---------- ------ ------
CAPITALIZATION
Common stock: $0.01 per share par value
150,000,000 shares authorized; shares
outstanding - - 86,173,169 in 1999, and
100,516,768 in 1998
Class A common stock, $0.01 par value;
10,000,000 shares authorized; shares
outstanding - - 5,742,315 in 1999, 6,560,612
in 1998
Additional paid-in capital - - common stock
Additional paid-in capital - - Class A common
stock
Retained (deficit) earnings
------------ --------------- -------- ---------- ------ ------
Treasury shares, at cost:
167,513 shares in 1999; 185,030 shares
in 1998
Unearned compensation
------------ --------------- -------- ---------- ------ ------
Total common stockholders' equity
Preferred stock of subsidiaries:
Not subject to mandatory redemption
Subject to mandatory redemption
Advances from Associated Companies
Long-term debt
------------ --------------- -------- ---------- ------ ------
------------ --------------- -------- ---------- ------ ------
------------ --------------- -------- ---------- ------ ------
TOTAL CAPITALIZATION AND LIABILITIES
============ =============== ======== ========== ====== ======
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
F-2G Page 2 Of 2
<PAGE> 63
Conectiv Solutions, Inc. and Subsidiaries*
Consolidating Balance Sheet
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations,
Total Solutions Reclasses & Solutions ATE King St. Elimination
Consolidated Consol. Entries Parent Consolidated ATE Assurance ATE/King St.
--------------- --------------- --------- ------------ --- --------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents
Accounts receivable
Allowance for Doubtful Accounts
Intercompany Loan Receivable
(Money Pool)
Inventories, at average cost
Fuel (coal, oil and gas)
Materials and supplies
Prepaid New Jersey sales and
excise taxes
Deferred energy supply costs
Other prepayments
Taxes Receivable
Deferred income taxes, net
--------------- --------------- --------- ------------ --- --------- ------------
--------------- --------------- --------- ------------ --- --------- ------------
INVESTMENTS
Investment in leveraged leases
Funds held by trustee
Investment in Consolidated
Companies
Other investments
--------------- --------------- --------- ------------ --- --------- ------------
--------------- --------------- --------- ------------ --- --------- ------------
PROPERTY, PLANT AND EQUIPMENT
Electric generation
Electric transmission and
distribution
Gas transmission and distribution
Other electric and gas facilities
Telecommunications, thermal
systems, and other property,
plant, and equipment
--------------- --------------- --------- ------------ --- --------- ------------
Less: Accumulated depreciation
--------------- --------------- --------- ------------ --- --------- ------------
Net plant in service
--------------- --------------- --------- ------------ --- --------- ------------
Construction work-in-progress
Leased nuclear fuel, at amortized
cost
Goodwill, net
--------------- --------------- --------- ------------ --- --------- ------------
--------------- --------------- --------- ------------ --- --------- ------------
DEFERRED CHARGES AND OTHER ASSETS
Recoverable stranded costs
Deferred recoverable income taxes
Unrecovered purchased power costs
Unrecovered New Jersey state
excise tax
Deferred debt refinancing costs
Deferred other postretirement
benefit costs
Prepaid employee benefits costs
Unamortized debt expense
License fees
Other
--------------- --------------- --------- ------------ --- --------- ------------
--------------- --------------- --------- ------------ --- --------- ------------
TOTAL ASSETS
=============== =============== ========= ============ === ========= ============
</TABLE>
F-2H Page 1 Of 2
<PAGE> 64
Conectiv Solutions, Inc. and Subsidiaries*
Consolidating Balance Sheet
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations,
Total Solutions Reclasses & Solutions ATE King St. Elimination
Consolidated Consol. Entries Parent Consolidated ATE Assurance ATE/King St.
--------------- --------------- --------- ------------ --- --------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
CURRENT LIABILITIES
Short-term debt
Long-term debt due within one year
Variable rate demand bonds
Intercompany Loan Payable
(Money Pool)
Accounts payable
Taxes accrued
Interest accrued
Dividends payable
Deferred energy supply costs
Current capital lease obligation
Above-market purchased energy
contracts and other electric
restructuring liabilities
Other
--------------- --------------- --------- ------------ --- --------- ------------
--------------- --------------- --------- ------------ --- --------- ------------
DEFERRED CREDITS AND
OTHER LIABILITIES
Other postretirement benefits
obligation
Deferred income taxes, net
Deferred investment tax credits
Regulatory liability for New
Jersey income tax benefit
Above-market purchased energy
contracts and other electric
restructuring liabilities
Deferred gain on termination of
purchased energy contract
Minority Interest Liability
Long-term capital lease obligation
Other
--------------- --------------- --------- ------------ --- --------- ------------
--------------- --------------- --------- ------------ --- --------- ------------
CAPITALIZATION
Common stock: $0.01 per share par
value 150,000,000 shares
authorized; shares outstanding -
- 86,173,169 in 1999, and
100,516,768 in 1998
Class A common stock, $0.01 par
value; 10,000,000 shares
authorized; shares outstanding -
- 5,742,315 in 1999, 6,560,612
in 1998
Additional paid-in capital -
- common stock
Additional paid-in capital -
- Class A common stock
Retained (deficit) earnings
--------------- --------------- --------- ------------ --- --------- ------------
Treasury shares, at cost:
167,513 shares in 1999;
185,030 shares in 1998
Unearned compensation
--------------- --------------- --------- ------------ --- --------- ------------
Total common stockholders'
equity
Preferred stock of subsidiaries:
Not subject to mandatory
redemption
Subject to mandatory
redemption
Advances from Associated
Companies
Long-term debt
--------------- --------------- --------- ------------ --- --------- ------------
--------------- --------------- --------- ------------ --- --------- ------------
--------------- --------------- --------- ------------ --- --------- ------------
TOTAL CAPITALIZATION AND LIABILITIES
=============== =============== ========= ============ === ========= ============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
F-2H Page 2 Of 2
<PAGE> 65
Atlantic Generation, Inc. and Subsidiaries*
Consolidating Balance Sheet
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations,
Total AGI Reclasses & AGI
Consolidated Consol. Entries Parent Vin LTD
-------------- --------------- -------- ---------
<S> <C> <C> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents
Accounts receivable
Allowance for Doubtful Accounts
Intercompany Loan Receivable (Money Pool)
Inventories, at average cost
Fuel (coal, oil and gas)
Materials and supplies
Prepaid New Jersey sales and excise taxes
Deferred energy supply costs
Other prepayments
Taxes Receivable
Deferred income taxes, net
-------------- --------------- -------- ---------
-------------- --------------- -------- ---------
INVESTMENTS
Investment in leveraged leases
Funds held by trustee
Investment in Consolidated Companies
Other investments
-------------- --------------- -------- ---------
-------------- --------------- -------- ---------
PROPERTY, PLANT AND EQUIPMENT
Electric generation
Electric transmission and distribution
Gas transmission and distribution
Other electric and gas facilities
Telecommunications, thermal systems, and other
property, plant, and equipment
-------------- --------------- -------- ---------
Less: Accumulated depreciation
-------------- --------------- -------- ---------
Net plant in service
-------------- --------------- -------- ---------
Construction work-in-progress
Leased nuclear fuel, at amortized cost
Goodwill, net
-------------- --------------- -------- ---------
-------------- --------------- -------- ---------
DEFERRED CHARGES AND OTHER ASSETS
Recoverable stranded costs
Deferred recoverable income taxes
Unrecovered purchased power costs
Unrecovered New Jersey state excise tax
Deferred debt refinancing costs
Deferred other postretirement benefit costs
Prepaid employee benefits costs
Unamortized debt expense
License fees
Other
-------------- --------------- -------- ---------
-------------- --------------- -------- ---------
TOTAL ASSETS
============== =============== ======== =========
</TABLE>
F-2I Page 1 Of 4
<PAGE> 66
Atlantic Generation, Inc. and Subsidiaries*
Consolidating Balance Sheet
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Vin Gen Bing LTD Bing Gen Ped Gen
----------- ------------ ------------ ------------
<S> <C> <C> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents
Accounts receivable
Allowance for Doubtful Accounts
Intercompany Loan Receivable (Money Pool)
Inventories, at average cost
Fuel (coal, oil and gas)
Materials and supplies
Prepaid New Jersey sales and excise taxes
Deferred energy supply costs
Other prepayments
Taxes Receivable
Deferred income taxes, net
----------- ------------ ------------ ------------
----------- ------------ ------------ ------------
INVESTMENTS
Investment in leveraged leases
Funds held by trustee
Investment in Consolidated Companies
Other investments
----------- ------------ ------------ ------------
----------- ------------ ------------ ------------
PROPERTY, PLANT AND EQUIPMENT
Electric generation
Electric transmission and distribution
Gas transmission and distribution
Other electric and gas facilities
Telecommunications, thermal systems, and other
property, plant, and equipment
----------- ------------ ------------ ------------
Less: Accumulated depreciation
----------- ------------ ------------ ------------
Net plant in service
----------- ------------ ------------ ------------
Construction work-in-progress
Leased nuclear fuel, at amortized cost
Goodwill, net
----------- ------------ ------------ ------------
----------- ------------ ------------ ------------
DEFERRED CHARGES AND OTHER ASSETS
Recoverable stranded costs
Deferred recoverable income taxes
Unrecovered purchased power costs
Unrecovered New Jersey state excise tax
Deferred debt refinancing costs
Deferred other postretirement benefit costs
Prepaid employee benefits costs
Unamortized debt expense
License fees
Other
----------- ------------ ------------ ------------
----------- ------------ ------------ ------------
TOTAL ASSETS
=========== ============ ============ ============
</TABLE>
F-2I Page 2 Of 4
<PAGE> 67
Atlantic Generation, Inc. and Subsidiaries*
Consolidating Balance Sheet
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations,
Total AGI Reclasses & AGI
Consolidated Consol. Entries Parent Vin LTD
-------------- --------------- -------- ---------
<S> <C> <C> <C> <C>
CURRENT LIABILITIES
Short-term debt
Long-term debt due within one year
Variable rate demand bonds
Intercompany Loan Payable (Money Pool)
Accounts payable Taxes accrued
Interest accrued
Dividends payable
Deferred energy supply costs
Current capital lease obligation
Above-market purchased energy contracts
and other electric restructuring liabilities
Other
-------------- --------------- -------- ---------
-------------- --------------- -------- ---------
DEFERRED CREDITS AND OTHER LIABILITIES
Other postretirement benefits obligation
Deferred income taxes, net
Deferred investment tax credits
Regulatory liability for New Jersey income tax benefit
Above-market purchased energy contracts
and other electric restructuring liabilities
Deferred gain on termination of purchased energy contract
Minority Interest Liability
Long-term capital lease obligation
Other
-------------- --------------- -------- ---------
-------------- --------------- -------- ---------
CAPITALIZATION
Common stock: $0.01 per share par value
150,000,000 shares authorized; shares outstanding - -
86,173,169 in 1999, and 100,516,768 in 1998
Class A common stock, $0.01 par value;
10,000,000 shares authorized; shares outstanding - -
5,742,315 in 1999, 6,560,612 in 1998
Additional paid-in capital - - common stock
Additional paid-in capital - - Class A common stock
Retained (deficit) earnings
-------------- --------------- -------- ---------
Treasury shares, at cost:
167,513 shares in 1999; 185,030 shares in 1998
Unearned compensation
-------------- --------------- -------- ---------
Total common stockholders' equity
Preferred stock of subsidiaries:
Not subject to mandatory redemption
Subject to mandatory redemption
Advances from Associated Companies
Long-term debt
-------------- --------------- -------- ---------
-------------- --------------- -------- ---------
-------------- --------------- -------- ---------
TOTAL CAPITALIZATION AND LIABILITIES
============== =============== ======== =========
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
F-2I Page 3 Of 4
<PAGE> 68
Atlantic Generation, Inc. and Subsidiaries*
Consolidating Balance Sheet
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Vin Gen Bing LTD Bing Gen Ped Gen
----------- ------------ ------------ ------------
<S> <C> <C> <C> <C>
CURRENT LIABILITIES
Short-term debt
Long-term debt due within one year
Variable rate demand bonds
Intercompany Loan Payable (Money Pool)
Accounts payable Taxes accrued
Interest accrued
Dividends payable
Deferred energy supply costs
Current capital lease obligation
Above-market purchased energy contracts
and other electric restructuring liabilities
Other
----------- ------------ ------------ ------------
----------- ------------ ------------ ------------
DEFERRED CREDITS AND OTHER LIABILITIES
Other postretirement benefits obligation
Deferred income taxes, net
Deferred investment tax credits
Regulatory liability for New Jersey income tax benefit
Above-market purchased energy contracts
and other electric restructuring liabilities
Deferred gain on termination of purchased energy contract
Minority Interest Liability
Long-term capital lease obligation
Other
----------- ------------ ------------ ------------
----------- ------------ ------------ ------------
CAPITALIZATION
Common stock: $0.01 per share par value
150,000,000 shares authorized; shares outstanding - -
86,173,169 in 1999, and 100,516,768 in 1998
Class A common stock, $0.01 par value;
10,000,000 shares authorized; shares outstanding - -
5,742,315 in 1999, 6,560,612 in 1998
Additional paid-in capital - - common stock
Additional paid-in capital - - Class A common stock
Retained (deficit) earnings
----------- ------------ ------------ ------------
Treasury shares, at cost:
167,513 shares in 1999; 185,030 shares in 1998
Unearned compensation
----------- ------------ ------------ ------------
Total common stockholders' equity
Preferred stock of subsidiaries:
Not subject to mandatory redemption
Subject to mandatory redemption
Advances from Associated Companies
Long-term debt
----------- ------------ ------------ ------------
----------- ------------ ------------ ------------
----------- ------------ ------------ ------------
TOTAL CAPITALIZATION AND LIABILITIES
=========== ============ ============ ============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
F-2I Page 4 Of 4
<PAGE> 69
Conectiv and Subsidiaries
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
ELIMINATIONS
TOTAL RECLASSES & CONECTIV DPL
CONECTIV CONSOLIDATIONS PARENT CONSOLIDATED
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income (loss) ($198,140) $ 141,758 ($198,140) ($111,443)
Adjustments to reconcile net income (loss) to
net cash provided by operating activities
Deferred recoverable purchased power contract
termination payment (228,500) --
Distribution from partnership in excess of
recognized earnings 70,849 70,849 -- --
Equity in loss / (earnings) of subsidiaries -- (182,506) 182,506
Extraordinary item (net of tax) 311,718 -- -- 253,622
Special charges 105,648 -- -- 10,504
Depreciation and amortization 294,902 12,252 -- 139,337
Allowance for equity funds used during construction (2,461) (784) -- (1,677)
Investment tax credit adjustments, net (5,094) -- -- (2,559)
Deferred income taxes, net 44,752 (21,839) -- 32,079
Deferred energy supply costs -- (23,844) -- --
Unrecovered state excise tax -- (13,027) -- --
Net change in: -- -- --
Accounts receivable (92,952) 92,609 9,742 (50,266)
Inventories (14,753) 2 -- (2,480)
Prepaid New Jersey sales and excise taxes 22,216 -- -- --
Accounts payable 61,561 10,626 -- 27,686
Taxes payable -- 69,454 (4,476) --
Other current assets & liabilities(1) (57,366) (53,495) (2,992) (4,262)
Dividends received from subsidiaries -- (135,691) 135,691 --
Other, net (2,211) 14,534 2,383 (43,711)
--------- --------- --------- ---------
Net cash provided by operating activities $ 310,169 ($ 19,102) $ 124,714 $ 246,830
--------- --------- --------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES
Acquisition of businesses, net of cash acquired (17,138) (1,939) -- --
Intercompany loan receivable/payable -- (98,413) (31,678) (13,473)
Capital expenditures (320,395) (17,112) -- (87,903)
Investments in partnerships (23,570) (53) --
Deposits to nuclear decommissioning trust funds (5,880) -- -- (2,667)
Decrease in bond proceeds held in trust funds 12,449 1,120 -- --
Decrease in investment in leveraged leases 8,242 1,816 -- --
Other, net 1,826 (5,151) 142 283
--------- --------- --------- ---------
Net cash used by investing activities (344,465) (119,733) (31,536) (103,760)
--------- --------- --------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES
Common dividends paid (135,134) 135,691 (135,134) (76,369)
Preferred dividends paid -- 6,908 -- (4,087)
Capital contributions -- -- (39,017) --
Common stock issued 68 -- 68 --
Common stock redeemed (390,397) -- (390,397) --
Preferred securities issued -- -- -- --
Preferred securities redeemed -- -- -- --
Long-term debt issued 478,500 -- 250,000 --
Long-term debt redeemed (133,218) (75) -- (64,617)
Variable rate demand bonds issued 33,330 -- -- 33,330
Variable rate demand bonds redeemed -- -- -- --
Principal portion of capital lease payments (23,554) -- -- (10,410)
Net change in short-term debt 203,627 -- 210,685 (21,700)
Cost of issuances and refinancings (8,571) (3,904) (4,114) (330)
--------- --------- --------- ---------
Net cash used by financing activities 24,652 138,620 (107,909) (144,183)
--------- --------- --------- ---------
Net change in cash and cash equivalents (9,645) (215) (14,731) (1,113)
Beginning of year cash and cash equivalents $ 65,884 215 $ 18,691 $ 1,761
--------- --------- --------- ---------
End of year cash and cash equivalents 56,239 -- 3,960 648
========= ========= ========= =========
</TABLE>
(1) Other than debt and deferred income taxes classified as current.
*CONFIDENTIAL TREATMENT REQUESTED
F - 3A Page 1 Of 3
<TABLE>
<CAPTION>
ACE
CONSOLIDATED
- -------------------------------------------------------------- ---------
<S> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income (loss) $ 5,835
Adjustments to reconcile net income (loss) to
net cash provided by operating activities
Deferred recoverable purchased power contract
termination payment (228,500)
Distribution from partnership in excess of
recognized earnings
Equity in loss / (earnings) of subsidiaries
Extraordinary item (net of tax) 58,095
Special charges 12,301
Depreciation and amortization 126,857
Allowance for equity funds used during construction --
Investment tax credit adjustments, net (2,534)
Deferred income taxes, net 71,897
Deferred energy supply costs 23,844
Unrecovered state excise tax 13,027
Net change in:
Accounts receivable (22,644)
Inventories (7,949)
Prepaid New Jersey sales and excise taxes 22,216
Accounts payable 7,921
Taxes payable (111,399)
Other current assets & liabilities(1) (3,796)
Dividends received from subsidiaries --
Other, net 1,500
---------
Net cash provided by operating activities ($ 33,329)
---------
CASH FLOWS FROM INVESTING ACTIVITIES
Acquisition of businesses, net of cash acquired
Intercompany loan receivable/payable (73,532)
Capital expenditures (48,931)
Investments in partnerships
Deposits to nuclear decommissioning trust funds (3,213)
Decrease in bond proceeds held in trust funds --
Decrease in investment in leveraged leases --
Other, net 4,070
---------
Net cash used by investing activities (121,606)
---------
CASH FLOWS FROM FINANCING ACTIVITIES
Common dividends paid (59,321)
Preferred dividends paid (2,821)
Capital contributions --
Common stock issued --
Common stock redeemed --
Preferred securities issued --
Preferred securities redeemed --
Long-term debt issued 228,500
Long-term debt redeemed (48,900)
Variable rate demand bonds issued --
Variable rate demand bonds redeemed --
Principal portion of capital lease payments (13,143)
Net change in short-term debt 30,000
Cost of issuances and refinancings (223)
---------
Net cash used by financing activities 134,091
---------
Net change in cash and cash equivalents (20,843)
Beginning of year cash and cash equivalents $ 28,767
---------
End of year cash and cash equivalents 7,924
=========
</TABLE>
(1) Other than debt and deferred income taxes classified as current.
*CONFIDENTIAL TREATMENT REQUESTED
F - 3A Page 1 Of 3
<PAGE> 70
Conectiv and Subsidiaries
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
DCI * CES*
CONSOLIDATED CONSOLIDATED ASP* DSC*
--------- --------- ------------- --------------
<S> <C> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income (loss) $ 798
Adjustments to reconcile net income (loss) to
net cash provided by operating activities
Deferred recoverable purchased power contract
termination payment
Distribution from partnership in excess of
recognized earnings
Equity in loss / (earnings) of subsidiaries
Extraordinary item (net of tax)
Special charges
Depreciation and amortization 394
Allowance for equity funds used during construction
Investment tax credit adjustments, net
Deferred income taxes, net 125
Deferred energy supply costs
Unrecovered state excise tax
Net change in:
Accounts receivable (234)
Inventories --
Prepaid New Jersey sales and excise taxes --
Accounts payable --
Taxes payable 17
Other current assets & liabilities(1) --
Dividends received from subsidiaries --
Other, net (22)
--------- --------- ------------- ---------------
Net cash provided by operating activities $ 1,078
--------- --------- ------------- ---------------
CASH FLOWS FROM INVESTING ACTIVITIES
Acquisition of businesses, net of cash acquired
Intercompany loan receivable/payable (75)
Capital expenditures --
Investments in partnerships
Deposits to nuclear decommissioning trust funds --
Decrease in bond proceeds held in trust funds --
Decrease in investment in leveraged leases --
Other, net --
------------- ---------------
--------- --------- ------------- ---------------
Net cash used by investing activities (75)
--------- --------- ------------- ---------------
CASH FLOWS FROM FINANCING ACTIVITIES
Common dividends paid --
Preferred dividends paid --
Capital contributions --
Common stock issued --
Common stock redeemed --
Preferred securities issued --
Preferred securities redeemed --
Long-term debt issued --
Long-term debt redeemed (1,004)
Variable rate demand bonds issued --
Variable rate demand bonds redeemed --
Principal portion of capital lease payments --
Net change in short-term debt --
Cost of issuances and refinancings --
--------- --------- ------------- ---------------
Net cash used by financing activities (1,004)
--------- --------- ------------- ---------------
Net change in cash and cash equivalents 0
Beginning of year cash and cash equivalents $ 0
--------- --------- ------------- ---------------
End of year cash and cash equivalents 0
========= ========= ============= ===============
</TABLE>
<TABLE>
<CAPTION>
CSI *
CONSOLIDATED
----------------
<S> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income (loss)
Adjustments to reconcile net income (loss) to
net cash provided by operating activities
Deferred recoverable purchased power contract
termination payment
Distribution from partnership in excess of
recognized earnings
Equity in loss / (earnings) of subsidiaries
Extraordinary item (net of tax)
Special charges
Depreciation and amortization
Allowance for equity funds used during construction
Investment tax credit adjustments, net
Deferred income taxes, net
Deferred energy supply costs
Unrecovered state excise tax
Net change in:
Accounts receivable
Inventories
Prepaid New Jersey sales and excise taxes
Accounts payable
Taxes payable
Other current assets & liabilities(1)
Dividends received from subsidiaries
Other, net
----------------
Net cash provided by operating activities
----------------
CASH FLOWS FROM INVESTING ACTIVITIES
Acquisition of businesses, net of cash acquired
Intercompany loan receivable/payable
Capital expenditures
Investments in partnerships
Deposits to nuclear decommissioning trust funds
Decrease in bond proceeds held in trust funds
Decrease in investment in leveraged leases
Other, net
----------------
----------------
Net cash used by investing activities
----------------
CASH FLOWS FROM FINANCING ACTIVITIES
Common dividends paid
Preferred dividends paid
Capital contributions
Common stock issued
Common stock redeemed
Preferred securities issued
Preferred securities redeemed
Long-term debt issued
Long-term debt redeemed
Variable rate demand bonds issued
Variable rate demand bonds redeemed
Principal portion of capital lease payments
Net change in short-term debt
Cost of issuances and refinancings
----------------
Net cash used by financing activities
----------------
Net change in cash and cash equivalents
Beginning of year cash and cash equivalents
----------------
End of year cash and cash equivalents
================
</TABLE>
(1) Other than debt and deferred income taxes classified as current.
*CONFIDENTIAL TREATMENT REQUESTED
F - 3A Page 2 Of 3
<PAGE> 71
Conective and Subsidiaries
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
SOLUTIONS* AGI *
CCI* CONSOLIDATED CRP* CONSOLIDATED
---------------- ------------ -------- -------------
<S> <C> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income (loss) ($105)
Adjustments to reconcile net income (loss) to
net cash provided by operating activities
Deferred recoverable purchased power contract
termination payment
Distribution from partnership in excess of
recognized earnings
Equity in loss / (earnings) of subsidiaries
Extraordinary item (net of tax)
Special charges
Depreciation and amortization 5,926
Allowance for equity funds used during construction
Investment tax credit adjustments, net
Deferred income taxes, net 6,350
Deferred energy supply costs
Unrecovered state excise tax
Net change in:
Accounts receivable (4,834)
Inventories --
Prepaid New Jersey sales and excise taxes --
Accounts payable (7,686)
Taxes payable
Other current assets & liabilities(1) 5,060
Dividends received from subsidiaries --
Other, net 7,006
---------------- ------------ -------- -------------
Net cash provided by operating activities $27,089
---------------- ------------ -------- -------------
CASH FLOWS FROM INVESTING ACTIVITIES
Acquisition of businesses, net of cash acquired
Intercompany loan receivable/payable 47,886
Capital expenditures (74,455)
Investments in partnerships
Deposits to nuclear decommissioning trust funds --
Decrease in bond proceeds held in trust funds --
Decrease in investment in leveraged leases --
Other, net --
---------------- ------------ -------- -------------
Net cash used by investing activities (26,567)
---------------- ------------ -------- -------------
CASH FLOWS FROM FINANCING ACTIVITIES
Common dividends paid --
Preferred dividends paid --
Capital contributions --
Common stock issued --
Common stock redeemed --
Preferred securities issued --
Preferred securities redeemed --
Long-term debt issued --
Long-term debt redeemed --
Variable rate demand bonds issued --
Variable rate demand bonds redeemed --
Principal portion of capital lease payments --
Net change in short-term debt --
Cost of issuances and refinancings --
---------------- ------------ -------- -------------
Net cash used by financing activities --
---------------- ------------ -------- -------------
Net change in cash and cash equivalents 522
Beginning of year cash and cash equivalents ($114)
---------------- ------------ -------- -------------
End of year cash and cash equivalents 407
=============== ============ ======== =============
</TABLE>
<TABLE>
<CAPTION>
CONECTIV *
ENERGY
---------
<S> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income (loss)
Adjustments to reconcile net income (loss) to
net cash provided by operating activities
Deferred recoverable purchased power contract
termination payment
Distribution from partnership in excess of
recognized earnings
Equity in loss / (earnings) of subsidiaries
Extraordinary item (net of tax)
Special charges
Depreciation and amortization
Allowance for equity funds used during construction
Investment tax credit adjustments, net
Deferred income taxes, net
Deferred energy supply costs
Unrecovered state excise tax
Net change in:
Accounts receivable
Inventories
Prepaid New Jersey sales and excise taxes
Accounts payable
Taxes payable
Other current assets & liabilities(1)
Dividends received from subsidiaries
Other, net
-------------
Net cash provided by operating activities
-------------
CASH FLOWS FROM INVESTING ACTIVITIES
Acquisition of businesses, net of cash acquired
Intercompany loan receivable/payable
Capital expenditures
Investments in partnerships
Deposits to nuclear decommissioning trust funds
Decrease in bond proceeds held in trust funds
Decrease in investment in leveraged leases
Other, net
-------------
Net cash used by investing activities
-------------
CASH FLOWS FROM FINANCING ACTIVITIES
Common dividends paid
Preferred dividends paid
Capital contributions
Common stock issued
Common stock redeemed
Preferred securities issued
Preferred securities redeemed
Long-term debt issued
Long-term debt redeemed
Variable rate demand bonds issued
Variable rate demand bonds redeemed
Principal portion of capital lease payments
Net change in short-term debt
Cost of issuances and refinancings
-------------
Net cash used by financing activities
-------------
Net change in cash and cash equivalents
Beginning of year cash and cash equivalents
-------------
End of year cash and cash equivalents
==============
</TABLE>
(1) Other than debt and deferred income taxes classified as current.
*CONFIDENTIAL TREATMENT REQUESTED
F - 3A Page 3 Of 3
<PAGE> 72
Conective and Subsidiaries
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations,
Reclasses &
Total DPL Consol. DPL DPL
Consolidated Entries Parent Financing
---------------- ------------- ------------ ----------
<S> <C> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income (loss) ($111,443) $0 ($111,443) $0
Adjustments to reconcile net income (loss) to
net cash provided by operating activities
Deferred recoverable purchased power contract
termination payment - - - -
Distribution from partnership in excess of
recognized earnings - - - -
Equity in loss / (earnings) of subsidiaries - -
Extraordinary item (net of tax) 253,622 - 253,622 -
Special charges 10,504 - 10,504 -
Depreciation and amortization 139,337 - 139,337 -
Allowance for equity funds used during construction (1,677) - (1,677) -
Investment tax credit adjustments, net (2,559) - (2,559) -
Deferred income taxes, net 32,079 - 32,079 -
Deferred energy supply costs - - - -
Unrecovered state excise tax - - - -
Net change in: - - - -
Accounts receivable (50,266) - (50,266) -
Inventories (2,480) - (2,480) -
Prepaid New Jersey sales and excise taxes - - - -
Accounts payable 27,686 - 27,686 -
Taxes payable - - - -
Other current assets & liabilities (1) (4,262) - (4,262) -
Dividends received from subsidiaries - - - -
Other, net (43,711) - (43,711) -
---------------- ------------- ------------ ----------
Net cash provided by operating activities $246,830 $0 $246,830 $0
---------------- ------------- ------------ ----------
CASH FLOWS FROM INVESTING ACTIVITIES
Acquisition of businesses, net of cash acquired - - - -
Intercompany loan receivable/payable (13,473) - (13,473) -
Capital expenditures (87,903) - (87,903) -
Investments in partnerships - -
Deposits to nuclear decommissioning trust funds (2,667) - (2,667) -
Decrease in bond proceeds held in trust funds - - - -
Decrease in investment in leveraged leases - - - -
Other, net 283 - 283 -
---------------- ------------- ------------ ----------
Net cash used by investing activities (103,760) - (103,760) -
---------------- ------------- ------------ ----------
CASH FLOWS FROM FINANCING ACTIVITIES
Common dividends paid (76,369) - (76,369) -
Preferred dividends paid (4,087) - (4,087) -
Capital contributions - - - -
Common stock issued - - - -
Common stock redeemed - - - -
Preferred securities issued - - - -
Preferred securities redeemed - - - -
Long-term debt issued - - - -
Long-term debt redeemed (64,617) - (64,617) -
Variable rate demand bonds issued 33,330 - 33,330 -
Variable rate demand bonds redeemed - - - -
Principal portion of capital lease payments (10,410) - (10,410) -
Net change in short-term debt (21,700) - (21,700) -
Cost of issuances and refinancings (330) - (330) -
---------------- ------------- ------------ ----------
Net cash used by financing activities (144,183) - (144,183) -
---------------- ------------- ------------ ----------
Net change in cash and cash equivalents (1,113) - (1,113) -
Beginning of year cash and cash equivalents $1,761 $0 $1,761 $0
---------------- ------------- ------------ ----------
End of year cash and cash equivalents 648 - 648 -
================ ============= ============ ==========
</TABLE>
(1) Other than debt and deferred income taxes classified as current.
F-3B
<PAGE> 73
Atlantic City Electric Company and Subsidiaries
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations,
Reclasses &
Total ACE Consol. ACE ACE ACE
Consolidated Entries Parent Capital I Capital II
--------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income (loss) $ 5,835 $ 0 $ 5,835 $ 0 $ 0
Adjustments to reconcile net income (loss) to
net cash provided by operating activities
Deferred recoverable purchased power contract
termination payment (228,500) -- (228,500) -- --
Distribution from partnership in excess of
recognized earnings -- -- -- -- --
Equity in loss / (earnings) of subsidiaries -- -- --
Extraordinary item (net of tax) 58,095 -- 58,095 -- --
Special charges 12,301 -- 12,301 -- --
Depreciation and amortization 126,857 -- 126,857 -- --
Allowance for equity funds used during construction -- -- -- -- --
Investment tax credit adjustments, net (2,534) -- (2,534) -- --
Deferred income taxes, net 71,897 -- 71,897 -- --
Deferred energy supply costs 23,844 -- 23,844 -- --
Unrecovered state excise tax 13,027 -- 13,027 -- --
Net change in: -- -- -- -- --
Accounts receivable (22,644) -- (22,644) -- --
Inventories (7,949) -- (7,949) -- --
Prepaid New Jersey sales and excise taxes 22,216 -- 22,216 -- --
Accounts payable 7,921 -- 7,921 -- --
Taxes payable (111,399) -- (111,399) -- --
Other current assets & liabilities(1) (3,796) -- (3,796) -- --
Dividends received from subsidiaries -- -- -- -- --
Other, net 1,500 -- 1,500 -- --
--------- --------- --------- --------- ---------
Net cash provided by operating activities ($ 33,329) $ 0 ($ 33,329) $ 0 $ 0
--------- --------- --------- --------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES
Acquisition of businesses, net of cash acquired -- -- --
Intercompany loan receivable/payable (73,532) -- (73,532) -- --
Capital expenditures (48,931) -- (48,931) -- --
Investments in partnerships -- -- --
Deposits to nuclear decommissioning trust funds (3,213) -- (3,213) -- --
Decrease in bond proceeds held in trust funds -- -- -- -- --
Decrease in investment in leveraged leases -- -- -- -- --
Other, net 4,070 -- 4,070 -- --
--------- --------- --------- --------- ---------
Net cash used by investing activities (121,606) -- (121,606) -- --
--------- --------- --------- --------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES
Common dividends paid (59,321) -- (59,321) -- --
Preferred dividends paid (2,821) -- (2,821) -- --
Capital contributions -- -- -- -- --
Common stock issued -- -- -- -- --
Common stock redeemed -- -- -- -- --
Preferred securities issued -- -- -- -- --
Preferred securities redeemed -- -- -- -- --
Long-term debt issued 228,500 -- 228,500 -- --
Long-term debt redeemed (48,900) -- (48,900) -- --
Variable rate demand bonds issued -- -- -- -- --
Variable rate demand bonds redeemed -- -- -- -- --
Principal portion of capital lease payments (13,143) -- (13,143) -- --
Net change in short-term debt 30,000 -- 30,000 -- --
Cost of issuances and refinancings (223) -- (223) -- --
--------- --------- --------- --------- ---------
Net cash used by financing activities 134,091 -- 134,091 -- --
--------- --------- --------- --------- ---------
Net change in cash and cash equivalents (20,843) -- (20,843) -- --
Beginning of year cash and cash equivalents $ 28,767 $ 0 $ 28,767 $ 0 $ 0
--------- --------- --------- --------- ---------
End of year cash and cash equivalents 7,924 -- 7,924 -- --
========= ========= ========= ========= =========
</TABLE>
(1)Other than debt and deferred income taxes classified as current
F-3C
<PAGE> 74
Delmarva Capital Investments, Inc. and Subsidiaries*
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations,
Reclasses &
Total DCI Consol. DCI
Consolidated Entries Parent
--------------- --------------- ---------------
<S> <C> <C> <C>
Cash Flows From Operating Activities
Net income (loss)
Adjustments to reconcile net income (loss) to
net cash provided by operating activities
Deferred recoverable purchased power contract
termination payment
Distribution from partnership in excess of
recognized earnings
Equity in loss / (earnings) of subsidiaries
Extraordinary item (net of tax)
Special charges
Depreciation and amortization
Allowance for equity funds used during construction
Investment tax credit adjustments, net
Deferred income taxes, net
Deferred energy supply costs
Unrecovered state excise tax
Net change in:
Accounts receivable
Inventories
Prepaid New Jersey sales and excise taxes
Accounts payable
Taxes payable
Other current assets & liabilities(1)
Dividends received from subsidiaries
Other, net
--------------- --------------- ---------------
Net cash provided by operating activities
--------------- --------------- ---------------
Cash Flows From Investing Activities
Acquisition of businesses, net of cash acquired
Intercompany loan receivable/payable
Capital expenditures
Investments in partnerships
Deposits to nuclear decommissioning trust funds
Decrease in bond proceeds held in trust funds
Decrease in investment in leveraged leases
Other, net
--------------- --------------- ---------------
Net cash used by investing activities
--------------- --------------- ---------------
Cash Flows From Financing Activities
Common dividends paid
Preferred dividends paid
Capital contributions
Common stock issued
Common stock redeemed
Preferred securities issued
Preferred securities redeemed
Long-term debt issued
Long-term debt redeemed
Variable rate demand bonds issued
Variable rate demand bonds redeemed
Principal portion of capital lease payments
Net change in short-term debt
Cost of issuances and refinancings
--------------- --------------- ---------------
Net cash used by financing activities
--------------- --------------- ---------------
Net change in cash and cash equivalents
Beginning of year cash and cash equivalents
--------------- --------------- ---------------
End of year cash and cash equivalents
=============== =============== ===============
</TABLE>
<TABLE>
<CAPTION>
DCI I DCI II Burney
--------------- --------------- ---------------
<S> <C> <C> <C>
Cash Flows From Operating Activities
Net income (loss)
Adjustments to reconcile net income (loss) to
net cash provided by operating activities
Deferred recoverable purchased power contract
termination payment
Distribution from partnership in excess of
recognized earnings
Equity in loss / (earnings) of subsidiaries
Extraordinary item (net of tax)
Special charges
Depreciation and amortization
Allowance for equity funds used during construction
Investment tax credit adjustments, net
Deferred income taxes, net
Deferred energy supply costs
Unrecovered state excise tax
Net change in:
Accounts receivable
Inventories
Prepaid New Jersey sales and excise taxes
Accounts payable
Taxes payable
Other current assets & liabilities(1)
Dividends received from subsidiaries
Other, net
--------------- --------------- ---------------
Net cash provided by operating activities
--------------- --------------- ---------------
Cash Flows From Investing Activities
Acquisition of businesses, net of cash acquired
Intercompany loan receivable/payable
Capital expenditures
Investments in partnerships
Deposits to nuclear decommissioning trust funds
Decrease in bond proceeds held in trust funds
Decrease in investment in leveraged leases
Other, net
--------------- --------------- ---------------
Net cash used by investing activities
--------------- --------------- ---------------
Cash Flows From Financing Activities
Common dividends paid
Preferred dividends paid
Capital contributions
Common stock issued
Common stock redeemed
Preferred securities issued
Preferred securities redeemed
Long-term debt issued
Long-term debt redeemed
Variable rate demand bonds issued
Variable rate demand bonds redeemed
Principal portion of capital lease payments
Net change in short-term debt
Cost of issuances and refinancings
--------------- --------------- ---------------
Net cash used by financing activities
--------------- --------------- ---------------
Net change in cash and cash equivalents
Beginning of year cash and cash equivalents
--------------- --------------- ---------------
End of year cash and cash equivalents
=============== =============== ===============
</TABLE>
(1) Other than debt and deferred income taxes classified as current.
*CONFIDENTIAL TREATMENT REQUESTED
F-3D
<PAGE> 75
Conectiv Energy Supply, Inc. and Subsidiaries*
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations, Conectiv
Total CES Reclasses & Energy
Consolidated Consol. Entries Parent COSC
--------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C>
Cash Flows From Operating Activities
Net income (loss)
Adjustments to reconcile net income (loss) to
net cash provided by operating activities
Deferred recoverable purchased power contract
termination payment
Distribution from partnership in excess of
recognized earnings
Equity in loss / (earnings) of subsidiaries
Extraordinary item (net of tax)
Special charges
Depreciation and amortization
Allowance for equity funds used during construction
Investment tax credit adjustments, net
Deferred income taxes, net
Deferred energy supply costs
Unrecovered state excise tax
Net change in:
Accounts receivable
Inventories
Prepaid New Jersey sales and excise taxes
Accounts payable
Taxes payable
Other current assets & liabilities(1)
Dividends received from subsidiaries
Other, net
--------------- --------------- --------------- ---------------
Net cash provided by operating activities
--------------- --------------- --------------- ---------------
Cash Flows From Investing Activities
Acquisition of businesses, net of cash acquired
Intercompany loan receivable/payable
Capital expenditures
Investments in partnerships
Deposits to nuclear decommissioning trust funds
Decrease in bond proceeds held in trust funds
Decrease in investment in leveraged leases
Other, net
--------------- --------------- --------------- ---------------
Net cash used by investing activities
--------------- --------------- --------------- ---------------
Cash Flows From Financing Activities
Common dividends paid
Preferred dividends paid
Capital contributions
Common stock issued
Common stock redeemed
Preferred securities issued
Preferred securities redeemed
Long-term debt issued
Long-term debt redeemed
Variable rate demand bonds issued
Variable rate demand bonds redeemed
Principal portion of capital lease payments
Net change in short-term debt
Cost of issuances and refinancings
--------------- --------------- --------------- ---------------
Net cash used by financing activities
--------------- --------------- --------------- ---------------
Net change in cash and cash equivalents
Beginning of year cash and cash equivalents
--------------- --------------- --------------- ---------------
End of year cash and cash equivalents
=============== =============== =============== ===============
</TABLE>
(1) Other than debt and deferred income taxes classified as current.
*CONFIDENTIAL TREATMENT REQUESTED
F - 3E
<PAGE> 76
Conectiv Services, Inc. and Subsidiaries*
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations,
Total CSI Reclasses &
Consolidated Consol. Entries CSI
--------------- --------------- ---------------
<S> <C> <C> <C>
Cash Flows From Operating Activities
Net income (loss)
Adjustments to reconcile net income (loss) to
net cash provided by operating activities
Deferred recoverable purchased power contract
termination payment
Distribution from partnership in excess of
recognized earnings
Equity in loss / (earnings) of subsidiaries
Extraordinary item (net of tax)
Special charges
Depreciation and amortization
Allowance for equity funds used during construction
Investment tax credit adjustments, net
Deferred income taxes, net
Deferred energy supply costs
Unrecovered state excise tax
Net change in:
Accounts receivable
Inventories
Prepaid New Jersey sales and excise taxes
Accounts payable
Taxes payable
Other current assets & liabilities(1)
Dividends received from subsidiaries
Other, net
--------------- --------------- ---------------
Net cash provided by operating activities
--------------- --------------- ---------------
Cash Flows From Investing Activities
Acquisition of businesses, net of cash acquired
Intercompany loan receivable/payable
Capital expenditures
Investments in partnerships
Deposits to nuclear decommissioning trust funds
Decrease in bond proceeds held in trust funds
Decrease in investment in leveraged leases
Other, net
--------------- --------------- ---------------
Net cash used by investing activities
--------------- --------------- ---------------
Cash Flows From Financing Activities
Common dividends paid
Preferred dividends paid
Capital contributions
Common stock issued
Common stock redeemed
Preferred securities issued
Preferred securities redeemed
Long-term debt issued
Long-term debt redeemed
Variable rate demand bonds issued
Variable rate demand bonds redeemed
Principal portion of capital lease payments
Net change in short-term debt
Cost of issuances and refinancings
--------------- --------------- ---------------
Net cash used by financing activities
--------------- --------------- ---------------
Net change in cash and cash equivalents
Beginning of year cash and cash equivalents
--------------- --------------- ---------------
End of year cash and cash equivalents
=============== =============== ===============
</TABLE>
<TABLE>
<CAPTION>
CTS
Plumbing Consolidated ENERVAL
--------------- --------------- ---------------
<S> <C> <C> <C>
Cash Flows From Operating Activities
Net income (loss)
Adjustments to reconcile net income (loss) to
net cash provided by operating activities
Deferred recoverable purchased power contract
termination payment
Distribution from partnership in excess of
recognized earnings
Equity in loss / (earnings) of subsidiaries
Extraordinary item (net of tax)
Special charges
Depreciation and amortization
Allowance for equity funds used during construction
Investment tax credit adjustments, net
Deferred income taxes, net
Deferred energy supply costs
Unrecovered state excise tax
Net change in:
Accounts receivable
Inventories
Prepaid New Jersey sales and excise taxes
Accounts payable
Taxes payable
Other current assets & liabilities(1)
Dividends received from subsidiaries
Other, net
--------------- --------------- ---------------
Net cash provided by operating activities
--------------- --------------- ---------------
Cash Flows From Investing Activities
Acquisition of businesses, net of cash acquired
Intercompany loan receivable/payable
Capital expenditures
Investments in partnerships
Deposits to nuclear decommissioning trust funds
Decrease in bond proceeds held in trust funds
Decrease in investment in leveraged leases
Other, net
--------------- --------------- ---------------
Net cash used by investing activities
--------------- --------------- ---------------
Cash Flows From Financing Activities
Common dividends paid
Preferred dividends paid
Capital contributions
Common stock issued
Common stock redeemed
Preferred securities issued
Preferred securities redeemed
Long-term debt issued
Long-term debt redeemed
Variable rate demand bonds issued
Variable rate demand bonds redeemed
Principal portion of capital lease payments
Net change in short-term debt
Cost of issuances and refinancings
--------------- --------------- ---------------
Net cash used by financing activities
--------------- --------------- ---------------
Net change in cash and cash equivalents
Beginning of year cash and cash equivalents
--------------- --------------- ---------------
End of year cash and cash equivalents
=============== =============== ===============
</TABLE>
(1) Other than debt and deferred income taxes classified as current.
*CONFIDENTIAL TREATMENT REQUESTED
F-3F
<PAGE> 77
Conectiv Thermal Systems, Inc. and Subsidiaries*
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations,
Total CTS Reclasses & CTS
Consolidated Consol. Entries Parent
--------------- --------------- ---------------
<S> <C> <C> <C>
Cash Flows From Operating Activities
Net income (loss)
Adjustments to reconcile net income (loss) to
net cash provided by operating activities
Deferred recoverable purchased power contract
termination payment
Distribution from partnership in excess of
recognized earnings
Equity in loss / (earnings) of subsidiaries
Extraordinary item (net of tax)
Special charges
Depreciation and amortization
Allowance for equity funds used during construction
Investment tax credit adjustments, net
Deferred income taxes, net
Deferred energy supply costs
Unrecovered state excise tax
Net change in:
Accounts receivable
Inventories
Prepaid New Jersey sales and excise taxes
Accounts payable
Taxes payable
Other current assets & liabilities(1)
Dividends received from subsidiaries
Other, net
--------------- --------------- ---------------
Net cash provided by operating activities
--------------- --------------- ---------------
Cash Flows From Investing Activities
Acquisition of businesses, net of cash acquired
Intercompany loan receivable/payable
Capital expenditures
Investments in partnerships
Deposits to nuclear decommissioning trust funds
Decrease in bond proceeds held in trust funds
Decrease in investment in leveraged leases
Other, net
--------------- --------------- ---------------
Net cash used by investing activities
--------------- --------------- ---------------
Cash Flows From Financing Activities
Common dividends paid
Preferred dividends paid
Capital contributions
Common stock issued
Common stock redeemed
Preferred securities issued
Preferred securities redeemed
Long-term debt issued
Long-term debt redeemed
Variable rate demand bonds issued
Variable rate demand bonds redeemed
Principal portion of capital lease payments
Net change in short-term debt
Cost of issuances and refinancings
--------------- --------------- ---------------
Net cash used by financing activities
--------------- --------------- ---------------
Net change in cash and cash equivalents
Beginning of year cash and cash equivalents
--------------- --------------- ---------------
End of year cash and cash equivalents
=============== =============== ===============
</TABLE>
<TABLE>
<CAPTION>
ATS
Operations AJTS TELP
--------------- --------------- ---------------
<S> <C> <C> <C>
Cash Flows From Operating Activities
Net income (loss)
Adjustments to reconcile net income (loss) to
net cash provided by operating activities
Deferred recoverable purchased power contract
termination payment
Distribution from partnership in excess of
recognized earnings
Equity in loss / (earnings) of subsidiaries
Extraordinary item (net of tax)
Special charges
Depreciation and amortization
Allowance for equity funds used during construction
Investment tax credit adjustments, net
Deferred income taxes, net
Deferred energy supply costs
Unrecovered state excise tax
Net change in:
Accounts receivable
Inventories
Prepaid New Jersey sales and excise taxes
Accounts payable
Taxes payable
Other current assets & liabilities(1)
Dividends received from subsidiaries
Other, net
--------------- --------------- ---------------
Net cash provided by operating activities
--------------- --------------- ---------------
Cash Flows From Investing Activities
Acquisition of businesses, net of cash acquired
Intercompany loan receivable/payable
Capital expenditures
Investments in partnerships
Deposits to nuclear decommissioning trust funds
Decrease in bond proceeds held in trust funds
Decrease in investment in leveraged leases
Other, net
--------------- --------------- ---------------
Net cash used by investing activities
--------------- --------------- ---------------
Cash Flows From Financing Activities
Common dividends paid
Preferred dividends paid
Capital contributions
Common stock issued
Common stock redeemed
Preferred securities issued
Preferred securities redeemed
Long-term debt issued
Long-term debt redeemed
Variable rate demand bonds issued
Variable rate demand bonds redeemed
Principal portion of capital lease payments
Net change in short-term debt
Cost of issuances and refinancings
--------------- --------------- ---------------
Net cash used by financing activities
--------------- --------------- ---------------
Net change in cash and cash equivalents
Beginning of year cash and cash equivalents
--------------- --------------- ---------------
End of year cash and cash equivalents
=============== =============== ===============
</TABLE>
(1) Other than debt and deferred income taxes classified as current.
*CONFIDENTIAL TREATMENT REQUESTED
F - 3G
<PAGE> 78
Conectiv Solutions, Inc. and Subsidiaries*
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations,
Total Solutions Reclasses & Solutions
Consolidated Consol. Entries Parent
--------------- --------------- ---------------
<S> <C> <C> <C>
Cash Flows From Operating Activities
Net income (loss)
Adjustments to reconcile net income (loss) to
net cash provided by operating activities
Deferred recoverable purchased power contract
termination payment
Distribution from partnership in excess of
recognized earnings
Equity in loss / (earnings) of subsidiaries
Extraordinary item (net of tax)
Special charges
Depreciation and amortization
Allowance for equity funds used during construction
Investment tax credit adjustments, net
Deferred income taxes, net
Deferred energy supply costs
Unrecovered state excise tax
Net change in:
Accounts receivable
Inventories
Prepaid New Jersey sales and excise taxes
Accounts payable
Taxes payable
Other current assets & liabilities(1)
Dividends received from subsidiaries
Other, net
--------------- --------------- ---------------
Net cash provided by operating activities
--------------- --------------- ---------------
Cash Flows From Investing Activities
Acquisition of businesses, net of cash acquired
Intercompany loan receivable/payable
Capital expenditures
Investments in partnerships
Deposits to nuclear decommissioning trust funds
Decrease in bond proceeds held in trust funds
Decrease in investment in leveraged leases
Other, net
--------------- --------------- ---------------
Net cash used by investing activities
--------------- --------------- ---------------
Cash Flows From Financing Activities
Common dividends paid
Preferred dividends paid
Capital contributions
Common stock issued
Common stock redeemed
Preferred securities issued
Preferred securities redeemed
Long-term debt issued
Long-term debt redeemed
Variable rate demand bonds issued
Variable rate demand bonds redeemed
Principal portion of capital lease payments
Net change in short-term debt
Cost of issuances and refinancings
--------------- --------------- ---------------
Net cash used by financing activities
--------------- --------------- ---------------
Net change in cash and cash equivalents
Beginning of year cash and cash equivalents
--------------- --------------- ---------------
End of year cash and cash equivalents
=============== =============== ===============
</TABLE>
(1) Other than debt and deferred income taxes classified as current.
*CONFIDENTIAL TREATMENT REQUESTED
F - 3H Page 1 Of 2
<PAGE> 79
Conectiv Solutions, Inc. and Subsidiaries*
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
ATE King St. Elimination
Consolidated ATE Assurance ATE/King St.
--------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C>
Cash Flows From Operating Activities
Net income (loss)
Adjustments to reconcile net income (loss) to
net cash provided by operating activities
Deferred recoverable purchased power contract
termination payment
Distribution from partnership in excess of
recognized earnings
Equity in loss / (earnings) of subsidiaries
Extraordinary item (net of tax)
Special charges
Depreciation and amortization
Allowance for equity funds used during construction
Investment tax credit adjustments, net
Deferred income taxes, net
Deferred energy supply costs
Unrecovered state excise tax
Net change in:
Accounts receivable
Inventories
Prepaid New Jersey sales and excise taxes
Accounts payable
Taxes payable
Other current assets & liabilities(1)
Dividends received from subsidiaries
Other, net
--------------- --------------- --------------- ---------------
Net cash provided by operating activities
--------------- --------------- --------------- ---------------
Cash Flows From Investing Activities
Acquisition of businesses, net of cash acquired
Intercompany loan receivable/payable
Capital expenditures
Investments in partnerships
Deposits to nuclear decommissioning trust funds
Decrease in bond proceeds held in trust funds
Decrease in investment in leveraged leases
Other, net
--------------- --------------- --------------- ---------------
Net cash used by investing activities
--------------- --------------- --------------- ---------------
Cash Flows From Financing Activities
Common dividends paid
Preferred dividends paid
Capital contributions
Common stock issued
Common stock redeemed
Preferred securities issued
Preferred securities redeemed
Long-term debt issued
Long-term debt redeemed
Variable rate demand bonds issued
Variable rate demand bonds redeemed
Principal portion of capital lease payments
Net change in short-term debt
Cost of issuances and refinancings
--------------- --------------- --------------- ---------------
Net cash used by financing activities
--------------- --------------- --------------- ---------------
Net change in cash and cash equivalents
Beginning of year cash and cash equivalents
--------------- --------------- --------------- ---------------
End of year cash and cash equivalents
=============== =============== =============== ===============
</TABLE>
(1) Other than debt and deferred income taxes classified as current.
*CONFIDENTIAL TREATMENT REQUESTED
F - 3H Page 2 Of 2
<PAGE> 80
Atlantic Generation, Inc. and Subsidiaries*
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations,
Total AGI Reclasses & AGI
Consolidated Consol. Entries Parent Vin LTD
--------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C>
Cash Flows From Operating Activities
Net income (loss)
Adjustments to reconcile net income (loss) to
net cash provided by operating activities
Deferred recoverable purchased power contract
termination payment
Distribution from partnership in excess of
recognized earnings
Equity in loss / (earnings) of subsidiaries
Extraordinary item (net of tax)
Special charges
Depreciation and amortization
Allowance for equity funds used during construction
Investment tax credit adjustments, net
Deferred income taxes, net
Deferred energy supply costs
Unrecovered state excise tax
Net change in:
Accounts receivable
Inventories
Prepaid New Jersey sales and excise taxes
Accounts payable
Taxes payable
Other current assets & liabilities(1)
Dividends received from subsidiaries
Other, net
--------------- --------------- --------------- ---------------
Net cash provided by operating activities
--------------- --------------- --------------- ---------------
Cash Flows From Investing Activities
Acquisition of businesses, net of cash acquired
Intercompany loan receivable/payable
Capital expenditures
Investments in partnerships
Deposits to nuclear decommissioning trust funds
Decrease in bond proceeds held in trust funds
Decrease in investment in leveraged leases
Other, net
--------------- --------------- --------------- ---------------
Net cash used by investing activities
--------------- --------------- --------------- ---------------
Cash Flows From Financing Activities
Common dividends paid
Preferred dividends paid
Capital contributions
Common stock issued
Common stock redeemed
Preferred securities issued
Preferred securities redeemed
Long-term debt issued
Long-term debt redeemed
Variable rate demand bonds issued
Variable rate demand bonds redeemed
Principal portion of capital lease payments
Net change in short-term debt
Cost of issuances and refinancings
--------------- --------------- --------------- ---------------
Net cash used by financing activities
--------------- --------------- --------------- ---------------
Net change in cash and cash equivalents
Beginning of year cash and cash equivalents
--------------- --------------- --------------- ---------------
End of year cash and cash equivalents
=============== =============== =============== ===============
(1) Other than debts and deferred income taxes
classified as current.
* CONFIDENTIAL TREATMENT REQUESTED
</TABLE>
F - 3I Page 1 Of 2
<PAGE> 81
Atlantic Generation, Inc. and Subsidiaries*
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Vin Gen Bing LTD Bing Gen Ped Gen
--------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C>
Cash Flows From Operating Activities
Net income (loss)
Adjustments to reconcile net income (loss) to
net cash provided by operating activities
Deferred recoverable purchased power contract
termination payment
Distribution from partnership in excess of
recognized earnings
Equity in loss / (earnings) of subsidiaries
Extraordinary item (net of tax)
Special charges
Depreciation and amortization
Allowance for equity funds used during construction
Investment tax credit adjustments, net
Deferred income taxes, net
Deferred energy supply costs
Unrecovered state excise tax
Net change in:
Accounts receivable
Inventories
Prepaid New Jersey sales and excise taxes
Accounts payable
Taxes payable
Other current assets & liabilities(1)
Dividends received from subsidiaries
Other, net
--------------- --------------- --------------- ---------------
Net cash provided by operating activities
--------------- --------------- --------------- ---------------
Cash Flows From Investing Activities
Acquisition of businesses, net of cash acquired
Intercompany loan receivable/payable
Capital expenditures
Investments in partnerships
Deposits to nuclear decommissioning trust funds
Decrease in bond proceeds held in trust funds
Decrease in investment in leveraged leases
Other, net
--------------- --------------- --------------- ---------------
Net cash used by investing activities
--------------- --------------- --------------- ---------------
Cash Flows From Financing Activities
Common dividends paid
Preferred dividends paid
Capital contributions
Common stock issued
Common stock redeemed
Preferred securities issued
Preferred securities redeemed
Long-term debt issued
Long-term debt redeemed
Variable rate demand bonds issued
Variable rate demand bonds redeemed
Principal portion of capital lease payments
Net change in short-term debt
Cost of issuances and refinancings
--------------- --------------- --------------- ---------------
Net cash used by financing activities
--------------- --------------- --------------- ---------------
Net change in cash and cash equivalents
Beginning of year cash and cash equivalents
--------------- --------------- --------------- ---------------
End of year cash and cash equivalents
=============== =============== =============== ===============
</TABLE>
(1) Other than debt and deferred income taxes classified as current.
*CONFIDENTIAL TREATMENT REQUESTED
F - 3I Page 2 Of 2
<PAGE> 82
Conectiv and Subsidiaries
Consolidating Statement of Retained Earnings
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations
Total Reclasses & Conectiv DPL ACE
Conectiv Consolidations Parent Consolidated Consolidated
--------------- --------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C> <C>
Retained Earnings
Balance as of December 31, 1998 276,939 (457,271) 276,939 322,599 182,123
Transfer of AEE parent into
Conectiv -- (16,628) -- -- --
Transfer of AET into DCI -- 5,803 -- -- --
Transfer of AEI into DCI -- -- -- -- --
Transfer DOCS into CES -- -- -- -- --
Transfer of CTS into CSI -- 1,354 -- -- --
Transfer of CI into CCI -- (147) -- -- --
Transfer of ATE into Solutions -- -- -- -- --
ASP parent set-up from AEE -- 6,544 -- -- --
AGI parent set-up from AEE -- (3,457) -- -- --
Transfer of PED Ltd. Into ATE -- -- -- -- --
Merge into Parent -- -- -- -- --
Net Income (198,140) 141,758 (198,140) (111,443) 5,835
Common stock dividends (96,242) 115,272 (96,242) (59,428) (55,845)
Class A common stock dividends (19,030) -- (19,030) -- --
Preferred dividends -- 6,572 -- (4,440) (2,132)
Redemption of preferred stock -- -- -- -- --
--------------- --------------- --------------- --------------- ---------------
Balance as of December 31, 1999 (36,472) (200,201) (36,472) 147,288 129,981
=============== =============== =============== =============== ===============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
F - 4A Page 1 Of 3
<PAGE> 83
Conectiv and Subsidiaries
Consolidating Statement of Retained Earnings
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
DCI * CES* CSI *
Consolidated Consolidated ASP* DSC* Consolidated
--------------- --------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C> <C>
Retained Earnings
Balance as of December 31, 1998 2,652
Transfer of AEE parent into
Conectiv --
Transfer of AET into DCI --
Transfer of AEI into DCI --
Transfer DOCS into CES --
Transfer of CTS into CSI --
Transfer of CI into CCI --
Transfer of ATE into Solutions --
ASP parent set-up from AEE --
AGI parent set-up from AEE --
Transfer of PED Ltd. Into ATE --
Merge into Parent --
Net Income 798
Common stock dividends --
Class A common stock dividends --
Preferred dividends --
Redemption of preferred stock --
---------------- --------------- --------------- --------------- --------------
Balance as of December 31, 1999 3,451
================ =============== =============== =============== ==============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
F - 4A Page 2 Of 3
<PAGE> 84
Conectiv and Subsidiaries
Consolidating Statement of Retained Earnings
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Solutions* AGI * Conectiv *
CCI* Consolidated CRP* Consolidated Energy
--------------- --------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C> <C>
Retained Earnings
Balance as of December 31, 1998 (26)
Transfer of AEE parent into
Conectiv --
Transfer of AET into DCI --
Transfer of AEI into DCI --
Transfer DOCS into CES --
Transfer of CTS into CSI --
Transfer of CI into CCI --
Transfer of ATE into Solutions --
ASP parent set-up from AEE --
AGI parent set-up from AEE --
Transfer of PED Ltd. Into ATE --
Merge into Parent --
Net Income (105)
Common stock dividends --
Class A common stock dividends --
Preferred dividends --
Redemption of preferred stock --
--------------- --------------- --------------- --------------- ---------------
Balance as of December 31, 1999 (131)
=============== =============== =============== =============== ===============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
F - 4A Page 3 Of 3
<PAGE> 85
Delmarva Power and Light Company and Subsidiaries
Consolidating Statement of Retained Earnings
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations,
Total DPL Reclasses & DPL DPL
Consolidated Consol. Entries Parent Financing
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Retained Earnings
Balance as of December 31, 1998 322,599 -- 322,599 --
Transfer of AEE parent into Conectiv
Transfer of AET into DCI -- -- -- --
Transfer of AEI into DCI -- -- -- --
Transfer DOCS into CES -- -- -- --
Transfer of CTS into CSI -- -- -- --
Transfer of CI into CCI -- -- -- --
Transfer of ATE into Solutions -- -- -- --
ASP parent set-up from AEE -- -- -- --
AGI parent set-up from AEE -- -- -- --
Transfer of PED Ltd. Into ATE -- -- -- --
Merge into Parent -- -- -- --
Net Income (111,443) -- (111,443) --
Common stock dividends (59,428) -- (59,428) --
Class A common stock dividends -- -- -- --
Preferred dividends (4,440) -- (4,440) --
Redemption of preferred stock -- -- -- --
--------- --------- --------- ---------
Balance as of December 31, 1999 147,288 -- 147,288 --
========= ========= ========= =========
</TABLE>
F - 4B
<PAGE> 86
Atlantic City Electric Company and Subsidiaries
Consolidating Statement of Retained Earnings
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations,
Total ACE Reclasses & ACE ACE ACE
Consolidated Consol. Entries Parent Capital I Capital II
----------------- ----------------- ----------------- --------------- ---------------
<S> <C> <C> <C> <C> <C>
Retained Earnings
Balance as of December 31, 1998 182,123 - 182,123 - -
Transfer of AEE parent into
Conectiv
Transfer of AET into DCI - - - - -
Transfer of AEI into DCI - - - - -
Transfer DOCS into CES - - - - -
Transfer of CTS into CSI - - - - -
Transfer of CI into CCI - - - - -
Transfer of ATE into Solutions - - - - -
ASP parent set-up from AEE - - - - -
AGI parent set-up from AEE - - - - -
Transfer of PED Ltd. Into ATE - - - - -
Merge into Parent - - - - -
Net Income 5,835 - 5,835 - -
Common stock dividends (55,845) - (55,845) - -
Class A common stock dividends - - - - -
Preferred dividends (2,132) - (2,132) - -
Redemption of preferred stock - - - - -
----------------- ----------------- ----------------- --------------- ---------------
Balance as of December 31, 1999 129,981 - 129,981 - -
================= ================= ================= =============== ===============
</TABLE>
F - 4C
<PAGE> 87
Delmarva Capital Investments, Inc. and Subsidiaries*
Consolidating Statement of Retained Earnings
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations,
Total DCI Reclasses & DCI
Consolidated Consol. Entries Parent DCI I
-------------------- ----------------- ---------------- -----------------
<S> <C> <C> <C> <C>
Retained Earnings
Balance as of December 31, 1998
Transfer of AEE parent into
Conectiv
Transfer of AET into DCI
Transfer of AEI into DCI
Transfer DOCS into CES
Transfer of CTS into CSI
Transfer of CI into CCI
Transfer of ATE into Solutions
ASP parent set-up from AEE
AGI parent set-up from AEE
Transfer of PED Ltd. Into ATE
Merge into Parent
Net Income
Common stock dividends
Class A common stock dividends
Preferred dividends
Redemption of preferred stock
-------------------- ----------------- ---------------- -----------------
Balance as of December 31, 1999
==================== ================= ================ =================
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
F - 4D Page 1 Of 2
<PAGE> 88
Delmarva Capital Investments, Inc. and Subsidiaries*
Consolidating Statement of Retained Earnings
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
DCTC
DCI II Burney CCM COSC
----------------- ---------------- ---------------- ---------------
<S> <C> <C> <C> <C>
Retained Earnings
Balance as of December 31, 1998
Transfer of AEE parent into
Conectiv
Transfer of AET into DCI
Transfer of AEI into DCI
Transfer DOCS into CES
Transfer of CTS into CSI
Transfer of CI into CCI
Transfer of ATE into Solutions
ASP parent set-up from AEE
AGI parent set-up from AEE
Transfer of PED Ltd. Into ATE
Merge into Parent
Net Income
Common stock dividends
Class A common stock dividends
Preferred dividends
Redemption of preferred stock
----------------- ---------------- ---------------- ---------------
Balance as of December 31, 1999
================= ================ ================ ===============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
F - 4D Page 2 Of 2
<PAGE> 89
Conectiv Energy Supply, Inc. and Subsidiaries*
Consolidating Statement of Retained Earnings
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations, Conectiv
Total CES Reclasses & Energy
Consolidated Consol. Entries Parent COSC
------------------- -------------------- --------------- --------------
<S> <C> <C> <C> <C>
Retained Earnings
Balance as of December 31, 1998
Transfer of AEE parent into Conectiv
Transfer of AET into DCI
Transfer of AEI into DCI
Transfer DOCS into CES
Transfer of CTS into CSI
Transfer of CI into CCI
Transfer of ATE into Solutions
ASP parent set-up from AEE
AGI parent set-up from AEE
Transfer of PED Ltd. Into ATE
Merge into Parent
Net Income
Common stock dividends
Class A common stock dividends
Preferred dividends
Redemption of preferred stock
------------------- -------------------- --------------- --------------
Balance as of December 31, 1999
=================== ==================== =============== ==============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
F - 4E
<PAGE> 90
Conectiv Services, Inc. and Subsidiary*
Consolidating Statement of Retained Earnings
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations,
Total CSI Reclasses &
Consolidated Consol. Entries CSI
-------------------- -------------------- ---------------
<S> <C> <C> <C>
Retained Earnings
Balance as of December 31, 1998
Transfer of AEE parent into
Conectiv
Transfer of AET into DCI
Transfer of AEI into DCI
Transfer DOCS into CES
Transfer of CTS into CSI
Transfer of CI into CCI
Transfer of ATE into
Solutions
ASP parent set-up from AEE
AGI parent set-up from AEE
Transfer of PED Ltd. Into ATE
Merge into Parent
Net Income
Common stock dividends
Class A common stock dividends
Preferred dividends
Redemption of preferred stock
-------------------- -------------------- ---------------
Balance as of December 31, 1999
==================== ==================== ===============
</TABLE>
<TABLE>
<CAPTION>
CTS
Plumbing Consolidated ENERVAL
-------------- -------------- --------------
<S> <C> <C> <C>
Retained Earnings
Balance as of December 31, 1998
Transfer of AEE parent into
Conectiv
Transfer of AET into DCI
Transfer of AEI into DCI
Transfer DOCS into CES
Transfer of CTS into CSI
Transfer of CI into CCI
Transfer of ATE into
Solutions
ASP parent set-up from AEE
AGI parent set-up from AEE
Transfer of PED Ltd. Into ATE
Merge into Parent
Net Income
Common stock dividends
Class A common stock dividends
Preferred dividends
Redemption of preferred stock
-------------- -------------- --------------
Balance as of December 31, 1999
============== ============== ==============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
F - 4F
<PAGE> 91
Conectiv Thermal Systems, Inc. and Subsidiaries*
Consolidating Statement of Retained Earnings
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations,
Total CTS Reclasses & CTS
Consolidated Consol. Entries Parent
-------------------- -------------------- ---------------
<S> <C> <C> <C>
Retained Earnings
Balance as of December 31, 1998
Transfer of AEE parent into Conectiv
Transfer of AET into DCI
Transfer of AEI into DCI
Transfer DOCS into CES
Transfer of CTS into CSI
Transfer of CI into CCI
Transfer of ATE into Solutions
ASP parent set-up from AEE
AGI parent set-up from AEE
Transfer of PED Ltd. Into ATE
Merge into Parent
Net Income
Common stock dividends
Class A common stock dividends
Preferred dividends
Redemption of preferred stock
-------------------- -------------------- ---------------
Balance as of December 31, 1999
==================== ==================== ===============
</TABLE>
<TABLE>
<CAPTION>
ATS
Operations AJTS TELP
--------------- --------------- --------------
<S> <C> <C> <C>
Retained Earnings
Balance as of December 31, 1998
Transfer of AEE parent into Conectiv
Transfer of AET into DCI
Transfer of AEI into DCI
Transfer DOCS into CES
Transfer of CTS into CSI
Transfer of CI into CCI
Transfer of ATE into Solutions
ASP parent set-up from AEE
AGI parent set-up from AEE
Transfer of PED Ltd. Into ATE
Merge into Parent
Net Income
Common stock dividends
Class A common stock dividends
Preferred dividends
Redemption of preferred stock
--------------- --------------- --------------
Balance as of December 31, 1999
=============== =============== ==============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
F - 4G
<PAGE> 92
Conectiv Solutions, Inc. and Subsidiaries*
Consolidating Statement of Retained Earnings
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations,
Total Solutions Reclasses & Solutions
Consolidated Consol. Entries Parent
-------------------- -------------------- -----------------
<S> <C> <C> <C>
Retained Earnings
Balance as of December 31, 1998
Transfer of AEE parent into Conectiv
Transfer of AET into DCI
Transfer of AEI into DCI
Transfer DOCS into CES
Transfer of CTS into CSI
Transfer of CI into CCI
Transfer of ATE into Solutions
ASP parent set-up from AEE
AGI parent set-up from AEE
Transfer of PED Ltd. Into ATE
Merge into Parent
Net Income
Common stock dividends
Class A common stock dividends
Preferred dividends
Redemption of preferred stock
-------------------- -------------------- -----------------
Balance as of December 31, 1999
==================== ==================== =================
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
F - 4H Page 1 Of 2
<PAGE> 93
Conectiv Solutions, Inc. and Subsidiaries*
Consolidating Statement of Retained Earnings
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
ATE King St. Elimination
Consolidated ATE Assurance ATE/King St.
---------------- ---------------- ---------------- ----------------
<S> <C> <C> <C> <C>
Retained Earnings
Balance as of December 31, 1998
Transfer of AEE parent into Conectiv
Transfer of AET into DCI
Transfer of AEI into DCI
Transfer DOCS into CES
Transfer of CTS into CSI
Transfer of CI into CCI
Transfer of ATE into Solutions
ASP parent set-up from AEE
AGI parent set-up from AEE
Transfer of PED Ltd. Into ATE
Merge into Parent
Net Income
Common stock dividends
Class A common stock dividends
Preferred dividends
Redemption of preferred stock
---------------- ---------------- ---------------- ----------------
Balance as of December 31, 1999
================ ================ ================ ================
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
F - 4H Page 2 Of 2
<PAGE> 94
Atlantic Generation, Inc. and Subsidiaries*
Consolidating Statement of Retained Earnings
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Eliminations,
Total AGI Reclasses & AGI
Consolidated Consol. Entries Parent Vin LTD
------------------ -------------------- --------------- --------------
<S> <C> <C> <C> <C>
Retained Earnings
Balance as of December 31, 1998
Transfer of AEE parent into Conectiv
Transfer of AET into DCI
Transfer of AEI into DCI
Transfer DOCS into CES
Transfer of CTS into CSI
Transfer of CI into CCI
Transfer of ATE into Solutions
ASP parent set-up from AEE
AGI parent set-up from AEE
Transfer of PED Ltd. Into ATE
Merge into Parent
Net Income
Common stock dividends
Class A common stock dividends
Preferred dividends
Redemption of preferred stock
------------------ -------------------- --------------- --------------
Balance as of December 31, 1999
================== ==================== =============== ==============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
F - 4I Page 1 Of 2
<PAGE> 95
Atlantic Generation, Inc. and Subsidiaries*
Consolidating Statement of Retained Earnings
For the Year Ended December 31, 1999
(Dollars in Thousands)
<TABLE>
<CAPTION>
Vin Gen Bing LTD Bing Gen Ped LTD Ped Gen
-------------- --------------- --------------- --------------- --------------
<S> <C> <C> <C> <C> <C>
Retained Earnings
Balance as of December 31, 1998
Transfer of AEE parent into Conectiv
Transfer of AET into DCI
Transfer of AEI into DCI
Transfer DOCS into CES
Transfer of CTS into CSI
Transfer of CI into CCI
Transfer of ATE into Solutions
ASP parent set-up from AEE
AGI parent set-up from AEE
Transfer of PED Ltd. Into ATE
Merge into Parent
Net Income
Common stock dividends
Class A common stock dividends
Preferred dividends
Redemption of preferred stock
-------------- --------------- --------------- --------------- --------------
Balance as of December 31, 1999
============== =============== =============== =============== ==============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
F - 4I Page 2 Of 2
<PAGE> 96
SIGNATURE
Pursuant to the requirements of the Public Utility Holding Company Act
of 1935, the Registrant has duly caused this annual report to be signed on its
behalf by the undersigned thereunto duly authorized.
CONECTIV
/s/ James P. Lavin
-------------------------------
James P. Lavin
Controller
Date: April 27, 2000
(32)
<PAGE> 97
EXHIBIT A
Conectiv's Proxy Statement and 1999 Annual Report to Shareholders, which was
filed with the Commission on February 22, 2000 (File No. 1-13895), is
incorporated herein by reference.
<PAGE> 98
EXHIBIT B
CONECTIV
B.1.1 Restated Certificate of Incorporation filed March 2, 1998 in
the office of the Delaware Secretary of State (filed with
Conectiv's Current Report on Form 8-K dated March 6, 1998)
B.1.2* Amended and Restated Bylaws as amended October 26, 1999
DELMARVA POWER & LIGHT COMPANY
B.2.1 Restated Certificate filed April 9, 1990 with the office of
the Delaware Secretary of State (filed with Registration
Statement No. 33-50453)
B.2.2 Certificate of Designation filed July 29, 1992 with the office
of the Delaware Secretary of State (filed with Registration
Statement No. 33-50453)
B.2.3 Certificate of Designation filed October 29, 1993 with the
office of the Delaware Secretary of State (filed with
Registration Statement No. 33-53855)
B.2.4 Certificate of Amendment filed June 7, 1996 with the office of
the Delaware Secretary of State (filed with Registration
Statement No. 333-07281)
B.2.5 Certificate of Amendment filed March 2, 1998 with the office
of the Delaware Secretary of State (filed with Delmarva Power
& Light's Current Report on Form 8-K dated March 4, 1998)
B.2.6 Certificate of Merger of DS Sub, Inc., a Delaware Corporation,
with and into Delmarva Power & Light Co., filed with the
Delaware Secretary of State, effective as of March 1, 1998
(filed with Delmarva Power & Light's Current Report on Form
8-K dated March 4, 1998)
B.2.7 Bylaws (filed with Delmarva Power & Light's Current Report on
Form 8-K dated March 4, 1998)
DPL REIT HOLDING, INC.
B.3.1* Certificate of Incorporation filed March 12, 1998 in the
office of the Delaware Secretary of State
B.3.2* Amended and Restated Bylaws as amended December 31, 1999
DPL REIT, INC.
B.4.1* Certificate of Incorporation filed March 12, 1998 in the
office of the Delaware Secretary of State
B.4.2* Amended and Restated Bylaws as amended December 31, 1999
ATLANTIC CITY ELECTRIC COMPANY
B.5.1 Agreement of Merger Between Atlantic City Electric Company and
South Jersey Power & Light Company filed June 30, 1949 and
Amendments through May 3, 1991 (filed with Atlantic City
Electric Company's Reports on Form 10-Q for the quarters ended
June 30, 1982, March 31, 1985, March 31, 1987 and September
30, 1991, with Atlantic City Electric Company's Form 8-K dated
October 12, 1988 and with Atlantic City Electric Company's
Form 10-K for the fiscal year ended December 31, 1990)
B.5.2* Amended and Restated Bylaws as amended December 31, 1999
1
* Filed herewith
<PAGE> 99
ACE REIT HOLDING, INC.
B.6.1* Certificate of Incorporation filed March 12, 1998 in the
office of the Delaware Secretary of State
B.6.2* Amended and Restated Bylaws as amended December 31, 1999
ACE REIT, INC.
B.7.1* Certificate of Incorporation filed March 12, 1998 in the
office of the Delaware Secretary of State
B.7.2* Amended and Restated Bylaws as amended December 31, 1999
CONECTIV RESOURCE PARTNERS, INC.
B.8.1 Certificate of Incorporation filed January 16, 1998 with the
office of the Delaware Secretary of State (filed with 1998
Form U5S)
B.8.2* Amended and Restated Bylaws as amended December 31, 1999
DELMARVA SERVICES COMPANY
B.9.1 Certificate of Incorporation of Delmarva Services Company
filed October 31, 1986 in the office of the Delaware Secretary
of State (filed with 1998 Form U5S)
B.9.2* Amended and Restated Bylaws as amended December 31 1999
CONECTIV COMMUNICATIONS, INC. (f/k/a Delmarva Telecommunications, Inc.)
B.10.1 Certificate of Incorporation of Delmarva Telecommunications,
Inc. filed October 21, 1996 in the office of the Delaware
Secretary of State (filed with 1998 Form U5S)
B.10.2 Certificate of Amendment of Certificate of Incorporation of
Delmarva Telecommunications, Inc. changing the name to
Conectiv Communications, Inc. filed February 26, 1997 in the
office of the Delaware Secretary of State (filed with 1998
Form U5S)
B.10.3* Amended and Restated Bylaws as amended December 31, 1999
CONECTIV COMMUNICATIONS OF VIRGINIA, INC.
B.11.1* Certificate of Incorporation filed November 2, 1999 in the
office of the Commonwealth of Virginia State Corporation
Commission
B.11.2* Bylaws
CONECTIV ENERGY, INC.
B.12.1 Certificate of Incorporation of Conectiv Energy, Inc. filed
February 18, 1998 in the office of the Delaware Secretary of
State (filed with 1998 Form U5S)
B.12.2* Bylaws
CONECTIV SERVICES, INC. (f/k/a Service Confidence, Inc.)
B.13.1 Certificate of Incorporation filed June 26, 1996 in the office
of the Delaware Secretary of State (filed with 1998 Form U5S)
B.13.2 Certificate of Amendment of Certificate of Incorporation of
Service Confidence, Inc. changing the name to Conectiv
Services, Inc. filed March 6, 1997 in the office of the
Delaware Secretary of State (filed with 1998 Form U5S)
B.13.3* Amended and Restated Bylaws as amended December 31, 1999
2
* Filed herewith
<PAGE> 100
CONECTIV PLUMBING, L.L.C.
B.14.1 Certificate of Formation of Conectiv Plumbing, L.L.C. filed
January 15, 1998 in the office of the Delaware Secretary of
State (filed with 1998 Form U5S)
B.14.2 Operating Agreement of Conectiv Plumbing, L.L.C. (confidential
treatment requested) (filed with 1998 Form U5S)
CONECTIV ENERGY SUPPLY, INC. (f/k/a Delmarva Energy Company)
B.15.1 Certificate of Incorporation of Delmarva Energy Company filed
July 3, 1975 in the office of the Delaware Secretary of State
(filed with 1998 Form U5S)
B.15.2 Certificate of Amendment of Certificate of Incorporation of
Delmarva Energy Company adding Article 12th filed August 19,
1987 in the office of the Delaware Secretary of State (filed
with 1998 Form U5S)
B.15.3 Certificate of Amendment of Certificate of Incorporation of
Delmarva Energy Company changing the name to Conectiv Energy
Supply, Inc. filed April 9, 1998 in the office of the Delaware
Secretary of State (filed with 1998 Form U5S)
B.15.4* Amended and Restated Bylaws as amended December 31, 1999
DELMARVA CAPITAL INVESTMENTS, INC.
B.16.1 Certificate of Incorporation filed February 27, 1985 in the
office of the Delaware Secretary of State (filed with 1998
Form U5S)
B.16.2 Certificate of Amendment of Certificate of Incorporation
amending Article 8th filed August 19, 1987 in the office of
the Delaware Secretary of State (filed with 1998 Form U5S)
B.16.3* Amended and Restated Bylaws as amended December 31, 1999
DCI I, INC.
B.17.1 Certificate of Incorporation filed February 27, 1985 in the
office of the Delaware Secretary of State (filed with 1998
Form U5S)
B.17.2 Certificate of Amendment of Certificate of Incorporation
amending Article 8th filed August 19, 1987 in the office of
the Delaware Secretary of State (filed with 1998 Form U5S)
B.17.3* Amended and Restated Bylaws as amended December 31, 1999
DCI II, INC.
B.18.1 Articles of Incorporation of DCI II, Inc. filed November 15,
1985 in the office of the Lieutenant Governor of the Virgin
Islands of the U.S. (filed with 1998 Form U5S)
B.18.2 Bylaws (filed with 1998 Form U5S)
DCTC-BURNEY, INC. (f/k/a DCTC-Redding, Inc.)
B.19.1 Certificate of Incorporation filed June 26, 1987 in the office
of the Delaware Secretary of State (filed with 1998 Form U5S)
B.19.2* Amended and Restated Bylaws as amended December 31, 1999
3
* Filed herewith
<PAGE> 101
CONECTIV OPERATING SERVICES COMPANY (f/k/a Delmarva Operating Services Company)
B.20.1 Certificate of Incorporation filed May 8, 1987 in the office
of the Delaware Secretary of State (filed with 1998 Form U5S)
B.20.2 Certificate of Amendment of Certificate of Incorporation of
Delmarva Operating Services Company changing name to Conectiv
Operating Services Company filed December 9, 1998 in the
office of the Delaware Secretary of State (filed with 1998
Form U5S)
B.20.3* Amended and Restated Bylaws as amended December 31, 1999
CONECTIV SOLUTIONS LLC
B.21.1 Certificate of Formation of Conectiv Solutions LLC filed
October 20, 1997 in the office of the Delaware Secretary of
State (filed with 1998 Form U5S)
B.21.2 Limited Liability Company Agreement for Conectiv Solutions LLC
dated October 17, 1997 (confidential treatment requested)
(filed with 1998 Form U5S)
MILLENIUM ACCOUNT SERVICES, LLC
B.22.1* Certificate of Formation of Millenium Account Services, LLC
January 1, 1999 in the office of the Delaware Secretary of
State
B.22.2* Limited Liability Company Operating Agreement of Millenium
Account Services LLC dated January 4, 1999 (confidential
treatment requested)
ENERVAL, L.L.C. (f/k/a Atlantic CNRG Services, L.L.C.)
B.23.1 Certificate of Formation of Atlantic CNRG Services, L.L.C.
filed March 17, 1995 in the office of the Delaware Secretary
of State (filed with 1998 Form U5S)
B.23.2 Certificate of Amendment of Atlantic CNRG Services, L.L.C.
changing the name to Enerval, L.L.C. filed April 15, 1996 in
the office of the Delaware Secretary of State (filed with 1998
Form U5S)
B.23.3 Operating Agreement of Atlantic CNRG Services, L.L.C. dated
March 17, 1995 (confidential treatment requested) (filed with
1998 Form U5S)
B.23.4 First Amendment to Operating Agreement of Operating Agreement
of Atlantic CNRG Services, L.L.C. dated April ___, 1996
(confidential treatment requested) (filed with 1998 Form U5S)
B.23.5 Second Amendment to Operating Agreement of Enerval, L.L.C.
dated June 17, 1998 (confidential treatment requested) (filed
with 1998 Form U5S)
ATLANTIC SOUTHERN PROPERTIES, INC. (f/k/a Atlantic Housing, Inc.)
B.24.1 Certificate of Incorporation filed June 24, 1970 in the office
of the New Jersey Secretary of State (filed with 1998 Form
U5S)
B.24.2 Certificate of Amendment to Certificate of Incorporation of
Atlantic Housing, Inc. changing the name to Atlantic Southern
Properties, Inc. filed January 4, 1989 in the office of the
New Jersey Secretary of State (filed with 1998 Form U5S)
B.24.3* Amended and Restated Bylaws as amended December 31,1999
ATE INVESTMENT, INC.
B.25.1 Certificate of Incorporation of ATE Investment, Inc. filed
October 9, 1986 in the office of the New Jersey Secretary of
State (filed with 1998 Form U5S)
B.25.2* Amended and Restated Bylaws as amended December 31, 1999
4
* Filed herewith
<PAGE> 102
KING STREET ASSURANCE, LTD.
B.26.1* Certificate of Incorporation filed August 9, 1999 in the
office of the Bermuda Registrar of Companies
B.26.2* Bye-Laws
CONECTIV THERMAL SYSTEMS, INC. (f/k/a Atlantic Thermal Systems, Inc.)
B.27.1 Certificate of Incorporation of Atlantic Thermal Systems, Inc.
filed May 5, 1994 in the office of the Delaware Secretary of
State (filed with 1998 Form U5S)
B.27.2 Certificate of Amendment of Certificate of Incorporation
changing the name to Conectiv Thermal Systems, Inc. filed
March 2, 1998 in the office of the Delaware Secretary of State
(filed with 1998 Form U5S)
B.27.3* Amended and Restated Bylaws as amended December 31, 1999
ATS OPERATING SERVICES, INC.
B.28.1 Certificate of Incorporation of ATS Operating Services, Inc.
filed March 31, 1995 in the office of the Delaware Secretary
of State (filed with 1998 Form U5S)
B.28.2 Certificate for Renewal and Revival of Certificate of
Incorporation filed December 10, 1998 in the office of the
Delaware Secretary of State (filed with 1998 Form U5S)
B.28.3* Amended and Restated Bylaws as amended December 31, 1999
ATLANTIC JERSEY THERMAL SYSTEMS, INC.
B.29.1 Certificate of Incorporation of Atlantic Jersey Thermal
Systems, Inc. filed May 20, 1994 in the office of the Delaware
Secretary of State (filed with 1998 Form U5S)
B.29.2* Amended and Restated Bylaws as amended December 31, 1999
ATLANTIC-PACIFIC GLENDALE, L.L.C.
B.30.1 Certificate of Limited Liability Company filed August 22, 1997
with the office of the Delaware Secretary of State (filed with
1998 Form U5S)
B.30.2 Operating Agreement (confidential treatment requested) (filed
with 1998 Form U5S)
ATLANTIC-PACIFIC LAS VEGAS, L.L.C.
B.31.1 Certificate of Limited Liability Company filed October 29,
1997 with the office of the Delaware Secretary of State (filed
with 1998 Form U5S)
B.31.2 Certificate of Amendment filed November 5, 1997 with the
office of the Delaware Secretary of State (filed with 1998
Form U5S)
B.31.2 Operating Agreement (confidential treatment requested) (filed
with 1998 Form U5S)
ATLANTIC GENERATION, INC.
B.32.1 Certificate of Incorporation Atlantic Generation, Inc. filed
October 9, 1986 in the office of the New Jersey Secretary of
State (filed with 1998 Form U5S)
B.32.2* Amended and Restated Bylaws as amended December 31, 1999
BINGHAMTON GENERAL, INC.
B.33.1 Certificate of Incorporation of Binghamton General, Inc. filed
May 3, 1990 in the office of the Delaware Secretary of State
(filed with 1998 Form U5S)
B.33.2* Amended and Restated Bylaws as amended December 31, 1999
BINGHAMTON LIMITED, INC.
B.34.1 Certificate of Incorporation of Binghamton Limited, Inc. filed
May 2, 1990 in the office of the Delaware Secretary of State
(filed with 1998 Form U5S)
B.34.2* Amended and Restated Bylaws as amended December 31, 1999
5
* Filed herewith
<PAGE> 103
VINELAND GENERAL, INC.
B.35.1 Certificate of Incorporation of Vineland General, Inc. filed
August 28, 1990 in the office of the Delaware Secretary of
State (filed with 1998 Form U5S)
B.35.2* Amended and Restated Bylaws as amended December 31, 1999
VINELAND LTD., INC.
B.36.1 Certificate of Incorporation of Vineland Ltd., Inc. filed
August 28, 1990 in the office of the Delaware Secretary of
State (filed with 1998 Form U5S)
B.36.2* Amended and Restated Bylaws as amended December 31, 1999
PEDRICK GEN., INC.
B.37.1 Certificate of Incorporation of Pedrick Gen., Inc. filed July
28, 1989 in the office of the New Jersey Secretary of State
(filed with 1998 Form U5S)
B.37.2* Amended and Restated Bylaws as amended December 31, 1999
6
* Filed herewith
<PAGE> 104
EXHIBIT C
(a) * Reference is made to Delmarva Power & Light Company's 1999 Form 10-K, page
IV-2 through IV-3, filed with the Commission on March 29, 2000 (File No. 1-1405)
and to Atlantic City Electric Company's 1999 Form 10-K, pages IV-2 through IV-3,
filed with the Commission on March 29, 2000; for the indentures and other
fundamental documents defining the rights of security holders. * Reference is
made to Exhibit 4(a) to Conectiv's Registration Statement on Form S-3 (File No.
333-72251) for the indenture defining the rights of security holders.
(b) Not applicable.
<PAGE> 105
EXHIBIT D
A copy of the current System Tax Allocation Agreement was filed as
Exhibit D to the 1998 Form U-5S and is incorporated by reference herein.
<PAGE> 106
EXHIBIT E
Copies of other documents prescribed by rule or order.
None.
<PAGE> 107
EXHIBIT F
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors
Conectiv
Wilmington, Delaware
In our opinion, the accompanying consolidated balance sheet and the related
consolidated statements of income, changes of common stockholders' equity, and
of cash flows present fairly, in all material respects, the financial position
of Conectiv and subsidiary companies as of December 31, 1999 and the results of
their operations and their cash flows for the year then ended, in conformity
with accounting principles generally accepted in the United States. Such
consolidated financial statements are included in the consolidated financial
statements listed in Item 10 of this Form U5S. These financial statements are
the responsibility of the Conectiv's management; our responsibility is to
express an opinion on these financial statements based on our audit. We
conducted our audit of these statements in accordance with auditing standards
generally accepted in the United States which require that we plan and perform
the audit to obtain reasonable assurance about whether the financial statements
are free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements,
assessing the accounting principles used and significant estimates made by
management, and evaluating the overall financial statement presentation. We
believe that our audit provides a reasonable basis for our opinion.
Our audit was conducted for the purpose of forming an opinion on the
consolidated financial statements taken as a whole. The supplementary
consolidating information and the financial statement exhibits of the individual
companies listed in Item 10 of this Form U5S are presented for purposes of
additional analysis rather than to present the financial position, results of
operations, and cash flows of the individual companies, and are not a required
part of the consolidated financial statements. The supplementary consolidating
information and the financial statement exhibits have been subjected to the
auditing procedures applied in the audit of the consolidated financial
statements and, in our opinion, are fairly stated, in all material respects, in
relation to the consolidated financial statements taken as a whole.
PricewaterhouseCoopers LLP
Philadelphia, Pennsylvania
February 7, 2000
<PAGE> 108
EXHIBIT G
Financial Data Tables are filed herewith as Exhibit 27 for Conective, ACE,
DPL, CRP and DCS. Confidential treatment is requested for the Financial Data
Schedules for all other companies.
<PAGE> 109
EXHIBIT H
See Item 1 for an organizational chart showing the relationship of each
EWG in which the system holds an interest to other system companies.
<PAGE> 110
EXHIBIT I
See Item 10 for the financial statements of Conectiv Energy, which is
an EWG.
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
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WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
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4,440
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WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
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WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
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<PAGE> 1
Conectiv
B.1.2
Amended and Restated Bylaws
As of October 26, 1999
1
<PAGE> 2
AMENDED AND RESTATED
B Y L A W S
OF
CONECTIV
1. OFFICES.
1.1 Offices. In addition to its registered office in the State
of Delaware, the Corporation shall have a corporate office in Wilmington,
Delaware and a significant presence in New Jersey, and such other offices,
either within or without the State of Delaware, at such locations as the Board
of Directors may from time to time determine or the business of the Corporation
may require.
2. SEAL.
2.1 Seal. The Corporation shall have a seal, which shall have
inscribed thereon its name and year of incorporation and the words, "Corporate
Seal Delaware."
3. MEETINGS OF STOCKHOLDERS.
3.1 Annual Meetings. The annual meeting of stockholders of the
Corporation shall be held on such date, at such time and at such place within or
without the State of Delaware as shall be determined by the Board of Directors
from time to time.
3.2 Special Meetings. Special meetings of the stockholders of
the Corporation shall be held on such date, at such time and at such place
within or without the State of Delaware as may be designated by the Chairman of
the Board or by the Board of Directors pursuant to a resolution approved by a
majority of the entire Board of Directors.
3.3 Notice of Meetings. (a) Notices of meetings of
stockholders shall be in writing and shall state the place, date and hour of the
meeting, and, in the case of a special meeting, the purpose or purposes for
which a meeting is called. No business other than that specified in the notice
thereof shall be transacted at any special meeting.
(b) Such notice shall either be delivered personally,
mailed, postage prepaid, or delivered by any other lawful means, to each
stockholder entitled to vote at such meeting not less than 10 nor more than 60
days before the date of the meeting. If mailed, the notice shall be directed to
the stockholder at his or her address as it appears on the records of the
Corporation. Delivery of any such notice to any officer of a corporation or
association or to any member of a partnership shall constitute delivery of such
notice to such corporation, association or partnership.
(c) Notice of any meeting of stockholders need not be
given to any stockholder if waived by such stockholder in writing, whether
before or after such meeting is held, or if such stockholder shall sign the
minutes or attend the meeting, except that if such stockholder attends a meeting
for the express purpose of objecting at the beginning of the meeting to the
transaction of any
2
<PAGE> 3
business because the meeting is not lawfully called or convened, such
stockholder shall not be deemed to have waived notice of such meeting.
3.4 Adjourned Meetings. When a meeting is adjourned to another
time or place, unless otherwise provided by these Bylaws, notice need not be
given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. At the adjourned meeting the
stockholders may transact any business which might have been transacted at the
original meeting. If an adjournment is for more than 30 days, or if after an
adjournment, a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder entitled to vote at the
meeting.
3.5 Quorum and Adjournment. Except as otherwise provided by
law, by the Certificate of Incorporation of the Corporation or by these Bylaws,
the presence, in person or by proxy, of the holders of a majority of the
aggregate voting power of the stock issued and outstanding, entitled to vote
thereat, shall constitute a quorum for the transaction of business at all
meetings of stockholders. If such majority shall not be present or represented
at any meeting of stockholders, the stockholders present, although less than a
quorum, shall have the power to adjourn the meeting.
3.6 Vote Required. Except as otherwise provided by law or by
the Certificate of Incorporation:
(a) Directors shall be elected by a plurality of the
votes present in person or represented by proxy at a meeting of stockholders and
entitled to vote in the election of directors, and
(b) whenever any corporate action other than the
election of Directors is to be taken, it shall be authorized by a majority in
voting power of the shares present in person or by proxy at a meeting of
stockholders and entitled to vote on the subject matter.
3.7 Manner of Voting. At each meeting of stockholders, each
stockholder having the right to vote shall be entitled to vote in person or by
proxy. Proxies need not be filed with the Secretary of the Corporation until the
meeting is called to order, but shall be filed before being voted. Each
stockholder shall be entitled to vote each share of stock having voting power
registered in his name on the books of the Corporation on the record date fixed
for determination of stockholders entitled to vote at such meeting. All
elections of Directors by stockholders shall be by written ballot.
3.8 Proxies. (a) At any meeting of stockholders, any
stockholder may be represented and vote by proxy or proxies. In the event that
any form of proxy shall designate two or more persons to act as proxies, a
majority of such persons present at the meeting or, if only one shall be
present, then that one shall have and may exercise all of the powers conferred
by the form of proxy upon all of the persons so designated unless the form of
proxy shall otherwise provide.
(b) The Board of Directors may, in advance of any
annual or special meeting of the stockholders, prescribe additional regulations
concerning proxies and the validation of the same, which are intended to be
voted at any such meeting.
3.9 Presiding Officer and Secretary. The Chairman of the Board
shall act as chairman of all meetings of the stockholders. In the absence of the
Chairman of the Board, the Vice Chairman of the Board or, in his or her absence,
any Director designated by the Chairman of the Board or the Board of Directors
shall act as chairman of the meeting.
The Secretary of the Corporation shall act as secretary of all
meetings of the stockholders, but, in the absence of the Secretary, the
Assistant Secretary designated in accordance with
3
<PAGE> 4
Section 5.11(b) of these Bylaws shall act as secretary of all meetings of the
stockholders, but in the absence of a designated Assistant Secretary, the
chairman of the meeting may appoint any person to act as secretary of the
meeting.
3.10 Procedure. At each meeting of stockholders, the chairman
of the meeting shall fix and announce the date and time of the opening and the
closing of the polls for each matter upon which the stockholders will vote at
the meeting and shall determine the order of business and all other matters of
procedure. Except to the extent inconsistent with any such rules and regulations
as adopted by the Board of Directors, the chairman of the meeting may establish
rules, which need not be in writing, to maintain order and safety and for the
conduct of the meeting. Without limiting the foregoing, he or she may:
(a) restrict attendance at any time to bona fide
stockholders of record and their proxies and other persons in attendance at the
invitation of the chairman;
(b) restrict dissemination of solicitation materials
and use of audio or visual recording devices at the meeting;
(c) adjourn the meeting without a vote of the
stockholders, whether or not there is a quorum present; and
(d) make rules governing speeches and debate,
including time limits and access to microphones.
The chairman of the meeting acts in his or her absolute discretion and his or
her rulings are not subject to appeal.
4. DIRECTORS.
4.1 Powers. The Board of Directors shall exercise all of the
powers of the Corporation except such as are by law, or by the Certificate of
Incorporation of this Corporation or by these Bylaws conferred upon or reserved
to the stockholders of any class or classes.
4.2 Resignations. Any Director may resign at any time by
giving written notice to the Board of Directors or the Secretary. Such
resignation shall take effect at the date of receipt of such notice or at any
later time specified therein. Acceptance of such resignation shall not be
necessary to make it effective.
4.3 Presiding Officer and Secretary. The Chairman of the Board
shall act as chairman of all meetings of the Board of Directors. In the absence
of the Chairman of the Board, the Vice Chairman of the Board, or in his absence,
the Chief Executive Officer or other person designated by the Board of Directors
shall act as chairman of the meeting.
The Secretary of the Corporation shall act as
secretary of all meetings of the Board of Directors, but, in the absence of the
Secretary, the Assistant Secretary designated in accordance with Section 5.11(b)
of these Bylaws shall act as secretary of all meetings of the Board of
Directors, but in the absence of a designated Assistant Secretary, the chairman
of the meeting may appoint any person to act as secretary of the meeting.
4.4 Annual Meetings. The Board of Directors shall meet each
year immediately following the annual meeting of stockholders, at the place
where such meeting of stockholders has been held, or at such other place as
shall be fixed by the person presiding over the meeting of the
4
<PAGE> 5
stockholders, for the purpose of election of officers and consideration of such
other business as the Board of Directors considers relevant to the management of
the Corporation.
4.5 Regular Meetings. Regular meetings of the Board of
Directors shall be held on such dates and at such times and places, within or
without the state of Delaware, as shall from time to time be determined by the
Board of Directors. In the absence of any such determination, such meetings
shall be held at such times and places, within or without the State of Delaware,
as shall be designated by the Chairman of the Board on not less than twelve
hours notice to each Director, given verbally, in writing or electronically,
either personally, by telephone (including by message or recording device), by
facsimile transmission, by telegram, by telex, by electronic mail or by other
electronic means or on not less than three (3) calendar days' notice to each
Director given by mail. Notice given by any of the foregoing means shall be
sufficient to constitute notice of a meeting without the necessity of further
notice.
4.6 Special Meetings. Special meetings of the Board of
Directors shall be held at the call of the Chairman of the Board at such times
and places, within or without the State of Delaware, as he or she shall
designate, on not less than twelve hours notice to each Director, given
verbally, in writing or electronically, either personally, by telephone
(including by message or recording device), by facsimile transmission, by
telegram, by telex, by electronic mail or by other electronic means or on not
less than three (3) calendar days' notice to each Director given by mail. Notice
given by any of the foregoing means shall be sufficient to constitute notice of
a meeting without the necessity of further notice. Special meetings shall be
called by the Secretary on like notice at the written request of a majority of
the Directors then in office.
4.7 Quorum and Powers of a Majority. At all meetings of the
Board of Directors and of each committee thereof, a majority of the members
shall be necessary and sufficient to constitute a quorum for the transaction of
business, and the act of a majority of the members present at any meeting at
which a quorum is present shall be the act of the Board of Directors or such
committee, unless by express provision of law, of the Certificate of
Incorporation or these Bylaws, a different vote is required, in which case such
express provision shall govern and control. In the absence of a quorum, a
majority of the members present at any meeting may, without notice other than
announcement at the meeting, adjourn such meeting from time to time until a
quorum is present.
4.8 Waiver of Notice. Notice of any meeting of the Board of
Directors, or any committee thereof, need not be given to any member if waived
by him or her in writing, whether before or after such meeting is held, or if he
or she shall sign the minutes or attend the meeting, except that if such
Director attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened, then such Director shall not be deemed to have
waived notice of such meeting.
4.9 Manner of Acting. (a) Members of the Board of Directors,
or any committee thereof, may participate in any meeting of the Board of
Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating therein can
hear each other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
(b) Any action required or permitted to be taken at
any meeting of the Board of Directors or any committee thereof may be taken
without a meeting if all members of the Board of Directors or such committee, as
the case may be, consent thereto in writing, and the writings are filed with the
minutes of proceedings of the Board of Directors or such committee.
5
<PAGE> 6
4.10 Compensation. (a) The Board of Directors, by a resolution
or resolutions, may fix, and from time to time change, the compensation of
Directors.
(b) Each Director shall be entitled to reimbursement
from the Corporation for his or her reasonable expenses incurred with respect to
duties as a member of the Board of Directors or any committee thereof.
(c) Nothing contained in these Bylaws shall be
construed to preclude any Director from serving the Corporation in any other
capacity and from receiving compensation from the Corporation for service
rendered to it in such other capacity.
4.11 Committees. The Board of Directors may designate one or
more committees, each committee to consist of one or more Directors, which to
the extent provided in said resolution or resolutions shall have and may
exercise the powers and authority of the Board of Directors in the management of
the business and affairs of the Corporation; provided, however, that no such
committee shall have the power or authority in reference to the following
matters: (i) approving or adopting, or recommending to the stockholders, any
action or matter expressly required by the General Corporation Law of Delaware
(the "GCLD") to be submitted to stockholders for approval or (ii) adopting,
amending, or repealing any bylaw of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member of the committee. In the absence or
disqualification of a member of a committee, the member or members present at
any meeting of such committee and not disqualified from voting, whether or not
such member of members constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in place of such absent
or disqualified director.
4.12 Committee Procedure, Limitations of Committee Powers. (a)
Except as otherwise provided by these Bylaws, each committee shall adopt its own
rules governing the time, place and method of holding its meetings and the
conduct of its proceedings and shall meet as provided by such rules or by
resolution of the Board of Directors. Unless otherwise provided by these Bylaws
or any such rules or resolutions, notice of the time and place of each meeting
of a committee shall be given to each member of such committee as provided in
Section 4.6 of these Bylaws with respect to notices of special meetings of the
Board of Directors.
(b) Each committee shall keep regular minutes of its
proceedings and report the same to the Board of Directors when required.
(c) Any member of any committee may be removed from
such committee either with or without cause, at any time, by the Board of
Directors at any meeting thereof. Any vacancy in any committee shall be filled
by the Board of Directors in the manner prescribed by the Certificate of
Incorporation or these Bylaws for the original appointment of the members of
such committee.
5. OFFICERS.
5.1 Number. (a) The officers of the Corporation shall include
a Chief Executive Officer, a President, one or more Vice Presidents (including
one or more Executive Vice Presidents and one or more Senior Vice Presidents if
deemed appropriate by the Board of Directors), a Chief Financial Officer, a
Secretary and a Treasurer. The Board of Directors shall also elect a Chairman of
the Board and may elect a Vice Chairman of the Board. Except for the Chairman of
the Board, the Vice Chairman of the Board and the Chief Executive Officer, none
of the officers of the Corporation needs to be a director of the Corporation.
Any two or more offices may be held by the same person to the extent permitted
by the GCLD.
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(b) The Chief Executive Officer shall have the power
to appoint one or more employees of the Corporation as divisional or
departmental vice presidents and fix the duties of such appointees. However, no
such divisional or departmental vice president shall be considered as an officer
of the Corporation.
5.2 Election of Officers, Qualification and Term. The Chief
Executive Officer, the President, any Executive Vice President, any Senior Vice
President, the Chief Financial Officer, the Secretary and the Treasurer of the
Corporation shall be elected from time to time by the Board of Directors and,
except as may otherwise be expressly provided in a contract of employment duly
authorized by the Board of Directors or the Merger Agreement, shall hold office
at the pleasure of the Board of Directors. The Board of Directors and the Chief
Executive Officer also may elect such other officers as the Board of Directors
or the Chief Executive Officer may from time to time deem appropriate or
necessary.
5.3 Removal. Except as otherwise expressly provided in the
Merger Agreement, any officer elected by the Board of Directors may be removed,
either with or without cause, by the Board of Directors at any meeting thereof,
or to the extent delegated to the Chairman of the Board or the Chief Executive
Officer, by the Chairman of the Board or the Chief Executive Officer. In
addition, any officer elected by the Chief Executive Officer may be removed,
either with or without cause, by the Chief Executive Officer.
5.4 Resignations. Any officer of the Corporation may resign at
any time by giving written notice to the Board of Directors or to the Chairman
of the Board or to the Chief Executive Officer. Such resignation shall take
effect at the date of the receipt of such notice or at any later time specified
therein and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
5.5 Compensation. The compensation of all officers of the
Corporation shall be fixed by or in the manner provided by the Board of
Directors from time to time, and no officer shall be prevented from receiving
such compensation by reason of the fact that he or she is also a Director of the
Corporation.
5.6 The Chairman of the Board. The Chairman of the Board shall
have the powers and duties customarily and usually associated with the office of
the Chairman of the Board and shall have such other powers and perform such
other duties as may be delegated to him or her by the Board of Directors. The
Chairman of the Board shall preside at meetings of the stockholders and of the
Board of Directors.
5.7 Vice Chairman of the Board. The Vice Chairman of the
Board, if any, shall have the powers and duties customarily and usually
associated with the office of the Vice Chairman of the Board and shall have such
other powers and perform such other duties as may be delegated to him or her by
the Board of Directors.
5.8 Chief Executive Officer. The Chief Executive Officer shall
have, subject to the supervision, direction and control of the Board of
Directors, the general powers and duties of supervision, direction and
management of the affairs and business of the Corporation usually vested in the
chief executive officer of a corporation, including, without limitation, all
powers necessary to direct and control the organizational and reporting
relationships within the Corporation. In addition, the Chief Executive Officer
shall have such other powers and perform such other duties as may be delegated
to him or her by the Board of Directors. If at any time the office of the
Chairman of the Board and the Vice Chairman of the Board shall not be filled, or
in the event of the temporary absence or disability of the
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<PAGE> 8
Chairman of the Board and the Vice Chairman of the Board, the Chief Executive
Officer shall have the powers and duties of the Chairman of the Board.
5.9 The President. The President shall serve as chief
operating officer, shall have the powers and duties customarily and usually
associated with the office of President and shall have such other powers and
perform such other duties as may be delegated to him or her from time to time by
the Board of Directors or the Chief Executive Officer.
5.10 The Vice Presidents. Each Vice President shall have such
powers and duties customarily and usually associated with the office of Vice
President and shall have such other powers and perform such other duties as may
from time to time be assigned to him or her by the Board of Directors, the Chief
Executive Officer or the President.
5.11 The Chief Financial Officer. The Chief Financial Officer
shall be responsible for the financial affairs of the Corporation, including
overseeing the duties performed by the Treasurer of the Corporation. In
addition, the Chief Financial Officer shall have such powers and duties
customarily and usually associated with the office of the Chief Financial
Officer and shall have such other powers and perform such other duties as may be
delegated to him or her from time to time by the Board of Directors or the Chief
Executive Officer.
5.12 The Secretary and the Assistant Secretary. (a) The
Secretary shall attend meetings of the Board of Directors and meetings of the
stockholders and record all votes and minutes of all such proceedings in a book
kept for such purpose. In addition, the Secretary shall have such powers and
duties customarily and usually associated with the office of Secretary and shall
have such other powers and perform such other duties as may be delegated to him
or her from time to time by the Board of Directors, the Chief Executive Officer
or the President.
(b) Each Assistant Secretary shall have such powers
and perform such duties customarily and usually associated with the office of
Assistant Secretary and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President or the Secretary. In case
of the absence or disability of the Secretary, the Assistant Secretary
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Secretary) shall perform the duties and exercise the powers
of the Secretary.
5.13 The Treasurer and the Assistant Treasurer. (a) The
Treasurer shall have custody of the Corporation's funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit or cause to be deposited moneys or other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The Treasurer shall
also maintain adequate records of all assets, liabilities and transactions of
the Corporation and shall see that adequate audits thereof are currently and
regularly made. In addition, the Treasurer shall have such powers and duties
customarily and usually associated with the office of Treasurer and shall have
such other powers and perform such other duties as may be delegated to him or
her from time to time by the Board of Directors, the Chief Executive Officer,
the President or the Chief Financial Officer.
(b) Each Assistant Treasurer shall have such powers
and perform such duties customarily and usually associated with the office of
Assistant Treasurer and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President or the Treasurer. In case
of the absence or disability of the Treasurer, the Assistant Treasurer
designated by the Chief Executive Officer (or, in the
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<PAGE> 9
absence of such designation, by the Treasurer) shall perform the duties and
exercise the powers of the Treasurer.
6. STOCK
6.1 Certificates. Certificates for shares of stock of the
Corporation shall be issued under the seal of the Corporation, or a facsimile
thereof, and shall be numbered and shall be entered in the books of the
Corporation as they are issued. Each certificate shall bear a serial number,
shall exhibit the holder's name and the number of shares evidenced thereby, and
shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the
Chief Executive Officer or the President or any Vice President, and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer.
Any or all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
by the corporation with the same effect as if such person or entity were such
officer, transfer agent or registrar at the date of issue.
6.2 Transfers. Transfers of stock of the Corporation shall be
made on the books of the Corporation only upon surrender to the Corporation of a
certificate (if any) for the shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, provided such
succession, assignment or transfer is not prohibited by the Certificate of
Incorporation, these Bylaws, applicable law or contract. Thereupon, the
Corporation shall issue a new certificate (if requested) to the person entitled
thereto, cancel the old certificate (if any) and record the transaction upon its
books.
6.3 Lost, Stolen or Destroyed Certificates. Any person
claiming a certificate of stock to be lost, stolen or destroyed shall make an
affidavit or an affirmation of that fact, and shall give the Corporation a bond
of indemnity in satisfactory form and with one or more satisfactory sureties,
whereupon a new certificate (if requested) may be issued of the same tenor and
for the same number of shares as the one alleged to be lost, stolen or
destroyed.
6.4 Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares as the person entitled to exercise the rights of a stockholder
and shall not be bound to recognize any equitable or other claim to or interest
in any such shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise expressly provided by the
GCLD.
6.5 Additional Powers of the Board. (a) In addition to those
powers set forth in Section 4.1, the Board of Directors shall have power and
authority to make all such rules and regulations as it shall deem expedient
concerning the issue, transfer and registration of certificates for shares of
stock of the Corporation, including the use of uncertificated shares of stock
subject to the provisions of the GCLD.
(b) The Board of Directors may appoint and remove
transfer agents and registrars of transfers, and may require all stock
certificates to bear the signature of any such transfer agent and/or any such
registrar of transfers.
7. MISCELLANEOUS
7.1 Place and Inspection of Books. (a) The books of the
Corporation other than such books as are required by law to be kept within the
State of Delaware shall be kept in such place or
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<PAGE> 10
places either within or without the State of Delaware as the Board of Directors
may from time to time determine.
(b) At least ten days before each meeting of
stockholders, the officer in charge of the stock ledger of the Corporation shall
prepare a complete list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
(c) The Board of Directors shall determine from time
to time whether and, if allowed, when and under what conditions and regulations
the accounts and books of the Corporation (except such as may be by law
specifically open to inspection or as otherwise provided by these Bylaws) or any
of them shall be open to the inspection of the stockholders and the
stockholders' rights in respect thereof.
7.2 Voting Shares in Other Corporations. The Chief Executive
Officer, the President, the Chief Financial Officer or any other officer of the
Corporation designated by the Board of Directors may vote any and all shares
held by the Corporation in any other corporation.
7.3 Fiscal Year. The fiscal year of the Corporation shall be
such fiscal year as the Board of Directors from time to time by resolution shall
determine.
7.4 Gender/Number. As used in these Bylaws, the masculine,
feminine or neuter gender, and the singular or plural number, shall each include
the others whenever the context so indicates.
7.5 Paragraph Titles. The titles of the paragraphs have been
inserted as a matter of reference only and shall not control or affect the
meaning or construction of any of the terms and provisions hereof.
7.6 Amendment. These Bylaws may be altered, amended or
repealed by (a) the affirmative vote of 80% or more of the aggregate number of
votes that the holders of the then outstanding shares of common stock and
preferred stock are entitled to cast on the amendment, or (b) by resolution
adopted by the affirmative vote of not less than a majority of the Directors in
office, at any annual or regular meeting of the Board of Directors or at any
special meeting of the Board of Directors if notice of the proposed alteration,
amendment or repeal be contained in written notice of such special meeting.
Notwithstanding the foregoing, the amendment of any provision of these Bylaws
requiring an affirmative vote in excess of a majority of the Directors in office
shall require the affirmative vote of at least the number of directors the
affirmative vote of whom is required by such provision.
7.7 Certificate of Incorporation. Notwithstanding anything to
the contrary contained herein, if any provision contained in these Bylaws is
inconsistent with or conflicts with a provision of the Certificate of
Incorporation, such provision of these Bylaws shall be superseded by the
inconsistent provision in the Certificate of Incorporation to the extent
necessary to give effect to such provision in the Certificate of Incorporation.
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- ----------
1. Adopted by Unanimous Written Consent of the Conectiv Board of
Directors, 3/1/98
2. Amended (Arts. 3.3(b), 3.8(a) and 3.8(b)) by resolution of the Conectiv
Board of Directors, 2/16/99
3. Amended and Restated by resolution of the Conectiv Board of Directors,
10/26/99.
11
<PAGE> 1
DPL REIT Holding Company, Inc.
B.3.1
Certificate of Incorporation
Filed March 12, 1998
1
<PAGE> 2
CERTIFICATE OF INCORPORATION
OF
DPL REIT HOLDING, INC.
FIRST: The name of the Corporation is DPL REIT Holding, Inc.
SECOND: The registered office of DPL REIT Holding, Inc. in the State of
Delaware is located at 800 King Street, Wilmington, County of New Castle, 19801,
and its registered agent shall be the Corporation itself.
THIRD: The purpose of the Corporation and the nature and objects of the
business to be transacted, promoted, conducted or carried out are:
To engage in any lawful act or activity for which
corporations may be organized under the General
Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock that the Corporation shall
be authorized to issue is One Thousand (1,000) shares of Common Stock having a
par value of One Dollar ($1.00) per share.
FIFTH: The name and mailing address of the Incorporator of the
Corporation is:
<TABLE>
<CAPTION>
Name Address
---- -------
<S> <C>
Steven L. Biener P.O. Box 6066
Newark, DE 19714-6066
</TABLE>
SIXTH: The names and mailing addresses of the sole director who shall
serve until the first annual meeting of stockholders or until his successor is
elected and qualify is:
<TABLE>
<CAPTION>
Name Address
---- -------
<S> <C>
Charles A. Mannix P.O. Box 231
Wilmington, DE 19899
</TABLE>
SEVENTH: The Board of Directors may make, add to, delete from, alter
and repeal any By-law of the Corporation.
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EIGHTH: No director of the Corporation shall be personally liable to
the Corporation for monetary damages for breach of fiduciary duty by such
director; provided, however, that this Article EIGHTH shall not eliminate or
limit the liability of a director to the extent provided by law (i) for any
breach of the director's duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the General
Corporation Law of the State of Delaware, or (iv) for any transaction from which
the director derived an improper personal benefit. The Corporation shall
indemnify its directors, officers, employees and agents against expenses,
judgment, fines and amounts paid in settlement actually and reasonably incurred
by them by reason of their serving in such capacity to the fullest extent
permitted by the Delaware General Corporation Law.
I, the undersigned, being the Incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this Certificate of Incorporation, hereby declaring
and certifying that this is my act and deed and that the facts herein stated are
true and accordingly have hereunto set my hand and seal this 12th day of March,
1998.
--------------------------------
Steven L. Biener
3
<PAGE> 1
DPL REIT Holding, Inc
B.3.2
Amended and Restated Bylaws
Adopted December 31, 1999
<PAGE> 2
AMENDED AND RESTATED
B Y L A W S
OF
DPL REIT HOLDING, INC.
1. OFFICES.
1.1 Offices. In addition to its registered office in the State
of Delaware, the Corporation shall have a corporate office in Wilmington,
Delaware, and such other offices, either within or without the State of
Delaware, at such locations as the Board of Directors may from time to time
determine or the business of the Corporation may require.
2. SEAL.
2.1 Seal. The Corporation shall have a seal, which shall have
inscribed thereon its name and year of incorporation and the words, "Corporate
Seal Delaware."
3. MEETINGS OF STOCKHOLDERS.
3.1 Annual Meetings. The annual meeting of stockholders of the
Corporation shall be held on such date, at such time and at such place within or
without the State of Delaware as shall be determined by the Board of Directors
from time to time.
3.2 Special Meetings. Special meetings of the stockholders of
the Corporation shall be held on such date, at such time and at such place
within or without the State of Delaware as may be designated by the Chairman of
the Board or by the Board of Directors.
3.3 Notice of Meetings. (a) Notices of meetings of
stockholders shall be in writing and shall state the place, date, and hour of
the meeting, and, in the case of a special meeting, the purpose or purposes for
which a meeting is called. No business other than that specified in the notice
thereof shall be transacted at any special meeting.
(b) Such notice shall either be delivered personally,
mailed, postage prepaid, or delivered by any other lawful means to each
stockholder entitled to vote at such meeting not less than 10 nor more than 60
days before the date of the meeting. If mailed, the notice shall be directed to
the stockholder at his or her address as it appears on the records of the
Corporation. Delivery of any such notice to any officer of a corporation or
association or to any member of a partnership shall constitute delivery of such
notice to such corporation, association, or partnership.
(c) Notice of any meeting of stockholders need not be
given to any stockholder if waived by such stockholder in writing, whether
before or after such meeting is held, or if such stockholder shall sign the
minutes or attend the meeting, except that if such stockholder attends a meeting
for the express purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened, such stockholder shall not be deemed to have waived notice of such
meeting.
3.4 Adjourned Meetings. When a meeting is adjourned to another
time or place, unless otherwise provided by these Bylaws, notice need not be
given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. At the adjourned meeting the
stockholders may transact any business that might have been transacted at the
original meeting. If an adjournment
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is for more than 30 days, or if after an adjournment, a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder entitled to vote at the meeting.
3.5 Quorum and Adjournment. Except as otherwise provided by
law, by the Certificate of Incorporation of the Corporation, or by these Bylaws,
the presence, in person or by proxy, of the holders of a majority of the
aggregate voting power of the stock issued and outstanding, entitled to vote
thereat, shall constitute a quorum for the transaction of business at all
meetings of stockholders. If such majority shall not be present or represented
at any meeting of stockholders, the stockholders present, although less than a
quorum, shall have the power to adjourn the meeting.
3.6 Vote Required. Except as otherwise provided by law or by
the Certificate of Incorporation:
(a) Directors shall be elected by a plurality of the
votes present in person or represented by proxy at a meeting of stockholders and
entitled to vote in the election of directors, and
(b) whenever any corporate action other than the
election of Directors is to be taken, it shall be authorized by a majority in
voting power of the shares present in person or by proxy at a meeting of
stockholders and entitled to vote on the subject matter.
3.7 Manner of Voting. At each meeting of stockholders, each
stockholder having the right to vote shall be entitled to vote in person or by
proxy. Proxies need not be filed with the Secretary of the Corporation until the
meeting is called to order, but shall be filed before being voted. Each
stockholder shall be entitled to vote each share of stock having voting power
registered in his or her name on the books of the Corporation on the record date
fixed for determination of stockholders entitled to vote at such meeting.
3.8 Stockholder Action Without a Meeting. Except as otherwise
provided by law or by the Certificate of Incorporation, any action required to
be taken at any meeting of stockholders of the corporation, or any action that
may be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice, and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing and who,
if the action had been taken at a meeting, would have been entitled to notice of
the meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of the holders to take the action were
delivered to the Corporation.
3.9 Proxies. (a) At any meeting of stockholders, any
stockholder may be represented and vote by proxy or proxies. In the event that
any form of proxy shall designate two or more persons to act as proxies, a
majority of such persons present at the meeting or, if only one shall be
present, then that one shall have and may exercise all of the powers conferred
by the form of proxy upon all of the persons so designated unless the form of
proxy shall otherwise provide.
(b) The Board of Directors may, in advance of any
annual or special meeting of the stockholders, prescribe additional regulations
concerning the validation of the same, which are intended to be voted at any
such meeting.
3.10 Presiding Officer and Secretary. The Chairman of the
Board shall act as chairman of all meetings of the stockholders. In the absence
of the Chairman of the Board, the Vice Chairman of the Board or, in his or her
absence, any Director designated by the Chairman of the Board or the Board of
Directors shall act as chairman of the meeting.
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The Secretary of the Corporation shall act as secretary of all
meetings of the stockholders, but, in the absence of the Secretary, the
Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the stockholders, but in the
absence of a designated Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
3.11 Procedure. At each meeting of stockholders, the chairman
of the meeting shall fix and announce the date and time of the opening and the
closing of the polls for each matter upon which the stockholders will vote at
the meeting and shall determine the order of business and all other matters of
procedure. Except to the extent inconsistent with any such rules and regulations
as adopted by the Board of Directors, the chairman of the meeting may establish
rules, which need not be in writing, to maintain order and safety and for the
conduct of the meeting. Without limiting the foregoing, he or she may:
(a) restrict attendance at any time to bona fide
stockholders of record and their proxies and other persons in attendance at the
invitation of the chairman;
(b) restrict dissemination of solicitation materials
and use of audio or visual recording devices at the meeting;
(c) adjourn the meeting without a vote of the
stockholders, whether or not there is a quorum present; and
(d) make rules governing speeches and debate,
including time limits and access to microphones.
The chairman of the meeting shall be entitled to act in his or her absolute
discretion and his or her rulings shall not be subject to appeal.
4. DIRECTORS.
4.1 Powers and Number. The Board of Directors shall exercise
all of the powers of the Corporation except such as are by law, or by the
Certificate of Incorporation of this Corporation or by these Bylaws conferred
upon or reserved to the stockholders of any class or classes. The number of
directors that shall constitute the whole Board of Directors shall be no fewer
than three (3) and no greater than nine (9), the exact number of directors to be
determined from time to time by resolution adopted by the Board of Directors or
the stockholders, and until otherwise determined by the Board of Directors or
the stockholders, the number of directors that shall constitute the whole Board
of Directors shall be three (3).
4.2 Resignations. Any Director may resign at any time by
giving written notice to the Board of Directors or the Secretary. Such
resignation shall take effect at the date of receipt of such notice or at any
later time specified therein. Acceptance of such resignation shall not be
necessary to make it effective.
4.3 Presiding Officer and Secretary. The Chairman of the Board
shall act as chairman of all meetings of the Board of Directors. In the absence
of the Chairman of the Board, the Vice Chairman of the Board, or in his absence,
the Chief Executive Officer or other person designated by the Board of Directors
shall act as chairman of the meeting.
The Secretary of the Corporation shall act as
secretary of all meetings of the Board of Directors, but, in the absence of the
Secretary, the Assistant Secretary designated in accordance with Section 5.11(b)
of these Bylaws shall act as secretary of all meetings of the Board of
Directors, but in the absence of a designated Assistant Secretary, the chairman
of the meeting may appoint any person to act as secretary of the meeting.
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<PAGE> 5
4.4 Annual Meetings. The Board of Directors shall meet each
year immediately following the annual meeting of stockholders, at the place
where such meeting of stockholders has been held, or at such other place as
shall be fixed by the person presiding over the meeting of the stockholders, for
the purpose of election of officers and consideration of such other business as
the Board of Directors considers relevant to the management of the Corporation.
In the event that in any year Directors are elected by written consent in lieu
of an annual meeting of stockholders, the Board of Directors shall meet in such
year as soon as practicable after receipt of such written consent by the
Corporation at such time and place as shall be fixed by the Chairman of the
Board, for the purpose of election of officers and consideration of such other
business as the Board of Directors considers relevant to the management of the
Corporation.
4.5 Regular Meetings. Regular meetings of the Board of
Directors shall be held on such dates and at such times and places, within or
without the state of Delaware, as shall from time to time be determined by the
Board of Directors. In the absence of any such determination, such meetings
shall be held at such times and places, within or without the State of Delaware,
as shall be designated by the Chairman of the Board on not less than twelve
hours notice to each Director, given verbally, in writing or electronically,
whether personally, by telephone (including by message or recording device), by
facsimile transmission, by telegram, by telex or by electronic mail or by other
electronic means, or on not less than three (3) calendar days' notice to each
Director given by mail. Notice given by any of the foregoing means shall be
sufficient to constitute notice of a meeting without the necessity of further
notice.
4.6 Special Meetings. Special meetings of the Board of
Directors shall be held at the call of the Chairman of the Board at such times
and places, within or without the State of Delaware, as he or she shall
designate, on not less than twelve hours notice to each Director, given
verbally, in writing or electronically, whether personally, by telephone
(including by message or recording device), by facsimile transmission, by
telegram, by telex, by electronic mail or by other electronic means or on not
less than three (3) calendar days' notice to each Director given by mail. Notice
given by any of the foregoing means shall be sufficient to constitute notice of
a meeting without the necessity of further notice. Special meetings shall be
called by the Secretary on like notice at the written request of a majority of
the Directors then in office.
4.7 Quorum and Powers of a Majority. At all meetings of the
Board of Directors and of each committee thereof, a majority of the members
shall be necessary and sufficient to constitute a quorum for the transaction of
business, and the act of a majority of the members present at any meeting at
which a quorum is present shall be the act of the Board of Directors or such
committee, unless by express provision of law, of the Certificate of
Incorporation, or of these Bylaws, a different vote is required, in which case
such express provision shall govern and control. In the absence of a quorum, a
majority of the members present at any meeting may, without notice other than
announcement at the meeting, adjourn such meeting from time to time until a
quorum is present.
4.8 Waiver of Notice. Notice of any meeting of the Board of
Directors, or any committee thereof, need not be given to any member if waived
by him or her in writing, whether before or after such meeting is held, or if he
or she shall sign the minutes or attend the meeting, except that if such
Director attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened, then such Director shall not be deemed to have
waived notice of such meeting.
4.9 Manner of Acting. (a) Members of the Board of Directors,
or any committee thereof, may participate in any meeting of the Board of
Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating therein can
hear each other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
(b) Any action required or permitted to be taken at
any meeting of the Board of Directors or any committee thereof may be taken
without a meeting if all members of the Board of Directors or
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such committee, as the case may be, consent thereto in writing, and the writings
are filed with the minutes of proceedings of the Board of Directors or such
committee.
4.10 Compensation. (a) The Board of Directors, by a resolution
or resolutions, may fix, and from time to time change, the compensation of
Directors.
(b) Each Director shall be entitled to reimbursement
from the Corporation for his or her reasonable expenses incurred with respect to
duties as a member of the Board of Directors or any committee thereof.
(c) Nothing contained in these Bylaws shall be
construed to preclude any Director from serving the Corporation in any other
capacity and from receiving compensation from the Corporation for service
rendered to it in such other capacity.
4.11 Committees. The Board of Directors (or any committee
thereof having the power and authority to do so) may designate one or more
committees, each committee to consist of one or more Directors, which to the
extent provided in said resolution or resolutions shall have and may exercise
the powers and authority of the Board of Directors in the management of the
business and affairs of the corporation; provided, however, that no such
committee shall have the power or authority in reference to the following
matters: (i) approving or adopting, or recommending to the stockholders, any
action or matter expressly required by the General Corporation Law of Delaware
(the "GCLD") to be submitted to stockholders for approval or (ii) adopting,
amending, or repealing any bylaw of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member of the committee. In the absence or
disqualification of a member of a committee, the member or members present at
any meeting of such committee and not disqualified from voting, whether or not
such member of members constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in place of such absent
or disqualified director.
4.12 Committee Procedure, Limitations of Committee Powers. (a)
Except as otherwise provided by these Bylaws, each committee shall adopt its own
rules governing the time, place and method of holding its meetings and the
conduct of its proceedings and shall meet as provided by such rules or by
resolution of the Board of Directors. Unless otherwise provided by these Bylaws
or any such rules or resolutions, notice of the time and place of each meeting
of a committee shall be given to each member of such committee as provided in
Section 4.6 of these Bylaws with respect to notices of special meetings of the
Board of Directors.
(b) Each committee shall keep regular minutes of its
proceedings and report the same to the Board of Directors when required.
(c) Any member of any committee may be removed from
such committee either with or without cause, at any time, by the Board of
Directors at any meeting thereof. Any vacancy in any committee shall be filled
by the Board of Directors in the manner prescribed by the Certificate of
Incorporation or these Bylaws for the original appointment of the members of
such committee.
5. OFFICERS.
5.1 Number. (a) The officers of the Corporation shall include
a Chief Executive Officer, a President, one or more Vice Presidents (including
one or more Executive Vice Presidents and one or more Senior Vice Presidents if
deemed appropriate by the Board of Directors), a Chief Financial Officer, a
Secretary, a Treasurer, and a Controller. The Board of Directors shall also
elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except
for the Chairman of the Board, the Vice Chairman of the Board, and the Chief
Executive Officer, none of the officers of the Corporation needs to be a
director of the Corporation. Any two or more offices may be held by the same
person to the extent permitted by the GCLD.
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(b) The Chief Executive Officer shall have the power
to appoint one or more employees of the Corporation as divisional or
departmental vice presidents and fix the duties of such appointees. However, no
such divisional or departmental vice president shall be considered as an officer
of the Corporation.
5.2 Election of Officers, Qualification and Term. The Chief
Executive Officer, the President, any Executive Vice President, any Senior Vice
President, the Chief Financial Officer, the Secretary and the Treasurer of the
Corporation shall be elected from time to time by the Board of Directors and,
except as may otherwise be expressly provided in a contract of employment duly
authorized by the Board of Directors, shall hold office at the pleasure of the
Board of Directors. The Board of Directors and the Chief Executive Officer also
may elect such other officers as the Board of Directors or the Chief Executive
Officer may from time to time deem appropriate or necessary.
5.3 Removal. Any officer elected by the Board of Directors may
be removed, either with or without cause, by the Board of Directors at any
meeting thereof, or to the extent delegated to the Chairman of the Board or the
Chief Executive Officer, by the Chairman of the Board or the Chief Executive
Officer.
5.4 Resignations. Any officer of the Corporation may resign at
any time by giving written notice to the Board of Directors or to the Chairman
of the Board or to the Chief Executive Officer. Such resignation shall take
effect at the date of the receipt of such notice or at any later time specified
therein and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
5.5 Compensation. The compensation of all officers of the
Corporation shall be fixed by or in the manner provided by the Board of
Directors from time to time, and no officer shall be prevented from receiving
such compensation by reason of the fact that he or she is also a Director of the
Corporation.
5.6 The Chairman of the Board. The Chairman of the Board shall
have the powers and duties customarily and usually associated with the office of
the Chairman of the Board and shall have such other powers and perform such
other duties as may be delegated to him or her by the Board of Directors. The
Chairman of the Board shall preside at meetings of the stockholders and of the
Board of Directors.
5.7 Vice Chairman of the Board. The Vice Chairman of the
Board, if any, shall have the powers and duties customarily and usually
associated with the office of the Vice Chairman of the Board and shall have such
other powers and perform such other duties as may be delegated to him or her by
the Board of Directors.
5.8 Chief Executive Officer. The Chief Executive Officer shall
have, subject to the supervision, direction and control of the Board of
Directors, the general powers and duties of supervision, direction and
management of the affairs and business of the Corporation usually vested in the
chief executive officer of a corporation, including, without limitation, all
powers necessary to direct and control the organizational and reporting
relationships within the Corporation. In addition, the Chief Executive Officer
shall have such other powers and perform such other duties as may be delegated
to him or her by the Board of Directors. If at any time the office of the
Chairman of the Board and the Vice Chairman of the Board shall not be filled, or
in the event of the temporary absence or disability of the Chairman of the Board
and the Vice Chairman of the Board, the Chief Executive Officer shall have the
powers and duties of the Chairman of the Board.
5.9 The President. The President shall serve as chief
operating officer, shall have the powers and duties customarily and usually
associated with the office of the President and shall have such other powers and
perform such other duties as may be delegated to him or her from time to time by
the Board of Directors or the Chief Executive Officer.
5.10 The Vice Presidents. Each Vice President shall have such
powers and duties customarily and usually associated with the office of Vice
President and shall have such other powers and perform
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such other duties as may from time to time be assigned to him or her by the
Board of Directors, the Chief Executive Officer, or the President.
5.11 The Chief Financial Officer. The Chief Financial Officer
shall be responsible for the financial affairs of the Corporation, including
overseeing the duties performed by the Treasurer of the Corporation. In
addition, the Chief Financial Officer shall have such powers and duties
customarily and usually associated with the office of the Chief Financial
Officer and shall have such other powers and perform such other duties as may be
delegated to him or her from time to time by the Board of Directors or the Chief
Executive Officer.
5.12 The Secretary and the Assistant Secretary. (a) The
Secretary shall attend meetings of the Board of Directors and meetings of the
stockholders and record all votes and minutes of all such proceedings in a book
kept for such purpose. In addition, the Secretary shall have such powers and
duties customarily and usually associated with the office of Secretary and shall
have such other powers and perform such other duties as may be delegated to him
or her by the Board of Directors, the Chief Executive Officer, or the President.
(b) Each Assistant Secretary shall have such powers
and perform such duties customarily and usually associated with the office of
Assistant Secretary and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Secretary. In case
of the absence or disability of the Secretary, the Assistant Secretary
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Secretary) shall perform the duties and exercise the powers
of the Secretary.
5.13 The Treasurer and the Assistant Treasurer. (a) The
Treasurer shall have custody of the Corporation's funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit or cause to be deposited moneys or other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The Treasurer shall
also maintain adequate records of all assets, liabilities, and transactions of
the Corporation and shall see that adequate audits thereof are currently and
regularly made. In addition, the Treasurer shall have such powers and duties
customarily and usually associated with the office of Treasurer and shall have
such other powers and perform such other duties as may be delegated to him or
her from time to time by the Board of Directors, the Chief Executive Officer,
the President or the Chief Financial Officer.
(b) Each Assistant Treasurer shall have such powers
and perform such duties customarily and usually associated with the office of
Assistant Treasurer and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Treasurer. In case
of the absence or disability of the Treasurer, the Assistant Treasurer
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Treasurer) shall perform the duties and exercise the powers
of the Treasurer.
5.14 Controller. The Controller shall be responsible for
maintaining the accounting records and statements, and shall properly account
for all monies and obligations due the Corporation and all properties, assets,
and liabilities of the Corporation. The Controller shall render to the Chairman
of the Board, the President or the Chief Financial Officer such periodic reports
covering the results of operations of the Corporation as may be required by
either of them or by law. In addition, the Controller shall have such powers and
duties customarily and usually associated with the office of Controller and
shall have such other powers and perform such other duties as may be delegated
to him or her from time to time by the Board of Directors, the Chief Executive
Officer, the President or the Chief Financial Officer.
6. STOCK
6.1 Certificates. Certificates for shares of stock of the
Corporation shall be issued under the seal of the Corporation, or a facsimile
thereof, and shall be numbered and shall be entered in the books of the
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Corporation as they are issued. Each certificate shall bear a serial number,
shall exhibit the holder's name and the number of shares evidenced thereby, and
shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the
Chief Executive Officer or the President or any Vice President, and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer.
Any or all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if such person or entity
were such officer, transfer agent, or registrar at the date of issue.
6.2 Transfers. Transfers of stock of the Corporation shall be
made on the books of the Corporation only upon surrender to the Corporation of a
certificate (if any) for the shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, provided such
succession, assignment, or transfer is not prohibited by the Certificate of
Incorporation, these Bylaws, applicable law or contract. Thereupon, the
Corporation shall issue a new certificate (if requested) to the person entitled
thereto, cancel the old certificate (if any), and record the transaction upon
its books.
6.3 Lost, Stolen, or Destroyed Certificates. Any person
claiming a certificate of stock to be lost, stolen, or destroyed shall make an
affidavit or an affirmation of that fact, and shall give the Corporation a bond
of indemnity in satisfactory form and with one or more satisfactory sureties,
whereupon a new certificate (if requested) may be issued of the same tenor and
for the same number of shares as the one alleged to be lost, stolen, or
destroyed.
6.4 Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares as the person entitled to exercise the rights of a stockholder
and shall not be bound to recognize any equitable or other claim to or interest
in any such shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise expressly provided by the
GCLD.
6.5 Additional Powers of the Board. (a) In addition to those
powers set forth in Section 4.1, the Board of Directors shall have power and
authority to make all such rules and regulations as it shall deem expedient
concerning the issue, transfer, and registration of certificates for shares of
stock of the Corporation, including the use of uncertificated shares of stock
subject to the provisions of the GCLD.
(b) The Board of Directors may appoint and remove
transfer agents and registrars of transfers, and may require all stock
certificates to bear the signature of any such transfer agent and/or any such
registrar of transfers.
7. INDEMNIFICATION
7.1 Each person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or the person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation, as a
director, officer, employee, or agent of another corporation or of a
partnership, joint venture, trust, or other enterprise, including service with
respect to employee benefit plans, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the GCLD, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expenses, liability, and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of his or her heirs, executors, and administrators; provided,
however, that, except as provided in this Article 7, the Corporation shall
indemnify any
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such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if authorized by the Board of Directors
of the Corporation. Any indemnification under this Article 7 (unless ordered by
a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee, or agent is proper in the circumstances because he or she has met the
applicable standard set forth in the GCLD. Such a determination shall be made
(a) by a majority vote of the directors who are not parties to such action, suit
or proceeding, even though less than a quorum; (b) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum; (c) by independent legal counsel (compensated by the Corporation) in a
written opinion; (d) by the stockholders; or (e) in any other manner permitted
by the GCLD. In addition to the right to indemnification conferred in this
Article 7, each of the above persons shall have the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that, if the GCLD requires, the
payment of such expenses incurred by a present director or officer in his or her
capacity as a director or officer of the corporation (and not in any other
capacity in which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such present
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Article 7 or otherwise. The Corporation may, by any manner permitted by the
GCLD, provide indemnification and advancement of expenses to employees and
agents of the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers. The right to indemnification and to
an advancement of expenses conferred in this Article 7 shall be a contract
right.
7.2 If a claim under Section 7.1 of this Article 7 is not paid
in full by the Corporation within 30 days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim (including attorneys' fees). It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the GCLD for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, a committee thereof, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the GCLD, nor an actual determination by the Corporation (including
its Board of Directors, a committee thereof, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct. In any suit brought by the claimant
to enforce a right to indemnification or to an advancement of expenses
hereunder, or brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the claimant
is not entitled to be indemnified, or to such advancement of expenses, under
this Article 7 or otherwise shall be on the Corporation.
7.3 The rights to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Article 7, shall not be exclusive of any other right that any person may
have or hereafter acquire under any statute, provision of the certificate of
incorporation of the Corporation, this bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
7.4 The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee, or agent of the Corporation
or another corporation, partnership, joint venture, trust, or other enterprise
against any such expense, liability, or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability,
or loss under the GCLD.
7.5 The Corporation may enter into an indemnity agreement with
any director, officer, employee, or agent of the Corporation, or of another
corporation, partnership, joint venture, trust, or other
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enterprise, upon terms and conditions that the Board of Directors deems
appropriate, as long as the provisions of the agreement are not impermissible
under applicable law.
7.6 Any amendment or repeal of this Article 7 shall not be
retroactive in effect.
7.7 In case any provision in this Article 7 shall be
determined at any time to be unenforceable in any respect, the other provisions
shall not in any way be affected or impaired thereby, and the affected provision
shall be given the fullest possible enforcement in the circumstances, it being
the intention of the Corporation to afford indemnification and advancement of
expenses to the persons indemnified hereby to the fullest extent permitted by
law.
7.8 The Corporation may, by action of the Board of Directors,
authorize one or more officers to grant rights to indemnification and
advancement of expenses to former directors and officers or to other employees
or agents of the Corporation on such terms and conditions as such officer or
officers deem appropriate under the circumstances.
8. MISCELLANEOUS
8.1 Place and Inspection of Books. (a) The books of the
Corporation other than such books as are required by law to be kept within the
State of Delaware shall be kept in such place or places either within or without
the State of Delaware as the Board of Directors may from time to time determine.
(b) At least ten days before each meeting of
stockholders, the officer in charge of the stock ledger of the Corporation shall
prepare a complete list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
(c) The Board of Directors shall determine from time
to time whether and, if allowed, when and under what conditions and regulations
the accounts and books of the Corporation (except such as may be by law
specifically open to inspection or as otherwise provided by these Bylaws) or any
of them shall be open to the inspection of the stockholders and the
stockholders' rights in respect thereof.
8.2 Voting Shares in Other Corporations. The Chief Executive
Officer, the President, the Chief Financial Officer or any other officer of the
Corporation designated by the Board of Directors may vote any and all shares
held by the Corporation in any other corporation.
8.3 Fiscal Year. The fiscal year of the Corporation shall be
such fiscal year as the Board of Directors from time to time by resolution shall
determine.
8.4 Gender/Number. As used in these Bylaws, the masculine,
feminine, or neuter gender, and the singular or plural number, shall each
include the others whenever the context so indicates.
8.5 Paragraph Titles. The titles of the paragraphs have been
inserted as a matter of reference only and shall not control or affect the
meaning or construction of any of the terms and provisions hereof.
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8.6 Amendment. These Bylaws may be altered, amended, or
repealed by (a) the affirmative vote of 80% or more of the aggregate number of
votes that the holders of the then outstanding shares of common stock and
preferred stock are entitled to cast on the amendment, or (b) by resolution
adopted by the affirmative vote of not less than a majority of the Directors in
office, at any annual or regular meeting of the Board of Directors or at any
special meeting of the Board of Directors if notice of the proposed alteration,
amendment, or repeal be contained in written notice of such special meeting.
Notwithstanding the foregoing, the amendment of any provision of these Bylaws
that requires an affirmative vote in excess of a majority of the Directors in
office shall require the affirmative vote of at least the number of directors
the affirmative vote of whom is required by such provision.
8.7 Certificate of Incorporation. Notwithstanding anything to
the contrary contained herein, if any provision contained in these Bylaws is
inconsistent with or conflicts with a provision of the Certificate of
Incorporation, such provision of these Bylaws shall be superseded by the
inconsistent provision in the Certificate of Incorporation to the extent
necessary to give effect to such provision in the Certificate of Incorporation.
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DPL REIT, Inc.
B.4.1
Certificate of Incorporation
Filed March 12, 1998
1
<PAGE> 2
CERTIFICATE OF INCORPORATION
OF
DPL REIT, INC.
FIRST: The name of the Corporation is DPL REIT, Inc.
SECOND: The registered office of DPL REIT, Inc. in the State of
Delaware is located at 800 King Street, Wilmington, County of New Castle, 19801,
and its registered agent shall be the Corporation itself.
THIRD: The purpose of the Corporation and the nature and objects of the
business to be transacted, promoted, conducted or carried out are:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of the State of Delaware
and maintain its status as a real estate investment trust ("REIT")
within the meaning of Section 856(a) of the Internal Revenue Code of
1986, as amended, or any successor statute (the "Code").
FOURTH: The total number of shares of stock that the Corporation shall
be authorized to issue is One Thousand (1,000) shares of Common Stock having a
par value of One Dollar ($1.00) per share.
FIFTH: The name and mailing address of the Incorporator of the
Corporation is:
Name Address
---- -------
Steven L. Biener P.O. Box 6066
Newark, DE 19714-6066
SIXTH: The names and mailing addresses of the sole director who shall
serve until the first annual meeting of stockholders or until his successor is
elected and qualify is:
Name Address
---- -------
Charles A. Mannix P.O. Box 231
Wilmington, DE 19899
SEVENTH: The Board of Directors may make, add to, delete from, alter
and repeal any By-law of the Corporation.
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EIGHTH: No director of the Corporation shall be personally liable to
the Corporation for monetary damages for breach of fiduciary duty by such
director; provided, however, that this Article EIGHTH shall not eliminate or
limit the liability of a director to the extent provided by law (i) for any
breach of the director's duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the General
Corporation Law of the State of Delaware, or (iv) for any transaction from which
the director derived an improper personal benefit. The Corporation shall
indemnify its directors, officers, employees and agents against expenses,
judgment, fines and amounts paid in settlement actually and reasonably incurred
by them by reason of their serving in such capacity to the fullest extent
permitted by the Delaware General Corporation Law.
NINTH: The provisions of this Certificate of Incorporation are
severable, and if the Board of Directors shall determine that any one or more of
such provisions are in conflict with Part II, of Subchapter M, of Chapter 1 of
Subtitle A of the Code or any other provision of the Code applicable to REITs,
or other applicable federal or state laws, the conflicting provisions shall be
deemed never to have constituted a part of this Certificate of Incorporation,
even without any amendment to this Certificate of Incorporation; provided, that
such determination by the Board of Directors shall not affect or impair the
remaining provisions of this Certificate of Incorporation or render invalid or
improper any action taken or omitted prior to such determination. No director
shall be liable for making or failing to make such a determination.
I, the undersigned, being the Incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this Certificate of Incorporation, hereby declaring
and certifying that this is my act and deed and that the facts herein stated are
true and accordingly have hereunto set my hand and seal this 12th day of March,
1998.
--------------------------------
Steven L. Biener
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DPL REIT, Inc
B.4.2
Amended and Restated Bylaws
Adopted December 31, 1999
<PAGE> 2
AMENDED AND RESTATED
B Y L A W S
OF
DPL REIT, INC.
1. OFFICES.
1.1 Offices. In addition to its registered office in the State
of Delaware, the Corporation shall have a corporate office in Wilmington,
Delaware, and such other offices, either within or without the State of
Delaware, at such locations as the Board of Directors may from time to time
determine or the business of the Corporation may require.
2. SEAL.
2.1 Seal. The Corporation shall have a seal, which shall have
inscribed thereon its name and year of incorporation and the words, "Corporate
Seal Delaware."
3. MEETINGS OF STOCKHOLDERS.
3.1 Annual Meetings. The annual meeting of stockholders of the
Corporation shall be held on such date, at such time and at such place within or
without the State of Delaware as shall be determined by the Board of Directors
from time to time.
3.2 Special Meetings. Special meetings of the stockholders of
the Corporation shall be held on such date, at such time and at such place
within or without the State of Delaware as may be designated by the Chairman of
the Board or by the Board of Directors.
3.3 Notice of Meetings. (a) Notices of meetings of
stockholders shall be in writing and shall state the place, date, and hour of
the meeting, and, in the case of a special meeting, the purpose or purposes for
which a meeting is called. No business other than that specified in the notice
thereof shall be transacted at any special meeting.
(b) Such notice shall either be delivered personally,
mailed, postage prepaid, or delivered by any other lawful means to each
stockholder entitled to vote at such meeting not less than 10 nor more than 60
days before the date of the meeting. If mailed, the notice shall be directed to
the stockholder at his or her address as it appears on the records of the
Corporation. Delivery of any such notice to any officer of a corporation or
association or to any member of a partnership shall constitute delivery of such
notice to such corporation, association, or partnership.
(c) Notice of any meeting of stockholders need not be
given to any stockholder if waived by such stockholder in writing, whether
before or after such meeting is held, or if such stockholder shall sign the
minutes or attend the meeting, except that if such stockholder attends a meeting
for the express purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened, such stockholder shall not be deemed to have waived notice of such
meeting.
3.4 Adjourned Meetings. When a meeting is adjourned to another
time or place, unless otherwise provided by these Bylaws, notice need not be
given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. At the adjourned meeting the
stockholders may transact any business that might have been transacted at the
original meeting. If an adjournment
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is for more than 30 days, or if after an adjournment, a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder entitled to vote at the meeting.
3.5 Quorum and Adjournment. Except as otherwise provided by
law, by the Certificate of Incorporation of the Corporation, or by these Bylaws,
the presence, in person or by proxy, of the holders of a majority of the
aggregate voting power of the stock issued and outstanding, entitled to vote
thereat, shall constitute a quorum for the transaction of business at all
meetings of stockholders. If such majority shall not be present or represented
at any meeting of stockholders, the stockholders present, although less than a
quorum, shall have the power to adjourn the meeting.
3.6 Vote Required. Except as otherwise provided by law or by
the Certificate of Incorporation:
(a) Directors shall be elected by a plurality of the
votes present in person or represented by proxy at a meeting of stockholders and
entitled to vote in the election of directors, and
(b) whenever any corporate action other than the
election of Directors is to be taken, it shall be authorized by a majority in
voting power of the shares present in person or by proxy at a meeting of
stockholders and entitled to vote on the subject matter.
3.7 Manner of Voting. At each meeting of stockholders, each
stockholder having the right to vote shall be entitled to vote in person or by
proxy. Proxies need not be filed with the Secretary of the Corporation until the
meeting is called to order, but shall be filed before being voted. Each
stockholder shall be entitled to vote each share of stock having voting power
registered in his or her name on the books of the Corporation on the record date
fixed for determination of stockholders entitled to vote at such meeting.
3.8 Stockholder Action Without a Meeting. Except as otherwise
provided by law or by the Certificate of Incorporation, any action required to
be taken at any meeting of stockholders of the corporation, or any action that
may be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice, and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing and who,
if the action had been taken at a meeting, would have been entitled to notice of
the meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of the holders to take the action were
delivered to the Corporation.
3.9 Proxies. (a) At any meeting of stockholders, any
stockholder may be represented and vote by proxy or proxies. In the event that
any form of proxy shall designate two or more persons to act as proxies, a
majority of such persons present at the meeting or, if only one shall be
present, then that one shall have and may exercise all of the powers conferred
by the form of proxy upon all of the persons so designated unless the form of
proxy shall otherwise provide.
(b) The Board of Directors may, in advance of any
annual or special meeting of the stockholders, prescribe additional regulations
concerning the validation of the same, which are intended to be voted at any
such meeting.
3.10 Presiding Officer and Secretary. The Chairman of the
Board shall act as chairman of all meetings of the stockholders. In the absence
of the Chairman of the Board, the Vice Chairman of the Board or, in his or her
absence, any Director designated by the Chairman of the Board or the Board of
Directors shall act as chairman of the meeting.
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The Secretary of the Corporation shall act as secretary of all
meetings of the stockholders, but, in the absence of the Secretary, the
Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the stockholders, but in the
absence of a designated Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
3.11 Procedure. At each meeting of stockholders, the chairman
of the meeting shall fix and announce the date and time of the opening and the
closing of the polls for each matter upon which the stockholders will vote at
the meeting and shall determine the order of business and all other matters of
procedure. Except to the extent inconsistent with any such rules and regulations
as adopted by the Board of Directors, the chairman of the meeting may establish
rules, which need not be in writing, to maintain order and safety and for the
conduct of the meeting. Without limiting the foregoing, he or she may:
(a) restrict attendance at any time to bona fide
stockholders of record and their proxies and other persons in attendance at the
invitation of the chairman;
(b) restrict dissemination of solicitation materials
and use of audio or visual recording devices at the meeting;
(c) adjourn the meeting without a vote of the
stockholders, whether or not there is a quorum present; and
(d) make rules governing speeches and debate,
including time limits and access to microphones.
The chairman of the meeting shall be entitled to act in his or her absolute
discretion and his or her rulings shall not be subject to appeal.
4. DIRECTORS.
4.1 Powers and Number. The Board of Directors shall exercise
all of the powers of the Corporation except such as are by law, or by the
Certificate of Incorporation of this Corporation or by these Bylaws conferred
upon or reserved to the stockholders of any class or classes. The number of
directors that shall constitute the whole Board of Directors shall be no fewer
than three (3) and no greater than nine (9), the exact number of directors to be
determined from time to time by resolution adopted by the Board of Directors or
the stockholders, and until otherwise determined by the Board of Directors or
the stockholders, the number of directors that shall constitute the whole Board
of Directors shall be three (3).
4.2 Resignations. Any Director may resign at any time by
giving written notice to the Board of Directors or the Secretary. Such
resignation shall take effect at the date of receipt of such notice or at any
later time specified therein. Acceptance of such resignation shall not be
necessary to make it effective.
4.3 Presiding Officer and Secretary. The Chairman of the Board
shall act as chairman of all meetings of the Board of Directors. In the absence
of the Chairman of the Board, the Vice Chairman of the Board, or in his absence,
the Chief Executive Officer or other person designated by the Board of Directors
shall act as chairman of the meeting.
The Secretary of the Corporation shall act as
secretary of all meetings of the Board of Directors, but, in the absence of the
Secretary, the Assistant Secretary designated in accordance with Section 5.11(b)
of these Bylaws shall act as secretary of all meetings of the Board of
Directors, but in the absence of a designated Assistant Secretary, the chairman
of the meeting may appoint any person to act as secretary of the meeting.
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4.4 Annual Meetings. The Board of Directors shall meet each
year immediately following the annual meeting of stockholders, at the place
where such meeting of stockholders has been held, or at such other place as
shall be fixed by the person presiding over the meeting of the stockholders, for
the purpose of election of officers and consideration of such other business as
the Board of Directors considers relevant to the management of the Corporation.
In the event that in any year Directors are elected by written consent in lieu
of an annual meeting of stockholders, the Board of Directors shall meet in such
year as soon as practicable after receipt of such written consent by the
Corporation at such time and place as shall be fixed by the Chairman of the
Board, for the purpose of election of officers and consideration of such other
business as the Board of Directors considers relevant to the management of the
Corporation.
4.5 Regular Meetings. Regular meetings of the Board of
Directors shall be held on such dates and at such times and places, within or
without the state of Delaware, as shall from time to time be determined by the
Board of Directors. In the absence of any such determination, such meetings
shall be held at such times and places, within or without the State of Delaware,
as shall be designated by the Chairman of the Board on not less than twelve
hours notice to each Director, given verbally, in writing or electronically,
whether personally, by telephone (including by message or recording device), by
facsimile transmission, by telegram, by telex or by electronic mail or by other
electronic means, or on not less than three (3) calendar days' notice to each
Director given by mail. Notice given by any of the foregoing means shall be
sufficient to constitute notice of a meeting without the necessity of further
notice.
4.6 Special Meetings. Special meetings of the Board of
Directors shall be held at the call of the Chairman of the Board at such times
and places, within or without the State of Delaware, as he or she shall
designate, on not less than twelve hours notice to each Director, given
verbally, in writing or electronically, whether personally, by telephone
(including by message or recording device), by facsimile transmission, by
telegram, by telex, by electronic mail or by other electronic means or on not
less than three (3) calendar days' notice to each Director given by mail. Notice
given by any of the foregoing means shall be sufficient to constitute notice of
a meeting without the necessity of further notice. Special meetings shall be
called by the Secretary on like notice at the written request of a majority of
the Directors then in office.
4.7 Quorum and Powers of a Majority. At all meetings of the
Board of Directors and of each committee thereof, a majority of the members
shall be necessary and sufficient to constitute a quorum for the transaction of
business, and the act of a majority of the members present at any meeting at
which a quorum is present shall be the act of the Board of Directors or such
committee, unless by express provision of law, of the Certificate of
Incorporation, or of these Bylaws, a different vote is required, in which case
such express provision shall govern and control. In the absence of a quorum, a
majority of the members present at any meeting may, without notice other than
announcement at the meeting, adjourn such meeting from time to time until a
quorum is present.
4.8 Waiver of Notice. Notice of any meeting of the Board of
Directors, or any committee thereof, need not be given to any member if waived
by him or her in writing, whether before or after such meeting is held, or if he
or she shall sign the minutes or attend the meeting, except that if such
Director attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened, then such Director shall not be deemed to have
waived notice of such meeting.
4.9 Manner of Acting. (a) Members of the Board of Directors,
or any committee thereof, may participate in any meeting of the Board of
Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating therein can
hear each other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
(b) Any action required or permitted to be taken at
any meeting of the Board of Directors or any committee thereof may be taken
without a meeting if all members of the Board of Directors or
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such committee, as the case may be, consent thereto in writing, and the writings
are filed with the minutes of proceedings of the Board of Directors or such
committee.
4.10 Compensation. (a) The Board of Directors, by a resolution
or resolutions, may fix, and from time to time change, the compensation of
Directors.
(b) Each Director shall be entitled to reimbursement
from the Corporation for his or her reasonable expenses incurred with respect to
duties as a member of the Board of Directors or any committee thereof.
(c) Nothing contained in these Bylaws shall be
construed to preclude any Director from serving the Corporation in any other
capacity and from receiving compensation from the Corporation for service
rendered to it in such other capacity.
4.11 Committees. The Board of Directors (or any committee
thereof having the power and authority to do so) may designate one or more
committees, each committee to consist of one or more Directors, which to the
extent provided in said resolution or resolutions shall have and may exercise
the powers and authority of the Board of Directors in the management of the
business and affairs of the corporation; provided, however, that no such
committee shall have the power or authority in reference to the following
matters: (i) approving or adopting, or recommending to the stockholders, any
action or matter expressly required by the General Corporation Law of Delaware
(the "GCLD") to be submitted to stockholders for approval or (ii) adopting,
amending, or repealing any bylaw of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member of the committee. In the absence or
disqualification of a member of a committee, the member or members present at
any meeting of such committee and not disqualified from voting, whether or not
such member of members constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in place of such absent
or disqualified director.
4.12 Committee Procedure, Limitations of Committee Powers. (a)
Except as otherwise provided by these Bylaws, each committee shall adopt its own
rules governing the time, place and method of holding its meetings and the
conduct of its proceedings and shall meet as provided by such rules or by
resolution of the Board of Directors. Unless otherwise provided by these Bylaws
or any such rules or resolutions, notice of the time and place of each meeting
of a committee shall be given to each member of such committee as provided in
Section 4.6 of these Bylaws with respect to notices of special meetings of the
Board of Directors.
(b) Each committee shall keep regular minutes of its
proceedings and report the same to the Board of Directors when required.
(c) Any member of any committee may be removed from
such committee either with or without cause, at any time, by the Board of
Directors at any meeting thereof. Any vacancy in any committee shall be filled
by the Board of Directors in the manner prescribed by the Certificate of
Incorporation or these Bylaws for the original appointment of the members of
such committee.
5. OFFICERS.
5.1 Number. (a) The officers of the Corporation shall include
a Chief Executive Officer, a President, one or more Vice Presidents (including
one or more Executive Vice Presidents and one or more Senior Vice Presidents if
deemed appropriate by the Board of Directors), a Chief Financial Officer, a
Secretary, a Treasurer, and a Controller. The Board of Directors shall also
elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except
for the Chairman of the Board, the Vice Chairman of the Board, and the Chief
Executive Officer, none of the officers of the Corporation needs to be a
director of the Corporation. Any two or more offices may be held by the same
person to the extent permitted by the GCLD.
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(b) The Chief Executive Officer shall have the power
to appoint one or more employees of the Corporation as divisional or
departmental vice presidents and fix the duties of such appointees. However, no
such divisional or departmental vice president shall be considered as an officer
of the Corporation.
5.2 Election of Officers, Qualification and Term. The Chief
Executive Officer, the President, any Executive Vice President, any Senior Vice
President, the Chief Financial Officer, the Secretary and the Treasurer of the
Corporation shall be elected from time to time by the Board of Directors and,
except as may otherwise be expressly provided in a contract of employment duly
authorized by the Board of Directors, shall hold office at the pleasure of the
Board of Directors. The Board of Directors and the Chief Executive Officer also
may elect such other officers as the Board of Directors or the Chief Executive
Officer may from time to time deem appropriate or necessary.
5.3 Removal. Any officer elected by the Board of Directors may
be removed, either with or without cause, by the Board of Directors at any
meeting thereof, or to the extent delegated to the Chairman of the Board or the
Chief Executive Officer, by the Chairman of the Board or the Chief Executive
Officer.
5.4 Resignations. Any officer of the Corporation may resign at
any time by giving written notice to the Board of Directors or to the Chairman
of the Board or to the Chief Executive Officer. Such resignation shall take
effect at the date of the receipt of such notice or at any later time specified
therein and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
5.5 Compensation. The compensation of all officers of the
Corporation shall be fixed by or in the manner provided by the Board of
Directors from time to time, and no officer shall be prevented from receiving
such compensation by reason of the fact that he or she is also a Director of the
Corporation.
5.6 The Chairman of the Board. The Chairman of the Board shall
have the powers and duties customarily and usually associated with the office of
the Chairman of the Board and shall have such other powers and perform such
other duties as may be delegated to him or her by the Board of Directors. The
Chairman of the Board shall preside at meetings of the stockholders and of the
Board of Directors.
5.7 Vice Chairman of the Board. The Vice Chairman of the
Board, if any, shall have the powers and duties customarily and usually
associated with the office of the Vice Chairman of the Board and shall have such
other powers and perform such other duties as may be delegated to him or her by
the Board of Directors.
5.8 Chief Executive Officer. The Chief Executive Officer shall
have, subject to the supervision, direction and control of the Board of
Directors, the general powers and duties of supervision, direction and
management of the affairs and business of the Corporation usually vested in the
chief executive officer of a corporation, including, without limitation, all
powers necessary to direct and control the organizational and reporting
relationships within the Corporation. In addition, the Chief Executive Officer
shall have such other powers and perform such other duties as may be delegated
to him or her by the Board of Directors. If at any time the office of the
Chairman of the Board and the Vice Chairman of the Board shall not be filled, or
in the event of the temporary absence or disability of the Chairman of the Board
and the Vice Chairman of the Board, the Chief Executive Officer shall have the
powers and duties of the Chairman of the Board.
5.9 The President. The President shall serve as chief
operating officer, shall have the powers and duties customarily and usually
associated with the office of the President and shall have such other powers and
perform such other duties as may be delegated to him or her from time to time by
the Board of Directors or the Chief Executive Officer.
5.10 The Vice Presidents. Each Vice President shall have such
powers and duties customarily and usually associated with the office of Vice
President and shall have such other powers and perform
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such other duties as may from time to time be assigned to him or her by the
Board of Directors, the Chief Executive Officer, or the President.
5.11 The Chief Financial Officer. The Chief Financial Officer
shall be responsible for the financial affairs of the Corporation, including
overseeing the duties performed by the Treasurer of the Corporation. In
addition, the Chief Financial Officer shall have such powers and duties
customarily and usually associated with the office of the Chief Financial
Officer and shall have such other powers and perform such other duties as may be
delegated to him or her from time to time by the Board of Directors or the Chief
Executive Officer.
5.12 The Secretary and the Assistant Secretary. (a) The
Secretary shall attend meetings of the Board of Directors and meetings of the
stockholders and record all votes and minutes of all such proceedings in a book
kept for such purpose. In addition, the Secretary shall have such powers and
duties customarily and usually associated with the office of Secretary and shall
have such other powers and perform such other duties as may be delegated to him
or her by the Board of Directors, the Chief Executive Officer, or the President.
(b) Each Assistant Secretary shall have such powers
and perform such duties customarily and usually associated with the office of
Assistant Secretary and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Secretary. In case
of the absence or disability of the Secretary, the Assistant Secretary
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Secretary) shall perform the duties and exercise the powers
of the Secretary.
5.13 The Treasurer and the Assistant Treasurer. (a) The
Treasurer shall have custody of the Corporation's funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit or cause to be deposited moneys or other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The Treasurer shall
also maintain adequate records of all assets, liabilities, and transactions of
the Corporation and shall see that adequate audits thereof are currently and
regularly made. In addition, the Treasurer shall have such powers and duties
customarily and usually associated with the office of Treasurer and shall have
such other powers and perform such other duties as may be delegated to him or
her from time to time by the Board of Directors, the Chief Executive Officer,
the President or the Chief Financial Officer.
(b) Each Assistant Treasurer shall have such powers
and perform such duties customarily and usually associated with the office of
Assistant Treasurer and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Treasurer. In case
of the absence or disability of the Treasurer, the Assistant Treasurer
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Treasurer) shall perform the duties and exercise the powers
of the Treasurer.
5.14 Controller. The Controller shall be responsible for
maintaining the accounting records and statements, and shall properly account
for all monies and obligations due the Corporation and all properties, assets,
and liabilities of the Corporation. The Controller shall render to the Chairman
of the Board, the President or the Chief Financial Officer such periodic reports
covering the results of operations of the Corporation as may be required by
either of them or by law. In addition, the Controller shall have such powers and
duties customarily and usually associated with the office of Controller and
shall have such other powers and perform such other duties as may be delegated
to him or her from time to time by the Board of Directors, the Chief Executive
Officer, the President or the Chief Financial Officer.
6. STOCK
6.1 Certificates. Certificates for shares of stock of the
Corporation shall be issued under the seal of the Corporation, or a facsimile
thereof, and shall be numbered and shall be entered in the books of the
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Corporation as they are issued. Each certificate shall bear a serial number,
shall exhibit the holder's name and the number of shares evidenced thereby, and
shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the
Chief Executive Officer or the President or any Vice President, and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer.
Any or all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if such person or entity
were such officer, transfer agent, or registrar at the date of issue.
6.2 Transfers. Transfers of stock of the Corporation shall be
made on the books of the Corporation only upon surrender to the Corporation of a
certificate (if any) for the shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, provided such
succession, assignment, or transfer is not prohibited by the Certificate of
Incorporation, these Bylaws, applicable law or contract. Thereupon, the
Corporation shall issue a new certificate (if requested) to the person entitled
thereto, cancel the old certificate (if any), and record the transaction upon
its books.
6.3 Lost, Stolen, or Destroyed Certificates. Any person
claiming a certificate of stock to be lost, stolen, or destroyed shall make an
affidavit or an affirmation of that fact, and shall give the Corporation a bond
of indemnity in satisfactory form and with one or more satisfactory sureties,
whereupon a new certificate (if requested) may be issued of the same tenor and
for the same number of shares as the one alleged to be lost, stolen, or
destroyed.
6.4 Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares as the person entitled to exercise the rights of a stockholder
and shall not be bound to recognize any equitable or other claim to or interest
in any such shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise expressly provided by the
GCLD.
6.5 Additional Powers of the Board. (a) In addition to those
powers set forth in Section 4.1, the Board of Directors shall have power and
authority to make all such rules and regulations as it shall deem expedient
concerning the issue, transfer, and registration of certificates for shares of
stock of the Corporation, including the use of uncertificated shares of stock
subject to the provisions of the GCLD.
(b) The Board of Directors may appoint and remove
transfer agents and registrars of transfers, and may require all stock
certificates to bear the signature of any such transfer agent and/or any such
registrar of transfers.
7. INDEMNIFICATION
7.1 Each person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or the person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation, as a
director, officer, employee, or agent of another corporation or of a
partnership, joint venture, trust, or other enterprise, including service with
respect to employee benefit plans, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the GCLD, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expenses, liability, and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of his or her heirs, executors, and administrators; provided,
however, that, except as provided in this Article 7, the Corporation shall
indemnify any
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such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if authorized by the Board of Directors
of the Corporation. Any indemnification under this Article 7 (unless ordered by
a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee, or agent is proper in the circumstances because he or she has met the
applicable standard set forth in the GCLD. Such a determination shall be made
(a) by a majority vote of the directors who are not parties to such action, suit
or proceeding, even though less than a quorum; (b) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum; (c) by independent legal counsel (compensated by the Corporation) in a
written opinion; (d) by the stockholders; or (e) in any other manner permitted
by the GCLD. In addition to the right to indemnification conferred in this
Article 7, each of the above persons shall have the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that, if the GCLD requires, the
payment of such expenses incurred by a present director or officer in his or her
capacity as a director or officer of the corporation (and not in any other
capacity in which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such present
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Article 7 or otherwise. The Corporation may, by any manner permitted by the
GCLD, provide indemnification and advancement of expenses to employees and
agents of the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers. The right to indemnification and to
an advancement of expenses conferred in this Article 7 shall be a contract
right.
7.2 If a claim under Section 7.1 of this Article 7 is not paid
in full by the Corporation within 30 days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim (including attorneys' fees). It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the GCLD for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, a committee thereof, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the GCLD, nor an actual determination by the Corporation (including
its Board of Directors, a committee thereof, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct. In any suit brought by the claimant
to enforce a right to indemnification or to an advancement of expenses
hereunder, or brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the claimant
is not entitled to be indemnified, or to such advancement of expenses, under
this Article 7 or otherwise shall be on the Corporation.
7.3 The rights to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Article 7, shall not be exclusive of any other right that any person may
have or hereafter acquire under any statute, provision of the certificate of
incorporation of the Corporation, this bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
7.4 The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee, or agent of the Corporation
or another corporation, partnership, joint venture, trust, or other enterprise
against any such expense, liability, or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability,
or loss under the GCLD.
7.5 The Corporation may enter into an indemnity agreement with
any director, officer, employee, or agent of the Corporation, or of another
corporation, partnership, joint venture, trust, or other
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enterprise, upon terms and conditions that the Board of Directors deems
appropriate, as long as the provisions of the agreement are not impermissible
under applicable law.
7.6 Any amendment or repeal of this Article 7 shall not
be retroactive in effect.
7.7 In case any provision in this Article 7 shall be
determined at any time to be unenforceable in any respect, the other provisions
shall not in any way be affected or impaired thereby, and the affected provision
shall be given the fullest possible enforcement in the circumstances, it being
the intention of the Corporation to afford indemnification and advancement of
expenses to the persons indemnified hereby to the fullest extent permitted by
law.
7.8 The Corporation may, by action of the Board of Directors,
authorize one or more officers to grant rights to indemnification and
advancement of expenses to former directors and officers or to other employees
or agents of the Corporation on such terms and conditions as such officer or
officers deem appropriate under the circumstances.
8. MISCELLANEOUS
8.1 Place and Inspection of Books. (a) The books of the
Corporation other than such books as are required by law to be kept within the
State of Delaware shall be kept in such place or places either within or without
the State of Delaware as the Board of Directors may from time to time determine.
(b) At least ten days before each meeting of
stockholders, the officer in charge of the stock ledger of the Corporation shall
prepare a complete list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
(c) The Board of Directors shall determine from time
to time whether and, if allowed, when and under what conditions and regulations
the accounts and books of the Corporation (except such as may be by law
specifically open to inspection or as otherwise provided by these Bylaws) or any
of them shall be open to the inspection of the stockholders and the
stockholders' rights in respect thereof.
8.2 Voting Shares in Other Corporations. The Chief Executive
Officer, the President, the Chief Financial Officer or any other officer of the
Corporation designated by the Board of Directors may vote any and all shares
held by the Corporation in any other corporation.
8.3 Fiscal Year. The fiscal year of the Corporation shall be
such fiscal year as the Board of Directors from time to time by resolution shall
determine.
8.4 Gender/Number. As used in these Bylaws, the masculine,
feminine, or neuter gender, and the singular or plural number, shall each
include the others whenever the context so indicates.
8.5 Paragraph Titles. The titles of the paragraphs have been
inserted as a matter of reference only and shall not control or affect the
meaning or construction of any of the terms and provisions hereof.
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8.6 Amendment. These Bylaws may be altered, amended, or
repealed by (a) the affirmative vote of 80% or more of the aggregate number of
votes that the holders of the then outstanding shares of common stock and
preferred stock are entitled to cast on the amendment, or (b) by resolution
adopted by the affirmative vote of not less than a majority of the Directors in
office, at any annual or regular meeting of the Board of Directors or at any
special meeting of the Board of Directors if notice of the proposed alteration,
amendment, or repeal be contained in written notice of such special meeting.
Notwithstanding the foregoing, the amendment of any provision of these Bylaws
that requires an affirmative vote in excess of a majority of the Directors in
office shall require the affirmative vote of at least the number of directors
the affirmative vote of whom is required by such provision.
8.7 Certificate of Incorporation. Notwithstanding anything to
the contrary contained herein, if any provision contained in these Bylaws is
inconsistent with or conflicts with a provision of the Certificate of
Incorporation, such provision of these Bylaws shall be superseded by the
inconsistent provision in the Certificate of Incorporation to the extent
necessary to give effect to such provision in the Certificate of Incorporation.
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Atlantic City Electric Company
B.5.2
Amended and Restated Bylaws
Adopted December 31, 1999
<PAGE> 2
AMENDED AND RESTATED
B Y L A W S
OF
ATLANTIC CITY ELECTRIC COMPANY
1. OFFICES.
1.1 Offices. In addition to its registered office in the State
of Delaware, the Corporation shall have a corporate office in Wilmington,
Delaware, and such other offices, either within or without the State of
Delaware, at such locations as the Board of Directors may from time to time
determine or the business of the Corporation may require.
2. SEAL.
2.1 Seal. The Corporation shall have a seal, which shall have
inscribed thereon its name and year of incorporation and the words, "Corporate
Seal New Jersey."
3. MEETINGS OF STOCKHOLDERS.
3.1 Annual Meetings. The annual meeting of stockholders of the
Corporation shall be held on such date, at such time and at such place within or
without the State of Delaware as shall be determined by the Board of Directors
from time to time.
3.2 Special Meetings. Special meetings of the stockholders of
the Corporation shall be held on such date, at such time and at such place
within or without the State of Delaware as may be designated by the Chairman of
the Board or by the Board of Directors.
3.3 Notice of Meetings. (a) Notices of meetings of
stockholders shall be in writing and shall state the place, date, and hour of
the meeting, and, in the case of a special meeting, the purpose or purposes for
which a meeting is called. No business other than that specified in the notice
thereof shall be transacted at any special meeting.
(b) Such notice shall either be delivered personally,
mailed, postage prepaid, or delivered by any other lawful means to each
stockholder entitled to vote at such meeting not less than 10 nor more than 60
days before the date of the meeting. If mailed, the notice shall be directed to
the stockholder at his or her address as it appears on the records of the
Corporation. Delivery of any such notice to any officer of a corporation or
association or to any member of a partnership shall constitute delivery of such
notice to such corporation, association, or partnership.
(c) Notice of any meeting of stockholders need not be
given to any stockholder if waived by such stockholder in writing, whether
before or after such meeting is held, or if such stockholder shall sign the
minutes or attend the meeting, except that if such stockholder attends a meeting
for the express purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened, such stockholder shall not be deemed to have waived notice of such
meeting.
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3.4 Adjourned Meetings. When a meeting is adjourned to another
time or place, unless otherwise provided by these Bylaws, notice need not be
given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. At the adjourned meeting the
stockholders may transact any business that might have been transacted at the
original meeting. If an adjournment is for more than 30 days, or if after an
adjournment, a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder entitled to vote at the
meeting.
3.5 Quorum and Adjournment. Except as otherwise provided by
law, by the Certificate of Incorporation of the Corporation, or by these Bylaws,
the presence, in person or by proxy, of the holders of a majority of the
aggregate voting power of the stock issued and outstanding, entitled to vote
thereat, shall constitute a quorum for the transaction of business at all
meetings of stockholders. If such majority shall not be present or represented
at any meeting of stockholders, the stockholders present, although less than a
quorum, shall have the power to adjourn the meeting.
3.6 Vote Required. Except as otherwise provided by law or by
the Certificate of Incorporation:
(a) Directors shall be elected by a plurality of the
votes present in person or represented by proxy at a meeting of stockholders and
entitled to vote in the election of directors, and
(b) whenever any corporate action other than the
election of Directors is to be taken, it shall be authorized by a majority in
voting power of the shares present in person or by proxy at a meeting of
stockholders and entitled to vote on the subject matter.
3.7 Manner of Voting. At each meeting of stockholders, each
stockholder having the right to vote shall be entitled to vote in person or by
proxy. Proxies need not be filed with the Secretary of the Corporation until the
meeting is called to order, but shall be filed before being voted. Each
stockholder shall be entitled to vote each share of stock having voting power
registered in his or her name on the books of the Corporation on the record date
fixed for determination of stockholders entitled to vote at such meeting.
3.8 Stockholder Action Without a Meeting. Except as otherwise
provided by law or by the Certificate of Incorporation, any action required to
be taken at any meeting of stockholders of the corporation, or any action that
may be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice, and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing and who,
if the action had been taken at a meeting, would have been entitled to notice of
the meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of the holders to take the action were
delivered to the Corporation.
3.9 Proxies. (a) At any meeting of stockholders, any
stockholder may be represented and vote by proxy or proxies. In the event that
any form of proxy shall designate two or more persons to act as proxies, a
majority of such persons present at the meeting or, if only one shall be
present, then that one shall have and may exercise all of the powers conferred
by the form of proxy upon all of the persons so designated unless the form of
proxy shall otherwise provide.
(b) The Board of Directors may, in advance of any
annual or special meeting of the stockholders, prescribe additional regulations
concerning the validation of the same, which are intended to be voted at any
such meeting.
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3.10 Presiding Officer and Secretary. The Chairman of the
Board shall act as chairman of all meetings of the stockholders. In the absence
of the Chairman of the Board, the Vice Chairman of the Board or, in his or her
absence, any Director designated by the Chairman of the Board or the Board of
Directors shall act as chairman of the meeting.
The Secretary of the Corporation shall act as secretary of all
meetings of the stockholders, but, in the absence of the Secretary, the
Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the stockholders, but in the
absence of a designated Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
3.11 Procedure. At each meeting of stockholders, the chairman
of the meeting shall fix and announce the date and time of the opening and the
closing of the polls for each matter upon which the stockholders will vote at
the meeting and shall determine the order of business and all other matters of
procedure. Except to the extent inconsistent with any such rules and regulations
as adopted by the Board of Directors, the chairman of the meeting may establish
rules, which need not be in writing, to maintain order and safety and for the
conduct of the meeting. Without limiting the foregoing, he or she may:
(a) restrict attendance at any time to bona fide
stockholders of record and their proxies and other persons in attendance at the
invitation of the chairman;
(b) restrict dissemination of solicitation materials
and use of audio or visual recording devices at the meeting;
(c) adjourn the meeting without a vote of the
stockholders, whether or not there is a quorum present; and
(d) make rules governing speeches and debate,
including time limits and access to microphones.
The chairman of the meeting shall be entitled to act in his or her absolute
discretion and his or her rulings shall not be subject to appeal.
4. DIRECTORS.
4.1 Powers and Number. The Board of Directors shall exercise
all of the powers of the Corporation except such as are by law, or by the
Certificate of Incorporation of this Corporation or by these Bylaws conferred
upon or reserved to the stockholders of any class or classes. The number of
directors that shall constitute the whole Board of Directors shall be no fewer
than three (3) and no greater than nine (9), the exact number of directors to be
determined from time to time by resolution adopted by the Board of Directors or
the stockholders, and until otherwise determined by the Board of Directors or
the stockholders, the number of directors that shall constitute the whole Board
of Directors shall be three (3).
4.2 Resignations. Any Director may resign at any time by
giving written notice to the Board of Directors or the Secretary. Such
resignation shall take effect at the date of receipt of such notice or at any
later time specified therein. Acceptance of such resignation shall not be
necessary to make it effective.
4.3 Presiding Officer and Secretary. The Chairman of the Board
shall act as chairman of all meetings of the Board of Directors. In the absence
of the Chairman of the Board, the Vice Chairman of the Board, or in his absence,
the Chief Executive Officer or other person designated by the Board of Directors
shall act as chairman of the meeting.
The Secretary of the Corporation shall act as
secretary of all meetings of the Board of Directors, but, in the absence of the
Secretary, the Assistant Secretary designated in accordance with Section
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5.11(b) of these Bylaws shall act as secretary of all meetings of the Board of
Directors, but in the absence of a designated Assistant Secretary, the chairman
of the meeting may appoint any person to act as secretary of the meeting.
4.4 Annual Meetings. The Board of Directors shall meet each
year immediately following the annual meeting of stockholders, at the place
where such meeting of stockholders has been held, or at such other place as
shall be fixed by the person presiding over the meeting of the stockholders, for
the purpose of election of officers and consideration of such other business as
the Board of Directors considers relevant to the management of the Corporation.
In the event that in any year Directors are elected by written consent in lieu
of an annual meeting of stockholders, the Board of Directors shall meet in such
year as soon as practicable after receipt of such written consent by the
Corporation at such time and place as shall be fixed by the Chairman of the
Board, for the purpose of election of officers and consideration of such other
business as the Board of Directors considers relevant to the management of the
Corporation.
4.5 Regular Meetings. Regular meetings of the Board of
Directors shall be held on such dates and at such times and places, within or
without the state of Delaware, as shall from time to time be determined by the
Board of Directors. In the absence of any such determination, such meetings
shall be held at such times and places, within or without the State of Delaware,
as shall be designated by the Chairman of the Board on not less than twelve
hours notice to each Director, given verbally, in writing or electronically,
whether personally, by telephone (including by message or recording device), by
facsimile transmission, by telegram, by telex or by electronic mail or by other
electronic means, or on not less than three (3) calendar days' notice to each
Director given by mail. Notice given by any of the foregoing means shall be
sufficient to constitute notice of a meeting without the necessity of further
notice.
4.6 Special Meetings. Special meetings of the Board of
Directors shall be held at the call of the Chairman of the Board at such times
and places, within or without the State of Delaware, as he or she shall
designate, on not less than twelve hours notice to each Director, given
verbally, in writing or electronically, whether personally, by telephone
(including by message or recording device), by facsimile transmission, by
telegram, by telex, by electronic mail or by other electronic means or on not
less than three (3) calendar days' notice to each Director given by mail. Notice
given by any of the foregoing means shall be sufficient to constitute notice of
a meeting without the necessity of further notice. Special meetings shall be
called by the Secretary on like notice at the written request of a majority of
the Directors then in office.
4.7 Quorum and Powers of a Majority. At all meetings of the
Board of Directors and of each committee thereof, a majority of the members
shall be necessary and sufficient to constitute a quorum for the transaction of
business, and the act of a majority of the members present at any meeting at
which a quorum is present shall be the act of the Board of Directors or such
committee, unless by express provision of law, of the Certificate of
Incorporation, or of these Bylaws, a different vote is required, in which case
such express provision shall govern and control. In the absence of a quorum, a
majority of the members present at any meeting may, without notice other than
announcement at the meeting, adjourn such meeting from time to time until a
quorum is present.
4.8 Waiver of Notice. Notice of any meeting of the Board of
Directors, or any committee thereof, need not be given to any member if waived
by him or her in writing, whether before or after such meeting is held, or if he
or she shall sign the minutes or attend the meeting, except that if such
Director attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened, then such Director shall not be deemed to have
waived notice of such meeting.
4.9 Manner of Acting. (a) Members of the Board of Directors,
or any committee thereof, may participate in any meeting of the Board of
Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating therein can
hear each other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
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(b) Any action required or permitted to be taken at
any meeting of the Board of Directors or any committee thereof may be taken
without a meeting if all members of the Board of Directors or such committee, as
the case may be, consent thereto in writing, and the writings are filed with the
minutes of proceedings of the Board of Directors or such committee.
4.10 Compensation. (a) The Board of Directors, by a resolution
or resolutions, may fix, and from time to time change, the compensation of
Directors.
(b) Each Director shall be entitled to reimbursement
from the Corporation for his or her reasonable expenses incurred with respect to
duties as a member of the Board of Directors or any committee thereof.
(c) Nothing contained in these Bylaws shall be
construed to preclude any Director from serving the Corporation in any other
capacity and from receiving compensation from the Corporation for service
rendered to it in such other capacity.
4.11 Committees. The Board of Directors (or any committee
thereof having the power and authority to do so) may designate one or more
committees, each committee to consist of one or more Directors, which to the
extent provided in said resolution or resolutions shall have and may exercise
the powers and authority of the Board of Directors in the management of the
business and affairs of the corporation; provided, however, that no such
committee shall have the power or authority in reference to the following
matters: (i) approving or adopting, or recommending to the stockholders, any
action or matter expressly required by the General Corporation Law of Delaware
(the "GCLD") to be submitted to stockholders for approval or (ii) adopting,
amending, or repealing any bylaw of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member of the committee. In the absence or
disqualification of a member of a committee, the member or members present at
any meeting of such committee and not disqualified from voting, whether or not
such member of members constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in place of such absent
or disqualified director.
4.12 Committee Procedure, Limitations of Committee Powers. (a)
Except as otherwise provided by these Bylaws, each committee shall adopt its own
rules governing the time, place and method of holding its meetings and the
conduct of its proceedings and shall meet as provided by such rules or by
resolution of the Board of Directors. Unless otherwise provided by these Bylaws
or any such rules or resolutions, notice of the time and place of each meeting
of a committee shall be given to each member of such committee as provided in
Section 4.6 of these Bylaws with respect to notices of special meetings of the
Board of Directors.
(b) Each committee shall keep regular minutes of its
proceedings and report the same to the Board of Directors when required.
(c) Any member of any committee may be removed from
such committee either with or without cause, at any time, by the Board of
Directors at any meeting thereof. Any vacancy in any committee shall be filled
by the Board of Directors in the manner prescribed by the Certificate of
Incorporation or these Bylaws for the original appointment of the members of
such committee.
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5. OFFICERS.
5.1 Number. (a) The officers of the Corporation shall include
a Chief Executive Officer, a President, one or more Vice Presidents (including
one or more Executive Vice Presidents and one or more Senior Vice Presidents if
deemed appropriate by the Board of Directors), a Chief Financial Officer, a
Secretary, a Treasurer, and a Controller. The Board of Directors shall also
elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except
for the Chairman of the Board, the Vice Chairman of the Board, and the Chief
Executive Officer, none of the officers of the Corporation needs to be a
director of the Corporation. Any two or more offices may be held by the same
person to the extent permitted by the GCLD.
(b) The Chief Executive Officer shall have the power
to appoint one or more employees of the Corporation as divisional or
departmental vice presidents and fix the duties of such appointees. However, no
such divisional or departmental vice president shall be considered as an officer
of the Corporation.
5.2 Election of Officers, Qualification and Term. The Chief
Executive Officer, the President, any Executive Vice President, any Senior Vice
President, the Chief Financial Officer, the Secretary and the Treasurer of the
Corporation shall be elected from time to time by the Board of Directors and,
except as may otherwise be expressly provided in a contract of employment duly
authorized by the Board of Directors, shall hold office at the pleasure of the
Board of Directors. The Board of Directors and the Chief Executive Officer also
may elect such other officers as the Board of Directors or the Chief Executive
Officer may from time to time deem appropriate or necessary.
5.3 Removal. Any officer elected by the Board of Directors may
be removed, either with or without cause, by the Board of Directors at any
meeting thereof, or to the extent delegated to the Chairman of the Board or the
Chief Executive Officer, by the Chairman of the Board or the Chief Executive
Officer.
5.4 Resignations. Any officer of the Corporation may resign at
any time by giving written notice to the Board of Directors or to the Chairman
of the Board or to the Chief Executive Officer. Such resignation shall take
effect at the date of the receipt of such notice or at any later time specified
therein and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
5.5 Compensation. The compensation of all officers of the
Corporation shall be fixed by or in the manner provided by the Board of
Directors from time to time, and no officer shall be prevented from receiving
such compensation by reason of the fact that he or she is also a Director of the
Corporation.
5.6 The Chairman of the Board. The Chairman of the Board shall
have the powers and duties customarily and usually associated with the office of
the Chairman of the Board and shall have such other powers and perform such
other duties as may be delegated to him or her by the Board of Directors. The
Chairman of the Board shall preside at meetings of the stockholders and of the
Board of Directors.
5.7 Vice Chairman of the Board. The Vice Chairman of the
Board, if any, shall have the powers and duties customarily and usually
associated with the office of the Vice Chairman of the Board and shall have such
other powers and perform such other duties as may be delegated to him or her by
the Board of Directors.
5.8 Chief Executive Officer. The Chief Executive Officer shall
have, subject to the supervision, direction and control of the Board of
Directors, the general powers and duties of supervision, direction and
management of the affairs and business of the Corporation usually vested in the
chief executive officer of a corporation, including, without limitation, all
powers necessary to direct and control the organizational and reporting
relationships within the Corporation. In addition, the Chief Executive Officer
shall have such other powers and perform such other duties as may be delegated
to him or her by the Board of Directors. If at any time the office of the
Chairman of the Board and the Vice Chairman of the Board shall not be
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filled, or in the event of the temporary absence or disability of the Chairman
of the Board and the Vice Chairman of the Board, the Chief Executive Officer
shall have the powers and duties of the Chairman of the Board.
5.9 The President. The President shall serve as chief
operating officer, shall have the powers and duties customarily and usually
associated with the office of the President and shall have such other powers and
perform such other duties as may be delegated to him or her from time to time by
the Board of Directors or the Chief Executive Officer.
5.10 The Vice Presidents. Each Vice President shall have such
powers and duties customarily and usually associated with the office of Vice
President and shall have such other powers and perform such other duties as may
from time to time be assigned to him or her by the Board of Directors, the Chief
Executive Officer, or the President.
5.11 The Chief Financial Officer. The Chief Financial Officer
shall be responsible for the financial affairs of the Corporation, including
overseeing the duties performed by the Treasurer of the Corporation. In
addition, the Chief Financial Officer shall have such powers and duties
customarily and usually associated with the office of the Chief Financial
Officer and shall have such other powers and perform such other duties as may be
delegated to him or her from time to time by the Board of Directors or the Chief
Executive Officer.
5.12 The Secretary and the Assistant Secretary. (a) The
Secretary shall attend meetings of the Board of Directors and meetings of the
stockholders and record all votes and minutes of all such proceedings in a book
kept for such purpose. In addition, the Secretary shall have such powers and
duties customarily and usually associated with the office of Secretary and shall
have such other powers and perform such other duties as may be delegated to him
or her by the Board of Directors, the Chief Executive Officer, or the President.
(b) Each Assistant Secretary shall have such powers
and perform such duties customarily and usually associated with the office of
Assistant Secretary and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Secretary. In case
of the absence or disability of the Secretary, the Assistant Secretary
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Secretary) shall perform the duties and exercise the powers
of the Secretary.
5.13 The Treasurer and the Assistant Treasurer. (a) The
Treasurer shall have custody of the Corporation's funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit or cause to be deposited moneys or other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The Treasurer shall
also maintain adequate records of all assets, liabilities, and transactions of
the Corporation and shall see that adequate audits thereof are currently and
regularly made. In addition, the Treasurer shall have such powers and duties
customarily and usually associated with the office of Treasurer and shall have
such other powers and perform such other duties as may be delegated to him or
her from time to time by the Board of Directors, the Chief Executive Officer,
the President or the Chief Financial Officer.
(b) Each Assistant Treasurer shall have such powers
and perform such duties customarily and usually associated with the office of
Assistant Treasurer and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Treasurer. In case
of the absence or disability of the Treasurer, the Assistant Treasurer
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Treasurer) shall perform the duties and exercise the powers
of the Treasurer.
5.14 Controller. The Controller shall be responsible for
maintaining the accounting records and statements, and shall properly account
for all monies and obligations due the Corporation and all properties, assets,
and liabilities of the Corporation. The Controller shall render to the Chairman
of the Board, the President
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or the Chief Financial Officer such periodic reports covering the results of
operations of the Corporation as may be required by either of them or by law. In
addition, the Controller shall have such powers and duties customarily and
usually associated with the office of Controller and shall have such other
powers and perform such other duties as may be delegated to him or her from time
to time by the Board of Directors, the Chief Executive Officer, the President or
the Chief Financial Officer.
6. STOCK
6.1 Certificates. Certificates for shares of stock of the
Corporation shall be issued under the seal of the Corporation, or a facsimile
thereof, and shall be numbered and shall be entered in the books of the
Corporation as they are issued. Each certificate shall bear a serial number,
shall exhibit the holder's name and the number of shares evidenced thereby, and
shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the
Chief Executive Officer or the President or any Vice President, and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer.
Any or all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if such person or entity
were such officer, transfer agent, or registrar at the date of issue.
6.2 Transfers. Transfers of stock of the Corporation shall be
made on the books of the Corporation only upon surrender to the Corporation of a
certificate (if any) for the shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, provided such
succession, assignment, or transfer is not prohibited by the Certificate of
Incorporation, these Bylaws, applicable law or contract. Thereupon, the
Corporation shall issue a new certificate (if requested) to the person entitled
thereto, cancel the old certificate (if any), and record the transaction upon
its books.
6.3 Lost, Stolen, or Destroyed Certificates. Any person
claiming a certificate of stock to be lost, stolen, or destroyed shall make an
affidavit or an affirmation of that fact, and shall give the Corporation a bond
of indemnity in satisfactory form and with one or more satisfactory sureties,
whereupon a new certificate (if requested) may be issued of the same tenor and
for the same number of shares as the one alleged to be lost, stolen, or
destroyed.
6.4 Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares as the person entitled to exercise the rights of a stockholder
and shall not be bound to recognize any equitable or other claim to or interest
in any such shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise expressly provided by the
GCLD.
6.5 Additional Powers of the Board. (a) In addition to those
powers set forth in Section 4.1, the Board of Directors shall have power and
authority to make all such rules and regulations as it shall deem expedient
concerning the issue, transfer, and registration of certificates for shares of
stock of the Corporation, including the use of uncertificated shares of stock
subject to the provisions of the GCLD.
(b) The Board of Directors may appoint and remove
transfer agents and registrars of transfers, and may require all stock
certificates to bear the signature of any such transfer agent and/or any such
registrar of transfers.
7. INDEMNIFICATION
7.1 Each person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or the person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the
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Corporation, as a director, officer, employee, or agent of another corporation
or of a partnership, joint venture, trust, or other enterprise, including
service with respect to employee benefit plans, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the GCLD, as the
same exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than said law permitted the Corporation to
provide prior to such amendment), against all expenses, liability, and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties,
and amounts paid or to be paid in settlement) reasonably incurred or suffered by
such person in connection therewith and such indemnification shall continue as
to a person who has ceased to be a director, officer, employee, or agent and
shall inure to the benefit of his or her heirs, executors, and administrators;
provided, however, that, except as provided in this Article 7, the Corporation
shall indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if authorized by the
Board of Directors of the Corporation. Any indemnification under this Article 7
(unless ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee, or agent is proper in the circumstances because he or she has
met the applicable standard set forth in the GCLD. Such a determination shall be
made (a) by a majority vote of the directors who are not parties to such action,
suit or proceeding, even though less than a quorum; (b) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum; (c) by independent legal counsel (compensated by the Corporation) in a
written opinion; (d) by the stockholders; or (e) in any other manner permitted
by the GCLD. In addition to the right to indemnification conferred in this
Article 7, each of the above persons shall have the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that, if the GCLD requires, the
payment of such expenses incurred by a present director or officer in his or her
capacity as a director or officer of the corporation (and not in any other
capacity in which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such present
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Article 7 or otherwise. The Corporation may, by any manner permitted by the
GCLD, provide indemnification and advancement of expenses to employees and
agents of the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers. The right to indemnification and to
an advancement of expenses conferred in this Article 7 shall be a contract
right.
7.2 If a claim under Section 7.1 of this Article 7 is not paid
in full by the Corporation within 30 days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim (including attorneys' fees). It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the GCLD for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, a committee thereof, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the GCLD, nor an actual determination by the Corporation (including
its Board of Directors, a committee thereof, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct. In any suit brought by the claimant
to enforce a right to indemnification or to an advancement of expenses
hereunder, or brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the claimant
is not entitled to be indemnified, or to such advancement of expenses, under
this Article 7 or otherwise shall be on the Corporation.
7.3 The rights to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Article 7, shall not be exclusive of any other right
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that any person may have or hereafter acquire under any statute, provision of
the certificate of incorporation of the Corporation, this bylaw, agreement, vote
of stockholders or disinterested directors, or otherwise.
7.4 The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee, or agent of the Corporation
or another corporation, partnership, joint venture, trust, or other enterprise
against any such expense, liability, or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability,
or loss under the GCLD.
7.5 The Corporation may enter into an indemnity agreement with
any director, officer, employee, or agent of the Corporation, or of another
corporation, partnership, joint venture, trust, or other enterprise, upon terms
and conditions that the Board of Directors deems appropriate, as long as the
provisions of the agreement are not impermissible under applicable law.
7.6 Any amendment or repeal of this Article 7 shall not be
retroactive in effect.
7.7 In case any provision in this Article 7 shall be
determined at any time to be unenforceable in any respect, the other provisions
shall not in any way be affected or impaired thereby, and the affected provision
shall be given the fullest possible enforcement in the circumstances, it being
the intention of the Corporation to afford indemnification and advancement of
expenses to the persons indemnified hereby to the fullest extent permitted by
law.
7.8 The Corporation may, by action of the Board of Directors,
authorize one or more officers to grant rights to indemnification and
advancement of expenses to former directors and officers or to other employees
or agents of the Corporation on such terms and conditions as such officer or
officers deem appropriate under the circumstances.
8. MISCELLANEOUS
8.1 Place and Inspection of Books. (a) The books of the
Corporation other than such books as are required by law to be kept within the
State of Delaware shall be kept in such place or places either within or without
the State of Delaware as the Board of Directors may from time to time determine.
(b) At least ten days before each meeting of
stockholders, the officer in charge of the stock ledger of the Corporation shall
prepare a complete list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
(c) The Board of Directors shall determine from time
to time whether and, if allowed, when and under what conditions and regulations
the accounts and books of the Corporation (except such as may be by law
specifically open to inspection or as otherwise provided by these Bylaws) or any
of them shall be open to the inspection of the stockholders and the
stockholders' rights in respect thereof.
8.2 Voting Shares in Other Corporations. The Chief Executive
Officer, the President, the Chief Financial Officer or any other officer of the
Corporation designated by the Board of Directors may vote any and all shares
held by the Corporation in any other corporation.
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8.3 Fiscal Year. The fiscal year of the Corporation shall be
such fiscal year as the Board of Directors from time to time by resolution shall
determine.
8.4 Gender/Number. As used in these Bylaws, the masculine,
feminine, or neuter gender, and the singular or plural number, shall each
include the others whenever the context so indicates.
8.5 Paragraph Titles. The titles of the paragraphs have been
inserted as a matter of reference only and shall not control or affect the
meaning or construction of any of the terms and provisions hereof.
8.6 Amendment. These Bylaws may be altered, amended, or
repealed by (a) the affirmative vote of 80% or more of the aggregate number of
votes that the holders of the then outstanding shares of common stock and
preferred stock are entitled to cast on the amendment, or (b) by resolution
adopted by the affirmative vote of not less than a majority of the Directors in
office, at any annual or regular meeting of the Board of Directors or at any
special meeting of the Board of Directors if notice of the proposed alteration,
amendment, or repeal be contained in written notice of such special meeting.
Notwithstanding the foregoing, the amendment of any provision of these Bylaws
that requires an affirmative vote in excess of a majority of the Directors in
office shall require the affirmative vote of at least the number of directors
the affirmative vote of whom is required by such provision.
8.7 Certificate of Incorporation. Notwithstanding anything to
the contrary contained herein, if any provision contained in these Bylaws is
inconsistent with or conflicts with a provision of the Certificate of
Incorporation, such provision of these Bylaws shall be superseded by the
inconsistent provision in the Certificate of Incorporation to the extent
necessary to give effect to such provision in the Certificate of Incorporation.
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<PAGE> 1
ACE REIT Holding Company, Inc.
B.6.1
Certificate of Incorporation
Filed March 12, 1998
1
<PAGE> 2
CERTIFICATE OF INCORPORATION
OF
ACE REIT HOLDING, INC.
FIRST: The name of the Corporation is ACE REIT Holding, Inc.
SECOND: The registered office of ACE REIT Holding, Inc. in the State of
Delaware is located at 800 King Street, Wilmington, County of New Castle, 19801,
and its registered agent shall be the Corporation itself.
THIRD: The purpose of the Corporation and the nature and objects of the
business to be transacted, promoted, conducted or carried out are:
To engage in any lawful act or activity for
which corporations may be organized under
the General Corporation Law of the State of
Delaware.
FOURTH: The total number of shares of stock that the Corporation shall
be authorized to issue is One Thousand (1,000) shares of Common Stock having a
par value of One Dollar ($1.00) per share.
FIFTH: The name and mailing address of the Incorporator of the
Corporation is:
Name Address
---- -------
Steven L. Biener P.O. Box 6066
Newark, DE 19714-6066
SIXTH: The names and mailing addresses of the sole director who shall
serve until the first annual meeting of stockholders or until his successor is
elected and qualify is:
Name Address
---- -------
Charles A. Mannix P.O. Box 231
Wilmington, DE 19899
SEVENTH: The Board of Directors may make, add to, delete from, alter
and repeal any By-law of the Corporation.
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EIGHTH: No director of the Corporation shall be personally liable to
the Corporation for monetary damages for breach of fiduciary duty by such
director; provided, however, that this Article EIGHTH shall not eliminate or
limit the liability of a director to the extent provided by law (i) for any
breach of the director's duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the General
Corporation Law of the State of Delaware, or (iv) for any transaction from which
the director derived an improper personal benefit. The Corporation shall
indemnify its directors, officers, employees and agents against expenses,
judgment, fines and amounts paid in settlement actually and reasonably incurred
by them by reason of their serving in such capacity to the fullest extent
permitted by the Delaware General Corporation Law.
I, the undersigned, being the Incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this Certificate of Incorporation, hereby declaring
and certifying that this is my act and deed and that the facts herein stated are
true and accordingly have hereunto set my hand and seal this 12th day of March,
1998.
--------------------------------
Steven L. Biener
3
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ACE REIT Holding, Inc.
B.6.2
Amended and Restated Bylaws
Adopted December 31, 1999
<PAGE> 2
AMENDED AND RESTATED
B Y L A W S
OF
ACE REIT HOLDING, INC.
1. OFFICES.
1.1 Offices. In addition to its registered office in the
State of Delaware, the Corporation shall have a corporate office in Wilmington,
Delaware, and such other offices, either within or without the State of
Delaware, at such locations as the Board of Directors may from time to time
determine or the business of the Corporation may require.
2. SEAL.
2.1 Seal. The Corporation shall have a seal, which shall
have inscribed thereon its name and year of incorporation and the words,
"Corporate Seal Delaware."
3. MEETINGS OF STOCKHOLDERS.
3.1 Annual Meetings. The annual meeting of stockholders of
the Corporation shall be held on such date, at such time and at such place
within or without the State of Delaware as shall be determined by the Board of
Directors from time to time.
3.2 Special Meetings. Special meetings of the stockholders
of the Corporation shall be held on such date, at such time and at such place
within or without the State of Delaware as may be designated by the Chairman of
the Board or by the Board of Directors.
3.3 Notice of Meetings. (a) Notices of meetings of
stockholders shall be in writing and shall state the place, date, and hour of
the meeting, and, in the case of a special meeting, the purpose or purposes for
which a meeting is called. No business other than that specified in the notice
thereof shall be transacted at any special meeting.
(b) Such notice shall either be delivered personally,
mailed, postage prepaid, or delivered by any other lawful means to each
stockholder entitled to vote at such meeting not less than 10 nor more than 60
days before the date of the meeting. If mailed, the notice shall be directed to
the stockholder at his or her address as it appears on the records of the
Corporation. Delivery of any such notice to any officer of a corporation or
association or to any member of a partnership shall constitute delivery of such
notice to such corporation, association, or partnership.
(c) Notice of any meeting of stockholders need not be
given to any stockholder if waived by such stockholder in writing, whether
before or after such meeting is held, or if such stockholder shall sign the
minutes or attend the meeting, except that if such stockholder attends a meeting
for the express purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened, such stockholder shall not be deemed to have waived notice of such
meeting.
3.4 Adjourned Meetings. When a meeting is adjourned to
another time or place, unless otherwise provided by these Bylaws, notice need
not be given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken. At the adjourned
meeting the stockholders may transact any business that might have been
transacted at the original meeting. If an adjournment
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is for more than 30 days, or if after an adjournment, a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder entitled to vote at the meeting.
3.5 Quorum and Adjournment. Except as otherwise provided by
law, by the Certificate of Incorporation of the Corporation, or by these Bylaws,
the presence, in person or by proxy, of the holders of a majority of the
aggregate voting power of the stock issued and outstanding, entitled to vote
thereat, shall constitute a quorum for the transaction of business at all
meetings of stockholders. If such majority shall not be present or represented
at any meeting of stockholders, the stockholders present, although less than a
quorum, shall have the power to adjourn the meeting.
3.6 Vote Required. Except as otherwise provided by law or
by the Certificate of Incorporation:
(a) Directors shall be elected by a plurality of the
votes present in person or represented by proxy at a meeting of stockholders and
entitled to vote in the election of directors, and
(b) whenever any corporate action other than the
election of Directors is to be taken, it shall be authorized by a majority in
voting power of the shares present in person or by proxy at a meeting of
stockholders and entitled to vote on the subject matter.
3.7 Manner of Voting. At each meeting of stockholders, each
stockholder having the right to vote shall be entitled to vote in person or by
proxy. Proxies need not be filed with the Secretary of the Corporation until the
meeting is called to order, but shall be filed before being voted. Each
stockholder shall be entitled to vote each share of stock having voting power
registered in his or her name on the books of the Corporation on the record date
fixed for determination of stockholders entitled to vote at such meeting.
3.8 Stockholder Action Without a Meeting. Except as
otherwise provided by law or by the Certificate of Incorporation, any action
required to be taken at any meeting of stockholders of the corporation, or any
action that may be taken at any annual or special meeting of such stockholders,
may be taken without a meeting, without prior notice, and without a vote, if a
consent in writing, setting forth the action so taken, shall be signed by the
holders of outstanding stock having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereon were present and voted. Prompt notice of the
taking of the corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in writing
and who, if the action had been taken at a meeting, would have been entitled to
notice of the meeting if the record date for such meeting had been the date that
written consents signed by a sufficient number of the holders to take the action
were delivered to the Corporation.
3.9 Proxies. (a) At any meeting of stockholders, any
stockholder may be represented and vote by proxy or proxies. In the event that
any form of proxy shall designate two or more persons to act as proxies, a
majority of such persons present at the meeting or, if only one shall be
present, then that one shall have and may exercise all of the powers conferred
by the form of proxy upon all of the persons so designated unless the form of
proxy shall otherwise provide.
(b) The Board of Directors may, in advance of any
annual or special meeting of the stockholders, prescribe additional regulations
concerning the validation of the same, which are intended to be voted at any
such meeting.
3.10 Presiding Officer and Secretary. The Chairman of the
Board shall act as chairman of all meetings of the stockholders. In the absence
of the Chairman of the Board, the Vice Chairman of the Board or, in his or her
absence, any Director designated by the Chairman of the Board or the Board of
Directors shall act as chairman of the meeting.
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The Secretary of the Corporation shall act as secretary of all
meetings of the stockholders, but, in the absence of the Secretary, the
Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the stockholders, but in the
absence of a designated Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
3.11 Procedure. At each meeting of stockholders, the chairman
of the meeting shall fix and announce the date and time of the opening and the
closing of the polls for each matter upon which the stockholders will vote at
the meeting and shall determine the order of business and all other matters of
procedure. Except to the extent inconsistent with any such rules and regulations
as adopted by the Board of Directors, the chairman of the meeting may establish
rules, which need not be in writing, to maintain order and safety and for the
conduct of the meeting. Without limiting the foregoing, he or she may:
(a) restrict attendance at any time to bona fide
stockholders of record and their proxies and other persons in attendance at the
invitation of the chairman;
(b) restrict dissemination of solicitation materials
and use of audio or visual recording devices at the meeting;
(c) adjourn the meeting without a vote of the
stockholders, whether or not there is a quorum present; and
(d) make rules governing speeches and debate,
including time limits and access to microphones.
The chairman of the meeting shall be entitled to act in his or her absolute
discretion and his or her rulings shall not be subject to appeal.
4. DIRECTORS.
4.1 Powers and Number. The Board of Directors shall exercise
all of the powers of the Corporation except such as are by law, or by the
Certificate of Incorporation of this Corporation or by these Bylaws conferred
upon or reserved to the stockholders of any class or classes. The number of
directors that shall constitute the whole Board of Directors shall be no fewer
than three (3) and no greater than nine (9), the exact number of directors to be
determined from time to time by resolution adopted by the Board of Directors or
the stockholders, and until otherwise determined by the Board of Directors or
the stockholders, the number of directors that shall constitute the whole Board
of Directors shall be three (3).
4.2 Resignations. Any Director may resign at any time by
giving written notice to the Board of Directors or the Secretary. Such
resignation shall take effect at the date of receipt of such notice or at any
later time specified therein. Acceptance of such resignation shall not be
necessary to make it effective.
4.3 Presiding Officer and Secretary. The Chairman of the
Board shall act as chairman of all meetings of the Board of Directors. In the
absence of the Chairman of the Board, the Vice Chairman of the Board, or in his
absence, the Chief Executive Officer or other person designated by the Board of
Directors shall act as chairman of the meeting.
The Secretary of the Corporation shall act as secretary
of all meetings of the Board of Directors, but, in the absence of the Secretary,
the Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the Board of Directors, but in
the absence of a designated Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
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4.4 Annual Meetings. The Board of Directors shall meet each
year immediately following the annual meeting of stockholders, at the place
where such meeting of stockholders has been held, or at such other place as
shall be fixed by the person presiding over the meeting of the stockholders, for
the purpose of election of officers and consideration of such other business as
the Board of Directors considers relevant to the management of the Corporation.
In the event that in any year Directors are elected by written consent in lieu
of an annual meeting of stockholders, the Board of Directors shall meet in such
year as soon as practicable after receipt of such written consent by the
Corporation at such time and place as shall be fixed by the Chairman of the
Board, for the purpose of election of officers and consideration of such other
business as the Board of Directors considers relevant to the management of the
Corporation.
4.5 Regular Meetings. Regular meetings of the Board of
Directors shall be held on such dates and at such times and places, within or
without the state of Delaware, as shall from time to time be determined by the
Board of Directors. In the absence of any such determination, such meetings
shall be held at such times and places, within or without the State of Delaware,
as shall be designated by the Chairman of the Board on not less than twelve
hours notice to each Director, given verbally, in writing or electronically,
whether personally, by telephone (including by message or recording device), by
facsimile transmission, by telegram, by telex or by electronic mail or by other
electronic means, or on not less than three (3) calendar days' notice to each
Director given by mail. Notice given by any of the foregoing means shall be
sufficient to constitute notice of a meeting without the necessity of further
notice.
4.6 Special Meetings. Special meetings of the Board of
Directors shall be held at the call of the Chairman of the Board at such times
and places, within or without the State of Delaware, as he or she shall
designate, on not less than twelve hours notice to each Director, given
verbally, in writing or electronically, whether personally, by telephone
(including by message or recording device), by facsimile transmission, by
telegram, by telex, by electronic mail or by other electronic means or on not
less than three (3) calendar days' notice to each Director given by mail. Notice
given by any of the foregoing means shall be sufficient to constitute notice of
a meeting without the necessity of further notice. Special meetings shall be
called by the Secretary on like notice at the written request of a majority of
the Directors then in office.
4.7 Quorum and Powers of a Majority. At all meetings of the
Board of Directors and of each committee thereof, a majority of the members
shall be necessary and sufficient to constitute a quorum for the transaction of
business, and the act of a majority of the members present at any meeting at
which a quorum is present shall be the act of the Board of Directors or such
committee, unless by express provision of law, of the Certificate of
Incorporation, or of these Bylaws, a different vote is required, in which case
such express provision shall govern and control. In the absence of a quorum, a
majority of the members present at any meeting may, without notice other than
announcement at the meeting, adjourn such meeting from time to time until a
quorum is present.
4.8 Waiver of Notice. Notice of any meeting of the Board of
Directors, or any committee thereof, need not be given to any member if waived
by him or her in writing, whether before or after such meeting is held, or if he
or she shall sign the minutes or attend the meeting, except that if such
Director attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened, then such Director shall not be deemed to have
waived notice of such meeting.
4.9 Manner of Acting. (a) Members of the Board of Directors,
or any committee thereof, may participate in any meeting of the Board of
Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating therein can
hear each other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
(b) Any action required or permitted to be taken at
any meeting of the Board of Directors or any committee thereof may be taken
without a meeting if all members of the Board of Directors or
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such committee, as the case may be, consent thereto in writing, and the writings
are filed with the minutes of proceedings of the Board of Directors or such
committee.
4.10 Compensation. (a) The Board of Directors, by a
resolution or resolutions, may fix, and from time to time change, the
compensation of Directors.
(b) Each Director shall be entitled to reimbursement
from the Corporation for his or her reasonable expenses incurred with respect to
duties as a member of the Board of Directors or any committee thereof.
(c) Nothing contained in these Bylaws shall be
construed to preclude any Director from serving the Corporation in any other
capacity and from receiving compensation from the Corporation for service
rendered to it in such other capacity.
4.11 Committees. The Board of Directors (or any committee
thereof having the power and authority to do so) may designate one or more
committees, each committee to consist of one or more Directors, which to the
extent provided in said resolution or resolutions shall have and may exercise
the powers and authority of the Board of Directors in the management of the
business and affairs of the corporation; provided, however, that no such
committee shall have the power or authority in reference to the following
matters: (i) approving or adopting, or recommending to the stockholders, any
action or matter expressly required by the General Corporation Law of Delaware
(the "GCLD") to be submitted to stockholders for approval or (ii) adopting,
amending, or repealing any bylaw of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member of the committee. In the absence or
disqualification of a member of a committee, the member or members present at
any meeting of such committee and not disqualified from voting, whether or not
such member of members constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in place of such absent
or disqualified director.
4.12 Committee Procedure, Limitations of Committee Powers.
(a) Except as otherwise provided by these Bylaws, each committee shall adopt its
own rules governing the time, place and method of holding its meetings and the
conduct of its proceedings and shall meet as provided by such rules or by
resolution of the Board of Directors. Unless otherwise provided by these Bylaws
or any such rules or resolutions, notice of the time and place of each meeting
of a committee shall be given to each member of such committee as provided in
Section 4.6 of these Bylaws with respect to notices of special meetings of the
Board of Directors.
(b) Each committee shall keep regular minutes of its
proceedings and report the same to the Board of Directors when required.
(c) Any member of any committee may be removed from
such committee either with or without cause, at any time, by the Board of
Directors at any meeting thereof. Any vacancy in any committee shall be filled
by the Board of Directors in the manner prescribed by the Certificate of
Incorporation or these Bylaws for the original appointment of the members of
such committee.
5. OFFICERS.
5.1 Number. (a) The officers of the Corporation shall
include a Chief Executive Officer, a President, one or more Vice Presidents
(including one or more Executive Vice Presidents and one or more Senior Vice
Presidents if deemed appropriate by the Board of Directors), a Chief Financial
Officer, a Secretary, a Treasurer, and a Controller. The Board of Directors
shall also elect a Chairman of the Board and may elect a Vice Chairman of the
Board. Except for the Chairman of the Board, the Vice Chairman of the Board, and
the Chief Executive Officer, none of the officers of the Corporation needs to be
a director of the Corporation. Any two or more offices may be held by the same
person to the extent permitted by the GCLD.
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(b) The Chief Executive Officer shall have the power to
appoint one or more employees of the Corporation as divisional or departmental
vice presidents and fix the duties of such appointees. However, no such
divisional or departmental vice president shall be considered as an officer of
the Corporation.
5.2 Election of Officers, Qualification and Term. The Chief
Executive Officer, the President, any Executive Vice President, any Senior Vice
President, the Chief Financial Officer, the Secretary and the Treasurer of the
Corporation shall be elected from time to time by the Board of Directors and,
except as may otherwise be expressly provided in a contract of employment duly
authorized by the Board of Directors, shall hold office at the pleasure of the
Board of Directors. The Board of Directors and the Chief Executive Officer also
may elect such other officers as the Board of Directors or the Chief Executive
Officer may from time to time deem appropriate or necessary.
5.3 Removal. Any officer elected by the Board of Directors
may be removed, either with or without cause, by the Board of Directors at any
meeting thereof, or to the extent delegated to the Chairman of the Board or the
Chief Executive Officer, by the Chairman of the Board or the Chief Executive
Officer.
5.4 Resignations. Any officer of the Corporation may resign
at any time by giving written notice to the Board of Directors or to the
Chairman of the Board or to the Chief Executive Officer. Such resignation shall
take effect at the date of the receipt of such notice or at any later time
specified therein and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
5.5 Compensation. The compensation of all officers of the
Corporation shall be fixed by or in the manner provided by the Board of
Directors from time to time, and no officer shall be prevented from receiving
such compensation by reason of the fact that he or she is also a Director of the
Corporation.
5.6 The Chairman of the Board. The Chairman of the Board
shall have the powers and duties customarily and usually associated with the
office of the Chairman of the Board and shall have such other powers and perform
such other duties as may be delegated to him or her by the Board of Directors.
The Chairman of the Board shall preside at meetings of the stockholders and of
the Board of Directors.
5.7 Vice Chairman of the Board. The Vice Chairman of the
Board, if any, shall have the powers and duties customarily and usually
associated with the office of the Vice Chairman of the Board and shall have such
other powers and perform such other duties as may be delegated to him or her by
the Board of Directors.
5.8 Chief Executive Officer. The Chief Executive Officer
shall have, subject to the supervision, direction and control of the Board of
Directors, the general powers and duties of supervision, direction and
management of the affairs and business of the Corporation usually vested in the
chief executive officer of a corporation, including, without limitation, all
powers necessary to direct and control the organizational and reporting
relationships within the Corporation. In addition, the Chief Executive Officer
shall have such other powers and perform such other duties as may be delegated
to him or her by the Board of Directors. If at any time the office of the
Chairman of the Board and the Vice Chairman of the Board shall not be filled, or
in the event of the temporary absence or disability of the Chairman of the Board
and the Vice Chairman of the Board, the Chief Executive Officer shall have the
powers and duties of the Chairman of the Board.
5.9 The President. The President shall serve as chief
operating officer, shall have the powers and duties customarily and usually
associated with the office of the President and shall have such other powers and
perform such other duties as may be delegated to him or her from time to time by
the Board of Directors or the Chief Executive Officer.
5.10 The Vice Presidents. Each Vice President shall have such
powers and duties customarily and usually associated with the office of Vice
President and shall have such other powers and perform
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such other duties as may from time to time be assigned to him or her by the
Board of Directors, the Chief Executive Officer, or the President.
5.11 The Chief Financial Officer. The Chief Financial Officer
shall be responsible for the financial affairs of the Corporation, including
overseeing the duties performed by the Treasurer of the Corporation. In
addition, the Chief Financial Officer shall have such powers and duties
customarily and usually associated with the office of the Chief Financial
Officer and shall have such other powers and perform such other duties as may be
delegated to him or her from time to time by the Board of Directors or the Chief
Executive Officer.
5.12 The Secretary and the Assistant Secretary. (a) The
Secretary shall attend meetings of the Board of Directors and meetings of the
stockholders and record all votes and minutes of all such proceedings in a book
kept for such purpose. In addition, the Secretary shall have such powers and
duties customarily and usually associated with the office of Secretary and shall
have such other powers and perform such other duties as may be delegated to him
or her by the Board of Directors, the Chief Executive Officer, or the President.
(b) Each Assistant Secretary shall have such powers and
perform such duties customarily and usually associated with the office of
Assistant Secretary and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Secretary. In case
of the absence or disability of the Secretary, the Assistant Secretary
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Secretary) shall perform the duties and exercise the powers
of the Secretary.
5.13 The Treasurer and the Assistant Treasurer. (a) The
Treasurer shall have custody of the Corporation's funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit or cause to be deposited moneys or other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The Treasurer shall
also maintain adequate records of all assets, liabilities, and transactions of
the Corporation and shall see that adequate audits thereof are currently and
regularly made. In addition, the Treasurer shall have such powers and duties
customarily and usually associated with the office of Treasurer and shall have
such other powers and perform such other duties as may be delegated to him or
her from time to time by the Board of Directors, the Chief Executive Officer,
the President or the Chief Financial Officer.
(b) Each Assistant Treasurer shall have such powers and
perform such duties customarily and usually associated with the office of
Assistant Treasurer and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Treasurer. In case
of the absence or disability of the Treasurer, the Assistant Treasurer
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Treasurer) shall perform the duties and exercise the powers
of the Treasurer.
5.14 Controller. The Controller shall be responsible for
maintaining the accounting records and statements, and shall properly account
for all monies and obligations due the Corporation and all properties, assets,
and liabilities of the Corporation. The Controller shall render to the Chairman
of the Board, the President or the Chief Financial Officer such periodic reports
covering the results of operations of the Corporation as may be required by
either of them or by law. In addition, the Controller shall have such powers and
duties customarily and usually associated with the office of Controller and
shall have such other powers and perform such other duties as may be delegated
to him or her from time to time by the Board of Directors, the Chief Executive
Officer, the President or the Chief Financial Officer.
6. STOCK
6.1 Certificates. Certificates for shares of stock of the
Corporation shall be issued under the seal of the Corporation, or a facsimile
thereof, and shall be numbered and shall be entered in the books of the
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Corporation as they are issued. Each certificate shall bear a serial number,
shall exhibit the holder's name and the number of shares evidenced thereby, and
shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the
Chief Executive Officer or the President or any Vice President, and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer.
Any or all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if such person or entity
were such officer, transfer agent, or registrar at the date of issue.
6.2 Transfers. Transfers of stock of the Corporation shall be
made on the books of the Corporation only upon surrender to the Corporation of a
certificate (if any) for the shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, provided such
succession, assignment, or transfer is not prohibited by the Certificate of
Incorporation, these Bylaws, applicable law or contract. Thereupon, the
Corporation shall issue a new certificate (if requested) to the person entitled
thereto, cancel the old certificate (if any), and record the transaction upon
its books.
6.3 Lost, Stolen, or Destroyed Certificates. Any person
claiming a certificate of stock to be lost, stolen, or destroyed shall make an
affidavit or an affirmation of that fact, and shall give the Corporation a bond
of indemnity in satisfactory form and with one or more satisfactory sureties,
whereupon a new certificate (if requested) may be issued of the same tenor and
for the same number of shares as the one alleged to be lost, stolen, or
destroyed.
6.4 Registered Stockholders. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its books as
the owner of shares as the person entitled to exercise the rights of a
stockholder and shall not be bound to recognize any equitable or other claim to
or interest in any such shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise expressly
provided by the GCLD.
6.5 Additional Powers of the Board. (a) In addition to those
powers set forth in Section 4.1, the Board of Directors shall have power and
authority to make all such rules and regulations as it shall deem expedient
concerning the issue, transfer, and registration of certificates for shares of
stock of the Corporation, including the use of uncertificated shares of stock
subject to the provisions of the GCLD.
(b) The Board of Directors may appoint and remove
transfer agents and registrars of transfers, and may require all stock
certificates to bear the signature of any such transfer agent and/or any such
registrar of transfers.
7. INDEMNIFICATION
7.1 Each person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or the person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation, as a
director, officer, employee, or agent of another corporation or of a
partnership, joint venture, trust, or other enterprise, including service with
respect to employee benefit plans, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the GCLD, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expenses, liability, and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of his or her heirs, executors, and administrators; provided,
however, that, except as provided in this Article 7, the Corporation shall
indemnify any
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such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if authorized by the Board of Directors
of the Corporation. Any indemnification under this Article 7 (unless ordered by
a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee, or agent is proper in the circumstances because he or she has met the
applicable standard set forth in the GCLD. Such a determination shall be made
(a) by a majority vote of the directors who are not parties to such action, suit
or proceeding, even though less than a quorum; (b) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum; (c) by independent legal counsel (compensated by the Corporation) in a
written opinion; (d) by the stockholders; or (e) in any other manner permitted
by the GCLD. In addition to the right to indemnification conferred in this
Article 7, each of the above persons shall have the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that, if the GCLD requires, the
payment of such expenses incurred by a present director or officer in his or her
capacity as a director or officer of the corporation (and not in any other
capacity in which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such present
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Article 7 or otherwise. The Corporation may, by any manner permitted by the
GCLD, provide indemnification and advancement of expenses to employees and
agents of the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers. The right to indemnification and to
an advancement of expenses conferred in this Article 7 shall be a contract
right.
7.2 If a claim under Section 7.1 of this Article 7 is not
paid in full by the Corporation within 30 days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim (including attorneys' fees). It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the GCLD for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, a committee thereof, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the GCLD, nor an actual determination by the Corporation (including
its Board of Directors, a committee thereof, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct. In any suit brought by the claimant
to enforce a right to indemnification or to an advancement of expenses
hereunder, or brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the claimant
is not entitled to be indemnified, or to such advancement of expenses, under
this Article 7 or otherwise shall be on the Corporation.
7.3 The rights to indemnification and the payment of
expenses incurred in defending a proceeding in advance of its final disposition
conferred in this Article 7, shall not be exclusive of any other right that any
person may have or hereafter acquire under any statute, provision of the
certificate of incorporation of the Corporation, this bylaw, agreement, vote of
stockholders or disinterested directors, or otherwise.
7.4 The Corporation may maintain insurance, at its expense,
to protect itself and any director, officer, employee, or agent of the
Corporation or another corporation, partnership, joint venture, trust, or other
enterprise against any such expense, liability, or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability, or loss under the GCLD.
7.5 The Corporation may enter into an indemnity agreement
with any director, officer, employee, or agent of the Corporation, or of another
corporation, partnership, joint venture, trust, or other
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enterprise, upon terms and conditions that the Board of Directors deems
appropriate, as long as the provisions of the agreement are not impermissible
under applicable law.
7.6 Any amendment or repeal of this Article 7 shall not be
retroactive in effect.
7.7 In case any provision in this Article 7 shall be
determined at any time to be unenforceable in any respect, the other provisions
shall not in any way be affected or impaired thereby, and the affected provision
shall be given the fullest possible enforcement in the circumstances, it being
the intention of the Corporation to afford indemnification and advancement of
expenses to the persons indemnified hereby to the fullest extent permitted by
law.
7.8 The Corporation may, by action of the Board of
Directors, authorize one or more officers to grant rights to indemnification and
advancement of expenses to former directors and officers or to other employees
or agents of the Corporation on such terms and conditions as such officer or
officers deem appropriate under the circumstances.
8. MISCELLANEOUS
8.1 Place and Inspection of Books. (a) The books of the
Corporation other than such books as are required by law to be kept within the
State of Delaware shall be kept in such place or places either within or without
the State of Delaware as the Board of Directors may from time to time determine.
(b) At least ten days before each meeting of
stockholders, the officer in charge of the stock ledger of the Corporation shall
prepare a complete list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
(c) The Board of Directors shall determine from time
to time whether and, if allowed, when and under what conditions and regulations
the accounts and books of the Corporation (except such as may be by law
specifically open to inspection or as otherwise provided by these Bylaws) or any
of them shall be open to the inspection of the stockholders and the
stockholders' rights in respect thereof.
8.2 Voting Shares in Other Corporations. The Chief Executive
Officer, the President, the Chief Financial Officer or any other officer of the
Corporation designated by the Board of Directors may vote any and all shares
held by the Corporation in any other corporation.
8.3 Fiscal Year. The fiscal year of the Corporation shall be
such fiscal year as the Board of Directors from time to time by resolution shall
determine.
8.4 Gender/Number. As used in these Bylaws, the masculine,
feminine, or neuter gender, and the singular or plural number, shall each
include the others whenever the context so indicates.
8.5 Paragraph Titles. The titles of the paragraphs have been
inserted as a matter of reference only and shall not control or affect the
meaning or construction of any of the terms and provisions hereof.
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8.6 Amendment. These Bylaws may be altered, amended, or
repealed by (a) the affirmative vote of 80% or more of the aggregate number of
votes that the holders of the then outstanding shares of common stock and
preferred stock are entitled to cast on the amendment, or (b) by resolution
adopted by the affirmative vote of not less than a majority of the Directors in
office, at any annual or regular meeting of the Board of Directors or at any
special meeting of the Board of Directors if notice of the proposed alteration,
amendment, or repeal be contained in written notice of such special meeting.
Notwithstanding the foregoing, the amendment of any provision of these Bylaws
that requires an affirmative vote in excess of a majority of the Directors in
office shall require the affirmative vote of at least the number of directors
the affirmative vote of whom is required by such provision.
8.7 Certificate of Incorporation. Notwithstanding anything
to the contrary contained herein, if any provision contained in these Bylaws is
inconsistent with or conflicts with a provision of the Certificate of
Incorporation, such provision of these Bylaws shall be superseded by the
inconsistent provision in the Certificate of Incorporation to the extent
necessary to give effect to such provision in the Certificate of Incorporation.
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ACE REIT, Inc.
B.7.1
Certificate of Incorporation
Filed March 12, 1998
1
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CERTIFICATE OF INCORPORATION
OF
ACE REIT, INC.
FIRST: The name of the Corporation is ACE REIT, Inc.
SECOND: The registered office of ACE REIT, Inc. in the State of
Delaware is located at 800 King Street, Wilmington, County of New Castle, 19801,
and its registered agent shall be the Corporation itself.
THIRD: The purpose of the Corporation and the nature and objects of the
business to be transacted, promoted, conducted or carried out are:
To engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of the
State of Delaware and maintain its status as a real estate
investment trust ("REIT") within the meaning of Section 856(a)
of the Internal Revenue Code of 1986, as amended, or any
successor statute (the "Code").
FOURTH: The total number of shares of stock that the Corporation shall
be authorized to issue is One Thousand (1,000) shares of Common Stock having a
par value of One Dollar ($1.00) per share.
FIFTH: The name and mailing address of the Incorporator of the
Corporation is:
Name Address
---- -------
Steven L. Biener P.O. Box 6066
Newark, DE 19714-6066
SIXTH: The names and mailing addresses of the sole director who shall
serve until the first annual meeting of stockholders or until his successor is
elected and qualify is:
Name Address
---- -------
Charles A. Mannix P.O. Box 231
Wilmington, DE 19899
SEVENTH: The Board of Directors may make, add to, delete from, alter
and repeal any By-law of the Corporation.
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EIGHTH: No director of the Corporation shall be personally liable to
the Corporation for monetary damages for breach of fiduciary duty by such
director; provided, however, that this Article EIGHTH shall not eliminate or
limit the liability of a director to the extent provided by law (i) for any
breach of the director's duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the General
Corporation Law of the State of Delaware, or (iv) for any transaction from which
the director derived an improper personal benefit. The Corporation shall
indemnify its directors, officers, employees and agents against expenses,
judgment, fines and amounts paid in settlement actually and reasonably incurred
by them by reason of their serving in such capacity to the fullest extent
permitted by the Delaware General Corporation Law.
NINTH: The provisions of this Certificate of Incorporation are
severable, and if the Board of Directors shall determine that any one or more of
such provisions are in conflict with Part II, of Subchapter M, of Chapter 1 of
Subtitle A of the Code or any other provision of the Code applicable to REITs,
or other applicable federal or state laws, the conflicting provisions shall be
deemed never to have constituted a part of this Certificate of Incorporation,
even without any amendment to this Certificate of Incorporation; provided, that
such determination by the Board of Directors shall not affect or impair the
remaining provisions of this Certificate of Incorporation or render invalid or
improper any action taken or omitted prior to such determination. No director
shall be liable for making or failing to make such a determination.
I, the undersigned, being the Incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this Certificate of Incorporation, hereby declaring
and certifying that this is my act and deed and that the facts herein stated are
true and accordingly have hereunto set my hand and seal this 12th day of March,
1998.
--------------------------------
Steven L. Biener
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ACE REIT, Inc.
B.7.2
Amended and Restated Bylaws
Adopted December 31, 1999
<PAGE> 2
AMENDED AND RESTATED
B Y L A W S
OF
ACE REIT, INC.
1. OFFICES.
1.1 Offices. In addition to its registered office in the State
of Delaware, the Corporation shall have a corporate office in Wilmington,
Delaware, and such other offices, either within or without the State of
Delaware, at such locations as the Board of Directors may from time to time
determine or the business of the Corporation may require.
2. SEAL.
2.1 Seal. The Corporation shall have a seal, which shall have
inscribed thereon its name and year of incorporation and the words, "Corporate
Seal Delaware."
3. MEETINGS OF STOCKHOLDERS.
3.1 Annual Meetings. The annual meeting of stockholders of the
Corporation shall be held on such date, at such time and at such place within or
without the State of Delaware as shall be determined by the Board of Directors
from time to time.
3.2 Special Meetings. Special meetings of the stockholders of
the Corporation shall be held on such date, at such time and at such place
within or without the State of Delaware as may be designated by the Chairman of
the Board or by the Board of Directors.
3.3 Notice of Meetings. (a) Notices of meetings of
stockholders shall be in writing and shall state the place, date, and hour of
the meeting, and, in the case of a special meeting, the purpose or purposes for
which a meeting is called. No business other than that specified in the notice
thereof shall be transacted at any special meeting.
(b) Such notice shall either be delivered personally,
mailed, postage prepaid, or delivered by any other lawful means to each
stockholder entitled to vote at such meeting not less than 10 nor more than 60
days before the date of the meeting. If mailed, the notice shall be directed to
the stockholder at his or her address as it appears on the records of the
Corporation. Delivery of any such notice to any officer of a corporation or
association or to any member of a partnership shall constitute delivery of such
notice to such corporation, association, or partnership.
(c) Notice of any meeting of stockholders need not be
given to any stockholder if waived by such stockholder in writing, whether
before or after such meeting is held, or if such stockholder shall sign the
minutes or attend the meeting, except that if such stockholder attends a meeting
for the express purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened, such stockholder shall not be deemed to have waived notice of such
meeting.
3.4 Adjourned Meetings. When a meeting is adjourned to another
time or place, unless otherwise provided by these Bylaws, notice need not be
given of the adjourned meeting if the time and place
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thereof are announced at the meeting at which the adjournment is taken. At the
adjourned meeting the stockholders may transact any business that might have
been transacted at the original meeting. If an adjournment is for more than 30
days, or if after an adjournment, a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder
entitled to vote at the meeting.
3.5 Quorum and Adjournment. Except as otherwise provided by
law, by the Certificate of Incorporation of the Corporation, or by these Bylaws,
the presence, in person or by proxy, of the holders of a majority of the
aggregate voting power of the stock issued and outstanding, entitled to vote
thereat, shall constitute a quorum for the transaction of business at all
meetings of stockholders. If such majority shall not be present or represented
at any meeting of stockholders, the stockholders present, although less than a
quorum, shall have the power to adjourn the meeting.
3.6 Vote Required. Except as otherwise provided by law or by
the Certificate of Incorporation:
(a) Directors shall be elected by a plurality of the
votes present in person or represented by proxy at a meeting of stockholders and
entitled to vote in the election of directors, and
(b) whenever any corporate action other than the election
of Directors is to be taken, it shall be authorized by a majority in voting
power of the shares present in person or by proxy at a meeting of stockholders
and entitled to vote on the subject matter.
3.7 Manner of Voting. At each meeting of stockholders, each
stockholder having the right to vote shall be entitled to vote in person or by
proxy. Proxies need not be filed with the Secretary of the Corporation until the
meeting is called to order, but shall be filed before being voted. Each
stockholder shall be entitled to vote each share of stock having voting power
registered in his or her name on the books of the Corporation on the record date
fixed for determination of stockholders entitled to vote at such meeting.
3.8 Stockholder Action Without a Meeting. Except as otherwise
provided by law or by the Certificate of Incorporation, any action required to
be taken at any meeting of stockholders of the corporation, or any action that
may be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice, and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing and who,
if the action had been taken at a meeting, would have been entitled to notice of
the meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of the holders to take the action were
delivered to the Corporation.
3.9 Proxies. (a) At any meeting of stockholders, any
stockholder may be represented and vote by proxy or proxies. In the event that
any form of proxy shall designate two or more persons to act as proxies, a
majority of such persons present at the meeting or, if only one shall be
present, then that one shall have and may exercise all of the powers conferred
by the form of proxy upon all of the persons so designated unless the form of
proxy shall otherwise provide.
(b) The Board of Directors may, in advance of any annual
or special meeting of the stockholders, prescribe additional regulations
concerning the validation of the same, which are intended to be voted at any
such meeting.
3.10 Presiding Officer and Secretary. The Chairman of the
Board shall act as chairman of all meetings of the stockholders. In the absence
of the Chairman of the Board, the Vice Chairman of the Board
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or, in his or her absence, any Director designated by the Chairman of the Board
or the Board of Directors shall act as chairman of the meeting.
The Secretary of the Corporation shall act as secretary of all
meetings of the stockholders, but, in the absence of the Secretary, the
Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the stockholders, but in the
absence of a designated Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
3.11 Procedure. At each meeting of stockholders, the chairman
of the meeting shall fix and announce the date and time of the opening and the
closing of the polls for each matter upon which the stockholders will vote at
the meeting and shall determine the order of business and all other matters of
procedure. Except to the extent inconsistent with any such rules and regulations
as adopted by the Board of Directors, the chairman of the meeting may establish
rules, which need not be in writing, to maintain order and safety and for the
conduct of the meeting. Without limiting the foregoing, he or she may:
(a) restrict attendance at any time to bona fide
stockholders of record and their proxies and other persons in attendance at the
invitation of the chairman;
(b) restrict dissemination of solicitation materials and
use of audio or visual recording devices at the meeting;
(c) adjourn the meeting without a vote of the
stockholders, whether or not there is a quorum present; and
(d) make rules governing speeches and debate, including
time limits and access to microphones.
The chairman of the meeting shall be entitled to act in his or her absolute
discretion and his or her rulings shall not be subject to appeal.
4. DIRECTORS.
4.1 Powers and Number. The Board of Directors shall exercise
all of the powers of the Corporation except such as are by law, or by the
Certificate of Incorporation of this Corporation or by these Bylaws conferred
upon or reserved to the stockholders of any class or classes. The number of
directors that shall constitute the whole Board of Directors shall be no fewer
than three (3) and no greater than nine (9), the exact number of directors to be
determined from time to time by resolution adopted by the Board of Directors or
the stockholders, and until otherwise determined by the Board of Directors or
the stockholders, the number of directors that shall constitute the whole Board
of Directors shall be three (3).
4.2 Resignations. Any Director may resign at any time by
giving written notice to the Board of Directors or the Secretary. Such
resignation shall take effect at the date of receipt of such notice or at any
later time specified therein. Acceptance of such resignation shall not be
necessary to make it effective.
4.3 Presiding Officer and Secretary. The Chairman of the
Board shall act as chairman of all meetings of the Board of Directors. In the
absence of the Chairman of the Board, the Vice Chairman of the Board, or in his
absence, the Chief Executive Officer or other person designated by the Board of
Directors shall act as chairman of the meeting.
The Secretary of the Corporation shall act as secretary
of all meetings of the Board of Directors, but, in the absence of the Secretary,
the Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the Board of Directors, but in
the absence of a
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designated Assistant Secretary, the chairman of the meeting may appoint any
person to act as secretary of the meeting.
4.4 Annual Meetings. The Board of Directors shall meet each
year immediately following the annual meeting of stockholders, at the place
where such meeting of stockholders has been held, or at such other place as
shall be fixed by the person presiding over the meeting of the stockholders, for
the purpose of election of officers and consideration of such other business as
the Board of Directors considers relevant to the management of the Corporation.
In the event that in any year Directors are elected by written consent in lieu
of an annual meeting of stockholders, the Board of Directors shall meet in such
year as soon as practicable after receipt of such written consent by the
Corporation at such time and place as shall be fixed by the Chairman of the
Board, for the purpose of election of officers and consideration of such other
business as the Board of Directors considers relevant to the management of the
Corporation.
4.5 Regular Meetings. Regular meetings of the Board of
Directors shall be held on such dates and at such times and places, within or
without the state of Delaware, as shall from time to time be determined by the
Board of Directors. In the absence of any such determination, such meetings
shall be held at such times and places, within or without the State of Delaware,
as shall be designated by the Chairman of the Board on not less than twelve
hours notice to each Director, given verbally, in writing or electronically,
whether personally, by telephone (including by message or recording device), by
facsimile transmission, by telegram, by telex or by electronic mail or by other
electronic means, or on not less than three (3) calendar days' notice to each
Director given by mail. Notice given by any of the foregoing means shall be
sufficient to constitute notice of a meeting without the necessity of further
notice.
4.6 Special Meetings. Special meetings of the Board of
Directors shall be held at the call of the Chairman of the Board at such times
and places, within or without the State of Delaware, as he or she shall
designate, on not less than twelve hours notice to each Director, given
verbally, in writing or electronically, whether personally, by telephone
(including by message or recording device), by facsimile transmission, by
telegram, by telex, by electronic mail or by other electronic means or on not
less than three (3) calendar days' notice to each Director given by mail. Notice
given by any of the foregoing means shall be sufficient to constitute notice of
a meeting without the necessity of further notice. Special meetings shall be
called by the Secretary on like notice at the written request of a majority of
the Directors then in office.
4.7 Quorum and Powers of a Majority. At all meetings of the
Board of Directors and of each committee thereof, a majority of the members
shall be necessary and sufficient to constitute a quorum for the transaction of
business, and the act of a majority of the members present at any meeting at
which a quorum is present shall be the act of the Board of Directors or such
committee, unless by express provision of law, of the Certificate of
Incorporation, or of these Bylaws, a different vote is required, in which case
such express provision shall govern and control. In the absence of a quorum, a
majority of the members present at any meeting may, without notice other than
announcement at the meeting, adjourn such meeting from time to time until a
quorum is present.
4.8 Waiver of Notice. Notice of any meeting of the Board of
Directors, or any committee thereof, need not be given to any member if waived
by him or her in writing, whether before or after such meeting is held, or if he
or she shall sign the minutes or attend the meeting, except that if such
Director attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened, then such Director shall not be deemed to have
waived notice of such meeting.
4.9 Manner of Acting. (a) Members of the Board of Directors,
or any committee thereof, may participate in any meeting of the Board of
Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating therein can
hear each other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
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(b) Any action required or permitted to be taken at any
meeting of the Board of Directors or any committee thereof may be taken without
a meeting if all members of the Board of Directors or such committee, as the
case may be, consent thereto in writing, and the writings are filed with the
minutes of proceedings of the Board of Directors or such committee.
4.10 Compensation. (a) The Board of Directors, by a resolution
or resolutions, may fix, and from time to time change, the compensation of
Directors.
(b) Each Director shall be entitled to reimbursement from
the Corporation for his or her reasonable expenses incurred with respect to
duties as a member of the Board of Directors or any committee thereof.
(c) Nothing contained in these Bylaws shall be construed
to preclude any Director from serving the Corporation in any other capacity and
from receiving compensation from the Corporation for service rendered to it in
such other capacity.
4.11 Committees. The Board of Directors (or any committee
thereof having the power and authority to do so) may designate one or more
committees, each committee to consist of one or more Directors, which to the
extent provided in said resolution or resolutions shall have and may exercise
the powers and authority of the Board of Directors in the management of the
business and affairs of the corporation; provided, however, that no such
committee shall have the power or authority in reference to the following
matters: (i) approving or adopting, or recommending to the stockholders, any
action or matter expressly required by the General Corporation Law of Delaware
(the "GCLD") to be submitted to stockholders for approval or (ii) adopting,
amending, or repealing any bylaw of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member of the committee. In the absence or
disqualification of a member of a committee, the member or members present at
any meeting of such committee and not disqualified from voting, whether or not
such member of members constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in place of such absent
or disqualified director.
4.12 Committee Procedure, Limitations of Committee Powers. (a)
Except as otherwise provided by these Bylaws, each committee shall adopt its own
rules governing the time, place and method of holding its meetings and the
conduct of its proceedings and shall meet as provided by such rules or by
resolution of the Board of Directors. Unless otherwise provided by these Bylaws
or any such rules or resolutions, notice of the time and place of each meeting
of a committee shall be given to each member of such committee as provided in
Section 4.6 of these Bylaws with respect to notices of special meetings of the
Board of Directors.
(b) Each committee shall keep regular minutes of its
proceedings and report the same to the Board of Directors when required.
(c) Any member of any committee may be removed from such
committee either with or without cause, at any time, by the Board of Directors
at any meeting thereof. Any vacancy in any committee shall be filled by the
Board of Directors in the manner prescribed by the Certificate of Incorporation
or these Bylaws for the original appointment of the members of such committee.
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5. OFFICERS.
5.1 Number. (a) The officers of the Corporation shall include
a Chief Executive Officer, a President, one or more Vice Presidents (including
one or more Executive Vice Presidents and one or more Senior Vice Presidents if
deemed appropriate by the Board of Directors), a Chief Financial Officer, a
Secretary, a Treasurer, and a Controller. The Board of Directors shall also
elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except
for the Chairman of the Board, the Vice Chairman of the Board, and the Chief
Executive Officer, none of the officers of the Corporation needs to be a
director of the Corporation. Any two or more offices may be held by the same
person to the extent permitted by the GCLD.
(b) The Chief Executive Officer shall have the power to
appoint one or more employees of the Corporation as divisional or departmental
vice presidents and fix the duties of such appointees. However, no such
divisional or departmental vice president shall be considered as an officer of
the Corporation.
5.2 Election of Officers, Qualification and Term. The Chief
Executive Officer, the President, any Executive Vice President, any Senior Vice
President, the Chief Financial Officer, the Secretary and the Treasurer of the
Corporation shall be elected from time to time by the Board of Directors and,
except as may otherwise be expressly provided in a contract of employment duly
authorized by the Board of Directors, shall hold office at the pleasure of the
Board of Directors. The Board of Directors and the Chief Executive Officer also
may elect such other officers as the Board of Directors or the Chief Executive
Officer may from time to time deem appropriate or necessary.
5.3 Removal. Any officer elected by the Board of Directors may
be removed, either with or without cause, by the Board of Directors at any
meeting thereof, or to the extent delegated to the Chairman of the Board or the
Chief Executive Officer, by the Chairman of the Board or the Chief Executive
Officer.
5.4 Resignations. Any officer of the Corporation may resign at
any time by giving written notice to the Board of Directors or to the Chairman
of the Board or to the Chief Executive Officer. Such resignation shall take
effect at the date of the receipt of such notice or at any later time specified
therein and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
5.5 Compensation. The compensation of all officers of the
Corporation shall be fixed by or in the manner provided by the Board of
Directors from time to time, and no officer shall be prevented from receiving
such compensation by reason of the fact that he or she is also a Director of the
Corporation.
5.6 The Chairman of the Board. The Chairman of the Board shall
have the powers and duties customarily and usually associated with the office of
the Chairman of the Board and shall have such other powers and perform such
other duties as may be delegated to him or her by the Board of Directors. The
Chairman of the Board shall preside at meetings of the stockholders and of the
Board of Directors.
5.7 Vice Chairman of the Board. The Vice Chairman of the
Board, if any, shall have the powers and duties customarily and usually
associated with the office of the Vice Chairman of the Board and shall have such
other powers and perform such other duties as may be delegated to him or her by
the Board of Directors.
5.8 Chief Executive Officer. The Chief Executive Officer shall
have, subject to the supervision, direction and control of the Board of
Directors, the general powers and duties of supervision, direction and
management of the affairs and business of the Corporation usually vested in the
chief executive officer of a corporation, including, without limitation, all
powers necessary to direct and control the organizational and reporting
relationships within the Corporation. In addition, the Chief Executive Officer
shall have such other powers and perform such other duties as may be delegated
to him or her by the Board of Directors. If at any time the office of the
Chairman of the Board and the Vice Chairman of the Board shall not be
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filled, or in the event of the temporary absence or disability of the Chairman
of the Board and the Vice Chairman of the Board, the Chief Executive Officer
shall have the powers and duties of the Chairman of the Board.
5.9 The President. The President shall serve as chief
operating officer, shall have the powers and duties customarily and usually
associated with the office of the President and shall have such other powers and
perform such other duties as may be delegated to him or her from time to time by
the Board of Directors or the Chief Executive Officer.
5.10 The Vice Presidents. Each Vice President shall have such
powers and duties customarily and usually associated with the office of Vice
President and shall have such other powers and perform such other duties as may
from time to time be assigned to him or her by the Board of Directors, the Chief
Executive Officer, or the President.
5.11 The Chief Financial Officer. The Chief Financial Officer
shall be responsible for the financial affairs of the Corporation, including
overseeing the duties performed by the Treasurer of the Corporation. In
addition, the Chief Financial Officer shall have such powers and duties
customarily and usually associated with the office of the Chief Financial
Officer and shall have such other powers and perform such other duties as may be
delegated to him or her from time to time by the Board of Directors or the Chief
Executive Officer.
5.12 The Secretary and the Assistant Secretary. (a) The
Secretary shall attend meetings of the Board of Directors and meetings of the
stockholders and record all votes and minutes of all such proceedings in a book
kept for such purpose. In addition, the Secretary shall have such powers and
duties customarily and usually associated with the office of Secretary and shall
have such other powers and perform such other duties as may be delegated to him
or her by the Board of Directors, the Chief Executive Officer, or the President.
(b) Each Assistant Secretary shall have such powers and
perform such duties customarily and usually associated with the office of
Assistant Secretary and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Secretary. In case
of the absence or disability of the Secretary, the Assistant Secretary
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Secretary) shall perform the duties and exercise the powers
of the Secretary.
5.13 The Treasurer and the Assistant Treasurer. (a) The
Treasurer shall have custody of the Corporation's funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit or cause to be deposited moneys or other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The Treasurer shall
also maintain adequate records of all assets, liabilities, and transactions of
the Corporation and shall see that adequate audits thereof are currently and
regularly made. In addition, the Treasurer shall have such powers and duties
customarily and usually associated with the office of Treasurer and shall have
such other powers and perform such other duties as may be delegated to him or
her from time to time by the Board of Directors, the Chief Executive Officer,
the President or the Chief Financial Officer.
(b) Each Assistant Treasurer shall have such powers and
perform such duties customarily and usually associated with the office of
Assistant Treasurer and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Treasurer. In case
of the absence or disability of the Treasurer, the Assistant Treasurer
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Treasurer) shall perform the duties and exercise the powers
of the Treasurer.
5.14 Controller. The Controller shall be responsible for
maintaining the accounting records and statements, and shall properly account
for all monies and obligations due the Corporation and all properties, assets,
and liabilities of the Corporation. The Controller shall render to the Chairman
of the Board, the President
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or the Chief Financial Officer such periodic reports covering the results of
operations of the Corporation as may be required by either of them or by law. In
addition, the Controller shall have such powers and duties customarily and
usually associated with the office of Controller and shall have such other
powers and perform such other duties as may be delegated to him or her from time
to time by the Board of Directors, the Chief Executive Officer, the President or
the Chief Financial Officer.
6. STOCK
6.1 Certificates. Certificates for shares of stock of the
Corporation shall be issued under the seal of the Corporation, or a facsimile
thereof, and shall be numbered and shall be entered in the books of the
Corporation as they are issued. Each certificate shall bear a serial number,
shall exhibit the holder's name and the number of shares evidenced thereby, and
shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the
Chief Executive Officer or the President or any Vice President, and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer.
Any or all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if such person or entity
were such officer, transfer agent, or registrar at the date of issue.
6.2 Transfers. Transfers of stock of the Corporation shall be
made on the books of the Corporation only upon surrender to the Corporation of a
certificate (if any) for the shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, provided such
succession, assignment, or transfer is not prohibited by the Certificate of
Incorporation, these Bylaws, applicable law or contract. Thereupon, the
Corporation shall issue a new certificate (if requested) to the person entitled
thereto, cancel the old certificate (if any), and record the transaction upon
its books.
6.3 Lost, Stolen, or Destroyed Certificates. Any person
claiming a certificate of stock to be lost, stolen, or destroyed shall make an
affidavit or an affirmation of that fact, and shall give the Corporation a bond
of indemnity in satisfactory form and with one or more satisfactory sureties,
whereupon a new certificate (if requested) may be issued of the same tenor and
for the same number of shares as the one alleged to be lost, stolen, or
destroyed.
6.4 Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares as the person entitled to exercise the rights of a stockholder
and shall not be bound to recognize any equitable or other claim to or interest
in any such shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise expressly provided by the
GCLD.
6.5 Additional Powers of the Board. (a) In addition to those
powers set forth in Section 4.1, the Board of Directors shall have power and
authority to make all such rules and regulations as it shall deem expedient
concerning the issue, transfer, and registration of certificates for shares of
stock of the Corporation, including the use of uncertificated shares of stock
subject to the provisions of the GCLD.
(b) The Board of Directors may appoint and remove transfer
agents and registrars of transfers, and may require all stock certificates to
bear the signature of any such transfer agent and/or any such registrar of
transfers.
7. INDEMNIFICATION
7.1 Each person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or the person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the
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Corporation, as a director, officer, employee, or agent of another corporation
or of a partnership, joint venture, trust, or other enterprise, including
service with respect to employee benefit plans, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the GCLD, as the
same exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than said law permitted the Corporation to
provide prior to such amendment), against all expenses, liability, and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties,
and amounts paid or to be paid in settlement) reasonably incurred or suffered by
such person in connection therewith and such indemnification shall continue as
to a person who has ceased to be a director, officer, employee, or agent and
shall inure to the benefit of his or her heirs, executors, and administrators;
provided, however, that, except as provided in this Article 7, the Corporation
shall indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if authorized by the
Board of Directors of the Corporation. Any indemnification under this Article 7
(unless ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee, or agent is proper in the circumstances because he or she has
met the applicable standard set forth in the GCLD. Such a determination shall be
made (a) by a majority vote of the directors who are not parties to such action,
suit or proceeding, even though less than a quorum; (b) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum; (c) by independent legal counsel (compensated by the Corporation) in a
written opinion; (d) by the stockholders; or (e) in any other manner permitted
by the GCLD. In addition to the right to indemnification conferred in this
Article 7, each of the above persons shall have the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that, if the GCLD requires, the
payment of such expenses incurred by a present director or officer in his or her
capacity as a director or officer of the corporation (and not in any other
capacity in which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such present
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Article 7 or otherwise. The Corporation may, by any manner permitted by the
GCLD, provide indemnification and advancement of expenses to employees and
agents of the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers. The right to indemnification and to
an advancement of expenses conferred in this Article 7 shall be a contract
right.
7.2 If a claim under Section 7.1 of this Article 7 is not paid
in full by the Corporation within 30 days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim (including attorneys' fees). It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the GCLD for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, a committee thereof, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the GCLD, nor an actual determination by the Corporation (including
its Board of Directors, a committee thereof, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct. In any suit brought by the claimant
to enforce a right to indemnification or to an advancement of expenses
hereunder, or brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the claimant
is not entitled to be indemnified, or to such advancement of expenses, under
this Article 7 or otherwise shall be on the Corporation.
7.3 The rights to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Article 7, shall not be exclusive of any other right
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that any person may have or hereafter acquire under any statute, provision of
the certificate of incorporation of the Corporation, this bylaw, agreement, vote
of stockholders or disinterested directors, or otherwise.
7.4 The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee, or agent of the Corporation
or another corporation, partnership, joint venture, trust, or other enterprise
against any such expense, liability, or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability,
or loss under the GCLD.
7.5 The Corporation may enter into an indemnity agreement with
any director, officer, employee, or agent of the Corporation, or of another
corporation, partnership, joint venture, trust, or other enterprise, upon terms
and conditions that the Board of Directors deems appropriate, as long as the
provisions of the agreement are not impermissible under applicable law.
7.6 Any amendment or repeal of this Article 7 shall not be
retroactive in effect.
7.7 In case any provision in this Article 7 shall be
determined at any time to be unenforceable in any respect, the other provisions
shall not in any way be affected or impaired thereby, and the affected provision
shall be given the fullest possible enforcement in the circumstances, it being
the intention of the Corporation to afford indemnification and advancement of
expenses to the persons indemnified hereby to the fullest extent permitted by
law.
7.8 The Corporation may, by action of the Board of Directors,
authorize one or more officers to grant rights to indemnification and
advancement of expenses to former directors and officers or to other employees
or agents of the Corporation on such terms and conditions as such officer or
officers deem appropriate under the circumstances.
8. MISCELLANEOUS
8.1 Place and Inspection of Books. (a) The books of the
Corporation other than such books as are required by law to be kept within the
State of Delaware shall be kept in such place or places either within or without
the State of Delaware as the Board of Directors may from time to time determine.
(b) At least ten days before each meeting of stockholders,
the officer in charge of the stock ledger of the Corporation shall prepare a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order and showing the address of each stockholder and the number of
shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
(c) The Board of Directors shall determine from time to
time whether and, if allowed, when and under what conditions and regulations the
accounts and books of the Corporation (except such as may be by law specifically
open to inspection or as otherwise provided by these Bylaws) or any of them
shall be open to the inspection of the stockholders and the stockholders' rights
in respect thereof.
8.2 Voting Shares in Other Corporations. The Chief Executive
Officer, the President, the Chief Financial Officer or any other officer of the
Corporation designated by the Board of Directors may vote any and all shares
held by the Corporation in any other corporation.
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8.3 Fiscal Year. The fiscal year of the Corporation shall be
such fiscal year as the Board of Directors from time to time by resolution shall
determine.
8.4 Gender/Number. As used in these Bylaws, the masculine,
feminine, or neuter gender, and the singular or plural number, shall each
include the others whenever the context so indicates.
8.5 Paragraph Titles. The titles of the paragraphs have been
inserted as a matter of reference only and shall not control or affect the
meaning or construction of any of the terms and provisions hereof.
8.6 Amendment. These Bylaws may be altered, amended, or
repealed by (a) the affirmative vote of 80% or more of the aggregate number of
votes that the holders of the then outstanding shares of common stock and
preferred stock are entitled to cast on the amendment, or (b) by resolution
adopted by the affirmative vote of not less than a majority of the Directors in
office, at any annual or regular meeting of the Board of Directors or at any
special meeting of the Board of Directors if notice of the proposed alteration,
amendment, or repeal be contained in written notice of such special meeting.
Notwithstanding the foregoing, the amendment of any provision of these Bylaws
that requires an affirmative vote in excess of a majority of the Directors in
office shall require the affirmative vote of at least the number of directors
the affirmative vote of whom is required by such provision.
8.7 Certificate of Incorporation. Notwithstanding anything to
the contrary contained herein, if any provision contained in these Bylaws is
inconsistent with or conflicts with a provision of the Certificate of
Incorporation, such provision of these Bylaws shall be superseded by the
inconsistent provision in the Certificate of Incorporation to the extent
necessary to give effect to such provision in the Certificate of Incorporation.
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Conectiv Resource Partners, Inc
B.8.2
Amended and Restated Bylaws
Adopted December 31, 1999
<PAGE> 2
AMENDED AND RESTATED
B Y L A W S
OF
CONECTIV RESOURCE PARTNERS, INC.
1. OFFICES.
1.1 Offices. In addition to its registered office in the State
of Delaware, the Corporation shall have a corporate office in Wilmington,
Delaware, and such other offices, either within or without the State of
Delaware, at such locations as the Board of Directors may from time to time
determine or the business of the Corporation may require.
2. SEAL.
2.1 Seal. The Corporation shall have a seal, which shall have
inscribed thereon its name and year of incorporation and the words, "Corporate
Seal New Jersey."
3. MEETINGS OF STOCKHOLDERS.
3.1 Annual Meetings. The annual meeting of stockholders of the
Corporation shall be held on such date, at such time and at such place within or
without the State of Delaware as shall be determined by the Board of Directors
from time to time.
3.2 Special Meetings. Special meetings of the stockholders of
the Corporation shall be held on such date, at such time and at such place
within or without the State of Delaware as may be designated by the Chairman of
the Board or by the Board of Directors.
3.3 Notice of Meetings. (a) Notices of meetings of
stockholders shall be in writing and shall state the place, date, and hour of
the meeting, and, in the case of a special meeting, the purpose or purposes for
which a meeting is called. No business other than that specified in the notice
thereof shall be transacted at any special meeting.
(b) Such notice shall either be delivered personally,
mailed, postage prepaid, or delivered by any other lawful means to each
stockholder entitled to vote at such meeting not less than 10 nor more than 60
days before the date of the meeting. If mailed, the notice shall be directed to
the stockholder at his or her address as it appears on the records of the
Corporation. Delivery of any such notice to any officer of a corporation or
association or to any member of a partnership shall constitute delivery of such
notice to such corporation, association, or partnership.
(c) Notice of any meeting of stockholders need not be
given to any stockholder if waived by such stockholder in writing, whether
before or after such meeting is held, or if such stockholder shall sign the
minutes or attend the meeting, except that if such stockholder attends a meeting
for the express purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened, such stockholder shall not be deemed to have waived notice of such
meeting.
3.4 Adjourned Meetings. When a meeting is adjourned to another
time or place, unless otherwise provided by these Bylaws, notice need not be
given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. At the adjourned meeting the
stockholders may transact any business that might have been transacted at the
original meeting. If an adjournment
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is for more than 30 days, or if after an adjournment, a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder entitled to vote at the meeting.
3.5 Quorum and Adjournment. Except as otherwise provided by
law, by the Certificate of Incorporation of the Corporation, or by these Bylaws,
the presence, in person or by proxy, of the holders of a majority of the
aggregate voting power of the stock issued and outstanding, entitled to vote
thereat, shall constitute a quorum for the transaction of business at all
meetings of stockholders. If such majority shall not be present or represented
at any meeting of stockholders, the stockholders present, although less than a
quorum, shall have the power to adjourn the meeting.
3.6 Vote Required. Except as otherwise provided by law or by
the Certificate of Incorporation:
(a) Directors shall be elected by a plurality of the
votes present in person or represented by proxy at a meeting of stockholders and
entitled to vote in the election of directors, and
(b) whenever any corporate action other than the election
of Directors is to be taken, it shall be authorized by a majority in voting
power of the shares present in person or by proxy at a meeting of stockholders
and entitled to vote on the subject matter.
3.7 Manner of Voting. At each meeting of stockholders, each
stockholder having the right to vote shall be entitled to vote in person or by
proxy. Proxies need not be filed with the Secretary of the Corporation until the
meeting is called to order, but shall be filed before being voted. Each
stockholder shall be entitled to vote each share of stock having voting power
registered in his or her name on the books of the Corporation on the record date
fixed for determination of stockholders entitled to vote at such meeting.
3.8 Stockholder Action Without a Meeting. Except as otherwise
provided by law or by the Certificate of Incorporation, any action required to
be taken at any meeting of stockholders of the corporation, or any action that
may be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice, and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing and who,
if the action had been taken at a meeting, would have been entitled to notice of
the meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of the holders to take the action were
delivered to the Corporation.
3.9 Proxies. (a) At any meeting of stockholders, any
stockholder may be represented and vote by proxy or proxies. In the event that
any form of proxy shall designate two or more persons to act as proxies, a
majority of such persons present at the meeting or, if only one shall be
present, then that one shall have and may exercise all of the powers conferred
by the form of proxy upon all of the persons so designated unless the form of
proxy shall otherwise provide.
(b) The Board of Directors may, in advance of any annual
or special meeting of the stockholders, prescribe additional regulations
concerning the validation of the same, which are intended to be voted at any
such meeting.
3.10 Presiding Officer and Secretary. The Chairman of the
Board shall act as chairman of all meetings of the stockholders. In the absence
of the Chairman of the Board, the Vice Chairman of the Board or, in his or her
absence, any Director designated by the Chairman of the Board or the Board of
Directors shall act as chairman of the meeting.
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The Secretary of the Corporation shall act as secretary of all
meetings of the stockholders, but, in the absence of the Secretary, the
Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the stockholders, but in the
absence of a designated Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
3.11 Procedure. At each meeting of stockholders, the chairman
of the meeting shall fix and announce the date and time of the opening and the
closing of the polls for each matter upon which the stockholders will vote at
the meeting and shall determine the order of business and all other matters of
procedure. Except to the extent inconsistent with any such rules and regulations
as adopted by the Board of Directors, the chairman of the meeting may establish
rules, which need not be in writing, to maintain order and safety and for the
conduct of the meeting. Without limiting the foregoing, he or she may:
(a) restrict attendance at any time to bona fide
stockholders of record and their proxies and other persons in attendance at the
invitation of the chairman;
(b) restrict dissemination of solicitation materials and
use of audio or visual recording devices at the meeting;
(c) adjourn the meeting without a vote of the
stockholders, whether or not there is a quorum present; and
(d) make rules governing speeches and debate, including
time limits and access to microphones.
The chairman of the meeting shall be entitled to act in his or her absolute
discretion and his or her rulings shall not be subject to appeal.
4. DIRECTORS.
4.1 Powers and Number. The Board of Directors shall exercise
all of the powers of the Corporation except such as are by law, or by the
Certificate of Incorporation of this Corporation or by these Bylaws conferred
upon or reserved to the stockholders of any class or classes. The number of
directors that shall constitute the whole Board of Directors shall be no fewer
than three (3) and no greater than nine (9), the exact number of directors to be
determined from time to time by resolution adopted by the Board of Directors or
the stockholders, and until otherwise determined by the Board of Directors or
the stockholders, the number of directors that shall constitute the whole Board
of Directors shall be three (3).
4.2 Resignations. Any Director may resign at any time by
giving written notice to the Board of Directors or the Secretary. Such
resignation shall take effect at the date of receipt of such notice or at any
later time specified therein. Acceptance of such resignation shall not be
necessary to make it effective.
4.3 Presiding Officer and Secretary. The Chairman of the
Board shall act as chairman of all meetings of the Board of Directors. In the
absence of the Chairman of the Board, the Vice Chairman of the Board, or in his
absence, the Chief Executive Officer or other person designated by the Board of
Directors shall act as chairman of the meeting.
The Secretary of the Corporation shall act as secretary
of all meetings of the Board of Directors, but, in the absence of the Secretary,
the Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the Board of Directors, but in
the absence of a designated Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
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4.4 Annual Meetings. The Board of Directors shall meet each
year immediately following the annual meeting of stockholders, at the place
where such meeting of stockholders has been held, or at such other place as
shall be fixed by the person presiding over the meeting of the stockholders, for
the purpose of election of officers and consideration of such other business as
the Board of Directors considers relevant to the management of the Corporation.
In the event that in any year Directors are elected by written consent in lieu
of an annual meeting of stockholders, the Board of Directors shall meet in such
year as soon as practicable after receipt of such written consent by the
Corporation at such time and place as shall be fixed by the Chairman of the
Board, for the purpose of election of officers and consideration of such other
business as the Board of Directors considers relevant to the management of the
Corporation.
4.5 Regular Meetings. Regular meetings of the Board of
Directors shall be held on such dates and at such times and places, within or
without the state of Delaware, as shall from time to time be determined by the
Board of Directors. In the absence of any such determination, such meetings
shall be held at such times and places, within or without the State of Delaware,
as shall be designated by the Chairman of the Board on not less than twelve
hours notice to each Director, given verbally, in writing or electronically,
whether personally, by telephone (including by message or recording device), by
facsimile transmission, by telegram, by telex or by electronic mail or by other
electronic means, or on not less than three (3) calendar days' notice to each
Director given by mail. Notice given by any of the foregoing means shall be
sufficient to constitute notice of a meeting without the necessity of further
notice.
4.6 Special Meetings. Special meetings of the Board of
Directors shall be held at the call of the Chairman of the Board at such times
and places, within or without the State of Delaware, as he or she shall
designate, on not less than twelve hours notice to each Director, given
verbally, in writing or electronically, whether personally, by telephone
(including by message or recording device), by facsimile transmission, by
telegram, by telex, by electronic mail or by other electronic means or on not
less than three (3) calendar days' notice to each Director given by mail. Notice
given by any of the foregoing means shall be sufficient to constitute notice of
a meeting without the necessity of further notice. Special meetings shall be
called by the Secretary on like notice at the written request of a majority of
the Directors then in office.
4.7 Quorum and Powers of a Majority. At all meetings of the
Board of Directors and of each committee thereof, a majority of the members
shall be necessary and sufficient to constitute a quorum for the transaction of
business, and the act of a majority of the members present at any meeting at
which a quorum is present shall be the act of the Board of Directors or such
committee, unless by express provision of law, of the Certificate of
Incorporation, or of these Bylaws, a different vote is required, in which case
such express provision shall govern and control. In the absence of a quorum, a
majority of the members present at any meeting may, without notice other than
announcement at the meeting, adjourn such meeting from time to time until a
quorum is present.
4.8 Waiver of Notice. Notice of any meeting of the Board of
Directors, or any committee thereof, need not be given to any member if waived
by him or her in writing, whether before or after such meeting is held, or if he
or she shall sign the minutes or attend the meeting, except that if such
Director attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened, then such Director shall not be deemed to have
waived notice of such meeting.
4.9 Manner of Acting. (a) Members of the Board of Directors,
or any committee thereof, may participate in any meeting of the Board of
Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating therein can
hear each other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
(b) Any action required or permitted to be taken at any
meeting of the Board of Directors or any committee thereof may be taken without
a meeting if all members of the Board of Directors or
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such committee, as the case may be, consent thereto in writing, and the writings
are filed with the minutes of proceedings of the Board of Directors or such
committee.
4.10 Compensation. (a) The Board of Directors, by a resolution
or resolutions, may fix, and from time to time change, the compensation of
Directors.
(b) Each Director shall be entitled to reimbursement from
the Corporation for his or her reasonable expenses incurred with respect to
duties as a member of the Board of Directors or any committee thereof.
(c) Nothing contained in these Bylaws shall be construed
to preclude any Director from serving the Corporation in any other capacity and
from receiving compensation from the Corporation for service rendered to it in
such other capacity.
4.11 Committees. The Board of Directors (or any committee
thereof having the power and authority to do so) may designate one or more
committees, each committee to consist of one or more Directors, which to the
extent provided in said resolution or resolutions shall have and may exercise
the powers and authority of the Board of Directors in the management of the
business and affairs of the corporation; provided, however, that no such
committee shall have the power or authority in reference to the following
matters: (i) approving or adopting, or recommending to the stockholders, any
action or matter expressly required by the General Corporation Law of Delaware
(the "GCLD") to be submitted to stockholders for approval or (ii) adopting,
amending, or repealing any bylaw of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member of the committee. In the absence or
disqualification of a member of a committee, the member or members present at
any meeting of such committee and not disqualified from voting, whether or not
such member of members constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in place of such absent
or disqualified director.
4.12 Committee Procedure, Limitations of Committee Powers. (a)
Except as otherwise provided by these Bylaws, each committee shall adopt its own
rules governing the time, place and method of holding its meetings and the
conduct of its proceedings and shall meet as provided by such rules or by
resolution of the Board of Directors. Unless otherwise provided by these Bylaws
or any such rules or resolutions, notice of the time and place of each meeting
of a committee shall be given to each member of such committee as provided in
Section 4.6 of these Bylaws with respect to notices of special meetings of the
Board of Directors.
(b) Each committee shall keep regular minutes of its
proceedings and report the same to the Board of Directors when required.
(c) Any member of any committee may be removed from such
committee either with or without cause, at any time, by the Board of Directors
at any meeting thereof. Any vacancy in any committee shall be filled by the
Board of Directors in the manner prescribed by the Certificate of Incorporation
or these Bylaws for the original appointment of the members of such committee.
5. OFFICERS.
5.1 Number. (a) The officers of the Corporation shall include
a Chief Executive Officer, a President, one or more Vice Presidents (including
one or more Executive Vice Presidents and one or more Senior Vice Presidents if
deemed appropriate by the Board of Directors), a Chief Financial Officer, a
Secretary, a Treasurer, and a Controller. The Board of Directors shall also
elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except
for the Chairman of the Board, the Vice Chairman of the Board, and the Chief
Executive Officer, none of the officers of the Corporation needs to be a
director of the Corporation. Any two or more offices may be held by the same
person to the extent permitted by the GCLD.
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(b) The Chief Executive Officer shall have the power to
appoint one or more employees of the Corporation as divisional or departmental
vice presidents and fix the duties of such appointees. However, no such
divisional or departmental vice president shall be considered as an officer of
the Corporation.
5.2 Election of Officers, Qualification and Term. The Chief
Executive Officer, the President, any Executive Vice President, any Senior Vice
President, the Chief Financial Officer, the Secretary and the Treasurer of the
Corporation shall be elected from time to time by the Board of Directors and,
except as may otherwise be expressly provided in a contract of employment duly
authorized by the Board of Directors, shall hold office at the pleasure of the
Board of Directors. The Board of Directors and the Chief Executive Officer also
may elect such other officers as the Board of Directors or the Chief Executive
Officer may from time to time deem appropriate or necessary.
5.3 Removal. Any officer elected by the Board of Directors
may be removed, either with or without cause, by the Board of Directors at any
meeting thereof, or to the extent delegated to the Chairman of the Board or the
Chief Executive Officer, by the Chairman of the Board or the Chief Executive
Officer.
5.4 Resignations. Any officer of the Corporation may resign
at any time by giving written notice to the Board of Directors or to the
Chairman of the Board or to the Chief Executive Officer. Such resignation shall
take effect at the date of the receipt of such notice or at any later time
specified therein and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
5.5 Compensation. The compensation of all officers of the
Corporation shall be fixed by or in the manner provided by the Board of
Directors from time to time, and no officer shall be prevented from receiving
such compensation by reason of the fact that he or she is also a Director of the
Corporation.
5.6 The Chairman of the Board. The Chairman of the Board
shall have the powers and duties customarily and usually associated with the
office of the Chairman of the Board and shall have such other powers and perform
such other duties as may be delegated to him or her by the Board of Directors.
The Chairman of the Board shall preside at meetings of the stockholders and of
the Board of Directors.
5.7 Vice Chairman of the Board. The Vice Chairman of the
Board, if any, shall have the powers and duties customarily and usually
associated with the office of the Vice Chairman of the Board and shall have such
other powers and perform such other duties as may be delegated to him or her by
the Board of Directors.
5.8 Chief Executive Officer. The Chief Executive Officer
shall have, subject to the supervision, direction and control of the Board of
Directors, the general powers and duties of supervision, direction and
management of the affairs and business of the Corporation usually vested in the
chief executive officer of a corporation, including, without limitation, all
powers necessary to direct and control the organizational and reporting
relationships within the Corporation. In addition, the Chief Executive Officer
shall have such other powers and perform such other duties as may be delegated
to him or her by the Board of Directors. If at any time the office of the
Chairman of the Board and the Vice Chairman of the Board shall not be filled, or
in the event of the temporary absence or disability of the Chairman of the Board
and the Vice Chairman of the Board, the Chief Executive Officer shall have the
powers and duties of the Chairman of the Board.
5.9 The President. The President shall serve as chief
operating officer, shall have the powers and duties customarily and usually
associated with the office of the President and shall have such other powers and
perform such other duties as may be delegated to him or her from time to time by
the Board of Directors or the Chief Executive Officer.
5.10 The Vice Presidents. Each Vice President shall have such
powers and duties customarily and usually associated with the office of Vice
President and shall have such other powers and perform
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such other duties as may from time to time be assigned to him or her by the
Board of Directors, the Chief Executive Officer, or the President.
5.11 The Chief Financial Officer. The Chief Financial Officer
shall be responsible for the financial affairs of the Corporation, including
overseeing the duties performed by the Treasurer of the Corporation. In
addition, the Chief Financial Officer shall have such powers and duties
customarily and usually associated with the office of the Chief Financial
Officer and shall have such other powers and perform such other duties as may be
delegated to him or her from time to time by the Board of Directors or the Chief
Executive Officer.
5.12 The Secretary and the Assistant Secretary. (a) The
Secretary shall attend meetings of the Board of Directors and meetings of the
stockholders and record all votes and minutes of all such proceedings in a book
kept for such purpose. In addition, the Secretary shall have such powers and
duties customarily and usually associated with the office of Secretary and shall
have such other powers and perform such other duties as may be delegated to him
or her by the Board of Directors, the Chief Executive Officer, or the President.
(b) Each Assistant Secretary shall have such powers and
perform such duties customarily and usually associated with the office of
Assistant Secretary and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Secretary. In case
of the absence or disability of the Secretary, the Assistant Secretary
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Secretary) shall perform the duties and exercise the powers
of the Secretary.
5.13 The Treasurer and the Assistant Treasurer. (a) The
Treasurer shall have custody of the Corporation's funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit or cause to be deposited moneys or other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The Treasurer shall
also maintain adequate records of all assets, liabilities, and transactions of
the Corporation and shall see that adequate audits thereof are currently and
regularly made. In addition, the Treasurer shall have such powers and duties
customarily and usually associated with the office of Treasurer and shall have
such other powers and perform such other duties as may be delegated to him or
her from time to time by the Board of Directors, the Chief Executive Officer,
the President or the Chief Financial Officer.
(b) Each Assistant Treasurer shall have such powers and
perform such duties customarily and usually associated with the office of
Assistant Treasurer and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Treasurer. In case
of the absence or disability of the Treasurer, the Assistant Treasurer
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Treasurer) shall perform the duties and exercise the powers
of the Treasurer.
5.14 Controller. The Controller shall be responsible for
maintaining the accounting records and statements, and shall properly account
for all monies and obligations due the Corporation and all properties, assets,
and liabilities of the Corporation. The Controller shall render to the Chairman
of the Board, the President or the Chief Financial Officer such periodic reports
covering the results of operations of the Corporation as may be required by
either of them or by law. In addition, the Controller shall have such powers and
duties customarily and usually associated with the office of Controller and
shall have such other powers and perform such other duties as may be delegated
to him or her from time to time by the Board of Directors, the Chief Executive
Officer, the President or the Chief Financial Officer.
6. STOCK
6.1 Certificates. Certificates for shares of stock of the
Corporation shall be issued under the seal of the Corporation, or a facsimile
thereof, and shall be numbered and shall be entered in the books of the
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Corporation as they are issued. Each certificate shall bear a serial number,
shall exhibit the holder's name and the number of shares evidenced thereby, and
shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the
Chief Executive Officer or the President or any Vice President, and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer.
Any or all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if such person or entity
were such officer, transfer agent, or registrar at the date of issue.
6.2 Transfers. Transfers of stock of the Corporation shall be
made on the books of the Corporation only upon surrender to the Corporation of a
certificate (if any) for the shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, provided such
succession, assignment, or transfer is not prohibited by the Certificate of
Incorporation, these Bylaws, applicable law or contract. Thereupon, the
Corporation shall issue a new certificate (if requested) to the person entitled
thereto, cancel the old certificate (if any), and record the transaction upon
its books.
6.3 Lost, Stolen, or Destroyed Certificates. Any person
claiming a certificate of stock to be lost, stolen, or destroyed shall make an
affidavit or an affirmation of that fact, and shall give the Corporation a bond
of indemnity in satisfactory form and with one or more satisfactory sureties,
whereupon a new certificate (if requested) may be issued of the same tenor and
for the same number of shares as the one alleged to be lost, stolen, or
destroyed.
6.4 Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares as the person entitled to exercise the rights of a stockholder
and shall not be bound to recognize any equitable or other claim to or interest
in any such shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise expressly provided by the
GCLD.
6.5 Additional Powers of the Board. (a) In addition to those
powers set forth in Section 4.1, the Board of Directors shall have power and
authority to make all such rules and regulations as it shall deem expedient
concerning the issue, transfer, and registration of certificates for shares of
stock of the Corporation, including the use of uncertificated shares of stock
subject to the provisions of the GCLD.
(b) The Board of Directors may appoint and remove transfer
agents and registrars of transfers, and may require all stock certificates to
bear the signature of any such transfer agent and/or any such registrar of
transfers.
7. INDEMNIFICATION
7.1 Each person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or the person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation, as a
director, officer, employee, or agent of another corporation or of a
partnership, joint venture, trust, or other enterprise, including service with
respect to employee benefit plans, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the GCLD, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expenses, liability, and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of his or her heirs, executors, and administrators; provided,
however, that, except as provided in this Article 7, the Corporation shall
indemnify any
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such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if authorized by the Board of Directors
of the Corporation. Any indemnification under this Article 7 (unless ordered by
a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee, or agent is proper in the circumstances because he or she has met the
applicable standard set forth in the GCLD. Such a determination shall be made
(a) by a majority vote of the directors who are not parties to such action, suit
or proceeding, even though less than a quorum; (b) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum; (c) by independent legal counsel (compensated by the Corporation) in a
written opinion; (d) by the stockholders; or (e) in any other manner permitted
by the GCLD. In addition to the right to indemnification conferred in this
Article 7, each of the above persons shall have the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that, if the GCLD requires, the
payment of such expenses incurred by a present director or officer in his or her
capacity as a director or officer of the corporation (and not in any other
capacity in which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such present
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Article 7 or otherwise. The Corporation may, by any manner permitted by the
GCLD, provide indemnification and advancement of expenses to employees and
agents of the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers. The right to indemnification and to
an advancement of expenses conferred in this Article 7 shall be a contract
right.
7.2 If a claim under Section 7.1 of this Article 7 is not paid
in full by the Corporation within 30 days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim (including attorneys' fees). It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the GCLD for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, a committee thereof, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the GCLD, nor an actual determination by the Corporation (including
its Board of Directors, a committee thereof, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct. In any suit brought by the claimant
to enforce a right to indemnification or to an advancement of expenses
hereunder, or brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the claimant
is not entitled to be indemnified, or to such advancement of expenses, under
this Article 7 or otherwise shall be on the Corporation.
7.3 The rights to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Article 7, shall not be exclusive of any other right that any person may
have or hereafter acquire under any statute, provision of the certificate of
incorporation of the Corporation, this bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
7.4 The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee, or agent of the Corporation
or another corporation, partnership, joint venture, trust, or other enterprise
against any such expense, liability, or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability,
or loss under the GCLD.
7.5 The Corporation may enter into an indemnity agreement with
any director, officer, employee, or agent of the Corporation, or of another
corporation, partnership, joint venture, trust, or other
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enterprise, upon terms and conditions that the Board of Directors deems
appropriate, as long as the provisions of the agreement are not impermissible
under applicable law.
7.6 Any amendment or repeal of this Article 7 shall not be
retroactive in effect.
7.7 In case any provision in this Article 7 shall be
determined at any time to be unenforceable in any respect, the other provisions
shall not in any way be affected or impaired thereby, and the affected provision
shall be given the fullest possible enforcement in the circumstances, it being
the intention of the Corporation to afford indemnification and advancement of
expenses to the persons indemnified hereby to the fullest extent permitted by
law.
7.8 The Corporation may, by action of the Board of Directors,
authorize one or more officers to grant rights to indemnification and
advancement of expenses to former directors and officers or to other employees
or agents of the Corporation on such terms and conditions as such officer or
officers deem appropriate under the circumstances.
8. MISCELLANEOUS
8.1 Place and Inspection of Books. (a) The books of the
Corporation other than such books as are required by law to be kept within the
State of Delaware shall be kept in such place or places either within or without
the State of Delaware as the Board of Directors may from time to time determine.
(b) At least ten days before each meeting of
stockholders, the officer in charge of the stock ledger of the Corporation shall
prepare a complete list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
(c) The Board of Directors shall determine from time to
time whether and, if allowed, when and under what conditions and regulations the
accounts and books of the Corporation (except such as may be by law specifically
open to inspection or as otherwise provided by these Bylaws) or any of them
shall be open to the inspection of the stockholders and the stockholders' rights
in respect thereof.
8.2 Voting Shares in Other Corporations. The Chief Executive
Officer, the President, the Chief Financial Officer or any other officer of the
Corporation designated by the Board of Directors may vote any and all shares
held by the Corporation in any other corporation.
8.3 Fiscal Year. The fiscal year of the Corporation shall be
such fiscal year as the Board of Directors from time to time by resolution shall
determine.
8.4 Gender/Number. As used in these Bylaws, the masculine,
feminine, or neuter gender, and the singular or plural number, shall each
include the others whenever the context so indicates.
8.5 Paragraph Titles. The titles of the paragraphs have been
inserted as a matter of reference only and shall not control or affect the
meaning or construction of any of the terms and provisions hereof.
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8.6 Amendment. These Bylaws may be altered, amended, or
repealed by (a) the affirmative vote of 80% or more of the aggregate number of
votes that the holders of the then outstanding shares of common stock and
preferred stock are entitled to cast on the amendment, or (b) by resolution
adopted by the affirmative vote of not less than a majority of the Directors in
office, at any annual or regular meeting of the Board of Directors or at any
special meeting of the Board of Directors if notice of the proposed alteration,
amendment, or repeal be contained in written notice of such special meeting.
Notwithstanding the foregoing, the amendment of any provision of these Bylaws
that requires an affirmative vote in excess of a majority of the Directors in
office shall require the affirmative vote of at least the number of directors
the affirmative vote of whom is required by such provision.
8.7 Certificate of Incorporation. Notwithstanding anything to
the contrary contained herein, if any provision contained in these Bylaws is
inconsistent with or conflicts with a provision of the Certificate of
Incorporation, such provision of these Bylaws shall be superseded by the
inconsistent provision in the Certificate of Incorporation to the extent
necessary to give effect to such provision in the Certificate of Incorporation.
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Delmarva Services Company
B.9.2
Amended and Restated Bylaws
Adopted December 31, 1999
<PAGE> 2
AMENDED AND RESTATED
B Y L A W S
OF
DELMARVA SERVICES COMPANY
1. OFFICES.
1.1 Offices. In addition to its registered office in the State
of Delaware, the Corporation shall have a corporate office in Wilmington,
Delaware, and such other offices, either within or without the State of
Delaware, at such locations as the Board of Directors may from time to time
determine or the business of the Corporation may require.
2. SEAL.
2.1 Seal. The Corporation shall have a seal, which shall have
inscribed thereon its name and year of incorporation and the words, "Corporate
Seal Delaware."
3. MEETINGS OF STOCKHOLDERS.
3.1 Annual Meetings. The annual meeting of stockholders of the
Corporation shall be held on such date, at such time and at such place within or
without the State of Delaware as shall be determined by the Board of Directors
from time to time.
3.2 Special Meetings. Special meetings of the stockholders of
the Corporation shall be held on such date, at such time and at such place
within or without the State of Delaware as may be designated by the Chairman of
the Board or by the Board of Directors.
3.3 Notice of Meetings. (a) Notices of meetings of
stockholders shall be in writing and shall state the place, date, and hour of
the meeting, and, in the case of a special meeting, the purpose or purposes for
which a meeting is called. No business other than that specified in the notice
thereof shall be transacted at any special meeting.
(b) Such notice shall either be delivered personally,
mailed, postage prepaid, or delivered by any other lawful means to each
stockholder entitled to vote at such meeting not less than 10 nor more than 60
days before the date of the meeting. If mailed, the notice shall be directed to
the stockholder at his or her address as it appears on the records of the
Corporation. Delivery of any such notice to any officer of a corporation or
association or to any member of a partnership shall constitute delivery of such
notice to such corporation, association, or partnership.
(c) Notice of any meeting of stockholders need not be
given to any stockholder if waived by such stockholder in writing, whether
before or after such meeting is held, or if such stockholder shall sign the
minutes or attend the meeting, except that if such stockholder attends a meeting
for the express purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened, such stockholder shall not be deemed to have waived notice of such
meeting.
3.4 Adjourned Meetings. When a meeting is adjourned to another
time or place, unless otherwise provided by these Bylaws, notice need not be
given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. At the adjourned meeting the
stockholders may transact any business that might have been transacted at the
original meeting. If an adjournment
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is for more than 30 days, or if after an adjournment, a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder entitled to vote at the meeting.
3.5 Quorum and Adjournment. Except as otherwise provided by
law, by the Certificate of Incorporation of the Corporation, or by these Bylaws,
the presence, in person or by proxy, of the holders of a majority of the
aggregate voting power of the stock issued and outstanding, entitled to vote
thereat, shall constitute a quorum for the transaction of business at all
meetings of stockholders. If such majority shall not be present or represented
at any meeting of stockholders, the stockholders present, although less than a
quorum, shall have the power to adjourn the meeting.
3.6 Vote Required. Except as otherwise provided by law or by
the Certificate of Incorporation:
(a) Directors shall be elected by a plurality of the
votes present in person or represented by proxy at a meeting of stockholders and
entitled to vote in the election of directors, and
(b) whenever any corporate action other than the election
of Directors is to be taken, it shall be authorized by a majority in voting
power of the shares present in person or by proxy at a meeting of stockholders
and entitled to vote on the subject matter.
3.7 Manner of Voting. At each meeting of stockholders, each
stockholder having the right to vote shall be entitled to vote in person or by
proxy. Proxies need not be filed with the Secretary of the Corporation until the
meeting is called to order, but shall be filed before being voted. Each
stockholder shall be entitled to vote each share of stock having voting power
registered in his or her name on the books of the Corporation on the record date
fixed for determination of stockholders entitled to vote at such meeting.
3.8 Stockholder Action Without a Meeting. Except as otherwise
provided by law or by the Certificate of Incorporation, any action required to
be taken at any meeting of stockholders of the corporation, or any action that
may be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice, and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing and who,
if the action had been taken at a meeting, would have been entitled to notice of
the meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of the holders to take the action were
delivered to the Corporation.
3.9 Proxies. (a) At any meeting of stockholders, any
stockholder may be represented and vote by proxy or proxies. In the event that
any form of proxy shall designate two or more persons to act as proxies, a
majority of such persons present at the meeting or, if only one shall be
present, then that one shall have and may exercise all of the powers conferred
by the form of proxy upon all of the persons so designated unless the form of
proxy shall otherwise provide.
(b) The Board of Directors may, in advance of any annual
or special meeting of the stockholders, prescribe additional regulations
concerning the validation of the same, which are intended to be voted at any
such meeting.
3.10 Presiding Officer and Secretary. The Chairman of the
Board shall act as chairman of all meetings of the stockholders. In the absence
of the Chairman of the Board, the Vice Chairman of the Board or, in his or her
absence, any Director designated by the Chairman of the Board or the Board of
Directors shall act as chairman of the meeting.
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The Secretary of the Corporation shall act as secretary of all
meetings of the stockholders, but, in the absence of the Secretary, the
Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the stockholders, but in the
absence of a designated Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
3.11 Procedure. At each meeting of stockholders, the chairman
of the meeting shall fix and announce the date and time of the opening and the
closing of the polls for each matter upon which the stockholders will vote at
the meeting and shall determine the order of business and all other matters of
procedure. Except to the extent inconsistent with any such rules and regulations
as adopted by the Board of Directors, the chairman of the meeting may establish
rules, which need not be in writing, to maintain order and safety and for the
conduct of the meeting. Without limiting the foregoing, he or she may:
(a) restrict attendance at any time to bona fide
stockholders of record and their proxies and other persons in attendance at the
invitation of the chairman;
(b) restrict dissemination of solicitation materials and
use of audio or visual recording devices at the meeting;
(c) adjourn the meeting without a vote of the
stockholders, whether or not there is a quorum present; and
(d) make rules governing speeches and debate, including
time limits and access to microphones.
The chairman of the meeting shall be entitled to act in his or her absolute
discretion and his or her rulings shall not be subject to appeal.
4. DIRECTORS.
4.1 Powers and Number. The Board of Directors shall exercise
all of the powers of the Corporation except such as are by law, or by the
Certificate of Incorporation of this Corporation or by these Bylaws conferred
upon or reserved to the stockholders of any class or classes. The number of
directors that shall constitute the whole Board of Directors shall be no fewer
than three (3) and no greater than nine (9), the exact number of directors to be
determined from time to time by resolution adopted by the Board of Directors or
the stockholders, and until otherwise determined by the Board of Directors or
the stockholders, the number of directors that shall constitute the whole Board
of Directors shall be three (3).
4.2 Resignations. Any Director may resign at any time by
giving written notice to the Board of Directors or the Secretary. Such
resignation shall take effect at the date of receipt of such notice or at any
later time specified therein. Acceptance of such resignation shall not be
necessary to make it effective.
4.3 Presiding Officer and Secretary. The Chairman of the
Board shall act as chairman of all meetings of the Board of Directors. In the
absence of the Chairman of the Board, the Vice Chairman of the Board, or in his
absence, the Chief Executive Officer or other person designated by the Board of
Directors shall act as chairman of the meeting.
The Secretary of the Corporation shall act as secretary
of all meetings of the Board of Directors, but, in the absence of the Secretary,
the Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the Board of Directors, but in
the absence of a designated Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
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4.4 Annual Meetings. The Board of Directors shall meet each
year immediately following the annual meeting of stockholders, at the place
where such meeting of stockholders has been held, or at such other place as
shall be fixed by the person presiding over the meeting of the stockholders, for
the purpose of election of officers and consideration of such other business as
the Board of Directors considers relevant to the management of the Corporation.
In the event that in any year Directors are elected by written consent in lieu
of an annual meeting of stockholders, the Board of Directors shall meet in such
year as soon as practicable after receipt of such written consent by the
Corporation at such time and place as shall be fixed by the Chairman of the
Board, for the purpose of election of officers and consideration of such other
business as the Board of Directors considers relevant to the management of the
Corporation.
4.5 Regular Meetings. Regular meetings of the Board of
Directors shall be held on such dates and at such times and places, within or
without the state of Delaware, as shall from time to time be determined by the
Board of Directors. In the absence of any such determination, such meetings
shall be held at such times and places, within or without the State of Delaware,
as shall be designated by the Chairman of the Board on not less than twelve
hours notice to each Director, given verbally, in writing or electronically,
whether personally, by telephone (including by message or recording device), by
facsimile transmission, by telegram, by telex or by electronic mail or by other
electronic means, or on not less than three (3) calendar days' notice to each
Director given by mail. Notice given by any of the foregoing means shall be
sufficient to constitute notice of a meeting without the necessity of further
notice.
4.6 Special Meetings. Special meetings of the Board of
Directors shall be held at the call of the Chairman of the Board at such times
and places, within or without the State of Delaware, as he or she shall
designate, on not less than twelve hours notice to each Director, given
verbally, in writing or electronically, whether personally, by telephone
(including by message or recording device), by facsimile transmission, by
telegram, by telex, by electronic mail or by other electronic means or on not
less than three (3) calendar days' notice to each Director given by mail. Notice
given by any of the foregoing means shall be sufficient to constitute notice of
a meeting without the necessity of further notice. Special meetings shall be
called by the Secretary on like notice at the written request of a majority of
the Directors then in office.
4.7 Quorum and Powers of a Majority. At all meetings of the
Board of Directors and of each committee thereof, a majority of the members
shall be necessary and sufficient to constitute a quorum for the transaction of
business, and the act of a majority of the members present at any meeting at
which a quorum is present shall be the act of the Board of Directors or such
committee, unless by express provision of law, of the Certificate of
Incorporation, or of these Bylaws, a different vote is required, in which case
such express provision shall govern and control. In the absence of a quorum, a
majority of the members present at any meeting may, without notice other than
announcement at the meeting, adjourn such meeting from time to time until a
quorum is present.
4.8 Waiver of Notice. Notice of any meeting of the Board of
Directors, or any committee thereof, need not be given to any member if waived
by him or her in writing, whether before or after such meeting is held, or if he
or she shall sign the minutes or attend the meeting, except that if such
Director attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened, then such Director shall not be deemed to have
waived notice of such meeting.
4.9 Manner of Acting. (a) Members of the Board of Directors,
or any committee thereof, may participate in any meeting of the Board of
Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating therein can
hear each other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
(b) Any action required or permitted to be taken at any
meeting of the Board of Directors or any committee thereof may be taken without
a meeting if all members of the Board of Directors or
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such committee, as the case may be, consent thereto in writing, and the writings
are filed with the minutes of proceedings of the Board of Directors or such
committee.
4.10 Compensation. (a) The Board of Directors, by a resolution
or resolutions, may fix, and from time to time change, the compensation of
Directors.
(b) Each Director shall be entitled to reimbursement from
the Corporation for his or her reasonable expenses incurred with respect to
duties as a member of the Board of Directors or any committee thereof.
(c) Nothing contained in these Bylaws shall be construed
to preclude any Director from serving the Corporation in any other capacity and
from receiving compensation from the Corporation for service rendered to it in
such other capacity.
4.11 Committees. The Board of Directors (or any committee
thereof having the power and authority to do so) may designate one or more
committees, each committee to consist of one or more Directors, which to the
extent provided in said resolution or resolutions shall have and may exercise
the powers and authority of the Board of Directors in the management of the
business and affairs of the corporation; provided, however, that no such
committee shall have the power or authority in reference to the following
matters: (i) approving or adopting, or recommending to the stockholders, any
action or matter expressly required by the General Corporation Law of Delaware
(the "GCLD") to be submitted to stockholders for approval or (ii) adopting,
amending, or repealing any bylaw of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member of the committee. In the absence or
disqualification of a member of a committee, the member or members present at
any meeting of such committee and not disqualified from voting, whether or not
such member of members constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in place of such absent
or disqualified director.
4.12 Committee Procedure, Limitations of Committee Powers. (a)
Except as otherwise provided by these Bylaws, each committee shall adopt its own
rules governing the time, place and method of holding its meetings and the
conduct of its proceedings and shall meet as provided by such rules or by
resolution of the Board of Directors. Unless otherwise provided by these Bylaws
or any such rules or resolutions, notice of the time and place of each meeting
of a committee shall be given to each member of such committee as provided in
Section 4.6 of these Bylaws with respect to notices of special meetings of the
Board of Directors.
(b) Each committee shall keep regular minutes of its
proceedings and report the same to the Board of Directors when required.
(c) Any member of any committee may be removed from such
committee either with or without cause, at any time, by the Board of Directors
at any meeting thereof. Any vacancy in any committee shall be filled by the
Board of Directors in the manner prescribed by the Certificate of Incorporation
or these Bylaws for the original appointment of the members of such committee.
5. OFFICERS.
5.1 Number. (a) The officers of the Corporation shall include
a Chief Executive Officer, a President, one or more Vice Presidents (including
one or more Executive Vice Presidents and one or more Senior Vice Presidents if
deemed appropriate by the Board of Directors), a Chief Financial Officer, a
Secretary, a Treasurer, and a Controller. The Board of Directors shall also
elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except
for the Chairman of the Board, the Vice Chairman of the Board, and the Chief
Executive Officer, none of the officers of the Corporation needs to be a
director of the Corporation. Any two or more offices may be held by the same
person to the extent permitted by the GCLD.
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(b) The Chief Executive Officer shall have the power to
appoint one or more employees of the Corporation as divisional or departmental
vice presidents and fix the duties of such appointees. However, no such
divisional or departmental vice president shall be considered as an officer of
the Corporation.
5.2 Election of Officers, Qualification and Term. The Chief
Executive Officer, the President, any Executive Vice President, any Senior Vice
President, the Chief Financial Officer, the Secretary and the Treasurer of the
Corporation shall be elected from time to time by the Board of Directors and,
except as may otherwise be expressly provided in a contract of employment duly
authorized by the Board of Directors, shall hold office at the pleasure of the
Board of Directors. The Board of Directors and the Chief Executive Officer also
may elect such other officers as the Board of Directors or the Chief Executive
Officer may from time to time deem appropriate or necessary.
5.3 Removal. Any officer elected by the Board of Directors
may be removed, either with or without cause, by the Board of Directors at any
meeting thereof, or to the extent delegated to the Chairman of the Board or the
Chief Executive Officer, by the Chairman of the Board or the Chief Executive
Officer.
5.4 Resignations. Any officer of the Corporation may resign
at any time by giving written notice to the Board of Directors or to the
Chairman of the Board or to the Chief Executive Officer. Such resignation shall
take effect at the date of the receipt of such notice or at any later time
specified therein and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
5.5 Compensation. The compensation of all officers of the
Corporation shall be fixed by or in the manner provided by the Board of
Directors from time to time, and no officer shall be prevented from receiving
such compensation by reason of the fact that he or she is also a Director of the
Corporation.
5.6 The Chairman of the Board. The Chairman of the Board
shall have the powers and duties customarily and usually associated with the
office of the Chairman of the Board and shall have such other powers and perform
such other duties as may be delegated to him or her by the Board of Directors.
The Chairman of the Board shall preside at meetings of the stockholders and of
the Board of Directors.
5.7 Vice Chairman of the Board. The Vice Chairman of the
Board, if any, shall have the powers and duties customarily and usually
associated with the office of the Vice Chairman of the Board and shall have such
other powers and perform such other duties as may be delegated to him or her by
the Board of Directors.
5.8 Chief Executive Officer. The Chief Executive Officer
shall have, subject to the supervision, direction and control of the Board of
Directors, the general powers and duties of supervision, direction and
management of the affairs and business of the Corporation usually vested in the
chief executive officer of a corporation, including, without limitation, all
powers necessary to direct and control the organizational and reporting
relationships within the Corporation. In addition, the Chief Executive Officer
shall have such other powers and perform such other duties as may be delegated
to him or her by the Board of Directors. If at any time the office of the
Chairman of the Board and the Vice Chairman of the Board shall not be filled, or
in the event of the temporary absence or disability of the Chairman of the Board
and the Vice Chairman of the Board, the Chief Executive Officer shall have the
powers and duties of the Chairman of the Board.
5.9 The President. The President shall serve as chief
operating officer, shall have the powers and duties customarily and usually
associated with the office of the President and shall have such other powers and
perform such other duties as may be delegated to him or her from time to time by
the Board of Directors or the Chief Executive Officer.
5.10 The Vice Presidents. Each Vice President shall have such
powers and duties customarily and usually associated with the office of Vice
President and shall have such other powers and perform
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such other duties as may from time to time be assigned to him or her by the
Board of Directors, the Chief Executive Officer, or the President.
5.11 The Chief Financial Officer. The Chief Financial Officer
shall be responsible for the financial affairs of the Corporation, including
overseeing the duties performed by the Treasurer of the Corporation. In
addition, the Chief Financial Officer shall have such powers and duties
customarily and usually associated with the office of the Chief Financial
Officer and shall have such other powers and perform such other duties as may be
delegated to him or her from time to time by the Board of Directors or the Chief
Executive Officer.
5.12 The Secretary and the Assistant Secretary. (a) The
Secretary shall attend meetings of the Board of Directors and meetings of the
stockholders and record all votes and minutes of all such proceedings in a book
kept for such purpose. In addition, the Secretary shall have such powers and
duties customarily and usually associated with the office of Secretary and shall
have such other powers and perform such other duties as may be delegated to him
or her by the Board of Directors, the Chief Executive Officer, or the President.
(b) Each Assistant Secretary shall have such powers and
perform such duties customarily and usually associated with the office of
Assistant Secretary and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Secretary. In case
of the absence or disability of the Secretary, the Assistant Secretary
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Secretary) shall perform the duties and exercise the powers
of the Secretary.
5.13 The Treasurer and the Assistant Treasurer. (a) The
Treasurer shall have custody of the Corporation's funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit or cause to be deposited moneys or other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The Treasurer shall
also maintain adequate records of all assets, liabilities, and transactions of
the Corporation and shall see that adequate audits thereof are currently and
regularly made. In addition, the Treasurer shall have such powers and duties
customarily and usually associated with the office of Treasurer and shall have
such other powers and perform such other duties as may be delegated to him or
her from time to time by the Board of Directors, the Chief Executive Officer,
the President or the Chief Financial Officer.
(b) Each Assistant Treasurer shall have such powers and
perform such duties customarily and usually associated with the office of
Assistant Treasurer and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Treasurer. In case
of the absence or disability of the Treasurer, the Assistant Treasurer
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Treasurer) shall perform the duties and exercise the powers
of the Treasurer.
5.14 Controller. The Controller shall be responsible for
maintaining the accounting records and statements, and shall properly account
for all monies and obligations due the Corporation and all properties, assets,
and liabilities of the Corporation. The Controller shall render to the Chairman
of the Board, the President or the Chief Financial Officer such periodic reports
covering the results of operations of the Corporation as may be required by
either of them or by law. In addition, the Controller shall have such powers and
duties customarily and usually associated with the office of Controller and
shall have such other powers and perform such other duties as may be delegated
to him or her from time to time by the Board of Directors, the Chief Executive
Officer, the President or the Chief Financial Officer.
6. STOCK
6.1 Certificates. Certificates for shares of stock of the
Corporation shall be issued under the seal of the Corporation, or a facsimile
thereof, and shall be numbered and shall be entered in the books of the
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Corporation as they are issued. Each certificate shall bear a serial number,
shall exhibit the holder's name and the number of shares evidenced thereby, and
shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the
Chief Executive Officer or the President or any Vice President, and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer.
Any or all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if such person or entity
were such officer, transfer agent, or registrar at the date of issue.
6.2 Transfers. Transfers of stock of the Corporation shall be
made on the books of the Corporation only upon surrender to the Corporation of a
certificate (if any) for the shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, provided such
succession, assignment, or transfer is not prohibited by the Certificate of
Incorporation, these Bylaws, applicable law or contract. Thereupon, the
Corporation shall issue a new certificate (if requested) to the person entitled
thereto, cancel the old certificate (if any), and record the transaction upon
its books.
6.3 Lost, Stolen, or Destroyed Certificates. Any person
claiming a certificate of stock to be lost, stolen, or destroyed shall make an
affidavit or an affirmation of that fact, and shall give the Corporation a bond
of indemnity in satisfactory form and with one or more satisfactory sureties,
whereupon a new certificate (if requested) may be issued of the same tenor and
for the same number of shares as the one alleged to be lost, stolen, or
destroyed.
6.4 Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares as the person entitled to exercise the rights of a stockholder
and shall not be bound to recognize any equitable or other claim to or interest
in any such shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise expressly provided by the
GCLD.
6.5 Additional Powers of the Board. (a) In addition to those
powers set forth in Section 4.1, the Board of Directors shall have power and
authority to make all such rules and regulations as it shall deem expedient
concerning the issue, transfer, and registration of certificates for shares of
stock of the Corporation, including the use of uncertificated shares of stock
subject to the provisions of the GCLD.
(b) The Board of Directors may appoint and remove transfer
agents and registrars of transfers, and may require all stock certificates to
bear the signature of any such transfer agent and/or any such registrar of
transfers.
7. INDEMNIFICATION
7.1 Each person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or the person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation, as a
director, officer, employee, or agent of another corporation or of a
partnership, joint venture, trust, or other enterprise, including service with
respect to employee benefit plans, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the GCLD, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expenses, liability, and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of his or her heirs, executors, and administrators; provided,
however, that, except as provided in this Article 7, the Corporation shall
indemnify any
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such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if authorized by the Board of Directors
of the Corporation. Any indemnification under this Article 7 (unless ordered by
a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee, or agent is proper in the circumstances because he or she has met the
applicable standard set forth in the GCLD. Such a determination shall be made
(a) by a majority vote of the directors who are not parties to such action, suit
or proceeding, even though less than a quorum; (b) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum; (c) by independent legal counsel (compensated by the Corporation) in a
written opinion; (d) by the stockholders; or (e) in any other manner permitted
by the GCLD. In addition to the right to indemnification conferred in this
Article 7, each of the above persons shall have the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that, if the GCLD requires, the
payment of such expenses incurred by a present director or officer in his or her
capacity as a director or officer of the corporation (and not in any other
capacity in which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such present
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Article 7 or otherwise. The Corporation may, by any manner permitted by the
GCLD, provide indemnification and advancement of expenses to employees and
agents of the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers. The right to indemnification and to
an advancement of expenses conferred in this Article 7 shall be a contract
right.
7.2 If a claim under Section 7.1 of this Article 7 is not paid
in full by the Corporation within 30 days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim (including attorneys' fees). It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the GCLD for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, a committee thereof, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the GCLD, nor an actual determination by the Corporation (including
its Board of Directors, a committee thereof, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct. In any suit brought by the claimant
to enforce a right to indemnification or to an advancement of expenses
hereunder, or brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the claimant
is not entitled to be indemnified, or to such advancement of expenses, under
this Article 7 or otherwise shall be on the Corporation.
7.3 The rights to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Article 7, shall not be exclusive of any other right that any person may
have or hereafter acquire under any statute, provision of the certificate of
incorporation of the Corporation, this bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
7.4 The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee, or agent of the Corporation
or another corporation, partnership, joint venture, trust, or other enterprise
against any such expense, liability, or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability,
or loss under the GCLD.
7.5 The Corporation may enter into an indemnity agreement with
any director, officer, employee, or agent of the Corporation, or of another
corporation, partnership, joint venture, trust, or other
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enterprise, upon terms and conditions that the Board of Directors deems
appropriate, as long as the provisions of the agreement are not impermissible
under applicable law.
7.6 Any amendment or repeal of this Article 7 shall not be
retroactive in effect.
7.7 In case any provision in this Article 7 shall be
determined at any time to be unenforceable in any respect, the other provisions
shall not in any way be affected or impaired thereby, and the affected provision
shall be given the fullest possible enforcement in the circumstances, it being
the intention of the Corporation to afford indemnification and advancement of
expenses to the persons indemnified hereby to the fullest extent permitted by
law.
7.8 The Corporation may, by action of the Board of Directors,
authorize one or more officers to grant rights to indemnification and
advancement of expenses to former directors and officers or to other employees
or agents of the Corporation on such terms and conditions as such officer or
officers deem appropriate under the circumstances.
8. MISCELLANEOUS
8.1 Place and Inspection of Books. (a) The books of the
Corporation other than such books as are required by law to be kept within the
State of Delaware shall be kept in such place or places either within or without
the State of Delaware as the Board of Directors may from time to time determine.
(b) At least ten days before each meeting of stockholders,
the officer in charge of the stock ledger of the Corporation shall prepare a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order and showing the address of each stockholder and the number of
shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
(c) The Board of Directors shall determine from time to
time whether and, if allowed, when and under what conditions and regulations the
accounts and books of the Corporation (except such as may be by law specifically
open to inspection or as otherwise provided by these Bylaws) or any of them
shall be open to the inspection of the stockholders and the stockholders' rights
in respect thereof.
8.2 Voting Shares in Other Corporations. The Chief Executive
Officer, the President, the Chief Financial Officer or any other officer of the
Corporation designated by the Board of Directors may vote any and all shares
held by the Corporation in any other corporation.
8.3 Fiscal Year. The fiscal year of the Corporation shall be
such fiscal year as the Board of Directors from time to time by resolution shall
determine.
8.4 Gender/Number. As used in these Bylaws, the masculine,
feminine, or neuter gender, and the singular or plural number, shall each
include the others whenever the context so indicates.
8.5 Paragraph Titles. The titles of the paragraphs have been
inserted as a matter of reference only and shall not control or affect the
meaning or construction of any of the terms and provisions hereof.
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8.6 Amendment. These Bylaws may be altered, amended, or
repealed by (a) the affirmative vote of 80% or more of the aggregate number of
votes that the holders of the then outstanding shares of common stock and
preferred stock are entitled to cast on the amendment, or (b) by resolution
adopted by the affirmative vote of not less than a majority of the Directors in
office, at any annual or regular meeting of the Board of Directors or at any
special meeting of the Board of Directors if notice of the proposed alteration,
amendment, or repeal be contained in written notice of such special meeting.
Notwithstanding the foregoing, the amendment of any provision of these Bylaws
that requires an affirmative vote in excess of a majority of the Directors in
office shall require the affirmative vote of at least the number of directors
the affirmative vote of whom is required by such provision.
8.7 Certificate of Incorporation. Notwithstanding anything to
the contrary contained herein, if any provision contained in these Bylaws is
inconsistent with or conflicts with a provision of the Certificate of
Incorporation, such provision of these Bylaws shall be superseded by the
inconsistent provision in the Certificate of Incorporation to the extent
necessary to give effect to such provision in the Certificate of Incorporation.
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Conectiv Communications, Inc.
B.10.3
Amended and Restated Bylaws
Adopted December 31, 1999
<PAGE> 2
AMENDED AND RESTATED
B Y L A W S
OF
CONECTIV COMMUNICATIONS, INC.
1. OFFICES.
1.1 Offices. In addition to its registered office in the State
of Delaware, the Corporation shall have a corporate office in Wilmington,
Delaware, and such other offices, either within or without the State of
Delaware, at such locations as the Board of Directors may from time to time
determine or the business of the Corporation may require.
2. SEAL.
2.1 Seal. The Corporation shall have a seal, which shall have
inscribed thereon its name and year of incorporation and the words, "Corporate
Seal Delaware."
3. MEETINGS OF STOCKHOLDERS.
3.1 Annual Meetings. The annual meeting of stockholders of the
Corporation shall be held on such date, at such time and at such place within or
without the State of Delaware as shall be determined by the Board of Directors
from time to time.
3.2 Special Meetings. Special meetings of the stockholders of
the Corporation shall be held on such date, at such time and at such place
within or without the State of Delaware as may be designated by the Chairman of
the Board or by the Board of Directors.
3.3 Notice of Meetings. (a) Notices of meetings of
stockholders shall be in writing and shall state the place, date, and hour of
the meeting, and, in the case of a special meeting, the purpose or purposes for
which a meeting is called. No business other than that specified in the notice
thereof shall be transacted at any special meeting.
(b) Such notice shall either be delivered personally,
mailed, postage prepaid, or delivered by any other lawful means to each
stockholder entitled to vote at such meeting not less than 10 nor more than 60
days before the date of the meeting. If mailed, the notice shall be directed to
the stockholder at his or her address as it appears on the records of the
Corporation. Delivery of any such notice to any officer of a corporation or
association or to any member of a partnership shall constitute delivery of such
notice to such corporation, association, or partnership.
(c) Notice of any meeting of stockholders need not be
given to any stockholder if waived by such stockholder in writing, whether
before or after such meeting is held, or if such stockholder shall sign the
minutes or attend the meeting, except that if such stockholder attends a meeting
for the express purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened, such stockholder shall not be deemed to have waived notice of such
meeting.
3.4 Adjourned Meetings. When a meeting is adjourned to another
time or place, unless otherwise provided by these Bylaws, notice need not be
given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. At the adjourned meeting the
stockholders may transact any business that might have been transacted at the
original meeting. If an adjournment
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is for more than 30 days, or if after an adjournment, a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder entitled to vote at the meeting.
3.5 Quorum and Adjournment. Except as otherwise provided by
law, by the Certificate of Incorporation of the Corporation, or by these Bylaws,
the presence, in person or by proxy, of the holders of a majority of the
aggregate voting power of the stock issued and outstanding, entitled to vote
thereat, shall constitute a quorum for the transaction of business at all
meetings of stockholders. If such majority shall not be present or represented
at any meeting of stockholders, the stockholders present, although less than a
quorum, shall have the power to adjourn the meeting.
3.6 Vote Required. Except as otherwise provided by law or by
the Certificate of Incorporation:
(a) Directors shall be elected by a plurality of the
votes present in person or represented by proxy at a meeting of stockholders and
entitled to vote in the election of directors, and
(b) whenever any corporate action other than the
election of Directors is to be taken, it shall be authorized by a majority in
voting power of the shares present in person or by proxy at a meeting of
stockholders and entitled to vote on the subject matter.
3.7 Manner of Voting. At each meeting of stockholders, each
stockholder having the right to vote shall be entitled to vote in person or by
proxy. Proxies need not be filed with the Secretary of the Corporation until the
meeting is called to order, but shall be filed before being voted. Each
stockholder shall be entitled to vote each share of stock having voting power
registered in his or her name on the books of the Corporation on the record date
fixed for determination of stockholders entitled to vote at such meeting.
3.8 Stockholder Action Without a Meeting. Except as otherwise
provided by law or by the Certificate of Incorporation, any action required to
be taken at any meeting of stockholders of the corporation, or any action that
may be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice, and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing and who,
if the action had been taken at a meeting, would have been entitled to notice of
the meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of the holders to take the action were
delivered to the Corporation.
3.9 Proxies. (a) At any meeting of stockholders, any
stockholder may be represented and vote by proxy or proxies. In the event that
any form of proxy shall designate two or more persons to act as proxies, a
majority of such persons present at the meeting or, if only one shall be
present, then that one shall have and may exercise all of the powers conferred
by the form of proxy upon all of the persons so designated unless the form of
proxy shall otherwise provide.
(b) The Board of Directors may, in advance of any
annual or special meeting of the stockholders, prescribe additional regulations
concerning the validation of the same, which are intended to be voted at any
such meeting.
3.10 Presiding Officer and Secretary. The Chairman of the
Board shall act as chairman of all meetings of the stockholders. In the absence
of the Chairman of the Board, the Vice Chairman of the Board or, in his or her
absence, any Director designated by the Chairman of the Board or the Board of
Directors shall act as chairman of the meeting.
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The Secretary of the Corporation shall act as secretary of all
meetings of the stockholders, but, in the absence of the Secretary, the
Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the stockholders, but in the
absence of a designated Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
3.11 Procedure. At each meeting of stockholders, the chairman
of the meeting shall fix and announce the date and time of the opening and the
closing of the polls for each matter upon which the stockholders will vote at
the meeting and shall determine the order of business and all other matters of
procedure. Except to the extent inconsistent with any such rules and regulations
as adopted by the Board of Directors, the chairman of the meeting may establish
rules, which need not be in writing, to maintain order and safety and for the
conduct of the meeting. Without limiting the foregoing, he or she may:
(a) restrict attendance at any time to bona fide
stockholders of record and their proxies and other persons in attendance at the
invitation of the chairman;
(b) restrict dissemination of solicitation materials
and use of audio or visual recording devices at the meeting;
(c) adjourn the meeting without a vote of the
stockholders, whether or not there is a quorum present; and
(d) make rules governing speeches and debate,
including time limits and access to microphones.
The chairman of the meeting shall be entitled to act in his or her absolute
discretion and his or her rulings shall not be subject to appeal.
4. DIRECTORS.
4.1 Powers and Number. The Board of Directors shall exercise
all of the powers of the Corporation except such as are by law, or by the
Certificate of Incorporation of this Corporation or by these Bylaws conferred
upon or reserved to the stockholders of any class or classes. The number of
directors that shall constitute the whole Board of Directors shall be no fewer
than three (3) and no greater than nine (9), the exact number of directors to be
determined from time to time by resolution adopted by the Board of Directors or
the stockholders, and until otherwise determined by the Board of Directors or
the stockholders, the number of directors that shall constitute the whole Board
of Directors shall be three (3).
4.2 Resignations. Any Director may resign at any time by
giving written notice to the Board of Directors or the Secretary. Such
resignation shall take effect at the date of receipt of such notice or at any
later time specified therein. Acceptance of such resignation shall not be
necessary to make it effective.
4.3 Presiding Officer and Secretary. The Chairman of the Board
shall act as chairman of all meetings of the Board of Directors. In the absence
of the Chairman of the Board, the Vice Chairman of the Board, or in his absence,
the Chief Executive Officer or other person designated by the Board of Directors
shall act as chairman of the meeting.
The Secretary of the Corporation shall act as
secretary of all meetings of the Board of Directors, but, in the absence of the
Secretary, the Assistant Secretary designated in accordance with Section 5.11(b)
of these Bylaws shall act as secretary of all meetings of the Board of
Directors, but in the absence of a designated Assistant Secretary, the chairman
of the meeting may appoint any person to act as secretary of the meeting.
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4.4 Annual Meetings. The Board of Directors shall meet each
year immediately following the annual meeting of stockholders, at the place
where such meeting of stockholders has been held, or at such other place as
shall be fixed by the person presiding over the meeting of the stockholders, for
the purpose of election of officers and consideration of such other business as
the Board of Directors considers relevant to the management of the Corporation.
In the event that in any year Directors are elected by written consent in lieu
of an annual meeting of stockholders, the Board of Directors shall meet in such
year as soon as practicable after receipt of such written consent by the
Corporation at such time and place as shall be fixed by the Chairman of the
Board, for the purpose of election of officers and consideration of such other
business as the Board of Directors considers relevant to the management of the
Corporation.
4.5 Regular Meetings. Regular meetings of the Board of
Directors shall be held on such dates and at such times and places, within or
without the state of Delaware, as shall from time to time be determined by the
Board of Directors. In the absence of any such determination, such meetings
shall be held at such times and places, within or without the State of Delaware,
as shall be designated by the Chairman of the Board on not less than twelve
hours notice to each Director, given verbally, in writing or electronically,
whether personally, by telephone (including by message or recording device), by
facsimile transmission, by telegram, by telex or by electronic mail or by other
electronic means, or on not less than three (3) calendar days' notice to each
Director given by mail. Notice given by any of the foregoing means shall be
sufficient to constitute notice of a meeting without the necessity of further
notice.
4.6 Special Meetings. Special meetings of the Board of
Directors shall be held at the call of the Chairman of the Board at such times
and places, within or without the State of Delaware, as he or she shall
designate, on not less than twelve hours notice to each Director, given
verbally, in writing or electronically, whether personally, by telephone
(including by message or recording device), by facsimile transmission, by
telegram, by telex, by electronic mail or by other electronic means or on not
less than three (3) calendar days' notice to each Director given by mail. Notice
given by any of the foregoing means shall be sufficient to constitute notice of
a meeting without the necessity of further notice. Special meetings shall be
called by the Secretary on like notice at the written request of a majority of
the Directors then in office.
4.7 Quorum and Powers of a Majority. At all meetings of the
Board of Directors and of each committee thereof, a majority of the members
shall be necessary and sufficient to constitute a quorum for the transaction of
business, and the act of a majority of the members present at any meeting at
which a quorum is present shall be the act of the Board of Directors or such
committee, unless by express provision of law, of the Certificate of
Incorporation, or of these Bylaws, a different vote is required, in which case
such express provision shall govern and control. In the absence of a quorum, a
majority of the members present at any meeting may, without notice other than
announcement at the meeting, adjourn such meeting from time to time until a
quorum is present.
4.8 Waiver of Notice. Notice of any meeting of the Board of
Directors, or any committee thereof, need not be given to any member if waived
by him or her in writing, whether before or after such meeting is held, or if he
or she shall sign the minutes or attend the meeting, except that if such
Director attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened, then such Director shall not be deemed to have
waived notice of such meeting.
4.9 Manner of Acting. (a) Members of the Board of Directors,
or any committee thereof, may participate in any meeting of the Board of
Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating therein can
hear each other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
(b) Any action required or permitted to be taken at
any meeting of the Board of Directors or any committee thereof may be taken
without a meeting if all members of the Board of Directors or
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<PAGE> 6
such committee, as the case may be, consent thereto in writing, and the writings
are filed with the minutes of proceedings of the Board of Directors or such
committee.
4.10 Compensation. (a) The Board of Directors, by a resolution
or resolutions, may fix, and from time to time change, the compensation of
Directors.
(b) Each Director shall be entitled to reimbursement
from the Corporation for his or her reasonable expenses incurred with respect to
duties as a member of the Board of Directors or any committee thereof.
(c) Nothing contained in these Bylaws shall be
construed to preclude any Director from serving the Corporation in any other
capacity and from receiving compensation from the Corporation for service
rendered to it in such other capacity.
4.11 Committees. The Board of Directors (or any committee
thereof having the power and authority to do so) may designate one or more
committees, each committee to consist of one or more Directors, which to the
extent provided in said resolution or resolutions shall have and may exercise
the powers and authority of the Board of Directors in the management of the
business and affairs of the corporation; provided, however, that no such
committee shall have the power or authority in reference to the following
matters: (i) approving or adopting, or recommending to the stockholders, any
action or matter expressly required by the General Corporation Law of Delaware
(the "GCLD") to be submitted to stockholders for approval or (ii) adopting,
amending, or repealing any bylaw of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member of the committee. In the absence or
disqualification of a member of a committee, the member or members present at
any meeting of such committee and not disqualified from voting, whether or not
such member of members constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in place of such absent
or disqualified director.
4.12 Committee Procedure, Limitations of Committee Powers. (a)
Except as otherwise provided by these Bylaws, each committee shall adopt its own
rules governing the time, place and method of holding its meetings and the
conduct of its proceedings and shall meet as provided by such rules or by
resolution of the Board of Directors. Unless otherwise provided by these Bylaws
or any such rules or resolutions, notice of the time and place of each meeting
of a committee shall be given to each member of such committee as provided in
Section 4.6 of these Bylaws with respect to notices of special meetings of the
Board of Directors.
(b) Each committee shall keep regular minutes of its
proceedings and report the same to the Board of Directors when required.
(c) Any member of any committee may be removed from
such committee either with or without cause, at any time, by the Board of
Directors at any meeting thereof. Any vacancy in any committee shall be filled
by the Board of Directors in the manner prescribed by the Certificate of
Incorporation or these Bylaws for the original appointment of the members of
such committee.
5. OFFICERS.
5.1 Number. (a) The officers of the Corporation shall include
a Chief Executive Officer, a President, one or more Vice Presidents (including
one or more Executive Vice Presidents and one or more Senior Vice Presidents if
deemed appropriate by the Board of Directors), a Chief Financial Officer, a
Secretary, a Treasurer, and a Controller. The Board of Directors shall also
elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except
for the Chairman of the Board, the Vice Chairman of the Board, and the Chief
Executive Officer, none of the officers of the Corporation needs to be a
director of the Corporation. Any two or more offices may be held by the same
person to the extent permitted by the GCLD.
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<PAGE> 7
(b) The Chief Executive Officer shall have the power
to appoint one or more employees of the Corporation as divisional or
departmental vice presidents and fix the duties of such appointees. However, no
such divisional or departmental vice president shall be considered as an officer
of the Corporation.
5.2 Election of Officers, Qualification and Term. The Chief
Executive Officer, the President, any Executive Vice President, any Senior Vice
President, the Chief Financial Officer, the Secretary and the Treasurer of the
Corporation shall be elected from time to time by the Board of Directors and,
except as may otherwise be expressly provided in a contract of employment duly
authorized by the Board of Directors, shall hold office at the pleasure of the
Board of Directors. The Board of Directors and the Chief Executive Officer also
may elect such other officers as the Board of Directors or the Chief Executive
Officer may from time to time deem appropriate or necessary.
5.3 Removal. Any officer elected by the Board of Directors may
be removed, either with or without cause, by the Board of Directors at any
meeting thereof, or to the extent delegated to the Chairman of the Board or the
Chief Executive Officer, by the Chairman of the Board or the Chief Executive
Officer.
5.4 Resignations. Any officer of the Corporation may resign at
any time by giving written notice to the Board of Directors or to the Chairman
of the Board or to the Chief Executive Officer. Such resignation shall take
effect at the date of the receipt of such notice or at any later time specified
therein and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
5.5 Compensation. The compensation of all officers of the
Corporation shall be fixed by or in the manner provided by the Board of
Directors from time to time, and no officer shall be prevented from receiving
such compensation by reason of the fact that he or she is also a Director of the
Corporation.
5.6 The Chairman of the Board. The Chairman of the Board shall
have the powers and duties customarily and usually associated with the office of
the Chairman of the Board and shall have such other powers and perform such
other duties as may be delegated to him or her by the Board of Directors. The
Chairman of the Board shall preside at meetings of the stockholders and of the
Board of Directors.
5.7 Vice Chairman of the Board. The Vice Chairman of the
Board, if any, shall have the powers and duties customarily and usually
associated with the office of the Vice Chairman of the Board and shall have such
other powers and perform such other duties as may be delegated to him or her by
the Board of Directors.
5.8 Chief Executive Officer. The Chief Executive Officer shall
have, subject to the supervision, direction and control of the Board of
Directors, the general powers and duties of supervision, direction and
management of the affairs and business of the Corporation usually vested in the
chief executive officer of a corporation, including, without limitation, all
powers necessary to direct and control the organizational and reporting
relationships within the Corporation. In addition, the Chief Executive Officer
shall have such other powers and perform such other duties as may be delegated
to him or her by the Board of Directors. If at any time the office of the
Chairman of the Board and the Vice Chairman of the Board shall not be filled, or
in the event of the temporary absence or disability of the Chairman of the Board
and the Vice Chairman of the Board, the Chief Executive Officer shall have the
powers and duties of the Chairman of the Board.
5.9 The President. The President shall serve as chief
operating officer, shall have the powers and duties customarily and usually
associated with the office of the President and shall have such other powers and
perform such other duties as may be delegated to him or her from time to time by
the Board of Directors or the Chief Executive Officer.
5.10 The Vice Presidents. Each Vice President shall have such
powers and duties customarily and usually associated with the office of Vice
President and shall have such other powers and perform
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<PAGE> 8
such other duties as may from time to time be assigned to him or her by the
Board of Directors, the Chief Executive Officer, or the President.
5.11 The Chief Financial Officer. The Chief Financial Officer
shall be responsible for the financial affairs of the Corporation, including
overseeing the duties performed by the Treasurer of the Corporation. In
addition, the Chief Financial Officer shall have such powers and duties
customarily and usually associated with the office of the Chief Financial
Officer and shall have such other powers and perform such other duties as may be
delegated to him or her from time to time by the Board of Directors or the Chief
Executive Officer.
5.12 The Secretary and the Assistant Secretary. (a) The
Secretary shall attend meetings of the Board of Directors and meetings of the
stockholders and record all votes and minutes of all such proceedings in a book
kept for such purpose. In addition, the Secretary shall have such powers and
duties customarily and usually associated with the office of Secretary and shall
have such other powers and perform such other duties as may be delegated to him
or her by the Board of Directors, the Chief Executive Officer, or the President.
(b) Each Assistant Secretary shall have such powers
and perform such duties customarily and usually associated with the office of
Assistant Secretary and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Secretary. In case
of the absence or disability of the Secretary, the Assistant Secretary
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Secretary) shall perform the duties and exercise the powers
of the Secretary.
5.13 The Treasurer and the Assistant Treasurer. (a) The
Treasurer shall have custody of the Corporation's funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit or cause to be deposited moneys or other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The Treasurer shall
also maintain adequate records of all assets, liabilities, and transactions of
the Corporation and shall see that adequate audits thereof are currently and
regularly made. In addition, the Treasurer shall have such powers and duties
customarily and usually associated with the office of Treasurer and shall have
such other powers and perform such other duties as may be delegated to him or
her from time to time by the Board of Directors, the Chief Executive Officer,
the President or the Chief Financial Officer.
(b) Each Assistant Treasurer shall have such powers
and perform such duties customarily and usually associated with the office of
Assistant Treasurer and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Treasurer. In case
of the absence or disability of the Treasurer, the Assistant Treasurer
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Treasurer) shall perform the duties and exercise the powers
of the Treasurer.
5.14 Controller. The Controller shall be responsible for
maintaining the accounting records and statements, and shall properly account
for all monies and obligations due the Corporation and all properties, assets,
and liabilities of the Corporation. The Controller shall render to the Chairman
of the Board, the President or the Chief Financial Officer such periodic reports
covering the results of operations of the Corporation as may be required by
either of them or by law. In addition, the Controller shall have such powers and
duties customarily and usually associated with the office of Controller and
shall have such other powers and perform such other duties as may be delegated
to him or her from time to time by the Board of Directors, the Chief Executive
Officer, the President or the Chief Financial Officer.
6. STOCK
6.1 Certificates. Certificates for shares of stock of the
Corporation shall be issued under the seal of the Corporation, or a facsimile
thereof, and shall be numbered and shall be entered in the books of the
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<PAGE> 9
Corporation as they are issued. Each certificate shall bear a serial number,
shall exhibit the holder's name and the number of shares evidenced thereby, and
shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the
Chief Executive Officer or the President or any Vice President, and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer.
Any or all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if such person or entity
were such officer, transfer agent, or registrar at the date of issue.
6.2 Transfers. Transfers of stock of the Corporation shall be
made on the books of the Corporation only upon surrender to the Corporation of a
certificate (if any) for the shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, provided such
succession, assignment, or transfer is not prohibited by the Certificate of
Incorporation, these Bylaws, applicable law or contract. Thereupon, the
Corporation shall issue a new certificate (if requested) to the person entitled
thereto, cancel the old certificate (if any), and record the transaction upon
its books.
6.3 Lost, Stolen, or Destroyed Certificates. Any person
claiming a certificate of stock to be lost, stolen, or destroyed shall make an
affidavit or an affirmation of that fact, and shall give the Corporation a bond
of indemnity in satisfactory form and with one or more satisfactory sureties,
whereupon a new certificate (if requested) may be issued of the same tenor and
for the same number of shares as the one alleged to be lost, stolen, or
destroyed.
6.4 Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares as the person entitled to exercise the rights of a stockholder
and shall not be bound to recognize any equitable or other claim to or interest
in any such shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise expressly provided by the
GCLD.
6.5 Additional Powers of the Board. (a) In addition to those
powers set forth in Section 4.1, the Board of Directors shall have power and
authority to make all such rules and regulations as it shall deem expedient
concerning the issue, transfer, and registration of certificates for shares of
stock of the Corporation, including the use of uncertificated shares of stock
subject to the provisions of the GCLD.
(b) The Board of Directors may appoint and remove
transfer agents and registrars of transfers, and may require all stock
certificates to bear the signature of any such transfer agent and/or any such
registrar of transfers.
7. INDEMNIFICATION
7.1 Each person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or the person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation, as a
director, officer, employee, or agent of another corporation or of a
partnership, joint venture, trust, or other enterprise, including service with
respect to employee benefit plans, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the GCLD, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expenses, liability, and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of his or her heirs, executors, and administrators; provided,
however, that, except as provided in this Article 7, the Corporation shall
indemnify any
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<PAGE> 10
such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if authorized by the Board of Directors
of the Corporation. Any indemnification under this Article 7 (unless ordered by
a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee, or agent is proper in the circumstances because he or she has met the
applicable standard set forth in the GCLD. Such a determination shall be made
(a) by a majority vote of the directors who are not parties to such action, suit
or proceeding, even though less than a quorum; (b) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum; (c) by independent legal counsel (compensated by the Corporation) in a
written opinion; (d) by the stockholders; or (e) in any other manner permitted
by the GCLD. In addition to the right to indemnification conferred in this
Article 7, each of the above persons shall have the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that, if the GCLD requires, the
payment of such expenses incurred by a present director or officer in his or her
capacity as a director or officer of the corporation (and not in any other
capacity in which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such present
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Article 7 or otherwise. The Corporation may, by any manner permitted by the
GCLD, provide indemnification and advancement of expenses to employees and
agents of the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers. The right to indemnification and to
an advancement of expenses conferred in this Article 7 shall be a contract
right.
7.2 If a claim under Section 7.1 of this Article 7 is not paid
in full by the Corporation within 30 days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim (including attorneys' fees). It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the GCLD for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, a committee thereof, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the GCLD, nor an actual determination by the Corporation (including
its Board of Directors, a committee thereof, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct. In any suit brought by the claimant
to enforce a right to indemnification or to an advancement of expenses
hereunder, or brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the claimant
is not entitled to be indemnified, or to such advancement of expenses, under
this Article 7 or otherwise shall be on the Corporation.
7.3 The rights to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Article 7, shall not be exclusive of any other right that any person may
have or hereafter acquire under any statute, provision of the certificate of
incorporation of the Corporation, this bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
7.4 The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee, or agent of the Corporation
or another corporation, partnership, joint venture, trust, or other enterprise
against any such expense, liability, or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability,
or loss under the GCLD.
7.5 The Corporation may enter into an indemnity agreement with
any director, officer, employee, or agent of the Corporation, or of another
corporation, partnership, joint venture, trust, or other
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<PAGE> 11
enterprise, upon terms and conditions that the Board of Directors deems
appropriate, as long as the provisions of the agreement are not impermissible
under applicable law.
7.6 Any amendment or repeal of this Article 7 shall not be
retroactive in effect.
7.7 In case any provision in this Article 7 shall be
determined at any time to be unenforceable in any respect, the other provisions
shall not in any way be affected or impaired thereby, and the affected provision
shall be given the fullest possible enforcement in the circumstances, it being
the intention of the Corporation to afford indemnification and advancement of
expenses to the persons indemnified hereby to the fullest extent permitted by
law.
7.8 The Corporation may, by action of the Board of Directors,
authorize one or more officers to grant rights to indemnification and
advancement of expenses to former directors and officers or to other employees
or agents of the Corporation on such terms and conditions as such officer or
officers deem appropriate under the circumstances.
8. MISCELLANEOUS
8.1 Place and Inspection of Books. (a) The books of the
Corporation other than such books as are required by law to be kept within the
State of Delaware shall be kept in such place or places either within or without
the State of Delaware as the Board of Directors may from time to time determine.
(b) At least ten days before each meeting of
stockholders, the officer in charge of the stock ledger of the Corporation shall
prepare a complete list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
(c) The Board of Directors shall determine from time
to time whether and, if allowed, when and under what conditions and regulations
the accounts and books of the Corporation (except such as may be by law
specifically open to inspection or as otherwise provided by these Bylaws) or any
of them shall be open to the inspection of the stockholders and the
stockholders' rights in respect thereof.
8.2 Voting Shares in Other Corporations. The Chief Executive
Officer, the President, the Chief Financial Officer or any other officer of the
Corporation designated by the Board of Directors may vote any and all shares
held by the Corporation in any other corporation.
8.3 Fiscal Year. The fiscal year of the Corporation shall be
such fiscal year as the Board of Directors from time to time by resolution shall
determine.
8.4 Gender/Number. As used in these Bylaws, the masculine,
feminine, or neuter gender, and the singular or plural number, shall each
include the others whenever the context so indicates.
8.5 Paragraph Titles. The titles of the paragraphs have been
inserted as a matter of reference only and shall not control or affect the
meaning or construction of any of the terms and provisions hereof.
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8.6 Amendment. These Bylaws may be altered, amended, or
repealed by (a) the affirmative vote of 80% or more of the aggregate number of
votes that the holders of the then outstanding shares of common stock and
preferred stock are entitled to cast on the amendment, or (b) by resolution
adopted by the affirmative vote of not less than a majority of the Directors in
office, at any annual or regular meeting of the Board of Directors or at any
special meeting of the Board of Directors if notice of the proposed alteration,
amendment, or repeal be contained in written notice of such special meeting.
Notwithstanding the foregoing, the amendment of any provision of these Bylaws
that requires an affirmative vote in excess of a majority of the Directors in
office shall require the affirmative vote of at least the number of directors
the affirmative vote of whom is required by such provision.
8.7 Certificate of Incorporation. Notwithstanding anything to
the contrary contained herein, if any provision contained in these Bylaws is
inconsistent with or conflicts with a provision of the Certificate of
Incorporation, such provision of these Bylaws shall be superseded by the
inconsistent provision in the Certificate of Incorporation to the extent
necessary to give effect to such provision in the Certificate of Incorporation.
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<PAGE> 1
Conectiv Communications of Virginia, Inc.
B.11.1
Certificate of Incorporation
Filed November 2, 1999
<PAGE> 2
ARTICLES OF INCORPORATION
OF
CONECTIV COMMUNICATIONS OF VIRGINIA, INC.
The undersigned, pursuant to Chapter 9 of Title 13.1 of the Code of Virginia,
state(s) as follows:
1. The name of the corporation is:
Conectiv Communications of Virginia, Inc. .
----------------------------------------------------------------------
2. The number (and classes, if any) of shares the corporation is
authorized to issue is (are):
<TABLE>
<CAPTION>
NUMBER OF SHARES AUTHORIZED CLASS(ES)
<S> <C>
1,000 common
----- ------
</TABLE>
3. A. The corporation's initial registered office address which is the
business address of the initial registered agent is:
5511 Staples Mill Road, Richmond VA 23228
-------------------------------------- ----------
(number/street) (city or town) (ZIP code)
B. The registered office is physically located in the [ ] City of
[ X ] County of
Henrico .
-------------------------------------------------------------------
4. A. The name of the corporation's initial registered agent is
Edward R. Parker .
-------------------------------------------------------------------
B. The initial registered agent is (mark appropriate box):
(1) An INDIVIDUAL who is a RESIDENT OF VIRGINIA and
[ ] an initial director of the corporation
[ X ] a member of the Virginia State Bar
OR
(2) [ ] a professional corporation or professional limited
liability company of attorneys registered under Section
54.1-3902, Code of Virginia
5. The NAMES and ADDRESSES of the initial directors are:
Howard E. Cosgrove P.O. Box 231, Wilmington, DE 19899
John C. van Roden, Jr. P.O. Box 231, Wilmington, DE 19899
Moira K. Donoghue P.O. Box 231, Wilmington, DE 19899
6. INCORPORATOR(S):
Nina J. Hertz
-------------------------- ------------------------------
Signature(s) Printed name(s)
<PAGE> 3
7. The purpose of the Corporation and the nature and objects of business
to be transacted, promoted, conducted or carried out is:
to conduct the business of a telephone company as a
public service company, and it shall have power to
conduct other public service business or non-public
service business to the fullest extent authorized or
permitted by the laws thereof.
8. The Board of Directors may make, add to, delete from, alter and repeal
any By-law of the Corporation.
9. In any proceeding brought by or in the right of the Corporation or
brought by or on behalf of shareholders of the Corporation, no director
or officer of the Corporation shall be liable to the Corporation or its
shareholders for monetary damages with respect to any transaction,
occurrence or course of conduct, whether prior or subsequent to the
effective date of this Article, except for liability resulting from
such person's having engaged in willful misconduct or a knowing
violation of the criminal law or any federal or state securities law.
The Corporation shall indemnify its directors, officers, employees and
agents against expenses, judgment, fines and amounts paid in settlement
actually and reasonably incurred by them by reason of their serving in
such capacity to the fullest extent authorized or permitted by Virginia
law.
<PAGE> 1
Conectiv Communications of
Virginia, Inc.
B.11.2
Bylaws
<PAGE> 2
BYLAWS
OF
CONECTIV COMMUNICATIONS OF VIRGINIA, INC.
1. OFFICES.
1.1 Offices. In addition to its registered office in the Commonwealth
of Virginia, the Corporation shall have a corporate office in Newark, Delaware,
and such other offices, either within or without the Commonwealth of Virginia,
at such locations as the Board of Directors may from time to time determine or
the business of the Corporation may require.
2. SEAL.
2.1 Seal. The Corporation shall have a seal, which shall have inscribed
thereon its name and year of incorporation and the words, "Corporate Seal,
Virginia."
3. MEETINGS OF STOCKHOLDERS.
3.1 Annual Meetings. The annual meeting of stockholders of the
Corporation shall be held on such date, at such time and at such place within or
without the Commonwealth of Virginia as shall be determined by the Board of
Directors from time to time.
3.2 Special Meetings. Special meetings of the stockholders of the
Corporation shall be held on such date, at such time and at such place within or
without the Commonwealth of Virginia as may be designated by the Chairman of the
Board or by the Board of Directors.
3.3 Notice of Meetings. (a) Notices of meetings of stockholders shall
be in writing and shall state the place, date, and hour of the meeting, and, in
the case of a special meeting, the purpose or purposes for which a meeting is
called. No business other than that specified in the notice thereof shall be
transacted at any special meeting.
(b) Such notice shall either be delivered personally or
mailed, postage prepaid, to each stockholder entitled to vote at such meeting
not less than 10 nor more than 60 days before the date of the meeting. If
mailed, the notice shall be directed to the stockholder at his or her address as
it appears on the records of the Corporation. Personal delivery of any such
notice to any officer of a corporation or association or to any member of a
partnership shall constitute delivery of such notice to such corporation,
association, or partnership.
(c) Notice of any meeting of stockholders need not be given to
any stockholder if waived by such stockholder in writing, whether before or
after such meeting is held, or if such stockholder shall sign the minutes or
attend the meeting, except that if such stockholder attends a meeting for the
express purpose of objecting at the beginning of the meeting to the transaction
of any business because the meeting is not lawfully called or convened, such
stockholder shall not be deemed to have waived notice of such meeting.
3.4 Adjourned Meetings. When a meeting is adjourned to another time or
place, unless otherwise provided by these Bylaws, notice need not be given of
the adjourned meeting if the time and place thereof are announced at the meeting
at which the adjournment is taken. At the adjourned meeting the stockholders may
transact any business that might have been transacted at the original meeting.
If an adjournment is for more than 30 days, or if after an adjournment, a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
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3.5 Quorum and Adjournment. Except as otherwise provided by law, by the
Articles of Incorporation of the Corporation, or by these Bylaws, the presence,
in person or by proxy, of the holders of a majority of the aggregate voting
power of the stock issued and outstanding, entitled to vote thereat, shall
constitute a quorum for the transaction of business at all meetings of
stockholders. If such majority shall not be present or represented at any
meeting of stockholders, the stockholders present, although less than a quorum,
shall have the power to adjourn the meeting.
3.6 Vote Required. Except as otherwise provided by law or by the
Articles of Incorporation:
(a) Directors shall be elected by a plurality of the votes
present in person or represented by proxy at a meeting of stockholders and
entitled to vote in the election of directors, and
(b) whenever any corporate action other than the election of
Directors is to be taken, it shall be authorized by a majority in voting power
of the shares present in person or by proxy at a meeting of stockholders and
entitled to vote on the subject matter.
3.7 Manner of Voting. At each meeting of stockholders, each stockholder
having the right to vote shall be entitled to vote in person or by proxy.
Proxies need not be filed with the Secretary of the Corporation until the
meeting is called to order, but shall be filed before being voted. Each
stockholder shall be entitled to vote each share of stock having voting power
registered in his or her name on the books of the Corporation on the record date
fixed for determination of stockholders entitled to vote at such meeting.
3.8 Stockholder Action Without a Meeting. Except as otherwise provided
by law or by the Articles of Incorporation, any action required to be taken at
any meeting of stockholders of the corporation, or any action that may be taken
at any annual or special meeting of such stockholders, may be taken without a
meeting, without prior notice, and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent shall
be given to those stockholders who have not consented in writing and who, if the
action had been taken at a meeting, would have been entitled to notice of the
meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of the holders to take the action were
delivered to the Corporation.
3.9 Proxies. (a) At any meeting of stockholders, any stockholder may be
represented and vote by proxy or proxies appointed by a written form of proxy.
In the event that any form of proxy shall designate two or more persons to act
as proxies, a majority of such persons present at the meeting or, if only one
shall be present, then that one shall have and may exercise all of the powers
conferred by the form of proxy upon all of the persons so designated unless the
form of proxy shall otherwise provide.
(b) The Board of Directors may, in advance of any annual or
special meeting of the stockholders, prescribe additional regulations concerning
the manner of execution and filing of proxies and the validation of the same,
which are intended to be voted at any such meeting.
3.10 Presiding Officer and Secretary. The Chairman of the Board shall
act as chairman of all meetings of the stockholders. In the absence of the
Chairman of the Board, the Vice Chairman of the Board or, in his or her absence,
the Chief Executive Officer or, in his or her absence, the President or, in his
or her absence, any Vice President designated by the Board of Directors shall
act as chairman of the meeting.
The Secretary of the Corporation shall act as secretary of all meetings
of the stockholders, but, in the absence of the Secretary, the Assistant
Secretary designated in accordance with Section 5.11(b) of these Bylaws shall
act as secretary of all meetings of the stockholders, but in the absence of a
designated Assistant Secretary, the chairman of the meeting may appoint any
person to act as secretary of the meeting.
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3.11 Procedure. At each meeting of stockholders, the chairman of the
meeting shall fix and announce the date and time of the opening and the closing
of the polls for each matter upon which the stockholders will vote at the
meeting and shall determine the order of business and all other matters of
procedure. Except to the extent inconsistent with any such rules and regulations
as adopted by the Board of Directors, the chairman of the meeting may establish
rules, which need not be in writing, to maintain order and safety and for the
conduct of the meeting. Without limiting the foregoing, he or she may:
(a) restrict attendance at any time to bona fide stockholders
of record and their proxies and other persons in attendance at the invitation of
the chairman;
(b) restrict dissemination of solicitation materials and use
of audio or visual recording devices at the meeting;
(c) adjourn the meeting without a vote of the stockholders,
whether or not there is a quorum present; and
(d) make rules governing speeches and debate, including time
limits and access to microphones.
The chairman of the meeting shall be entitled to act in his or her absolute
discretion and his or her rulings shall not be subject to appeal.
4. DIRECTORS.
4.1 Powers and Number. The Board of Directors shall exercise all of the
powers of the Corporation except such as are by law, or by the Articles of
Incorporation of this Corporation or by these Bylaws conferred upon or reserved
to the stockholders of any class or classes. The number of directors that shall
constitute the whole Board of Directors shall be no fewer than three (3) and no
greater than nine (9), the exact number of directors to be determined from time
to time by resolution adopted by the Board of Directors or the stockholders, and
until otherwise determined by the Board of Directors or the stockholders, the
number of directors that shall constitute the whole Board of Directors shall be
three (3).
4.1 Resignations. Any Director may resign at any time by giving written
notice to the Board of Directors or the Secretary. Such resignation shall take
effect at the date of receipt of such notice or at any later time specified
therein. Acceptance of such resignation shall not be necessary to make it
effective.
4.2 Presiding Officer and Secretary. The Chairman of the Board shall
act as chairman of all meetings of the Board of Directors. In the absence of the
Chairman of the Board, the Vice Chairman of the Board, or in his absence, the
Chief Executive Officer or other person designated by the Board of Directors
shall act as chairman of the meeting.
The Secretary of the Corporation shall act as secretary of all
meetings of the Board of Directors, but, in the absence of the Secretary, the
Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the Board of Directors, but in
the absence of a designated Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
4.3 Annual Meetings. The Board of Directors shall meet each year
immediately following the annual meeting of stockholders, at the place where
such meeting of stockholders has been held, or at such other place as shall be
fixed by the person presiding over the meeting of the stockholders, for the
purpose of election of officers and consideration of such other business as the
Board of Directors considers relevant to the management of the Corporation. In
the event that in any year Directors are elected by written consent in lieu of
an annual meeting of stockholders, the Board of Directors shall meet in such
year as soon as practicable after receipt of such written consent by the
Corporation at such time and place as shall be fixed by the Chairman of the
Board, for the purpose of election of officers and consideration of such other
business as the Board of Directors considers relevant to the management of the
Corporation.
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4.4 Regular Meetings. Regular meetings of the Board of Directors shall
be held on such dates and at such times and places, within or without the
Commonwealth of Virginia, as shall from time to time be determined by the Board
of Directors. In the absence of any such determination, such meetings shall be
held at such times and places, within or without the Commonwealth of Virginia,
as shall be designated by the Chairman of the Board on not less than twelve
hours notice to each Director, given verbally or in writing, whether personally,
by telephone (including by message or recording device), by facsimile
transmission, by telegram, or by telex, or on not less than three (3) calendar
days' notice to each Director given by mail.
4.5 Special Meetings. Special meetings of the Board of Directors shall
be held at the call of the Chairman of the Board at such times and places,
within or without the Commonwealth of Virginia, as he or she shall designate, on
not less than twelve hours notice to each Director, given verbally or in
writing, whether personally, by telephone (including by message or recording
device), by facsimile transmission, by telegram, or by telex, or on not less
than three (3) calendar days' notice to each Director given by mail. Special
meetings shall be called by the Secretary on like notice at the written request
of a majority of the Directors then in office.
4.6 Quorum and Powers of a Majority. At all meetings of the Board of
Directors and of each committee thereof, a majority of the members shall be
necessary and sufficient to constitute a quorum for the transaction of business,
and the act of a majority of the members present at any meeting at which a
quorum is present shall be the act of the Board of Directors or such committee,
unless by express provision of law, of the Articles of Incorporation, or of
these Bylaws, a different vote is required, in which case such express provision
shall govern and control. In the absence of a quorum, a majority of the members
present at any meeting may, without notice other than announcement at the
meeting, adjourn such meeting from time to time until a quorum is present.
4.7 Waiver of Notice. Notice of any meeting of the Board of Directors,
or any committee thereof, need not be given to any member if waived by him or
her in writing, whether before or after such meeting is held, or if he or she
shall sign the minutes or attend the meeting, except that if such Director
attends a meeting for the express purpose of objecting at the beginning of the
meeting to the transaction of any business because the meeting is not lawfully
called or convened, then such Director shall not be deemed to have waived notice
of such meeting.
4.8 Manner of Acting. (a) Members of the Board of Directors, or any
committee thereof, may participate in any meeting of the Board of Directors or
such committee by means of conference telephone or similar communications
equipment by means of which all persons participating therein can hear each
other, and participation in a meeting by such means shall constitute presence in
person at such meeting.
(b) Any action required or permitted to be taken at any
meeting of the Board of Directors or any committee thereof may be taken without
a meeting if all members of the Board of Directors or such committee, as the
case may be, consent thereto in writing, and the writings are filed with the
minutes of proceedings of the Board of Directors or such committee.
4.9 Compensation. (a) The Board of Directors, by a resolution or
resolutions, may fix, and from time to time change, the compensation of
Directors.
(b) Each Director shall be entitled to reimbursement from the
Corporation for his or her reasonable expenses incurred with respect to duties
as a member of the Board of Directors or any committee thereof.
(c) Nothing contained in these Bylaws shall be construed to
preclude any Director from serving the Corporation in any other capacity and
from receiving compensation from the Corporation for service rendered to it in
such other capacity.
4.10 Committees. The Board of Directors (or any committee thereof
having the power and authority to do so) may designate one or more committees,
each committee to consist of one or more Directors, which to the extent provided
in said resolution or resolutions shall have and may exercise the powers and
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authority of the Board of Directors in the management of the business and
affairs of the corporation; provided, however, that no such committee shall have
the power or authority in reference to the following matters: (i) approving or
adopting, or recommending to the stockholders, any action or matter expressly
required by the Stock Corporation Act of the Commonwealth of Virginia (the
"SCAV") to be submitted to stockholders for approval or (ii) adopting, amending,
or repealing any bylaw of the Corporation. The Board of Directors may designate
one or more directors as alternate members of any committee, who may replace any
absent or disqualified member of the committee. In the absence or
disqualification of a member of a committee, the member or members present at
any meeting of such committee and not disqualified from voting, whether or not
such member or members constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in place of such absent
or disqualified director.
4.11 Committee Procedure, Limitations of Committee Powers. (a) Except
as otherwise provided by these Bylaws, each committee shall adopt its own rules
governing the time, place and method of holding its meetings and the conduct of
its proceedings and shall meet as provided by such rules or by resolution of the
Board of Directors. Unless otherwise provided by these Bylaws or any such rules
or resolutions, notice of the time and place of each meeting of a committee
shall be given to each member of such committee as provided in Section 4.6 of
these Bylaws with respect to notices of special meetings of the Board of
Directors.
(b) Each committee shall keep regular minutes of its
proceedings and report the same to the Board of Directors when required.
(c) Any member of any committee may be removed from such
committee either with or without cause, at any time, by the Board of Directors
at any meeting thereof. Any vacancy in any committee shall be filled by the
Board of Directors in the manner prescribed by the Articles of Incorporation or
these Bylaws for the original appointment of the members of such committee.
5. OFFICERS.
5.1 Number. (a) The officers of the Corporation shall include a Chief
Executive Officer, a President, one or more Vice Presidents (including one or
more Executive Vice Presidents and one or more Senior Vice Presidents if deemed
appropriate by the Board of Directors), a Secretary, a Treasurer, and a
Controller. The Board of Directors shall also elect a Chairman of the Board and
may elect a Vice Chairman of the Board. The Board of Directors may also elect
such other officers as the Board of Directors may from time to time deem
appropriate or necessary. Except for the Chairman of the Board, the Vice
Chairman of the Board, and the Chief Executive Officer, none of the officers of
the Corporation needs to be a director of the Corporation. Any two or more
offices may be held by the same person to the extent permitted by the SCAV.
(b) The Board of Directors may delegate to the Chief Executive
Officer or President the power to appoint one or more employees of the
Corporation as divisional or departmental vice presidents and fix the duties of
such appointees. However, no such divisional or departmental vice president
shall be considered as an officer of the Corporation, the officers of the
Corporation being limited to those officers elected by the Board of Directors.
5.2 Election of Officers, Qualification and Term. The officers of the
Corporation shall be elected from time to time by the Board of Directors and,
except as may otherwise be expressly provided in a contract of employment duly
authorized by the Board of Directors, shall hold office at the pleasure of the
Board of Directors.
5.3 Removal. Any officer elected by the Board of Directors may be
removed, either with or without cause, by the Board of Directors at any meeting
thereof, or to the extent delegated to the Chairman of the Board or the Chief
Executive Officer, by the Chairman of the Board or the Chief Executive Officer.
5.4 Resignations. Any officer of the Corporation may resign at any time
by giving written notice to the Board of Directors or to the Chairman of the
Board or to the Chief Executive Officer. Such resignation shall take effect at
the date of the receipt of such notice or at any later time specified therein
and, unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
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5.5 Salaries. The salaries of all officers of the Corporation shall be
fixed by the Board of Directors from time to time, and no officer shall be
prevented from receiving such salary by reason of the fact that he or she is
also a Director of the Corporation.
5.6 The Chairman of the Board. The Chairman of the Board shall have the
powers and duties customarily and usually associated with the office of the
Chairman of the Board. The Chairman of the Board shall preside at meetings of
the stockholders and of the Board of Directors.
5.7 Vice Chairman of the Board. The Vice Chairman of the Board shall
have the powers and duties customarily and usually associated with the office of
the Vice Chairman of the Board.
5.8 Chief Executive Officer. The Chief Executive Officer shall have,
subject to the supervision, direction and control of the Board of Directors, the
general powers and duties of supervision, direction and management of the
affairs and business of the Corporation usually vested in the chief executive
officer of a corporation, including, without limitation, all powers necessary to
direct and control the organizational and reporting relationships within the
Corporation. If at any time the office of the Chairman of the Board and the Vice
Chairman of the Board shall not be filled, or in the event of the temporary
absence or disability of the Chairman of the Board and the Vice Chairman of the
Board, the Chief Executive Officer shall have the powers and duties of the
Chairman of the Board.
5.9 The President. The President shall serve as chief operating officer
and shall have such other powers and perform such other duties as may be
delegated to him or her from time to time by the Board of Directors or the Chief
Executive Officer.
5.10 The Vice Presidents. Each Vice President shall have such powers
and perform such duties as may from time to time be assigned to him or her by
the Board of Directors, the Chief Executive Officer, or the President.
5.11 The Secretary and the Assistant Secretary. (a) The Secretary shall
attend meetings of the Board of Directors and meetings of the stockholders and
record all votes and minutes of all such proceedings in a book kept for such
purpose. He or she shall have all such further powers and duties as generally
are incident to the position of Secretary or as may from time to time be
assigned to him or her by the Board of Directors, the Chief Executive Officer,
or the President.
(b) Each Assistant Secretary shall have such powers and
perform such duties as may from time to time be assigned to him or her by the
Board of Directors, the Chief Executive Officer, the President, or the
Secretary. In case of the absence or disability of the Secretary, the Assistant
Secretary designated by the Chief Executive Officer (or, in the absence of such
designation, by the Secretary) shall perform the duties and exercise the powers
of the Secretary.
5.12 The Treasurer and the Assistant Treasurer. (a) The Treasurer shall
have custody of the Corporation's funds and securities and shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit or cause to be deposited moneys or other valuable
effects in the name and to the credit of the Corporation in such depositories as
may be designated by the Board of Directors. The Treasurer shall also maintain
adequate records of all assets, liabilities, and transactions of the Corporation
and shall see that adequate audits thereof are currently and regularly made. The
Treasurer shall have such other powers and perform such other duties that
generally are incident to the position of Treasurer or as may from time to time
be assigned to him or her by the Board of Directors, the Chief Executive
Officer, or the President.
(b) Each Assistant Treasurer shall have such powers and
perform such duties as may from time to time be assigned to him or her by the
Board of Directors, the Chief Executive Officer, the President, or the
Treasurer. In case of the absence or disability of the Treasurer, the Assistant
Treasurer designated by the Chief Executive Officer (or, in the absence of such
designation, by the Treasurer) shall perform the duties and exercise the powers
of the Treasurer.
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5.13 Controller. The Controller shall be responsible for maintaining
the accounting records and statements, and shall properly account for all monies
and obligations due the Corporation and all properties, assets, and liabilities
of the Corporation. The Controller shall render to the Chairman of the Board or
the President such periodic reports covering the results of operations of the
Corporation as may be required by either of them or by law.
6. STOCK
6.1 Certificates. Certificates for shares of stock of the Corporation
shall be issued under the seal of the Corporation, or a facsimile thereof, and
shall be numbered and shall be entered in the books of the Corporation as they
are issued. Each certificate shall bear a serial number, shall exhibit the
holder's name and the number of shares evidenced thereby, and shall be signed by
the Chairman of the Board or a Vice Chairman, if any, or the Chief Executive
Officer or the President or any Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. Any or all of
the signatures on the certificate may be a facsimile. In case any officer,
transfer agent, or registrar who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer, transfer
agent, or registrar before such certificate is issued, it may be issued by the
corporation with the same effect as if such person or entity were such officer,
transfer agent, or registrar at the date of issue.
6.2 Transfers. Transfers of stock of the Corporation shall be made on
the books of the Corporation only upon surrender to the Corporation of a
certificate (if any) for the shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, provided such
succession, assignment, or transfer is not prohibited by the Articles of
Incorporation, these Bylaws, applicable law or contract. Thereupon, the
Corporation shall issue a new certificate (if requested) to the person entitled
thereto, cancel the old certificate (if any), and record the transaction upon
its books.
6.3 Lost, Stolen, or Destroyed Certificates. Any person claiming a
certificate of stock to be lost, stolen, or destroyed shall make an affidavit or
an affirmation of that fact, and shall give the Corporation a bond of indemnity
in satisfactory form and with one or more satisfactory sureties, whereupon a new
certificate (if requested) may be issued of the same tenor and for the same
number of shares as the one alleged to be lost, stolen, or destroyed.
6.4 Registered Stockholders. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares as the person entitled to exercise the rights of a stockholder and
shall not be bound to recognize any equitable or other claim to or interest in
any such shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise expressly provided by the
SCAV.
6.5 Additional Powers of the Board. (a) In addition to those powers set
forth in Section 4.1, the Board of Directors shall have power and authority to
make all such rules and regulations as it shall deem expedient concerning the
issue, transfer, and registration of certificates for shares of stock of the
Corporation, including the use of uncertificated shares of stock subject to the
provisions of the SCAV.
(b) The Board of Directors may appoint and remove transfer
agents and registrars of transfers, and may require all stock certificates to
bear the signature of any such transfer agent and/or any such registrar of
transfers.
7. INDEMNIFICATION
7.1 Each person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or the person of whom he or
she is the legal representative, is or was a director, officer, employee or
agent of the Corporation or is or was serving at the request of the Corporation,
as a director, officer, employee, or agent of another corporation or of a
partnership, joint venture, trust, or other enterprise, including service with
respect to employee benefit plans, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized or permitted by the
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SCAV, as the same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the Corporation
to provide broader indemnification rights than said law permitted the
Corporation to provide prior to such amendment), against all expenses,
liability, and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties, and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee, or agent and shall inure to the benefit of his or her heirs,
executors, and administrators; provided, however, that, except as provided in
this Article 7, the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if authorized by the Board of Directors of the Corporation. Any
indemnification under this Article 7 (unless ordered by a court) shall be made
by the Corporation only as authorized in the specific case upon a determination
that indemnification of the director, officer, employee, or agent is proper in
the circumstances because he or she has met the applicable standard set forth in
the SCAV. Such a determination shall be made (a) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even though
less than a quorum; (b) by a committee of such directors designated by majority
vote of such directors, even though less than a quorum; (c) by independent legal
counsel (compensated by the Corporation) in a written opinion; (d) by the
stockholders; or (e) in any other manner permitted by the SCAV. In addition to
the right to indemnification conferred in this Article 7, each of the above
persons shall have the right to be paid by the Corporation the expenses incurred
in defending any such proceeding in advance of its final disposition; provided,
however, that, if the SCAV requires, the payment of such expenses incurred by a
present director, officer, employee or agent in his or her capacity as a
director, officer, employee or agent of the corporation (and not in any other
capacity in which service was or is rendered by such person while a director,
officer, employee or agent, including, without limitation, service to an
employee benefit plan) in advance of the final disposition of a proceeding,
shall be made only upon delivery to the Corporation of an undertaking, by or on
behalf of such present director, officer, employee or agent to repay all amounts
so advanced if it shall ultimately be determined that such director, officer,
employee or agent is not entitled to be indemnified under this Article 7 or
otherwise. The right to indemnification and to an advancement of expenses
conferred in this Article 7 shall be a contract right.
7.2 If a claim under Section 7.1 of this Article 7 is not paid in full
by the Corporation within 30 days after a written claim has been received by the
Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim (including attorneys' fees). It shall be a defense to any
such action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition where
the required undertaking, if any is required, has been tendered to the
Corporation) that the claimant has not met the standard of conduct which makes
it permissible under the SCAV for the Corporation to indemnify the claimant for
the amount claimed, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, a committee thereof, independent legal counsel, or its stockholders)
to have made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he or she
has met the applicable standard of conduct set forth in the SCAV, nor an actual
determination by the Corporation (including its Board of Directors, a committee
thereof, independent legal counsel, or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct. In any suit brought by the claimant to enforce a right to
indemnification or to an advancement of expenses hereunder, or brought by the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the burden of proving that the claimant is not entitled to be
indemnified, or to such advancement of expenses, under this Article 7 or
otherwise shall be on the Corporation.
7.3 The rights to indemnification and the payment of expenses incurred
in defending a proceeding in advance of its final disposition conferred in this
Article 7, shall not be exclusive of any other right that any person may have or
hereafter acquire under any statute, provision of the Articles of Incorporation
of the Corporation, this bylaw, agreement, vote of stockholders or disinterested
directors, or otherwise.
7.4 The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee, or agent of the Corporation or
another corporation, partnership, joint venture, trust,
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or other enterprise against any such expense, liability, or loss, whether or not
the Corporation would have the power to indemnify such person against such
expense, liability, or loss under the SCAV.
7.5 The Corporation may enter into an indemnity agreement with any
director, officer, employee, or agent of the Corporation, or of another
corporation, partnership, joint venture, trust, or other enterprise, upon terms
and conditions that the Board of Directors deems appropriate, as long as the
provisions of the agreement are not impermissible under applicable law.
7.6 Any amendment or repeal of this Article 7 shall not be retroactive
in effect.
7.7 In case any provision in this Article 7 shall be determined at any
time to be unenforceable in any respect, the other provisions shall not in any
way be affected or impaired thereby, and the affected provision shall be given
the fullest possible enforcement in the circumstances, it being the intention of
the Corporation to afford indemnification and advancement of expenses to the
persons indemnified hereby to the fullest extent permitted by law.
7.8 The Corporation may, by action of the Board of Directors, authorize
one or more officers to grant rights to indemnification and advancement of
expenses to former directors and officers or to other employees or agents of the
Corporation on such terms and conditions as such officer or officers deem
appropriate under the circumstances.
8. MISCELLANEOUS
8.1 Place and Inspection of Books. (a) The books of the Corporation
other than such books as are required by law to be kept within the Commonwealth
of Virginia shall be kept in such place or places either within or without the
Commonwealth of Virginia as the Board of Directors may from time to time
determine.
(b) At least ten days before each meeting of stockholders, the
officer in charge of the stock ledger of the Corporation shall prepare a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order and showing the address of each stockholder and the number of
shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
(c) The Board of Directors shall determine from time to time
whether and, if allowed, when and under what conditions and regulations the
accounts and books of the Corporation (except such as may be by law specifically
open to inspection or as otherwise provided by these Bylaws) or any of them
shall be open to the inspection of the stockholders and the stockholders' rights
in respect thereof.
8.2 Voting Shares in Other Corporations. The Chief Executive Officer,
the President, or any other officer of the Corporation designated by the Board
of Directors may vote any and all shares held by the Corporation in any other
corporation.
8.3 Fiscal Year. The fiscal year of the Corporation shall be such
fiscal year as the Board of Directors from time to time by resolution shall
determine.
8.4 Gender/Number. As used in these Bylaws, the masculine, feminine, or
neuter gender, and the singular or plural number, shall each include the others
whenever the context so indicates.
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8.5 Paragraph Titles. The titles of the paragraphs have been inserted
as a matter of reference only and shall not control or affect the meaning or
construction of any of the terms and provisions hereof.
8.6 Amendment. These Bylaws may be altered, amended, or repealed by (a)
the affirmative vote of 80% or more of the aggregate number of votes that the
holders of the then outstanding shares of common stock and preferred stock are
entitled to cast on the amendment, or (b) by resolution adopted by the
affirmative vote of not less than a majority of the Directors in office, at any
annual or regular meeting of the Board of Directors or at any special meeting of
the Board of Directors if notice of the proposed alteration, amendment, or
repeal be contained in written notice of such special meeting. Notwithstanding
the foregoing, the amendment of any provision of these Bylaws that requires an
affirmative vote in excess of a majority of the Directors in office shall
require the affirmative vote of at least the number of directors the affirmative
vote of whom is required by such provision.
8.7 Articles of Incorporation. Notwithstanding anything to the contrary
contained herein, if any provision contained in these Bylaws is inconsistent
with or conflicts with a provision of the Articles of Incorporation, such
provision of these Bylaws shall be superseded by the inconsistent provision in
the Articles of Incorporation to the extent necessary to give effect to such
provision in the Articles of Incorporation.
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Conectiv Energy, Inc.
B.12.2
Bylaws
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BYLAWS
OF
CONECTIV ENERGY, INC.
1. OFFICES.
1.1 Offices. In addition to its registered office in the State
of Delaware, the Corporation shall have a corporate office in Wilmington,
Delaware, and such other offices, either within or without the State of
Delaware, at such locations as the Board of Directors may from time to time
determine or the business of the Corporation may require.
2. SEAL.
2.1 Seal. The Corporation shall have a seal, which shall have
inscribed thereon its name and year of incorporation and the words, "Corporate
Seal Delaware."
3. MEETINGS OF STOCKHOLDERS.
3.1 Annual Meetings. The annual meeting of stockholders of the
Corporation shall be held on such date, at such time and at such place within or
without the State of Delaware as shall be determined by the Board of Directors
from time to time.
3.2 Special Meetings. Special meetings of the stockholders of
the Corporation shall be held on such date, at such time and at such place
within or without the State of Delaware as may be designated by the Chairman of
the Board or by the Board of Directors.
3.3 Notice of Meetings. (a) Notices of meetings of
stockholders shall be in writing and shall state the place, date, and hour of
the meeting, and, in the case of a special meeting, the purpose or purposes for
which a meeting is called. No business other than that specified in the notice
thereof shall be transacted at any special meeting.
(b) Such notice shall either be delivered personally
or mailed, postage prepaid, to each stockholder entitled to vote at such meeting
not less than 10 nor more than 60 days before the date of the meeting. If
mailed, the notice shall be directed to the stockholder at his or her address as
it appears on the records of the Corporation. Personal delivery of any such
notice to any officer of a corporation or association or to any member of a
partnership shall constitute delivery of such notice to such corporation,
association, or partnership.
(c) Notice of any meeting of stockholders need not be
given to any stockholder if waived by such stockholder in writing, whether
before or after such meeting is held, or if such stockholder shall sign the
minutes or attend the meeting, except that if such stockholder attends a meeting
for the express purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened, such stockholder shall not be deemed to have waived notice of such
meeting.
3.4 Adjourned Meetings. When a meeting is adjourned to another
time or place, unless otherwise provided by these Bylaws, notice need not be
given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. At the adjourned meeting the
stockholders may transact any business that might have been transacted at the
original meeting. If an adjournment is for more than 30 days, or if after an
adjournment, a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder entitled to vote at the
meeting.
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3.5 Quorum and Adjournment. Except as otherwise provided by
law, by the Certificate of Incorporation of the Corporation, or by these Bylaws,
the presence, in person or by proxy, of the holders of a majority of the
aggregate voting power of the stock issued and outstanding, entitled to vote
thereat, shall constitute a quorum for the transaction of business at all
meetings of stockholders. If such majority shall not be present or represented
at any meeting of stockholders, the stockholders present, although less than a
quorum, shall have the power to adjourn the meeting.
3.6 Vote Required. Except as otherwise provided by law or by
the Certificate of Incorporation:
(a) Directors shall be elected by a plurality of the
votes present in person or represented by proxy at a meeting of stockholders and
entitled to vote in the election of directors, and
(b) whenever any corporate action other than the
election of Directors is to be taken, it shall be authorized by a majority in
voting power of the shares present in person or by proxy at a meeting of
stockholders and entitled to vote on the subject matter.
3.7 Manner of Voting. At each meeting of stockholders, each
stockholder having the right to vote shall be entitled to vote in person or by
proxy. Proxies need not be filed with the Secretary of the Corporation until the
meeting is called to order, but shall be filed before being voted. Each
stockholder shall be entitled to vote each share of stock having voting power
registered in his or her name on the books of the Corporation on the record date
fixed for determination of stockholders entitled to vote at such meeting.
3.8 Stockholder Action Without a Meeting. Except as otherwise
provided by law or by the Certificate of Incorporation, any action required to
be taken at any meeting of stockholders of the corporation, or any action that
may be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice, and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing and who,
if the action had been taken at a meeting, would have been entitled to notice of
the meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of the holders to take the action were
delivered to the Corporation.
3.9 Proxies. (a) At any meeting of stockholders, any
stockholder may be represented and vote by proxy or proxies appointed by a
written form of proxy. In the event that any form of proxy shall designate two
or more persons to act as proxies, a majority of such persons present at the
meeting or, if only one shall be present, then that one shall have and may
exercise all of the powers conferred by the form of proxy upon all of the
persons so designated unless the form of proxy shall otherwise provide.
(b) The Board of Directors may, in advance of any
annual or special meeting of the stockholders, prescribe additional regulations
concerning the manner of execution and filing of proxies and the validation of
the same, which are intended to be voted at any such meeting.
3.10 Presiding Officer and Secretary. The Chairman of the
Board shall act as chairman of all meetings of the stockholders. In the absence
of the Chairman of the Board, the Vice Chairman of the Board or, in his or her
absence, the Chief Executive Officer or, in his or her absence, the President
or, in his or her absence, any Vice President designated by the Board of
Directors shall act as chairman of the meeting.
The Secretary of the Corporation shall act as secretary of all
meetings of the stockholders, but, in the absence of the Secretary, the
Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the stockholders, but in the
absence of a designated Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
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3.11 Procedure. At each meeting of stockholders, the chairman
of the meeting shall fix and announce the date and time of the opening and the
closing of the polls for each matter upon which the stockholders will vote at
the meeting and shall determine the order of business and all other matters of
procedure. Except to the extent inconsistent with any such rules and regulations
as adopted by the Board of Directors, the chairman of the meeting may establish
rules, which need not be in writing, to maintain order and safety and for the
conduct of the meeting. Without limiting the foregoing, he or she may:
(a) restrict attendance at any time to bona fide
stockholders of record and their proxies and other persons in attendance at the
invitation of the chairman;
(b) restrict dissemination of solicitation materials
and use of audio or visual recording devices at the meeting;
(c) adjourn the meeting without a vote of the
stockholders, whether or not there is a quorum present; and
(d) make rules governing speeches and debate,
including time limits and access to microphones.
The chairman of the meeting shall be entitled to act in his or her absolute
discretion and his or her rulings shall not be subject to appeal.
4. DIRECTORS.
4.1 Powers and Number. The Board of Directors shall exercise
all of the powers of the Corporation except such as are by law, or by the
Certificate of Incorporation of this Corporation or by these Bylaws conferred
upon or reserved to the stockholders of any class or classes. The number of
directors that shall constitute the whole Board of Directors shall be no fewer
than three (3) and no greater than nine (9), the exact number of directors to be
determined from time to time by resolution adopted by the Board of Directors or
the stockholders, and until otherwise determined by the Board of Directors or
the stockholders, the number of directors that shall constitute the whole Board
of Directors shall be three (3).
4.2 Resignations. Any Director may resign at any time by
giving written notice to the Board of Directors or the Secretary. Such
resignation shall take effect at the date of receipt of such notice or at any
later time specified therein. Acceptance of such resignation shall not be
necessary to make it effective.
4.3 Presiding Officer and Secretary. The Chairman of the Board
shall act as chairman of all meetings of the Board of Directors. In the absence
of the Chairman of the Board, the Vice Chairman of the Board, or in his absence,
the Chief Executive Officer or other person designated by the Board of Directors
shall act as chairman of the meeting.
The Secretary of the Corporation shall act as
secretary of all meetings of the Board of Directors, but, in the absence of the
Secretary, the Assistant Secretary designated in accordance with Section 5.11(b)
of these Bylaws shall act as secretary of all meetings of the Board of
Directors, but in the absence of a designated Assistant Secretary, the chairman
of the meeting may appoint any person to act as secretary of the meeting.
4.4 Annual Meetings. The Board of Directors shall meet each
year immediately following the annual meeting of stockholders, at the place
where such meeting of stockholders has been held, or at such other place as
shall be fixed by the person presiding over the meeting of the stockholders, for
the purpose of election of officers and consideration of such other business as
the Board of Directors considers relevant to the management of the Corporation.
In the event that in any year Directors are elected by written consent in lieu
of an annual meeting of stockholders, the Board of Directors shall meet in such
year as soon as practicable after receipt of such written consent by the
Corporation at such time and place as shall be fixed by the Chairman of the
Board, for the purpose of election of officers and consideration of such other
business as the Board of Directors considers relevant to the management of the
Corporation.
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4.5 Regular Meetings. Regular meetings of the Board of
Directors shall be held on such dates and at such times and places, within or
without the state of Delaware, as shall from time to time be determined by the
Board of Directors. In the absence of any such determination, such meetings
shall be held at such times and places, within or without the State of Delaware,
as shall be designated by the Chairman of the Board on not less than twelve
hours notice to each Director, given verbally or in writing, whether personally,
by telephone (including by message or recording device), by facsimile
transmission, by telegram, or by telex, or on not less than three (3) calendar
days' notice to each Director given by mail.
4.6 Special Meetings. Special meetings of the Board of
Directors shall be held at the call of the Chairman of the Board at such times
and places, within or without the State of Delaware, as he or she shall
designate, on not less than twelve hours notice to each Director, given verbally
or in writing, whether personally, by telephone (including by message or
recording device), by facsimile transmission, by telegram, or by telex, or on
not less than three (3) calendar days' notice to each Director given by mail.
Special meetings shall be called by the Secretary on like notice at the written
request of a majority of the Directors then in office.
4.7 Quorum and Powers of a Majority. At all meetings of the
Board of Directors and of each committee thereof, a majority of the members
shall be necessary and sufficient to constitute a quorum for the transaction of
business, and the act of a majority of the members present at any meeting at
which a quorum is present shall be the act of the Board of Directors or such
committee, unless by express provision of law, of the Certificate of
Incorporation, or of these Bylaws, a different vote is required, in which case
such express provision shall govern and control. In the absence of a quorum, a
majority of the members present at any meeting may, without notice other than
announcement at the meeting, adjourn such meeting from time to time until a
quorum is present.
4.8 Waiver of Notice. Notice of any meeting of the Board of
Directors, or any committee thereof, need not be given to any member if waived
by him or her in writing, whether before or after such meeting is held, or if he
or she shall sign the minutes or attend the meeting, except that if such
Director attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened, then such Director shall not be deemed to have
waived notice of such meeting.
4.9 Manner of Acting. (a) Members of the Board of Directors,
or any committee thereof, may participate in any meeting of the Board of
Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating therein can
hear each other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
(b) Any action required or permitted to be taken at
any meeting of the Board of Directors or any committee thereof may be taken
without a meeting if all members of the Board of Directors or such committee, as
the case may be, consent thereto in writing, and the writings are filed with the
minutes of proceedings of the Board of Directors or such committee.
4.10 Compensation. (a) The Board of Directors, by a resolution
or resolutions, may fix, and from time to time change, the compensation of
Directors.
(b) Each Director shall be entitled to reimbursement
from the Corporation for his or her reasonable expenses incurred with respect to
duties as a member of the Board of Directors or any committee thereof.
(c) Nothing contained in these Bylaws shall be
construed to preclude any Director from serving the Corporation in any other
capacity and from receiving compensation from the Corporation for service
rendered to it in such other capacity.
4.11 Committees. The Board of Directors (or any committee
thereof having the power and authority to do so) may designate one or more
committees, each committee to consist of one or more Directors, which to the
extent provided in said resolution or resolutions shall have and may exercise
the powers and
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authority of the Board of Directors in the management of the business and
affairs of the corporation; provided, however, that no such committee shall have
the power or authority in reference to the following matters: (i) approving or
adopting, or recommending to the stockholders, any action or matter expressly
required by the General Corporation Law of Delaware (the "GCLD") to be submitted
to stockholders for approval or (ii) adopting, amending, or repealing any bylaw
of the Corporation. The Board of Directors may designate one or more directors
as alternate members of any committee, who may replace any absent or
disqualified member of the committee. In the absence or disqualification of a
member of a committee, the member or members present at any meeting of such
committee and not disqualified from voting, whether or not such member of
members constitute a quorum, may unanimously appoint another member of the board
of directors to act at the meeting in place of such absent or disqualified
director.
4.12 Committee Procedure, Limitations of Committee Powers. (a)
Except as otherwise provided by these Bylaws, each committee shall adopt its own
rules governing the time, place and method of holding its meetings and the
conduct of its proceedings and shall meet as provided by such rules or by
resolution of the Board of Directors. Unless otherwise provided by these Bylaws
or any such rules or resolutions, notice of the time and place of each meeting
of a committee shall be given to each member of such committee as provided in
Section 4.6 of these Bylaws with respect to notices of special meetings of the
Board of Directors.
(b) Each committee shall keep regular minutes of its
proceedings and report the same to the Board of Directors when required.
(c) Any member of any committee may be removed from
such committee either with or without cause, at any time, by the Board of
Directors at any meeting thereof. Any vacancy in any committee shall be filled
by the Board of Directors in the manner prescribed by the Certificate of
Incorporation or these Bylaws for the original appointment of the members of
such committee.
5. OFFICERS.
5.1 Number. (a) The officers of the Corporation shall include
a Chief Executive Officer, a President, one or more Vice Presidents (including
one or more Executive Vice Presidents and one or more Senior Vice Presidents if
deemed appropriate by the Board of Directors), a Secretary, a Treasurer, and a
Controller. The Board of Directors shall also elect a Chairman of the Board and
may elect a Vice Chairman of the Board. The Board of Directors may also elect
such other officers as the Board of Directors may from time to time deem
appropriate or necessary. Except for the Chairman of the Board, the Vice
Chairman of the Board, and the Chief Executive Officer, none of the officers of
the Corporation needs to be a director of the Corporation. Any two or more
offices may be held by the same person to the extent permitted by the GCLD.
(b) The Board of Directors may delegate to the Chief
Executive Officer or President the power to appoint one or more employees of the
Corporation as divisional or departmental vice presidents and fix the duties of
such appointees. However, no such divisional or departmental vice president
shall be considered as an officer of the Corporation, the officers of the
Corporation being limited to those officers elected by the Board of Directors.
5.2 Election of Officers, Qualification and Term. The officers
of the Corporation shall be elected from time to time by the Board of Directors
and, except as may otherwise be expressly provided in a contract of employment
duly authorized by the Board of Directors, shall hold office at the pleasure of
the Board of Directors.
5.3 Removal. Any officer elected by the Board of Directors may
be removed, either with or without cause, by the Board of Directors at any
meeting thereof, or to the extent delegated to the Chairman of the Board or the
Chief Executive Officer, by the Chairman of the Board or the Chief Executive
Officer.
5.4 Resignations. Any officer of the Corporation may resign at
any time by giving written notice to the Board of Directors or to the Chairman
of the Board or to the Chief Executive Officer. Such resignation shall take
effect at the date of the receipt of such notice or at any later time specified
therein and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
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5.5 Salaries. The salaries of all officers of the Corporation
shall be fixed by the Board of Directors from time to time, and no officer shall
be prevented from receiving such salary by reason of the fact that he or she is
also a Director of the Corporation.
5.6 The Chairman of the Board. The Chairman of the Board shall
have the powers and duties customarily and usually associated with the office of
the Chairman of the Board. The Chairman of the Board shall preside at meetings
of the stockholders and of the Board of Directors.
5.7 Vice Chairman of the Board. The Vice Chairman of the Board
shall have the powers and duties customarily and usually associated with the
office of the Vice Chairman of the Board.
5.8 Chief Executive Officer. The Chief Executive Officer shall
have, subject to the supervision, direction and control of the Board of
Directors, the general powers and duties of supervision, direction and
management of the affairs and business of the Corporation usually vested in the
chief executive officer of a corporation, including, without limitation, all
powers necessary to direct and control the organizational and reporting
relationships within the Corporation. If at any time the office of the Chairman
of the Board and the Vice Chairman of the Board shall not be filled, or in the
event of the temporary absence or disability of the Chairman of the Board and
the Vice Chairman of the Board, the Chief Executive Officer shall have the
powers and duties of the Chairman of the Board.
5.9 The President. The President shall serve as chief
operating officer and shall have such other powers and perform such other duties
as may be delegated to him or her from time to time by the Board of Directors or
the Chief Executive Officer.
5.10 The Vice Presidents. Each Vice President shall have such
powers and perform such duties as may from time to time be assigned to him or
her by the Board of Directors, the Chief Executive Officer, or the President.
5.11 The Secretary and the Assistant Secretary. (a) The
Secretary shall attend meetings of the Board of Directors and meetings of the
stockholders and record all votes and minutes of all such proceedings in a book
kept for such purpose. He or she shall have all such further powers and duties
as generally are incident to the position of Secretary or as may from time to
time be assigned to him or her by the Board of Directors, the Chief Executive
Officer, or the President.
(b) Each Assistant Secretary shall have such powers
and perform such duties as may from time to time be assigned to him or her by
the Board of Directors, the Chief Executive Officer, the President, or the
Secretary. In case of the absence or disability of the Secretary, the Assistant
Secretary designated by the Chief Executive Officer (or, in the absence of such
designation, by the Secretary) shall perform the duties and exercise the powers
of the Secretary.
5.12 The Treasurer and the Assistant Treasurer. (a) The
Treasurer shall have custody of the Corporation's funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit or cause to be deposited moneys or other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The Treasurer shall
also maintain adequate records of all assets, liabilities, and transactions of
the Corporation and shall see that adequate audits thereof are currently and
regularly made. The Treasurer shall have such other powers and perform such
other duties that generally are incident to the position of Treasurer or as may
from time to time be assigned to him or her by the Board of Directors, the Chief
Executive Officer, or the President.
(b) Each Assistant Treasurer shall have such powers
and perform such duties as may from time to time be assigned to him or her by
the Board of Directors, the Chief Executive Officer, the President, or the
Treasurer. In case of the absence or disability of the Treasurer, the Assistant
Treasurer designated by the Chief Executive Officer (or, in the absence of such
designation, by the Treasurer) shall perform the duties and exercise the powers
of the Treasurer.
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5.13 Controller. The Controller shall be responsible for
maintaining the accounting records and statements, and shall properly account
for all monies and obligations due the Corporation and all properties, assets,
and liabilities of the Corporation. The Controller shall render to the Chairman
of the Board or the President such periodic reports covering the results of
operations of the Corporation as may be required by either of them or by law.
6. STOCK
6.1 Certificates. Certificates for shares of stock of the
Corporation shall be issued under the seal of the Corporation, or a facsimile
thereof, and shall be numbered and shall be entered in the books of the
Corporation as they are issued. Each certificate shall bear a serial number,
shall exhibit the holder's name and the number of shares evidenced thereby, and
shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the
Chief Executive Officer or the President or any Vice President, and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer.
Any or all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if such person or entity
were such officer, transfer agent, or registrar at the date of issue.
6.2 Transfers. Transfers of stock of the Corporation shall be
made on the books of the Corporation only upon surrender to the Corporation of a
certificate (if any) for the shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, provided such
succession, assignment, or transfer is not prohibited by the Certificate of
Incorporation, these Bylaws, applicable law or contract. Thereupon, the
Corporation shall issue a new certificate (if requested) to the person entitled
thereto, cancel the old certificate (if any), and record the transaction upon
its books.
6.3 Lost, Stolen, or Destroyed Certificates. Any person
claiming a certificate of stock to be lost, stolen, or destroyed shall make an
affidavit or an affirmation of that fact, and shall give the Corporation a bond
of indemnity in satisfactory form and with one or more satisfactory sureties,
whereupon a new certificate (if requested) may be issued of the same tenor and
for the same number of shares as the one alleged to be lost, stolen, or
destroyed.
6.4 Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares as the person entitled to exercise the rights of a stockholder
and shall not be bound to recognize any equitable or other claim to or interest
in any such shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise expressly provided by the
GCLD.
6.5 Additional Powers of the Board. (a) In addition to those
powers set forth in Section 4.1, the Board of Directors shall have power and
authority to make all such rules and regulations as it shall deem expedient
concerning the issue, transfer, and registration of certificates for shares of
stock of the Corporation, including the use of uncertificated shares of stock
subject to the provisions of the GCLD.
(b) The Board of Directors may appoint and remove
transfer agents and registrars of transfers, and may require all stock
certificates to bear the signature of any such transfer agent and/or any such
registrar of transfers.
7. INDEMNIFICATION
7.1 Each person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or the person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation, as a
director, officer, employee, or agent of another corporation or of a
partnership, joint venture, trust, or other enterprise, including service with
respect to employee benefit plans, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the GCLD, as the same exists or
may hereafter be
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amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights than
said law permitted the Corporation to provide prior to such amendment), against
all expenses, liability, and loss (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties, and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee, or agent and shall inure to the benefit of his or her heirs,
executors, and administrators; provided, however, that, except as provided in
this Article 7, the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if authorized by the Board of Directors of the Corporation. Any
indemnification under this Article 7 (unless ordered by a court) shall be made
by the Corporation only as authorized in the specific case upon a determination
that indemnification of the director, officer, employee, or agent is proper in
the circumstances because he or she has met the applicable standard set forth in
the GCLD. Such a determination shall be made (a) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even though
less than a quorum; (b) by a committee of such directors designated by majority
vote of such directors, even though less than a quorum; (c) by independent legal
counsel (compensated by the Corporation) in a written opinion; (d) by the
stockholders; or (e) in any other manner permitted by the GCLD. In addition to
the right to indemnification conferred in this Article 7, each of the above
persons shall have the right to be paid by the Corporation the expenses incurred
in defending any such proceeding in advance of its final disposition; provided,
however, that, if the GCLD requires, the payment of such expenses incurred by a
present director or officer in his or her capacity as a director or officer of
the corporation (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the Corporation
of an undertaking, by or on behalf of such present director or officer, to repay
all amounts so advanced if it shall ultimately be determined that such director
or officer is not entitled to be indemnified under this Article 7 or otherwise.
The Corporation may, by any manner permitted by the GCLD, provide
indemnification and advancement of expenses to employees and agents of the
Corporation with the same scope and effect as the foregoing indemnification of
directors and officers. The right to indemnification and to an advancement of
expenses conferred in this Article 7 shall be a contract right.
7.2 If a claim under Section 7.1 of this Article 7 is not paid
in full by the Corporation within 30 days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim (including attorneys' fees). It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the GCLD for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, a committee thereof, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the GCLD, nor an actual determination by the Corporation (including
its Board of Directors, a committee thereof, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct. In any suit brought by the claimant
to enforce a right to indemnification or to an advancement of expenses
hereunder, or brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the claimant
is not entitled to be indemnified, or to such advancement of expenses, under
this Article 7 or otherwise shall be on the Corporation.
7.3 The rights to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Article 7, shall not be exclusive of any other right that any person may
have or hereafter acquire under any statute, provision of the certificate of
incorporation of the Corporation, this bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
7.4 The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee, or agent of the Corporation
or another corporation, partnership, joint venture, trust,
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or other enterprise against any such expense, liability, or loss, whether or not
the Corporation would have the power to indemnify such person against such
expense, liability, or loss under the GCLD.
7.5 The Corporation may enter into an indemnity agreement with
any director, officer, employee, or agent of the Corporation, or of another
corporation, partnership, joint venture, trust, or other enterprise, upon terms
and conditions that the Board of Directors deems appropriate, as long as the
provisions of the agreement are not impermissible under applicable law.
7.6 Any amendment or repeal of this Article 7 shall not be
retroactive in effect.
7.7 In case any provision in this Article 7 shall be
determined at any time to be unenforceable in any respect, the other provisions
shall not in any way be affected or impaired thereby, and the affected provision
shall be given the fullest possible enforcement in the circumstances, it being
the intention of the Corporation to afford indemnification and advancement of
expenses to the persons indemnified hereby to the fullest extent permitted by
law.
7.8 The Corporation may, by action of the Board of Directors,
authorize one or more officers to grant rights to indemnification and
advancement of expenses to former directors and officers or to other employees
or agents of the Corporation on such terms and conditions as such officer or
officers deem appropriate under the circumstances.
8. MISCELLANEOUS
8.1 Place and Inspection of Books. (a) The books of the
Corporation other than such books as are required by law to be kept within the
State of Delaware shall be kept in such place or places either within or without
the State of Delaware as the Board of Directors may from time to time determine.
(b) At least ten days before each meeting of
stockholders, the officer in charge of the stock ledger of the Corporation shall
prepare a complete list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
(c) The Board of Directors shall determine from time
to time whether and, if allowed, when and under what conditions and regulations
the accounts and books of the Corporation (except such as may be by law
specifically open to inspection or as otherwise provided by these Bylaws) or any
of them shall be open to the inspection of the stockholders and the
stockholders' rights in respect thereof.
8.2 Voting Shares in Other Corporations. The Chief Executive
Officer, the President, or any other officer of the Corporation designated by
the Board of Directors may vote any and all shares held by the Corporation in
any other corporation.
8.3 Fiscal Year. The fiscal year of the Corporation shall be
such fiscal year as the Board of Directors from time to time by resolution shall
determine.
8.4 Gender/Number. As used in these Bylaws, the masculine,
feminine, or neuter gender, and the singular or plural number, shall each
include the others whenever the context so indicates.
8.5 Paragraph Titles. The titles of the paragraphs have been
inserted as a matter of reference only and shall not control or affect the
meaning or construction of any of the terms and provisions hereof.
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8.6 Amendment. These Bylaws may be altered, amended, or
repealed by (a) the affirmative vote of 80% or more of the aggregate number of
votes that the holders of the then outstanding shares of common stock and
preferred stock are entitled to cast on the amendment, or (b) by resolution
adopted by the affirmative vote of not less than a majority of the Directors in
office, at any annual or regular meeting of the Board of Directors or at any
special meeting of the Board of Directors if notice of the proposed alteration,
amendment, or repeal be contained in written notice of such special meeting.
Notwithstanding the foregoing, the amendment of any provision of these Bylaws
that requires an affirmative vote in excess of a majority of the Directors in
office shall require the affirmative vote of at least the number of directors
the affirmative vote of whom is required by such provision.
8.7 Certificate of Incorporation. Notwithstanding anything to
the contrary contained herein, if any provision contained in these Bylaws is
inconsistent with or conflicts with a provision of the Certificate of
Incorporation, such provision of these Bylaws shall be superseded by the
inconsistent provision in the Certificate of Incorporation to the extent
necessary to give effect to such provision in the Certificate of Incorporation.
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Conectiv Services, Inc
B.13.3
Amended and Restated Bylaws
Adopted December 31, 1999
<PAGE> 2
AMENDED AND RESTATED
B Y L A W S
OF
CONECTIV SERVICES, INC.
1. OFFICES.
1.1 Offices. In addition to its registered office in the State
of Delaware, the Corporation shall have a corporate office in Wilmington,
Delaware, and such other offices, either within or without the State of
Delaware, at such locations as the Board of Directors may from time to time
determine or the business of the Corporation may require.
2. SEAL.
2.1 Seal. The Corporation shall have a seal, which shall have
inscribed thereon its name and year of incorporation and the words, "Corporate
Seal Delaware."
3. MEETINGS OF STOCKHOLDERS.
3.1 Annual Meetings. The annual meeting of stockholders of the
Corporation shall be held on such date, at such time and at such place within or
without the State of Delaware as shall be determined by the Board of Directors
from time to time.
3.2 Special Meetings. Special meetings of the stockholders of
the Corporation shall be held on such date, at such time and at such place
within or without the State of Delaware as may be designated by the Chairman of
the Board or by the Board of Directors.
3.3 Notice of Meetings. (a) Notices of meetings of
stockholders shall be in writing and shall state the place, date, and hour of
the meeting, and, in the case of a special meeting, the purpose or purposes for
which a meeting is called. No business other than that specified in the notice
thereof shall be transacted at any special meeting.
(b) Such notice shall either be delivered personally,
mailed, postage prepaid, or delivered by any other lawful means to each
stockholder entitled to vote at such meeting not less than 10 nor more than 60
days before the date of the meeting. If mailed, the notice shall be directed to
the stockholder at his or her address as it appears on the records of the
Corporation. Delivery of any such notice to any officer of a corporation or
association or to any member of a partnership shall constitute delivery of such
notice to such corporation, association, or partnership.
(c) Notice of any meeting of stockholders need not be
given to any stockholder if waived by such stockholder in writing, whether
before or after such meeting is held, or if such stockholder shall sign the
minutes or attend the meeting, except that if such stockholder attends a meeting
for the express purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened, such stockholder shall not be deemed to have waived notice of such
meeting.
3.4 Adjourned Meetings. When a meeting is adjourned to another
time or place, unless otherwise provided by these Bylaws, notice need not be
given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. At the adjourned meeting the
stockholders may transact any business that might have been transacted at the
original meeting. If an adjournment
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is for more than 30 days, or if after an adjournment, a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder entitled to vote at the meeting.
3.5 Quorum and Adjournment. Except as otherwise provided by
law, by the Certificate of Incorporation of the Corporation, or by these Bylaws,
the presence, in person or by proxy, of the holders of a majority of the
aggregate voting power of the stock issued and outstanding, entitled to vote
thereat, shall constitute a quorum for the transaction of business at all
meetings of stockholders. If such majority shall not be present or represented
at any meeting of stockholders, the stockholders present, although less than a
quorum, shall have the power to adjourn the meeting.
3.6 Vote Required. Except as otherwise provided by law or by
the Certificate of Incorporation:
(a) Directors shall be elected by a plurality of the
votes present in person or represented by proxy at a meeting of stockholders and
entitled to vote in the election of directors, and
(b) whenever any corporate action other than the
election of Directors is to be taken, it shall be authorized by a majority in
voting power of the shares present in person or by proxy at a meeting of
stockholders and entitled to vote on the subject matter.
3.7 Manner of Voting. At each meeting of stockholders, each
stockholder having the right to vote shall be entitled to vote in person or by
proxy. Proxies need not be filed with the Secretary of the Corporation until the
meeting is called to order, but shall be filed before being voted. Each
stockholder shall be entitled to vote each share of stock having voting power
registered in his or her name on the books of the Corporation on the record date
fixed for determination of stockholders entitled to vote at such meeting.
3.8 Stockholder Action Without a Meeting. Except as otherwise
provided by law or by the Certificate of Incorporation, any action required to
be taken at any meeting of stockholders of the corporation, or any action that
may be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice, and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing and who,
if the action had been taken at a meeting, would have been entitled to notice of
the meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of the holders to take the action were
delivered to the Corporation.
3.9 Proxies. (a) At any meeting of stockholders, any
stockholder may be represented and vote by proxy or proxies. In the event that
any form of proxy shall designate two or more persons to act as proxies, a
majority of such persons present at the meeting or, if only one shall be
present, then that one shall have and may exercise all of the powers conferred
by the form of proxy upon all of the persons so designated unless the form of
proxy shall otherwise provide.
(b) The Board of Directors may, in advance of any
annual or special meeting of the stockholders, prescribe additional regulations
concerning the validation of the same, which are intended to be voted at any
such meeting.
3.10 Presiding Officer and Secretary. The Chairman of the
Board shall act as chairman of all meetings of the stockholders. In the absence
of the Chairman of the Board, the Vice Chairman of the Board or, in his or her
absence, any Director designated by the Chairman of the Board or the Board of
Directors shall act as chairman of the meeting.
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The Secretary of the Corporation shall act as secretary of all
meetings of the stockholders, but, in the absence of the Secretary, the
Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the stockholders, but in the
absence of a designated Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
3.11 Procedure. At each meeting of stockholders, the chairman
of the meeting shall fix and announce the date and time of the opening and the
closing of the polls for each matter upon which the stockholders will vote at
the meeting and shall determine the order of business and all other matters of
procedure. Except to the extent inconsistent with any such rules and regulations
as adopted by the Board of Directors, the chairman of the meeting may establish
rules, which need not be in writing, to maintain order and safety and for the
conduct of the meeting. Without limiting the foregoing, he or she may:
(a) restrict attendance at any time to bona fide
stockholders of record and their proxies and other persons in attendance at the
invitation of the chairman;
(b) restrict dissemination of solicitation materials
and use of audio or visual recording devices at the meeting;
(c) adjourn the meeting without a vote of the
stockholders, whether or not there is a quorum present; and
(d) make rules governing speeches and debate,
including time limits and access to microphones.
The chairman of the meeting shall be entitled to act in his or her absolute
discretion and his or her rulings shall not be subject to appeal.
4. DIRECTORS.
4.1 Powers and Number. The Board of Directors shall exercise
all of the powers of the Corporation except such as are by law, or by the
Certificate of Incorporation of this Corporation or by these Bylaws conferred
upon or reserved to the stockholders of any class or classes. The number of
directors that shall constitute the whole Board of Directors shall be no fewer
than three (3) and no greater than nine (9), the exact number of directors to be
determined from time to time by resolution adopted by the Board of Directors or
the stockholders, and until otherwise determined by the Board of Directors or
the stockholders, the number of directors that shall constitute the whole Board
of Directors shall be three (3).
4.2 Resignations. Any Director may resign at any time by
giving written notice to the Board of Directors or the Secretary. Such
resignation shall take effect at the date of receipt of such notice or at any
later time specified therein. Acceptance of such resignation shall not be
necessary to make it effective.
4.3 Presiding Officer and Secretary. The Chairman of the Board
shall act as chairman of all meetings of the Board of Directors. In the absence
of the Chairman of the Board, the Vice Chairman of the Board, or in his absence,
the Chief Executive Officer or other person designated by the Board of Directors
shall act as chairman of the meeting.
The Secretary of the Corporation shall act as
secretary of all meetings of the Board of Directors, but, in the absence of the
Secretary, the Assistant Secretary designated in accordance with Section 5.11(b)
of these Bylaws shall act as secretary of all meetings of the Board of
Directors, but in the absence of a designated Assistant Secretary, the chairman
of the meeting may appoint any person to act as secretary of the meeting.
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4.4 Annual Meetings. The Board of Directors shall meet each
year immediately following the annual meeting of stockholders, at the place
where such meeting of stockholders has been held, or at such other place as
shall be fixed by the person presiding over the meeting of the stockholders, for
the purpose of election of officers and consideration of such other business as
the Board of Directors considers relevant to the management of the Corporation.
In the event that in any year Directors are elected by written consent in lieu
of an annual meeting of stockholders, the Board of Directors shall meet in such
year as soon as practicable after receipt of such written consent by the
Corporation at such time and place as shall be fixed by the Chairman of the
Board, for the purpose of election of officers and consideration of such other
business as the Board of Directors considers relevant to the management of the
Corporation.
4.5 Regular Meetings. Regular meetings of the Board of
Directors shall be held on such dates and at such times and places, within or
without the state of Delaware, as shall from time to time be determined by the
Board of Directors. In the absence of any such determination, such meetings
shall be held at such times and places, within or without the State of Delaware,
as shall be designated by the Chairman of the Board on not less than twelve
hours notice to each Director, given verbally, in writing or electronically,
whether personally, by telephone (including by message or recording device), by
facsimile transmission, by telegram, by telex or by electronic mail or by other
electronic means, or on not less than three (3) calendar days' notice to each
Director given by mail. Notice given by any of the foregoing means shall be
sufficient to constitute notice of a meeting without the necessity of further
notice.
4.6 Special Meetings. Special meetings of the Board of
Directors shall be held at the call of the Chairman of the Board at such times
and places, within or without the State of Delaware, as he or she shall
designate, on not less than twelve hours notice to each Director, given
verbally, in writing or electronically, whether personally, by telephone
(including by message or recording device), by facsimile transmission, by
telegram, by telex, by electronic mail or by other electronic means or on not
less than three (3) calendar days' notice to each Director given by mail. Notice
given by any of the foregoing means shall be sufficient to constitute notice of
a meeting without the necessity of further notice. Special meetings shall be
called by the Secretary on like notice at the written request of a majority of
the Directors then in office.
4.7 Quorum and Powers of a Majority. At all meetings of the
Board of Directors and of each committee thereof, a majority of the members
shall be necessary and sufficient to constitute a quorum for the transaction of
business, and the act of a majority of the members present at any meeting at
which a quorum is present shall be the act of the Board of Directors or such
committee, unless by express provision of law, of the Certificate of
Incorporation, or of these Bylaws, a different vote is required, in which case
such express provision shall govern and control. In the absence of a quorum, a
majority of the members present at any meeting may, without notice other than
announcement at the meeting, adjourn such meeting from time to time until a
quorum is present.
4.8 Waiver of Notice. Notice of any meeting of the Board of
Directors, or any committee thereof, need not be given to any member if waived
by him or her in writing, whether before or after such meeting is held, or if he
or she shall sign the minutes or attend the meeting, except that if such
Director attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened, then such Director shall not be deemed to have
waived notice of such meeting.
4.9 Manner of Acting. (a) Members of the Board of Directors,
or any committee thereof, may participate in any meeting of the Board of
Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating therein can
hear each other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
(b) Any action required or permitted to be taken at
any meeting of the Board of Directors or any committee thereof may be taken
without a meeting if all members of the Board of Directors or
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such committee, as the case may be, consent thereto in writing, and the writings
are filed with the minutes of proceedings of the Board of Directors or such
committee.
4.10 Compensation. (a) The Board of Directors, by a resolution
or resolutions, may fix, and from time to time change, the compensation of
Directors.
(b) Each Director shall be entitled to reimbursement
from the Corporation for his or her reasonable expenses incurred with respect to
duties as a member of the Board of Directors or any committee thereof.
(c) Nothing contained in these Bylaws shall be
construed to preclude any Director from serving the Corporation in any other
capacity and from receiving compensation from the Corporation for service
rendered to it in such other capacity.
4.11 Committees. The Board of Directors (or any committee
thereof having the power and authority to do so) may designate one or more
committees, each committee to consist of one or more Directors, which to the
extent provided in said resolution or resolutions shall have and may exercise
the powers and authority of the Board of Directors in the management of the
business and affairs of the corporation; provided, however, that no such
committee shall have the power or authority in reference to the following
matters: (i) approving or adopting, or recommending to the stockholders, any
action or matter expressly required by the General Corporation Law of Delaware
(the "GCLD") to be submitted to stockholders for approval or (ii) adopting,
amending, or repealing any bylaw of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member of the committee. In the absence or
disqualification of a member of a committee, the member or members present at
any meeting of such committee and not disqualified from voting, whether or not
such member of members constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in place of such absent
or disqualified director.
4.12 Committee Procedure, Limitations of Committee Powers. (a)
Except as otherwise provided by these Bylaws, each committee shall adopt its own
rules governing the time, place and method of holding its meetings and the
conduct of its proceedings and shall meet as provided by such rules or by
resolution of the Board of Directors. Unless otherwise provided by these Bylaws
or any such rules or resolutions, notice of the time and place of each meeting
of a committee shall be given to each member of such committee as provided in
Section 4.6 of these Bylaws with respect to notices of special meetings of the
Board of Directors.
(b) Each committee shall keep regular minutes of its
proceedings and report the same to the Board of Directors when required.
(c) Any member of any committee may be removed from
such committee either with or without cause, at any time, by the Board of
Directors at any meeting thereof. Any vacancy in any committee shall be filled
by the Board of Directors in the manner prescribed by the Certificate of
Incorporation or these Bylaws for the original appointment of the members of
such committee.
5. OFFICERS.
5.1 Number. (a) The officers of the Corporation shall include
a Chief Executive Officer, a President, one or more Vice Presidents (including
one or more Executive Vice Presidents and one or more Senior Vice Presidents if
deemed appropriate by the Board of Directors), a Chief Financial Officer, a
Secretary, a Treasurer, and a Controller. The Board of Directors shall also
elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except
for the Chairman of the Board, the Vice Chairman of the Board, and the Chief
Executive Officer, none of the officers of the Corporation needs to be a
director of the Corporation. Any two or more offices may be held by the same
person to the extent permitted by the GCLD.
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(b) The Chief Executive Officer shall have the power
to appoint one or more employees of the Corporation as divisional or
departmental vice presidents and fix the duties of such appointees. However, no
such divisional or departmental vice president shall be considered as an officer
of the Corporation.
5.2 Election of Officers, Qualification and Term. The Chief
Executive Officer, the President, any Executive Vice President, any Senior Vice
President, the Chief Financial Officer, the Secretary and the Treasurer of the
Corporation shall be elected from time to time by the Board of Directors and,
except as may otherwise be expressly provided in a contract of employment duly
authorized by the Board of Directors, shall hold office at the pleasure of the
Board of Directors. The Board of Directors and the Chief Executive Officer also
may elect such other officers as the Board of Directors or the Chief Executive
Officer may from time to time deem appropriate or necessary.
5.3 Removal. Any officer elected by the Board of Directors may
be removed, either with or without cause, by the Board of Directors at any
meeting thereof, or to the extent delegated to the Chairman of the Board or the
Chief Executive Officer, by the Chairman of the Board or the Chief Executive
Officer.
5.4 Resignations. Any officer of the Corporation may resign at
any time by giving written notice to the Board of Directors or to the Chairman
of the Board or to the Chief Executive Officer. Such resignation shall take
effect at the date of the receipt of such notice or at any later time specified
therein and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
5.5 Compensation. The compensation of all officers of the
Corporation shall be fixed by or in the manner provided by the Board of
Directors from time to time, and no officer shall be prevented from receiving
such compensation by reason of the fact that he or she is also a Director of the
Corporation.
5.6 The Chairman of the Board. The Chairman of the Board shall
have the powers and duties customarily and usually associated with the office of
the Chairman of the Board and shall have such other powers and perform such
other duties as may be delegated to him or her by the Board of Directors. The
Chairman of the Board shall preside at meetings of the stockholders and of the
Board of Directors.
5.7 Vice Chairman of the Board. The Vice Chairman of the
Board, if any, shall have the powers and duties customarily and usually
associated with the office of the Vice Chairman of the Board and shall have such
other powers and perform such other duties as may be delegated to him or her by
the Board of Directors.
5.8 Chief Executive Officer. The Chief Executive Officer shall
have, subject to the supervision, direction and control of the Board of
Directors, the general powers and duties of supervision, direction and
management of the affairs and business of the Corporation usually vested in the
chief executive officer of a corporation, including, without limitation, all
powers necessary to direct and control the organizational and reporting
relationships within the Corporation. In addition, the Chief Executive Officer
shall have such other powers and perform such other duties as may be delegated
to him or her by the Board of Directors. If at any time the office of the
Chairman of the Board and the Vice Chairman of the Board shall not be filled, or
in the event of the temporary absence or disability of the Chairman of the Board
and the Vice Chairman of the Board, the Chief Executive Officer shall have the
powers and duties of the Chairman of the Board.
5.9 The President. The President shall serve as chief
operating officer, shall have the powers and duties customarily and usually
associated with the office of the President and shall have such other powers and
perform such other duties as may be delegated to him or her from time to time by
the Board of Directors or the Chief Executive Officer.
5.10 The Vice Presidents. Each Vice President shall have such
powers and duties customarily and usually associated with the office of Vice
President and shall have such other powers and perform
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such other duties as may from time to time be assigned to him or her by the
Board of Directors, the Chief Executive Officer, or the President.
5.11 The Chief Financial Officer. The Chief Financial Officer
shall be responsible for the financial affairs of the Corporation, including
overseeing the duties performed by the Treasurer of the Corporation. In
addition, the Chief Financial Officer shall have such powers and duties
customarily and usually associated with the office of the Chief Financial
Officer and shall have such other powers and perform such other duties as may be
delegated to him or her from time to time by the Board of Directors or the Chief
Executive Officer.
5.12 The Secretary and the Assistant Secretary. (a) The
Secretary shall attend meetings of the Board of Directors and meetings of the
stockholders and record all votes and minutes of all such proceedings in a book
kept for such purpose. In addition, the Secretary shall have such powers and
duties customarily and usually associated with the office of Secretary and shall
have such other powers and perform such other duties as may be delegated to him
or her by the Board of Directors, the Chief Executive Officer, or the President.
(b) Each Assistant Secretary shall have such powers
and perform such duties customarily and usually associated with the office of
Assistant Secretary and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Secretary. In case
of the absence or disability of the Secretary, the Assistant Secretary
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Secretary) shall perform the duties and exercise the powers
of the Secretary.
5.13 The Treasurer and the Assistant Treasurer. (a) The
Treasurer shall have custody of the Corporation's funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit or cause to be deposited moneys or other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The Treasurer shall
also maintain adequate records of all assets, liabilities, and transactions of
the Corporation and shall see that adequate audits thereof are currently and
regularly made. In addition, the Treasurer shall have such powers and duties
customarily and usually associated with the office of Treasurer and shall have
such other powers and perform such other duties as may be delegated to him or
her from time to time by the Board of Directors, the Chief Executive Officer,
the President or the Chief Financial Officer.
(b) Each Assistant Treasurer shall have such powers
and perform such duties customarily and usually associated with the office of
Assistant Treasurer and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Treasurer. In case
of the absence or disability of the Treasurer, the Assistant Treasurer
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Treasurer) shall perform the duties and exercise the powers
of the Treasurer.
5.14 Controller. The Controller shall be responsible for
maintaining the accounting records and statements, and shall properly account
for all monies and obligations due the Corporation and all properties, assets,
and liabilities of the Corporation. The Controller shall render to the Chairman
of the Board, the President or the Chief Financial Officer such periodic reports
covering the results of operations of the Corporation as may be required by
either of them or by law. In addition, the Controller shall have such powers and
duties customarily and usually associated with the office of Controller and
shall have such other powers and perform such other duties as may be delegated
to him or her from time to time by the Board of Directors, the Chief Executive
Officer, the President or the Chief Financial Officer.
6. STOCK
6.1 Certificates. Certificates for shares of stock of the
Corporation shall be issued under the seal of the Corporation, or a facsimile
thereof, and shall be numbered and shall be entered in the books of the
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Corporation as they are issued. Each certificate shall bear a serial number,
shall exhibit the holder's name and the number of shares evidenced thereby, and
shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the
Chief Executive Officer or the President or any Vice President, and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer.
Any or all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if such person or entity
were such officer, transfer agent, or registrar at the date of issue.
6.2 Transfers. Transfers of stock of the Corporation shall be
made on the books of the Corporation only upon surrender to the Corporation of a
certificate (if any) for the shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, provided such
succession, assignment, or transfer is not prohibited by the Certificate of
Incorporation, these Bylaws, applicable law or contract. Thereupon, the
Corporation shall issue a new certificate (if requested) to the person entitled
thereto, cancel the old certificate (if any), and record the transaction upon
its books.
6.3 Lost, Stolen, or Destroyed Certificates. Any person
claiming a certificate of stock to be lost, stolen, or destroyed shall make an
affidavit or an affirmation of that fact, and shall give the Corporation a bond
of indemnity in satisfactory form and with one or more satisfactory sureties,
whereupon a new certificate (if requested) may be issued of the same tenor and
for the same number of shares as the one alleged to be lost, stolen, or
destroyed.
6.4 Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares as the person entitled to exercise the rights of a stockholder
and shall not be bound to recognize any equitable or other claim to or interest
in any such shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise expressly provided by the
GCLD.
6.5 Additional Powers of the Board. (a) In addition to those
powers set forth in Section 4.1, the Board of Directors shall have power and
authority to make all such rules and regulations as it shall deem expedient
concerning the issue, transfer, and registration of certificates for shares of
stock of the Corporation, including the use of uncertificated shares of stock
subject to the provisions of the GCLD.
(b) The Board of Directors may appoint and remove
transfer agents and registrars of transfers, and may require all stock
certificates to bear the signature of any such transfer agent and/or any such
registrar of transfers.
7. INDEMNIFICATION
7.1 Each person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or the person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation, as a
director, officer, employee, or agent of another corporation or of a
partnership, joint venture, trust, or other enterprise, including service with
respect to employee benefit plans, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the GCLD, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expenses, liability, and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of his or her heirs, executors, and administrators; provided,
however, that, except as provided in this Article 7, the Corporation shall
indemnify any
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such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if authorized by the Board of Directors
of the Corporation. Any indemnification under this Article 7 (unless ordered by
a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee, or agent is proper in the circumstances because he or she has met the
applicable standard set forth in the GCLD. Such a determination shall be made
(a) by a majority vote of the directors who are not parties to such action, suit
or proceeding, even though less than a quorum; (b) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum; (c) by independent legal counsel (compensated by the Corporation) in a
written opinion; (d) by the stockholders; or (e) in any other manner permitted
by the GCLD. In addition to the right to indemnification conferred in this
Article 7, each of the above persons shall have the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that, if the GCLD requires, the
payment of such expenses incurred by a present director or officer in his or her
capacity as a director or officer of the corporation (and not in any other
capacity in which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such present
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Article 7 or otherwise. The Corporation may, by any manner permitted by the
GCLD, provide indemnification and advancement of expenses to employees and
agents of the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers. The right to indemnification and to
an advancement of expenses conferred in this Article 7 shall be a contract
right.
7.2 If a claim under Section 7.1 of this Article 7 is not paid
in full by the Corporation within 30 days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim (including attorneys' fees). It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the GCLD for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, a committee thereof, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the GCLD, nor an actual determination by the Corporation (including
its Board of Directors, a committee thereof, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct. In any suit brought by the claimant
to enforce a right to indemnification or to an advancement of expenses
hereunder, or brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the claimant
is not entitled to be indemnified, or to such advancement of expenses, under
this Article 7 or otherwise shall be on the Corporation.
7.3 The rights to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Article 7, shall not be exclusive of any other right that any person may
have or hereafter acquire under any statute, provision of the certificate of
incorporation of the Corporation, this bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
7.4 The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee, or agent of the Corporation
or another corporation, partnership, joint venture, trust, or other enterprise
against any such expense, liability, or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability,
or loss under the GCLD.
7.5 The Corporation may enter into an indemnity agreement with
any director, officer, employee, or agent of the Corporation, or of another
corporation, partnership, joint venture, trust, or other
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enterprise, upon terms and conditions that the Board of Directors deems
appropriate, as long as the provisions of the agreement are not impermissible
under applicable law.
7.6 Any amendment or repeal of this Article 7 shall not be
retroactive in effect.
7.7 In case any provision in this Article 7 shall be
determined at any time to be unenforceable in any respect, the other provisions
shall not in any way be affected or impaired thereby, and the affected provision
shall be given the fullest possible enforcement in the circumstances, it being
the intention of the Corporation to afford indemnification and advancement of
expenses to the persons indemnified hereby to the fullest extent permitted by
law.
7.8 The Corporation may, by action of the Board of Directors,
authorize one or more officers to grant rights to indemnification and
advancement of expenses to former directors and officers or to other employees
or agents of the Corporation on such terms and conditions as such officer or
officers deem appropriate under the circumstances.
8. MISCELLANEOUS
8.1 Place and Inspection of Books. (a) The books of the
Corporation other than such books as are required by law to be kept within the
State of Delaware shall be kept in such place or places either within or without
the State of Delaware as the Board of Directors may from time to time determine.
(b) At least ten days before each meeting of
stockholders, the officer in charge of the stock ledger of the Corporation shall
prepare a complete list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
(c) The Board of Directors shall determine from time
to time whether and, if allowed, when and under what conditions and regulations
the accounts and books of the Corporation (except such as may be by law
specifically open to inspection or as otherwise provided by these Bylaws) or any
of them shall be open to the inspection of the stockholders and the
stockholders' rights in respect thereof.
8.2 Voting Shares in Other Corporations. The Chief Executive
Officer, the President, the Chief Financial Officer or any other officer of the
Corporation designated by the Board of Directors may vote any and all shares
held by the Corporation in any other corporation.
8.3 Fiscal Year. The fiscal year of the Corporation shall be
such fiscal year as the Board of Directors from time to time by resolution shall
determine.
8.4 Gender/Number. As used in these Bylaws, the masculine,
feminine, or neuter gender, and the singular or plural number, shall each
include the others whenever the context so indicates.
8.5 Paragraph Titles. The titles of the paragraphs have been
inserted as a matter of reference only and shall not control or affect the
meaning or construction of any of the terms and provisions hereof.
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8.6 Amendment. These Bylaws may be altered, amended, or
repealed by (a) the affirmative vote of 80% or more of the aggregate number of
votes that the holders of the then outstanding shares of common stock and
preferred stock are entitled to cast on the amendment, or (b) by resolution
adopted by the affirmative vote of not less than a majority of the Directors in
office, at any annual or regular meeting of the Board of Directors or at any
special meeting of the Board of Directors if notice of the proposed alteration,
amendment, or repeal be contained in written notice of such special meeting.
Notwithstanding the foregoing, the amendment of any provision of these Bylaws
that requires an affirmative vote in excess of a majority of the Directors in
office shall require the affirmative vote of at least the number of directors
the affirmative vote of whom is required by such provision.
8.7 Certificate of Incorporation. Notwithstanding anything to
the contrary contained herein, if any provision contained in these Bylaws is
inconsistent with or conflicts with a provision of the Certificate of
Incorporation, such provision of these Bylaws shall be superseded by the
inconsistent provision in the Certificate of Incorporation to the extent
necessary to give effect to such provision in the Certificate of Incorporation.
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Conectiv Energy Supply, Inc.
B.15.4
Amended and Restated Bylaws
Adopted December 31, 1999
<PAGE> 2
AMENDED AND RESTATED
B Y L A W S
OF
CONECTIV ENERGY SUPPLY, INC.
1. OFFICES.
1.1 Offices. In addition to its registered office in the State
of Delaware, the Corporation shall have a corporate office in Wilmington,
Delaware, and such other offices, either within or without the State of
Delaware, at such locations as the Board of Directors may from time to time
determine or the business of the Corporation may require.
2. SEAL.
2.1 Seal. The Corporation shall have a seal, which shall have
inscribed thereon its name and year of incorporation and the words, "Corporate
Seal Delaware."
3. MEETINGS OF STOCKHOLDERS.
3.1 Annual Meetings. The annual meeting of stockholders of the
Corporation shall be held on such date, at such time and at such place within or
without the State of Delaware as shall be determined by the Board of Directors
from time to time.
3.2 Special Meetings. Special meetings of the stockholders of
the Corporation shall be held on such date, at such time and at such place
within or without the State of Delaware as may be designated by the Chairman of
the Board or by the Board of Directors.
3.3 Notice of Meetings. (a) Notices of meetings of
stockholders shall be in writing and shall state the place, date, and hour of
the meeting, and, in the case of a special meeting, the purpose or purposes for
which a meeting is called. No business other than that specified in the notice
thereof shall be transacted at any special meeting.
(b) Such notice shall either be delivered personally,
mailed, postage prepaid, or delivered by any other lawful means to each
stockholder entitled to vote at such meeting not less than 10 nor more than 60
days before the date of the meeting. If mailed, the notice shall be directed to
the stockholder at his or her address as it appears on the records of the
Corporation. Delivery of any such notice to any officer of a corporation or
association or to any member of a partnership shall constitute delivery of such
notice to such corporation, association, or partnership.
(c) Notice of any meeting of stockholders need not be
given to any stockholder if waived by such stockholder in writing, whether
before or after such meeting is held, or if such stockholder shall sign the
minutes or attend the meeting, except that if such stockholder attends a meeting
for the express purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened, such stockholder shall not be deemed to have waived notice of such
meeting.
3.4 Adjourned Meetings. When a meeting is adjourned to another
time or place, unless otherwise provided by these Bylaws, notice need not be
given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. At the adjourned meeting the
stockholders may transact any business that might have been transacted at the
original meeting. If an adjournment
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is for more than 30 days, or if after an adjournment, a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder entitled to vote at the meeting.
3.5 Quorum and Adjournment. Except as otherwise provided by
law, by the Certificate of Incorporation of the Corporation, or by these Bylaws,
the presence, in person or by proxy, of the holders of a majority of the
aggregate voting power of the stock issued and outstanding, entitled to vote
thereat, shall constitute a quorum for the transaction of business at all
meetings of stockholders. If such majority shall not be present or represented
at any meeting of stockholders, the stockholders present, although less than a
quorum, shall have the power to adjourn the meeting.
3.6 Vote Required. Except as otherwise provided by law or by
the Certificate of Incorporation:
(a) Directors shall be elected by a plurality of the
votes present in person or represented by proxy at a meeting of stockholders and
entitled to vote in the election of directors, and
(b) whenever any corporate action other than the
election of Directors is to be taken, it shall be authorized by a majority in
voting power of the shares present in person or by proxy at a meeting of
stockholders and entitled to vote on the subject matter.
3.7 Manner of Voting. At each meeting of stockholders, each
stockholder having the right to vote shall be entitled to vote in person or by
proxy. Proxies need not be filed with the Secretary of the Corporation until the
meeting is called to order, but shall be filed before being voted. Each
stockholder shall be entitled to vote each share of stock having voting power
registered in his or her name on the books of the Corporation on the record date
fixed for determination of stockholders entitled to vote at such meeting.
3.8 Stockholder Action Without a Meeting. Except as otherwise
provided by law or by the Certificate of Incorporation, any action required to
be taken at any meeting of stockholders of the corporation, or any action that
may be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice, and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing and who,
if the action had been taken at a meeting, would have been entitled to notice of
the meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of the holders to take the action were
delivered to the Corporation.
3.9 Proxies. (a) At any meeting of stockholders, any
stockholder may be represented and vote by proxy or proxies. In the event that
any form of proxy shall designate two or more persons to act as proxies, a
majority of such persons present at the meeting or, if only one shall be
present, then that one shall have and may exercise all of the powers conferred
by the form of proxy upon all of the persons so designated unless the form of
proxy shall otherwise provide.
(b) The Board of Directors may, in advance of any
annual or special meeting of the stockholders, prescribe additional regulations
concerning the validation of the same, which are intended to be voted at any
such meeting.
3.10 Presiding Officer and Secretary. The Chairman of the
Board shall act as chairman of all meetings of the stockholders. In the absence
of the Chairman of the Board, the Vice Chairman of the Board or, in his or her
absence, any Director designated by the Chairman of the Board or the Board of
Directors shall act as chairman of the meeting.
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The Secretary of the Corporation shall act as secretary of all
meetings of the stockholders, but, in the absence of the Secretary, the
Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the stockholders, but in the
absence of a designated Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
3.11 Procedure. At each meeting of stockholders, the chairman
of the meeting shall fix and announce the date and time of the opening and the
closing of the polls for each matter upon which the stockholders will vote at
the meeting and shall determine the order of business and all other matters of
procedure. Except to the extent inconsistent with any such rules and regulations
as adopted by the Board of Directors, the chairman of the meeting may establish
rules, which need not be in writing, to maintain order and safety and for the
conduct of the meeting. Without limiting the foregoing, he or she may:
(a) restrict attendance at any time to bona fide
stockholders of record and their proxies and other persons in attendance at the
invitation of the chairman;
(b) restrict dissemination of solicitation materials
and use of audio or visual recording devices at the meeting;
(c) adjourn the meeting without a vote of the
stockholders, whether or not there is a quorum present; and
(d) make rules governing speeches and debate,
including time limits and access to microphones.
The chairman of the meeting shall be entitled to act in his or her absolute
discretion and his or her rulings shall not be subject to appeal.
4. DIRECTORS.
4.1 Powers and Number. The Board of Directors shall exercise
all of the powers of the Corporation except such as are by law, or by the
Certificate of Incorporation of this Corporation or by these Bylaws conferred
upon or reserved to the stockholders of any class or classes. The number of
directors that shall constitute the whole Board of Directors shall be no fewer
than three (3) and no greater than nine (9), the exact number of directors to be
determined from time to time by resolution adopted by the Board of Directors or
the stockholders, and until otherwise determined by the Board of Directors or
the stockholders, the number of directors that shall constitute the whole Board
of Directors shall be three (3).
4.2 Resignations. Any Director may resign at any time by
giving written notice to the Board of Directors or the Secretary. Such
resignation shall take effect at the date of receipt of such notice or at any
later time specified therein. Acceptance of such resignation shall not be
necessary to make it effective.
4.3 Presiding Officer and Secretary. The Chairman of the Board
shall act as chairman of all meetings of the Board of Directors. In the absence
of the Chairman of the Board, the Vice Chairman of the Board, or in his absence,
the Chief Executive Officer or other person designated by the Board of Directors
shall act as chairman of the meeting.
The Secretary of the Corporation shall act as
secretary of all meetings of the Board of Directors, but, in the absence of the
Secretary, the Assistant Secretary designated in accordance with Section 5.11(b)
of these Bylaws shall act as secretary of all meetings of the Board of
Directors, but in the absence of a designated Assistant Secretary, the chairman
of the meeting may appoint any person to act as secretary of the meeting.
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4.4 Annual Meetings. The Board of Directors shall meet each
year immediately following the annual meeting of stockholders, at the place
where such meeting of stockholders has been held, or at such other place as
shall be fixed by the person presiding over the meeting of the stockholders, for
the purpose of election of officers and consideration of such other business as
the Board of Directors considers relevant to the management of the Corporation.
In the event that in any year Directors are elected by written consent in lieu
of an annual meeting of stockholders, the Board of Directors shall meet in such
year as soon as practicable after receipt of such written consent by the
Corporation at such time and place as shall be fixed by the Chairman of the
Board, for the purpose of election of officers and consideration of such other
business as the Board of Directors considers relevant to the management of the
Corporation.
4.5 Regular Meetings. Regular meetings of the Board of
Directors shall be held on such dates and at such times and places, within or
without the state of Delaware, as shall from time to time be determined by the
Board of Directors. In the absence of any such determination, such meetings
shall be held at such times and places, within or without the State of Delaware,
as shall be designated by the Chairman of the Board on not less than twelve
hours notice to each Director, given verbally, in writing or electronically,
whether personally, by telephone (including by message or recording device), by
facsimile transmission, by telegram, by telex or by electronic mail or by other
electronic means, or on not less than three (3) calendar days' notice to each
Director given by mail. Notice given by any of the foregoing means shall be
sufficient to constitute notice of a meeting without the necessity of further
notice.
4.6 Special Meetings. Special meetings of the Board of
Directors shall be held at the call of the Chairman of the Board at such times
and places, within or without the State of Delaware, as he or she shall
designate, on not less than twelve hours notice to each Director, given
verbally, in writing or electronically, whether personally, by telephone
(including by message or recording device), by facsimile transmission, by
telegram, by telex, by electronic mail or by other electronic means or on not
less than three (3) calendar days' notice to each Director given by mail. Notice
given by any of the foregoing means shall be sufficient to constitute notice of
a meeting without the necessity of further notice. Special meetings shall be
called by the Secretary on like notice at the written request of a majority of
the Directors then in office.
4.7 Quorum and Powers of a Majority. At all meetings of the
Board of Directors and of each committee thereof, a majority of the members
shall be necessary and sufficient to constitute a quorum for the transaction of
business, and the act of a majority of the members present at any meeting at
which a quorum is present shall be the act of the Board of Directors or such
committee, unless by express provision of law, of the Certificate of
Incorporation, or of these Bylaws, a different vote is required, in which case
such express provision shall govern and control. In the absence of a quorum, a
majority of the members present at any meeting may, without notice other than
announcement at the meeting, adjourn such meeting from time to time until a
quorum is present.
4.8 Waiver of Notice. Notice of any meeting of the Board of
Directors, or any committee thereof, need not be given to any member if waived
by him or her in writing, whether before or after such meeting is held, or if he
or she shall sign the minutes or attend the meeting, except that if such
Director attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened, then such Director shall not be deemed to have
waived notice of such meeting.
4.9 Manner of Acting. (a) Members of the Board of Directors,
or any committee thereof, may participate in any meeting of the Board of
Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating therein can
hear each other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
(b) Any action required or permitted to be taken at
any meeting of the Board of Directors or any committee thereof may be taken
without a meeting if all members of the Board of Directors or
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such committee, as the case may be, consent thereto in writing, and the writings
are filed with the minutes of proceedings of the Board of Directors or such
committee.
4.10 Compensation. (a) The Board of Directors, by a resolution
or resolutions, may fix, and from time to time change, the compensation of
Directors.
(b) Each Director shall be entitled to reimbursement
from the Corporation for his or her reasonable expenses incurred with respect to
duties as a member of the Board of Directors or any committee thereof.
(c) Nothing contained in these Bylaws shall be
construed to preclude any Director from serving the Corporation in any other
capacity and from receiving compensation from the Corporation for service
rendered to it in such other capacity.
4.11 Committees. The Board of Directors (or any committee
thereof having the power and authority to do so) may designate one or more
committees, each committee to consist of one or more Directors, which to the
extent provided in said resolution or resolutions shall have and may exercise
the powers and authority of the Board of Directors in the management of the
business and affairs of the corporation; provided, however, that no such
committee shall have the power or authority in reference to the following
matters: (i) approving or adopting, or recommending to the stockholders, any
action or matter expressly required by the General Corporation Law of Delaware
(the "GCLD") to be submitted to stockholders for approval or (ii) adopting,
amending, or repealing any bylaw of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member of the committee. In the absence or
disqualification of a member of a committee, the member or members present at
any meeting of such committee and not disqualified from voting, whether or not
such member of members constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in place of such absent
or disqualified director.
4.12 Committee Procedure, Limitations of Committee Powers. (a)
Except as otherwise provided by these Bylaws, each committee shall adopt its own
rules governing the time, place and method of holding its meetings and the
conduct of its proceedings and shall meet as provided by such rules or by
resolution of the Board of Directors. Unless otherwise provided by these Bylaws
or any such rules or resolutions, notice of the time and place of each meeting
of a committee shall be given to each member of such committee as provided in
Section 4.6 of these Bylaws with respect to notices of special meetings of the
Board of Directors.
(b) Each committee shall keep regular minutes of its
proceedings and report the same to the Board of Directors when required.
(c) Any member of any committee may be removed from
such committee either with or without cause, at any time, by the Board of
Directors at any meeting thereof. Any vacancy in any committee shall be filled
by the Board of Directors in the manner prescribed by the Certificate of
Incorporation or these Bylaws for the original appointment of the members of
such committee.
5. OFFICERS.
5.1 Number. (a) The officers of the Corporation shall include
a Chief Executive Officer, a President, one or more Vice Presidents (including
one or more Executive Vice Presidents and one or more Senior Vice Presidents if
deemed appropriate by the Board of Directors), a Chief Financial Officer, a
Secretary, a Treasurer, and a Controller. The Board of Directors shall also
elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except
for the Chairman of the Board, the Vice Chairman of the Board, and the Chief
Executive Officer, none of the officers of the Corporation needs to be a
director of the Corporation. Any two or more offices may be held by the same
person to the extent permitted by the GCLD.
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(b) The Chief Executive Officer shall have the power
to appoint one or more employees of the Corporation as divisional or
departmental vice presidents and fix the duties of such appointees. However, no
such divisional or departmental vice president shall be considered as an officer
of the Corporation.
5.2 Election of Officers, Qualification and Term. The Chief
Executive Officer, the President, any Executive Vice President, any Senior Vice
President, the Chief Financial Officer, the Secretary and the Treasurer of the
Corporation shall be elected from time to time by the Board of Directors and,
except as may otherwise be expressly provided in a contract of employment duly
authorized by the Board of Directors, shall hold office at the pleasure of the
Board of Directors. The Board of Directors and the Chief Executive Officer also
may elect such other officers as the Board of Directors or the Chief Executive
Officer may from time to time deem appropriate or necessary.
5.3 Removal. Any officer elected by the Board of Directors may
be removed, either with or without cause, by the Board of Directors at any
meeting thereof, or to the extent delegated to the Chairman of the Board or the
Chief Executive Officer, by the Chairman of the Board or the Chief Executive
Officer.
5.4 Resignations. Any officer of the Corporation may resign at
any time by giving written notice to the Board of Directors or to the Chairman
of the Board or to the Chief Executive Officer. Such resignation shall take
effect at the date of the receipt of such notice or at any later time specified
therein and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
5.5 Compensation. The compensation of all officers of the
Corporation shall be fixed by or in the manner provided by the Board of
Directors from time to time, and no officer shall be prevented from receiving
such compensation by reason of the fact that he or she is also a Director of the
Corporation.
5.6 The Chairman of the Board. The Chairman of the Board shall
have the powers and duties customarily and usually associated with the office of
the Chairman of the Board and shall have such other powers and perform such
other duties as may be delegated to him or her by the Board of Directors. The
Chairman of the Board shall preside at meetings of the stockholders and of the
Board of Directors.
5.7 Vice Chairman of the Board. The Vice Chairman of the
Board, if any, shall have the powers and duties customarily and usually
associated with the office of the Vice Chairman of the Board and shall have such
other powers and perform such other duties as may be delegated to him or her by
the Board of Directors.
5.8 Chief Executive Officer. The Chief Executive Officer shall
have, subject to the supervision, direction and control of the Board of
Directors, the general powers and duties of supervision, direction and
management of the affairs and business of the Corporation usually vested in the
chief executive officer of a corporation, including, without limitation, all
powers necessary to direct and control the organizational and reporting
relationships within the Corporation. In addition, the Chief Executive Officer
shall have such other powers and perform such other duties as may be delegated
to him or her by the Board of Directors. If at any time the office of the
Chairman of the Board and the Vice Chairman of the Board shall not be filled, or
in the event of the temporary absence or disability of the Chairman of the Board
and the Vice Chairman of the Board, the Chief Executive Officer shall have the
powers and duties of the Chairman of the Board.
5.9 The President. The President shall serve as chief
operating officer, shall have the powers and duties customarily and usually
associated with the office of the President and shall have such other powers and
perform such other duties as may be delegated to him or her from time to time by
the Board of Directors or the Chief Executive Officer.
5.10 The Vice Presidents. Each Vice President shall have such
powers and duties customarily and usually associated with the office of Vice
President and shall have such other powers and perform
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such other duties as may from time to time be assigned to him or her by the
Board of Directors, the Chief Executive Officer, or the President.
5.11 The Chief Financial Officer. The Chief Financial Officer
shall be responsible for the financial affairs of the Corporation, including
overseeing the duties performed by the Treasurer of the Corporation. In
addition, the Chief Financial Officer shall have such powers and duties
customarily and usually associated with the office of the Chief Financial
Officer and shall have such other powers and perform such other duties as may be
delegated to him or her from time to time by the Board of Directors or the Chief
Executive Officer.
5.12 The General Managers. The general manager or general
managers shall assist the president and the vice president(s) in managing the
general affairs of the corporation. In the absence of the vice president (or in
the event there be more than one vice president, any of the vice presidents) or
in the event of his (or in the event there be more than one vice president, any
of their respective) inability or refusal to act, the general manager (or senior
general manager as designated by the Board of Directors if there is more than
one general manager) shall perform the duties of such vice president, and when
so acting, shall have all the powers of and be subject to all the restrictions
upon such vice president. The general manager or general managers shall perform
such other duties and have such other powers as the president or the board of
directors may from time to time prescribe.
5.13 The Secretary and the Assistant Secretary. (a) The
Secretary shall attend meetings of the Board of Directors and meetings of the
stockholders and record all votes and minutes of all such proceedings in a book
kept for such purpose. In addition, the Secretary shall have such powers and
duties customarily and usually associated with the office of Secretary and shall
have such other powers and perform such other duties as may be delegated to him
or her by the Board of Directors, the Chief Executive Officer, or the President.
(b) Each Assistant Secretary shall have such powers
and perform such duties customarily and usually associated with the office of
Assistant Secretary and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Secretary. In case
of the absence or disability of the Secretary, the Assistant Secretary
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Secretary) shall perform the duties and exercise the powers
of the Secretary.
5.14 The Treasurer and the Assistant Treasurer. (a) The
Treasurer shall have custody of the Corporation's funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit or cause to be deposited moneys or other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The Treasurer shall
also maintain adequate records of all assets, liabilities, and transactions of
the Corporation and shall see that adequate audits thereof are currently and
regularly made. In addition, the Treasurer shall have such powers and duties
customarily and usually associated with the office of Treasurer and shall have
such other powers and perform such other duties as may be delegated to him or
her from time to time by the Board of Directors, the Chief Executive Officer,
the President or the Chief Financial Officer.
(b) Each Assistant Treasurer shall have such powers
and perform such duties customarily and usually associated with the office of
Assistant Treasurer and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Treasurer. In case
of the absence or disability of the Treasurer, the Assistant Treasurer
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Treasurer) shall perform the duties and exercise the powers
of the Treasurer.
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5.15 Controller. The Controller shall be responsible for
maintaining the accounting records and statements, and shall properly account
for all monies and obligations due the Corporation and all properties, assets,
and liabilities of the Corporation. The Controller shall render to the Chairman
of the Board, the President or the Chief Financial Officer such periodic reports
covering the results of operations of the Corporation as may be required by
either of them or by law. In addition, the Controller shall have such powers and
duties customarily and usually associated with the office of Controller and
shall have such other powers and perform such other duties as may be delegated
to him or her from time to time by the Board of Directors, the Chief Executive
Officer, the President or the Chief Financial Officer.
6. STOCK
6.1 Certificates. Certificates for shares of stock of the
Corporation shall be issued under the seal of the Corporation, or a facsimile
thereof, and shall be numbered and shall be entered in the books of the
Corporation as they are issued. Each certificate shall bear a serial number,
shall exhibit the holder's name and the number of shares evidenced thereby, and
shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the
Chief Executive Officer or the President or any Vice President, and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer.
Any or all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if such person or entity
were such officer, transfer agent, or registrar at the date of issue.
6.2 Transfers. Transfers of stock of the Corporation shall be
made on the books of the Corporation only upon surrender to the Corporation of a
certificate (if any) for the shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, provided such
succession, assignment, or transfer is not prohibited by the Certificate of
Incorporation, these Bylaws, applicable law or contract. Thereupon, the
Corporation shall issue a new certificate (if requested) to the person entitled
thereto, cancel the old certificate (if any), and record the transaction upon
its books.
6.3 Lost, Stolen, or Destroyed Certificates. Any person
claiming a certificate of stock to be lost, stolen, or destroyed shall make an
affidavit or an affirmation of that fact, and shall give the Corporation a bond
of indemnity in satisfactory form and with one or more satisfactory sureties,
whereupon a new certificate (if requested) may be issued of the same tenor and
for the same number of shares as the one alleged to be lost, stolen, or
destroyed.
6.4 Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares as the person entitled to exercise the rights of a stockholder
and shall not be bound to recognize any equitable or other claim to or interest
in any such shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise expressly provided by the
GCLD.
6.5 Additional Powers of the Board. (a) In addition to those
powers set forth in Section 4.1, the Board of Directors shall have power and
authority to make all such rules and regulations as it shall deem expedient
concerning the issue, transfer, and registration of certificates for shares of
stock of the Corporation, including the use of uncertificated shares of stock
subject to the provisions of the GCLD.
(b) The Board of Directors may appoint and remove
transfer agents and registrars of transfers, and may require all stock
certificates to bear the signature of any such transfer agent and/or any such
registrar of transfers.
7. INDEMNIFICATION
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7.1 Each person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or the person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation, as a
director, officer, employee, or agent of another corporation or of a
partnership, joint venture, trust, or other enterprise, including service with
respect to employee benefit plans, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the GCLD, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expenses, liability, and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of his or her heirs, executors, and administrators; provided,
however, that, except as provided in this Article 7, the Corporation shall
indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if authorized by the
Board of Directors of the Corporation. Any indemnification under this Article 7
(unless ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee, or agent is proper in the circumstances because he or she has
met the applicable standard set forth in the GCLD. Such a determination shall be
made (a) by a majority vote of the directors who are not parties to such action,
suit or proceeding, even though less than a quorum; (b) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum; (c) by independent legal counsel (compensated by the Corporation) in a
written opinion; (d) by the stockholders; or (e) in any other manner permitted
by the GCLD. In addition to the right to indemnification conferred in this
Article 7, each of the above persons shall have the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that, if the GCLD requires, the
payment of such expenses incurred by a present director or officer in his or her
capacity as a director or officer of the corporation (and not in any other
capacity in which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such present
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Article 7 or otherwise. The Corporation may, by any manner permitted by the
GCLD, provide indemnification and advancement of expenses to employees and
agents of the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers. The right to indemnification and to
an advancement of expenses conferred in this Article 7 shall be a contract
right.
7.2 If a claim under Section 7.1 of this Article 7 is not paid
in full by the Corporation within 30 days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim (including attorneys' fees). It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the GCLD for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, a committee thereof, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the GCLD, nor an actual determination by the Corporation (including
its Board of Directors, a committee thereof, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct. In any suit brought by the claimant
to enforce a right to indemnification or to an advancement of expenses
hereunder, or brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the
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burden of proving that the claimant is not entitled to be indemnified, or to
such advancement of expenses, under this Article 7 or otherwise shall be on the
Corporation.
7.3 The rights to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Article 7, shall not be exclusive of any other right that any person may
have or hereafter acquire under any statute, provision of the certificate of
incorporation of the Corporation, this bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
7.4 The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee, or agent of the Corporation
or another corporation, partnership, joint venture, trust, or other enterprise
against any such expense, liability, or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability,
or loss under the GCLD.
7.5 The Corporation may enter into an indemnity agreement with
any director, officer, employee, or agent of the Corporation, or of another
corporation, partnership, joint venture, trust, or other enterprise, upon terms
and conditions that the Board of Directors deems appropriate, as long as the
provisions of the agreement are not impermissible under applicable law.
7.6 Any amendment or repeal of this Article 7 shall not be
retroactive in effect.
7.7 In case any provision in this Article 7 shall be
determined at any time to be unenforceable in any respect, the other provisions
shall not in any way be affected or impaired thereby, and the affected provision
shall be given the fullest possible enforcement in the circumstances, it being
the intention of the Corporation to afford indemnification and advancement of
expenses to the persons indemnified hereby to the fullest extent permitted by
law.
7.8 The Corporation may, by action of the Board of Directors,
authorize one or more officers to grant rights to indemnification and
advancement of expenses to former directors and officers or to other employees
or agents of the Corporation on such terms and conditions as such officer or
officers deem appropriate under the circumstances.
8. MISCELLANEOUS
8.1 Place and Inspection of Books. (a) The books of the
Corporation other than such books as are required by law to be kept within the
State of Delaware shall be kept in such place or places either within or without
the State of Delaware as the Board of Directors may from time to time determine.
(b) At least ten days before each meeting of
stockholders, the officer in charge of the stock ledger of the Corporation shall
prepare a complete list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
(c) The Board of Directors shall determine from time
to time whether and, if allowed, when and under what conditions and regulations
the accounts and books of the Corporation (except such as may be by law
specifically open to inspection or as otherwise provided by these Bylaws) or any
of them shall be open to the inspection of the stockholders and the
stockholders' rights in respect thereof.
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8.2 Voting Shares in Other Corporations. The Chief Executive
Officer, the President, the Chief Financial Officer or any other officer of the
Corporation designated by the Board of Directors may vote any and all shares
held by the Corporation in any other corporation.
8.3 Fiscal Year. The fiscal year of the Corporation shall be
such fiscal year as the Board of Directors from time to time by resolution shall
determine.
8.4 Gender/Number. As used in these Bylaws, the masculine,
feminine, or neuter gender, and the singular or plural number, shall each
include the others whenever the context so indicates.
8.5 Paragraph Titles. The titles of the paragraphs have been
inserted as a matter of reference only and shall not control or affect the
meaning or construction of any of the terms and provisions hereof.
8.6 Amendment. These Bylaws may be altered, amended, or
repealed by (a) the affirmative vote of 80% or more of the aggregate number of
votes that the holders of the then outstanding shares of common stock and
preferred stock are entitled to cast on the amendment, or (b) by resolution
adopted by the affirmative vote of not less than a majority of the Directors in
office, at any annual or regular meeting of the Board of Directors or at any
special meeting of the Board of Directors if notice of the proposed alteration,
amendment, or repeal be contained in written notice of such special meeting.
Notwithstanding the foregoing, the amendment of any provision of these Bylaws
that requires an affirmative vote in excess of a majority of the Directors in
office shall require the affirmative vote of at least the number of directors
the affirmative vote of whom is required by such provision.
8.7 Certificate of Incorporation. Notwithstanding anything to
the contrary contained herein, if any provision contained in these Bylaws is
inconsistent with or conflicts with a provision of the Certificate of
Incorporation, such provision of these Bylaws shall be superseded by the
inconsistent provision in the Certificate of Incorporation to the extent
necessary to give effect to such provision in the Certificate of Incorporation.
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Delmarva Capital Investments, Inc
B.16.3
Amended and Restated Bylaws
Adopted December 31, 1999
<PAGE> 2
AMENDED AND RESTATED
B Y L A W S
OF
DELMARVA CAPITAL INVESTMENTS, INC.
1. OFFICES.
1.1 Offices. In addition to its registered office in the State
of Delaware, the Corporation shall have a corporate office in Wilmington,
Delaware, and such other offices, either within or without the State of
Delaware, at such locations as the Board of Directors may from time to time
determine or the business of the Corporation may require.
2. SEAL.
2.1 Seal. The Corporation shall have a seal, which shall have
inscribed thereon its name and year of incorporation and the words, "Corporate
Seal Virginia."
3. MEETINGS OF STOCKHOLDERS.
3.1 Annual Meetings. The annual meeting of stockholders of the
Corporation shall be held on such date, at such time and at such place within or
without the State of Delaware as shall be determined by the Board of Directors
from time to time.
3.2 Special Meetings. Special meetings of the stockholders of
the Corporation shall be held on such date, at such time and at such place
within or without the State of Delaware as may be designated by the Chairman of
the Board or by the Board of Directors.
3.3 Notice of Meetings. (a) Notices of meetings of
stockholders shall be in writing and shall state the place, date, and hour of
the meeting, and, in the case of a special meeting, the purpose or purposes for
which a meeting is called. No business other than that specified in the notice
thereof shall be transacted at any special meeting.
(b) Such notice shall either be delivered personally,
mailed, postage prepaid, or delivered by any other lawful means to each
stockholder entitled to vote at such meeting not less than 10 nor more than 60
days before the date of the meeting. If mailed, the notice shall be directed to
the stockholder at his or her address as it appears on the records of the
Corporation. Delivery of any such notice to any officer of a corporation or
association or to any member of a partnership shall constitute delivery of such
notice to such corporation, association, or partnership.
(c) Notice of any meeting of stockholders need not be
given to any stockholder if waived by such stockholder in writing, whether
before or after such meeting is held, or if such stockholder shall sign the
minutes or attend the meeting, except that if such stockholder attends a meeting
for the express purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened, such stockholder shall not be deemed to have waived notice of such
meeting.
3.4 Adjourned Meetings. When a meeting is adjourned to another
time or place, unless otherwise provided by these Bylaws, notice need not be
given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. At the adjourned meeting the
stockholders may transact any business that might have been transacted at the
original meeting. If an adjournment
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is for more than 30 days, or if after an adjournment, a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder entitled to vote at the meeting.
3.5 Quorum and Adjournment. Except as otherwise provided by
law, by the Certificate of Incorporation of the Corporation, or by these Bylaws,
the presence, in person or by proxy, of the holders of a majority of the
aggregate voting power of the stock issued and outstanding, entitled to vote
thereat, shall constitute a quorum for the transaction of business at all
meetings of stockholders. If such majority shall not be present or represented
at any meeting of stockholders, the stockholders present, although less than a
quorum, shall have the power to adjourn the meeting.
3.6 Vote Required. Except as otherwise provided by law or by
the Certificate of Incorporation:
(a) Directors shall be elected by a plurality of the
votes present in person or represented by proxy at a meeting of stockholders and
entitled to vote in the election of directors, and
(b) whenever any corporate action other than the election
of Directors is to be taken, it shall be authorized by a majority in voting
power of the shares present in person or by proxy at a meeting of stockholders
and entitled to vote on the subject matter.
3.7 Manner of Voting. At each meeting of stockholders, each
stockholder having the right to vote shall be entitled to vote in person or by
proxy. Proxies need not be filed with the Secretary of the Corporation until the
meeting is called to order, but shall be filed before being voted. Each
stockholder shall be entitled to vote each share of stock having voting power
registered in his or her name on the books of the Corporation on the record date
fixed for determination of stockholders entitled to vote at such meeting.
3.8 Stockholder Action Without a Meeting. Except as otherwise
provided by law or by the Certificate of Incorporation, any action required to
be taken at any meeting of stockholders of the corporation, or any action that
may be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice, and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing and who,
if the action had been taken at a meeting, would have been entitled to notice of
the meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of the holders to take the action were
delivered to the Corporation.
3.9 Proxies. (a) At any meeting of stockholders, any
stockholder may be represented and vote by proxy or proxies. In the event that
any form of proxy shall designate two or more persons to act as proxies, a
majority of such persons present at the meeting or, if only one shall be
present, then that one shall have and may exercise all of the powers conferred
by the form of proxy upon all of the persons so designated unless the form of
proxy shall otherwise provide.
(b) The Board of Directors may, in advance of any annual
or special meeting of the stockholders, prescribe additional regulations
concerning the validation of the same, which are intended to be voted at any
such meeting.
3.10 Presiding Officer and Secretary. The Chairman of the
Board shall act as chairman of all meetings of the stockholders. In the absence
of the Chairman of the Board, the Vice Chairman of the Board or, in his or her
absence, any Director designated by the Chairman of the Board or the Board of
Directors shall act as chairman of the meeting.
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The Secretary of the Corporation shall act as secretary of all
meetings of the stockholders, but, in the absence of the Secretary, the
Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the stockholders, but in the
absence of a designated Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
3.11 Procedure. At each meeting of stockholders, the chairman
of the meeting shall fix and announce the date and time of the opening and the
closing of the polls for each matter upon which the stockholders will vote at
the meeting and shall determine the order of business and all other matters of
procedure. Except to the extent inconsistent with any such rules and regulations
as adopted by the Board of Directors, the chairman of the meeting may establish
rules, which need not be in writing, to maintain order and safety and for the
conduct of the meeting. Without limiting the foregoing, he or she may:
(a) restrict attendance at any time to bona fide
stockholders of record and their proxies and other persons in attendance at the
invitation of the chairman;
(b) restrict dissemination of solicitation materials and
use of audio or visual recording devices at the meeting;
(c) adjourn the meeting without a vote of the
stockholders, whether or not there is a quorum present; and
(d) make rules governing speeches and debate, including
time limits and access to microphones.
The chairman of the meeting shall be entitled to act in his or her absolute
discretion and his or her rulings shall not be subject to appeal.
4. DIRECTORS.
4.1 Powers and Number. The Board of Directors shall exercise
all of the powers of the Corporation except such as are by law, or by the
Certificate of Incorporation of this Corporation or by these Bylaws conferred
upon or reserved to the stockholders of any class or classes. The number of
directors that shall constitute the whole Board of Directors shall be no fewer
than three (3) and no greater than nine (9), the exact number of directors to be
determined from time to time by resolution adopted by the Board of Directors or
the stockholders, and until otherwise determined by the Board of Directors or
the stockholders, the number of directors that shall constitute the whole Board
of Directors shall be three (3).
4.2 Resignations. Any Director may resign at any time by
giving written notice to the Board of Directors or the Secretary. Such
resignation shall take effect at the date of receipt of such notice or at any
later time specified therein. Acceptance of such resignation shall not be
necessary to make it effective.
4.3 Presiding Officer and Secretary. The Chairman of the
Board shall act as chairman of all meetings of the Board of Directors. In the
absence of the Chairman of the Board, the Vice Chairman of the Board, or in his
absence, the Chief Executive Officer or other person designated by the Board of
Directors shall act as chairman of the meeting.
The Secretary of the Corporation shall act as secretary
of all meetings of the Board of Directors, but, in the absence of the Secretary,
the Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the Board of Directors, but in
the absence of a designated Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
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4.4 Annual Meetings. The Board of Directors shall meet each
year immediately following the annual meeting of stockholders, at the place
where such meeting of stockholders has been held, or at such other place as
shall be fixed by the person presiding over the meeting of the stockholders, for
the purpose of election of officers and consideration of such other business as
the Board of Directors considers relevant to the management of the Corporation.
In the event that in any year Directors are elected by written consent in lieu
of an annual meeting of stockholders, the Board of Directors shall meet in such
year as soon as practicable after receipt of such written consent by the
Corporation at such time and place as shall be fixed by the Chairman of the
Board, for the purpose of election of officers and consideration of such other
business as the Board of Directors considers relevant to the management of the
Corporation.
4.5 Regular Meetings. Regular meetings of the Board of
Directors shall be held on such dates and at such times and places, within or
without the state of Delaware, as shall from time to time be determined by the
Board of Directors. In the absence of any such determination, such meetings
shall be held at such times and places, within or without the State of Delaware,
as shall be designated by the Chairman of the Board on not less than twelve
hours notice to each Director, given verbally, in writing or electronically,
whether personally, by telephone (including by message or recording device), by
facsimile transmission, by telegram, by telex or by electronic mail or by other
electronic means, or on not less than three (3) calendar days' notice to each
Director given by mail. Notice given by any of the foregoing means shall be
sufficient to constitute notice of a meeting without the necessity of further
notice.
4.6 Special Meetings. Special meetings of the Board of
Directors shall be held at the call of the Chairman of the Board at such times
and places, within or without the State of Delaware, as he or she shall
designate, on not less than twelve hours notice to each Director, given
verbally, in writing or electronically, whether personally, by telephone
(including by message or recording device), by facsimile transmission, by
telegram, by telex, by electronic mail or by other electronic means or on not
less than three (3) calendar days' notice to each Director given by mail. Notice
given by any of the foregoing means shall be sufficient to constitute notice of
a meeting without the necessity of further notice. Special meetings shall be
called by the Secretary on like notice at the written request of a majority of
the Directors then in office.
4.7 Quorum and Powers of a Majority. At all meetings of the
Board of Directors and of each committee thereof, a majority of the members
shall be necessary and sufficient to constitute a quorum for the transaction of
business, and the act of a majority of the members present at any meeting at
which a quorum is present shall be the act of the Board of Directors or such
committee, unless by express provision of law, of the Certificate of
Incorporation, or of these Bylaws, a different vote is required, in which case
such express provision shall govern and control. In the absence of a quorum, a
majority of the members present at any meeting may, without notice other than
announcement at the meeting, adjourn such meeting from time to time until a
quorum is present.
4.8 Waiver of Notice. Notice of any meeting of the Board of
Directors, or any committee thereof, need not be given to any member if waived
by him or her in writing, whether before or after such meeting is held, or if he
or she shall sign the minutes or attend the meeting, except that if such
Director attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened, then such Director shall not be deemed to have
waived notice of such meeting.
4.9 Manner of Acting. (a) Members of the Board of Directors,
or any committee thereof, may participate in any meeting of the Board of
Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating therein can
hear each other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
(b) Any action required or permitted to be taken at any
meeting of the Board of Directors or any committee thereof may be taken without
a meeting if all members of the Board of Directors or
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such committee, as the case may be, consent thereto in writing, and the writings
are filed with the minutes of proceedings of the Board of Directors or such
committee.
4.10 Compensation. (a) The Board of Directors, by a resolution
or resolutions, may fix, and from time to time change, the compensation of
Directors.
(b) Each Director shall be entitled to reimbursement from
the Corporation for his or her reasonable expenses incurred with respect to
duties as a member of the Board of Directors or any committee thereof.
(c) Nothing contained in these Bylaws shall be construed
to preclude any Director from serving the Corporation in any other capacity and
from receiving compensation from the Corporation for service rendered to it in
such other capacity.
4.11 Committees. The Board of Directors (or any committee
thereof having the power and authority to do so) may designate one or more
committees, each committee to consist of one or more Directors, which to the
extent provided in said resolution or resolutions shall have and may exercise
the powers and authority of the Board of Directors in the management of the
business and affairs of the corporation; provided, however, that no such
committee shall have the power or authority in reference to the following
matters: (i) approving or adopting, or recommending to the stockholders, any
action or matter expressly required by the General Corporation Law of Delaware
(the "GCLD") to be submitted to stockholders for approval or (ii) adopting,
amending, or repealing any bylaw of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member of the committee. In the absence or
disqualification of a member of a committee, the member or members present at
any meeting of such committee and not disqualified from voting, whether or not
such member of members constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in place of such absent
or disqualified director.
4.12 Committee Procedure, Limitations of Committee Powers. (a)
Except as otherwise provided by these Bylaws, each committee shall adopt its own
rules governing the time, place and method of holding its meetings and the
conduct of its proceedings and shall meet as provided by such rules or by
resolution of the Board of Directors. Unless otherwise provided by these Bylaws
or any such rules or resolutions, notice of the time and place of each meeting
of a committee shall be given to each member of such committee as provided in
Section 4.6 of these Bylaws with respect to notices of special meetings of the
Board of Directors.
(b) Each committee shall keep regular minutes of its
proceedings and report the same to the Board of Directors when required.
(c) Any member of any committee may be removed from such
committee either with or without cause, at any time, by the Board of Directors
at any meeting thereof. Any vacancy in any committee shall be filled by the
Board of Directors in the manner prescribed by the Certificate of Incorporation
or these Bylaws for the original appointment of the members of such committee.
5. OFFICERS.
5.1 Number. (a) The officers of the Corporation shall include
a Chief Executive Officer, a President, one or more Vice Presidents (including
one or more Executive Vice Presidents and one or more Senior Vice Presidents if
deemed appropriate by the Board of Directors), a Chief Financial Officer, a
Secretary, a Treasurer, and a Controller. The Board of Directors shall also
elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except
for the Chairman of the Board, the Vice Chairman of the Board, and the Chief
Executive Officer, none of the officers of the Corporation needs to be a
director of the Corporation. Any two or more offices may be held by the same
person to the extent permitted by the GCLD.
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(b) The Chief Executive Officer shall have the power to
appoint one or more employees of the Corporation as divisional or departmental
vice presidents and fix the duties of such appointees. However, no such
divisional or departmental vice president shall be considered as an officer of
the Corporation.
5.2 Election of Officers, Qualification and Term. The Chief
Executive Officer, the President, any Executive Vice President, any Senior Vice
President, the Chief Financial Officer, the Secretary and the Treasurer of the
Corporation shall be elected from time to time by the Board of Directors and,
except as may otherwise be expressly provided in a contract of employment duly
authorized by the Board of Directors, shall hold office at the pleasure of the
Board of Directors. The Board of Directors and the Chief Executive Officer also
may elect such other officers as the Board of Directors or the Chief Executive
Officer may from time to time deem appropriate or necessary.
5.3 Removal. Any officer elected by the Board of Directors
may be removed, either with or without cause, by the Board of Directors at any
meeting thereof, or to the extent delegated to the Chairman of the Board or the
Chief Executive Officer, by the Chairman of the Board or the Chief Executive
Officer.
5.4 Resignations. Any officer of the Corporation may resign
at any time by giving written notice to the Board of Directors or to the
Chairman of the Board or to the Chief Executive Officer. Such resignation shall
take effect at the date of the receipt of such notice or at any later time
specified therein and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
5.5 Compensation. The compensation of all officers of the
Corporation shall be fixed by or in the manner provided by the Board of
Directors from time to time, and no officer shall be prevented from receiving
such compensation by reason of the fact that he or she is also a Director of the
Corporation.
5.6 The Chairman of the Board. The Chairman of the Board
shall have the powers and duties customarily and usually associated with the
office of the Chairman of the Board and shall have such other powers and perform
such other duties as may be delegated to him or her by the Board of Directors.
The Chairman of the Board shall preside at meetings of the stockholders and of
the Board of Directors.
5.7 Vice Chairman of the Board. The Vice Chairman of the
Board, if any, shall have the powers and duties customarily and usually
associated with the office of the Vice Chairman of the Board and shall have such
other powers and perform such other duties as may be delegated to him or her by
the Board of Directors.
5.8 Chief Executive Officer. The Chief Executive Officer
shall have, subject to the supervision, direction and control of the Board of
Directors, the general powers and duties of supervision, direction and
management of the affairs and business of the Corporation usually vested in the
chief executive officer of a corporation, including, without limitation, all
powers necessary to direct and control the organizational and reporting
relationships within the Corporation. In addition, the Chief Executive Officer
shall have such other powers and perform such other duties as may be delegated
to him or her by the Board of Directors. If at any time the office of the
Chairman of the Board and the Vice Chairman of the Board shall not be filled, or
in the event of the temporary absence or disability of the Chairman of the Board
and the Vice Chairman of the Board, the Chief Executive Officer shall have the
powers and duties of the Chairman of the Board.
5.9 The President. The President shall serve as chief
operating officer, shall have the powers and duties customarily and usually
associated with the office of the President and shall have such other powers and
perform such other duties as may be delegated to him or her from time to time by
the Board of Directors or the Chief Executive Officer.
5.10 The Vice Presidents. Each Vice President shall have such
powers and duties customarily and usually associated with the office of Vice
President and shall have such other powers and perform
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such other duties as may from time to time be assigned to him or her by the
Board of Directors, the Chief Executive Officer, or the President.
5.11 The Chief Financial Officer. The Chief Financial Officer
shall be responsible for the financial affairs of the Corporation, including
overseeing the duties performed by the Treasurer of the Corporation. In
addition, the Chief Financial Officer shall have such powers and duties
customarily and usually associated with the office of the Chief Financial
Officer and shall have such other powers and perform such other duties as may be
delegated to him or her from time to time by the Board of Directors or the Chief
Executive Officer.
5.12 The Secretary and the Assistant Secretary. (a) The
Secretary shall attend meetings of the Board of Directors and meetings of the
stockholders and record all votes and minutes of all such proceedings in a book
kept for such purpose. In addition, the Secretary shall have such powers and
duties customarily and usually associated with the office of Secretary and shall
have such other powers and perform such other duties as may be delegated to him
or her by the Board of Directors, the Chief Executive Officer, or the President.
(b) Each Assistant Secretary shall have such powers and
perform such duties customarily and usually associated with the office of
Assistant Secretary and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Secretary. In case
of the absence or disability of the Secretary, the Assistant Secretary
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Secretary) shall perform the duties and exercise the powers
of the Secretary.
5.13 The Treasurer and the Assistant Treasurer. (a) The
Treasurer shall have custody of the Corporation's funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit or cause to be deposited moneys or other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The Treasurer shall
also maintain adequate records of all assets, liabilities, and transactions of
the Corporation and shall see that adequate audits thereof are currently and
regularly made. In addition, the Treasurer shall have such powers and duties
customarily and usually associated with the office of Treasurer and shall have
such other powers and perform such other duties as may be delegated to him or
her from time to time by the Board of Directors, the Chief Executive Officer,
the President or the Chief Financial Officer.
(b) Each Assistant Treasurer shall have such powers and
perform such duties customarily and usually associated with the office of
Assistant Treasurer and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Treasurer. In case
of the absence or disability of the Treasurer, the Assistant Treasurer
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Treasurer) shall perform the duties and exercise the powers
of the Treasurer.
5.14 Controller. The Controller shall be responsible for
maintaining the accounting records and statements, and shall properly account
for all monies and obligations due the Corporation and all properties, assets,
and liabilities of the Corporation. The Controller shall render to the Chairman
of the Board, the President or the Chief Financial Officer such periodic reports
covering the results of operations of the Corporation as may be required by
either of them or by law. In addition, the Controller shall have such powers and
duties customarily and usually associated with the office of Controller and
shall have such other powers and perform such other duties as may be delegated
to him or her from time to time by the Board of Directors, the Chief Executive
Officer, the President or the Chief Financial Officer.
6. STOCK
6.1 Certificates. Certificates for shares of stock of the
Corporation shall be issued under the seal of the Corporation, or a facsimile
thereof, and shall be numbered and shall be entered in the books of the
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Corporation as they are issued. Each certificate shall bear a serial number,
shall exhibit the holder's name and the number of shares evidenced thereby, and
shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the
Chief Executive Officer or the President or any Vice President, and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer.
Any or all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if such person or entity
were such officer, transfer agent, or registrar at the date of issue.
6.2 Transfers. Transfers of stock of the Corporation shall be
made on the books of the Corporation only upon surrender to the Corporation of a
certificate (if any) for the shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, provided such
succession, assignment, or transfer is not prohibited by the Certificate of
Incorporation, these Bylaws, applicable law or contract. Thereupon, the
Corporation shall issue a new certificate (if requested) to the person entitled
thereto, cancel the old certificate (if any), and record the transaction upon
its books.
6.3 Lost, Stolen, or Destroyed Certificates. Any person
claiming a certificate of stock to be lost, stolen, or destroyed shall make an
affidavit or an affirmation of that fact, and shall give the Corporation a bond
of indemnity in satisfactory form and with one or more satisfactory sureties,
whereupon a new certificate (if requested) may be issued of the same tenor and
for the same number of shares as the one alleged to be lost, stolen, or
destroyed.
6.4 Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares as the person entitled to exercise the rights of a stockholder
and shall not be bound to recognize any equitable or other claim to or interest
in any such shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise expressly provided by the
GCLD.
6.5 Additional Powers of the Board. (a) In addition to those
powers set forth in Section 4.1, the Board of Directors shall have power and
authority to make all such rules and regulations as it shall deem expedient
concerning the issue, transfer, and registration of certificates for shares of
stock of the Corporation, including the use of uncertificated shares of stock
subject to the provisions of the GCLD.
(b) The Board of Directors may appoint and remove
transfer agents and registrars of transfers, and may require all stock
certificates to bear the signature of any such transfer agent and/or any such
registrar of transfers.
7. INDEMNIFICATION
7.1 Each person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or the person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation, as a
director, officer, employee, or agent of another corporation or of a
partnership, joint venture, trust, or other enterprise, including service with
respect to employee benefit plans, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the GCLD, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expenses, liability, and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of his or her heirs, executors, and administrators; provided,
however, that, except as provided in this Article 7, the Corporation shall
indemnify any
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such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if authorized by the Board of Directors
of the Corporation. Any indemnification under this Article 7 (unless ordered by
a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee, or agent is proper in the circumstances because he or she has met the
applicable standard set forth in the GCLD. Such a determination shall be made
(a) by a majority vote of the directors who are not parties to such action, suit
or proceeding, even though less than a quorum; (b) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum; (c) by independent legal counsel (compensated by the Corporation) in a
written opinion; (d) by the stockholders; or (e) in any other manner permitted
by the GCLD. In addition to the right to indemnification conferred in this
Article 7, each of the above persons shall have the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that, if the GCLD requires, the
payment of such expenses incurred by a present director or officer in his or her
capacity as a director or officer of the corporation (and not in any other
capacity in which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such present
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Article 7 or otherwise. The Corporation may, by any manner permitted by the
GCLD, provide indemnification and advancement of expenses to employees and
agents of the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers. The right to indemnification and to
an advancement of expenses conferred in this Article 7 shall be a contract
right.
7.2 If a claim under Section 7.1 of this Article 7 is not paid
in full by the Corporation within 30 days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim (including attorneys' fees). It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the GCLD for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, a committee thereof, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the GCLD, nor an actual determination by the Corporation (including
its Board of Directors, a committee thereof, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct. In any suit brought by the claimant
to enforce a right to indemnification or to an advancement of expenses
hereunder, or brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the claimant
is not entitled to be indemnified, or to such advancement of expenses, under
this Article 7 or otherwise shall be on the Corporation.
7.3 The rights to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Article 7, shall not be exclusive of any other right that any person may
have or hereafter acquire under any statute, provision of the certificate of
incorporation of the Corporation, this bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
7.4 The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee, or agent of the Corporation
or another corporation, partnership, joint venture, trust, or other enterprise
against any such expense, liability, or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability,
or loss under the GCLD.
7.5 The Corporation may enter into an indemnity agreement with
any director, officer, employee, or agent of the Corporation, or of another
corporation, partnership, joint venture, trust, or other
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enterprise, upon terms and conditions that the Board of Directors deems
appropriate, as long as the provisions of the agreement are not impermissible
under applicable law.
7.6 Any amendment or repeal of this Article 7 shall not be
retroactive in effect.
7.7 In case any provision in this Article 7 shall be
determined at any time to be unenforceable in any respect, the other provisions
shall not in any way be affected or impaired thereby, and the affected provision
shall be given the fullest possible enforcement in the circumstances, it being
the intention of the Corporation to afford indemnification and advancement of
expenses to the persons indemnified hereby to the fullest extent permitted by
law.
7.8 The Corporation may, by action of the Board of Directors,
authorize one or more officers to grant rights to indemnification and
advancement of expenses to former directors and officers or to other employees
or agents of the Corporation on such terms and conditions as such officer or
officers deem appropriate under the circumstances.
8. MISCELLANEOUS
8.1 Place and Inspection of Books. (a) The books of the
Corporation other than such books as are required by law to be kept within the
State of Delaware shall be kept in such place or places either within or without
the State of Delaware as the Board of Directors may from time to time determine.
(b) At least ten days before each meeting of stockholders,
the officer in charge of the stock ledger of the Corporation shall prepare a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order and showing the address of each stockholder and the number of
shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
(c) The Board of Directors shall determine from time to
time whether and, if allowed, when and under what conditions and regulations the
accounts and books of the Corporation (except such as may be by law specifically
open to inspection or as otherwise provided by these Bylaws) or any of them
shall be open to the inspection of the stockholders and the stockholders' rights
in respect thereof.
8.2 Voting Shares in Other Corporations. The Chief Executive
Officer, the President, the Chief Financial Officer or any other officer of the
Corporation designated by the Board of Directors may vote any and all shares
held by the Corporation in any other corporation.
8.3 Fiscal Year. The fiscal year of the Corporation shall be
such fiscal year as the Board of Directors from time to time by resolution shall
determine.
8.4 Gender/Number. As used in these Bylaws, the masculine,
feminine, or neuter gender, and the singular or plural number, shall each
include the others whenever the context so indicates.
8.5 Paragraph Titles. The titles of the paragraphs have been
inserted as a matter of reference only and shall not control or affect the
meaning or construction of any of the terms and provisions hereof.
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8.6 Amendment. These Bylaws may be altered, amended, or
repealed by (a) the affirmative vote of 80% or more of the aggregate number of
votes that the holders of the then outstanding shares of common stock and
preferred stock are entitled to cast on the amendment, or (b) by resolution
adopted by the affirmative vote of not less than a majority of the Directors in
office, at any annual or regular meeting of the Board of Directors or at any
special meeting of the Board of Directors if notice of the proposed alteration,
amendment, or repeal be contained in written notice of such special meeting.
Notwithstanding the foregoing, the amendment of any provision of these Bylaws
that requires an affirmative vote in excess of a majority of the Directors in
office shall require the affirmative vote of at least the number of directors
the affirmative vote of whom is required by such provision.
8.7 Certificate of Incorporation. Notwithstanding anything to
the contrary contained herein, if any provision contained in these Bylaws is
inconsistent with or conflicts with a provision of the Certificate of
Incorporation, such provision of these Bylaws shall be superseded by the
inconsistent provision in the Certificate of Incorporation to the extent
necessary to give effect to such provision in the Certificate of Incorporation.
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DCI I, Inc
B.17.3
Amended and Restated Bylaws
Adopted December 31, 1999
<PAGE> 2
AMENDED AND RESTATED
B Y L A W S
OF
DCI I, INC.
1. OFFICES.
1.1 Offices. In addition to its registered office in the State
of Delaware, the Corporation shall have a corporate office in Wilmington,
Delaware, and such other offices, either within or without the State of
Delaware, at such locations as the Board of Directors may from time to time
determine or the business of the Corporation may require.
2. SEAL.
2.1 Seal. The Corporation shall have a seal, which shall have
inscribed thereon its name and year of incorporation and the words, "Corporate
Seal Delaware."
3. MEETINGS OF STOCKHOLDERS.
3.1 Annual Meetings. The annual meeting of stockholders of the
Corporation shall be held on such date, at such time and at such place within or
without the State of Delaware as shall be determined by the Board of Directors
from time to time.
3.2 Special Meetings. Special meetings of the stockholders of
the Corporation shall be held on such date, at such time and at such place
within or without the State of Delaware as may be designated by the Chairman of
the Board or by the Board of Directors.
3.3 Notice of Meetings. (a) Notices of meetings of
stockholders shall be in writing and shall state the place, date, and hour of
the meeting, and, in the case of a special meeting, the purpose or purposes for
which a meeting is called. No business other than that specified in the notice
thereof shall be transacted at any special meeting.
(b) Such notice shall either be delivered personally,
mailed, postage prepaid, or delivered by any other lawful means to each
stockholder entitled to vote at such meeting not less than 10 nor more than 60
days before the date of the meeting. If mailed, the notice shall be directed to
the stockholder at his or her address as it appears on the records of the
Corporation. Delivery of any such notice to any officer of a corporation or
association or to any member of a partnership shall constitute delivery of such
notice to such corporation, association, or partnership.
(c) Notice of any meeting of stockholders need not be
given to any stockholder if waived by such stockholder in writing, whether
before or after such meeting is held, or if such stockholder shall sign the
minutes or attend the meeting, except that if such stockholder attends a meeting
for the express purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened, such stockholder shall not be deemed to have waived notice of such
meeting.
3.4 Adjourned Meetings. When a meeting is adjourned to another
time or place, unless otherwise provided by these Bylaws, notice need not be
given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. At the adjourned meeting the
stockholders may transact any business that might have been transacted at the
original meeting. If an adjournment
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is for more than 30 days, or if after an adjournment, a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder entitled to vote at the meeting.
3.5 Quorum and Adjournment. Except as otherwise provided by
law, by the Certificate of Incorporation of the Corporation, or by these Bylaws,
the presence, in person or by proxy, of the holders of a majority of the
aggregate voting power of the stock issued and outstanding, entitled to vote
thereat, shall constitute a quorum for the transaction of business at all
meetings of stockholders. If such majority shall not be present or represented
at any meeting of stockholders, the stockholders present, although less than a
quorum, shall have the power to adjourn the meeting.
3.6 Vote Required. Except as otherwise provided by law or by
the Certificate of Incorporation:
(a) Directors shall be elected by a plurality of the
votes present in person or represented by proxy at a meeting of stockholders and
entitled to vote in the election of directors, and
(b) whenever any corporate action other than the election
of Directors is to be taken, it shall be authorized by a majority in voting
power of the shares present in person or by proxy at a meeting of stockholders
and entitled to vote on the subject matter.
3.7 Manner of Voting. At each meeting of stockholders, each
stockholder having the right to vote shall be entitled to vote in person or by
proxy. Proxies need not be filed with the Secretary of the Corporation until the
meeting is called to order, but shall be filed before being voted. Each
stockholder shall be entitled to vote each share of stock having voting power
registered in his or her name on the books of the Corporation on the record date
fixed for determination of stockholders entitled to vote at such meeting.
3.8 Stockholder Action Without a Meeting. Except as otherwise
provided by law or by the Certificate of Incorporation, any action required to
be taken at any meeting of stockholders of the corporation, or any action that
may be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice, and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing and who,
if the action had been taken at a meeting, would have been entitled to notice of
the meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of the holders to take the action were
delivered to the Corporation.
3.9 Proxies. (a) At any meeting of stockholders, any
stockholder may be represented and vote by proxy or proxies. In the event that
any form of proxy shall designate two or more persons to act as proxies, a
majority of such persons present at the meeting or, if only one shall be
present, then that one shall have and may exercise all of the powers conferred
by the form of proxy upon all of the persons so designated unless the form of
proxy shall otherwise provide.
(b) The Board of Directors may, in advance of any annual
or special meeting of the stockholders, prescribe additional regulations
concerning the validation of the same, which are intended to be voted at any
such meeting.
3.10 Presiding Officer and Secretary. The Chairman of the
Board shall act as chairman of all meetings of the stockholders. In the absence
of the Chairman of the Board, the Vice Chairman of the Board or, in his or her
absence, any Director designated by the Chairman of the Board or the Board of
Directors shall act as chairman of the meeting.
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The Secretary of the Corporation shall act as secretary of all
meetings of the stockholders, but, in the absence of the Secretary, the
Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the stockholders, but in the
absence of a designated Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
3.11 Procedure. At each meeting of stockholders, the chairman
of the meeting shall fix and announce the date and time of the opening and the
closing of the polls for each matter upon which the stockholders will vote at
the meeting and shall determine the order of business and all other matters of
procedure. Except to the extent inconsistent with any such rules and regulations
as adopted by the Board of Directors, the chairman of the meeting may establish
rules, which need not be in writing, to maintain order and safety and for the
conduct of the meeting. Without limiting the foregoing, he or she may:
(a) restrict attendance at any time to bona fide
stockholders of record and their proxies and other persons in attendance at the
invitation of the chairman;
(b) restrict dissemination of solicitation materials and
use of audio or visual recording devices at the meeting;
(c) adjourn the meeting without a vote of the
stockholders, whether or not there is a quorum present; and
(d) make rules governing speeches and debate, including
time limits and access to microphones.
The chairman of the meeting shall be entitled to act in his or her absolute
discretion and his or her rulings shall not be subject to appeal.
4. DIRECTORS.
4.1 Powers and Number. The Board of Directors shall exercise
all of the powers of the Corporation except such as are by law, or by the
Certificate of Incorporation of this Corporation or by these Bylaws conferred
upon or reserved to the stockholders of any class or classes. The number of
directors that shall constitute the whole Board of Directors shall be no fewer
than three (3) and no greater than nine (9), the exact number of directors to be
determined from time to time by resolution adopted by the Board of Directors or
the stockholders, and until otherwise determined by the Board of Directors or
the stockholders, the number of directors that shall constitute the whole Board
of Directors shall be three (3).
4.2 Resignations. Any Director may resign at any time by
giving written notice to the Board of Directors or the Secretary. Such
resignation shall take effect at the date of receipt of such notice or at any
later time specified therein. Acceptance of such resignation shall not be
necessary to make it effective.
4.3 Presiding Officer and Secretary. The Chairman of the
Board shall act as chairman of all meetings of the Board of Directors. In the
absence of the Chairman of the Board, the Vice Chairman of the Board, or in his
absence, the Chief Executive Officer or other person designated by the Board of
Directors shall act as chairman of the meeting.
The Secretary of the Corporation shall act as secretary
of all meetings of the Board of Directors, but, in the absence of the Secretary,
the Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the Board of Directors, but in
the absence of a designated Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
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4.4 Annual Meetings. The Board of Directors shall meet each
year immediately following the annual meeting of stockholders, at the place
where such meeting of stockholders has been held, or at such other place as
shall be fixed by the person presiding over the meeting of the stockholders, for
the purpose of election of officers and consideration of such other business as
the Board of Directors considers relevant to the management of the Corporation.
In the event that in any year Directors are elected by written consent in lieu
of an annual meeting of stockholders, the Board of Directors shall meet in such
year as soon as practicable after receipt of such written consent by the
Corporation at such time and place as shall be fixed by the Chairman of the
Board, for the purpose of election of officers and consideration of such other
business as the Board of Directors considers relevant to the management of the
Corporation.
4.5 Regular Meetings. Regular meetings of the Board of
Directors shall be held on such dates and at such times and places, within or
without the state of Delaware, as shall from time to time be determined by the
Board of Directors. In the absence of any such determination, such meetings
shall be held at such times and places, within or without the State of Delaware,
as shall be designated by the Chairman of the Board on not less than twelve
hours notice to each Director, given verbally, in writing or electronically,
whether personally, by telephone (including by message or recording device), by
facsimile transmission, by telegram, by telex or by electronic mail or by other
electronic means, or on not less than three (3) calendar days' notice to each
Director given by mail. Notice given by any of the foregoing means shall be
sufficient to constitute notice of a meeting without the necessity of further
notice.
4.6 Special Meetings. Special meetings of the Board of
Directors shall be held at the call of the Chairman of the Board at such times
and places, within or without the State of Delaware, as he or she shall
designate, on not less than twelve hours notice to each Director, given
verbally, in writing or electronically, whether personally, by telephone
(including by message or recording device), by facsimile transmission, by
telegram, by telex, by electronic mail or by other electronic means or on not
less than three (3) calendar days' notice to each Director given by mail. Notice
given by any of the foregoing means shall be sufficient to constitute notice of
a meeting without the necessity of further notice. Special meetings shall be
called by the Secretary on like notice at the written request of a majority of
the Directors then in office.
4.7 Quorum and Powers of a Majority. At all meetings of the
Board of Directors and of each committee thereof, a majority of the members
shall be necessary and sufficient to constitute a quorum for the transaction of
business, and the act of a majority of the members present at any meeting at
which a quorum is present shall be the act of the Board of Directors or such
committee, unless by express provision of law, of the Certificate of
Incorporation, or of these Bylaws, a different vote is required, in which case
such express provision shall govern and control. In the absence of a quorum, a
majority of the members present at any meeting may, without notice other than
announcement at the meeting, adjourn such meeting from time to time until a
quorum is present.
4.8 Waiver of Notice. Notice of any meeting of the Board of
Directors, or any committee thereof, need not be given to any member if waived
by him or her in writing, whether before or after such meeting is held, or if he
or she shall sign the minutes or attend the meeting, except that if such
Director attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened, then such Director shall not be deemed to have
waived notice of such meeting.
4.9 Manner of Acting. (a) Members of the Board of Directors,
or any committee thereof, may participate in any meeting of the Board of
Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating therein can
hear each other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
(b) Any action required or permitted to be taken at any
meeting of the Board of Directors or any committee thereof may be taken without
a meeting if all members of the Board of Directors or
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such committee, as the case may be, consent thereto in writing, and the writings
are filed with the minutes of proceedings of the Board of Directors or such
committee.
4.10 Compensation. (a) The Board of Directors, by a resolution
or resolutions, may fix, and from time to time change, the compensation of
Directors.
(b) Each Director shall be entitled to reimbursement from
the Corporation for his or her reasonable expenses incurred with respect to
duties as a member of the Board of Directors or any committee thereof.
(c) Nothing contained in these Bylaws shall be construed
to preclude any Director from serving the Corporation in any other capacity and
from receiving compensation from the Corporation for service rendered to it in
such other capacity.
4.11 Committees. The Board of Directors (or any committee
thereof having the power and authority to do so) may designate one or more
committees, each committee to consist of one or more Directors, which to the
extent provided in said resolution or resolutions shall have and may exercise
the powers and authority of the Board of Directors in the management of the
business and affairs of the corporation; provided, however, that no such
committee shall have the power or authority in reference to the following
matters: (i) approving or adopting, or recommending to the stockholders, any
action or matter expressly required by the General Corporation Law of Delaware
(the "GCLD") to be submitted to stockholders for approval or (ii) adopting,
amending, or repealing any bylaw of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member of the committee. In the absence or
disqualification of a member of a committee, the member or members present at
any meeting of such committee and not disqualified from voting, whether or not
such member of members constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in place of such absent
or disqualified director.
4.12 Committee Procedure, Limitations of Committee Powers. (a)
Except as otherwise provided by these Bylaws, each committee shall adopt its own
rules governing the time, place and method of holding its meetings and the
conduct of its proceedings and shall meet as provided by such rules or by
resolution of the Board of Directors. Unless otherwise provided by these Bylaws
or any such rules or resolutions, notice of the time and place of each meeting
of a committee shall be given to each member of such committee as provided in
Section 4.6 of these Bylaws with respect to notices of special meetings of the
Board of Directors.
(b) Each committee shall keep regular minutes of its
proceedings and report the same to the Board of Directors when required.
(c) Any member of any committee may be removed from such
committee either with or without cause, at any time, by the Board of Directors
at any meeting thereof. Any vacancy in any committee shall be filled by the
Board of Directors in the manner prescribed by the Certificate of Incorporation
or these Bylaws for the original appointment of the members of such committee.
5. OFFICERS.
5.1 Number. (a) The officers of the Corporation shall include
a Chief Executive Officer, a President, one or more Vice Presidents (including
one or more Executive Vice Presidents and one or more Senior Vice Presidents if
deemed appropriate by the Board of Directors), a Chief Financial Officer, a
Secretary, a Treasurer, and a Controller. The Board of Directors shall also
elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except
for the Chairman of the Board, the Vice Chairman of the Board, and the Chief
Executive Officer, none of the officers of the Corporation needs to be a
director of the Corporation. Any two or more offices may be held by the same
person to the extent permitted by the GCLD.
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(b) The Chief Executive Officer shall have the power to
appoint one or more employees of the Corporation as divisional or departmental
vice presidents and fix the duties of such appointees. However, no such
divisional or departmental vice president shall be considered as an officer of
the Corporation.
5.2 Election of Officers, Qualification and Term. The Chief
Executive Officer, the President, any Executive Vice President, any Senior Vice
President, the Chief Financial Officer, the Secretary and the Treasurer of the
Corporation shall be elected from time to time by the Board of Directors and,
except as may otherwise be expressly provided in a contract of employment duly
authorized by the Board of Directors, shall hold office at the pleasure of the
Board of Directors. The Board of Directors and the Chief Executive Officer also
may elect such other officers as the Board of Directors or the Chief Executive
Officer may from time to time deem appropriate or necessary.
5.3 Removal. Any officer elected by the Board of Directors
may be removed, either with or without cause, by the Board of Directors at any
meeting thereof, or to the extent delegated to the Chairman of the Board or the
Chief Executive Officer, by the Chairman of the Board or the Chief Executive
Officer.
5.4 Resignations. Any officer of the Corporation may resign
at any time by giving written notice to the Board of Directors or to the
Chairman of the Board or to the Chief Executive Officer. Such resignation shall
take effect at the date of the receipt of such notice or at any later time
specified therein and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
5.5 Compensation. The compensation of all officers of the
Corporation shall be fixed by or in the manner provided by the Board of
Directors from time to time, and no officer shall be prevented from receiving
such compensation by reason of the fact that he or she is also a Director of the
Corporation.
5.6 The Chairman of the Board. The Chairman of the Board
shall have the powers and duties customarily and usually associated with the
office of the Chairman of the Board and shall have such other powers and perform
such other duties as may be delegated to him or her by the Board of Directors.
The Chairman of the Board shall preside at meetings of the stockholders and of
the Board of Directors.
5.7 Vice Chairman of the Board. The Vice Chairman of the
Board, if any, shall have the powers and duties customarily and usually
associated with the office of the Vice Chairman of the Board and shall have such
other powers and perform such other duties as may be delegated to him or her by
the Board of Directors.
5.8 Chief Executive Officer. The Chief Executive Officer
shall have, subject to the supervision, direction and control of the Board of
Directors, the general powers and duties of supervision, direction and
management of the affairs and business of the Corporation usually vested in the
chief executive officer of a corporation, including, without limitation, all
powers necessary to direct and control the organizational and reporting
relationships within the Corporation. In addition, the Chief Executive Officer
shall have such other powers and perform such other duties as may be delegated
to him or her by the Board of Directors. If at any time the office of the
Chairman of the Board and the Vice Chairman of the Board shall not be filled, or
in the event of the temporary absence or disability of the Chairman of the Board
and the Vice Chairman of the Board, the Chief Executive Officer shall have the
powers and duties of the Chairman of the Board.
5.9 The President. The President shall serve as chief
operating officer, shall have the powers and duties customarily and usually
associated with the office of the President and shall have such other powers and
perform such other duties as may be delegated to him or her from time to time by
the Board of Directors or the Chief Executive Officer.
5.10 The Vice Presidents. Each Vice President shall have such
powers and duties customarily and usually associated with the office of Vice
President and shall have such other powers and perform
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such other duties as may from time to time be assigned to him or her by the
Board of Directors, the Chief Executive Officer, or the President.
5.11 The Chief Financial Officer. The Chief Financial Officer
shall be responsible for the financial affairs of the Corporation, including
overseeing the duties performed by the Treasurer of the Corporation. In
addition, the Chief Financial Officer shall have such powers and duties
customarily and usually associated with the office of the Chief Financial
Officer and shall have such other powers and perform such other duties as may be
delegated to him or her from time to time by the Board of Directors or the Chief
Executive Officer.
5.12 The Secretary and the Assistant Secretary. (a) The
Secretary shall attend meetings of the Board of Directors and meetings of the
stockholders and record all votes and minutes of all such proceedings in a book
kept for such purpose. In addition, the Secretary shall have such powers and
duties customarily and usually associated with the office of Secretary and shall
have such other powers and perform such other duties as may be delegated to him
or her by the Board of Directors, the Chief Executive Officer, or the President.
(b) Each Assistant Secretary shall have such powers and
perform such duties customarily and usually associated with the office of
Assistant Secretary and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Secretary. In case
of the absence or disability of the Secretary, the Assistant Secretary
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Secretary) shall perform the duties and exercise the powers
of the Secretary.
5.13 The Treasurer and the Assistant Treasurer. (a) The
Treasurer shall have custody of the Corporation's funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit or cause to be deposited moneys or other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The Treasurer shall
also maintain adequate records of all assets, liabilities, and transactions of
the Corporation and shall see that adequate audits thereof are currently and
regularly made. In addition, the Treasurer shall have such powers and duties
customarily and usually associated with the office of Treasurer and shall have
such other powers and perform such other duties as may be delegated to him or
her from time to time by the Board of Directors, the Chief Executive Officer,
the President or the Chief Financial Officer.
(b) Each Assistant Treasurer shall have such powers and
perform such duties customarily and usually associated with the office of
Assistant Treasurer and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Treasurer. In case
of the absence or disability of the Treasurer, the Assistant Treasurer
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Treasurer) shall perform the duties and exercise the powers
of the Treasurer.
5.14 Controller. The Controller shall be responsible for
maintaining the accounting records and statements, and shall properly account
for all monies and obligations due the Corporation and all properties, assets,
and liabilities of the Corporation. The Controller shall render to the Chairman
of the Board, the President or the Chief Financial Officer such periodic reports
covering the results of operations of the Corporation as may be required by
either of them or by law. In addition, the Controller shall have such powers and
duties customarily and usually associated with the office of Controller and
shall have such other powers and perform such other duties as may be delegated
to him or her from time to time by the Board of Directors, the Chief Executive
Officer, the President or the Chief Financial Officer.
6. STOCK
6.1 Certificates. Certificates for shares of stock of the
Corporation shall be issued under the seal of the Corporation, or a facsimile
thereof, and shall be numbered and shall be entered in the books of the
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Corporation as they are issued. Each certificate shall bear a serial number,
shall exhibit the holder's name and the number of shares evidenced thereby, and
shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the
Chief Executive Officer or the President or any Vice President, and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer.
Any or all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if such person or entity
were such officer, transfer agent, or registrar at the date of issue.
6.2 Transfers. Transfers of stock of the Corporation shall be
made on the books of the Corporation only upon surrender to the Corporation of a
certificate (if any) for the shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, provided such
succession, assignment, or transfer is not prohibited by the Certificate of
Incorporation, these Bylaws, applicable law or contract. Thereupon, the
Corporation shall issue a new certificate (if requested) to the person entitled
thereto, cancel the old certificate (if any), and record the transaction upon
its books.
6.3 Lost, Stolen, or Destroyed Certificates. Any person
claiming a certificate of stock to be lost, stolen, or destroyed shall make an
affidavit or an affirmation of that fact, and shall give the Corporation a bond
of indemnity in satisfactory form and with one or more satisfactory sureties,
whereupon a new certificate (if requested) may be issued of the same tenor and
for the same number of shares as the one alleged to be lost, stolen, or
destroyed.
6.4 Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares as the person entitled to exercise the rights of a stockholder
and shall not be bound to recognize any equitable or other claim to or interest
in any such shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise expressly provided by the
GCLD.
6.5 Additional Powers of the Board. (a) In addition to those
powers set forth in Section 4.1, the Board of Directors shall have power and
authority to make all such rules and regulations as it shall deem expedient
concerning the issue, transfer, and registration of certificates for shares of
stock of the Corporation, including the use of uncertificated shares of stock
subject to the provisions of the GCLD.
(b) The Board of Directors may appoint and remove transfer
agents and registrars of transfers, and may require all stock certificates to
bear the signature of any such transfer agent and/or any such registrar of
transfers.
7. INDEMNIFICATION
7.1 Each person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or the person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation, as a
director, officer, employee, or agent of another corporation or of a
partnership, joint venture, trust, or other enterprise, including service with
respect to employee benefit plans, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the GCLD, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expenses, liability, and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of his or her heirs, executors, and administrators; provided,
however, that, except as provided in this Article 7, the Corporation shall
indemnify any
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such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if authorized by the Board of Directors
of the Corporation. Any indemnification under this Article 7 (unless ordered by
a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee, or agent is proper in the circumstances because he or she has met the
applicable standard set forth in the GCLD. Such a determination shall be made
(a) by a majority vote of the directors who are not parties to such action, suit
or proceeding, even though less than a quorum; (b) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum; (c) by independent legal counsel (compensated by the Corporation) in a
written opinion; (d) by the stockholders; or (e) in any other manner permitted
by the GCLD. In addition to the right to indemnification conferred in this
Article 7, each of the above persons shall have the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that, if the GCLD requires, the
payment of such expenses incurred by a present director or officer in his or her
capacity as a director or officer of the corporation (and not in any other
capacity in which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such present
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Article 7 or otherwise. The Corporation may, by any manner permitted by the
GCLD, provide indemnification and advancement of expenses to employees and
agents of the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers. The right to indemnification and to
an advancement of expenses conferred in this Article 7 shall be a contract
right.
7.2 If a claim under Section 7.1 of this Article 7 is not paid
in full by the Corporation within 30 days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim (including attorneys' fees). It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the GCLD for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, a committee thereof, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the GCLD, nor an actual determination by the Corporation (including
its Board of Directors, a committee thereof, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct. In any suit brought by the claimant
to enforce a right to indemnification or to an advancement of expenses
hereunder, or brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the claimant
is not entitled to be indemnified, or to such advancement of expenses, under
this Article 7 or otherwise shall be on the Corporation.
7.3 The rights to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Article 7, shall not be exclusive of any other right that any person may
have or hereafter acquire under any statute, provision of the certificate of
incorporation of the Corporation, this bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
7.4 The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee, or agent of the Corporation
or another corporation, partnership, joint venture, trust, or other enterprise
against any such expense, liability, or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability,
or loss under the GCLD.
7.5 The Corporation may enter into an indemnity agreement with
any director, officer, employee, or agent of the Corporation, or of another
corporation, partnership, joint venture, trust, or other
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enterprise, upon terms and conditions that the Board of Directors deems
appropriate, as long as the provisions of the agreement are not impermissible
under applicable law.
7.6 Any amendment or repeal of this Article 7 shall not be
retroactive in effect.
7.7 In case any provision in this Article 7 shall be
determined at any time to be unenforceable in any respect, the other provisions
shall not in any way be affected or impaired thereby, and the affected provision
shall be given the fullest possible enforcement in the circumstances, it being
the intention of the Corporation to afford indemnification and advancement of
expenses to the persons indemnified hereby to the fullest extent permitted by
law.
7.8 The Corporation may, by action of the Board of Directors,
authorize one or more officers to grant rights to indemnification and
advancement of expenses to former directors and officers or to other employees
or agents of the Corporation on such terms and conditions as such officer or
officers deem appropriate under the circumstances.
8. MISCELLANEOUS
8.1 Place and Inspection of Books. (a) The books of the
Corporation other than such books as are required by law to be kept within the
State of Delaware shall be kept in such place or places either within or without
the State of Delaware as the Board of Directors may from time to time determine.
(b) At least ten days before each meeting of stockholders,
the officer in charge of the stock ledger of the Corporation shall prepare a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order and showing the address of each stockholder and the number of
shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
(c) The Board of Directors shall determine from time to
time whether and, if allowed, when and under what conditions and regulations the
accounts and books of the Corporation (except such as may be by law specifically
open to inspection or as otherwise provided by these Bylaws) or any of them
shall be open to the inspection of the stockholders and the stockholders' rights
in respect thereof.
8.2 Voting Shares in Other Corporations. The Chief Executive
Officer, the President, the Chief Financial Officer or any other officer of the
Corporation designated by the Board of Directors may vote any and all shares
held by the Corporation in any other corporation.
8.3 Fiscal Year. The fiscal year of the Corporation shall be
such fiscal year as the Board of Directors from time to time by resolution shall
determine.
8.4 Gender/Number. As used in these Bylaws, the masculine,
feminine, or neuter gender, and the singular or plural number, shall each
include the others whenever the context so indicates.
8.5 Paragraph Titles. The titles of the paragraphs have been
inserted as a matter of reference only and shall not control or affect the
meaning or construction of any of the terms and provisions hereof.
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8.6 Amendment. These Bylaws may be altered, amended, or
repealed by (a) the affirmative vote of 80% or more of the aggregate number of
votes that the holders of the then outstanding shares of common stock and
preferred stock are entitled to cast on the amendment, or (b) by resolution
adopted by the affirmative vote of not less than a majority of the Directors in
office, at any annual or regular meeting of the Board of Directors or at any
special meeting of the Board of Directors if notice of the proposed alteration,
amendment, or repeal be contained in written notice of such special meeting.
Notwithstanding the foregoing, the amendment of any provision of these Bylaws
that requires an affirmative vote in excess of a majority of the Directors in
office shall require the affirmative vote of at least the number of directors
the affirmative vote of whom is required by such provision.
8.7 Certificate of Incorporation. Notwithstanding anything to
the contrary contained herein, if any provision contained in these Bylaws is
inconsistent with or conflicts with a provision of the Certificate of
Incorporation, such provision of these Bylaws shall be superseded by the
inconsistent provision in the Certificate of Incorporation to the extent
necessary to give effect to such provision in the Certificate of Incorporation.
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DCTC-Burney, Inc
B.19.2
Amended and Restated Bylaws
Adopted December 31, 1999
<PAGE> 2
AMENDED AND RESTATED
B Y L A W S
OF
DCTC-BURNEY, INC.
1. OFFICES.
1.1 Offices. In addition to its registered office in the State
of Delaware, the Corporation shall have a corporate office in Wilmington,
Delaware, and such other offices, either within or without the State of
Delaware, at such locations as the Board of Directors may from time to time
determine or the business of the Corporation may require.
2. SEAL.
2.1 Seal. The Corporation shall have a seal, which shall have
inscribed thereon its name and year of incorporation and the words, "Corporate
Seal Delaware."
3. MEETINGS OF STOCKHOLDERS.
3.1 Annual Meetings. The annual meeting of stockholders of the
Corporation shall be held on such date, at such time and at such place within or
without the State of Delaware as shall be determined by the Board of Directors
from time to time.
3.2 Special Meetings. Special meetings of the stockholders of
the Corporation shall be held on such date, at such time and at such place
within or without the State of Delaware as may be designated by the Chairman of
the Board or by the Board of Directors.
3.3 Notice of Meetings. (a) Notices of meetings of
stockholders shall be in writing and shall state the place, date, and hour of
the meeting, and, in the case of a special meeting, the purpose or purposes for
which a meeting is called. No business other than that specified in the notice
thereof shall be transacted at any special meeting.
(b) Such notice shall either be delivered personally,
mailed, postage prepaid, or delivered by any other lawful means to each
stockholder entitled to vote at such meeting not less than 10 nor more than 60
days before the date of the meeting. If mailed, the notice shall be directed to
the stockholder at his or her address as it appears on the records of the
Corporation. Delivery of any such notice to any officer of a corporation or
association or to any member of a partnership shall constitute delivery of such
notice to such corporation, association, or partnership.
(c) Notice of any meeting of stockholders need not be
given to any stockholder if waived by such stockholder in writing, whether
before or after such meeting is held, or if such stockholder shall sign the
minutes or attend the meeting, except that if such stockholder attends a meeting
for the express purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened, such stockholder shall not be deemed to have waived notice of such
meeting.
3.4 Adjourned Meetings. When a meeting is adjourned to another
time or place, unless otherwise provided by these Bylaws, notice need not be
given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. At the adjourned meeting the
stockholders may transact any business that might have been transacted at the
original meeting. If an adjournment
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is for more than 30 days, or if after an adjournment, a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder entitled to vote at the meeting.
3.5 Quorum and Adjournment. Except as otherwise provided by
law, by the Certificate of Incorporation of the Corporation, or by these Bylaws,
the presence, in person or by proxy, of the holders of a majority of the
aggregate voting power of the stock issued and outstanding, entitled to vote
thereat, shall constitute a quorum for the transaction of business at all
meetings of stockholders. If such majority shall not be present or represented
at any meeting of stockholders, the stockholders present, although less than a
quorum, shall have the power to adjourn the meeting.
3.6 Vote Required. Except as otherwise provided by law or by
the Certificate of Incorporation:
(a) Directors shall be elected by a plurality of the
votes present in person or represented by proxy at a meeting of stockholders and
entitled to vote in the election of directors, and
(b) whenever any corporate action other than the election
of Directors is to be taken, it shall be authorized by a majority in voting
power of the shares present in person or by proxy at a meeting of stockholders
and entitled to vote on the subject matter.
3.7 Manner of Voting. At each meeting of stockholders, each
stockholder having the right to vote shall be entitled to vote in person or by
proxy. Proxies need not be filed with the Secretary of the Corporation until the
meeting is called to order, but shall be filed before being voted. Each
stockholder shall be entitled to vote each share of stock having voting power
registered in his or her name on the books of the Corporation on the record date
fixed for determination of stockholders entitled to vote at such meeting.
3.8 Stockholder Action Without a Meeting. Except as otherwise
provided by law or by the Certificate of Incorporation, any action required to
be taken at any meeting of stockholders of the corporation, or any action that
may be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice, and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing and who,
if the action had been taken at a meeting, would have been entitled to notice of
the meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of the holders to take the action were
delivered to the Corporation.
3.9 Proxies. (a) At any meeting of stockholders, any
stockholder may be represented and vote by proxy or proxies. In the event that
any form of proxy shall designate two or more persons to act as proxies, a
majority of such persons present at the meeting or, if only one shall be
present, then that one shall have and may exercise all of the powers conferred
by the form of proxy upon all of the persons so designated unless the form of
proxy shall otherwise provide.
(b) The Board of Directors may, in advance of any annual
or special meeting of the stockholders, prescribe additional regulations
concerning the validation of the same, which are intended to be voted at any
such meeting.
3.10 Presiding Officer and Secretary. The Chairman of the
Board shall act as chairman of all meetings of the stockholders. In the absence
of the Chairman of the Board, the Vice Chairman of the Board or, in his or her
absence, any Director designated by the Chairman of the Board or the Board of
Directors shall act as chairman of the meeting.
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The Secretary of the Corporation shall act as secretary of all
meetings of the stockholders, but, in the absence of the Secretary, the
Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the stockholders, but in the
absence of a designated Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
3.11 Procedure. At each meeting of stockholders, the chairman
of the meeting shall fix and announce the date and time of the opening and the
closing of the polls for each matter upon which the stockholders will vote at
the meeting and shall determine the order of business and all other matters of
procedure. Except to the extent inconsistent with any such rules and regulations
as adopted by the Board of Directors, the chairman of the meeting may establish
rules, which need not be in writing, to maintain order and safety and for the
conduct of the meeting. Without limiting the foregoing, he or she may:
(a) restrict attendance at any time to bona fide
stockholders of record and their proxies and other persons in attendance at the
invitation of the chairman;
(b) restrict dissemination of solicitation materials and
use of audio or visual recording devices at the meeting;
(c) adjourn the meeting without a vote of the
stockholders, whether or not there is a quorum present; and
(d) make rules governing speeches and debate, including
time limits and access to microphones.
The chairman of the meeting shall be entitled to act in his or her absolute
discretion and his or her rulings shall not be subject to appeal.
4. DIRECTORS.
4.1 Powers and Number. The Board of Directors shall exercise
all of the powers of the Corporation except such as are by law, or by the
Certificate of Incorporation of this Corporation or by these Bylaws conferred
upon or reserved to the stockholders of any class or classes. The number of
directors that shall constitute the whole Board of Directors shall be no fewer
than three (3) and no greater than nine (9), the exact number of directors to be
determined from time to time by resolution adopted by the Board of Directors or
the stockholders, and until otherwise determined by the Board of Directors or
the stockholders, the number of directors that shall constitute the whole Board
of Directors shall be three (3).
4.2 Resignations. Any Director may resign at any time by
giving written notice to the Board of Directors or the Secretary. Such
resignation shall take effect at the date of receipt of such notice or at any
later time specified therein. Acceptance of such resignation shall not be
necessary to make it effective.
4.3 Presiding Officer and Secretary. The Chairman of the
Board shall act as chairman of all meetings of the Board of Directors. In the
absence of the Chairman of the Board, the Vice Chairman of the Board, or in his
absence, the Chief Executive Officer or other person designated by the Board of
Directors shall act as chairman of the meeting.
The Secretary of the Corporation shall act as secretary
of all meetings of the Board of Directors, but, in the absence of the Secretary,
the Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the Board of Directors, but in
the absence of a designated Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
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4.4 Annual Meetings. The Board of Directors shall meet each
year immediately following the annual meeting of stockholders, at the place
where such meeting of stockholders has been held, or at such other place as
shall be fixed by the person presiding over the meeting of the stockholders, for
the purpose of election of officers and consideration of such other business as
the Board of Directors considers relevant to the management of the Corporation.
In the event that in any year Directors are elected by written consent in lieu
of an annual meeting of stockholders, the Board of Directors shall meet in such
year as soon as practicable after receipt of such written consent by the
Corporation at such time and place as shall be fixed by the Chairman of the
Board, for the purpose of election of officers and consideration of such other
business as the Board of Directors considers relevant to the management of the
Corporation.
4.5 Regular Meetings. Regular meetings of the Board of
Directors shall be held on such dates and at such times and places, within or
without the state of Delaware, as shall from time to time be determined by the
Board of Directors. In the absence of any such determination, such meetings
shall be held at such times and places, within or without the State of Delaware,
as shall be designated by the Chairman of the Board on not less than twelve
hours notice to each Director, given verbally, in writing or electronically,
whether personally, by telephone (including by message or recording device), by
facsimile transmission, by telegram, by telex or by electronic mail or by other
electronic means, or on not less than three (3) calendar days' notice to each
Director given by mail. Notice given by any of the foregoing means shall be
sufficient to constitute notice of a meeting without the necessity of further
notice.
4.6 Special Meetings. Special meetings of the Board of
Directors shall be held at the call of the Chairman of the Board at such times
and places, within or without the State of Delaware, as he or she shall
designate, on not less than twelve hours notice to each Director, given
verbally, in writing or electronically, whether personally, by telephone
(including by message or recording device), by facsimile transmission, by
telegram, by telex, by electronic mail or by other electronic means or on not
less than three (3) calendar days' notice to each Director given by mail. Notice
given by any of the foregoing means shall be sufficient to constitute notice of
a meeting without the necessity of further notice. Special meetings shall be
called by the Secretary on like notice at the written request of a majority of
the Directors then in office.
4.7 Quorum and Powers of a Majority. At all meetings of the
Board of Directors and of each committee thereof, a majority of the members
shall be necessary and sufficient to constitute a quorum for the transaction of
business, and the act of a majority of the members present at any meeting at
which a quorum is present shall be the act of the Board of Directors or such
committee, unless by express provision of law, of the Certificate of
Incorporation, or of these Bylaws, a different vote is required, in which case
such express provision shall govern and control. In the absence of a quorum, a
majority of the members present at any meeting may, without notice other than
announcement at the meeting, adjourn such meeting from time to time until a
quorum is present.
4.8 Waiver of Notice. Notice of any meeting of the Board of
Directors, or any committee thereof, need not be given to any member if waived
by him or her in writing, whether before or after such meeting is held, or if he
or she shall sign the minutes or attend the meeting, except that if such
Director attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened, then such Director shall not be deemed to have
waived notice of such meeting.
4.9 Manner of Acting. (a) Members of the Board of Directors,
or any committee thereof, may participate in any meeting of the Board of
Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating therein can
hear each other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
(b) Any action required or permitted to be taken at any
meeting of the Board of Directors or any committee thereof may be taken without
a meeting if all members of the Board of Directors or
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such committee, as the case may be, consent thereto in writing, and the writings
are filed with the minutes of proceedings of the Board of Directors or such
committee.
4.10 Compensation. (a) The Board of Directors, by a
resolution or resolutions, may fix, and from time to time change, the
compensation of Directors.
(b) Each Director shall be entitled to reimbursement from
the Corporation for his or her reasonable expenses incurred with respect to
duties as a member of the Board of Directors or any committee thereof.
(c) Nothing contained in these Bylaws shall be construed
to preclude any Director from serving the Corporation in any other capacity and
from receiving compensation from the Corporation for service rendered to it in
such other capacity.
4.11 Committees. The Board of Directors (or any committee
thereof having the power and authority to do so) may designate one or more
committees, each committee to consist of one or more Directors, which to the
extent provided in said resolution or resolutions shall have and may exercise
the powers and authority of the Board of Directors in the management of the
business and affairs of the corporation; provided, however, that no such
committee shall have the power or authority in reference to the following
matters: (i) approving or adopting, or recommending to the stockholders, any
action or matter expressly required by the General Corporation Law of Delaware
(the "GCLD") to be submitted to stockholders for approval or (ii) adopting,
amending, or repealing any bylaw of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member of the committee. In the absence or
disqualification of a member of a committee, the member or members present at
any meeting of such committee and not disqualified from voting, whether or not
such member of members constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in place of such absent
or disqualified director.
4.12 Committee Procedure, Limitations of Committee Powers. (a)
Except as otherwise provided by these Bylaws, each committee shall adopt its own
rules governing the time, place and method of holding its meetings and the
conduct of its proceedings and shall meet as provided by such rules or by
resolution of the Board of Directors. Unless otherwise provided by these Bylaws
or any such rules or resolutions, notice of the time and place of each meeting
of a committee shall be given to each member of such committee as provided in
Section 4.6 of these Bylaws with respect to notices of special meetings of the
Board of Directors.
(b) Each committee shall keep regular minutes of its
proceedings and report the same to the Board of Directors when required.
(c) Any member of any committee may be removed from such
committee either with or without cause, at any time, by the Board of Directors
at any meeting thereof. Any vacancy in any committee shall be filled by the
Board of Directors in the manner prescribed by the Certificate of Incorporation
or these Bylaws for the original appointment of the members of such committee.
5. OFFICERS.
5.1 Number. (a) The officers of the Corporation shall include
a Chief Executive Officer, a President, one or more Vice Presidents (including
one or more Executive Vice Presidents and one or more Senior Vice Presidents if
deemed appropriate by the Board of Directors), a Chief Financial Officer, a
Secretary, a Treasurer, and a Controller. The Board of Directors shall also
elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except
for the Chairman of the Board, the Vice Chairman of the Board, and the Chief
Executive Officer, none of the officers of the Corporation needs to be a
director of the Corporation. Any two or more offices may be held by the same
person to the extent permitted by the GCLD.
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(b) The Chief Executive Officer shall have the power to
appoint one or more employees of the Corporation as divisional or departmental
vice presidents and fix the duties of such appointees. However, no such
divisional or departmental vice president shall be considered as an officer of
the Corporation.
5.2 Election of Officers, Qualification and Term. The Chief
Executive Officer, the President, any Executive Vice President, any Senior Vice
President, the Chief Financial Officer, the Secretary and the Treasurer of the
Corporation shall be elected from time to time by the Board of Directors and,
except as may otherwise be expressly provided in a contract of employment duly
authorized by the Board of Directors, shall hold office at the pleasure of the
Board of Directors. The Board of Directors and the Chief Executive Officer also
may elect such other officers as the Board of Directors or the Chief Executive
Officer may from time to time deem appropriate or necessary.
5.3 Removal. Any officer elected by the Board of Directors
may be removed, either with or without cause, by the Board of Directors at any
meeting thereof, or to the extent delegated to the Chairman of the Board or the
Chief Executive Officer, by the Chairman of the Board or the Chief Executive
Officer.
5.4 Resignations. Any officer of the Corporation may resign
at any time by giving written notice to the Board of Directors or to the
Chairman of the Board or to the Chief Executive Officer. Such resignation shall
take effect at the date of the receipt of such notice or at any later time
specified therein and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
5.5 Compensation. The compensation of all officers of the
Corporation shall be fixed by or in the manner provided by the Board of
Directors from time to time, and no officer shall be prevented from receiving
such compensation by reason of the fact that he or she is also a Director of the
Corporation.
5.6 The Chairman of the Board. The Chairman of the Board
shall have the powers and duties customarily and usually associated with the
office of the Chairman of the Board and shall have such other powers and perform
such other duties as may be delegated to him or her by the Board of Directors.
The Chairman of the Board shall preside at meetings of the stockholders and of
the Board of Directors.
5.7 Vice Chairman of the Board. The Vice Chairman of the
Board, if any, shall have the powers and duties customarily and usually
associated with the office of the Vice Chairman of the Board and shall have such
other powers and perform such other duties as may be delegated to him or her by
the Board of Directors.
5.8 Chief Executive Officer. The Chief Executive Officer
shall have, subject to the supervision, direction and control of the Board of
Directors, the general powers and duties of supervision, direction and
management of the affairs and business of the Corporation usually vested in the
chief executive officer of a corporation, including, without limitation, all
powers necessary to direct and control the organizational and reporting
relationships within the Corporation. In addition, the Chief Executive Officer
shall have such other powers and perform such other duties as may be delegated
to him or her by the Board of Directors. If at any time the office of the
Chairman of the Board and the Vice Chairman of the Board shall not be filled, or
in the event of the temporary absence or disability of the Chairman of the Board
and the Vice Chairman of the Board, the Chief Executive Officer shall have the
powers and duties of the Chairman of the Board.
5.9 The President. The President shall serve as chief
operating officer, shall have the powers and duties customarily and usually
associated with the office of the President and shall have such other powers and
perform such other duties as may be delegated to him or her from time to time by
the Board of Directors or the Chief Executive Officer.
5.10 The Vice Presidents. Each Vice President shall have such
powers and duties customarily and usually associated with the office of Vice
President and shall have such other powers and perform
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such other duties as may from time to time be assigned to him or her by the
Board of Directors, the Chief Executive Officer, or the President.
5.11 The Chief Financial Officer. The Chief Financial Officer
shall be responsible for the financial affairs of the Corporation, including
overseeing the duties performed by the Treasurer of the Corporation. In
addition, the Chief Financial Officer shall have such powers and duties
customarily and usually associated with the office of the Chief Financial
Officer and shall have such other powers and perform such other duties as may be
delegated to him or her from time to time by the Board of Directors or the Chief
Executive Officer.
5.12 The Secretary and the Assistant Secretary. (a) The
Secretary shall attend meetings of the Board of Directors and meetings of the
stockholders and record all votes and minutes of all such proceedings in a book
kept for such purpose. In addition, the Secretary shall have such powers and
duties customarily and usually associated with the office of Secretary and shall
have such other powers and perform such other duties as may be delegated to him
or her by the Board of Directors, the Chief Executive Officer, or the President.
(b) Each Assistant Secretary shall have such powers and
perform such duties customarily and usually associated with the office of
Assistant Secretary and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Secretary. In case
of the absence or disability of the Secretary, the Assistant Secretary
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Secretary) shall perform the duties and exercise the powers
of the Secretary.
5.13 The Treasurer and the Assistant Treasurer. (a) The
Treasurer shall have custody of the Corporation's funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit or cause to be deposited moneys or other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The Treasurer shall
also maintain adequate records of all assets, liabilities, and transactions of
the Corporation and shall see that adequate audits thereof are currently and
regularly made. In addition, the Treasurer shall have such powers and duties
customarily and usually associated with the office of Treasurer and shall have
such other powers and perform such other duties as may be delegated to him or
her from time to time by the Board of Directors, the Chief Executive Officer,
the President or the Chief Financial Officer.
(b) Each Assistant Treasurer shall have such powers and
perform such duties customarily and usually associated with the office of
Assistant Treasurer and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Treasurer. In case
of the absence or disability of the Treasurer, the Assistant Treasurer
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Treasurer) shall perform the duties and exercise the powers
of the Treasurer.
5.14 Controller. The Controller shall be responsible for
maintaining the accounting records and statements, and shall properly account
for all monies and obligations due the Corporation and all properties, assets,
and liabilities of the Corporation. The Controller shall render to the Chairman
of the Board, the President or the Chief Financial Officer such periodic reports
covering the results of operations of the Corporation as may be required by
either of them or by law. In addition, the Controller shall have such powers and
duties customarily and usually associated with the office of Controller and
shall have such other powers and perform such other duties as may be delegated
to him or her from time to time by the Board of Directors, the Chief Executive
Officer, the President or the Chief Financial Officer.
6. STOCK
6.1 Certificates. Certificates for shares of stock of the
Corporation shall be issued under the seal of the Corporation, or a facsimile
thereof, and shall be numbered and shall be entered in the books of the
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Corporation as they are issued. Each certificate shall bear a serial number,
shall exhibit the holder's name and the number of shares evidenced thereby, and
shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the
Chief Executive Officer or the President or any Vice President, and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer.
Any or all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if such person or entity
were such officer, transfer agent, or registrar at the date of issue.
6.2 Transfers. Transfers of stock of the Corporation shall be
made on the books of the Corporation only upon surrender to the Corporation of a
certificate (if any) for the shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, provided such
succession, assignment, or transfer is not prohibited by the Certificate of
Incorporation, these Bylaws, applicable law or contract. Thereupon, the
Corporation shall issue a new certificate (if requested) to the person entitled
thereto, cancel the old certificate (if any), and record the transaction upon
its books.
6.3 Lost, Stolen, or Destroyed Certificates. Any person
claiming a certificate of stock to be lost, stolen, or destroyed shall make an
affidavit or an affirmation of that fact, and shall give the Corporation a bond
of indemnity in satisfactory form and with one or more satisfactory sureties,
whereupon a new certificate (if requested) may be issued of the same tenor and
for the same number of shares as the one alleged to be lost, stolen, or
destroyed.
6.4 Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares as the person entitled to exercise the rights of a stockholder
and shall not be bound to recognize any equitable or other claim to or interest
in any such shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise expressly provided by the
GCLD.
6.5 Additional Powers of the Board. (a) In addition to those
powers set forth in Section 4.1, the Board of Directors shall have power and
authority to make all such rules and regulations as it shall deem expedient
concerning the issue, transfer, and registration of certificates for shares of
stock of the Corporation, including the use of uncertificated shares of stock
subject to the provisions of the GCLD.
(b) The Board of Directors may appoint and remove transfer
agents and registrars of transfers, and may require all stock certificates to
bear the signature of any such transfer agent and/or any such registrar of
transfers.
7. INDEMNIFICATION
7.1 Each person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or the person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation, as a
director, officer, employee, or agent of another corporation or of a
partnership, joint venture, trust, or other enterprise, including service with
respect to employee benefit plans, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the GCLD, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expenses, liability, and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of his or her heirs, executors, and administrators; provided,
however, that, except as provided in this Article 7, the Corporation shall
indemnify any
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such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if authorized by the Board of Directors
of the Corporation. Any indemnification under this Article 7 (unless ordered by
a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee, or agent is proper in the circumstances because he or she has met the
applicable standard set forth in the GCLD. Such a determination shall be made
(a) by a majority vote of the directors who are not parties to such action, suit
or proceeding, even though less than a quorum; (b) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum; (c) by independent legal counsel (compensated by the Corporation) in a
written opinion; (d) by the stockholders; or (e) in any other manner permitted
by the GCLD. In addition to the right to indemnification conferred in this
Article 7, each of the above persons shall have the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that, if the GCLD requires, the
payment of such expenses incurred by a present director or officer in his or her
capacity as a director or officer of the corporation (and not in any other
capacity in which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such present
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Article 7 or otherwise. The Corporation may, by any manner permitted by the
GCLD, provide indemnification and advancement of expenses to employees and
agents of the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers. The right to indemnification and to
an advancement of expenses conferred in this Article 7 shall be a contract
right.
7.2 If a claim under Section 7.1 of this Article 7 is not paid
in full by the Corporation within 30 days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim (including attorneys' fees). It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the GCLD for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, a committee thereof, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the GCLD, nor an actual determination by the Corporation (including
its Board of Directors, a committee thereof, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct. In any suit brought by the claimant
to enforce a right to indemnification or to an advancement of expenses
hereunder, or brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the claimant
is not entitled to be indemnified, or to such advancement of expenses, under
this Article 7 or otherwise shall be on the Corporation.
7.3 The rights to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Article 7, shall not be exclusive of any other right that any person may
have or hereafter acquire under any statute, provision of the certificate of
incorporation of the Corporation, this bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
7.4 The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee, or agent of the Corporation
or another corporation, partnership, joint venture, trust, or other enterprise
against any such expense, liability, or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability,
or loss under the GCLD.
7.5 The Corporation may enter into an indemnity agreement with
any director, officer, employee, or agent of the Corporation, or of another
corporation, partnership, joint venture, trust, or other
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enterprise, upon terms and conditions that the Board of Directors deems
appropriate, as long as the provisions of the agreement are not impermissible
under applicable law.
7.6 Any amendment or repeal of this Article 7 shall not be
retroactive in effect.
7.7 In case any provision in this Article 7 shall be
determined at any time to be unenforceable in any respect, the other provisions
shall not in any way be affected or impaired thereby, and the affected provision
shall be given the fullest possible enforcement in the circumstances, it being
the intention of the Corporation to afford indemnification and advancement of
expenses to the persons indemnified hereby to the fullest extent permitted by
law.
7.8 The Corporation may, by action of the Board of Directors,
authorize one or more officers to grant rights to indemnification and
advancement of expenses to former directors and officers or to other employees
or agents of the Corporation on such terms and conditions as such officer or
officers deem appropriate under the circumstances.
8. MISCELLANEOUS
8.1 Place and Inspection of Books. (a) The books of the
Corporation other than such books as are required by law to be kept within the
State of Delaware shall be kept in such place or places either within or without
the State of Delaware as the Board of Directors may from time to time determine.
(b) At least ten days before each meeting of stockholders,
the officer in charge of the stock ledger of the Corporation shall prepare a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order and showing the address of each stockholder and the number of
shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
(c) The Board of Directors shall determine from time to
time whether and, if allowed, when and under what conditions and regulations the
accounts and books of the Corporation (except such as may be by law specifically
open to inspection or as otherwise provided by these Bylaws) or any of them
shall be open to the inspection of the stockholders and the stockholders' rights
in respect thereof.
8.2 Voting Shares in Other Corporations. The Chief Executive
Officer, the President, the Chief Financial Officer or any other officer of the
Corporation designated by the Board of Directors may vote any and all shares
held by the Corporation in any other corporation.
8.3 Fiscal Year. The fiscal year of the Corporation shall be
such fiscal year as the Board of Directors from time to time by resolution shall
determine.
8.4 Gender/Number. As used in these Bylaws, the masculine,
feminine, or neuter gender, and the singular or plural number, shall each
include the others whenever the context so indicates.
8.5 Paragraph Titles. The titles of the paragraphs have been
inserted as a matter of reference only and shall not control or affect the
meaning or construction of any of the terms and provisions hereof.
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8.6 Amendment. These Bylaws may be altered, amended, or
repealed by (a) the affirmative vote of 80% or more of the aggregate number of
votes that the holders of the then outstanding shares of common stock and
preferred stock are entitled to cast on the amendment, or (b) by resolution
adopted by the affirmative vote of not less than a majority of the Directors in
office, at any annual or regular meeting of the Board of Directors or at any
special meeting of the Board of Directors if notice of the proposed alteration,
amendment, or repeal be contained in written notice of such special meeting.
Notwithstanding the foregoing, the amendment of any provision of these Bylaws
that requires an affirmative vote in excess of a majority of the Directors in
office shall require the affirmative vote of at least the number of directors
the affirmative vote of whom is required by such provision.
8.7 Certificate of Incorporation. Notwithstanding anything to
the contrary contained herein, if any provision contained in these Bylaws is
inconsistent with or conflicts with a provision of the Certificate of
Incorporation, such provision of these Bylaws shall be superseded by the
inconsistent provision in the Certificate of Incorporation to the extent
necessary to give effect to such provision in the Certificate of Incorporation.
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Conectiv Operating Services Company
B.20.3
Amended and Restated Bylaws
Adopted December 31, 1999
<PAGE> 2
AMENDED AND RESTATED
B Y L A W S
OF
CONECTIV OPERATING SERVICES COMPANY
1. OFFICES.
1.1 Offices. In addition to its registered office in the State
of Delaware, the Corporation shall have a corporate office in Wilmington,
Delaware, and such other offices, either within or without the State of
Delaware, at such locations as the Board of Directors may from time to time
determine or the business of the Corporation may require.
2. SEAL.
2.1 Seal. The Corporation shall have a seal, which shall have
inscribed thereon its name and year of incorporation and the words, "Corporate
Seal Delaware."
3. MEETINGS OF STOCKHOLDERS.
3.1 Annual Meetings. The annual meeting of stockholders of the
Corporation shall be held on such date, at such time and at such place within or
without the State of Delaware as shall be determined by the Board of Directors
from time to time.
3.2 Special Meetings. Special meetings of the stockholders of
the Corporation shall be held on such date, at such time and at such place
within or without the State of Delaware as may be designated by the Chairman of
the Board or by the Board of Directors.
3.3 Notice of Meetings. (a) Notices of meetings of
stockholders shall be in writing and shall state the place, date, and hour of
the meeting, and, in the case of a special meeting, the purpose or purposes for
which a meeting is called. No business other than that specified in the notice
thereof shall be transacted at any special meeting.
(b) Such notice shall either be delivered personally,
mailed, postage prepaid, or delivered by any other lawful means to each
stockholder entitled to vote at such meeting not less than 10 nor more than 60
days before the date of the meeting. If mailed, the notice shall be directed to
the stockholder at his or her address as it appears on the records of the
Corporation. Delivery of any such notice to any officer of a corporation or
association or to any member of a partnership shall constitute delivery of such
notice to such corporation, association, or partnership.
(c) Notice of any meeting of stockholders need not be
given to any stockholder if waived by such stockholder in writing, whether
before or after such meeting is held, or if such stockholder shall sign the
minutes or attend the meeting, except that if such stockholder attends a meeting
for the express purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened, such stockholder shall not be deemed to have waived notice of such
meeting.
3.4 Adjourned Meetings. When a meeting is adjourned to another
time or place, unless otherwise provided by these Bylaws, notice need not be
given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. At the adjourned meeting the
stockholders may transact any business that might have been transacted at the
original meeting. If an adjournment
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is for more than 30 days, or if after an adjournment, a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder entitled to vote at the meeting.
3.5 Quorum and Adjournment. Except as otherwise provided by
law, by the Certificate of Incorporation of the Corporation, or by these Bylaws,
the presence, in person or by proxy, of the holders of a majority of the
aggregate voting power of the stock issued and outstanding, entitled to vote
thereat, shall constitute a quorum for the transaction of business at all
meetings of stockholders. If such majority shall not be present or represented
at any meeting of stockholders, the stockholders present, although less than a
quorum, shall have the power to adjourn the meeting.
3.6 Vote Required. Except as otherwise provided by law
or by the Certificate of Incorporation:
(a) Directors shall be elected by a plurality of the
votes present in person or represented by proxy at a meeting of stockholders and
entitled to vote in the election of directors, and
(b) whenever any corporate action other than the
election of Directors is to be taken, it shall be authorized by a majority in
voting power of the shares present in person or by proxy at a meeting of
stockholders and entitled to vote on the subject matter.
3.7 Manner of Voting. At each meeting of stockholders, each
stockholder having the right to vote shall be entitled to vote in person or by
proxy. Proxies need not be filed with the Secretary of the Corporation until the
meeting is called to order, but shall be filed before being voted. Each
stockholder shall be entitled to vote each share of stock having voting power
registered in his or her name on the books of the Corporation on the record date
fixed for determination of stockholders entitled to vote at such meeting.
3.8 Stockholder Action Without a Meeting. Except as otherwise
provided by law or by the Certificate of Incorporation, any action required to
be taken at any meeting of stockholders of the corporation, or any action that
may be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice, and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing and who,
if the action had been taken at a meeting, would have been entitled to notice of
the meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of the holders to take the action were
delivered to the Corporation.
3.9 Proxies. (a) At any meeting of stockholders, any
stockholder may be represented and vote by proxy or proxies. In the event that
any form of proxy shall designate two or more persons to act as proxies, a
majority of such persons present at the meeting or, if only one shall be
present, then that one shall have and may exercise all of the powers conferred
by the form of proxy upon all of the persons so designated unless the form of
proxy shall otherwise provide.
(b) The Board of Directors may, in advance of any
annual or special meeting of the stockholders, prescribe additional regulations
concerning the validation of the same, which are intended to be voted at any
such meeting.
3.10 Presiding Officer and Secretary. The Chairman of the
Board shall act as chairman of all meetings of the stockholders. In the absence
of the Chairman of the Board, the Vice Chairman of the Board or, in his or her
absence, any Director designated by the Chairman of the Board or the Board of
Directors shall act as chairman of the meeting.
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The Secretary of the Corporation shall act as secretary of all
meetings of the stockholders, but, in the absence of the Secretary, the
Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the stockholders, but in the
absence of a designated Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
3.11 Procedure. At each meeting of stockholders, the chairman
of the meeting shall fix and announce the date and time of the opening and the
closing of the polls for each matter upon which the stockholders will vote at
the meeting and shall determine the order of business and all other matters of
procedure. Except to the extent inconsistent with any such rules and regulations
as adopted by the Board of Directors, the chairman of the meeting may establish
rules, which need not be in writing, to maintain order and safety and for the
conduct of the meeting. Without limiting the foregoing, he or she may:
(a) restrict attendance at any time to bona fide
stockholders of record and their proxies and other persons in attendance at the
invitation of the chairman;
(b) restrict dissemination of solicitation materials
and use of audio or visual recording devices at the meeting;
(c) adjourn the meeting without a vote of the
stockholders, whether or not there is a quorum present; and
(d) make rules governing speeches and debate,
including time limits and access to microphones.
The chairman of the meeting shall be entitled to act in his or her absolute
discretion and his or her rulings shall not be subject to appeal.
4. DIRECTORS.
4.1 Powers and Number. The Board of Directors shall exercise
all of the powers of the Corporation except such as are by law, or by the
Certificate of Incorporation of this Corporation or by these Bylaws conferred
upon or reserved to the stockholders of any class or classes. The number of
directors that shall constitute the whole Board of Directors shall be no fewer
than three (3) and no greater than nine (9), the exact number of directors to be
determined from time to time by resolution adopted by the Board of Directors or
the stockholders, and until otherwise determined by the Board of Directors or
the stockholders, the number of directors that shall constitute the whole Board
of Directors shall be three (3).
4.2 Resignations. Any Director may resign at any time by
giving written notice to the Board of Directors or the Secretary. Such
resignation shall take effect at the date of receipt of such notice or at any
later time specified therein. Acceptance of such resignation shall not be
necessary to make it effective.
4.3 Presiding Officer and Secretary. The Chairman of the Board
shall act as chairman of all meetings of the Board of Directors. In the absence
of the Chairman of the Board, the Vice Chairman of the Board, or in his absence,
the Chief Executive Officer or other person designated by the Board of Directors
shall act as chairman of the meeting.
The Secretary of the Corporation shall act as
secretary of all meetings of the Board of Directors, but, in the absence of the
Secretary, the Assistant Secretary designated in accordance with Section 5.11(b)
of these Bylaws shall act as secretary of all meetings of the Board of
Directors, but in the absence of a designated Assistant Secretary, the chairman
of the meeting may appoint any person to act as secretary of the meeting.
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4.4 Annual Meetings. The Board of Directors shall meet each
year immediately following the annual meeting of stockholders, at the place
where such meeting of stockholders has been held, or at such other place as
shall be fixed by the person presiding over the meeting of the stockholders, for
the purpose of election of officers and consideration of such other business as
the Board of Directors considers relevant to the management of the Corporation.
In the event that in any year Directors are elected by written consent in lieu
of an annual meeting of stockholders, the Board of Directors shall meet in such
year as soon as practicable after receipt of such written consent by the
Corporation at such time and place as shall be fixed by the Chairman of the
Board, for the purpose of election of officers and consideration of such other
business as the Board of Directors considers relevant to the management of the
Corporation.
4.5 Regular Meetings. Regular meetings of the Board of
Directors shall be held on such dates and at such times and places, within or
without the state of Delaware, as shall from time to time be determined by the
Board of Directors. In the absence of any such determination, such meetings
shall be held at such times and places, within or without the State of Delaware,
as shall be designated by the Chairman of the Board on not less than twelve
hours notice to each Director, given verbally, in writing or electronically,
whether personally, by telephone (including by message or recording device), by
facsimile transmission, by telegram, by telex or by electronic mail or by other
electronic means, or on not less than three (3) calendar days' notice to each
Director given by mail. Notice given by any of the foregoing means shall be
sufficient to constitute notice of a meeting without the necessity of further
notice.
4.6 Special Meetings. Special meetings of the Board of
Directors shall be held at the call of the Chairman of the Board at such times
and places, within or without the State of Delaware, as he or she shall
designate, on not less than twelve hours notice to each Director, given
verbally, in writing or electronically, whether personally, by telephone
(including by message or recording device), by facsimile transmission, by
telegram, by telex, by electronic mail or by other electronic means or on not
less than three (3) calendar days' notice to each Director given by mail. Notice
given by any of the foregoing means shall be sufficient to constitute notice of
a meeting without the necessity of further notice. Special meetings shall be
called by the Secretary on like notice at the written request of a majority of
the Directors then in office.
4.7 Quorum and Powers of a Majority. At all meetings of the
Board of Directors and of each committee thereof, a majority of the members
shall be necessary and sufficient to constitute a quorum for the transaction of
business, and the act of a majority of the members present at any meeting at
which a quorum is present shall be the act of the Board of Directors or such
committee, unless by express provision of law, of the Certificate of
Incorporation, or of these Bylaws, a different vote is required, in which case
such express provision shall govern and control. In the absence of a quorum, a
majority of the members present at any meeting may, without notice other than
announcement at the meeting, adjourn such meeting from time to time until a
quorum is present.
4.8 Waiver of Notice. Notice of any meeting of the Board of
Directors, or any committee thereof, need not be given to any member if waived
by him or her in writing, whether before or after such meeting is held, or if he
or she shall sign the minutes or attend the meeting, except that if such
Director attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened, then such Director shall not be deemed to have
waived notice of such meeting.
4.9 Manner of Acting. (a) Members of the Board of Directors,
or any committee thereof, may participate in any meeting of the Board of
Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating therein can
hear each other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
(b) Any action required or permitted to be taken at
any meeting of the Board of Directors or any committee thereof may be taken
without a meeting if all members of the Board of Directors or
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such committee, as the case may be, consent thereto in writing, and the writings
are filed with the minutes of proceedings of the Board of Directors or such
committee.
4.10 Compensation. (a) The Board of Directors, by a resolution
or resolutions, may fix, and from time to time change, the compensation of
Directors.
(b) Each Director shall be entitled to reimbursement
from the Corporation for his or her reasonable expenses incurred with respect to
duties as a member of the Board of Directors or any committee thereof.
(c) Nothing contained in these Bylaws shall be
construed to preclude any Director from serving the Corporation in any other
capacity and from receiving compensation from the Corporation for service
rendered to it in such other capacity.
4.11 Committees. The Board of Directors (or any committee
thereof having the power and authority to do so) may designate one or more
committees, each committee to consist of one or more Directors, which to the
extent provided in said resolution or resolutions shall have and may exercise
the powers and authority of the Board of Directors in the management of the
business and affairs of the corporation; provided, however, that no such
committee shall have the power or authority in reference to the following
matters: (i) approving or adopting, or recommending to the stockholders, any
action or matter expressly required by the General Corporation Law of Delaware
(the "GCLD") to be submitted to stockholders for approval or (ii) adopting,
amending, or repealing any bylaw of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member of the committee. In the absence or
disqualification of a member of a committee, the member or members present at
any meeting of such committee and not disqualified from voting, whether or not
such member of members constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in place of such absent
or disqualified director.
4.12 Committee Procedure, Limitations of Committee Powers. (a)
Except as otherwise provided by these Bylaws, each committee shall adopt its own
rules governing the time, place and method of holding its meetings and the
conduct of its proceedings and shall meet as provided by such rules or by
resolution of the Board of Directors. Unless otherwise provided by these Bylaws
or any such rules or resolutions, notice of the time and place of each meeting
of a committee shall be given to each member of such committee as provided in
Section 4.6 of these Bylaws with respect to notices of special meetings of the
Board of Directors.
(b) Each committee shall keep regular minutes of its
proceedings and report the same to the Board of Directors when required.
(c) Any member of any committee may be removed from
such committee either with or without cause, at any time, by the Board of
Directors at any meeting thereof. Any vacancy in any committee shall be filled
by the Board of Directors in the manner prescribed by the Certificate of
Incorporation or these Bylaws for the original appointment of the members of
such committee.
5. OFFICERS.
5.1 Number. (a) The officers of the Corporation shall include
a Chief Executive Officer, a President, one or more Vice Presidents (including
one or more Executive Vice Presidents and one or more Senior Vice Presidents if
deemed appropriate by the Board of Directors), a Chief Financial Officer, a
Secretary, a Treasurer, and a Controller. The Board of Directors shall also
elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except
for the Chairman of the Board, the Vice Chairman of the Board, and the Chief
Executive Officer, none of the officers of the Corporation needs to be a
director of the Corporation. Any two or more offices may be held by the same
person to the extent permitted by the GCLD.
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(b) The Chief Executive Officer shall have the power
to appoint one or more employees of the Corporation as divisional or
departmental vice presidents and fix the duties of such appointees. However, no
such divisional or departmental vice president shall be considered as an officer
of the Corporation.
5.2 Election of Officers, Qualification and Term. The Chief
Executive Officer, the President, any Executive Vice President, any Senior Vice
President, the Chief Financial Officer, the Secretary and the Treasurer of the
Corporation shall be elected from time to time by the Board of Directors and,
except as may otherwise be expressly provided in a contract of employment duly
authorized by the Board of Directors, shall hold office at the pleasure of the
Board of Directors. The Board of Directors and the Chief Executive Officer also
may elect such other officers as the Board of Directors or the Chief Executive
Officer may from time to time deem appropriate or necessary.
5.3 Removal. Any officer elected by the Board of Directors may
be removed, either with or without cause, by the Board of Directors at any
meeting thereof, or to the extent delegated to the Chairman of the Board or the
Chief Executive Officer, by the Chairman of the Board or the Chief Executive
Officer.
5.4 Resignations. Any officer of the Corporation may resign at
any time by giving written notice to the Board of Directors or to the Chairman
of the Board or to the Chief Executive Officer. Such resignation shall take
effect at the date of the receipt of such notice or at any later time specified
therein and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
5.5 Compensation. The compensation of all officers of the
Corporation shall be fixed by or in the manner provided by the Board of
Directors from time to time, and no officer shall be prevented from receiving
such compensation by reason of the fact that he or she is also a Director of the
Corporation.
5.6 The Chairman of the Board. The Chairman of the Board shall
have the powers and duties customarily and usually associated with the office of
the Chairman of the Board and shall have such other powers and perform such
other duties as may be delegated to him or her by the Board of Directors. The
Chairman of the Board shall preside at meetings of the stockholders and of the
Board of Directors.
5.7 Vice Chairman of the Board. The Vice Chairman of the
Board, if any, shall have the powers and duties customarily and usually
associated with the office of the Vice Chairman of the Board and shall have such
other powers and perform such other duties as may be delegated to him or her by
the Board of Directors.
5.8 Chief Executive Officer. The Chief Executive Officer shall
have, subject to the supervision, direction and control of the Board of
Directors, the general powers and duties of supervision, direction and
management of the affairs and business of the Corporation usually vested in the
chief executive officer of a corporation, including, without limitation, all
powers necessary to direct and control the organizational and reporting
relationships within the Corporation. In addition, the Chief Executive Officer
shall have such other powers and perform such other duties as may be delegated
to him or her by the Board of Directors. If at any time the office of the
Chairman of the Board and the Vice Chairman of the Board shall not be filled, or
in the event of the temporary absence or disability of the Chairman of the Board
and the Vice Chairman of the Board, the Chief Executive Officer shall have the
powers and duties of the Chairman of the Board.
5.9 The President. The President shall serve as chief
operating officer, shall have the powers and duties customarily and usually
associated with the office of the President and shall have such other powers and
perform such other duties as may be delegated to him or her from time to time by
the Board of Directors or the Chief Executive Officer.
5.10 The Vice Presidents. Each Vice President shall have such
powers and duties customarily and usually associated with the office of Vice
President and shall have such other powers and perform
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such other duties as may from time to time be assigned to him or her by the
Board of Directors, the Chief Executive Officer, or the President.
5.11 The Chief Financial Officer. The Chief Financial Officer
shall be responsible for the financial affairs of the Corporation, including
overseeing the duties performed by the Treasurer of the Corporation. In
addition, the Chief Financial Officer shall have such powers and duties
customarily and usually associated with the office of the Chief Financial
Officer and shall have such other powers and perform such other duties as may be
delegated to him or her from time to time by the Board of Directors or the Chief
Executive Officer.
5.12 The Secretary and the Assistant Secretary. (a) The
Secretary shall attend meetings of the Board of Directors and meetings of the
stockholders and record all votes and minutes of all such proceedings in a book
kept for such purpose. In addition, the Secretary shall have such powers and
duties customarily and usually associated with the office of Secretary and shall
have such other powers and perform such other duties as may be delegated to him
or her by the Board of Directors, the Chief Executive Officer, or the President.
(b) Each Assistant Secretary shall have such powers
and perform such duties customarily and usually associated with the office of
Assistant Secretary and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Secretary. In case
of the absence or disability of the Secretary, the Assistant Secretary
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Secretary) shall perform the duties and exercise the powers
of the Secretary.
5.13 The Treasurer and the Assistant Treasurer. (a) The
Treasurer shall have custody of the Corporation's funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit or cause to be deposited moneys or other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The Treasurer shall
also maintain adequate records of all assets, liabilities, and transactions of
the Corporation and shall see that adequate audits thereof are currently and
regularly made. In addition, the Treasurer shall have such powers and duties
customarily and usually associated with the office of Treasurer and shall have
such other powers and perform such other duties as may be delegated to him or
her from time to time by the Board of Directors, the Chief Executive Officer,
the President or the Chief Financial Officer.
(b) Each Assistant Treasurer shall have such powers
and perform such duties customarily and usually associated with the office of
Assistant Treasurer and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Treasurer. In case
of the absence or disability of the Treasurer, the Assistant Treasurer
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Treasurer) shall perform the duties and exercise the powers
of the Treasurer.
5.14 Controller. The Controller shall be responsible for
maintaining the accounting records and statements, and shall properly account
for all monies and obligations due the Corporation and all properties, assets,
and liabilities of the Corporation. The Controller shall render to the Chairman
of the Board, the President or the Chief Financial Officer such periodic reports
covering the results of operations of the Corporation as may be required by
either of them or by law. In addition, the Controller shall have such powers and
duties customarily and usually associated with the office of Controller and
shall have such other powers and perform such other duties as may be delegated
to him or her from time to time by the Board of Directors, the Chief Executive
Officer, the President or the Chief Financial Officer.
6. STOCK
6.1 Certificates. Certificates for shares of stock of the
Corporation shall be issued under the seal of the Corporation, or a facsimile
thereof, and shall be numbered and shall be entered in the books of the
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Corporation as they are issued. Each certificate shall bear a serial number,
shall exhibit the holder's name and the number of shares evidenced thereby, and
shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the
Chief Executive Officer or the President or any Vice President, and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer.
Any or all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if such person or entity
were such officer, transfer agent, or registrar at the date of issue.
6.2 Transfers. Transfers of stock of the Corporation shall be
made on the books of the Corporation only upon surrender to the Corporation of a
certificate (if any) for the shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, provided such
succession, assignment, or transfer is not prohibited by the Certificate of
Incorporation, these Bylaws, applicable law or contract. Thereupon, the
Corporation shall issue a new certificate (if requested) to the person entitled
thereto, cancel the old certificate (if any), and record the transaction upon
its books.
6.3 Lost, Stolen, or Destroyed Certificates. Any person
claiming a certificate of stock to be lost, stolen, or destroyed shall make an
affidavit or an affirmation of that fact, and shall give the Corporation a bond
of indemnity in satisfactory form and with one or more satisfactory sureties,
whereupon a new certificate (if requested) may be issued of the same tenor and
for the same number of shares as the one alleged to be lost, stolen, or
destroyed.
6.4 Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares as the person entitled to exercise the rights of a stockholder
and shall not be bound to recognize any equitable or other claim to or interest
in any such shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise expressly provided by the
GCLD.
6.5 Additional Powers of the Board. (a) In addition to those
powers set forth in Section 4.1, the Board of Directors shall have power and
authority to make all such rules and regulations as it shall deem expedient
concerning the issue, transfer, and registration of certificates for shares of
stock of the Corporation, including the use of uncertificated shares of stock
subject to the provisions of the GCLD.
(b) The Board of Directors may appoint and remove
transfer agents and registrars of transfers, and may require all stock
certificates to bear the signature of any such transfer agent and/or any such
registrar of transfers.
7. INDEMNIFICATION
7.1 Each person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or the person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation, as a
director, officer, employee, or agent of another corporation or of a
partnership, joint venture, trust, or other enterprise, including service with
respect to employee benefit plans, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the GCLD, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expenses, liability, and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of his or her heirs, executors, and administrators; provided,
however, that, except as provided in this Article 7, the Corporation shall
indemnify any
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such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if authorized by the Board of Directors
of the Corporation. Any indemnification under this Article 7 (unless ordered by
a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee, or agent is proper in the circumstances because he or she has met the
applicable standard set forth in the GCLD. Such a determination shall be made
(a) by a majority vote of the directors who are not parties to such action, suit
or proceeding, even though less than a quorum; (b) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum; (c) by independent legal counsel (compensated by the Corporation) in a
written opinion; (d) by the stockholders; or (e) in any other manner permitted
by the GCLD. In addition to the right to indemnification conferred in this
Article 7, each of the above persons shall have the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that, if the GCLD requires, the
payment of such expenses incurred by a present director or officer in his or her
capacity as a director or officer of the corporation (and not in any other
capacity in which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such present
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Article 7 or otherwise. The Corporation may, by any manner permitted by the
GCLD, provide indemnification and advancement of expenses to employees and
agents of the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers. The right to indemnification and to
an advancement of expenses conferred in this Article 7 shall be a contract
right.
7.2 If a claim under Section 7.1 of this Article 7 is not paid
in full by the Corporation within 30 days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim (including attorneys' fees). It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the GCLD for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, a committee thereof, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the GCLD, nor an actual determination by the Corporation (including
its Board of Directors, a committee thereof, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct. In any suit brought by the claimant
to enforce a right to indemnification or to an advancement of expenses
hereunder, or brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the claimant
is not entitled to be indemnified, or to such advancement of expenses, under
this Article 7 or otherwise shall be on the Corporation.
7.3 The rights to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Article 7, shall not be exclusive of any other right that any person may
have or hereafter acquire under any statute, provision of the certificate of
incorporation of the Corporation, this bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
7.4 The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee, or agent of the Corporation
or another corporation, partnership, joint venture, trust, or other enterprise
against any such expense, liability, or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability,
or loss under the GCLD.
7.5 The Corporation may enter into an indemnity agreement with
any director, officer, employee, or agent of the Corporation, or of another
corporation, partnership, joint venture, trust, or other
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enterprise, upon terms and conditions that the Board of Directors deems
appropriate, as long as the provisions of the agreement are not impermissible
under applicable law.
7.6 Any amendment or repeal of this Article 7 shall not be
retroactive in effect.
7.7 In case any provision in this Article 7 shall be
determined at any time to be unenforceable in any respect, the other provisions
shall not in any way be affected or impaired thereby, and the affected provision
shall be given the fullest possible enforcement in the circumstances, it being
the intention of the Corporation to afford indemnification and advancement of
expenses to the persons indemnified hereby to the fullest extent permitted by
law.
7.8 The Corporation may, by action of the Board of Directors,
authorize one or more officers to grant rights to indemnification and
advancement of expenses to former directors and officers or to other employees
or agents of the Corporation on such terms and conditions as such officer or
officers deem appropriate under the circumstances.
8. MISCELLANEOUS
8.1 Place and Inspection of Books. (a) The books of the
Corporation other than such books as are required by law to be kept within the
State of Delaware shall be kept in such place or places either within or without
the State of Delaware as the Board of Directors may from time to time determine.
(b) At least ten days before each meeting of
stockholders, the officer in charge of the stock ledger of the Corporation shall
prepare a complete list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
(c) The Board of Directors shall determine from time
to time whether and, if allowed, when and under what conditions and regulations
the accounts and books of the Corporation (except such as may be by law
specifically open to inspection or as otherwise provided by these Bylaws) or any
of them shall be open to the inspection of the stockholders and the
stockholders' rights in respect thereof.
8.2 Voting Shares in Other Corporations. The Chief Executive
Officer, the President, the Chief Financial Officer or any other officer of the
Corporation designated by the Board of Directors may vote any and all shares
held by the Corporation in any other corporation.
8.3 Fiscal Year. The fiscal year of the Corporation shall be
such fiscal year as the Board of Directors from time to time by resolution shall
determine.
8.4 Gender/Number. As used in these Bylaws, the masculine,
feminine, or neuter gender, and the singular or plural number, shall each
include the others whenever the context so indicates.
8.5 Paragraph Titles. The titles of the paragraphs have been
inserted as a matter of reference only and shall not control or affect the
meaning or construction of any of the terms and provisions hereof.
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8.6 Amendment. These Bylaws may be altered, amended, or
repealed by (a) the affirmative vote of 80% or more of the aggregate number of
votes that the holders of the then outstanding shares of common stock and
preferred stock are entitled to cast on the amendment, or (b) by resolution
adopted by the affirmative vote of not less than a majority of the Directors in
office, at any annual or regular meeting of the Board of Directors or at any
special meeting of the Board of Directors if notice of the proposed alteration,
amendment, or repeal be contained in written notice of such special meeting.
Notwithstanding the foregoing, the amendment of any provision of these Bylaws
that requires an affirmative vote in excess of a majority of the Directors in
office shall require the affirmative vote of at least the number of directors
the affirmative vote of whom is required by such provision.
8.7 Certificate of Incorporation. Notwithstanding anything to
the contrary contained herein, if any provision contained in these Bylaws is
inconsistent with or conflicts with a provision of the Certificate of
Incorporation, such provision of these Bylaws shall be superseded by the
inconsistent provision in the Certificate of Incorporation to the extent
necessary to give effect to such provision in the Certificate of Incorporation.
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<PAGE> 1
Millenium Account Services, LLC
B.22.1
Certificate of Formation
<PAGE> 2
STATE OF DELAWARE
LIMITED LIABILITY COMPANY
CERTIFICATE OF FORMATION
FIRST: The name of the limited liability company is Millenium Account Services,
LLC
SECOND: The address of its Registered Office in the State of Delaware is 800
King Street in the City of Wilmington, County of New Castle. The name of its
Registered Agent at such address is Joseph Rigby.
THIRD: (Use this paragraph only if the company is to have a specific effective
date of dissolution: "The latest date on which the limited liability company is
to dissolve is January 4, 2002.")
FOURTH: (Insert any other matters the members determine to include herein.)
The effective date of this Certificate of Formation for Millenium Account
Services, LLC shall be January 1, 1999.
IN WITNESS WHEREOF, the undersigned have executed this Certificate of Formation
of 28th this day of December, 1998.
By: _________________________
Authorized Person(s)
Albert V. Ruggiero
Name: _______________________
(Typed or Printed)
<PAGE> 1
Millenium Account Services, LLC
B.22.2
Limited Liability Company Operating Agreement
(Confidential Treatment Requested)
<PAGE> 1
Atlantic Southern Properties, Inc.
B.24.3
Amended and Restated Bylaws
Adopted December 31, 1999
<PAGE> 2
AMENDED AND RESTATED
B Y L A W S
OF
ATLANTIC SOUTHERN PROPERTIES, INC.
1. OFFICES.
1.1 Offices. In addition to its registered office in the State
of Delaware, the Corporation shall have a corporate office in Wilmington,
Delaware, and such other offices, either within or without the State of
Delaware, at such locations as the Board of Directors may from time to time
determine or the business of the Corporation may require.
2. SEAL.
2.1 Seal. The Corporation shall have a seal, which shall have
inscribed thereon its name and year of incorporation and the words, "Corporate
Seal New Jersey."
3. MEETINGS OF STOCKHOLDERS.
3.1 Annual Meetings. The annual meeting of stockholders of the
Corporation shall be held on such date, at such time and at such place within or
without the State of Delaware as shall be determined by the Board of Directors
from time to time.
3.2 Special Meetings. Special meetings of the stockholders of
the Corporation shall be held on such date, at such time and at such place
within or without the State of Delaware as may be designated by the Chairman of
the Board or by the Board of Directors.
3.3 Notice of Meetings. (a) Notices of meetings of
stockholders shall be in writing and shall state the place, date, and hour of
the meeting, and, in the case of a special meeting, the purpose or purposes for
which a meeting is called. No business other than that specified in the notice
thereof shall be transacted at any special meeting.
(b) Such notice shall either be delivered personally,
mailed, postage prepaid, or delivered by any other lawful means to each
stockholder entitled to vote at such meeting not less than 10 nor more than 60
days before the date of the meeting. If mailed, the notice shall be directed to
the stockholder at his or her address as it appears on the records of the
Corporation. Delivery of any such notice to any officer of a corporation or
association or to any member of a partnership shall constitute delivery of such
notice to such corporation, association, or partnership.
(c) Notice of any meeting of stockholders need not be
given to any stockholder if waived by such stockholder in writing, whether
before or after such meeting is held, or if such stockholder shall sign the
minutes or attend the meeting, except that if such stockholder attends a meeting
for the express purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened, such stockholder shall not be deemed to have waived notice of such
meeting.
3.4 Adjourned Meetings. When a meeting is adjourned to another
time or place, unless otherwise provided by these Bylaws, notice need not be
given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. At the adjourned meeting the
stockholders may transact any business that might have been transacted at the
original meeting. If an adjournment
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is for more than 30 days, or if after an adjournment, a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder entitled to vote at the meeting.
3.5 Quorum and Adjournment. Except as otherwise provided by
law, by the Certificate of Incorporation of the Corporation, or by these Bylaws,
the presence, in person or by proxy, of the holders of a majority of the
aggregate voting power of the stock issued and outstanding, entitled to vote
thereat, shall constitute a quorum for the transaction of business at all
meetings of stockholders. If such majority shall not be present or represented
at any meeting of stockholders, the stockholders present, although less than a
quorum, shall have the power to adjourn the meeting.
3.6 Vote Required. Except as otherwise provided by law or by
the Certificate of Incorporation:
(a) Directors shall be elected by a plurality of the
votes present in person or represented by proxy at a meeting of stockholders and
entitled to vote in the election of directors, and
(b) whenever any corporate action other than the
election of Directors is to be taken, it shall be authorized by a majority in
voting power of the shares present in person or by proxy at a meeting of
stockholders and entitled to vote on the subject matter.
3.7 Manner of Voting. At each meeting of stockholders, each
stockholder having the right to vote shall be entitled to vote in person or by
proxy. Proxies need not be filed with the Secretary of the Corporation until the
meeting is called to order, but shall be filed before being voted. Each
stockholder shall be entitled to vote each share of stock having voting power
registered in his or her name on the books of the Corporation on the record date
fixed for determination of stockholders entitled to vote at such meeting.
3.8 Stockholder Action Without a Meeting. Except as otherwise
provided by law or by the Certificate of Incorporation, any action required to
be taken at any meeting of stockholders of the corporation, or any action that
may be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice, and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing and who,
if the action had been taken at a meeting, would have been entitled to notice of
the meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of the holders to take the action were
delivered to the Corporation.
3.9 Proxies. (a) At any meeting of stockholders, any
stockholder may be represented and vote by proxy or proxies. In the event that
any form of proxy shall designate two or more persons to act as proxies, a
majority of such persons present at the meeting or, if only one shall be
present, then that one shall have and may exercise all of the powers conferred
by the form of proxy upon all of the persons so designated unless the form of
proxy shall otherwise provide.
(b) The Board of Directors may, in advance of any
annual or special meeting of the stockholders, prescribe additional regulations
concerning the validation of the same, which are intended to be voted at any
such meeting.
3.10 Presiding Officer and Secretary. The Chairman of the
Board shall act as chairman of all meetings of the stockholders. In the absence
of the Chairman of the Board, the Vice Chairman of the Board or, in his or her
absence, any Director designated by the Chairman of the Board or the Board of
Directors shall act as chairman of the meeting.
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The Secretary of the Corporation shall act as secretary of all
meetings of the stockholders, but, in the absence of the Secretary, the
Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the stockholders, but in the
absence of a designated Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
3.11 Procedure. At each meeting of stockholders, the chairman
of the meeting shall fix and announce the date and time of the opening and the
closing of the polls for each matter upon which the stockholders will vote at
the meeting and shall determine the order of business and all other matters of
procedure. Except to the extent inconsistent with any such rules and regulations
as adopted by the Board of Directors, the chairman of the meeting may establish
rules, which need not be in writing, to maintain order and safety and for the
conduct of the meeting. Without limiting the foregoing, he or she may:
(a) restrict attendance at any time to bona fide
stockholders of record and their proxies and other persons in attendance at the
invitation of the chairman;
(b) restrict dissemination of solicitation materials
and use of audio or visual recording devices at the meeting;
(c) adjourn the meeting without a vote of the
stockholders, whether or not there is a quorum present; and
(d) make rules governing speeches and debate,
including time limits and access to microphones.
The chairman of the meeting shall be entitled to act in his or her absolute
discretion and his or her rulings shall not be subject to appeal.
4. DIRECTORS.
4.1 Powers and Number. The Board of Directors shall exercise
all of the powers of the Corporation except such as are by law, or by the
Certificate of Incorporation of this Corporation or by these Bylaws conferred
upon or reserved to the stockholders of any class or classes. The number of
directors that shall constitute the whole Board of Directors shall be no fewer
than three (3) and no greater than nine (9), the exact number of directors to be
determined from time to time by resolution adopted by the Board of Directors or
the stockholders, and until otherwise determined by the Board of Directors or
the stockholders, the number of directors that shall constitute the whole Board
of Directors shall be three (3).
4.2 Resignations. Any Director may resign at any time by
giving written notice to the Board of Directors or the Secretary. Such
resignation shall take effect at the date of receipt of such notice or at any
later time specified therein. Acceptance of such resignation shall not be
necessary to make it effective.
4.3 Presiding Officer and Secretary. The Chairman of the Board
shall act as chairman of all meetings of the Board of Directors. In the absence
of the Chairman of the Board, the Vice Chairman of the Board, or in his absence,
the Chief Executive Officer or other person designated by the Board of Directors
shall act as chairman of the meeting.
The Secretary of the Corporation shall act as
secretary of all meetings of the Board of Directors, but, in the absence of the
Secretary, the Assistant Secretary designated in accordance with Section 5.11(b)
of these Bylaws shall act as secretary of all meetings of the Board of
Directors, but in the absence of a designated Assistant Secretary, the chairman
of the meeting may appoint any person to act as secretary of the meeting.
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4.4 Annual Meetings. The Board of Directors shall meet each
year immediately following the annual meeting of stockholders, at the place
where such meeting of stockholders has been held, or at such other place as
shall be fixed by the person presiding over the meeting of the stockholders, for
the purpose of election of officers and consideration of such other business as
the Board of Directors considers relevant to the management of the Corporation.
In the event that in any year Directors are elected by written consent in lieu
of an annual meeting of stockholders, the Board of Directors shall meet in such
year as soon as practicable after receipt of such written consent by the
Corporation at such time and place as shall be fixed by the Chairman of the
Board, for the purpose of election of officers and consideration of such other
business as the Board of Directors considers relevant to the management of the
Corporation.
4.5 Regular Meetings. Regular meetings of the Board of
Directors shall be held on such dates and at such times and places, within or
without the state of Delaware, as shall from time to time be determined by the
Board of Directors. In the absence of any such determination, such meetings
shall be held at such times and places, within or without the State of Delaware,
as shall be designated by the Chairman of the Board on not less than twelve
hours notice to each Director, given verbally, in writing or electronically,
whether personally, by telephone (including by message or recording device), by
facsimile transmission, by telegram, by telex or by electronic mail or by other
electronic means, or on not less than three (3) calendar days' notice to each
Director given by mail. Notice given by any of the foregoing means shall be
sufficient to constitute notice of a meeting without the necessity of further
notice.
4.6 Special Meetings. Special meetings of the Board of
Directors shall be held at the call of the Chairman of the Board at such times
and places, within or without the State of Delaware, as he or she shall
designate, on not less than twelve hours notice to each Director, given
verbally, in writing or electronically, whether personally, by telephone
(including by message or recording device), by facsimile transmission, by
telegram, by telex, by electronic mail or by other electronic means or on not
less than three (3) calendar days' notice to each Director given by mail. Notice
given by any of the foregoing means shall be sufficient to constitute notice of
a meeting without the necessity of further notice. Special meetings shall be
called by the Secretary on like notice at the written request of a majority of
the Directors then in office.
4.7 Quorum and Powers of a Majority. At all meetings of the
Board of Directors and of each committee thereof, a majority of the members
shall be necessary and sufficient to constitute a quorum for the transaction of
business, and the act of a majority of the members present at any meeting at
which a quorum is present shall be the act of the Board of Directors or such
committee, unless by express provision of law, of the Certificate of
Incorporation, or of these Bylaws, a different vote is required, in which case
such express provision shall govern and control. In the absence of a quorum, a
majority of the members present at any meeting may, without notice other than
announcement at the meeting, adjourn such meeting from time to time until a
quorum is present.
4.8 Waiver of Notice. Notice of any meeting of the Board of
Directors, or any committee thereof, need not be given to any member if waived
by him or her in writing, whether before or after such meeting is held, or if he
or she shall sign the minutes or attend the meeting, except that if such
Director attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened, then such Director shall not be deemed to have
waived notice of such meeting.
4.9 Manner of Acting. (a) Members of the Board of Directors,
or any committee thereof, may participate in any meeting of the Board of
Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating therein can
hear each other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
(b) Any action required or permitted to be taken at
any meeting of the Board of Directors or any committee thereof may be taken
without a meeting if all members of the Board of Directors or
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such committee, as the case may be, consent thereto in writing, and the writings
are filed with the minutes of proceedings of the Board of Directors or such
committee.
4.10 Compensation. (a) The Board of Directors, by a resolution
or resolutions, may fix, and from time to time change, the compensation of
Directors.
(b) Each Director shall be entitled to reimbursement
from the Corporation for his or her reasonable expenses incurred with respect to
duties as a member of the Board of Directors or any committee thereof.
(c) Nothing contained in these Bylaws shall be
construed to preclude any Director from serving the Corporation in any other
capacity and from receiving compensation from the Corporation for service
rendered to it in such other capacity.
4.11 Committees. The Board of Directors (or any committee
thereof having the power and authority to do so) may designate one or more
committees, each committee to consist of one or more Directors, which to the
extent provided in said resolution or resolutions shall have and may exercise
the powers and authority of the Board of Directors in the management of the
business and affairs of the corporation; provided, however, that no such
committee shall have the power or authority in reference to the following
matters: (i) approving or adopting, or recommending to the stockholders, any
action or matter expressly required by the General Corporation Law of Delaware
(the "GCLD") to be submitted to stockholders for approval or (ii) adopting,
amending, or repealing any bylaw of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member of the committee. In the absence or
disqualification of a member of a committee, the member or members present at
any meeting of such committee and not disqualified from voting, whether or not
such member of members constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in place of such absent
or disqualified director.
4.12 Committee Procedure, Limitations of Committee Powers. (a)
Except as otherwise provided by these Bylaws, each committee shall adopt its own
rules governing the time, place and method of holding its meetings and the
conduct of its proceedings and shall meet as provided by such rules or by
resolution of the Board of Directors. Unless otherwise provided by these Bylaws
or any such rules or resolutions, notice of the time and place of each meeting
of a committee shall be given to each member of such committee as provided in
Section 4.6 of these Bylaws with respect to notices of special meetings of the
Board of Directors.
(b) Each committee shall keep regular minutes of its
proceedings and report the same to the Board of Directors when required.
(c) Any member of any committee may be removed from
such committee either with or without cause, at any time, by the Board of
Directors at any meeting thereof. Any vacancy in any committee shall be filled
by the Board of Directors in the manner prescribed by the Certificate of
Incorporation or these Bylaws for the original appointment of the members of
such committee.
5. OFFICERS.
5.1 Number. (a) The officers of the Corporation shall include
a Chief Executive Officer, a President, one or more Vice Presidents (including
one or more Executive Vice Presidents and one or more Senior Vice Presidents if
deemed appropriate by the Board of Directors), a Chief Financial Officer, a
Secretary, a Treasurer, and a Controller. The Board of Directors shall also
elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except
for the Chairman of the Board, the Vice Chairman of the Board, and the Chief
Executive Officer, none of the officers of the Corporation needs to be a
director of the Corporation. Any two or more offices may be held by the same
person to the extent permitted by the GCLD.
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(b) The Chief Executive Officer shall have the power
to appoint one or more employees of the Corporation as divisional or
departmental vice presidents and fix the duties of such appointees. However, no
such divisional or departmental vice president shall be considered as an officer
of the Corporation.
5.2 Election of Officers, Qualification and Term. The Chief
Executive Officer, the President, any Executive Vice President, any Senior Vice
President, the Chief Financial Officer, the Secretary and the Treasurer of the
Corporation shall be elected from time to time by the Board of Directors and,
except as may otherwise be expressly provided in a contract of employment duly
authorized by the Board of Directors, shall hold office at the pleasure of the
Board of Directors. The Board of Directors and the Chief Executive Officer also
may elect such other officers as the Board of Directors or the Chief Executive
Officer may from time to time deem appropriate or necessary.
5.3 Removal. Any officer elected by the Board of Directors may
be removed, either with or without cause, by the Board of Directors at any
meeting thereof, or to the extent delegated to the Chairman of the Board or the
Chief Executive Officer, by the Chairman of the Board or the Chief Executive
Officer.
5.4 Resignations. Any officer of the Corporation may resign at
any time by giving written notice to the Board of Directors or to the Chairman
of the Board or to the Chief Executive Officer. Such resignation shall take
effect at the date of the receipt of such notice or at any later time specified
therein and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
5.5 Compensation. The compensation of all officers of the
Corporation shall be fixed by or in the manner provided by the Board of
Directors from time to time, and no officer shall be prevented from receiving
such compensation by reason of the fact that he or she is also a Director of the
Corporation.
5.6 The Chairman of the Board. The Chairman of the Board shall
have the powers and duties customarily and usually associated with the office of
the Chairman of the Board and shall have such other powers and perform such
other duties as may be delegated to him or her by the Board of Directors. The
Chairman of the Board shall preside at meetings of the stockholders and of the
Board of Directors.
5.7 Vice Chairman of the Board. The Vice Chairman of the
Board, if any, shall have the powers and duties customarily and usually
associated with the office of the Vice Chairman of the Board and shall have such
other powers and perform such other duties as may be delegated to him or her by
the Board of Directors.
5.8 Chief Executive Officer. The Chief Executive Officer shall
have, subject to the supervision, direction and control of the Board of
Directors, the general powers and duties of supervision, direction and
management of the affairs and business of the Corporation usually vested in the
chief executive officer of a corporation, including, without limitation, all
powers necessary to direct and control the organizational and reporting
relationships within the Corporation. In addition, the Chief Executive Officer
shall have such other powers and perform such other duties as may be delegated
to him or her by the Board of Directors. If at any time the office of the
Chairman of the Board and the Vice Chairman of the Board shall not be filled, or
in the event of the temporary absence or disability of the Chairman of the Board
and the Vice Chairman of the Board, the Chief Executive Officer shall have the
powers and duties of the Chairman of the Board.
5.9 The President. The President shall serve as chief
operating officer, shall have the powers and duties customarily and usually
associated with the office of the President and shall have such other powers and
perform such other duties as may be delegated to him or her from time to time by
the Board of Directors or the Chief Executive Officer.
5.10 The Vice Presidents. Each Vice President shall have such
powers and duties customarily and usually associated with the office of Vice
President and shall have such other powers and perform
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such other duties as may from time to time be assigned to him or her by the
Board of Directors, the Chief Executive Officer, or the President.
5.11 The Chief Financial Officer. The Chief Financial Officer
shall be responsible for the financial affairs of the Corporation, including
overseeing the duties performed by the Treasurer of the Corporation. In
addition, the Chief Financial Officer shall have such powers and duties
customarily and usually associated with the office of the Chief Financial
Officer and shall have such other powers and perform such other duties as may be
delegated to him or her from time to time by the Board of Directors or the Chief
Executive Officer.
5.12 The Secretary and the Assistant Secretary. (a) The
Secretary shall attend meetings of the Board of Directors and meetings of the
stockholders and record all votes and minutes of all such proceedings in a book
kept for such purpose. In addition, the Secretary shall have such powers and
duties customarily and usually associated with the office of Secretary and shall
have such other powers and perform such other duties as may be delegated to him
or her by the Board of Directors, the Chief Executive Officer, or the President.
(b) Each Assistant Secretary shall have such powers
and perform such duties customarily and usually associated with the office of
Assistant Secretary and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Secretary. In case
of the absence or disability of the Secretary, the Assistant Secretary
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Secretary) shall perform the duties and exercise the powers
of the Secretary.
5.13 The Treasurer and the Assistant Treasurer. (a) The
Treasurer shall have custody of the Corporation's funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit or cause to be deposited moneys or other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The Treasurer shall
also maintain adequate records of all assets, liabilities, and transactions of
the Corporation and shall see that adequate audits thereof are currently and
regularly made. In addition, the Treasurer shall have such powers and duties
customarily and usually associated with the office of Treasurer and shall have
such other powers and perform such other duties as may be delegated to him or
her from time to time by the Board of Directors, the Chief Executive Officer,
the President or the Chief Financial Officer.
(b) Each Assistant Treasurer shall have such powers
and perform such duties customarily and usually associated with the office of
Assistant Treasurer and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Treasurer. In case
of the absence or disability of the Treasurer, the Assistant Treasurer
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Treasurer) shall perform the duties and exercise the powers
of the Treasurer.
5.14 Controller. The Controller shall be responsible for
maintaining the accounting records and statements, and shall properly account
for all monies and obligations due the Corporation and all properties, assets,
and liabilities of the Corporation. The Controller shall render to the Chairman
of the Board, the President or the Chief Financial Officer such periodic reports
covering the results of operations of the Corporation as may be required by
either of them or by law. In addition, the Controller shall have such powers and
duties customarily and usually associated with the office of Controller and
shall have such other powers and perform such other duties as may be delegated
to him or her from time to time by the Board of Directors, the Chief Executive
Officer, the President or the Chief Financial Officer.
6. STOCK
6.1 Certificates. Certificates for shares of stock of the
Corporation shall be issued under the seal of the Corporation, or a facsimile
thereof, and shall be numbered and shall be entered in the books of the
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Corporation as they are issued. Each certificate shall bear a serial number,
shall exhibit the holder's name and the number of shares evidenced thereby, and
shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the
Chief Executive Officer or the President or any Vice President, and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer.
Any or all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if such person or entity
were such officer, transfer agent, or registrar at the date of issue.
6.2 Transfers. Transfers of stock of the Corporation shall be
made on the books of the Corporation only upon surrender to the Corporation of a
certificate (if any) for the shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, provided such
succession, assignment, or transfer is not prohibited by the Certificate of
Incorporation, these Bylaws, applicable law or contract. Thereupon, the
Corporation shall issue a new certificate (if requested) to the person entitled
thereto, cancel the old certificate (if any), and record the transaction upon
its books.
6.3 Lost, Stolen, or Destroyed Certificates. Any person
claiming a certificate of stock to be lost, stolen, or destroyed shall make an
affidavit or an affirmation of that fact, and shall give the Corporation a bond
of indemnity in satisfactory form and with one or more satisfactory sureties,
whereupon a new certificate (if requested) may be issued of the same tenor and
for the same number of shares as the one alleged to be lost, stolen, or
destroyed.
6.4 Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares as the person entitled to exercise the rights of a stockholder
and shall not be bound to recognize any equitable or other claim to or interest
in any such shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise expressly provided by the
GCLD.
6.5 Additional Powers of the Board. (a) In addition to those
powers set forth in Section 4.1, the Board of Directors shall have power and
authority to make all such rules and regulations as it shall deem expedient
concerning the issue, transfer, and registration of certificates for shares of
stock of the Corporation, including the use of uncertificated shares of stock
subject to the provisions of the GCLD.
(b) The Board of Directors may appoint and remove
transfer agents and registrars of transfers, and may require all stock
certificates to bear the signature of any such transfer agent and/or any such
registrar of transfers.
7. INDEMNIFICATION
7.1 Each person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or the person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation, as a
director, officer, employee, or agent of another corporation or of a
partnership, joint venture, trust, or other enterprise, including service with
respect to employee benefit plans, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the GCLD, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expenses, liability, and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of his or her heirs, executors, and administrators; provided,
however, that, except as provided in this Article 7, the Corporation shall
indemnify any
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such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if authorized by the Board of Directors
of the Corporation. Any indemnification under this Article 7 (unless ordered by
a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee, or agent is proper in the circumstances because he or she has met the
applicable standard set forth in the GCLD. Such a determination shall be made
(a) by a majority vote of the directors who are not parties to such action, suit
or proceeding, even though less than a quorum; (b) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum; (c) by independent legal counsel (compensated by the Corporation) in a
written opinion; (d) by the stockholders; or (e) in any other manner permitted
by the GCLD. In addition to the right to indemnification conferred in this
Article 7, each of the above persons shall have the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that, if the GCLD requires, the
payment of such expenses incurred by a present director or officer in his or her
capacity as a director or officer of the corporation (and not in any other
capacity in which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such present
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Article 7 or otherwise. The Corporation may, by any manner permitted by the
GCLD, provide indemnification and advancement of expenses to employees and
agents of the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers. The right to indemnification and to
an advancement of expenses conferred in this Article 7 shall be a contract
right.
7.2 If a claim under Section 7.1 of this Article 7 is not paid
in full by the Corporation within 30 days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim (including attorneys' fees). It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the GCLD for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, a committee thereof, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the GCLD, nor an actual determination by the Corporation (including
its Board of Directors, a committee thereof, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct. In any suit brought by the claimant
to enforce a right to indemnification or to an advancement of expenses
hereunder, or brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the claimant
is not entitled to be indemnified, or to such advancement of expenses, under
this Article 7 or otherwise shall be on the Corporation.
7.3 The rights to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Article 7, shall not be exclusive of any other right that any person may
have or hereafter acquire under any statute, provision of the certificate of
incorporation of the Corporation, this bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
7.4 The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee, or agent of the Corporation
or another corporation, partnership, joint venture, trust, or other enterprise
against any such expense, liability, or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability,
or loss under the GCLD.
7.5 The Corporation may enter into an indemnity agreement with
any director, officer, employee, or agent of the Corporation, or of another
corporation, partnership, joint venture, trust, or other
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enterprise, upon terms and conditions that the Board of Directors deems
appropriate, as long as the provisions of the agreement are not impermissible
under applicable law.
7.6 Any amendment or repeal of this Article 7 shall not be
retroactive in effect.
7.7 In case any provision in this Article 7 shall be
determined at any time to be unenforceable in any respect, the other provisions
shall not in any way be affected or impaired thereby, and the affected provision
shall be given the fullest possible enforcement in the circumstances, it being
the intention of the Corporation to afford indemnification and advancement of
expenses to the persons indemnified hereby to the fullest extent permitted by
law.
7.8 The Corporation may, by action of the Board of Directors,
authorize one or more officers to grant rights to indemnification and
advancement of expenses to former directors and officers or to other employees
or agents of the Corporation on such terms and conditions as such officer or
officers deem appropriate under the circumstances.
8. MISCELLANEOUS
8.1 Place and Inspection of Books. (a) The books of the
Corporation other than such books as are required by law to be kept within the
State of Delaware shall be kept in such place or places either within or without
the State of Delaware as the Board of Directors may from time to time determine.
(b) At least ten days before each meeting of
stockholders, the officer in charge of the stock ledger of the Corporation shall
prepare a complete list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
(c) The Board of Directors shall determine from time
to time whether and, if allowed, when and under what conditions and regulations
the accounts and books of the Corporation (except such as may be by law
specifically open to inspection or as otherwise provided by these Bylaws) or any
of them shall be open to the inspection of the stockholders and the
stockholders' rights in respect thereof.
8.2 Voting Shares in Other Corporations. The Chief Executive
Officer, the President, the Chief Financial Officer or any other officer of the
Corporation designated by the Board of Directors may vote any and all shares
held by the Corporation in any other corporation.
8.3 Fiscal Year. The fiscal year of the Corporation shall be
such fiscal year as the Board of Directors from time to time by resolution shall
determine.
8.4 Gender/Number. As used in these Bylaws, the masculine,
feminine, or neuter gender, and the singular or plural number, shall each
include the others whenever the context so indicates.
8.5 Paragraph Titles. The titles of the paragraphs have been
inserted as a matter of reference only and shall not control or affect the
meaning or construction of any of the terms and provisions hereof.
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8.6 Amendment. These Bylaws may be altered, amended, or
repealed by (a) the affirmative vote of 80% or more of the aggregate number of
votes that the holders of the then outstanding shares of common stock and
preferred stock are entitled to cast on the amendment, or (b) by resolution
adopted by the affirmative vote of not less than a majority of the Directors in
office, at any annual or regular meeting of the Board of Directors or at any
special meeting of the Board of Directors if notice of the proposed alteration,
amendment, or repeal be contained in written notice of such special meeting.
Notwithstanding the foregoing, the amendment of any provision of these Bylaws
that requires an affirmative vote in excess of a majority of the Directors in
office shall require the affirmative vote of at least the number of directors
the affirmative vote of whom is required by such provision.
8.7 Certificate of Incorporation. Notwithstanding anything to
the contrary contained herein, if any provision contained in these Bylaws is
inconsistent with or conflicts with a provision of the Certificate of
Incorporation, such provision of these Bylaws shall be superseded by the
inconsistent provision in the Certificate of Incorporation to the extent
necessary to give effect to such provision in the Certificate of Incorporation.
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ATE Investment, Inc.
B.25.2
Amended and Restated Bylaws
Adopted December 31, 1999
<PAGE> 2
AMENDED AND RESTATED
B Y L A W S
OF
ATE INVESTMENT, INC.
1. OFFICES.
1.1 Offices. In addition to its registered office in the State
of Delaware, the Corporation shall have a corporate office in Wilmington,
Delaware, and such other offices, either within or without the State of
Delaware, at such locations as the Board of Directors may from time to time
determine or the business of the Corporation may require.
2. SEAL.
2.1 Seal. The Corporation shall have a seal, which shall have
inscribed thereon its name and year of incorporation and the words, "Corporate
Seal New Jersey."
3. MEETINGS OF STOCKHOLDERS.
3.1 Annual Meetings. The annual meeting of stockholders of the
Corporation shall be held on such date, at such time and at such place within or
without the State of Delaware as shall be determined by the Board of Directors
from time to time.
3.2 Special Meetings. Special meetings of the stockholders of
the Corporation shall be held on such date, at such time and at such place
within or without the State of Delaware as may be designated by the Chairman of
the Board or by the Board of Directors.
3.3 Notice of Meetings. (a) Notices of meetings of
stockholders shall be in writing and shall state the place, date, and hour of
the meeting, and, in the case of a special meeting, the purpose or purposes for
which a meeting is called. No business other than that specified in the notice
thereof shall be transacted at any special meeting.
(b) Such notice shall either be delivered personally,
mailed, postage prepaid, or delivered by any other lawful means to each
stockholder entitled to vote at such meeting not less than 10 nor more than 60
days before the date of the meeting. If mailed, the notice shall be directed to
the stockholder at his or her address as it appears on the records of the
Corporation. Delivery of any such notice to any officer of a corporation or
association or to any member of a partnership shall constitute delivery of such
notice to such corporation, association, or partnership.
(c) Notice of any meeting of stockholders need not be
given to any stockholder if waived by such stockholder in writing, whether
before or after such meeting is held, or if such stockholder shall sign the
minutes or attend the meeting, except that if such stockholder attends a meeting
for the express purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened, such stockholder shall not be deemed to have waived notice of such
meeting.
3.4 Adjourned Meetings. When a meeting is adjourned to another
time or place, unless otherwise provided by these Bylaws, notice need not be
given of the adjourned meeting if the time and place
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thereof are announced at the meeting at which the adjournment is taken. At the
adjourned meeting the stockholders may transact any business that might have
been transacted at the original meeting. If an adjournment is for more than 30
days, or if after an adjournment, a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder
entitled to vote at the meeting.
3.5 Quorum and Adjournment. Except as otherwise provided by
law, by the Certificate of Incorporation of the Corporation, or by these Bylaws,
the presence, in person or by proxy, of the holders of a majority of the
aggregate voting power of the stock issued and outstanding, entitled to vote
thereat, shall constitute a quorum for the transaction of business at all
meetings of stockholders. If such majority shall not be present or represented
at any meeting of stockholders, the stockholders present, although less than a
quorum, shall have the power to adjourn the meeting.
3.6 Vote Required. Except as otherwise provided by law or by
the Certificate of Incorporation:
(a) Directors shall be elected by a plurality of the
votes present in person or represented by proxy at a meeting of stockholders and
entitled to vote in the election of directors, and
(b) whenever any corporate action other than the election
of Directors is to be taken, it shall be authorized by a majority in voting
power of the shares present in person or by proxy at a meeting of stockholders
and entitled to vote on the subject matter.
3.7 Manner of Voting. At each meeting of stockholders, each
stockholder having the right to vote shall be entitled to vote in person or by
proxy. Proxies need not be filed with the Secretary of the Corporation until the
meeting is called to order, but shall be filed before being voted. Each
stockholder shall be entitled to vote each share of stock having voting power
registered in his or her name on the books of the Corporation on the record date
fixed for determination of stockholders entitled to vote at such meeting.
3.8 Stockholder Action Without a Meeting. Except as otherwise
provided by law or by the Certificate of Incorporation, any action required to
be taken at any meeting of stockholders of the corporation, or any action that
may be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice, and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing and who,
if the action had been taken at a meeting, would have been entitled to notice of
the meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of the holders to take the action were
delivered to the Corporation.
3.9 Proxies. (a) At any meeting of stockholders, any
stockholder may be represented and vote by proxy or proxies. In the event that
any form of proxy shall designate two or more persons to act as proxies, a
majority of such persons present at the meeting or, if only one shall be
present, then that one shall have and may exercise all of the powers conferred
by the form of proxy upon all of the persons so designated unless the form of
proxy shall otherwise provide.
(b) The Board of Directors may, in advance of any annual
or special meeting of the stockholders, prescribe additional regulations
concerning the validation of the same, which are intended to be voted at any
such meeting.
3.10 Presiding Officer and Secretary. The Chairman of the
Board shall act as chairman of all meetings of the stockholders. In the absence
of the Chairman of the Board, the Vice Chairman of the Board
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or, in his or her absence, any Director designated by the Chairman of the Board
or the Board of Directors shall act as chairman of the meeting.
The Secretary of the Corporation shall act as secretary of all
meetings of the stockholders, but, in the absence of the Secretary, the
Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the stockholders, but in the
absence of a designated Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
3.11 Procedure. At each meeting of stockholders, the chairman
of the meeting shall fix and announce the date and time of the opening and the
closing of the polls for each matter upon which the stockholders will vote at
the meeting and shall determine the order of business and all other matters of
procedure. Except to the extent inconsistent with any such rules and regulations
as adopted by the Board of Directors, the chairman of the meeting may establish
rules, which need not be in writing, to maintain order and safety and for the
conduct of the meeting. Without limiting the foregoing, he or she may:
(a) restrict attendance at any time to bona fide
stockholders of record and their proxies and other persons in attendance at the
invitation of the chairman;
(b) restrict dissemination of solicitation materials and
use of audio or visual recording devices at the meeting;
(c) adjourn the meeting without a vote of the
stockholders, whether or not there is a quorum present; and
(d) make rules governing speeches and debate, including
time limits and access to microphones.
The chairman of the meeting shall be entitled to act in his or her absolute
discretion and his or her rulings shall not be subject to appeal.
4. DIRECTORS.
4.1 Powers and Number. The Board of Directors shall exercise
all of the powers of the Corporation except such as are by law, or by the
Certificate of Incorporation of this Corporation or by these Bylaws conferred
upon or reserved to the stockholders of any class or classes. The number of
directors that shall constitute the whole Board of Directors shall be no fewer
than three (3) and no greater than nine (9), the exact number of directors to be
determined from time to time by resolution adopted by the Board of Directors or
the stockholders, and until otherwise determined by the Board of Directors or
the stockholders, the number of directors that shall constitute the whole Board
of Directors shall be three (3).
4.2 Resignations. Any Director may resign at any time by
giving written notice to the Board of Directors or the Secretary. Such
resignation shall take effect at the date of receipt of such notice or at any
later time specified therein. Acceptance of such resignation shall not be
necessary to make it effective.
4.3 Presiding Officer and Secretary. The Chairman of the
Board shall act as chairman of all meetings of the Board of Directors. In the
absence of the Chairman of the Board, the Vice Chairman of the Board, or in his
absence, the Chief Executive Officer or other person designated by the Board of
Directors shall act as chairman of the meeting.
The Secretary of the Corporation shall act as secretary
of all meetings of the Board of Directors, but, in the absence of the Secretary,
the Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the Board of Directors, but in
the absence of a
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designated Assistant Secretary, the chairman of the meeting may appoint any
person to act as secretary of the meeting.
4.4 Annual Meetings. The Board of Directors shall meet each
year immediately following the annual meeting of stockholders, at the place
where such meeting of stockholders has been held, or at such other place as
shall be fixed by the person presiding over the meeting of the stockholders, for
the purpose of election of officers and consideration of such other business as
the Board of Directors considers relevant to the management of the Corporation.
In the event that in any year Directors are elected by written consent in lieu
of an annual meeting of stockholders, the Board of Directors shall meet in such
year as soon as practicable after receipt of such written consent by the
Corporation at such time and place as shall be fixed by the Chairman of the
Board, for the purpose of election of officers and consideration of such other
business as the Board of Directors considers relevant to the management of the
Corporation.
4.5 Regular Meetings. Regular meetings of the Board of
Directors shall be held on such dates and at such times and places, within or
without the state of Delaware, as shall from time to time be determined by the
Board of Directors. In the absence of any such determination, such meetings
shall be held at such times and places, within or without the State of Delaware,
as shall be designated by the Chairman of the Board on not less than twelve
hours notice to each Director, given verbally, in writing or electronically,
whether personally, by telephone (including by message or recording device), by
facsimile transmission, by telegram, by telex or by electronic mail or by other
electronic means, or on not less than three (3) calendar days' notice to each
Director given by mail. Notice given by any of the foregoing means shall be
sufficient to constitute notice of a meeting without the necessity of further
notice.
4.6 Special Meetings. Special meetings of the Board of
Directors shall be held at the call of the Chairman of the Board at such times
and places, within or without the State of Delaware, as he or she shall
designate, on not less than twelve hours notice to each Director, given
verbally, in writing or electronically, whether personally, by telephone
(including by message or recording device), by facsimile transmission, by
telegram, by telex, by electronic mail or by other electronic means or on not
less than three (3) calendar days' notice to each Director given by mail. Notice
given by any of the foregoing means shall be sufficient to constitute notice of
a meeting without the necessity of further notice. Special meetings shall be
called by the Secretary on like notice at the written request of a majority of
the Directors then in office.
4.7 Quorum and Powers of a Majority. At all meetings of the
Board of Directors and of each committee thereof, a majority of the members
shall be necessary and sufficient to constitute a quorum for the transaction of
business, and the act of a majority of the members present at any meeting at
which a quorum is present shall be the act of the Board of Directors or such
committee, unless by express provision of law, of the Certificate of
Incorporation, or of these Bylaws, a different vote is required, in which case
such express provision shall govern and control. In the absence of a quorum, a
majority of the members present at any meeting may, without notice other than
announcement at the meeting, adjourn such meeting from time to time until a
quorum is present.
4.8 Waiver of Notice. Notice of any meeting of the Board of
Directors, or any committee thereof, need not be given to any member if waived
by him or her in writing, whether before or after such meeting is held, or if he
or she shall sign the minutes or attend the meeting, except that if such
Director attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened, then such Director shall not be deemed to have
waived notice of such meeting.
4.9 Manner of Acting. (a) Members of the Board of Directors,
or any committee thereof, may participate in any meeting of the Board of
Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating therein can
hear each other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
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(b) Any action required or permitted to be taken at any
meeting of the Board of Directors or any committee thereof may be taken without
a meeting if all members of the Board of Directors or such committee, as the
case may be, consent thereto in writing, and the writings are filed with the
minutes of proceedings of the Board of Directors or such committee.
4.10 Compensation. (a) The Board of Directors, by a
resolution or resolutions, may fix, and from time to time change, the
compensation of Directors.
(b) Each Director shall be entitled to reimbursement from
the Corporation for his or her reasonable expenses incurred with respect to
duties as a member of the Board of Directors or any committee thereof.
(c) Nothing contained in these Bylaws shall be construed
to preclude any Director from serving the Corporation in any other capacity and
from receiving compensation from the Corporation for service rendered to it in
such other capacity.
4.11 Committees. The Board of Directors (or any committee
thereof having the power and authority to do so) may designate one or more
committees, each committee to consist of one or more Directors, which to the
extent provided in said resolution or resolutions shall have and may exercise
the powers and authority of the Board of Directors in the management of the
business and affairs of the corporation; provided, however, that no such
committee shall have the power or authority in reference to the following
matters: (i) approving or adopting, or recommending to the stockholders, any
action or matter expressly required by the General Corporation Law of Delaware
(the "GCLD") to be submitted to stockholders for approval or (ii) adopting,
amending, or repealing any bylaw of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member of the committee. In the absence or
disqualification of a member of a committee, the member or members present at
any meeting of such committee and not disqualified from voting, whether or not
such member of members constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in place of such absent
or disqualified director.
4.12 Committee Procedure, Limitations of Committee Powers. (a)
Except as otherwise provided by these Bylaws, each committee shall adopt its own
rules governing the time, place and method of holding its meetings and the
conduct of its proceedings and shall meet as provided by such rules or by
resolution of the Board of Directors. Unless otherwise provided by these Bylaws
or any such rules or resolutions, notice of the time and place of each meeting
of a committee shall be given to each member of such committee as provided in
Section 4.6 of these Bylaws with respect to notices of special meetings of the
Board of Directors.
(b) Each committee shall keep regular minutes of its
proceedings and report the same to the Board of Directors when required.
(c) Any member of any committee may be removed from such
committee either with or without cause, at any time, by the Board of Directors
at any meeting thereof. Any vacancy in any committee shall be filled by the
Board of Directors in the manner prescribed by the Certificate of Incorporation
or these Bylaws for the original appointment of the members of such committee.
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5. OFFICERS.
5.1 Number. (a) The officers of the Corporation shall include
a Chief Executive Officer, a President, one or more Vice Presidents (including
one or more Executive Vice Presidents and one or more Senior Vice Presidents if
deemed appropriate by the Board of Directors), a Chief Financial Officer, a
Secretary, a Treasurer, and a Controller. The Board of Directors shall also
elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except
for the Chairman of the Board, the Vice Chairman of the Board, and the Chief
Executive Officer, none of the officers of the Corporation needs to be a
director of the Corporation. Any two or more offices may be held by the same
person to the extent permitted by the GCLD.
(b) The Chief Executive Officer shall have the power to
appoint one or more employees of the Corporation as divisional or departmental
vice presidents and fix the duties of such appointees. However, no such
divisional or departmental vice president shall be considered as an officer of
the Corporation.
5.2 Election of Officers, Qualification and Term. The Chief
Executive Officer, the President, any Executive Vice President, any Senior Vice
President, the Chief Financial Officer, the Secretary and the Treasurer of the
Corporation shall be elected from time to time by the Board of Directors and,
except as may otherwise be expressly provided in a contract of employment duly
authorized by the Board of Directors, shall hold office at the pleasure of the
Board of Directors. The Board of Directors and the Chief Executive Officer also
may elect such other officers as the Board of Directors or the Chief Executive
Officer may from time to time deem appropriate or necessary.
5.3 Removal. Any officer elected by the Board of Directors may
be removed, either with or without cause, by the Board of Directors at any
meeting thereof, or to the extent delegated to the Chairman of the Board or the
Chief Executive Officer, by the Chairman of the Board or the Chief Executive
Officer.
5.4 Resignations. Any officer of the Corporation may resign at
any time by giving written notice to the Board of Directors or to the Chairman
of the Board or to the Chief Executive Officer. Such resignation shall take
effect at the date of the receipt of such notice or at any later time specified
therein and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
5.5 Compensation. The compensation of all officers of the
Corporation shall be fixed by or in the manner provided by the Board of
Directors from time to time, and no officer shall be prevented from receiving
such compensation by reason of the fact that he or she is also a Director of the
Corporation.
5.6 The Chairman of the Board. The Chairman of the Board shall
have the powers and duties customarily and usually associated with the office of
the Chairman of the Board and shall have such other powers and perform such
other duties as may be delegated to him or her by the Board of Directors. The
Chairman of the Board shall preside at meetings of the stockholders and of the
Board of Directors.
5.7 Vice Chairman of the Board. The Vice Chairman of the
Board, if any, shall have the powers and duties customarily and usually
associated with the office of the Vice Chairman of the Board and shall have such
other powers and perform such other duties as may be delegated to him or her by
the Board of Directors.
5.8 Chief Executive Officer. The Chief Executive Officer shall
have, subject to the supervision, direction and control of the Board of
Directors, the general powers and duties of supervision, direction and
management of the affairs and business of the Corporation usually vested in the
chief executive officer of a corporation, including, without limitation, all
powers necessary to direct and control the organizational and reporting
relationships within the Corporation. In addition, the Chief Executive Officer
shall have such other powers and perform such other duties as may be delegated
to him or her by the Board of Directors. If at any time the office of the
Chairman of the Board and the Vice Chairman of the Board shall not be
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filled, or in the event of the temporary absence or disability of the Chairman
of the Board and the Vice Chairman of the Board, the Chief Executive Officer
shall have the powers and duties of the Chairman of the Board.
5.9 The President. The President shall serve as chief
operating officer, shall have the powers and duties customarily and usually
associated with the office of the President and shall have such other powers and
perform such other duties as may be delegated to him or her from time to time by
the Board of Directors or the Chief Executive Officer.
5.10 The Vice Presidents. Each Vice President shall have such
powers and duties customarily and usually associated with the office of Vice
President and shall have such other powers and perform such other duties as may
from time to time be assigned to him or her by the Board of Directors, the Chief
Executive Officer, or the President.
5.11 The Chief Financial Officer. The Chief Financial Officer
shall be responsible for the financial affairs of the Corporation, including
overseeing the duties performed by the Treasurer of the Corporation. In
addition, the Chief Financial Officer shall have such powers and duties
customarily and usually associated with the office of the Chief Financial
Officer and shall have such other powers and perform such other duties as may be
delegated to him or her from time to time by the Board of Directors or the Chief
Executive Officer.
5.12 The Secretary and the Assistant Secretary. (a) The
Secretary shall attend meetings of the Board of Directors and meetings of the
stockholders and record all votes and minutes of all such proceedings in a book
kept for such purpose. In addition, the Secretary shall have such powers and
duties customarily and usually associated with the office of Secretary and shall
have such other powers and perform such other duties as may be delegated to him
or her by the Board of Directors, the Chief Executive Officer, or the President.
(b) Each Assistant Secretary shall have such powers and
perform such duties customarily and usually associated with the office of
Assistant Secretary and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Secretary. In case
of the absence or disability of the Secretary, the Assistant Secretary
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Secretary) shall perform the duties and exercise the powers
of the Secretary.
5.13 The Treasurer and the Assistant Treasurer. (a) The
Treasurer shall have custody of the Corporation's funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit or cause to be deposited moneys or other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The Treasurer shall
also maintain adequate records of all assets, liabilities, and transactions of
the Corporation and shall see that adequate audits thereof are currently and
regularly made. In addition, the Treasurer shall have such powers and duties
customarily and usually associated with the office of Treasurer and shall have
such other powers and perform such other duties as may be delegated to him or
her from time to time by the Board of Directors, the Chief Executive Officer,
the President or the Chief Financial Officer.
(b) Each Assistant Treasurer shall have such powers and
perform such duties customarily and usually associated with the office of
Assistant Treasurer and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Treasurer. In case
of the absence or disability of the Treasurer, the Assistant Treasurer
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Treasurer) shall perform the duties and exercise the powers
of the Treasurer.
5.14 Controller. The Controller shall be responsible for
maintaining the accounting records and statements, and shall properly account
for all monies and obligations due the Corporation and all properties, assets,
and liabilities of the Corporation. The Controller shall render to the Chairman
of the Board, the President
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or the Chief Financial Officer such periodic reports covering the results of
operations of the Corporation as may be required by either of them or by law. In
addition, the Controller shall have such powers and duties customarily and
usually associated with the office of Controller and shall have such other
powers and perform such other duties as may be delegated to him or her from time
to time by the Board of Directors, the Chief Executive Officer, the President or
the Chief Financial Officer.
6. STOCK
6.1 Certificates. Certificates for shares of stock of the
Corporation shall be issued under the seal of the Corporation, or a facsimile
thereof, and shall be numbered and shall be entered in the books of the
Corporation as they are issued. Each certificate shall bear a serial number,
shall exhibit the holder's name and the number of shares evidenced thereby, and
shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the
Chief Executive Officer or the President or any Vice President, and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer.
Any or all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if such person or entity
were such officer, transfer agent, or registrar at the date of issue.
6.2 Transfers. Transfers of stock of the Corporation shall be
made on the books of the Corporation only upon surrender to the Corporation of a
certificate (if any) for the shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, provided such
succession, assignment, or transfer is not prohibited by the Certificate of
Incorporation, these Bylaws, applicable law or contract. Thereupon, the
Corporation shall issue a new certificate (if requested) to the person entitled
thereto, cancel the old certificate (if any), and record the transaction upon
its books.
6.3 Lost, Stolen, or Destroyed Certificates. Any person
claiming a certificate of stock to be lost, stolen, or destroyed shall make an
affidavit or an affirmation of that fact, and shall give the Corporation a bond
of indemnity in satisfactory form and with one or more satisfactory sureties,
whereupon a new certificate (if requested) may be issued of the same tenor and
for the same number of shares as the one alleged to be lost, stolen, or
destroyed.
6.4 Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares as the person entitled to exercise the rights of a stockholder
and shall not be bound to recognize any equitable or other claim to or interest
in any such shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise expressly provided by the
GCLD.
6.5 Additional Powers of the Board. (a) In addition to those
powers set forth in Section 4.1, the Board of Directors shall have power and
authority to make all such rules and regulations as it shall deem expedient
concerning the issue, transfer, and registration of certificates for shares of
stock of the Corporation, including the use of uncertificated shares of stock
subject to the provisions of the GCLD.
(b) The Board of Directors may appoint and remove transfer
agents and registrars of transfers, and may require all stock certificates to
bear the signature of any such transfer agent and/or any such registrar of
transfers.
7. INDEMNIFICATION
7.1 Each person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or the person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the
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Corporation, as a director, officer, employee, or agent of another corporation
or of a partnership, joint venture, trust, or other enterprise, including
service with respect to employee benefit plans, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the GCLD, as the
same exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than said law permitted the Corporation to
provide prior to such amendment), against all expenses, liability, and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties,
and amounts paid or to be paid in settlement) reasonably incurred or suffered by
such person in connection therewith and such indemnification shall continue as
to a person who has ceased to be a director, officer, employee, or agent and
shall inure to the benefit of his or her heirs, executors, and administrators;
provided, however, that, except as provided in this Article 7, the Corporation
shall indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if authorized by the
Board of Directors of the Corporation. Any indemnification under this Article 7
(unless ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee, or agent is proper in the circumstances because he or she has
met the applicable standard set forth in the GCLD. Such a determination shall be
made (a) by a majority vote of the directors who are not parties to such action,
suit or proceeding, even though less than a quorum; (b) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum; (c) by independent legal counsel (compensated by the Corporation) in a
written opinion; (d) by the stockholders; or (e) in any other manner permitted
by the GCLD. In addition to the right to indemnification conferred in this
Article 7, each of the above persons shall have the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that, if the GCLD requires, the
payment of such expenses incurred by a present director or officer in his or her
capacity as a director or officer of the corporation (and not in any other
capacity in which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such present
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Article 7 or otherwise. The Corporation may, by any manner permitted by the
GCLD, provide indemnification and advancement of expenses to employees and
agents of the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers. The right to indemnification and to
an advancement of expenses conferred in this Article 7 shall be a contract
right.
7.2 If a claim under Section 7.1 of this Article 7 is not paid
in full by the Corporation within 30 days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim (including attorneys' fees). It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the GCLD for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, a committee thereof, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the GCLD, nor an actual determination by the Corporation (including
its Board of Directors, a committee thereof, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct. In any suit brought by the claimant
to enforce a right to indemnification or to an advancement of expenses
hereunder, or brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the claimant
is not entitled to be indemnified, or to such advancement of expenses, under
this Article 7 or otherwise shall be on the Corporation.
7.3 The rights to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Article 7, shall not be exclusive of any other right
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that any person may have or hereafter acquire under any statute, provision of
the certificate of incorporation of the Corporation, this bylaw, agreement, vote
of stockholders or disinterested directors, or otherwise.
7.4 The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee, or agent of the Corporation
or another corporation, partnership, joint venture, trust, or other enterprise
against any such expense, liability, or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability,
or loss under the GCLD.
7.5 The Corporation may enter into an indemnity agreement with
any director, officer, employee, or agent of the Corporation, or of another
corporation, partnership, joint venture, trust, or other enterprise, upon terms
and conditions that the Board of Directors deems appropriate, as long as the
provisions of the agreement are not impermissible under applicable law.
7.6 Any amendment or repeal of this Article 7 shall not be
retroactive in effect.
7.7 In case any provision in this Article 7 shall be
determined at any time to be unenforceable in any respect, the other provisions
shall not in any way be affected or impaired thereby, and the affected provision
shall be given the fullest possible enforcement in the circumstances, it being
the intention of the Corporation to afford indemnification and advancement of
expenses to the persons indemnified hereby to the fullest extent permitted by
law.
7.8 The Corporation may, by action of the Board of Directors,
authorize one or more officers to grant rights to indemnification and
advancement of expenses to former directors and officers or to other employees
or agents of the Corporation on such terms and conditions as such officer or
officers deem appropriate under the circumstances.
8. MISCELLANEOUS
8.1 Place and Inspection of Books. (a) The books of the
Corporation other than such books as are required by law to be kept within the
State of Delaware shall be kept in such place or places either within or without
the State of Delaware as the Board of Directors may from time to time determine.
(b) At least ten days before each meeting of stockholders,
the officer in charge of the stock ledger of the Corporation shall prepare a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order and showing the address of each stockholder and the number of
shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
(c) The Board of Directors shall determine from time to
time whether and, if allowed, when and under what conditions and regulations the
accounts and books of the Corporation (except such as may be by law specifically
open to inspection or as otherwise provided by these Bylaws) or any of them
shall be open to the inspection of the stockholders and the stockholders' rights
in respect thereof.
8.2 Voting Shares in Other Corporations. The Chief Executive
Officer, the President, the Chief Financial Officer or any other officer of the
Corporation designated by the Board of Directors may vote any and all shares
held by the Corporation in any other corporation.
11
<PAGE> 12
8.3 Fiscal Year. The fiscal year of the Corporation shall be
such fiscal year as the Board of Directors from time to time by resolution shall
determine.
8.4 Gender/Number. As used in these Bylaws, the masculine,
feminine, or neuter gender, and the singular or plural number, shall each
include the others whenever the context so indicates.
8.5 Paragraph Titles. The titles of the paragraphs have been
inserted as a matter of reference only and shall not control or affect the
meaning or construction of any of the terms and provisions hereof.
8.6 Amendment. These Bylaws may be altered, amended, or
repealed by (a) the affirmative vote of 80% or more of the aggregate number of
votes that the holders of the then outstanding shares of common stock and
preferred stock are entitled to cast on the amendment, or (b) by resolution
adopted by the affirmative vote of not less than a majority of the Directors in
office, at any annual or regular meeting of the Board of Directors or at any
special meeting of the Board of Directors if notice of the proposed alteration,
amendment, or repeal be contained in written notice of such special meeting.
Notwithstanding the foregoing, the amendment of any provision of these Bylaws
that requires an affirmative vote in excess of a majority of the Directors in
office shall require the affirmative vote of at least the number of directors
the affirmative vote of whom is required by such provision.
8.7 Certificate of Incorporation. Notwithstanding anything to
the contrary contained herein, if any provision contained in these Bylaws is
inconsistent with or conflicts with a provision of the Certificate of
Incorporation, such provision of these Bylaws shall be superseded by the
inconsistent provision in the Certificate of Incorporation to the extent
necessary to give effect to such provision in the Certificate of Incorporation.
12
<PAGE> 1
King Street Assurance, Ltd.
B.26.1
Certificate of Incorporation
Filed August 9, 1999
<PAGE> 2
FORM NO. 6 Registration No. 26789
BERMUDA
CERTIFICATE OF INCORPORATION
I hereby in accordance with section 14 of the Companies Act 1981 issue this
Certificate of Incorporation and do certify that on the 9th day of AUGUST, 1999
KING STREET ASSURANCE LTD.
was registered by me in the Register maintained by me under the provisions of
the said section and that the status of the said company is that of an EXEMPTED
company.
Given under my hand and the Seal of the
REGISTRAR OF COMPANIES this 11th day of
AUGUST, 1999.
for REGISTRAR OF COMPANIES
<PAGE> 1
King Street Assurance, Ltd.
B.26.2
Bylaws
<PAGE> 2
BYE-LAWS
of
King Street Assurance Ltd.
I. S. Outerbridge
Secretary
ADOPTED: 11th August, 1999
<PAGE> 3
INTERPRETATION
1. Interpretation
(1) In these Bye-laws the following words and expressions
shall, where not inconsistent with the context, have the following meanings
respectively:-
(a) "Act" means the Companies Act 1981 as amended from
time to time;
(b) "Alternate Director" means an alternate Director
appointed in accordance with these Bye-laws;
(c) "Auditor" includes any individual or partnership;
(d) "Board" means the Board of Directors appointed or
elected pursuant to these Bye-laws and acting by
resolution in accordance with the Act and these
Bye-laws or the Directors present at a meeting of
Directors at which there is a quorum;
(e) "Company" means the company for which these Bye-laws
are approved and confirmed;
(f) "Director" means a director of the Company and shall
include an Alternate Director;
(g) "Member" means the person registered in the Register
of Members as the holder of shares in the Company
and, when two or more persons are so registered as
Joint holders of shares, means the person whose name
stands first in the Register of Members as one of
such joint holders or all of such persons as the
context so requires;
(h) "notice" means written notice as further defined in
these Bye-laws unless otherwise specifically stated;
(i) "Officer" means any person appointed by the Board to
hold an office in the Company;
(j) "Register of Directors and Officers" means the
Register of Directors and Officers referred to in
these Bye-laws;
(k) "Register of Members" means the Register of Members
referred to in these Bye-laws; and
<PAGE> 4
(1) "Resident Representative" means any person appointed
to act as resident representative and includes any
deputy or assistant resident representative.
(m) "Secretary" means the person appointed to perform any
or all the duties of secretary of the Company and
includes any deputy or assistant secretary.
(2) In these Bye-laws, where not inconsistent with the context:-
(a) words denoting the plural number include the singular
number and vice versa;
(b) words denoting the masculine gender include the
feminine gender;
(c) words importing persons include companies,
associations or bodies of persons whether corporate
or not;
(d) the word;
(i) "may" shall be construed as permissive;
(ii) "shall" shall be construed as imperative;
and
(e) unless otherwise provided herein words or expressions
defined in the Act shall bear the same meaning in
these Bye-laws.
(3) Expressions referring to writing or written shall, unless the
contrary intention appears, include facsimile, printing, lithography,
photography and other modes of representing words in a visible form.
(4) Headings used in these Bye-laws are for convenience only and
are not to be used or relied upon in the construction hereof
BOARD OF DIRECTORS
2. Board of Directors
The business of the Company shall be managed and conducted by the
Board.
3 . Management of the Company
(1) In managing the business of the Company, the Board may
exercise all such powers of the Company as are not, by statute or by these
Bye-laws, required to be exercised by the Company in general meeting subject,
nevertheless, to these Bye-laws, the provisions of any statute and to such
directions as may be prescribed by the Company in general meeting.
<PAGE> 5
(2) No regulation or alteration to these Bye-laws made by the Company
in general meeting shall invalidate any prior act of the Board which would have
been valid if that regulation or alteration had not been made.
(3) The Board may procure that the Company pays all expenses incurred
in promoting and incorporating the Company.
4. Power to appoint managing director or chief executive officer
The Board may from time to time appoint one or more Directors to the
office of managing director or chief executive officer of the Company who shall,
subject to the control of the Board, supervise and administer all of the general
business and affairs of the Company.
5. Power to appoint manager
The Board may appoint a person to act as manager of the Company's day
to day business and may entrust to and confer upon such manager such powers and
duties as it deems appropriate for the transaction or conduct of such business.
6. Power to authorise specific actions
The Board may from time to time and at any time authorise any company,
firm, person or body of persons to act on behalf of the Company for any specific
purpose and in connection therewith to execute any agreement, document or
instrument on behalf of the Company.
7. Power to appoint attorney
The Board may from time to time and at any time by power of attorney
appoint any company, firm, person or body of persons, whether nominated directly
or indirectly by the Board, to be an attorney of the Company for such purposes
and with such powers, authorities and discretions (not exceeding those vested in
or exercisable by the Board) and for such period and subject to such conditions
as it may think fit and any such power of attorney may contain such provisions
for the protection and convenience of persons dealing with any such attorney as
the Board may think fit and may also authorise any such attorney to sub-delegate
all or any of the powers, authorities and discretions so vested in the attorney.
Such attorney may, if so authorised under the seal of -the Company, execute any
deed or instrument under such attorney's personal seal with the same effect as
the affixation of the seal of the Company.
8. Power to delegate. to a committee
The Board may delegate any of its powers to a committee appointed by
the Board which may consist partly or entirely of non-Directors and every such
committee shall conform to such directions as the Board shall impose on them.
9. Power to appoint and dismiss employees
The Board may appoint, suspend or remove any manager, secretary,
clerk, agent or employee of the Company and may fix their remuneration and
determine their duties.
<PAGE> 6
10. Power to borrow and charge property
The Board may exercise all the powers of the Company to borrow money
and to mortgage or charge its undertaking, property and uncalled capital, or any
part thereof, and may issue debentures, debenture stock and other securities
whether outright or as security for any debt, liability or obligation of the
Company or any third party.
11. Exercise of power to purchase shares of or discontinue the Company
(1) The Board may exercise all the powers of the Company to purchase
all or any part of its own shares pursuant to Section 42A of the Act.
(2) The Board may exercise all the powers of the Company to discontinue
the Company to a named country or Jurisdiction outside Bermuda pursuant to
Section 132G of the Act.
12. Election of Directors
The Board shall consist of riot less than two Directors or such number
in excess thereof as the Members may from time to time determine who shall be
elected or appointed in the first place at the statutory meeting of the Company
and thereafter, except in the case of casual vacancy, at the annual general
meeting or at any special general meeting called for the purpose and who shall
hold office for such term as the Members may determine or, in the absence of
such determination, until the next annual general meeting or until their
successors are elected or appointed or their office is otherwise vacated, and
any general meeting may authorise the Board to fill any vacancy in their number
left unfilled at a general meeting.
13. Defects in appointment of Directors
All acts done bona fide by any meeting of the Board or by a committee
of the Board or by any person acting as a Director shall, notwithstanding that
it be afterwards discovered that there was some defect in the appointment of any
Director or person acting as aforesaid, or that they or any of them were
disqualified, be as valid as if every such person had been duly appointed and
was qualified to be a Director.
14. Alternate Directors
(1) Any general meeting of the Company may elect a person or persons to
act as a Director in the alternative to any one or more of the Directors of the
Company or may authorise the Board to appoint such Alternate Directors. Unless
the Members otherwise resolve, any Director may appoint a person or persons to
act as a Director in the alternative to himself or herself by notice in writing
deposited with the Secretary. Any person so elected or appointed shall have all
the rights and powers of the Director or Directors for whom such person is
appointed in the alternative provided that such person shall not be counted more
than once in determining whether or not a quorum is present.
(2) An Alternate Director shall be entitled to receive notice of all
meetings of the Board and to attend and vote at any such meeting at which a
Director for whom such Alternate Director was appointed in the alternative is
not personally present and generally
<PAGE> 7
to perform at such meeting all the functions of such Director for whom such
Alternate Director was appointed.
(3) An Alternate Director shall cease to be such if the Director for
whom such Alternate Director was appointed ceases for any reason to be a
Director but may be re-appointed by the Board as alternate to the person
appointed to fill the vacancy in accordance with these Bye-laws.
15. Removal of Directors
(1) Subject to any provision to the contrary in these Bye-laws, the
Members may, at any special general meeting convened and held in accordance with
these Bye-laws, remove a Director provided that the notice of any such meeting
convened for the purpose of removing a Director shall contain a statement of the
intention so to do and be served on such Director not less than 14 days before
the meeting and at such meeting such Director shall be entitled to be heard on
the motion for such Director's removal.
(2) A vacancy on the Board created by the removal of a Director under
the provisions of subparagraph (1) of this Bye-law may be filled by the Members
at the meeting at which such Director is removed and, in the absence of such
election or appointment, the Board may fill the vacancy.
16. Vacancies on the Board
(1) The Board shall have the power from time to time and at any time to
appoint any person as a Director to fill a vacancy on the Board occurring as the
result of the death, disability, disqualification or resignation of any Director
and to appoint an Alternate Director to any Director so appointed.
(2) The Board may act notwithstanding any vacancy in its number but, if
and so long as its number is reduced below the number fixed by these Bye-laws as
the quorum necessary for the transaction of business at meetings of the Board,
the continuing Directors or Director may act for the purpose of (i) summoning a
general meeting of the Company or (ii) preserving the assets of the Company.
(3) The office of Director shall be vacated if the Director:
(a) is removed from office pursuant to these Bye-laws or is
prohibited from being a Director by law;
(b) is or becomes bankrupt or makes any arrangement or composition
with his creditors generally;
(c) is or becomes of unsound mind or dies;
(d) resigns his or her office by notice in writing to the Company.
<PAGE> 8
17. Notice of meetings of the Board
(1) A Director may, and the Secretary on the requisition of a Director
shall, at any time summon a meeting of the Board.
(2) Notice of a meeting of the Board shall be deemed to be duly given
to a Director if it is given to such Director verbally in person or by telephone
or otherwise communicated or sent to such Director by post, cable, telex,
telecopier, facsimile or other mode of representing words in a legible and
non-transitory form at such Director's last known address or any other address
given by such Director to the Company for this purpose.
18. Quorum at meetings of the Board
The quorum necessary for the transaction of business at a meeting of
the Board shall be two Directors.
19. Meetings of the Board
(1) The Board may meet for the transaction of business, adjourn and
otherwise regulate its meetings as it sees fit.
(2) Directors may participate in any meeting of the Board by means of
such telephone, electronic or other communication facilities as permit all
persons participating in the meeting to communicate with each other
simultaneously and instantaneously, and participation in such a meeting shall
constitute presence in person at such meeting.
(3) A resolution put to the vote at a meeting of the Board shall be
carried by the affirmative votes of a majority of the votes cast and in the case
of an equality of votes the resolution shall fail.
20. Unanimous written resolutions
A resolution in writing signed by all the Directors which may be in
counterparts, shall be as valid as if it had been passed at a meeting of the
Board duly called and constituted, such resolution to be effective on the date
on which the last Director signs the resolution. For the purposes of this
Bye-law only, "Director" shall not include an Alternate Director.
21. Contracts and disclosure of Directors' interests
(1) Any Director, or any Director's firm, partner or any company with
whom any Director is associated, may act in a professional capacity for the
Company and such Director or such Director's firm, partner or such company shall
be entitled to remuneration for professional services as if such Director were
not a Director, provided that nothing herein contained shall authorise a
Director or Director's firm, partner or such company to act as Auditor of the
Company.
<PAGE> 9
(2) A Director who is directly or indirectly interested in a contract
or proposed contract or arrangement with the Company shall declare the nature of
such interest as required by the Act.
(3) Following a declaration being made pursuant to this Bye-law, and
unless disqualified by the chairman of the relevant Board meeting, a Director
may vote in respect of any contract or proposed contract or arrangement in which
such Director is interested and may be counted in the quorum at such meeting.
22. Remuneration of Directors
The remuneration (if any) of the Directors shall be determined by the
Company in general meeting and shall be deemed to accrue from day to day. The
Directors may also be paid all travel, hotel and other expenses properly
incurred by them in attending and returning from meetings of the Board, any
committee appointed by the Board, general meetings of the Company, or in
connection with the business of the Company or their duties as Directors
generally.
OFFICERS
23. Officers of the Company
The Officers of the Company shall consist of a President and a Vice
President or a Chairman and a Deputy Chairman, a Secretary and such additional
Officers as the Board may from time to time determine all of whom shall be
deemed to be Officers for the purposes of these Bye-laws.
24. Appointment of Officers
(1) The Board shall, as soon as possible after the statutory meeting of
Members and after each annual general meeting, appoint a President and a Vice
President or a Chairman and a Deputy Chairman who shall be Directors.
(2) The Secretary and additional Officers, if any, shall be appointed
by the Board from time to time.
25. Remuneration of Officers
The Officers shall receive such remuneration as the Board may from time
to time determine.
26. Duties of Officers
The Officers shall have such powers and perform such duties in the
management, business and affairs of the Company as may be delegated to them by
the Board from time to time.
27. Chairman of meetings
Unless otherwise agreed by a majority of those attending and entitled
to attend and vote thereat, the Chairman, if there be one, and if not the
President shall act as chairman at all meetings of the Members and of the Board
at which such person is present. In their absence the Deputy Chairman or Vice
President, if present, shall act as
<PAGE> 10
chairman and in the absence of all of them a chairman shall be appointed or
elected by those present at the meeting and entitled to vote.
28. Register of Directors and Officers
The Board shall cause to be kept in one or more books at the registered
office of the Company a Register of Directors and Officers and shall enter
therein the particulars required by the Act.
MINUTES
29. Obligations of Board to keep minutes
(1) The Board shall cause minutes to be duly entered in books provided
for the purpose:
(a) of all elections and appointments of Officers;
(b) of the names of the Directors present at each meeting of the
Board and of any committee appointed by the Board, and
(c) of all resolutions and proceedings of general meetings of the
Members, meetings of the Board, meetings of managers and
meetings of committees appointed by the Board.
(2) Minutes prepared in accordance with the Act and these Bye-laws
shall be kept by the Secretary at the registered office of the Company.
INDEMNITY
30. Indemnification of Directors and Officers of the Company
The Directors, Secretary and other Officers (such term to include, for
the purposes of Byelaws 30 and 31, any person appointed to any committee by the
Board) for the time being Acting in relation to any of the affairs of the
Company and the liquidator or trustees (if any) for the time being acting in
relation to any of the affairs of the Company and every one of them, and their
heirs, executors and administrators, shall be indemnified and secured harmless
out of the assets of the Company from and against all actions, costs, charges,
losses, damages and expenses which they or any of them, their heirs, executors
or administrators, shall or may incur or sustain by or by reason of any act
done, concurred in or omitted in or about the execution of their duty, or
supposed duty, or in their respective offices or trusts, and none of them shall
be answerable for the acts, receipts, neglects or defaults of the others of them
or forjoining in any receipts for the sake of conformity, or for any bankers or
other persons with whom any moneys or effects belonging to the Company shall or
may be lodged or deposited for safe custody, or for insufficiency or deficiency
of any security upon which any moneys of or belonging to the Company shall be
placed out on or invested, or for any other loss, misfortune or damage which may
happen in the execution of their respective offices or trusts, or in relation
thereto, PROVIDED THAT this indemnity shall not extend to any matter in respect
of any fraud or dishonesty which may attach to any of said persons.
31. Waiver of claim by Member
Each Member agrees to waive any claim or right of action such Member
might have, whether individually or by or in the right of the Company, against
any Director or Officer on
<PAGE> 11
account of any action taken by such Director or Officer, or the failure of such
Director or Officer to take any action in the performance of his duties with or
for the Company, PROVIDED THAT such waiver shall not extend to any matter in
respect of any fraud or dishonesty which may attach to such Director or Officer.
MEETINGS
32. Notice of annual general meeting
The annual general meeting of the Company shall be held in each year
other than the year of incorporation at such time and place as the President or
the Chairman or any two Directors or any Director and the Secretary or the Board
shall appoint. At least five days notice of such meeting shall be given to each
Member stating the date, place and time at which the meeting is to be held, that
the election of Directors will take place thereat, and as far as practicable,
the other business to be conducted at the meeting.
33. Notice of special general meeting
The President or the Chairman or any two Directors or any Director and
the Secretary or the Board may convene a special general meeting of the Company
whenever in their judgment such a meeting is necessary, upon not less than five
days' notice which shall state the date, time, place and the general nature of
the business to be considered at the meeting.
34. Accidental omission of notice of general meeting
The accidental omission to give notice of a general meeting to, or the
non-receipt of notice of a general meeting by, any person entitled to receive
notice shall not invalidate the proceedings at that meeting.
35. Meeting called on requisition of Members
Notwithstanding anything herein, the Board shall, on the requisition of
Members holding at the date of the deposit of the requisition not less than
one-tenth of such of the paid-up share capital of the Company as at the date of
the deposit carries the right to vote at general meetings of the Company,
forthwith proceed to convene a special general meeting of the Company and the
provisions of Section 74 of the Act shall apply.
36. Short notice
A general meeting of the Company shall, notwithstanding that it is
called by shorter notice than that specified in these Bye-laws, be deemed to
have been properly called if it is so agreed by (i) all the Members entitled to
attend and vote thereat in the case of an annual general meeting; and (ii) by a
majority in number of the Members having the right to attend and vote at the
meeting, being a majority together holding not less than 95% in nominal value of
the shares giving a right to attend and vote thereat in the case of a special
general meeting.
37. Postponement of meetings
The Secretary may postpone any general meeting called in accordance
with the provisions of these Bye-laws (other than a meeting requisitioned under
these Bye-laws) provided that notice of postponement is given to each Member
before the time for such meeting. Fresh notice of the date, time and place for
the postponed meeting shall be given to each Member in accordance with the
provisions of these Bye-laws.
<PAGE> 12
38. Quorum for general meeting
At any general meeting of the Company two or more persons present in
person and representing in person or by proxy in excess of 50% of the total
issued voting shares in the Company throughout the meeting shall form a quorum
for the transaction of business, PROVIDED that if the Company shall at any time
have only one Member, one Member present in person or by proxy shall form a
quorum for the transaction of business at any general meeting of the Company
held during such time. If within half an hour from the time appointed for the
meeting a quorum is not present, the meeting shall stand adjourned to the same
day one week later, at the same time and place or to such other day, time or
place as the Secretary may determine.
39. Adjournment of meetings
The chairman of a general meeting may, with the consent of the Members
at any general meeting at which a quorum is present (and shall if so directed),
adjourn the meeting. Unless the meeting is adjourned to a specific date and
time, fresh notice of the date, time and place for the resumption of the
adjourned meeting shall be given to each Member in accordance with the
provisions of these Bye-laws.
40. Attendance at meetings
Members may participate in any general meeting by means of such
telephone, electronic or other communication facilities as permit all persons
participating in the meeting to communicate with each other simultaneously and
instantaneously, and participation in such a meeting shall constitute presence
in person at such meeting.
41. Written resolutions
(1) Subject to subparagraph (6), anything which may be done by
resolution of the Company in general meeting or by resolution of a meeting of
any class of the Members of the Company, may, without a meeting and without any
previous notice being required, be done by resolution in writing signed by, or,
in the case of a Member that is a corporation whether or not a company within
the meaning of the Act, on behalf of, all the Members who at the date of the
resolution would be entitled to attend the meeting and vote on the resolution.
(2) A resolution in writing may be signed by, or, in the case of a
Member that is a corporation whether or not a company within the meaning of the
Act, on behalf of, all the Members, or any class thereof, in as many
counterparts as may be necessary.
(3) For the purposes of this Bye-law, the date of the resolution is the
date when the resolution is signed by, or, in the case of a Member that is a
corporation whether or not a company within the meaning of the Act, on behalf
of, the last Member to sign and any reference in any Bye-law to the date of
passing of a resolution is, in relation to a resolution made in accordance with
this Byelaw, a reference to such date.
(4) A resolution in writing made in accordance with this Bye-law is as
valid as if it had been passed by the Company in general meeting or by a meeting
of the relevant class of Members, as the case may be, and any reference in any
Bye-law to a
<PAGE> 13
meeting at which a resolution is passed or to Members voting in favour of a
resolution shall be construed accordingly.
(5) A resolution in writing made in accordance with this Bye-law shall
constitute minutes for the purposes of Sections 81 and 82 of the Act.
(6) This Bye-law shall not apply to:
(a) a resolution passed pursuant to Section 89(5) of the Act; or
(b) a resolution passed for the purpose of removing a Director
before the expiration of his term of office under these
Bye-laws.
42. Attendance of Directors
The Directors of the Company shall be entitled to receive notice of and
to attend and be heard at any general meeting.
43. Voting at meetings
(1) Subject to the provisions of the Act and these Bye-laws, any
question proposed for the consideration of the Members at any general meeting
shall be decided by the affirmative votes of a majority of the votes cast in
accordance with the provisions of these Bye-laws and in the case of an equality
of votes the resolution shall fall.
(2) No Member shall be entitled to vote at any general meeting unless
such Member has paid all the calls on all shares held by such Member.
44. Voting on show of hands
At any general meeting a resolution put to the vote of the meeting
shall, in the first instance, be voted upon by a show of hands and, subject to
any rights or restrictions for the time being lawfully attached to any class of
shares and subject to the provisions of these Bye-laws, every Member present in
person and every person holding a valid proxy at such meeting shall be entitled
to one vote and shall cast such vote by raising his or her hand.
45. Decision of chairman
At any general meeting a declaration by the chairman of the meeting
that a question proposed for consideration has, on a show of hands, been
carried, or carried unanimously, or by a particular majority, or lost, and an
entry to that effect in a book containing the minutes of the proceedings of the
Company shall, subject to the provisions of these Bye-laws, be conclusive
evidence of that fact.
46. Demand for a poll
(1) Notwithstanding the provisions of the immediately preceding two
Bye-laws, at any general meeting of the Company, in respect of any question
proposed for the consideration of the Members (whether before or on the
declaration of the result of a
<PAGE> 14
show of hands as provided for in these Bye-laws), a poll may be demanded by any
of the following persons:
(a) the chairman of such meeting; or
(b) at least three Members present in person or represented by
proxy; or
(c) any Member or Members present in person or represented by proxy
and holding between them not less than one-tenth of the total
voting rights of all the Members having the right to vote at such
meeting, or
(d) any Member or Members present in person or represented by proxy
holding shares in the Company conferring the right to vote at such
meeting, being shares on ,which an aggregate sum has been paid up
equal to not less than one-tenth of the total sum paid up on all
such shares conferring such right.
(2) Where, in accordance with the provisions of subparagraph (1) of
this Bye-law, a poll is demanded, subject to any rights or restrictions for the
time being lawfully attached to any class of shares, every person present at
such meeting shall have one vote for each share of which such person is the
holder or for which such person holds a proxy and such vote shall be counted in
the manner set out in subparagraph (4) of this Bye-Law or in the case of a
general meeting at which one or more Members are present by telephone in such
manner as the chairman of the meeting may direct and the result of such poll
shall be deemed to be the resolution of the meeting at which the poll was
demanded and shall replace any previous resolution upon the same matter which
has been the subject of a show of hands.
(3) A poll demanded in accordance with the provisions of subparagraph
(1) of this Bye-law, for the purpose of electing, a chairman of the meeting or
on a question of adjournment, shall be taken forthwith and a poll demanded on
any other question shall be taken in such manner and at such time and place as
the Chairman (or acting chairman) may direct and any business other than that
upon which a poll has been demanded may be proceeded with pending the taking of
the poll.
(4) Where a vote is taken by poll, each person present and entitled to
vote shall be furnished with a ballot paper on which such person shall record
his or her vote in such manner as shall be determined at the meeting having
regard to the nature of the question on which the vote is taken, and each ballot
paper shall be signed or initialed or otherwise marked so as to identify the
voter and the registered holder in the case of a proxy. At the conclusion of the
poll, the ballot papers shall be examined and counted by a committee of not less
than two Members or proxy holders appointed by the chairman for the purpose and
the result of the poll shall be declared by the chairman.
<PAGE> 15
47. Seniority of joint holders voting
In the case of joint holders the vote of the senior who tenders a vote,
whether in person or by proxy, shall be accepted to the exclusion of the votes
of the other joint holders, and for this purpose seniority shall be determined
by the order in which the names stand in the Register of Members.
48. Instrument of proxy
The instrument appointing a proxy shall be in writing in the form, or
as near thereto as circumstances admit, of Form "A" in the Schedule hereto,
under the hand of the appointor or of the appointor's attorney duly authorised
in writing, or if the appointor is a corporation, either under its seal, or
under the hand of a duly authorised officer or attorney. The decision of the
chairman of any general meeting as to the validity of any instrument of proxy
shall be final.
49. Representation of corporations at meetings
A corporation which is a Member may, by written instrument, authorise
such person as it thinks fit to act as its representative at any meeting of the
Members and the person so authorised shall be entitled to exercise the same
powers on behalf of the corporation which such person represents as that
corporation could exercise if it were an individual Member. Notwithstanding the
foregoing, the chairman of the meeting may accept such assurances as he or she
thinks fit as to the right of any person to attend and vote at general meetings
on behalf of a corporation which is a Member.
SHARE CAPITAL AND SHARES
50. Rights of shares
Subject to any resolution of the Members to the contrary and without
prejudice to any special rights previously conferred on the holders of any
existing shares or class of shares, the share capital of the Company shall be
divided into shares of a single class the holders of which shall, subject to the
provisions of these Bye-laws.
(a) be entitled to one vote per share;
(b) be entitled to such dividends as the Board may from time to time
declare;
(c) in the event of a winding-up or dissolution of the Company, whether
voluntary or involuntary or for the purpose of a reorganisation or
otherwise or upon any distribution of capital, be entitled to the
surplus assets of the Company; and
(d) generally be entitled to enjoy all of the rights attaching to
shares.
51. Power to issue shares
(1) Subject to these Bye-laws and to any resolution of the Members to
the contrary and without prejudice to any special rights previously conferred on
the holders
<PAGE> 16
of any existing shares or class of shares, the Board shall have power to issue
any unissued shares of the Company on such terms and conditions as it may
determine and any shares or class of shares may be issued with such preferred,
deferred or other special rights or such restrictions, whether in regard to
dividend, voting, return of capital or otherwise as the Company may from time to
time by resolution of the Members prescribe.
(2) The Board shall, in connection with the issue of any share, have
the power to pay such commission and brokerage as may be permitted by law.
(3) The Company shall not give, whether directly or indirectly, whether
by means of loan guarantee, provision of security or otherwise, any financial
assistance for the purpose of a purchase or subscription made or to be made by
any person of or for any shares in the Company, but nothing in this Bye-Law
shall prohibit transactions mentioned in Sections 39A, 39B and 39C of the Act.
(4) The Company may from time to time do any one or more of the
following things:
(a) make arrangements on the issue of shares for a difference
between the Members in the amounts and times of payments of calls
on their shares;
(b) accept from any Member the whole or a part of the amount
remaining unpaid on any shares held by him, although no part of
that amount has been called up;
(c) pay dividends in proportion to the amount paid up on each share
where a larger amount is paid up on some shares than on others; and
(d) issue its shares in fractional denominations and deal with such
fractions to the same extent as its whole shares and shares in
fractional denominations shall have in proportion to the respective
fractions represented thereby all of the rights of whole shares
including (but without limiting the generality of the foregoing)
the right to vote, to receive dividends and distributions and to
participate in a winding up.
52. Variation of rights, alteration of share capital and purchase of shares
of the Company
(1) Subject to the provisions of Sections 42 and 43 of the Act any
preference shares may be issued or converted into shares that, at a determinable
date or at the option of the Company, are liable to be redeemed on such terms
and in such manner as the Company before the issue or conversion may by
resolution of the Members determine.
(2) If at any time the share capital is divided into different classes
of shares, the rights attached to any class (unless otherwise provided by the
terms of issue of the shares of that class) may, whether or not the Company is
being wound-up, be varied with
<PAGE> 17
the consent in writing of the holders of three-fourths of the issued shares of
that class or with the sanction of a resolution passed by a majority of the
votes cast at a separate general meeting of the holders of the shares of the
class in accordance with Section 47(7) of the Act. The rights conferred upon the
holders of the shares of any class issued with preferred or other rights shall
not, unless otherwise expressly provided by the terms of issue of the shares of
that class, be deemed to be varied by the creation or issue of further shares
ranking pari passu therewith.
(3) The Company may from time to time by resolution of the Members
change the currency denomination of, increase, alter or reduce its share capital
in accordance with the provisions of Sections 45 and 46 of the Act. Where, on
any alteration of share capital, fractions of shares or some other difficulty
would arise, the Board may deal with or resolve the same in such manner as it
thinks fit including, without limiting the generality of the foregoing, the
issue to Members, as appropriate, of fractions of shares and/or arranging for
the sale or transfer of the fractions of shares of Members.
(4) The Company may from time to time purchase its own shares in
accordance with the provisions of Section 42A of the Act.
53. Registered holder of shares
(1) The Company shall be entitled to treat the registered holder of any
share as the absolute owner thereof and accordingly shall not be bound to
recognise any equitable or other claim to, or interest in, such share on the
part of any other person.
(2) Any dividend, interest or other moneys payable in cash in respect
of shares may be paid by cheque or draft sent through the post directed to the
Member at such Member's address in the Register of Members or, in the case of
joint holders, to such address of the holder first named in the Register of
Members, or to such person and to such address as the holder or joint holders
may in writing direct. If two or more persons are registered as joint holders of
any shares any one can give an effectual receipt for any dividend paid in
respect of such shares.
54. Death of a joint holder
Where two or more persons are registered as joint holders of a share or
shares then in the event of the death of any joint holder or holders the
remaining joint holder or holders shall be absolutely entitled to the said share
or shares and the Company shall recognise no claim in respect of the estate of
any joint holder except in the case of the last survivor of such joint holders.
55. Share certificates
(1) Every Member shall be entitled to a certificate under the seal of
the Company (or a facsimile thereof) specifying the number and, where
appropriate, the class of shares held by such Member and whether the same are
fully paid up and, if not, how much has been paid thereon. The Board may by
resolution determine, either generally or
<PAGE> 18
in a particular case, that any or all signatures on certificates may be printed
thereon or affixed by mechanical means.
(2) The Company shall be under no obligation to complete and deliver a
share certificate unless specifically called upon to do so by the person to whom
such shares have been allotted.
(3) If any such certificate shall be proved to the satisfaction of the
Board to have been worn out, lost, mislaid or destroyed the Board may cause a
new certificate to be issued and request an indemnity for the lost certificate
if it sees fit.
56. Calls on shares
(1) The Board may from time to time make such calls as it thinks fit
upon the Members in respect of any monies unpaid on the shares allotted to or
held by such Members and, if a call is not paid on or before the day appointed
for payment thereof, the Member may at the discretion of the Board be liable to
pay the Company interest on the amount of such call at such rate as the Board
may determine, from the date when such call was payable up to the actual date of
payment. The joint holders of a share shall be jointly and severally liable to
pay all calls in respect thereof
(2) The Board may, on the issue of shares, differentiate between the
holders as to the amount of calls to be paid and the times of payment of such
calls.
57. Forfeiture of shares
(1) If any Member fails to pay, on the day appointed for payment
thereof, any call in respect of any share allotted to or held by such Member,
the Board may, at any time thereafter during such time as the call remains
unpaid, direct the Secretary to forward to such Member a notice in the form, or
as near thereto as circumstances admit, of Form "B" in the Schedule hereto.
(2) If the requirements of such notice are not complied with, any such
share may at any time thereafter before the payment of such call and the
interest due in respect thereof be forfeited by a resolution of the Board to
that effect, and such share shall thereupon become the property of the Company
and may be disposed of as the Board shall determine.
(3) A Member whose share or shares have been forfeited as aforesaid
shall, notwithstanding such forfeiture, be liable to pay to the Company all
calls owing on such share or shares at the time of the forfeiture and all
interest due thereon.
REGISTER OF MEMBERS
58. Contents of Register of Members
The Board shall cause to be kept in one or more books a Register of
Members and shall enter therein the particulars required by the Act.
<PAGE> 19
59. Inspection of Register of Members
The Register of Members shall be open to inspection at the registered
office of the Company on every business day, subject to such reasonable
restrictions as the Board may impose, so that not less than two hours in each
business day be allowed for inspection. The Register of Members may, after
notice has been given by advertisement in an appointed newspaper to that effect,
be closed for any time or times not exceeding in the whole thirty days in each
year.
60. Determination of record dates
Notwithstanding any other provision of these Bye-laws, the Board may
fix any date as the record date for:
(a) determining the members entitled to receive any dividend; and
(b) determining the Members entitled to receive notice of and to vote
at any general meeting of the Company.
TRANSFER OF SHARES
61. Instrument of transfer
(1) An instrument of transfer shall be in the form or as near thereto
as circumstances admit of Form "C" in the Schedule hereto or in such other
common form as the Board may accept. Such instrument of transfer shall be signed
by or on behalf of the transferor and transferee provided that, in the case of a
fully paid share, the Board may accept the instrument signed by or on behalf of
the transferor alone. The transferor shall be deemed to remain the holder of
such share until the same has been transferred to the transferee in the Register
of Members.
(2) The Board may refuse to recognise any instrument of transfer unless
it is accompanied by the certificate in respect of the shares to which it
relates and by such other evidence as the Board may reasonably require to show
the right of the transferor to make the transfer.
62. Restriction on transfer
(1) The Board may in its absolute discretion and without assigning any
reason therefor refuse to register the transfer of a share. The Board shall
refuse to register a transfer unless all applicable consents, authorisations and
permissions of any governmental body or agency in Bermuda have been obtained.
(2) If the Board refuses to register a transfer of any share the
Secretary shall, within three months after the date on which the transfer was
lodged with the Company, send to the transferor and transferee notice of the
refusal.
63. Transfers by joint holders
The joint holders of any share or shares may transfer such share or
shares to one or more of such joint holders, and the surviving holder or holders
of any share or shares
<PAGE> 20
previously held by them jointly with a deceased Member may transfer any such
share to the executors or administrators of such deceased Member.
TRANSMISSION OF SHARES
64. Representative of deceased Member
In the case of the death of a Member, the survivor or survivors where
the deceased Member was a joint holder, and the legal personal representatives
of the deceased Member where the deceased Member was a sole holder, shall be the
only persons recognised by the Company as having any title to the deceased
Member's interest in the shares. Nothing herein contained shall release the
estate of a deceased joint holder from any liability in respect of any share
which had been jointly held by such deceased Member with other persons. Subject
to the provisions of Section 52 of the Act, for the purpose of this Bye-law,
legal personal representative means the executor or administrator of a deceased
Member or such other person as the Board may in its absolute discretion decide
as being properly authorised to deal with the shares of a deceased Member.
65 Registration on death or bankruptcy
Any person becoming entitled to a share in consequence of the death or
bankruptcy of any Member may be registered as a Member upon such evidence as the
Board may deem sufficient or may elect to nominate some person to be registered
as a transferee of such share, and in such case the person becoming entitled
shall execute in favour of such nominee an instrument of transfer in the form,
or as near thereto as circumstances admit, of Form "D" in the Schedule hereto.
On the presentation thereof to the Board, accompanied by such evidence as the
Board may require to prove the title of the transferor, the transferee shall be
registered as a Member but the Board shall, in either case, have the same right
to decline or suspend registration as it would have had in the case of a
transfer of the share by that Member before such Member's death or bankruptcy,
as the case may be.
DIVIDENDS AND OTHER DISTRIBUTIONS
66. Declaration of dividends by the Board
The Board may, subject to these Bye-laws and in accordance with Section
54 of the Act, declare a dividend to be paid to the Members, in proportion to
the number of shares held by them and such dividend may be paid in cash or
wholly or partly in specie in which case the Board may fix the value for
distribution in specie of any assets.
67. Other distributions
The Board may declare and make such other distributions (in cash or in
specie) to the Members as may be lawfully made out of the assets of the Company.
<PAGE> 21
68. Reserve fund
The Board may from time to time before declaring a dividend set aside,
out of the surplus or profits of the Company, such sum as it thinks proper as a
reserve to be used to meet contingencies or for equalising dividends or for any
other special purpose.
69. Deduction of Amounts due to the Company
The Board may deduct from the dividends or distributions payable to any
Member all monies due from such Member to the Company on account of calls or
otherwise.
CAPITALISATION
70. Issue of bonus shares
(1) The Board may resolve to capitalise any part of the amount for the
time being standing to the credit of any of the Company's share premium or other
reserve accounts or to the credit of the profit and loss account or otherwise
available for distribution by applying such sum in paying up unissued shares to
be allotted as fully paid bonus shares pro rata to the Members.
(2) The Company may capitalise any sum standing to the credit of a
reserve account or sums otherwise available for dividend or distribution by
applying such amounts in paying up in full partly paid shares of those Members
who would have been entitled to such sums if they were distributed by way of
dividend or distribution.
ACCOUNTS AND FINANCIAL STATEMENTS
71. Records of account
The Board shall cause to be kept proper records of account with respect
to all transactions of the Company and in particular with respect to:
(a) all sums of money received and expended by the Company and the
matters in respect of which the receipt and expenditure relates;
(b) all sales and purchases of goods by the Company; and
(c) the assets and liabilities of the Company.
Such records of account shall be kept at the registered office of the Company
or, subject to Section 83 (2) of the Act, at such other place as the Board
thinks fit and shall be available for inspection by the Directors during normal
business hours.
72. Financial year end
The financial year end of the Company may be determined by resolution
of the Board and failing such resolution shall be 31st December in each year.
<PAGE> 22
73. Financial statements
Subject to any rights to waive laying of accounts pursuant to Section
88 of the Act, financial statements as required by the Act shall be laid before
the Members in general meeting.
AUDIT
74. Appointment of Auditor
Subject to Section 88 of the Act, at the annual general meeting or at a
subsequent special general meeting in each year, an independent representative
of the Members shall be appointed by them as Auditor of the accounts of the
Company. Such Auditor may be a Member but no Director, Officer or employee of
the Company shall, during his or her continuance in office, be eligible to act
as an Auditor of the Company.
75. Remuneration of Auditor
The remuneration of the Auditor shall be fixed by the Company in
general meeting or in such manner as the Members may determine.
76. Vacation of office of Auditor
If the office of Auditor becomes vacant by the resignation or death of
the Auditor, or by the Auditor becoming incapable of acting, by reason of
illness or other disability at a time when the Auditor's services are required,
the Board shall, as soon as practicable, convene a special general meeting to
fill the vacancy thereby created.
77. Access to books of the Company
The Auditor shall at all reasonable times have access to all books kept
by the Company and to all accounts and vouchers relating thereto, and the
Auditor may call on the Directors or Officers of the Company for any information
in their possession relating to the books or affairs of the Company.
78. Report of the Auditor
(1) Subject to any rights to waive laying of accounts or appointment of
an Auditor pursuant to Section 88 of the Act, the accounts of the Company shall
be audited at least once in every year.
(2) The financial statements provided for by these Bye-laws shall be
audited by the Auditor in accordance with generally accepted auditing standards.
The Auditor shall make a written report thereon in accordance with generally
accepted auditing standards and the report of the Auditor shall be submitted to
the Members in general meeting.
(3) The generally accepted auditing standards referred to in
subparagraph (2) of this Bye-law may be those of a country or jurisdiction other
than Bermuda. If so, the
<PAGE> 23
financial statements and the report of the Auditor must disclose this fact and
name such country or jurisdiction.
NOTICES
79. Notices to Members of the Company
A notice may be given by the Company to any Member either by delivering
it to such Member in person or by sending it to such Member's address in the
Register of Members or to such other address given for the purpose. For the
purposes of this Bye-law, a notice may be sent by mail, courier service, cable,
telex, telecopier, facsimile or other mode of representing words in a legible
and non-transitory form.
80. Notices to joint Members
Any notice required to be given to a Member shall, with respect to any
shares held jointly by two or more persons, be given to whichever of such
persons is named first in the Register of Members and notice so given shall be
sufficient notice to all the holders of such shares.
81. Service and delivery of notice
Any notice shall be deemed to have been served at the time when the
same would be delivered in the ordinary course of transmission and, in proving
such service, it shall be sufficient to prove that the notice was properly
addressed and prepaid, if posted, and the time when it was posted, delivered to
the courier or to the cable company or transmitted by telex, facsimile or other
method as the case may be.
SEAL OF THE COMPANY
82. The seal
The seal of the Company shall be in such form as the Board may from
time to time determine. The Board may adopt one or more duplicate seals for use
outside Bermuda.
83. Manner in which seal is to be affixed
The seal of the Company shall not be affixed to any instrument except
attested by the signature of a Director and the Secretary or any two Directors,
or any person appointed by the Board for the purpose, provided that any
Director, Officer or Resident Representative, may affix the seal of the Company
attested by such Director, Officer or Resident Representative's signature to any
authenticated copies of these Bye-laws, the incorporating documents of the
Company, the minutes of any meetings or any other documents required to be
authenticated by such Director, Officer or Resident Representative.
<PAGE> 24
WINDING-UP
84. Winding-up/distribution by liquidator
If the Company shall be wound up the liquidator may, with the sanction
of a resolution of the Members, divide amongst the Members in specie or in kind
the whole or any part of the assets of the Company (whether they shall consist
of property of the same kind or not) and may, for such purpose, set such value
as he or she deems fair upon any property to be divided as aforesaid and may
determine how such division shall be carried out as between the Members or
different classes of Members. The liquidator may, with the like sanction, vest
the whole or any part of such assets in trustees upon such trusts for the
benefit of the Members as the liquidator shall think fit, but so that no Member
shall be compelled to accept any shares or other securities or assets whereon
there is any liability.
ALTERATION OF BYE-LAWS
85. Alteration of Bye-laws
No Bye-law shall be rescinded, altered or amended and no new Bye-law
shall be made until the same has been approved by a resolution of the Board and
by a resolution of the Members.
<PAGE> 1
Conectiv Thermal Systems, Inc
B.27.3
Amended and Restated Bylaws
Adopted December 31, 1999
<PAGE> 2
AMENDED AND RESTATED
B Y L A W S
OF
CONECTIV THERMAL SYSTEM, INC.
1. OFFICES.
1.1 Offices. In addition to its registered office in the State
of Delaware, the Corporation shall have a corporate office in Wilmington,
Delaware, and such other offices, either within or without the State of
Delaware, at such locations as the Board of Directors may from time to time
determine or the business of the Corporation may require.
2. SEAL.
2.1 Seal. The Corporation shall have a seal, which shall have
inscribed thereon its name and year of incorporation and the words, "Corporate
Seal Delaware."
3. MEETINGS OF STOCKHOLDERS.
3.1 Annual Meetings. The annual meeting of stockholders of the
Corporation shall be held on such date, at such time and at such place within or
without the State of Delaware as shall be determined by the Board of Directors
from time to time.
3.2 Special Meetings. Special meetings of the stockholders of
the Corporation shall be held on such date, at such time and at such place
within or without the State of Delaware as may be designated by the Chairman of
the Board or by the Board of Directors.
3.3 Notice of Meetings. (a) Notices of meetings of
stockholders shall be in writing and shall state the place, date, and hour of
the meeting, and, in the case of a special meeting, the purpose or purposes for
which a meeting is called. No business other than that specified in the notice
thereof shall be transacted at any special meeting.
(b) Such notice shall either be delivered personally,
mailed, postage prepaid, or delivered by any other lawful means to each
stockholder entitled to vote at such meeting not less than 10 nor more than 60
days before the date of the meeting. If mailed, the notice shall be directed to
the stockholder at his or her address as it appears on the records of the
Corporation. Delivery of any such notice to any officer of a corporation or
association or to any member of a partnership shall constitute delivery of such
notice to such corporation, association, or partnership.
(c) Notice of any meeting of stockholders need not be
given to any stockholder if waived by such stockholder in writing, whether
before or after such meeting is held, or if such stockholder shall sign the
minutes or attend the meeting, except that if such stockholder attends a meeting
for the express purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened, such stockholder shall not be deemed to have waived notice of such
meeting.
3.4 Adjourned Meetings. When a meeting is adjourned to another
time or place, unless otherwise provided by these Bylaws, notice need not be
given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. At the adjourned meeting the
stockholders may transact any business that might have been transacted at the
original meeting. If an adjournment
2
<PAGE> 3
is for more than 30 days, or if after an adjournment, a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder entitled to vote at the meeting.
3.5 Quorum and Adjournment. Except as otherwise provided by
law, by the Certificate of Incorporation of the Corporation, or by these Bylaws,
the presence, in person or by proxy, of the holders of a majority of the
aggregate voting power of the stock issued and outstanding, entitled to vote
thereat, shall constitute a quorum for the transaction of business at all
meetings of stockholders. If such majority shall not be present or represented
at any meeting of stockholders, the stockholders present, although less than a
quorum, shall have the power to adjourn the meeting.
3.6 Vote Required. Except as otherwise provided by law or by
the Certificate of Incorporation:
(a) Directors shall be elected by a plurality of the
votes present in person or represented by proxy at a meeting of stockholders and
entitled to vote in the election of directors, and
(b) whenever any corporate action other than the election
of Directors is to be taken, it shall be authorized by a majority in voting
power of the shares present in person or by proxy at a meeting of stockholders
and entitled to vote on the subject matter.
3.7 Manner of Voting. At each meeting of stockholders, each
stockholder having the right to vote shall be entitled to vote in person or by
proxy. Proxies need not be filed with the Secretary of the Corporation until the
meeting is called to order, but shall be filed before being voted. Each
stockholder shall be entitled to vote each share of stock having voting power
registered in his or her name on the books of the Corporation on the record date
fixed for determination of stockholders entitled to vote at such meeting.
3.8 Stockholder Action Without a Meeting. Except as otherwise
provided by law or by the Certificate of Incorporation, any action required to
be taken at any meeting of stockholders of the corporation, or any action that
may be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice, and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing and who,
if the action had been taken at a meeting, would have been entitled to notice of
the meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of the holders to take the action were
delivered to the Corporation.
3.9 Proxies. (a) At any meeting of stockholders, any
stockholder may be represented and vote by proxy or proxies. In the event that
any form of proxy shall designate two or more persons to act as proxies, a
majority of such persons present at the meeting or, if only one shall be
present, then that one shall have and may exercise all of the powers conferred
by the form of proxy upon all of the persons so designated unless the form of
proxy shall otherwise provide.
(b) The Board of Directors may, in advance of any annual
or special meeting of the stockholders, prescribe additional regulations
concerning the validation of the same, which are intended to be voted at any
such meeting.
3.10 Presiding Officer and Secretary. The Chairman of the
Board shall act as chairman of all meetings of the stockholders. In the absence
of the Chairman of the Board, the Vice Chairman of the Board or, in his or her
absence, any Director designated by the Chairman of the Board or the Board of
Directors shall act as chairman of the meeting.
3
<PAGE> 4
The Secretary of the Corporation shall act as secretary of all
meetings of the stockholders, but, in the absence of the Secretary, the
Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the stockholders, but in the
absence of a designated Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
3.11 Procedure. At each meeting of stockholders, the chairman
of the meeting shall fix and announce the date and time of the opening and the
closing of the polls for each matter upon which the stockholders will vote at
the meeting and shall determine the order of business and all other matters of
procedure. Except to the extent inconsistent with any such rules and regulations
as adopted by the Board of Directors, the chairman of the meeting may establish
rules, which need not be in writing, to maintain order and safety and for the
conduct of the meeting. Without limiting the foregoing, he or she may:
(a) restrict attendance at any time to bona fide
stockholders of record and their proxies and other persons in attendance at the
invitation of the chairman;
(b) restrict dissemination of solicitation materials and
use of audio or visual recording devices at the meeting;
(c) adjourn the meeting without a vote of the
stockholders, whether or not there is a quorum present; and
(d) make rules governing speeches and debate, including
time limits and access to microphones.
The chairman of the meeting shall be entitled to act in his or her absolute
discretion and his or her rulings shall not be subject to appeal.
4. DIRECTORS.
4.1 Powers and Number. The Board of Directors shall exercise
all of the powers of the Corporation except such as are by law, or by the
Certificate of Incorporation of this Corporation or by these Bylaws conferred
upon or reserved to the stockholders of any class or classes. The number of
directors that shall constitute the whole Board of Directors shall be no fewer
than three (3) and no greater than nine (9), the exact number of directors to be
determined from time to time by resolution adopted by the Board of Directors or
the stockholders, and until otherwise determined by the Board of Directors or
the stockholders, the number of directors that shall constitute the whole Board
of Directors shall be three (3).
4.2 Resignations. Any Director may resign at any time by
giving written notice to the Board of Directors or the Secretary. Such
resignation shall take effect at the date of receipt of such notice or at any
later time specified therein. Acceptance of such resignation shall not be
necessary to make it effective.
4.3 Presiding Officer and Secretary. The Chairman of the
Board shall act as chairman of all meetings of the Board of Directors. In the
absence of the Chairman of the Board, the Vice Chairman of the Board, or in his
absence, the Chief Executive Officer or other person designated by the Board of
Directors shall act as chairman of the meeting.
The Secretary of the Corporation shall act as secretary
of all meetings of the Board of Directors, but, in the absence of the Secretary,
the Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the Board of Directors, but in
the absence of a designated Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
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4.4 Annual Meetings. The Board of Directors shall meet each
year immediately following the annual meeting of stockholders, at the place
where such meeting of stockholders has been held, or at such other place as
shall be fixed by the person presiding over the meeting of the stockholders, for
the purpose of election of officers and consideration of such other business as
the Board of Directors considers relevant to the management of the Corporation.
In the event that in any year Directors are elected by written consent in lieu
of an annual meeting of stockholders, the Board of Directors shall meet in such
year as soon as practicable after receipt of such written consent by the
Corporation at such time and place as shall be fixed by the Chairman of the
Board, for the purpose of election of officers and consideration of such other
business as the Board of Directors considers relevant to the management of the
Corporation.
4.5 Regular Meetings. Regular meetings of the Board of
Directors shall be held on such dates and at such times and places, within or
without the state of Delaware, as shall from time to time be determined by the
Board of Directors. In the absence of any such determination, such meetings
shall be held at such times and places, within or without the State of Delaware,
as shall be designated by the Chairman of the Board on not less than twelve
hours notice to each Director, given verbally, in writing or electronically,
whether personally, by telephone (including by message or recording device), by
facsimile transmission, by telegram, by telex or by electronic mail or by other
electronic means, or on not less than three (3) calendar days' notice to each
Director given by mail. Notice given by any of the foregoing means shall be
sufficient to constitute notice of a meeting without the necessity of further
notice.
4.6 Special Meetings. Special meetings of the Board of
Directors shall be held at the call of the Chairman of the Board at such times
and places, within or without the State of Delaware, as he or she shall
designate, on not less than twelve hours notice to each Director, given
verbally, in writing or electronically, whether personally, by telephone
(including by message or recording device), by facsimile transmission, by
telegram, by telex, by electronic mail or by other electronic means or on not
less than three (3) calendar days' notice to each Director given by mail. Notice
given by any of the foregoing means shall be sufficient to constitute notice of
a meeting without the necessity of further notice. Special meetings shall be
called by the Secretary on like notice at the written request of a majority of
the Directors then in office.
4.7 Quorum and Powers of a Majority. At all meetings of the
Board of Directors and of each committee thereof, a majority of the members
shall be necessary and sufficient to constitute a quorum for the transaction of
business, and the act of a majority of the members present at any meeting at
which a quorum is present shall be the act of the Board of Directors or such
committee, unless by express provision of law, of the Certificate of
Incorporation, or of these Bylaws, a different vote is required, in which case
such express provision shall govern and control. In the absence of a quorum, a
majority of the members present at any meeting may, without notice other than
announcement at the meeting, adjourn such meeting from time to time until a
quorum is present.
4.8 Waiver of Notice. Notice of any meeting of the Board of
Directors, or any committee thereof, need not be given to any member if waived
by him or her in writing, whether before or after such meeting is held, or if he
or she shall sign the minutes or attend the meeting, except that if such
Director attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened, then such Director shall not be deemed to have
waived notice of such meeting.
4.9 Manner of Acting. (a) Members of the Board of Directors,
or any committee thereof, may participate in any meeting of the Board of
Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating therein can
hear each other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
(b) Any action required or permitted to be taken at any
meeting of the Board of Directors or any committee thereof may be taken without
a meeting if all members of the Board of Directors or
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such committee, as the case may be, consent thereto in writing, and the writings
are filed with the minutes of proceedings of the Board of Directors or such
committee.
4.10 Compensation. (a) The Board of Directors, by a resolution
or resolutions, may fix, and from time to time change, the compensation of
Directors.
(b) Each Director shall be entitled to reimbursement from
the Corporation for his or her reasonable expenses incurred with respect to
duties as a member of the Board of Directors or any committee thereof.
(c) Nothing contained in these Bylaws shall be construed
to preclude any Director from serving the Corporation in any other capacity and
from receiving compensation from the Corporation for service rendered to it in
such other capacity.
4.11 Committees. The Board of Directors (or any committee
thereof having the power and authority to do so) may designate one or more
committees, each committee to consist of one or more Directors, which to the
extent provided in said resolution or resolutions shall have and may exercise
the powers and authority of the Board of Directors in the management of the
business and affairs of the corporation; provided, however, that no such
committee shall have the power or authority in reference to the following
matters: (i) approving or adopting, or recommending to the stockholders, any
action or matter expressly required by the General Corporation Law of Delaware
(the "GCLD") to be submitted to stockholders for approval or (ii) adopting,
amending, or repealing any bylaw of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member of the committee. In the absence or
disqualification of a member of a committee, the member or members present at
any meeting of such committee and not disqualified from voting, whether or not
such member of members constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in place of such absent
or disqualified director.
4.12 Committee Procedure, Limitations of Committee Powers. (a)
Except as otherwise provided by these Bylaws, each committee shall adopt its own
rules governing the time, place and method of holding its meetings and the
conduct of its proceedings and shall meet as provided by such rules or by
resolution of the Board of Directors. Unless otherwise provided by these Bylaws
or any such rules or resolutions, notice of the time and place of each meeting
of a committee shall be given to each member of such committee as provided in
Section 4.6 of these Bylaws with respect to notices of special meetings of the
Board of Directors.
(b) Each committee shall keep regular minutes of its
proceedings and report the same to the Board of Directors when required.
(c) Any member of any committee may be removed from such
committee either with or without cause, at any time, by the Board of Directors
at any meeting thereof. Any vacancy in any committee shall be filled by the
Board of Directors in the manner prescribed by the Certificate of Incorporation
or these Bylaws for the original appointment of the members of such committee.
5. OFFICERS.
5.1 Number. (a) The officers of the Corporation shall include
a Chief Executive Officer, a President, one or more Vice Presidents (including
one or more Executive Vice Presidents and one or more Senior Vice Presidents if
deemed appropriate by the Board of Directors), a Chief Financial Officer, a
Secretary, a Treasurer, and a Controller. The Board of Directors shall also
elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except
for the Chairman of the Board, the Vice Chairman of the Board, and the Chief
Executive Officer, none of the officers of the Corporation needs to be a
director of the Corporation. Any two or more offices may be held by the same
person to the extent permitted by the GCLD.
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(b) The Chief Executive Officer shall have the power to
appoint one or more employees of the Corporation as divisional or departmental
vice presidents and fix the duties of such appointees. However, no such
divisional or departmental vice president shall be considered as an officer of
the Corporation.
5.2 Election of Officers, Qualification and Term. The Chief
Executive Officer, the President, any Executive Vice President, any Senior Vice
President, the Chief Financial Officer, the Secretary and the Treasurer of the
Corporation shall be elected from time to time by the Board of Directors and,
except as may otherwise be expressly provided in a contract of employment duly
authorized by the Board of Directors, shall hold office at the pleasure of the
Board of Directors. The Board of Directors and the Chief Executive Officer also
may elect such other officers as the Board of Directors or the Chief Executive
Officer may from time to time deem appropriate or necessary.
5.3 Removal. Any officer elected by the Board of Directors
may be removed, either with or without cause, by the Board of Directors at any
meeting thereof, or to the extent delegated to the Chairman of the Board or the
Chief Executive Officer, by the Chairman of the Board or the Chief Executive
Officer.
5.4 Resignations. Any officer of the Corporation may resign
at any time by giving written notice to the Board of Directors or to the
Chairman of the Board or to the Chief Executive Officer. Such resignation shall
take effect at the date of the receipt of such notice or at any later time
specified therein and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
5.5 Compensation. The compensation of all officers of the
Corporation shall be fixed by or in the manner provided by the Board of
Directors from time to time, and no officer shall be prevented from receiving
such compensation by reason of the fact that he or she is also a Director of the
Corporation.
5.6 The Chairman of the Board. The Chairman of the Board
shall have the powers and duties customarily and usually associated with the
office of the Chairman of the Board and shall have such other powers and perform
such other duties as may be delegated to him or her by the Board of Directors.
The Chairman of the Board shall preside at meetings of the stockholders and of
the Board of Directors.
5.7 Vice Chairman of the Board. The Vice Chairman of the
Board, if any, shall have the powers and duties customarily and usually
associated with the office of the Vice Chairman of the Board and shall have such
other powers and perform such other duties as may be delegated to him or her by
the Board of Directors.
5.8 Chief Executive Officer. The Chief Executive Officer
shall have, subject to the supervision, direction and control of the Board of
Directors, the general powers and duties of supervision, direction and
management of the affairs and business of the Corporation usually vested in the
chief executive officer of a corporation, including, without limitation, all
powers necessary to direct and control the organizational and reporting
relationships within the Corporation. In addition, the Chief Executive Officer
shall have such other powers and perform such other duties as may be delegated
to him or her by the Board of Directors. If at any time the office of the
Chairman of the Board and the Vice Chairman of the Board shall not be filled, or
in the event of the temporary absence or disability of the Chairman of the Board
and the Vice Chairman of the Board, the Chief Executive Officer shall have the
powers and duties of the Chairman of the Board.
5.9 The President. The President shall serve as chief
operating officer, shall have the powers and duties customarily and usually
associated with the office of the President and shall have such other powers and
perform such other duties as may be delegated to him or her from time to time by
the Board of Directors or the Chief Executive Officer.
5.10 The Vice Presidents. Each Vice President shall have such
powers and duties customarily and usually associated with the office of Vice
President and shall have such other powers and perform
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such other duties as may from time to time be assigned to him or her by the
Board of Directors, the Chief Executive Officer, or the President.
5.11 The Chief Financial Officer. The Chief Financial Officer
shall be responsible for the financial affairs of the Corporation, including
overseeing the duties performed by the Treasurer of the Corporation. In
addition, the Chief Financial Officer shall have such powers and duties
customarily and usually associated with the office of the Chief Financial
Officer and shall have such other powers and perform such other duties as may be
delegated to him or her from time to time by the Board of Directors or the Chief
Executive Officer.
5.12 The Secretary and the Assistant Secretary. (a) The
Secretary shall attend meetings of the Board of Directors and meetings of the
stockholders and record all votes and minutes of all such proceedings in a book
kept for such purpose. In addition, the Secretary shall have such powers and
duties customarily and usually associated with the office of Secretary and shall
have such other powers and perform such other duties as may be delegated to him
or her by the Board of Directors, the Chief Executive Officer, or the President.
(b) Each Assistant Secretary shall have such powers and
perform such duties customarily and usually associated with the office of
Assistant Secretary and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Secretary. In case
of the absence or disability of the Secretary, the Assistant Secretary
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Secretary) shall perform the duties and exercise the powers
of the Secretary.
5.13 The Treasurer and the Assistant Treasurer. (a) The
Treasurer shall have custody of the Corporation's funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit or cause to be deposited moneys or other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The Treasurer shall
also maintain adequate records of all assets, liabilities, and transactions of
the Corporation and shall see that adequate audits thereof are currently and
regularly made. In addition, the Treasurer shall have such powers and duties
customarily and usually associated with the office of Treasurer and shall have
such other powers and perform such other duties as may be delegated to him or
her from time to time by the Board of Directors, the Chief Executive Officer,
the President or the Chief Financial Officer.
(b) Each Assistant Treasurer shall have such powers and
perform such duties customarily and usually associated with the office of
Assistant Treasurer and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Treasurer. In case
of the absence or disability of the Treasurer, the Assistant Treasurer
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Treasurer) shall perform the duties and exercise the powers
of the Treasurer.
5.14 Controller. The Controller shall be responsible for
maintaining the accounting records and statements, and shall properly account
for all monies and obligations due the Corporation and all properties, assets,
and liabilities of the Corporation. The Controller shall render to the Chairman
of the Board, the President or the Chief Financial Officer such periodic reports
covering the results of operations of the Corporation as may be required by
either of them or by law. In addition, the Controller shall have such powers and
duties customarily and usually associated with the office of Controller and
shall have such other powers and perform such other duties as may be delegated
to him or her from time to time by the Board of Directors, the Chief Executive
Officer, the President or the Chief Financial Officer.
6. STOCK
6.1 Certificates. Certificates for shares of stock of the
Corporation shall be issued under the seal of the Corporation, or a facsimile
thereof, and shall be numbered and shall be entered in the books of the
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Corporation as they are issued. Each certificate shall bear a serial number,
shall exhibit the holder's name and the number of shares evidenced thereby, and
shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the
Chief Executive Officer or the President or any Vice President, and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer.
Any or all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if such person or entity
were such officer, transfer agent, or registrar at the date of issue.
6.2 Transfers. Transfers of stock of the Corporation shall be
made on the books of the Corporation only upon surrender to the Corporation of a
certificate (if any) for the shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, provided such
succession, assignment, or transfer is not prohibited by the Certificate of
Incorporation, these Bylaws, applicable law or contract. Thereupon, the
Corporation shall issue a new certificate (if requested) to the person entitled
thereto, cancel the old certificate (if any), and record the transaction upon
its books.
6.3 Lost, Stolen, or Destroyed Certificates. Any person
claiming a certificate of stock to be lost, stolen, or destroyed shall make an
affidavit or an affirmation of that fact, and shall give the Corporation a bond
of indemnity in satisfactory form and with one or more satisfactory sureties,
whereupon a new certificate (if requested) may be issued of the same tenor and
for the same number of shares as the one alleged to be lost, stolen, or
destroyed.
6.4 Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares as the person entitled to exercise the rights of a stockholder
and shall not be bound to recognize any equitable or other claim to or interest
in any such shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise expressly provided by the
GCLD.
6.5 Additional Powers of the Board. (a) In addition to those
powers set forth in Section 4.1, the Board of Directors shall have power and
authority to make all such rules and regulations as it shall deem expedient
concerning the issue, transfer, and registration of certificates for shares of
stock of the Corporation, including the use of uncertificated shares of stock
subject to the provisions of the GCLD.
(b) The Board of Directors may appoint and remove transfer
agents and registrars of transfers, and may require all stock certificates to
bear the signature of any such transfer agent and/or any such registrar of
transfers.
7. INDEMNIFICATION
7.1 Each person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or the person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation, as a
director, officer, employee, or agent of another corporation or of a
partnership, joint venture, trust, or other enterprise, including service with
respect to employee benefit plans, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the GCLD, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expenses, liability, and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of his or her heirs, executors, and administrators; provided,
however, that, except as provided in this Article 7, the Corporation shall
indemnify any
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such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if authorized by the Board of Directors
of the Corporation. Any indemnification under this Article 7 (unless ordered by
a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee, or agent is proper in the circumstances because he or she has met the
applicable standard set forth in the GCLD. Such a determination shall be made
(a) by a majority vote of the directors who are not parties to such action, suit
or proceeding, even though less than a quorum; (b) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum; (c) by independent legal counsel (compensated by the Corporation) in a
written opinion; (d) by the stockholders; or (e) in any other manner permitted
by the GCLD. In addition to the right to indemnification conferred in this
Article 7, each of the above persons shall have the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that, if the GCLD requires, the
payment of such expenses incurred by a present director or officer in his or her
capacity as a director or officer of the corporation (and not in any other
capacity in which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such present
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Article 7 or otherwise. The Corporation may, by any manner permitted by the
GCLD, provide indemnification and advancement of expenses to employees and
agents of the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers. The right to indemnification and to
an advancement of expenses conferred in this Article 7 shall be a contract
right.
7.2 If a claim under Section 7.1 of this Article 7 is not paid
in full by the Corporation within 30 days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim (including attorneys' fees). It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the GCLD for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, a committee thereof, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the GCLD, nor an actual determination by the Corporation (including
its Board of Directors, a committee thereof, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct. In any suit brought by the claimant
to enforce a right to indemnification or to an advancement of expenses
hereunder, or brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the claimant
is not entitled to be indemnified, or to such advancement of expenses, under
this Article 7 or otherwise shall be on the Corporation.
7.3 The rights to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Article 7, shall not be exclusive of any other right that any person may
have or hereafter acquire under any statute, provision of the certificate of
incorporation of the Corporation, this bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
7.4 The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee, or agent of the Corporation
or another corporation, partnership, joint venture, trust, or other enterprise
against any such expense, liability, or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability,
or loss under the GCLD.
7.5 The Corporation may enter into an indemnity agreement with
any director, officer, employee, or agent of the Corporation, or of another
corporation, partnership, joint venture, trust, or other
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enterprise, upon terms and conditions that the Board of Directors deems
appropriate, as long as the provisions of the agreement are not impermissible
under applicable law.
7.6 Any amendment or repeal of this Article 7 shall not be
retroactive in effect.
7.7 In case any provision in this Article 7 shall be
determined at any time to be unenforceable in any respect, the other provisions
shall not in any way be affected or impaired thereby, and the affected provision
shall be given the fullest possible enforcement in the circumstances, it being
the intention of the Corporation to afford indemnification and advancement of
expenses to the persons indemnified hereby to the fullest extent permitted by
law.
7.8 The Corporation may, by action of the Board of Directors,
authorize one or more officers to grant rights to indemnification and
advancement of expenses to former directors and officers or to other employees
or agents of the Corporation on such terms and conditions as such officer or
officers deem appropriate under the circumstances.
8. MISCELLANEOUS
8.1 Place and Inspection of Books. (a) The books of the
Corporation other than such books as are required by law to be kept within the
State of Delaware shall be kept in such place or places either within or without
the State of Delaware as the Board of Directors may from time to time determine.
(b) At least ten days before each meeting of stockholders,
the officer in charge of the stock ledger of the Corporation shall prepare a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order and showing the address of each stockholder and the number of
shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
(c) The Board of Directors shall determine from time to
time whether and, if allowed, when and under what conditions and regulations the
accounts and books of the Corporation (except such as may be by law specifically
open to inspection or as otherwise provided by these Bylaws) or any of them
shall be open to the inspection of the stockholders and the stockholders' rights
in respect thereof.
8.2 Voting Shares in Other Corporations. The Chief Executive
Officer, the President, the Chief Financial Officer or any other officer of the
Corporation designated by the Board of Directors may vote any and all shares
held by the Corporation in any other corporation.
8.3 Fiscal Year. The fiscal year of the Corporation shall be
such fiscal year as the Board of Directors from time to time by resolution shall
determine.
8.4 Gender/Number. As used in these Bylaws, the masculine,
feminine, or neuter gender, and the singular or plural number, shall each
include the others whenever the context so indicates.
8.5 Paragraph Titles. The titles of the paragraphs have been
inserted as a matter of reference only and shall not control or affect the
meaning or construction of any of the terms and provisions hereof.
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8.6 Amendment. These Bylaws may be altered, amended, or
repealed by (a) the affirmative vote of 80% or more of the aggregate number of
votes that the holders of the then outstanding shares of common stock and
preferred stock are entitled to cast on the amendment, or (b) by resolution
adopted by the affirmative vote of not less than a majority of the Directors in
office, at any annual or regular meeting of the Board of Directors or at any
special meeting of the Board of Directors if notice of the proposed alteration,
amendment, or repeal be contained in written notice of such special meeting.
Notwithstanding the foregoing, the amendment of any provision of these Bylaws
that requires an affirmative vote in excess of a majority of the Directors in
office shall require the affirmative vote of at least the number of directors
the affirmative vote of whom is required by such provision.
8.7 Certificate of Incorporation. Notwithstanding anything to
the contrary contained herein, if any provision contained in these Bylaws is
inconsistent with or conflicts with a provision of the Certificate of
Incorporation, such provision of these Bylaws shall be superseded by the
inconsistent provision in the Certificate of Incorporation to the extent
necessary to give effect to such provision in the Certificate of Incorporation.
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ATS Operating Services, Inc.
B.28.3
Amended and Restated Bylaws
Adopted December 31, 1999
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AMENDED AND RESTATED
B Y L A W S
OF
ATS OPERATING SERVICES, INC.
1. OFFICES.
1.1 Offices. In addition to its registered office in the State
of Delaware, the Corporation shall have a corporate office in Wilmington,
Delaware, and such other offices, either within or without the State of
Delaware, at such locations as the Board of Directors may from time to time
determine or the business of the Corporation may require.
2. SEAL.
2.1 Seal. The Corporation shall have a seal, which shall have
inscribed thereon its name and year of incorporation and the words, "Corporate
Seal Delaware."
3. MEETINGS OF STOCKHOLDERS.
3.1 Annual Meetings. The annual meeting of stockholders of the
Corporation shall be held on such date, at such time and at such place within or
without the State of Delaware as shall be determined by the Board of Directors
from time to time.
3.2 Special Meetings. Special meetings of the stockholders of
the Corporation shall be held on such date, at such time and at such place
within or without the State of Delaware as may be designated by the Chairman of
the Board or by the Board of Directors.
3.3 Notice of Meetings. (a) Notices of meetings of
stockholders shall be in writing and shall state the place, date, and hour of
the meeting, and, in the case of a special meeting, the purpose or purposes for
which a meeting is called. No business other than that specified in the notice
thereof shall be transacted at any special meeting.
(b) Such notice shall either be delivered personally,
mailed, postage prepaid, or delivered by any other lawful means to each
stockholder entitled to vote at such meeting not less than 10 nor more than 60
days before the date of the meeting. If mailed, the notice shall be directed to
the stockholder at his or her address as it appears on the records of the
Corporation. Delivery of any such notice to any officer of a corporation or
association or to any member of a partnership shall constitute delivery of such
notice to such corporation, association, or partnership.
(c) Notice of any meeting of stockholders need not be
given to any stockholder if waived by such stockholder in writing, whether
before or after such meeting is held, or if such stockholder shall sign the
minutes or attend the meeting, except that if such stockholder attends a meeting
for the express purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened, such stockholder shall not be deemed to have waived notice of such
meeting.
3.4 Adjourned Meetings. When a meeting is adjourned to another
time or place, unless otherwise provided by these Bylaws, notice need not be
given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. At the adjourned meeting the
stockholders may transact any business that might have been transacted at the
original meeting. If an adjournment
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is for more than 30 days, or if after an adjournment, a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder entitled to vote at the meeting.
3.5 Quorum and Adjournment. Except as otherwise provided by
law, by the Certificate of Incorporation of the Corporation, or by these Bylaws,
the presence, in person or by proxy, of the holders of a majority of the
aggregate voting power of the stock issued and outstanding, entitled to vote
thereat, shall constitute a quorum for the transaction of business at all
meetings of stockholders. If such majority shall not be present or represented
at any meeting of stockholders, the stockholders present, although less than a
quorum, shall have the power to adjourn the meeting.
3.6 Vote Required. Except as otherwise provided by law or by
the Certificate of Incorporation:
(a) Directors shall be elected by a plurality of the
votes present in person or represented by proxy at a meeting of stockholders and
entitled to vote in the election of directors, and
(b) whenever any corporate action other than the
election of Directors is to be taken, it shall be authorized by a majority in
voting power of the shares present in person or by proxy at a meeting of
stockholders and entitled to vote on the subject matter.
3.7 Manner of Voting. At each meeting of stockholders, each
stockholder having the right to vote shall be entitled to vote in person or by
proxy. Proxies need not be filed with the Secretary of the Corporation until the
meeting is called to order, but shall be filed before being voted. Each
stockholder shall be entitled to vote each share of stock having voting power
registered in his or her name on the books of the Corporation on the record date
fixed for determination of stockholders entitled to vote at such meeting.
3.8 Stockholder Action Without a Meeting. Except as otherwise
provided by law or by the Certificate of Incorporation, any action required to
be taken at any meeting of stockholders of the corporation, or any action that
may be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice, and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing and who,
if the action had been taken at a meeting, would have been entitled to notice of
the meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of the holders to take the action were
delivered to the Corporation.
3.9 Proxies. (a) At any meeting of stockholders, any
stockholder may be represented and vote by proxy or proxies. In the event that
any form of proxy shall designate two or more persons to act as proxies, a
majority of such persons present at the meeting or, if only one shall be
present, then that one shall have and may exercise all of the powers conferred
by the form of proxy upon all of the persons so designated unless the form of
proxy shall otherwise provide.
(b) The Board of Directors may, in advance of any
annual or special meeting of the stockholders, prescribe additional regulations
concerning the validation of the same, which are intended to be voted at any
such meeting.
3.10 Presiding Officer and Secretary. The Chairman of the
Board shall act as chairman of all meetings of the stockholders. In the absence
of the Chairman of the Board, the Vice Chairman of the Board or, in his or her
absence, any Director designated by the Chairman of the Board or the Board of
Directors shall act as chairman of the meeting.
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The Secretary of the Corporation shall act as secretary of all
meetings of the stockholders, but, in the absence of the Secretary, the
Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the stockholders, but in the
absence of a designated Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
3.11 Procedure. At each meeting of stockholders, the chairman
of the meeting shall fix and announce the date and time of the opening and the
closing of the polls for each matter upon which the stockholders will vote at
the meeting and shall determine the order of business and all other matters of
procedure. Except to the extent inconsistent with any such rules and regulations
as adopted by the Board of Directors, the chairman of the meeting may establish
rules, which need not be in writing, to maintain order and safety and for the
conduct of the meeting. Without limiting the foregoing, he or she may:
(a) restrict attendance at any time to bona fide
stockholders of record and their proxies and other persons in attendance at the
invitation of the chairman;
(b) restrict dissemination of solicitation materials
and use of audio or visual recording devices at the meeting;
(c) adjourn the meeting without a vote of the
stockholders, whether or not there is a quorum present; and
(d) make rules governing speeches and debate,
including time limits and access to microphones.
The chairman of the meeting shall be entitled to act in his or her absolute
discretion and his or her rulings shall not be subject to appeal.
4. DIRECTORS.
4.1 Powers and Number. The Board of Directors shall exercise
all of the powers of the Corporation except such as are by law, or by the
Certificate of Incorporation of this Corporation or by these Bylaws conferred
upon or reserved to the stockholders of any class or classes. The number of
directors that shall constitute the whole Board of Directors shall be no fewer
than three (3) and no greater than nine (9), the exact number of directors to be
determined from time to time by resolution adopted by the Board of Directors or
the stockholders, and until otherwise determined by the Board of Directors or
the stockholders, the number of directors that shall constitute the whole Board
of Directors shall be three (3).
4.2 Resignations. Any Director may resign at any time by
giving written notice to the Board of Directors or the Secretary. Such
resignation shall take effect at the date of receipt of such notice or at any
later time specified therein. Acceptance of such resignation shall not be
necessary to make it effective.
4.3 Presiding Officer and Secretary. The Chairman of the Board
shall act as chairman of all meetings of the Board of Directors. In the absence
of the Chairman of the Board, the Vice Chairman of the Board, or in his absence,
the Chief Executive Officer or other person designated by the Board of Directors
shall act as chairman of the meeting.
The Secretary of the Corporation shall act as
secretary of all meetings of the Board of Directors, but, in the absence of the
Secretary, the Assistant Secretary designated in accordance with Section 5.11(b)
of these Bylaws shall act as secretary of all meetings of the Board of
Directors, but in the absence of a designated Assistant Secretary, the chairman
of the meeting may appoint any person to act as secretary of the meeting.
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4.4 Annual Meetings. The Board of Directors shall meet each
year immediately following the annual meeting of stockholders, at the place
where such meeting of stockholders has been held, or at such other place as
shall be fixed by the person presiding over the meeting of the stockholders, for
the purpose of election of officers and consideration of such other business as
the Board of Directors considers relevant to the management of the Corporation.
In the event that in any year Directors are elected by written consent in lieu
of an annual meeting of stockholders, the Board of Directors shall meet in such
year as soon as practicable after receipt of such written consent by the
Corporation at such time and place as shall be fixed by the Chairman of the
Board, for the purpose of election of officers and consideration of such other
business as the Board of Directors considers relevant to the management of the
Corporation.
4.5 Regular Meetings. Regular meetings of the Board of
Directors shall be held on such dates and at such times and places, within or
without the state of Delaware, as shall from time to time be determined by the
Board of Directors. In the absence of any such determination, such meetings
shall be held at such times and places, within or without the State of Delaware,
as shall be designated by the Chairman of the Board on not less than twelve
hours notice to each Director, given verbally, in writing or electronically,
whether personally, by telephone (including by message or recording device), by
facsimile transmission, by telegram, by telex or by electronic mail or by other
electronic means, or on not less than three (3) calendar days' notice to each
Director given by mail. Notice given by any of the foregoing means shall be
sufficient to constitute notice of a meeting without the necessity of further
notice.
4.6 Special Meetings. Special meetings of the Board of
Directors shall be held at the call of the Chairman of the Board at such times
and places, within or without the State of Delaware, as he or she shall
designate, on not less than twelve hours notice to each Director, given
verbally, in writing or electronically, whether personally, by telephone
(including by message or recording device), by facsimile transmission, by
telegram, by telex, by electronic mail or by other electronic means or on not
less than three (3) calendar days' notice to each Director given by mail. Notice
given by any of the foregoing means shall be sufficient to constitute notice of
a meeting without the necessity of further notice. Special meetings shall be
called by the Secretary on like notice at the written request of a majority of
the Directors then in office.
4.7 Quorum and Powers of a Majority. At all meetings of the
Board of Directors and of each committee thereof, a majority of the members
shall be necessary and sufficient to constitute a quorum for the transaction of
business, and the act of a majority of the members present at any meeting at
which a quorum is present shall be the act of the Board of Directors or such
committee, unless by express provision of law, of the Certificate of
Incorporation, or of these Bylaws, a different vote is required, in which case
such express provision shall govern and control. In the absence of a quorum, a
majority of the members present at any meeting may, without notice other than
announcement at the meeting, adjourn such meeting from time to time until a
quorum is present.
4.8 Waiver of Notice. Notice of any meeting of the Board of
Directors, or any committee thereof, need not be given to any member if waived
by him or her in writing, whether before or after such meeting is held, or if he
or she shall sign the minutes or attend the meeting, except that if such
Director attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened, then such Director shall not be deemed to have
waived notice of such meeting.
4.9 Manner of Acting. (a) Members of the Board of Directors,
or any committee thereof, may participate in any meeting of the Board of
Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating therein can
hear each other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
(b) Any action required or permitted to be taken at
any meeting of the Board of Directors or any committee thereof may be taken
without a meeting if all members of the Board of Directors or
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such committee, as the case may be, consent thereto in writing, and the writings
are filed with the minutes of proceedings of the Board of Directors or such
committee.
4.10 Compensation. (a) The Board of Directors, by a resolution
or resolutions, may fix, and from time to time change, the compensation of
Directors.
(b) Each Director shall be entitled to reimbursement
from the Corporation for his or her reasonable expenses incurred with respect to
duties as a member of the Board of Directors or any committee thereof.
(c) Nothing contained in these Bylaws shall be
construed to preclude any Director from serving the Corporation in any other
capacity and from receiving compensation from the Corporation for service
rendered to it in such other capacity.
4.11 Committees. The Board of Directors (or any committee
thereof having the power and authority to do so) may designate one or more
committees, each committee to consist of one or more Directors, which to the
extent provided in said resolution or resolutions shall have and may exercise
the powers and authority of the Board of Directors in the management of the
business and affairs of the corporation; provided, however, that no such
committee shall have the power or authority in reference to the following
matters: (i) approving or adopting, or recommending to the stockholders, any
action or matter expressly required by the General Corporation Law of Delaware
(the "GCLD") to be submitted to stockholders for approval or (ii) adopting,
amending, or repealing any bylaw of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member of the committee. In the absence or
disqualification of a member of a committee, the member or members present at
any meeting of such committee and not disqualified from voting, whether or not
such member of members constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in place of such absent
or disqualified director.
4.12 Committee Procedure, Limitations of Committee Powers. (a)
Except as otherwise provided by these Bylaws, each committee shall adopt its own
rules governing the time, place and method of holding its meetings and the
conduct of its proceedings and shall meet as provided by such rules or by
resolution of the Board of Directors. Unless otherwise provided by these Bylaws
or any such rules or resolutions, notice of the time and place of each meeting
of a committee shall be given to each member of such committee as provided in
Section 4.6 of these Bylaws with respect to notices of special meetings of the
Board of Directors.
(b) Each committee shall keep regular minutes of its
proceedings and report the same to the Board of Directors when required.
(c) Any member of any committee may be removed from
such committee either with or without cause, at any time, by the Board of
Directors at any meeting thereof. Any vacancy in any committee shall be filled
by the Board of Directors in the manner prescribed by the Certificate of
Incorporation or these Bylaws for the original appointment of the members of
such committee.
5. OFFICERS.
5.1 Number. (a) The officers of the Corporation shall include
a Chief Executive Officer, a President, one or more Vice Presidents (including
one or more Executive Vice Presidents and one or more Senior Vice Presidents if
deemed appropriate by the Board of Directors), a Chief Financial Officer, a
Secretary, a Treasurer, and a Controller. The Board of Directors shall also
elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except
for the Chairman of the Board, the Vice Chairman of the Board, and the Chief
Executive Officer, none of the officers of the Corporation needs to be a
director of the Corporation. Any two or more offices may be held by the same
person to the extent permitted by the GCLD.
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(b) The Chief Executive Officer shall have the power
to appoint one or more employees of the Corporation as divisional or
departmental vice presidents and fix the duties of such appointees. However, no
such divisional or departmental vice president shall be considered as an officer
of the Corporation.
5.2 Election of Officers, Qualification and Term. The Chief
Executive Officer, the President, any Executive Vice President, any Senior Vice
President, the Chief Financial Officer, the Secretary and the Treasurer of the
Corporation shall be elected from time to time by the Board of Directors and,
except as may otherwise be expressly provided in a contract of employment duly
authorized by the Board of Directors, shall hold office at the pleasure of the
Board of Directors. The Board of Directors and the Chief Executive Officer also
may elect such other officers as the Board of Directors or the Chief Executive
Officer may from time to time deem appropriate or necessary.
5.3 Removal. Any officer elected by the Board of Directors may
be removed, either with or without cause, by the Board of Directors at any
meeting thereof, or to the extent delegated to the Chairman of the Board or the
Chief Executive Officer, by the Chairman of the Board or the Chief Executive
Officer.
5.4 Resignations. Any officer of the Corporation may resign at
any time by giving written notice to the Board of Directors or to the Chairman
of the Board or to the Chief Executive Officer. Such resignation shall take
effect at the date of the receipt of such notice or at any later time specified
therein and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
5.5 Compensation. The compensation of all officers of the
Corporation shall be fixed by or in the manner provided by the Board of
Directors from time to time, and no officer shall be prevented from receiving
such compensation by reason of the fact that he or she is also a Director of the
Corporation.
5.6 The Chairman of the Board. The Chairman of the Board shall
have the powers and duties customarily and usually associated with the office of
the Chairman of the Board and shall have such other powers and perform such
other duties as may be delegated to him or her by the Board of Directors. The
Chairman of the Board shall preside at meetings of the stockholders and of the
Board of Directors.
5.7 Vice Chairman of the Board. The Vice Chairman of the
Board, if any, shall have the powers and duties customarily and usually
associated with the office of the Vice Chairman of the Board and shall have such
other powers and perform such other duties as may be delegated to him or her by
the Board of Directors.
5.8 Chief Executive Officer. The Chief Executive Officer shall
have, subject to the supervision, direction and control of the Board of
Directors, the general powers and duties of supervision, direction and
management of the affairs and business of the Corporation usually vested in the
chief executive officer of a corporation, including, without limitation, all
powers necessary to direct and control the organizational and reporting
relationships within the Corporation. In addition, the Chief Executive Officer
shall have such other powers and perform such other duties as may be delegated
to him or her by the Board of Directors. If at any time the office of the
Chairman of the Board and the Vice Chairman of the Board shall not be filled, or
in the event of the temporary absence or disability of the Chairman of the Board
and the Vice Chairman of the Board, the Chief Executive Officer shall have the
powers and duties of the Chairman of the Board.
5.9 The President. The President shall serve as chief
operating officer, shall have the powers and duties customarily and usually
associated with the office of the President and shall have such other powers and
perform such other duties as may be delegated to him or her from time to time by
the Board of Directors or the Chief Executive Officer.
5.10 The Vice Presidents. Each Vice President shall have such
powers and duties customarily and usually associated with the office of Vice
President and shall have such other powers and perform
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such other duties as may from time to time be assigned to him or her by the
Board of Directors, the Chief Executive Officer, or the President.
5.11 The Chief Financial Officer. The Chief Financial Officer
shall be responsible for the financial affairs of the Corporation, including
overseeing the duties performed by the Treasurer of the Corporation. In
addition, the Chief Financial Officer shall have such powers and duties
customarily and usually associated with the office of the Chief Financial
Officer and shall have such other powers and perform such other duties as may be
delegated to him or her from time to time by the Board of Directors or the Chief
Executive Officer.
5.12 The Secretary and the Assistant Secretary. (a) The
Secretary shall attend meetings of the Board of Directors and meetings of the
stockholders and record all votes and minutes of all such proceedings in a book
kept for such purpose. In addition, the Secretary shall have such powers and
duties customarily and usually associated with the office of Secretary and shall
have such other powers and perform such other duties as may be delegated to him
or her by the Board of Directors, the Chief Executive Officer, or the President.
(b) Each Assistant Secretary shall have such powers
and perform such duties customarily and usually associated with the office of
Assistant Secretary and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Secretary. In case
of the absence or disability of the Secretary, the Assistant Secretary
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Secretary) shall perform the duties and exercise the powers
of the Secretary.
5.13 The Treasurer and the Assistant Treasurer. (a) The
Treasurer shall have custody of the Corporation's funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit or cause to be deposited moneys or other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The Treasurer shall
also maintain adequate records of all assets, liabilities, and transactions of
the Corporation and shall see that adequate audits thereof are currently and
regularly made. In addition, the Treasurer shall have such powers and duties
customarily and usually associated with the office of Treasurer and shall have
such other powers and perform such other duties as may be delegated to him or
her from time to time by the Board of Directors, the Chief Executive Officer,
the President or the Chief Financial Officer.
(b) Each Assistant Treasurer shall have such powers
and perform such duties customarily and usually associated with the office of
Assistant Treasurer and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Treasurer. In case
of the absence or disability of the Treasurer, the Assistant Treasurer
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Treasurer) shall perform the duties and exercise the powers
of the Treasurer.
5.14 Controller. The Controller shall be responsible for
maintaining the accounting records and statements, and shall properly account
for all monies and obligations due the Corporation and all properties, assets,
and liabilities of the Corporation. The Controller shall render to the Chairman
of the Board, the President or the Chief Financial Officer such periodic reports
covering the results of operations of the Corporation as may be required by
either of them or by law. In addition, the Controller shall have such powers and
duties customarily and usually associated with the office of Controller and
shall have such other powers and perform such other duties as may be delegated
to him or her from time to time by the Board of Directors, the Chief Executive
Officer, the President or the Chief Financial Officer.
6. STOCK
6.1 Certificates. Certificates for shares of stock of the
Corporation shall be issued under the seal of the Corporation, or a facsimile
thereof, and shall be numbered and shall be entered in the books of the
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Corporation as they are issued. Each certificate shall bear a serial number,
shall exhibit the holder's name and the number of shares evidenced thereby, and
shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the
Chief Executive Officer or the President or any Vice President, and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer.
Any or all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if such person or entity
were such officer, transfer agent, or registrar at the date of issue.
6.2 Transfers. Transfers of stock of the Corporation shall be
made on the books of the Corporation only upon surrender to the Corporation of a
certificate (if any) for the shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, provided such
succession, assignment, or transfer is not prohibited by the Certificate of
Incorporation, these Bylaws, applicable law or contract. Thereupon, the
Corporation shall issue a new certificate (if requested) to the person entitled
thereto, cancel the old certificate (if any), and record the transaction upon
its books.
6.3 Lost, Stolen, or Destroyed Certificates. Any person
claiming a certificate of stock to be lost, stolen, or destroyed shall make an
affidavit or an affirmation of that fact, and shall give the Corporation a bond
of indemnity in satisfactory form and with one or more satisfactory sureties,
whereupon a new certificate (if requested) may be issued of the same tenor and
for the same number of shares as the one alleged to be lost, stolen, or
destroyed.
6.4 Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares as the person entitled to exercise the rights of a stockholder
and shall not be bound to recognize any equitable or other claim to or interest
in any such shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise expressly provided by the
GCLD.
6.5 Additional Powers of the Board. (a) In addition to those
powers set forth in Section 4.1, the Board of Directors shall have power and
authority to make all such rules and regulations as it shall deem expedient
concerning the issue, transfer, and registration of certificates for shares of
stock of the Corporation, including the use of uncertificated shares of stock
subject to the provisions of the GCLD.
(b) The Board of Directors may appoint and remove
transfer agents and registrars of transfers, and may require all stock
certificates to bear the signature of any such transfer agent and/or any such
registrar of transfers.
7. INDEMNIFICATION
7.1 Each person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or the person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation, as a
director, officer, employee, or agent of another corporation or of a
partnership, joint venture, trust, or other enterprise, including service with
respect to employee benefit plans, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the GCLD, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expenses, liability, and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of his or her heirs, executors, and administrators; provided,
however, that, except as provided in this Article 7, the Corporation shall
indemnify any
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such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if authorized by the Board of Directors
of the Corporation. Any indemnification under this Article 7 (unless ordered by
a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee, or agent is proper in the circumstances because he or she has met the
applicable standard set forth in the GCLD. Such a determination shall be made
(a) by a majority vote of the directors who are not parties to such action, suit
or proceeding, even though less than a quorum; (b) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum; (c) by independent legal counsel (compensated by the Corporation) in a
written opinion; (d) by the stockholders; or (e) in any other manner permitted
by the GCLD. In addition to the right to indemnification conferred in this
Article 7, each of the above persons shall have the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that, if the GCLD requires, the
payment of such expenses incurred by a present director or officer in his or her
capacity as a director or officer of the corporation (and not in any other
capacity in which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such present
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Article 7 or otherwise. The Corporation may, by any manner permitted by the
GCLD, provide indemnification and advancement of expenses to employees and
agents of the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers. The right to indemnification and to
an advancement of expenses conferred in this Article 7 shall be a contract
right.
7.2 If a claim under Section 7.1 of this Article 7 is not paid
in full by the Corporation within 30 days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim (including attorneys' fees). It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the GCLD for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, a committee thereof, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the GCLD, nor an actual determination by the Corporation (including
its Board of Directors, a committee thereof, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct. In any suit brought by the claimant
to enforce a right to indemnification or to an advancement of expenses
hereunder, or brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the claimant
is not entitled to be indemnified, or to such advancement of expenses, under
this Article 7 or otherwise shall be on the Corporation.
7.3 The rights to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Article 7, shall not be exclusive of any other right that any person may
have or hereafter acquire under any statute, provision of the certificate of
incorporation of the Corporation, this bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
7.4 The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee, or agent of the Corporation
or another corporation, partnership, joint venture, trust, or other enterprise
against any such expense, liability, or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability,
or loss under the GCLD.
7.5 The Corporation may enter into an indemnity agreement with
any director, officer, employee, or agent of the Corporation, or of another
corporation, partnership, joint venture, trust, or other
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enterprise, upon terms and conditions that the Board of Directors deems
appropriate, as long as the provisions of the agreement are not impermissible
under applicable law.
7.6 Any amendment or repeal of this Article 7 shall not be
retroactive in effect.
7.7 In case any provision in this Article 7 shall be
determined at any time to be unenforceable in any respect, the other provisions
shall not in any way be affected or impaired thereby, and the affected provision
shall be given the fullest possible enforcement in the circumstances, it being
the intention of the Corporation to afford indemnification and advancement of
expenses to the persons indemnified hereby to the fullest extent permitted by
law.
7.8 The Corporation may, by action of the Board of Directors,
authorize one or more officers to grant rights to indemnification and
advancement of expenses to former directors and officers or to other employees
or agents of the Corporation on such terms and conditions as such officer or
officers deem appropriate under the circumstances.
8. MISCELLANEOUS
8.1 Place and Inspection of Books. (a) The books of the
Corporation other than such books as are required by law to be kept within the
State of Delaware shall be kept in such place or places either within or without
the State of Delaware as the Board of Directors may from time to time determine.
(b) At least ten days before each meeting of
stockholders, the officer in charge of the stock ledger of the Corporation shall
prepare a complete list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
(c) The Board of Directors shall determine from time
to time whether and, if allowed, when and under what conditions and regulations
the accounts and books of the Corporation (except such as may be by law
specifically open to inspection or as otherwise provided by these Bylaws) or any
of them shall be open to the inspection of the stockholders and the
stockholders' rights in respect thereof.
8.2 Voting Shares in Other Corporations. The Chief Executive
Officer, the President, the Chief Financial Officer or any other officer of the
Corporation designated by the Board of Directors may vote any and all shares
held by the Corporation in any other corporation.
8.3 Fiscal Year. The fiscal year of the Corporation shall be
such fiscal year as the Board of Directors from time to time by resolution shall
determine.
8.4 Gender/Number. As used in these Bylaws, the masculine,
feminine, or neuter gender, and the singular or plural number, shall each
include the others whenever the context so indicates.
8.5 Paragraph Titles. The titles of the paragraphs have been
inserted as a matter of reference only and shall not control or affect the
meaning or construction of any of the terms and provisions hereof.
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8.6 Amendment. These Bylaws may be altered, amended, or
repealed by (a) the affirmative vote of 80% or more of the aggregate number of
votes that the holders of the then outstanding shares of common stock and
preferred stock are entitled to cast on the amendment, or (b) by resolution
adopted by the affirmative vote of not less than a majority of the Directors in
office, at any annual or regular meeting of the Board of Directors or at any
special meeting of the Board of Directors if notice of the proposed alteration,
amendment, or repeal be contained in written notice of such special meeting.
Notwithstanding the foregoing, the amendment of any provision of these Bylaws
that requires an affirmative vote in excess of a majority of the Directors in
office shall require the affirmative vote of at least the number of directors
the affirmative vote of whom is required by such provision.
8.7 Certificate of Incorporation. Notwithstanding anything to
the contrary contained herein, if any provision contained in these Bylaws is
inconsistent with or conflicts with a provision of the Certificate of
Incorporation, such provision of these Bylaws shall be superseded by the
inconsistent provision in the Certificate of Incorporation to the extent
necessary to give effect to such provision in the Certificate of Incorporation.
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Atlantic Jersey Thermal Systems, Inc.
B.29.2
Amended and Restated Bylaws
Adopted December 31, 1999
<PAGE> 2
AMENDED AND RESTATED
B Y L A W S
OF
ATLANTIC JERSEY THERMAL SYSTEMS, INC.
1. OFFICES.
1.1 Offices. In addition to its registered office in the State
of Delaware, the Corporation shall have a corporate office in Wilmington,
Delaware, and such other offices, either within or without the State of
Delaware, at such locations as the Board of Directors may from time to time
determine or the business of the Corporation may require.
2. SEAL.
2.1 Seal. The Corporation shall have a seal, which shall have
inscribed thereon its name and year of incorporation and the words, "Corporate
Seal Delaware."
3. MEETINGS OF STOCKHOLDERS.
3.1 Annual Meetings. The annual meeting of stockholders of the
Corporation shall be held on such date, at such time and at such place within or
without the State of Delaware as shall be determined by the Board of Directors
from time to time.
3.2 Special Meetings. Special meetings of the stockholders of
the Corporation shall be held on such date, at such time and at such place
within or without the State of Delaware as may be designated by the Chairman of
the Board or by the Board of Directors.
3.3 Notice of Meetings. (a) Notices of meetings of
stockholders shall be in writing and shall state the place, date, and hour of
the meeting, and, in the case of a special meeting, the purpose or purposes for
which a meeting is called. No business other than that specified in the notice
thereof shall be transacted at any special meeting.
(b) Such notice shall either be delivered personally,
mailed, postage prepaid, or delivered by any other lawful means to each
stockholder entitled to vote at such meeting not less than 10 nor more than 60
days before the date of the meeting. If mailed, the notice shall be directed to
the stockholder at his or her address as it appears on the records of the
Corporation. Delivery of any such notice to any officer of a corporation or
association or to any member of a partnership shall constitute delivery of such
notice to such corporation, association, or partnership.
(c) Notice of any meeting of stockholders need not be
given to any stockholder if waived by such stockholder in writing, whether
before or after such meeting is held, or if such stockholder shall sign the
minutes or attend the meeting, except that if such stockholder attends a meeting
for the express purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened, such stockholder shall not be deemed to have waived notice of such
meeting.
3.4 Adjourned Meetings. When a meeting is adjourned to another
time or place, unless otherwise provided by these Bylaws, notice need not be
given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. At the adjourned meeting the
stockholders may transact any business that might have been transacted at the
original meeting. If an adjournment
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is for more than 30 days, or if after an adjournment, a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder entitled to vote at the meeting.
3.5 Quorum and Adjournment. Except as otherwise provided by
law, by the Certificate of Incorporation of the Corporation, or by these Bylaws,
the presence, in person or by proxy, of the holders of a majority of the
aggregate voting power of the stock issued and outstanding, entitled to vote
thereat, shall constitute a quorum for the transaction of business at all
meetings of stockholders. If such majority shall not be present or represented
at any meeting of stockholders, the stockholders present, although less than a
quorum, shall have the power to adjourn the meeting.
3.6 Vote Required. Except as otherwise provided by law or by
the Certificate of Incorporation:
(a) Directors shall be elected by a plurality of the
votes present in person or represented by proxy at a meeting of stockholders and
entitled to vote in the election of directors, and
(b) whenever any corporate action other than the
election of Directors is to be taken, it shall be authorized by a majority in
voting power of the shares present in person or by proxy at a meeting of
stockholders and entitled to vote on the subject matter.
3.7 Manner of Voting. At each meeting of stockholders, each
stockholder having the right to vote shall be entitled to vote in person or by
proxy. Proxies need not be filed with the Secretary of the Corporation until the
meeting is called to order, but shall be filed before being voted. Each
stockholder shall be entitled to vote each share of stock having voting power
registered in his or her name on the books of the Corporation on the record date
fixed for determination of stockholders entitled to vote at such meeting.
3.8 Stockholder Action Without a Meeting. Except as otherwise
provided by law or by the Certificate of Incorporation, any action required to
be taken at any meeting of stockholders of the corporation, or any action that
may be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice, and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing and who,
if the action had been taken at a meeting, would have been entitled to notice of
the meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of the holders to take the action were
delivered to the Corporation.
3.9 Proxies. (a) At any meeting of stockholders, any
stockholder may be represented and vote by proxy or proxies. In the event that
any form of proxy shall designate two or more persons to act as proxies, a
majority of such persons present at the meeting or, if only one shall be
present, then that one shall have and may exercise all of the powers conferred
by the form of proxy upon all of the persons so designated unless the form of
proxy shall otherwise provide.
(b) The Board of Directors may, in advance of any
annual or special meeting of the stockholders, prescribe additional regulations
concerning the validation of the same, which are intended to be voted at any
such meeting.
3.10 Presiding Officer and Secretary. The Chairman of the
Board shall act as chairman of all meetings of the stockholders. In the absence
of the Chairman of the Board, the Vice Chairman of the Board or, in his or her
absence, any Director designated by the Chairman of the Board or the Board of
Directors shall act as chairman of the meeting.
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The Secretary of the Corporation shall act as secretary of all
meetings of the stockholders, but, in the absence of the Secretary, the
Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the stockholders, but in the
absence of a designated Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
3.11 Procedure. At each meeting of stockholders, the chairman
of the meeting shall fix and announce the date and time of the opening and the
closing of the polls for each matter upon which the stockholders will vote at
the meeting and shall determine the order of business and all other matters of
procedure. Except to the extent inconsistent with any such rules and regulations
as adopted by the Board of Directors, the chairman of the meeting may establish
rules, which need not be in writing, to maintain order and safety and for the
conduct of the meeting. Without limiting the foregoing, he or she may:
(a) restrict attendance at any time to bona fide
stockholders of record and their proxies and other persons in attendance at the
invitation of the chairman;
(b) restrict dissemination of solicitation materials
and use of audio or visual recording devices at the meeting;
(c) adjourn the meeting without a vote of the
stockholders, whether or not there is a quorum present; and
(d) make rules governing speeches and debate,
including time limits and access to microphones.
The chairman of the meeting shall be entitled to act in his or her absolute
discretion and his or her rulings shall not be subject to appeal.
4. DIRECTORS.
4.1 Powers and Number. The Board of Directors shall exercise
all of the powers of the Corporation except such as are by law, or by the
Certificate of Incorporation of this Corporation or by these Bylaws conferred
upon or reserved to the stockholders of any class or classes. The number of
directors that shall constitute the whole Board of Directors shall be no fewer
than three (3) and no greater than nine (9), the exact number of directors to be
determined from time to time by resolution adopted by the Board of Directors or
the stockholders, and until otherwise determined by the Board of Directors or
the stockholders, the number of directors that shall constitute the whole Board
of Directors shall be three (3).
4.2 Resignations. Any Director may resign at any time by
giving written notice to the Board of Directors or the Secretary. Such
resignation shall take effect at the date of receipt of such notice or at any
later time specified therein. Acceptance of such resignation shall not be
necessary to make it effective.
4.3 Presiding Officer and Secretary. The Chairman of the Board
shall act as chairman of all meetings of the Board of Directors. In the absence
of the Chairman of the Board, the Vice Chairman of the Board, or in his absence,
the Chief Executive Officer or other person designated by the Board of Directors
shall act as chairman of the meeting.
The Secretary of the Corporation shall act as
secretary of all meetings of the Board of Directors, but, in the absence of the
Secretary, the Assistant Secretary designated in accordance with Section 5.11(b)
of these Bylaws shall act as secretary of all meetings of the Board of
Directors, but in the absence of a designated Assistant Secretary, the chairman
of the meeting may appoint any person to act as secretary of the meeting.
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4.4 Annual Meetings. The Board of Directors shall meet each
year immediately following the annual meeting of stockholders, at the place
where such meeting of stockholders has been held, or at such other place as
shall be fixed by the person presiding over the meeting of the stockholders, for
the purpose of election of officers and consideration of such other business as
the Board of Directors considers relevant to the management of the Corporation.
In the event that in any year Directors are elected by written consent in lieu
of an annual meeting of stockholders, the Board of Directors shall meet in such
year as soon as practicable after receipt of such written consent by the
Corporation at such time and place as shall be fixed by the Chairman of the
Board, for the purpose of election of officers and consideration of such other
business as the Board of Directors considers relevant to the management of the
Corporation.
4.5 Regular Meetings. Regular meetings of the Board of
Directors shall be held on such dates and at such times and places, within or
without the state of Delaware, as shall from time to time be determined by the
Board of Directors. In the absence of any such determination, such meetings
shall be held at such times and places, within or without the State of Delaware,
as shall be designated by the Chairman of the Board on not less than twelve
hours notice to each Director, given verbally, in writing or electronically,
whether personally, by telephone (including by message or recording device), by
facsimile transmission, by telegram, by telex or by electronic mail or by other
electronic means, or on not less than three (3) calendar days' notice to each
Director given by mail. Notice given by any of the foregoing means shall be
sufficient to constitute notice of a meeting without the necessity of further
notice.
4.6 Special Meetings. Special meetings of the Board of
Directors shall be held at the call of the Chairman of the Board at such times
and places, within or without the State of Delaware, as he or she shall
designate, on not less than twelve hours notice to each Director, given
verbally, in writing or electronically, whether personally, by telephone
(including by message or recording device), by facsimile transmission, by
telegram, by telex, by electronic mail or by other electronic means or on not
less than three (3) calendar days' notice to each Director given by mail. Notice
given by any of the foregoing means shall be sufficient to constitute notice of
a meeting without the necessity of further notice. Special meetings shall be
called by the Secretary on like notice at the written request of a majority of
the Directors then in office.
4.7 Quorum and Powers of a Majority. At all meetings of the
Board of Directors and of each committee thereof, a majority of the members
shall be necessary and sufficient to constitute a quorum for the transaction of
business, and the act of a majority of the members present at any meeting at
which a quorum is present shall be the act of the Board of Directors or such
committee, unless by express provision of law, of the Certificate of
Incorporation, or of these Bylaws, a different vote is required, in which case
such express provision shall govern and control. In the absence of a quorum, a
majority of the members present at any meeting may, without notice other than
announcement at the meeting, adjourn such meeting from time to time until a
quorum is present.
4.8 Waiver of Notice. Notice of any meeting of the Board of
Directors, or any committee thereof, need not be given to any member if waived
by him or her in writing, whether before or after such meeting is held, or if he
or she shall sign the minutes or attend the meeting, except that if such
Director attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened, then such Director shall not be deemed to have
waived notice of such meeting.
4.9 Manner of Acting. (a) Members of the Board of Directors,
or any committee thereof, may participate in any meeting of the Board of
Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating therein can
hear each other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
(b) Any action required or permitted to be taken at
any meeting of the Board of Directors or any committee thereof may be taken
without a meeting if all members of the Board of Directors or
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such committee, as the case may be, consent thereto in writing, and the writings
are filed with the minutes of proceedings of the Board of Directors or such
committee.
4.10 Compensation. (a) The Board of Directors, by a resolution
or resolutions, may fix, and from time to time change, the compensation of
Directors.
(b) Each Director shall be entitled to reimbursement
from the Corporation for his or her reasonable expenses incurred with respect to
duties as a member of the Board of Directors or any committee thereof.
(c) Nothing contained in these Bylaws shall be
construed to preclude any Director from serving the Corporation in any other
capacity and from receiving compensation from the Corporation for service
rendered to it in such other capacity.
4.11 Committees. The Board of Directors (or any committee
thereof having the power and authority to do so) may designate one or more
committees, each committee to consist of one or more Directors, which to the
extent provided in said resolution or resolutions shall have and may exercise
the powers and authority of the Board of Directors in the management of the
business and affairs of the corporation; provided, however, that no such
committee shall have the power or authority in reference to the following
matters: (i) approving or adopting, or recommending to the stockholders, any
action or matter expressly required by the General Corporation Law of Delaware
(the "GCLD") to be submitted to stockholders for approval or (ii) adopting,
amending, or repealing any bylaw of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member of the committee. In the absence or
disqualification of a member of a committee, the member or members present at
any meeting of such committee and not disqualified from voting, whether or not
such member of members constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in place of such absent
or disqualified director.
4.12 Committee Procedure, Limitations of Committee Powers. (a)
Except as otherwise provided by these Bylaws, each committee shall adopt its own
rules governing the time, place and method of holding its meetings and the
conduct of its proceedings and shall meet as provided by such rules or by
resolution of the Board of Directors. Unless otherwise provided by these Bylaws
or any such rules or resolutions, notice of the time and place of each meeting
of a committee shall be given to each member of such committee as provided in
Section 4.6 of these Bylaws with respect to notices of special meetings of the
Board of Directors.
(b) Each committee shall keep regular minutes of its
proceedings and report the same to the Board of Directors when required.
(c) Any member of any committee may be removed from
such committee either with or without cause, at any time, by the Board of
Directors at any meeting thereof. Any vacancy in any committee shall be filled
by the Board of Directors in the manner prescribed by the Certificate of
Incorporation or these Bylaws for the original appointment of the members of
such committee.
5. OFFICERS.
5.1 Number. (a) The officers of the Corporation shall include
a Chief Executive Officer, a President, one or more Vice Presidents (including
one or more Executive Vice Presidents and one or more Senior Vice Presidents if
deemed appropriate by the Board of Directors), a Chief Financial Officer, a
Secretary, a Treasurer, and a Controller. The Board of Directors shall also
elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except
for the Chairman of the Board, the Vice Chairman of the Board, and the Chief
Executive Officer, none of the officers of the Corporation needs to be a
director of the Corporation. Any two or more offices may be held by the same
person to the extent permitted by the GCLD.
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(b) The Chief Executive Officer shall have the power
to appoint one or more employees of the Corporation as divisional or
departmental vice presidents and fix the duties of such appointees. However, no
such divisional or departmental vice president shall be considered as an officer
of the Corporation.
5.2 Election of Officers, Qualification and Term. The Chief
Executive Officer, the President, any Executive Vice President, any Senior Vice
President, the Chief Financial Officer, the Secretary and the Treasurer of the
Corporation shall be elected from time to time by the Board of Directors and,
except as may otherwise be expressly provided in a contract of employment duly
authorized by the Board of Directors, shall hold office at the pleasure of the
Board of Directors. The Board of Directors and the Chief Executive Officer also
may elect such other officers as the Board of Directors or the Chief Executive
Officer may from time to time deem appropriate or necessary.
5.3 Removal. Any officer elected by the Board of Directors may
be removed, either with or without cause, by the Board of Directors at any
meeting thereof, or to the extent delegated to the Chairman of the Board or the
Chief Executive Officer, by the Chairman of the Board or the Chief Executive
Officer.
5.4 Resignations. Any officer of the Corporation may resign at
any time by giving written notice to the Board of Directors or to the Chairman
of the Board or to the Chief Executive Officer. Such resignation shall take
effect at the date of the receipt of such notice or at any later time specified
therein and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
5.5 Compensation. The compensation of all officers of the
Corporation shall be fixed by or in the manner provided by the Board of
Directors from time to time, and no officer shall be prevented from receiving
such compensation by reason of the fact that he or she is also a Director of the
Corporation.
5.6 The Chairman of the Board. The Chairman of the Board shall
have the powers and duties customarily and usually associated with the office of
the Chairman of the Board and shall have such other powers and perform such
other duties as may be delegated to him or her by the Board of Directors. The
Chairman of the Board shall preside at meetings of the stockholders and of the
Board of Directors.
5.7 Vice Chairman of the Board. The Vice Chairman of the
Board, if any, shall have the powers and duties customarily and usually
associated with the office of the Vice Chairman of the Board and shall have such
other powers and perform such other duties as may be delegated to him or her by
the Board of Directors.
5.8 Chief Executive Officer. The Chief Executive Officer shall
have, subject to the supervision, direction and control of the Board of
Directors, the general powers and duties of supervision, direction and
management of the affairs and business of the Corporation usually vested in the
chief executive officer of a corporation, including, without limitation, all
powers necessary to direct and control the organizational and reporting
relationships within the Corporation. In addition, the Chief Executive Officer
shall have such other powers and perform such other duties as may be delegated
to him or her by the Board of Directors. If at any time the office of the
Chairman of the Board and the Vice Chairman of the Board shall not be filled, or
in the event of the temporary absence or disability of the Chairman of the Board
and the Vice Chairman of the Board, the Chief Executive Officer shall have the
powers and duties of the Chairman of the Board.
5.9 The President. The President shall serve as chief
operating officer, shall have the powers and duties customarily and usually
associated with the office of the President and shall have such other powers and
perform such other duties as may be delegated to him or her from time to time by
the Board of Directors or the Chief Executive Officer.
5.10 The Vice Presidents. Each Vice President shall have such
powers and duties customarily and usually associated with the office of Vice
President and shall have such other powers and perform
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such other duties as may from time to time be assigned to him or her by the
Board of Directors, the Chief Executive Officer, or the President.
5.11 The Chief Financial Officer. The Chief Financial Officer
shall be responsible for the financial affairs of the Corporation, including
overseeing the duties performed by the Treasurer of the Corporation. In
addition, the Chief Financial Officer shall have such powers and duties
customarily and usually associated with the office of the Chief Financial
Officer and shall have such other powers and perform such other duties as may be
delegated to him or her from time to time by the Board of Directors or the Chief
Executive Officer.
5.12 The Secretary and the Assistant Secretary. (a) The
Secretary shall attend meetings of the Board of Directors and meetings of the
stockholders and record all votes and minutes of all such proceedings in a book
kept for such purpose. In addition, the Secretary shall have such powers and
duties customarily and usually associated with the office of Secretary and shall
have such other powers and perform such other duties as may be delegated to him
or her by the Board of Directors, the Chief Executive Officer, or the President.
(b) Each Assistant Secretary shall have such powers
and perform such duties customarily and usually associated with the office of
Assistant Secretary and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Secretary. In case
of the absence or disability of the Secretary, the Assistant Secretary
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Secretary) shall perform the duties and exercise the powers
of the Secretary.
5.13 The Treasurer and the Assistant Treasurer. (a) The
Treasurer shall have custody of the Corporation's funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit or cause to be deposited moneys or other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The Treasurer shall
also maintain adequate records of all assets, liabilities, and transactions of
the Corporation and shall see that adequate audits thereof are currently and
regularly made. In addition, the Treasurer shall have such powers and duties
customarily and usually associated with the office of Treasurer and shall have
such other powers and perform such other duties as may be delegated to him or
her from time to time by the Board of Directors, the Chief Executive Officer,
the President or the Chief Financial Officer.
(b) Each Assistant Treasurer shall have such powers
and perform such duties customarily and usually associated with the office of
Assistant Treasurer and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Treasurer. In case
of the absence or disability of the Treasurer, the Assistant Treasurer
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Treasurer) shall perform the duties and exercise the powers
of the Treasurer.
5.14 Controller. The Controller shall be responsible for
maintaining the accounting records and statements, and shall properly account
for all monies and obligations due the Corporation and all properties, assets,
and liabilities of the Corporation. The Controller shall render to the Chairman
of the Board, the President or the Chief Financial Officer such periodic reports
covering the results of operations of the Corporation as may be required by
either of them or by law. In addition, the Controller shall have such powers and
duties customarily and usually associated with the office of Controller and
shall have such other powers and perform such other duties as may be delegated
to him or her from time to time by the Board of Directors, the Chief Executive
Officer, the President or the Chief Financial Officer.
6. STOCK
6.1 Certificates. Certificates for shares of stock of the
Corporation shall be issued under the seal of the Corporation, or a facsimile
thereof, and shall be numbered and shall be entered in the books of the
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Corporation as they are issued. Each certificate shall bear a serial number,
shall exhibit the holder's name and the number of shares evidenced thereby, and
shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the
Chief Executive Officer or the President or any Vice President, and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer.
Any or all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if such person or entity
were such officer, transfer agent, or registrar at the date of issue.
6.2 Transfers. Transfers of stock of the Corporation shall be
made on the books of the Corporation only upon surrender to the Corporation of a
certificate (if any) for the shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, provided such
succession, assignment, or transfer is not prohibited by the Certificate of
Incorporation, these Bylaws, applicable law or contract. Thereupon, the
Corporation shall issue a new certificate (if requested) to the person entitled
thereto, cancel the old certificate (if any), and record the transaction upon
its books.
6.3 Lost, Stolen, or Destroyed Certificates. Any person
claiming a certificate of stock to be lost, stolen, or destroyed shall make an
affidavit or an affirmation of that fact, and shall give the Corporation a bond
of indemnity in satisfactory form and with one or more satisfactory sureties,
whereupon a new certificate (if requested) may be issued of the same tenor and
for the same number of shares as the one alleged to be lost, stolen, or
destroyed.
6.4 Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares as the person entitled to exercise the rights of a stockholder
and shall not be bound to recognize any equitable or other claim to or interest
in any such shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise expressly provided by the
GCLD.
6.5 Additional Powers of the Board. (a) In addition to those
powers set forth in Section 4.1, the Board of Directors shall have power and
authority to make all such rules and regulations as it shall deem expedient
concerning the issue, transfer, and registration of certificates for shares of
stock of the Corporation, including the use of uncertificated shares of stock
subject to the provisions of the GCLD.
(b) The Board of Directors may appoint and remove
transfer agents and registrars of transfers, and may require all stock
certificates to bear the signature of any such transfer agent and/or any such
registrar of transfers.
7. INDEMNIFICATION
7.1 Each person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or the person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation, as a
director, officer, employee, or agent of another corporation or of a
partnership, joint venture, trust, or other enterprise, including service with
respect to employee benefit plans, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the GCLD, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expenses, liability, and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of his or her heirs, executors, and administrators; provided,
however, that, except as provided in this Article 7, the Corporation shall
indemnify any
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such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if authorized by the Board of Directors
of the Corporation. Any indemnification under this Article 7 (unless ordered by
a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee, or agent is proper in the circumstances because he or she has met the
applicable standard set forth in the GCLD. Such a determination shall be made
(a) by a majority vote of the directors who are not parties to such action, suit
or proceeding, even though less than a quorum; (b) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum; (c) by independent legal counsel (compensated by the Corporation) in a
written opinion; (d) by the stockholders; or (e) in any other manner permitted
by the GCLD. In addition to the right to indemnification conferred in this
Article 7, each of the above persons shall have the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that, if the GCLD requires, the
payment of such expenses incurred by a present director or officer in his or her
capacity as a director or officer of the corporation (and not in any other
capacity in which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such present
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Article 7 or otherwise. The Corporation may, by any manner permitted by the
GCLD, provide indemnification and advancement of expenses to employees and
agents of the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers. The right to indemnification and to
an advancement of expenses conferred in this Article 7 shall be a contract
right.
7.2 If a claim under Section 7.1 of this Article 7 is not paid
in full by the Corporation within 30 days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim (including attorneys' fees). It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the GCLD for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, a committee thereof, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the GCLD, nor an actual determination by the Corporation (including
its Board of Directors, a committee thereof, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct. In any suit brought by the claimant
to enforce a right to indemnification or to an advancement of expenses
hereunder, or brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the claimant
is not entitled to be indemnified, or to such advancement of expenses, under
this Article 7 or otherwise shall be on the Corporation.
7.3 The rights to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Article 7, shall not be exclusive of any other right that any person may
have or hereafter acquire under any statute, provision of the certificate of
incorporation of the Corporation, this bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
7.4 The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee, or agent of the Corporation
or another corporation, partnership, joint venture, trust, or other enterprise
against any such expense, liability, or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability,
or loss under the GCLD.
7.5 The Corporation may enter into an indemnity agreement with
any director, officer, employee, or agent of the Corporation, or of another
corporation, partnership, joint venture, trust, or other
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enterprise, upon terms and conditions that the Board of Directors deems
appropriate, as long as the provisions of the agreement are not impermissible
under applicable law.
7.6 Any amendment or repeal of this Article 7 shall not be
retroactive in effect.
7.7 In case any provision in this Article 7 shall be
determined at any time to be unenforceable in any respect, the other provisions
shall not in any way be affected or impaired thereby, and the affected provision
shall be given the fullest possible enforcement in the circumstances, it being
the intention of the Corporation to afford indemnification and advancement of
expenses to the persons indemnified hereby to the fullest extent permitted by
law.
7.8 The Corporation may, by action of the Board of Directors,
authorize one or more officers to grant rights to indemnification and
advancement of expenses to former directors and officers or to other employees
or agents of the Corporation on such terms and conditions as such officer or
officers deem appropriate under the circumstances.
8. MISCELLANEOUS
8.1 Place and Inspection of Books. (a) The books of the
Corporation other than such books as are required by law to be kept within the
State of Delaware shall be kept in such place or places either within or without
the State of Delaware as the Board of Directors may from time to time determine.
(b) At least ten days before each meeting of
stockholders, the officer in charge of the stock ledger of the Corporation shall
prepare a complete list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
(c) The Board of Directors shall determine from time
to time whether and, if allowed, when and under what conditions and regulations
the accounts and books of the Corporation (except such as may be by law
specifically open to inspection or as otherwise provided by these Bylaws) or any
of them shall be open to the inspection of the stockholders and the
stockholders' rights in respect thereof.
8.2 Voting Shares in Other Corporations. The Chief Executive
Officer, the President, the Chief Financial Officer or any other officer of the
Corporation designated by the Board of Directors may vote any and all shares
held by the Corporation in any other corporation.
8.3 Fiscal Year. The fiscal year of the Corporation shall be
such fiscal year as the Board of Directors from time to time by resolution shall
determine.
8.4 Gender/Number. As used in these Bylaws, the masculine,
feminine, or neuter gender, and the singular or plural number, shall each
include the others whenever the context so indicates.
8.5 Paragraph Titles. The titles of the paragraphs have been
inserted as a matter of reference only and shall not control or affect the
meaning or construction of any of the terms and provisions hereof.
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8.6 Amendment. These Bylaws may be altered, amended, or
repealed by (a) the affirmative vote of 80% or more of the aggregate number of
votes that the holders of the then outstanding shares of common stock and
preferred stock are entitled to cast on the amendment, or (b) by resolution
adopted by the affirmative vote of not less than a majority of the Directors in
office, at any annual or regular meeting of the Board of Directors or at any
special meeting of the Board of Directors if notice of the proposed alteration,
amendment, or repeal be contained in written notice of such special meeting.
Notwithstanding the foregoing, the amendment of any provision of these Bylaws
that requires an affirmative vote in excess of a majority of the Directors in
office shall require the affirmative vote of at least the number of directors
the affirmative vote of whom is required by such provision.
8.7 Certificate of Incorporation. Notwithstanding anything to
the contrary contained herein, if any provision contained in these Bylaws is
inconsistent with or conflicts with a provision of the Certificate of
Incorporation, such provision of these Bylaws shall be superseded by the
inconsistent provision in the Certificate of Incorporation to the extent
necessary to give effect to such provision in the Certificate of Incorporation.
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Atlantic Generation, Inc.
B.32.2
Amended and Restated Bylaws
Adopted December 31,1999
<PAGE> 2
AMENDED AND RESTATED
B Y L A W S
OF
ATLANTIC GENERATION, INC.
1. OFFICES.
1.1 Offices. In addition to its registered office in the State
of Delaware, the Corporation shall have a corporate office in Wilmington,
Delaware, and such other offices, either within or without the State of
Delaware, at such locations as the Board of Directors may from time to time
determine or the business of the Corporation may require.
2. SEAL.
2.1 Seal. The Corporation shall have a seal, which shall have
inscribed thereon its name and year of incorporation and the words, "Corporate
Seal New Jersey."
3. MEETINGS OF STOCKHOLDERS.
3.1 Annual Meetings. The annual meeting of stockholders of the
Corporation shall be held on such date, at such time and at such place within or
without the State of Delaware as shall be determined by the Board of Directors
from time to time.
3.2 Special Meetings. Special meetings of the stockholders of
the Corporation shall be held on such date, at such time and at such place
within or without the State of Delaware as may be designated by the Chairman of
the Board or by the Board of Directors.
3.3 Notice of Meetings. (a) Notices of meetings of
stockholders shall be in writing and shall state the place, date, and hour of
the meeting, and, in the case of a special meeting, the purpose or purposes for
which a meeting is called. No business other than that specified in the notice
thereof shall be transacted at any special meeting.
(b) Such notice shall either be delivered personally,
mailed, postage prepaid, or delivered by any other lawful means to each
stockholder entitled to vote at such meeting not less than 10 nor more than 60
days before the date of the meeting. If mailed, the notice shall be directed to
the stockholder at his or her address as it appears on the records of the
Corporation. Delivery of any such notice to any officer of a corporation or
association or to any member of a partnership shall constitute delivery of such
notice to such corporation, association, or partnership.
(c) Notice of any meeting of stockholders need not be
given to any stockholder if waived by such stockholder in writing, whether
before or after such meeting is held, or if such stockholder shall sign the
minutes or attend the meeting, except that if such stockholder attends a meeting
for the express purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened, such stockholder shall not be deemed to have waived notice of such
meeting.
3.4 Adjourned Meetings. When a meeting is adjourned to another
time or place, unless otherwise provided by these Bylaws, notice need not be
given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. At the adjourned meeting the
stockholders may transact any business that might have been transacted at the
original meeting. If an adjournment
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is for more than 30 days, or if after an adjournment, a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder entitled to vote at the meeting.
3.5 Quorum and Adjournment. Except as otherwise provided by
law, by the Certificate of Incorporation of the Corporation, or by these Bylaws,
the presence, in person or by proxy, of the holders of a majority of the
aggregate voting power of the stock issued and outstanding, entitled to vote
thereat, shall constitute a quorum for the transaction of business at all
meetings of stockholders. If such majority shall not be present or represented
at any meeting of stockholders, the stockholders present, although less than a
quorum, shall have the power to adjourn the meeting.
3.6 Vote Required. Except as otherwise provided by law or by
the Certificate of Incorporation:
(a) Directors shall be elected by a plurality of the
votes present in person or represented by proxy at a meeting of stockholders and
entitled to vote in the election of directors, and
(b) whenever any corporate action other than the
election of Directors is to be taken, it shall be authorized by a majority in
voting power of the shares present in person or by proxy at a meeting of
stockholders and entitled to vote on the subject matter.
3.7 Manner of Voting. At each meeting of stockholders, each
stockholder having the right to vote shall be entitled to vote in person or by
proxy. Proxies need not be filed with the Secretary of the Corporation until the
meeting is called to order, but shall be filed before being voted. Each
stockholder shall be entitled to vote each share of stock having voting power
registered in his or her name on the books of the Corporation on the record date
fixed for determination of stockholders entitled to vote at such meeting.
3.8 Stockholder Action Without a Meeting. Except as otherwise
provided by law or by the Certificate of Incorporation, any action required to
be taken at any meeting of stockholders of the corporation, or any action that
may be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice, and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing and who,
if the action had been taken at a meeting, would have been entitled to notice of
the meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of the holders to take the action were
delivered to the Corporation.
3.9 Proxies. (a) At any meeting of stockholders, any
stockholder may be represented and vote by proxy or proxies. In the event that
any form of proxy shall designate two or more persons to act as proxies, a
majority of such persons present at the meeting or, if only one shall be
present, then that one shall have and may exercise all of the powers conferred
by the form of proxy upon all of the persons so designated unless the form of
proxy shall otherwise provide.
(b) The Board of Directors may, in advance of any
annual or special meeting of the stockholders, prescribe additional regulations
concerning the validation of the same, which are intended to be voted at any
such meeting.
3.10 Presiding Officer and Secretary. The Chairman of the
Board shall act as chairman of all meetings of the stockholders. In the absence
of the Chairman of the Board, the Vice Chairman of the Board or, in his or her
absence, any Director designated by the Chairman of the Board or the Board of
Directors shall act as chairman of the meeting.
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The Secretary of the Corporation shall act as secretary of all
meetings of the stockholders, but, in the absence of the Secretary, the
Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the stockholders, but in the
absence of a designated Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
3.11 Procedure. At each meeting of stockholders, the chairman
of the meeting shall fix and announce the date and time of the opening and the
closing of the polls for each matter upon which the stockholders will vote at
the meeting and shall determine the order of business and all other matters of
procedure. Except to the extent inconsistent with any such rules and regulations
as adopted by the Board of Directors, the chairman of the meeting may establish
rules, which need not be in writing, to maintain order and safety and for the
conduct of the meeting. Without limiting the foregoing, he or she may:
(a) restrict attendance at any time to bona fide
stockholders of record and their proxies and other persons in attendance at the
invitation of the chairman;
(b) restrict dissemination of solicitation materials
and use of audio or visual recording devices at the meeting;
(c) adjourn the meeting without a vote of the
stockholders, whether or not there is a quorum present; and
(d) make rules governing speeches and debate,
including time limits and access to microphones.
The chairman of the meeting shall be entitled to act in his or her absolute
discretion and his or her rulings shall not be subject to appeal.
4. DIRECTORS.
4.1 Powers and Number. The Board of Directors shall exercise
all of the powers of the Corporation except such as are by law, or by the
Certificate of Incorporation of this Corporation or by these Bylaws conferred
upon or reserved to the stockholders of any class or classes. The number of
directors that shall constitute the whole Board of Directors shall be no fewer
than three (3) and no greater than nine (9), the exact number of directors to be
determined from time to time by resolution adopted by the Board of Directors or
the stockholders, and until otherwise determined by the Board of Directors or
the stockholders, the number of directors that shall constitute the whole Board
of Directors shall be three (3).
4.1 Resignations. Any Director may resign at any time by
giving written notice to the Board of Directors or the Secretary. Such
resignation shall take effect at the date of receipt of such notice or at any
later time specified therein. Acceptance of such resignation shall not be
necessary to make it effective.
4.2 Presiding Officer and Secretary. The Chairman of the Board
shall act as chairman of all meetings of the Board of Directors. In the absence
of the Chairman of the Board, the Vice Chairman of the Board, or in his absence,
the Chief Executive Officer or other person designated by the Board of Directors
shall act as chairman of the meeting.
The Secretary of the Corporation shall act as
secretary of all meetings of the Board of Directors, but, in the absence of the
Secretary, the Assistant Secretary designated in accordance with Section 5.11(b)
of these Bylaws shall act as secretary of all meetings of the Board of
Directors, but in the absence of a designated Assistant Secretary, the chairman
of the meeting may appoint any person to act as secretary of the meeting.
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4.3 Annual Meetings. The Board of Directors shall meet each
year immediately following the annual meeting of stockholders, at the place
where such meeting of stockholders has been held, or at such other place as
shall be fixed by the person presiding over the meeting of the stockholders, for
the purpose of election of officers and consideration of such other business as
the Board of Directors considers relevant to the management of the Corporation.
In the event that in any year Directors are elected by written consent in lieu
of an annual meeting of stockholders, the Board of Directors shall meet in such
year as soon as practicable after receipt of such written consent by the
Corporation at such time and place as shall be fixed by the Chairman of the
Board, for the purpose of election of officers and consideration of such other
business as the Board of Directors considers relevant to the management of the
Corporation.
4.4 Regular Meetings. Regular meetings of the Board of
Directors shall be held on such dates and at such times and places, within or
without the state of Delaware, as shall from time to time be determined by the
Board of Directors. In the absence of any such determination, such meetings
shall be held at such times and places, within or without the State of Delaware,
as shall be designated by the Chairman of the Board on not less than twelve
hours notice to each Director, given verbally, in writing or electronically,
whether personally, by telephone (including by message or recording device), by
facsimile transmission, by telegram, by telex or by electronic mail or by other
electronic means, or on not less than three (3) calendar days' notice to each
Director given by mail. Notice given by any of the foregoing means shall be
sufficient to constitute notice of a meeting without the necessity of further
notice.
4.5 Special Meetings. Special meetings of the Board of
Directors shall be held at the call of the Chairman of the Board at such times
and places, within or without the State of Delaware, as he or she shall
designate, on not less than twelve hours notice to each Director, given
verbally, in writing or electronically, whether personally, by telephone
(including by message or recording device), by facsimile transmission, by
telegram, by telex, by electronic mail or by other electronic means or on not
less than three (3) calendar days' notice to each Director given by mail. Notice
given by any of the foregoing means shall be sufficient to constitute notice of
a meeting without the necessity of further notice. Special meetings shall be
called by the Secretary on like notice at the written request of a majority of
the Directors then in office.
4.6 Quorum and Powers of a Majority. At all meetings of the
Board of Directors and of each committee thereof, a majority of the members
shall be necessary and sufficient to constitute a quorum for the transaction of
business, and the act of a majority of the members present at any meeting at
which a quorum is present shall be the act of the Board of Directors or such
committee, unless by express provision of law, of the Certificate of
Incorporation, or of these Bylaws, a different vote is required, in which case
such express provision shall govern and control. In the absence of a quorum, a
majority of the members present at any meeting may, without notice other than
announcement at the meeting, adjourn such meeting from time to time until a
quorum is present.
4.7 Waiver of Notice. Notice of any meeting of the Board of
Directors, or any committee thereof, need not be given to any member if waived
by him or her in writing, whether before or after such meeting is held, or if he
or she shall sign the minutes or attend the meeting, except that if such
Director attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened, then such Director shall not be deemed to have
waived notice of such meeting.
4.8 Manner of Acting. (a) Members of the Board of Directors,
or any committee thereof, may participate in any meeting of the Board of
Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating therein can
hear each other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
(b) Any action required or permitted to be taken at
any meeting of the Board of Directors or any committee thereof may be taken
without a meeting if all members of the Board of Directors or
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such committee, as the case may be, consent thereto in writing, and the writings
are filed with the minutes of proceedings of the Board of Directors or such
committee.
4.9 Compensation. (a) The Board of Directors, by a resolution
or resolutions, may fix, and from time to time change, the compensation of
Directors.
(b) Each Director shall be entitled to reimbursement
from the Corporation for his or her reasonable expenses incurred with respect to
duties as a member of the Board of Directors or any committee thereof.
(c) Nothing contained in these Bylaws shall be
construed to preclude any Director from serving the Corporation in any other
capacity and from receiving compensation from the Corporation for service
rendered to it in such other capacity.
4.10 Committees. The Board of Directors (or any committee
thereof having the power and authority to do so) may designate one or more
committees, each committee to consist of one or more Directors, which to the
extent provided in said resolution or resolutions shall have and may exercise
the powers and authority of the Board of Directors in the management of the
business and affairs of the corporation; provided, however, that no such
committee shall have the power or authority in reference to the following
matters: (i) approving or adopting, or recommending to the stockholders, any
action or matter expressly required by the General Corporation Law of Delaware
(the "GCLD") to be submitted to stockholders for approval or (ii) adopting,
amending, or repealing any bylaw of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member of the committee. In the absence or
disqualification of a member of a committee, the member or members present at
any meeting of such committee and not disqualified from voting, whether or not
such member of members constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in place of such absent
or disqualified director.
4.11 Committee Procedure, Limitations of Committee Powers. (a)
Except as otherwise provided by these Bylaws, each committee shall adopt its own
rules governing the time, place and method of holding its meetings and the
conduct of its proceedings and shall meet as provided by such rules or by
resolution of the Board of Directors. Unless otherwise provided by these Bylaws
or any such rules or resolutions, notice of the time and place of each meeting
of a committee shall be given to each member of such committee as provided in
Section 4.6 of these Bylaws with respect to notices of special meetings of the
Board of Directors.
(b) Each committee shall keep regular minutes of its
proceedings and report the same to the Board of Directors when required.
(c) Any member of any committee may be removed from
such committee either with or without cause, at any time, by the Board of
Directors at any meeting thereof. Any vacancy in any committee shall be filled
by the Board of Directors in the manner prescribed by the Certificate of
Incorporation or these Bylaws for the original appointment of the members of
such committee.
5. OFFICERS.
5.1 Number. (a) The officers of the Corporation shall include
a Chief Executive Officer, a President, one or more Vice Presidents (including
one or more Executive Vice Presidents and one or more Senior Vice Presidents if
deemed appropriate by the Board of Directors), a Chief Financial Officer, a
Secretary, a Treasurer, and a Controller. The Board of Directors shall also
elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except
for the Chairman of the Board, the Vice Chairman of the Board, and the Chief
Executive Officer, none of the officers of the Corporation needs to be a
director of the Corporation. Any two or more offices may be held by the same
person to the extent permitted by the GCLD.
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(b) The Chief Executive Officer shall have the power
to appoint one or more employees of the Corporation as divisional or
departmental vice presidents and fix the duties of such appointees. However, no
such divisional or departmental vice president shall be considered as an officer
of the Corporation.
5.2 Election of Officers, Qualification and Term. The Chief
Executive Officer, the President, any Executive Vice President, any Senior Vice
President, the Chief Financial Officer, the Secretary and the Treasurer of the
Corporation shall be elected from time to time by the Board of Directors and,
except as may otherwise be expressly provided in a contract of employment duly
authorized by the Board of Directors, shall hold office at the pleasure of the
Board of Directors. The Board of Directors and the Chief Executive Officer also
may elect such other officers as the Board of Directors or the Chief Executive
Officer may from time to time deem appropriate or necessary.
5.3 Removal. Any officer elected by the Board of Directors may
be removed, either with or without cause, by the Board of Directors at any
meeting thereof, or to the extent delegated to the Chairman of the Board or the
Chief Executive Officer, by the Chairman of the Board or the Chief Executive
Officer.
5.4 Resignations. Any officer of the Corporation may resign at
any time by giving written notice to the Board of Directors or to the Chairman
of the Board or to the Chief Executive Officer. Such resignation shall take
effect at the date of the receipt of such notice or at any later time specified
therein and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
5.5 Compensation. The compensation of all officers of the
Corporation shall be fixed by or in the manner provided by the Board of
Directors from time to time, and no officer shall be prevented from receiving
such compensation by reason of the fact that he or she is also a Director of the
Corporation.
5.6 The Chairman of the Board. The Chairman of the Board shall
have the powers and duties customarily and usually associated with the office of
the Chairman of the Board and shall have such other powers and perform such
other duties as may be delegated to him or her by the Board of Directors. The
Chairman of the Board shall preside at meetings of the stockholders and of the
Board of Directors.
5.7 Vice Chairman of the Board. The Vice Chairman of the
Board, if any, shall have the powers and duties customarily and usually
associated with the office of the Vice Chairman of the Board and shall have such
other powers and perform such other duties as may be delegated to him or her by
the Board of Directors.
5.8 Chief Executive Officer. The Chief Executive Officer shall
have, subject to the supervision, direction and control of the Board of
Directors, the general powers and duties of supervision, direction and
management of the affairs and business of the Corporation usually vested in the
chief executive officer of a corporation, including, without limitation, all
powers necessary to direct and control the organizational and reporting
relationships within the Corporation. In addition, the Chief Executive Officer
shall have such other powers and perform such other duties as may be delegated
to him or her by the Board of Directors. If at any time the office of the
Chairman of the Board and the Vice Chairman of the Board shall not be filled, or
in the event of the temporary absence or disability of the Chairman of the Board
and the Vice Chairman of the Board, the Chief Executive Officer shall have the
powers and duties of the Chairman of the Board.
5.9 The President. The President shall serve as chief
operating officer, shall have the powers and duties customarily and usually
associated with the office of the President and shall have such other powers and
perform such other duties as may be delegated to him or her from time to time by
the Board of Directors or the Chief Executive Officer.
5.10 The Vice Presidents. Each Vice President shall have such
powers and duties customarily and usually associated with the office of Vice
President and shall have such other powers and perform
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such other duties as may from time to time be assigned to him or her by the
Board of Directors, the Chief Executive Officer, or the President.
5.11 The Chief Financial Officer. The Chief Financial Officer
shall be responsible for the financial affairs of the Corporation, including
overseeing the duties performed by the Treasurer of the Corporation. In
addition, the Chief Financial Officer shall have such powers and duties
customarily and usually associated with the office of the Chief Financial
Officer and shall have such other powers and perform such other duties as may be
delegated to him or her from time to time by the Board of Directors or the Chief
Executive Officer.
5.12 The Secretary and the Assistant Secretary. (a) The
Secretary shall attend meetings of the Board of Directors and meetings of the
stockholders and record all votes and minutes of all such proceedings in a book
kept for such purpose. In addition, the Secretary shall have such powers and
duties customarily and usually associated with the office of Secretary and shall
have such other powers and perform such other duties as may be delegated to him
or her by the Board of Directors, the Chief Executive Officer, or the President.
(b) Each Assistant Secretary shall have such powers
and perform such duties customarily and usually associated with the office of
Assistant Secretary and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Secretary. In case
of the absence or disability of the Secretary, the Assistant Secretary
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Secretary) shall perform the duties and exercise the powers
of the Secretary.
5.13 The Treasurer and the Assistant Treasurer. (a) The
Treasurer shall have custody of the Corporation's funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit or cause to be deposited moneys or other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The Treasurer shall
also maintain adequate records of all assets, liabilities, and transactions of
the Corporation and shall see that adequate audits thereof are currently and
regularly made. In addition, the Treasurer shall have such powers and duties
customarily and usually associated with the office of Treasurer and shall have
such other powers and perform such other duties as may be delegated to him or
her from time to time by the Board of Directors, the Chief Executive Officer,
the President or the Chief Financial Officer.
(b) Each Assistant Treasurer shall have such powers
and perform such duties customarily and usually associated with the office of
Assistant Treasurer and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Treasurer. In case
of the absence or disability of the Treasurer, the Assistant Treasurer
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Treasurer) shall perform the duties and exercise the powers
of the Treasurer.
5.14 Controller. The Controller shall be responsible for
maintaining the accounting records and statements, and shall properly account
for all monies and obligations due the Corporation and all properties, assets,
and liabilities of the Corporation. The Controller shall render to the Chairman
of the Board, the President or the Chief Financial Officer such periodic reports
covering the results of operations of the Corporation as may be required by
either of them or by law. In addition, the Controller shall have such powers and
duties customarily and usually associated with the office of Controller and
shall have such other powers and perform such other duties as may be delegated
to him or her from time to time by the Board of Directors, the Chief Executive
Officer, the President or the Chief Financial Officer.
6. STOCK
6.1 Certificates. Certificates for shares of stock of the
Corporation shall be issued under the seal of the Corporation, or a facsimile
thereof, and shall be numbered and shall be entered in the books of the
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Corporation as they are issued. Each certificate shall bear a serial number,
shall exhibit the holder's name and the number of shares evidenced thereby, and
shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the
Chief Executive Officer or the President or any Vice President, and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer.
Any or all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if such person or entity
were such officer, transfer agent, or registrar at the date of issue.
6.2 Transfers. Transfers of stock of the Corporation shall be
made on the books of the Corporation only upon surrender to the Corporation of a
certificate (if any) for the shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, provided such
succession, assignment, or transfer is not prohibited by the Certificate of
Incorporation, these Bylaws, applicable law or contract. Thereupon, the
Corporation shall issue a new certificate (if requested) to the person entitled
thereto, cancel the old certificate (if any), and record the transaction upon
its books.
6.3 Lost, Stolen, or Destroyed Certificates. Any person
claiming a certificate of stock to be lost, stolen, or destroyed shall make an
affidavit or an affirmation of that fact, and shall give the Corporation a bond
of indemnity in satisfactory form and with one or more satisfactory sureties,
whereupon a new certificate (if requested) may be issued of the same tenor and
for the same number of shares as the one alleged to be lost, stolen, or
destroyed.
6.4 Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares as the person entitled to exercise the rights of a stockholder
and shall not be bound to recognize any equitable or other claim to or interest
in any such shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise expressly provided by the
GCLD.
6.5 Additional Powers of the Board. (a) In addition to those
powers set forth in Section 4.1, the Board of Directors shall have power and
authority to make all such rules and regulations as it shall deem expedient
concerning the issue, transfer, and registration of certificates for shares of
stock of the Corporation, including the use of uncertificated shares of stock
subject to the provisions of the GCLD.
(b) The Board of Directors may appoint and remove
transfer agents and registrars of transfers, and may require all stock
certificates to bear the signature of any such transfer agent and/or any such
registrar of transfers.
7. INDEMNIFICATION
7.1 Each person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or the person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation, as a
director, officer, employee, or agent of another corporation or of a
partnership, joint venture, trust, or other enterprise, including service with
respect to employee benefit plans, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the GCLD, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expenses, liability, and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of his or her heirs, executors, and administrators; provided,
however, that, except as provided in this Article 7, the Corporation shall
indemnify any
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such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if authorized by the Board of Directors
of the Corporation. Any indemnification under this Article 7 (unless ordered by
a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee, or agent is proper in the circumstances because he or she has met the
applicable standard set forth in the GCLD. Such a determination shall be made
(a) by a majority vote of the directors who are not parties to such action, suit
or proceeding, even though less than a quorum; (b) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum; (c) by independent legal counsel (compensated by the Corporation) in a
written opinion; (d) by the stockholders; or (e) in any other manner permitted
by the GCLD. In addition to the right to indemnification conferred in this
Article 7, each of the above persons shall have the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that, if the GCLD requires, the
payment of such expenses incurred by a present director or officer in his or her
capacity as a director or officer of the corporation (and not in any other
capacity in which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such present
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Article 7 or otherwise. The Corporation may, by any manner permitted by the
GCLD, provide indemnification and advancement of expenses to employees and
agents of the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers. The right to indemnification and to
an advancement of expenses conferred in this Article 7 shall be a contract
right.
7.2 If a claim under Section 7.1 of this Article 7 is not paid
in full by the Corporation within 30 days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim (including attorneys' fees). It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the GCLD for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, a committee thereof, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the GCLD, nor an actual determination by the Corporation (including
its Board of Directors, a committee thereof, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct. In any suit brought by the claimant
to enforce a right to indemnification or to an advancement of expenses
hereunder, or brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the claimant
is not entitled to be indemnified, or to such advancement of expenses, under
this Article 7 or otherwise shall be on the Corporation.
7.3 The rights to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Article 7, shall not be exclusive of any other right that any person may
have or hereafter acquire under any statute, provision of the certificate of
incorporation of the Corporation, this bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
7.4 The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee, or agent of the Corporation
or another corporation, partnership, joint venture, trust, or other enterprise
against any such expense, liability, or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability,
or loss under the GCLD.
7.5 The Corporation may enter into an indemnity agreement with
any director, officer, employee, or agent of the Corporation, or of another
corporation, partnership, joint venture, trust, or other
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enterprise, upon terms and conditions that the Board of Directors deems
appropriate, as long as the provisions of the agreement are not impermissible
under applicable law.
7.6 Any amendment or repeal of this Article 7 shall not be
retroactive in effect.
7.7 In case any provision in this Article 7 shall be
determined at any time to be unenforceable in any respect, the other provisions
shall not in any way be affected or impaired thereby, and the affected provision
shall be given the fullest possible enforcement in the circumstances, it being
the intention of the Corporation to afford indemnification and advancement of
expenses to the persons indemnified hereby to the fullest extent permitted by
law.
7.8 The Corporation may, by action of the Board of Directors,
authorize one or more officers to grant rights to indemnification and
advancement of expenses to former directors and officers or to other employees
or agents of the Corporation on such terms and conditions as such officer or
officers deem appropriate under the circumstances.
8. MISCELLANEOUS
8.1 Place and Inspection of Books. (a) The books of the
Corporation other than such books as are required by law to be kept within the
State of Delaware shall be kept in such place or places either within or without
the State of Delaware as the Board of Directors may from time to time determine.
(b) At least ten days before each meeting of
stockholders, the officer in charge of the stock ledger of the Corporation shall
prepare a complete list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
(c) The Board of Directors shall determine from time
to time whether and, if allowed, when and under what conditions and regulations
the accounts and books of the Corporation (except such as may be by law
specifically open to inspection or as otherwise provided by these Bylaws) or any
of them shall be open to the inspection of the stockholders and the
stockholders' rights in respect thereof.
8.2 Voting Shares in Other Corporations. The Chief Executive
Officer, the President, the Chief Financial Officer or any other officer of the
Corporation designated by the Board of Directors may vote any and all shares
held by the Corporation in any other corporation.
8.3 Fiscal Year. The fiscal year of the Corporation shall be
such fiscal year as the Board of Directors from time to time by resolution shall
determine.
8.4 Gender/Number. As used in these Bylaws, the masculine,
feminine, or neuter gender, and the singular or plural number, shall each
include the others whenever the context so indicates.
8.5 Paragraph Titles. The titles of the paragraphs have been
inserted as a matter of reference only and shall not control or affect the
meaning or construction of any of the terms and provisions hereof.
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8.6 Amendment. These Bylaws may be altered, amended, or
repealed by (a) the affirmative vote of 80% or more of the aggregate number of
votes that the holders of the then outstanding shares of common stock and
preferred stock are entitled to cast on the amendment, or (b) by resolution
adopted by the affirmative vote of not less than a majority of the Directors in
office, at any annual or regular meeting of the Board of Directors or at any
special meeting of the Board of Directors if notice of the proposed alteration,
amendment, or repeal be contained in written notice of such special meeting.
Notwithstanding the foregoing, the amendment of any provision of these Bylaws
that requires an affirmative vote in excess of a majority of the Directors in
office shall require the affirmative vote of at least the number of directors
the affirmative vote of whom is required by such provision.
8.7 Certificate of Incorporation. Notwithstanding anything to
the contrary contained herein, if any provision contained in these Bylaws is
inconsistent with or conflicts with a provision of the Certificate of
Incorporation, such provision of these Bylaws shall be superseded by the
inconsistent provision in the Certificate of Incorporation to the extent
necessary to give effect to such provision in the Certificate of Incorporation.
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Binghamton General, Inc.
B.33.2
Amended and Restated Bylaws
Adopted December 31,1999
<PAGE> 2
AMENDED AND RESTATED
B Y L A W S
OF
BINGHAMTON GENERAL, INC.
1. OFFICES.
1.1 Offices. In addition to its registered office in the State
of Delaware, the Corporation shall have a corporate office in Wilmington,
Delaware, and such other offices, either within or without the State of
Delaware, at such locations as the Board of Directors may from time to time
determine or the business of the Corporation may require.
2. SEAL.
2.1 Seal. The Corporation shall have a seal, which shall have
inscribed thereon its name and year of incorporation and the words, "Corporate
Seal Delaware."
3. MEETINGS OF STOCKHOLDERS.
3.1 Annual Meetings. The annual meeting of stockholders of the
Corporation shall be held on such date, at such time and at such place within or
without the State of Delaware as shall be determined by the Board of Directors
from time to time.
3.2 Special Meetings. Special meetings of the stockholders of
the Corporation shall be held on such date, at such time and at such place
within or without the State of Delaware as may be designated by the Chairman of
the Board or by the Board of Directors.
3.3 Notice of Meetings. (a) Notices of meetings of
stockholders shall be in writing and shall state the place, date, and hour of
the meeting, and, in the case of a special meeting, the purpose or purposes for
which a meeting is called. No business other than that specified in the notice
thereof shall be transacted at any special meeting.
(b) Such notice shall either be delivered personally,
mailed, postage prepaid, or delivered by any other lawful means to each
stockholder entitled to vote at such meeting not less than 10 nor more than 60
days before the date of the meeting. If mailed, the notice shall be directed to
the stockholder at his or her address as it appears on the records of the
Corporation. Delivery of any such notice to any officer of a corporation or
association or to any member of a partnership shall constitute delivery of such
notice to such corporation, association, or partnership.
(c) Notice of any meeting of stockholders need not be
given to any stockholder if waived by such stockholder in writing, whether
before or after such meeting is held, or if such stockholder shall sign the
minutes or attend the meeting, except that if such stockholder attends a meeting
for the express purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened, such stockholder shall not be deemed to have waived notice of such
meeting.
3.4 Adjourned Meetings. When a meeting is adjourned to another
time or place, unless otherwise provided by these Bylaws, notice need not be
given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. At the adjourned meeting the
stockholders may transact any business that might have been transacted at the
original meeting. If an adjournment
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is for more than 30 days, or if after an adjournment, a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder entitled to vote at the meeting.
3.5 Quorum and Adjournment. Except as otherwise provided by
law, by the Certificate of Incorporation of the Corporation, or by these Bylaws,
the presence, in person or by proxy, of the holders of a majority of the
aggregate voting power of the stock issued and outstanding, entitled to vote
thereat, shall constitute a quorum for the transaction of business at all
meetings of stockholders. If such majority shall not be present or represented
at any meeting of stockholders, the stockholders present, although less than a
quorum, shall have the power to adjourn the meeting.
3.6 Vote Required. Except as otherwise provided by law or by
the Certificate of Incorporation:
(a) Directors shall be elected by a plurality of the
votes present in person or represented by proxy at a meeting of stockholders and
entitled to vote in the election of directors, and
(b) whenever any corporate action other than the
election of Directors is to be taken, it shall be authorized by a majority in
voting power of the shares present in person or by proxy at a meeting of
stockholders and entitled to vote on the subject matter.
3.7 Manner of Voting. At each meeting of stockholders, each
stockholder having the right to vote shall be entitled to vote in person or by
proxy. Proxies need not be filed with the Secretary of the Corporation until the
meeting is called to order, but shall be filed before being voted. Each
stockholder shall be entitled to vote each share of stock having voting power
registered in his or her name on the books of the Corporation on the record date
fixed for determination of stockholders entitled to vote at such meeting.
3.8 Stockholder Action Without a Meeting. Except as otherwise
provided by law or by the Certificate of Incorporation, any action required to
be taken at any meeting of stockholders of the corporation, or any action that
may be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice, and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing and who,
if the action had been taken at a meeting, would have been entitled to notice of
the meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of the holders to take the action were
delivered to the Corporation.
3.9 Proxies. (a) At any meeting of stockholders, any
stockholder may be represented and vote by proxy or proxies. In the event that
any form of proxy shall designate two or more persons to act as proxies, a
majority of such persons present at the meeting or, if only one shall be
present, then that one shall have and may exercise all of the powers conferred
by the form of proxy upon all of the persons so designated unless the form of
proxy shall otherwise provide.
(b) The Board of Directors may, in advance of any
annual or special meeting of the stockholders, prescribe additional regulations
concerning the validation of the same, which are intended to be voted at any
such meeting.
3.10 Presiding Officer and Secretary. The Chairman of the
Board shall act as chairman of all meetings of the stockholders. In the absence
of the Chairman of the Board, the Vice Chairman of the Board or, in his or her
absence, any Director designated by the Chairman of the Board or the Board of
Directors shall act as chairman of the meeting.
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The Secretary of the Corporation shall act as secretary of all
meetings of the stockholders, but, in the absence of the Secretary, the
Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the stockholders, but in the
absence of a designated Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
3.11 Procedure. At each meeting of stockholders, the chairman
of the meeting shall fix and announce the date and time of the opening and the
closing of the polls for each matter upon which the stockholders will vote at
the meeting and shall determine the order of business and all other matters of
procedure. Except to the extent inconsistent with any such rules and regulations
as adopted by the Board of Directors, the chairman of the meeting may establish
rules, which need not be in writing, to maintain order and safety and for the
conduct of the meeting. Without limiting the foregoing, he or she may:
(a) restrict attendance at any time to bona fide
stockholders of record and their proxies and other persons in attendance at the
invitation of the chairman;
(b) restrict dissemination of solicitation materials
and use of audio or visual recording devices at the meeting;
(c) adjourn the meeting without a vote of the
stockholders, whether or not there is a quorum present; and
(d) make rules governing speeches and debate,
including time limits and access to microphones.
The chairman of the meeting shall be entitled to act in his or her absolute
discretion and his or her rulings shall not be subject to appeal.
4. DIRECTORS.
4.1 Powers and Number. The Board of Directors shall exercise
all of the powers of the Corporation except such as are by law, or by the
Certificate of Incorporation of this Corporation or by these Bylaws conferred
upon or reserved to the stockholders of any class or classes. The number of
directors that shall constitute the whole Board of Directors shall be no fewer
than three (3) and no greater than nine (9), the exact number of directors to be
determined from time to time by resolution adopted by the Board of Directors or
the stockholders, and until otherwise determined by the Board of Directors or
the stockholders, the number of directors that shall constitute the whole Board
of Directors shall be three (3).
4.2 Resignations. Any Director may resign at any time by
giving written notice to the Board of Directors or the Secretary. Such
resignation shall take effect at the date of receipt of such notice or at any
later time specified therein. Acceptance of such resignation shall not be
necessary to make it effective.
4.3 Presiding Officer and Secretary. The Chairman of the Board
shall act as chairman of all meetings of the Board of Directors. In the absence
of the Chairman of the Board, the Vice Chairman of the Board, or in his absence,
the Chief Executive Officer or other person designated by the Board of Directors
shall act as chairman of the meeting.
The Secretary of the Corporation shall act as
secretary of all meetings of the Board of Directors, but, in the absence of the
Secretary, the Assistant Secretary designated in accordance with Section 5.11(b)
of these Bylaws shall act as secretary of all meetings of the Board of
Directors, but in the absence of a designated Assistant Secretary, the chairman
of the meeting may appoint any person to act as secretary of the meeting.
4.4 Annual Meetings. The Board of Directors shall meet each
year immediately following the annual meeting of stockholders, at the place
where such meeting of stockholders has been held, or at such
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other place as shall be fixed by the person presiding over the meeting of the
stockholders, for the purpose of election of officers and consideration of such
other business as the Board of Directors considers relevant to the management of
the Corporation. In the event that in any year Directors are elected by written
consent in lieu of an annual meeting of stockholders, the Board of Directors
shall meet in such year as soon as practicable after receipt of such written
consent by the Corporation at such time and place as shall be fixed by the
Chairman of the Board, for the purpose of election of officers and consideration
of such other business as the Board of Directors considers relevant to the
management of the Corporation.
4.5 Regular Meetings. Regular meetings of the Board of
Directors shall be held on such dates and at such times and places, within or
without the state of Delaware, as shall from time to time be determined by the
Board of Directors. In the absence of any such determination, such meetings
shall be held at such times and places, within or without the State of Delaware,
as shall be designated by the Chairman of the Board on not less than twelve
hours notice to each Director, given verbally, in writing or electronically,
whether personally, by telephone (including by message or recording device), by
facsimile transmission, by telegram, by telex or by electronic mail or by other
electronic means, or on not less than three (3) calendar days' notice to each
Director given by mail. Notice given by any of the foregoing means shall be
sufficient to constitute notice of a meeting without the necessity of further
notice.
4.6 Special Meetings. Special meetings of the Board of
Directors shall be held at the call of the Chairman of the Board at such times
and places, within or without the State of Delaware, as he or she shall
designate, on not less than twelve hours notice to each Director, given
verbally, in writing or electronically, whether personally, by telephone
(including by message or recording device), by facsimile transmission, by
telegram, by telex, by electronic mail or by other electronic means or on not
less than three (3) calendar days' notice to each Director given by mail. Notice
given by any of the foregoing means shall be sufficient to constitute notice of
a meeting without the necessity of further notice. Special meetings shall be
called by the Secretary on like notice at the written request of a majority of
the Directors then in office.
4.7 Quorum and Powers of a Majority. At all meetings of the
Board of Directors and of each committee thereof, a majority of the members
shall be necessary and sufficient to constitute a quorum for the transaction of
business, and the act of a majority of the members present at any meeting at
which a quorum is present shall be the act of the Board of Directors or such
committee, unless by express provision of law, of the Certificate of
Incorporation, or of these Bylaws, a different vote is required, in which case
such express provision shall govern and control. In the absence of a quorum, a
majority of the members present at any meeting may, without notice other than
announcement at the meeting, adjourn such meeting from time to time until a
quorum is present.
4.8 Waiver of Notice. Notice of any meeting of the Board of
Directors, or any committee thereof, need not be given to any member if waived
by him or her in writing, whether before or after such meeting is held, or if he
or she shall sign the minutes or attend the meeting, except that if such
Director attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened, then such Director shall not be deemed to have
waived notice of such meeting.
4.9 Manner of Acting. (a) Members of the Board of Directors,
or any committee thereof, may participate in any meeting of the Board of
Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating therein can
hear each other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
(b) Any action required or permitted to be taken at
any meeting of the Board of Directors or any committee thereof may be taken
without a meeting if all members of the Board of Directors or such committee, as
the case may be, consent thereto in writing, and the writings are filed with the
minutes of proceedings of the Board of Directors or such committee.
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4.10 Compensation. (a) The Board of Directors, by a resolution
or resolutions, may fix, and from time to time change, the compensation of
Directors.
(b) Each Director shall be entitled to reimbursement
from the Corporation for his or her reasonable expenses incurred with respect to
duties as a member of the Board of Directors or any committee thereof.
(c) Nothing contained in these Bylaws shall be
construed to preclude any Director from serving the Corporation in any other
capacity and from receiving compensation from the Corporation for service
rendered to it in such other capacity.
4.11 Committees. The Board of Directors (or any committee
thereof having the power and authority to do so) may designate one or more
committees, each committee to consist of one or more Directors, which to the
extent provided in said resolution or resolutions shall have and may exercise
the powers and authority of the Board of Directors in the management of the
business and affairs of the corporation; provided, however, that no such
committee shall have the power or authority in reference to the following
matters: (i) approving or adopting, or recommending to the stockholders, any
action or matter expressly required by the General Corporation Law of Delaware
(the "GCLD") to be submitted to stockholders for approval or (ii) adopting,
amending, or repealing any bylaw of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member of the committee. In the absence or
disqualification of a member of a committee, the member or members present at
any meeting of such committee and not disqualified from voting, whether or not
such member of members constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in place of such absent
or disqualified director.
4.12 Committee Procedure, Limitations of Committee Powers. (a)
Except as otherwise provided by these Bylaws, each committee shall adopt its own
rules governing the time, place and method of holding its meetings and the
conduct of its proceedings and shall meet as provided by such rules or by
resolution of the Board of Directors. Unless otherwise provided by these Bylaws
or any such rules or resolutions, notice of the time and place of each meeting
of a committee shall be given to each member of such committee as provided in
Section 4.6 of these Bylaws with respect to notices of special meetings of the
Board of Directors.
(b) Each committee shall keep regular minutes of its
proceedings and report the same to the Board of Directors when required.
(c) Any member of any committee may be removed from
such committee either with or without cause, at any time, by the Board of
Directors at any meeting thereof. Any vacancy in any committee shall be filled
by the Board of Directors in the manner prescribed by the Certificate of
Incorporation or these Bylaws for the original appointment of the members of
such committee.
5. OFFICERS.
5.1 Number. (a) The officers of the Corporation shall include
a Chief Executive Officer, a President, one or more Vice Presidents (including
one or more Executive Vice Presidents and one or more Senior Vice Presidents if
deemed appropriate by the Board of Directors), a Chief Financial Officer, a
Secretary, a Treasurer, and a Controller. The Board of Directors shall also
elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except
for the Chairman of the Board, the Vice Chairman of the Board, and the Chief
Executive Officer, none of the officers of the Corporation needs to be a
director of the Corporation. Any two or more offices may be held by the same
person to the extent permitted by the GCLD.
(b) The Chief Executive Officer shall have the power
to appoint one or more employees of the Corporation as divisional or
departmental vice presidents and fix the duties of such appointees. However, no
such divisional or departmental vice president shall be considered as an officer
of the Corporation.
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5.2 Election of Officers, Qualification and Term. The Chief
Executive Officer, the President, any Executive Vice President, any Senior Vice
President, the Chief Financial Officer, the Secretary and the Treasurer of the
Corporation shall be elected from time to time by the Board of Directors and,
except as may otherwise be expressly provided in a contract of employment duly
authorized by the Board of Directors, shall hold office at the pleasure of the
Board of Directors. The Board of Directors and the Chief Executive Officer also
may elect such other officers as the Board of Directors or the Chief Executive
Officer may from time to time deem appropriate or necessary.
5.3 Removal. Any officer elected by the Board of Directors may
be removed, either with or without cause, by the Board of Directors at any
meeting thereof, or to the extent delegated to the Chairman of the Board or the
Chief Executive Officer, by the Chairman of the Board or the Chief Executive
Officer.
5.4 Resignations. Any officer of the Corporation may resign at
any time by giving written notice to the Board of Directors or to the Chairman
of the Board or to the Chief Executive Officer. Such resignation shall take
effect at the date of the receipt of such notice or at any later time specified
therein and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
5.5 Compensation. The compensation of all officers of the
Corporation shall be fixed by or in the manner provided by the Board of
Directors from time to time, and no officer shall be prevented from receiving
such compensation by reason of the fact that he or she is also a Director of the
Corporation.
5.6 The Chairman of the Board. The Chairman of the Board shall
have the powers and duties customarily and usually associated with the office of
the Chairman of the Board and shall have such other powers and perform such
other duties as may be delegated to him or her by the Board of Directors. The
Chairman of the Board shall preside at meetings of the stockholders and of the
Board of Directors.
5.7 Vice Chairman of the Board. The Vice Chairman of the
Board, if any, shall have the powers and duties customarily and usually
associated with the office of the Vice Chairman of the Board and shall have such
other powers and perform such other duties as may be delegated to him or her by
the Board of Directors.
5.8 Chief Executive Officer. The Chief Executive Officer shall
have, subject to the supervision, direction and control of the Board of
Directors, the general powers and duties of supervision, direction and
management of the affairs and business of the Corporation usually vested in the
chief executive officer of a corporation, including, without limitation, all
powers necessary to direct and control the organizational and reporting
relationships within the Corporation. In addition, the Chief Executive Officer
shall have such other powers and perform such other duties as may be delegated
to him or her by the Board of Directors. If at any time the office of the
Chairman of the Board and the Vice Chairman of the Board shall not be filled, or
in the event of the temporary absence or disability of the Chairman of the Board
and the Vice Chairman of the Board, the Chief Executive Officer shall have the
powers and duties of the Chairman of the Board.
5.9 The President. The President shall serve as chief
operating officer, shall have the powers and duties customarily and usually
associated with the office of the President and shall have such other powers and
perform such other duties as may be delegated to him or her from time to time by
the Board of Directors or the Chief Executive Officer.
5.10 The Vice Presidents. Each Vice President shall have such
powers and duties customarily and usually associated with the office of Vice
President and shall have such other powers and perform such other duties as may
from time to time be assigned to him or her by the Board of Directors, the Chief
Executive Officer, or the President.
5.11 The Chief Financial Officer. The Chief Financial Officer
shall be responsible for the financial affairs of the Corporation, including
overseeing the duties performed by the Treasurer of the Corporation. In
addition, the Chief Financial Officer shall have such powers and duties
customarily and usually
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associated with the office of the Chief Financial Officer and shall have such
other powers and perform such other duties as may be delegated to him or her
from time to time by the Board of Directors or the Chief Executive Officer.
5.12 The Secretary and the Assistant Secretary. (a) The
Secretary shall attend meetings of the Board of Directors and meetings of the
stockholders and record all votes and minutes of all such proceedings in a book
kept for such purpose. In addition, the Secretary shall have such powers and
duties customarily and usually associated with the office of Secretary and shall
have such other powers and perform such other duties as may be delegated to him
or her by the Board of Directors, the Chief Executive Officer, or the President.
(b) Each Assistant Secretary shall have such powers
and perform such duties customarily and usually associated with the office of
Assistant Secretary and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Secretary. In case
of the absence or disability of the Secretary, the Assistant Secretary
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Secretary) shall perform the duties and exercise the powers
of the Secretary.
5.13 The Treasurer and the Assistant Treasurer. (a) The
Treasurer shall have custody of the Corporation's funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit or cause to be deposited moneys or other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The Treasurer shall
also maintain adequate records of all assets, liabilities, and transactions of
the Corporation and shall see that adequate audits thereof are currently and
regularly made. In addition, the Treasurer shall have such powers and duties
customarily and usually associated with the office of Treasurer and shall have
such other powers and perform such other duties as may be delegated to him or
her from time to time by the Board of Directors, the Chief Executive Officer,
the President or the Chief Financial Officer.
(b) Each Assistant Treasurer shall have such powers
and perform such duties customarily and usually associated with the office of
Assistant Treasurer and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Treasurer. In case
of the absence or disability of the Treasurer, the Assistant Treasurer
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Treasurer) shall perform the duties and exercise the powers
of the Treasurer.
5.14 Controller. The Controller shall be responsible for
maintaining the accounting records and statements, and shall properly account
for all monies and obligations due the Corporation and all properties, assets,
and liabilities of the Corporation. The Controller shall render to the Chairman
of the Board, the President or the Chief Financial Officer such periodic reports
covering the results of operations of the Corporation as may be required by
either of them or by law. In addition, the Controller shall have such powers and
duties customarily and usually associated with the office of Controller and
shall have such other powers and perform such other duties as may be delegated
to him or her from time to time by the Board of Directors, the Chief Executive
Officer, the President or the Chief Financial Officer.
6. STOCK
6.1 Certificates. Certificates for shares of stock of the
Corporation shall be issued under the seal of the Corporation, or a facsimile
thereof, and shall be numbered and shall be entered in the books of the
Corporation as they are issued. Each certificate shall bear a serial number,
shall exhibit the holder's name and the number of shares evidenced thereby, and
shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the
Chief Executive Officer or the President or any Vice President, and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer.
Any or all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is
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issued, it may be issued by the corporation with the same effect as if such
person or entity were such officer, transfer agent, or registrar at the date of
issue.
6.2 Transfers. Transfers of stock of the Corporation shall be
made on the books of the Corporation only upon surrender to the Corporation of a
certificate (if any) for the shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, provided such
succession, assignment, or transfer is not prohibited by the Certificate of
Incorporation, these Bylaws, applicable law or contract. Thereupon, the
Corporation shall issue a new certificate (if requested) to the person entitled
thereto, cancel the old certificate (if any), and record the transaction upon
its books.
6.3 Lost, Stolen, or Destroyed Certificates. Any person
claiming a certificate of stock to be lost, stolen, or destroyed shall make an
affidavit or an affirmation of that fact, and shall give the Corporation a bond
of indemnity in satisfactory form and with one or more satisfactory sureties,
whereupon a new certificate (if requested) may be issued of the same tenor and
for the same number of shares as the one alleged to be lost, stolen, or
destroyed.
6.4 Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares as the person entitled to exercise the rights of a stockholder
and shall not be bound to recognize any equitable or other claim to or interest
in any such shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise expressly provided by the
GCLD.
6.5 Additional Powers of the Board. (a) In addition to those
powers set forth in Section 4.1, the Board of Directors shall have power and
authority to make all such rules and regulations as it shall deem expedient
concerning the issue, transfer, and registration of certificates for shares of
stock of the Corporation, including the use of uncertificated shares of stock
subject to the provisions of the GCLD.
(b) The Board of Directors may appoint and remove
transfer agents and registrars of transfers, and may require all stock
certificates to bear the signature of any such transfer agent and/or any such
registrar of transfers.
7. INDEMNIFICATION
7.1 Each person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or the person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation, as a
director, officer, employee, or agent of another corporation or of a
partnership, joint venture, trust, or other enterprise, including service with
respect to employee benefit plans, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the GCLD, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expenses, liability, and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of his or her heirs, executors, and administrators; provided,
however, that, except as provided in this Article 7, the Corporation shall
indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if authorized by the
Board of Directors of the Corporation. Any indemnification under this Article 7
(unless ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee, or agent is proper in the circumstances because he or she has
met the applicable standard set forth in the GCLD. Such a determination shall be
made (a) by a majority vote of the directors who are not parties to such action,
suit or proceeding, even though less than a quorum; (b) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum; (c) by
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independent legal counsel (compensated by the Corporation) in a written opinion;
(d) by the stockholders; or (e) in any other manner permitted by the GCLD. In
addition to the right to indemnification conferred in this Article 7, each of
the above persons shall have the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that, if the GCLD requires, the payment of such
expenses incurred by a present director or officer in his or her capacity as a
director or officer of the corporation (and not in any other capacity in which
service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of a proceeding, shall be made only upon delivery to
the Corporation of an undertaking, by or on behalf of such present director or
officer, to repay all amounts so advanced if it shall ultimately be determined
that such director or officer is not entitled to be indemnified under this
Article 7 or otherwise. The Corporation may, by any manner permitted by the
GCLD, provide indemnification and advancement of expenses to employees and
agents of the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers. The right to indemnification and to
an advancement of expenses conferred in this Article 7 shall be a contract
right.
7.2 If a claim under Section 7.1 of this Article 7 is not paid
in full by the Corporation within 30 days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim (including attorneys' fees). It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the GCLD for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, a committee thereof, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the GCLD, nor an actual determination by the Corporation (including
its Board of Directors, a committee thereof, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct. In any suit brought by the claimant
to enforce a right to indemnification or to an advancement of expenses
hereunder, or brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the claimant
is not entitled to be indemnified, or to such advancement of expenses, under
this Article 7 or otherwise shall be on the Corporation.
7.3 The rights to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Article 7, shall not be exclusive of any other right that any person may
have or hereafter acquire under any statute, provision of the certificate of
incorporation of the Corporation, this bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
7.4 The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee, or agent of the Corporation
or another corporation, partnership, joint venture, trust, or other enterprise
against any such expense, liability, or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability,
or loss under the GCLD.
7.5 The Corporation may enter into an indemnity agreement with
any director, officer, employee, or agent of the Corporation, or of another
corporation, partnership, joint venture, trust, or other enterprise, upon terms
and conditions that the Board of Directors deems appropriate, as long as the
provisions of the agreement are not impermissible under applicable law.
7.6 Any amendment or repeal of this Article 7 shall not be
retroactive in effect.
7.7 In case any provision in this Article 7 shall be
determined at any time to be unenforceable in any respect, the other provisions
shall not in any way be affected or impaired thereby, and the affected provision
shall be given the fullest possible enforcement in the circumstances, it being
the intention of the
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Corporation to afford indemnification and advancement of expenses to the persons
indemnified hereby to the fullest extent permitted by law.
7.8 The Corporation may, by action of the Board of Directors,
authorize one or more officers to grant rights to indemnification and
advancement of expenses to former directors and officers or to other employees
or agents of the Corporation on such terms and conditions as such officer or
officers deem appropriate under the circumstances.
8. MISCELLANEOUS
8.1 Place and Inspection of Books. (a) The books of the
Corporation other than such books as are required by law to be kept within the
State of Delaware shall be kept in such place or places either within or without
the State of Delaware as the Board of Directors may from time to time determine.
(b) At least ten days before each meeting of
stockholders, the officer in charge of the stock ledger of the Corporation shall
prepare a complete list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
(c) The Board of Directors shall determine from time
to time whether and, if allowed, when and under what conditions and regulations
the accounts and books of the Corporation (except such as may be by law
specifically open to inspection or as otherwise provided by these Bylaws) or any
of them shall be open to the inspection of the stockholders and the
stockholders' rights in respect thereof.
8.2 Voting Shares in Other Corporations. The Chief Executive
Officer, the President, the Chief Financial Officer or any other officer of the
Corporation designated by the Board of Directors may vote any and all shares
held by the Corporation in any other corporation.
8.3 Fiscal Year. The fiscal year of the Corporation shall be
such fiscal year as the Board of Directors from time to time by resolution shall
determine.
8.4 Gender/Number. As used in these Bylaws, the masculine,
feminine, or neuter gender, and the singular or plural number, shall each
include the others whenever the context so indicates.
8.5 Paragraph Titles. The titles of the paragraphs have been
inserted as a matter of reference only and shall not control or affect the
meaning or construction of any of the terms and provisions hereof.
8.6 Amendment. These Bylaws may be altered, amended, or
repealed by (a) the affirmative vote of 80% or more of the aggregate number of
votes that the holders of the then outstanding shares of common stock and
preferred stock are entitled to cast on the amendment, or (b) by resolution
adopted by the affirmative vote of not less than a majority of the Directors in
office, at any annual or regular meeting of the Board of Directors or at any
special meeting of the Board of Directors if notice of the proposed alteration,
amendment, or repeal be contained in written notice of such special meeting.
Notwithstanding the foregoing, the amendment of any provision of these Bylaws
that requires an affirmative vote in excess of a majority of the Directors in
office shall require the affirmative vote of at least the number of directors
the affirmative vote of whom is required by such provision.
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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.
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Binghamton Limited, Inc.
B.34.2
Amended and Restated Bylaws
Adopted December 31, 1999
<PAGE> 2
AMENDED AND RESTATED
B Y L A W S
OF
BINGHAMTON LIMITED, INC.
1. OFFICES.
1.1 Offices. In addition to its registered office in the State
of Delaware, the Corporation shall have a corporate office in Wilmington,
Delaware, and such other offices, either within or without the State of
Delaware, at such locations as the Board of Directors may from time to time
determine or the business of the Corporation may require.
2. SEAL.
2.1 Seal. The Corporation shall have a seal, which shall have
inscribed thereon its name and year of incorporation and the words, "Corporate
Seal Delaware."
3. MEETINGS OF STOCKHOLDERS.
3.1 Annual Meetings. The annual meeting of stockholders of the
Corporation shall be held on such date, at such time and at such place within or
without the State of Delaware as shall be determined by the Board of Directors
from time to time.
3.2 Special Meetings. Special meetings of the stockholders of
the Corporation shall be held on such date, at such time and at such place
within or without the State of Delaware as may be designated by the Chairman of
the Board or by the Board of Directors.
3.3 Notice of Meetings. (a) Notices of meetings of
stockholders shall be in writing and shall state the place, date, and hour of
the meeting, and, in the case of a special meeting, the purpose or purposes for
which a meeting is called. No business other than that specified in the notice
thereof shall be transacted at any special meeting.
(b) Such notice shall either be delivered personally,
mailed, postage prepaid, or delivered by any other lawful means to each
stockholder entitled to vote at such meeting not less than 10 nor more than 60
days before the date of the meeting. If mailed, the notice shall be directed to
the stockholder at his or her address as it appears on the records of the
Corporation. Delivery of any such notice to any officer of a corporation or
association or to any member of a partnership shall constitute delivery of such
notice to such corporation, association, or partnership.
(c) Notice of any meeting of stockholders need not be
given to any stockholder if waived by such stockholder in writing, whether
before or after such meeting is held, or if such stockholder shall sign the
minutes or attend the meeting, except that if such stockholder attends a meeting
for the express purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened, such stockholder shall not be deemed to have waived notice of such
meeting.
3.4 Adjourned Meetings. When a meeting is adjourned to another
time or place, unless otherwise provided by these Bylaws, notice need not be
given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. At the adjourned meeting the
stockholders may transact any business that might have been transacted at the
original meeting. If an adjournment
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is for more than 30 days, or if after an adjournment, a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder entitled to vote at the meeting.
3.5 Quorum and Adjournment. Except as otherwise provided by
law, by the Certificate of Incorporation of the Corporation, or by these Bylaws,
the presence, in person or by proxy, of the holders of a majority of the
aggregate voting power of the stock issued and outstanding, entitled to vote
thereat, shall constitute a quorum for the transaction of business at all
meetings of stockholders. If such majority shall not be present or represented
at any meeting of stockholders, the stockholders present, although less than a
quorum, shall have the power to adjourn the meeting.
3.6 Vote Required. Except as otherwise provided by law or by
the Certificate of Incorporation:
(a) Directors shall be elected by a plurality of the
votes present in person or represented by proxy at a meeting of stockholders and
entitled to vote in the election of directors, and
(b) whenever any corporate action other than the
election of Directors is to be taken, it shall be authorized by a majority in
voting power of the shares present in person or by proxy at a meeting of
stockholders and entitled to vote on the subject matter.
3.7 Manner of Voting. At each meeting of stockholders, each
stockholder having the right to vote shall be entitled to vote in person or by
proxy. Proxies need not be filed with the Secretary of the Corporation until the
meeting is called to order, but shall be filed before being voted. Each
stockholder shall be entitled to vote each share of stock having voting power
registered in his or her name on the books of the Corporation on the record date
fixed for determination of stockholders entitled to vote at such meeting.
3.8 Stockholder Action Without a Meeting. Except as otherwise
provided by law or by the Certificate of Incorporation, any action required to
be taken at any meeting of stockholders of the corporation, or any action that
may be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice, and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing and who,
if the action had been taken at a meeting, would have been entitled to notice of
the meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of the holders to take the action were
delivered to the Corporation.
3.9 Proxies. (a) At any meeting of stockholders, any
stockholder may be represented and vote by proxy or proxies. In the event that
any form of proxy shall designate two or more persons to act as proxies, a
majority of such persons present at the meeting or, if only one shall be
present, then that one shall have and may exercise all of the powers conferred
by the form of proxy upon all of the persons so designated unless the form of
proxy shall otherwise provide.
(b) The Board of Directors may, in advance of any
annual or special meeting of the stockholders, prescribe additional regulations
concerning the validation of the same, which are intended to be voted at any
such meeting.
3.10 Presiding Officer and Secretary. The Chairman of the
Board shall act as chairman of all meetings of the stockholders. In the absence
of the Chairman of the Board, the Vice Chairman of the Board or, in his or her
absence, any Director designated by the Chairman of the Board or the Board of
Directors shall act as chairman of the meeting.
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The Secretary of the Corporation shall act as secretary of all
meetings of the stockholders, but, in the absence of the Secretary, the
Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the stockholders, but in the
absence of a designated Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
3.11 Procedure. At each meeting of stockholders, the chairman
of the meeting shall fix and announce the date and time of the opening and the
closing of the polls for each matter upon which the stockholders will vote at
the meeting and shall determine the order of business and all other matters of
procedure. Except to the extent inconsistent with any such rules and regulations
as adopted by the Board of Directors, the chairman of the meeting may establish
rules, which need not be in writing, to maintain order and safety and for the
conduct of the meeting. Without limiting the foregoing, he or she may:
(a) restrict attendance at any time to bona fide
stockholders of record and their proxies and other persons in attendance at the
invitation of the chairman;
(b) restrict dissemination of solicitation materials
and use of audio or visual recording devices at the meeting;
(c) adjourn the meeting without a vote of the
stockholders, whether or not there is a quorum present; and
(d) make rules governing speeches and debate,
including time limits and access to microphones.
The chairman of the meeting shall be entitled to act in his or her absolute
discretion and his or her rulings shall not be subject to appeal.
4. DIRECTORS.
4.1 Powers and Number. The Board of Directors shall exercise
all of the powers of the Corporation except such as are by law, or by the
Certificate of Incorporation of this Corporation or by these Bylaws conferred
upon or reserved to the stockholders of any class or classes. The number of
directors that shall constitute the whole Board of Directors shall be no fewer
than three (3) and no greater than nine (9), the exact number of directors to be
determined from time to time by resolution adopted by the Board of Directors or
the stockholders, and until otherwise determined by the Board of Directors or
the stockholders, the number of directors that shall constitute the whole Board
of Directors shall be three (3).
4.2 Resignations. Any Director may resign at any time by
giving written notice to the Board of Directors or the Secretary. Such
resignation shall take effect at the date of receipt of such notice or at any
later time specified therein. Acceptance of such resignation shall not be
necessary to make it effective.
4.3 Presiding Officer and Secretary. The Chairman of the Board
shall act as chairman of all meetings of the Board of Directors. In the absence
of the Chairman of the Board, the Vice Chairman of the Board, or in his absence,
the Chief Executive Officer or other person designated by the Board of Directors
shall act as chairman of the meeting.
The Secretary of the Corporation shall act as
secretary of all meetings of the Board of Directors, but, in the absence of the
Secretary, the Assistant Secretary designated in accordance with Section 5.11(b)
of these Bylaws shall act as secretary of all meetings of the Board of
Directors, but in the absence of a designated Assistant Secretary, the chairman
of the meeting may appoint any person to act as secretary of the meeting.
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4.4 Annual Meetings. The Board of Directors shall meet each
year immediately following the annual meeting of stockholders, at the place
where such meeting of stockholders has been held, or at such other place as
shall be fixed by the person presiding over the meeting of the stockholders, for
the purpose of election of officers and consideration of such other business as
the Board of Directors considers relevant to the management of the Corporation.
In the event that in any year Directors are elected by written consent in lieu
of an annual meeting of stockholders, the Board of Directors shall meet in such
year as soon as practicable after receipt of such written consent by the
Corporation at such time and place as shall be fixed by the Chairman of the
Board, for the purpose of election of officers and consideration of such other
business as the Board of Directors considers relevant to the management of the
Corporation.
4.5 Regular Meetings. Regular meetings of the Board of
Directors shall be held on such dates and at such times and places, within or
without the state of Delaware, as shall from time to time be determined by the
Board of Directors. In the absence of any such determination, such meetings
shall be held at such times and places, within or without the State of Delaware,
as shall be designated by the Chairman of the Board on not less than twelve
hours notice to each Director, given verbally, in writing or electronically,
whether personally, by telephone (including by message or recording device), by
facsimile transmission, by telegram, by telex or by electronic mail or by other
electronic means, or on not less than three (3) calendar days' notice to each
Director given by mail. Notice given by any of the foregoing means shall be
sufficient to constitute notice of a meeting without the necessity of further
notice.
4.6 Special Meetings. Special meetings of the Board of
Directors shall be held at the call of the Chairman of the Board at such times
and places, within or without the State of Delaware, as he or she shall
designate, on not less than twelve hours notice to each Director, given
verbally, in writing or electronically, whether personally, by telephone
(including by message or recording device), by facsimile transmission, by
telegram, by telex, by electronic mail or by other electronic means or on not
less than three (3) calendar days' notice to each Director given by mail. Notice
given by any of the foregoing means shall be sufficient to constitute notice of
a meeting without the necessity of further notice. Special meetings shall be
called by the Secretary on like notice at the written request of a majority of
the Directors then in office.
4.7 Quorum and Powers of a Majority. At all meetings of the
Board of Directors and of each committee thereof, a majority of the members
shall be necessary and sufficient to constitute a quorum for the transaction of
business, and the act of a majority of the members present at any meeting at
which a quorum is present shall be the act of the Board of Directors or such
committee, unless by express provision of law, of the Certificate of
Incorporation, or of these Bylaws, a different vote is required, in which case
such express provision shall govern and control. In the absence of a quorum, a
majority of the members present at any meeting may, without notice other than
announcement at the meeting, adjourn such meeting from time to time until a
quorum is present.
4.8 Waiver of Notice. Notice of any meeting of the Board of
Directors, or any committee thereof, need not be given to any member if waived
by him or her in writing, whether before or after such meeting is held, or if he
or she shall sign the minutes or attend the meeting, except that if such
Director attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened, then such Director shall not be deemed to have
waived notice of such meeting.
4.9 Manner of Acting. (a) Members of the Board of Directors,
or any committee thereof, may participate in any meeting of the Board of
Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating therein can
hear each other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
(b) Any action required or permitted to be taken at
any meeting of the Board of Directors or any committee thereof may be taken
without a meeting if all members of the Board of Directors or
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such committee, as the case may be, consent thereto in writing, and the writings
are filed with the minutes of proceedings of the Board of Directors or such
committee.
4.10 Compensation. (a) The Board of Directors, by a resolution
or resolutions, may fix, and from time to time change, the compensation of
Directors.
(b) Each Director shall be entitled to reimbursement
from the Corporation for his or her reasonable expenses incurred with respect to
duties as a member of the Board of Directors or any committee thereof.
(c) Nothing contained in these Bylaws shall be
construed to preclude any Director from serving the Corporation in any other
capacity and from receiving compensation from the Corporation for service
rendered to it in such other capacity.
4.11 Committees. The Board of Directors (or any committee
thereof having the power and authority to do so) may designate one or more
committees, each committee to consist of one or more Directors, which to the
extent provided in said resolution or resolutions shall have and may exercise
the powers and authority of the Board of Directors in the management of the
business and affairs of the corporation; provided, however, that no such
committee shall have the power or authority in reference to the following
matters: (i) approving or adopting, or recommending to the stockholders, any
action or matter expressly required by the General Corporation Law of Delaware
(the "GCLD") to be submitted to stockholders for approval or (ii) adopting,
amending, or repealing any bylaw of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member of the committee. In the absence or
disqualification of a member of a committee, the member or members present at
any meeting of such committee and not disqualified from voting, whether or not
such member of members constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in place of such absent
or disqualified director.
4.12 Committee Procedure, Limitations of Committee Powers. (a)
Except as otherwise provided by these Bylaws, each committee shall adopt its own
rules governing the time, place and method of holding its meetings and the
conduct of its proceedings and shall meet as provided by such rules or by
resolution of the Board of Directors. Unless otherwise provided by these Bylaws
or any such rules or resolutions, notice of the time and place of each meeting
of a committee shall be given to each member of such committee as provided in
Section 4.6 of these Bylaws with respect to notices of special meetings of the
Board of Directors.
(b) Each committee shall keep regular minutes of its
proceedings and report the same to the Board of Directors when required.
(c) Any member of any committee may be removed from
such committee either with or without cause, at any time, by the Board of
Directors at any meeting thereof. Any vacancy in any committee shall be filled
by the Board of Directors in the manner prescribed by the Certificate of
Incorporation or these Bylaws for the original appointment of the members of
such committee.
5. OFFICERS.
5.1 Number. (a) The officers of the Corporation shall include
a Chief Executive Officer, a President, one or more Vice Presidents (including
one or more Executive Vice Presidents and one or more Senior Vice Presidents if
deemed appropriate by the Board of Directors), a Chief Financial Officer, a
Secretary, a Treasurer, and a Controller. The Board of Directors shall also
elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except
for the Chairman of the Board, the Vice Chairman of the Board, and the Chief
Executive Officer, none of the officers of the Corporation needs to be a
director of the Corporation. Any two or more offices may be held by the same
person to the extent permitted by the GCLD.
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(b) The Chief Executive Officer shall have the power
to appoint one or more employees of the Corporation as divisional or
departmental vice presidents and fix the duties of such appointees. However, no
such divisional or departmental vice president shall be considered as an officer
of the Corporation.
5.2 Election of Officers, Qualification and Term. The Chief
Executive Officer, the President, any Executive Vice President, any Senior Vice
President, the Chief Financial Officer, the Secretary and the Treasurer of the
Corporation shall be elected from time to time by the Board of Directors and,
except as may otherwise be expressly provided in a contract of employment duly
authorized by the Board of Directors, shall hold office at the pleasure of the
Board of Directors. The Board of Directors and the Chief Executive Officer also
may elect such other officers as the Board of Directors or the Chief Executive
Officer may from time to time deem appropriate or necessary.
5.3 Removal. Any officer elected by the Board of Directors may
be removed, either with or without cause, by the Board of Directors at any
meeting thereof, or to the extent delegated to the Chairman of the Board or the
Chief Executive Officer, by the Chairman of the Board or the Chief Executive
Officer.
5.4 Resignations. Any officer of the Corporation may resign at
any time by giving written notice to the Board of Directors or to the Chairman
of the Board or to the Chief Executive Officer. Such resignation shall take
effect at the date of the receipt of such notice or at any later time specified
therein and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
5.5 Compensation. The compensation of all officers of the
Corporation shall be fixed by or in the manner provided by the Board of
Directors from time to time, and no officer shall be prevented from receiving
such compensation by reason of the fact that he or she is also a Director of the
Corporation.
5.6 The Chairman of the Board. The Chairman of the Board shall
have the powers and duties customarily and usually associated with the office of
the Chairman of the Board and shall have such other powers and perform such
other duties as may be delegated to him or her by the Board of Directors. The
Chairman of the Board shall preside at meetings of the stockholders and of the
Board of Directors.
5.7 Vice Chairman of the Board. The Vice Chairman of the
Board, if any, shall have the powers and duties customarily and usually
associated with the office of the Vice Chairman of the Board and shall have such
other powers and perform such other duties as may be delegated to him or her by
the Board of Directors.
5.8 Chief Executive Officer. The Chief Executive Officer shall
have, subject to the supervision, direction and control of the Board of
Directors, the general powers and duties of supervision, direction and
management of the affairs and business of the Corporation usually vested in the
chief executive officer of a corporation, including, without limitation, all
powers necessary to direct and control the organizational and reporting
relationships within the Corporation. In addition, the Chief Executive Officer
shall have such other powers and perform such other duties as may be delegated
to him or her by the Board of Directors. If at any time the office of the
Chairman of the Board and the Vice Chairman of the Board shall not be filled, or
in the event of the temporary absence or disability of the Chairman of the Board
and the Vice Chairman of the Board, the Chief Executive Officer shall have the
powers and duties of the Chairman of the Board.
5.9 The President. The President shall serve as chief
operating officer, shall have the powers and duties customarily and usually
associated with the office of the President and shall have such other powers and
perform such other duties as may be delegated to him or her from time to time by
the Board of Directors or the Chief Executive Officer.
5.10 The Vice Presidents. Each Vice President shall have such
powers and duties customarily and usually associated with the office of Vice
President and shall have such other powers and perform
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such other duties as may from time to time be assigned to him or her by the
Board of Directors, the Chief Executive Officer, or the President.
5.11 The Chief Financial Officer. The Chief Financial Officer
shall be responsible for the financial affairs of the Corporation, including
overseeing the duties performed by the Treasurer of the Corporation. In
addition, the Chief Financial Officer shall have such powers and duties
customarily and usually associated with the office of the Chief Financial
Officer and shall have such other powers and perform such other duties as may be
delegated to him or her from time to time by the Board of Directors or the Chief
Executive Officer.
5.12 The Secretary and the Assistant Secretary. (a) The
Secretary shall attend meetings of the Board of Directors and meetings of the
stockholders and record all votes and minutes of all such proceedings in a book
kept for such purpose. In addition, the Secretary shall have such powers and
duties customarily and usually associated with the office of Secretary and shall
have such other powers and perform such other duties as may be delegated to him
or her by the Board of Directors, the Chief Executive Officer, or the President.
(b) Each Assistant Secretary shall have such powers
and perform such duties customarily and usually associated with the office of
Assistant Secretary and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Secretary. In case
of the absence or disability of the Secretary, the Assistant Secretary
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Secretary) shall perform the duties and exercise the powers
of the Secretary.
5.13 The Treasurer and the Assistant Treasurer. (a) The
Treasurer shall have custody of the Corporation's funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit or cause to be deposited moneys or other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The Treasurer shall
also maintain adequate records of all assets, liabilities, and transactions of
the Corporation and shall see that adequate audits thereof are currently and
regularly made. In addition, the Treasurer shall have such powers and duties
customarily and usually associated with the office of Treasurer and shall have
such other powers and perform such other duties as may be delegated to him or
her from time to time by the Board of Directors, the Chief Executive Officer,
the President or the Chief Financial Officer.
(b) Each Assistant Treasurer shall have such powers
and perform such duties customarily and usually associated with the office of
Assistant Treasurer and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Treasurer. In case
of the absence or disability of the Treasurer, the Assistant Treasurer
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Treasurer) shall perform the duties and exercise the powers
of the Treasurer.
5.14 Controller. The Controller shall be responsible for
maintaining the accounting records and statements, and shall properly account
for all monies and obligations due the Corporation and all properties, assets,
and liabilities of the Corporation. The Controller shall render to the Chairman
of the Board, the President or the Chief Financial Officer such periodic reports
covering the results of operations of the Corporation as may be required by
either of them or by law. In addition, the Controller shall have such powers and
duties customarily and usually associated with the office of Controller and
shall have such other powers and perform such other duties as may be delegated
to him or her from time to time by the Board of Directors, the Chief Executive
Officer, the President or the Chief Financial Officer.
6. STOCK
6.1 Certificates. Certificates for shares of stock of the
Corporation shall be issued under the seal of the Corporation, or a facsimile
thereof, and shall be numbered and shall be entered in the books of the
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Corporation as they are issued. Each certificate shall bear a serial number,
shall exhibit the holder's name and the number of shares evidenced thereby, and
shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the
Chief Executive Officer or the President or any Vice President, and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer.
Any or all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if such person or entity
were such officer, transfer agent, or registrar at the date of issue.
6.2 Transfers. Transfers of stock of the Corporation shall be
made on the books of the Corporation only upon surrender to the Corporation of a
certificate (if any) for the shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, provided such
succession, assignment, or transfer is not prohibited by the Certificate of
Incorporation, these Bylaws, applicable law or contract. Thereupon, the
Corporation shall issue a new certificate (if requested) to the person entitled
thereto, cancel the old certificate (if any), and record the transaction upon
its books.
6.3 Lost, Stolen, or Destroyed Certificates. Any person
claiming a certificate of stock to be lost, stolen, or destroyed shall make an
affidavit or an affirmation of that fact, and shall give the Corporation a bond
of indemnity in satisfactory form and with one or more satisfactory sureties,
whereupon a new certificate (if requested) may be issued of the same tenor and
for the same number of shares as the one alleged to be lost, stolen, or
destroyed.
6.4 Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares as the person entitled to exercise the rights of a stockholder
and shall not be bound to recognize any equitable or other claim to or interest
in any such shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise expressly provided by the
GCLD.
6.5 Additional Powers of the Board. (a) In addition to those
powers set forth in Section 4.1, the Board of Directors shall have power and
authority to make all such rules and regulations as it shall deem expedient
concerning the issue, transfer, and registration of certificates for shares of
stock of the Corporation, including the use of uncertificated shares of stock
subject to the provisions of the GCLD.
(b) The Board of Directors may appoint and remove
transfer agents and registrars of transfers, and may require all stock
certificates to bear the signature of any such transfer agent and/or any such
registrar of transfers.
7. INDEMNIFICATION
7.1 Each person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or the person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation, as a
director, officer, employee, or agent of another corporation or of a
partnership, joint venture, trust, or other enterprise, including service with
respect to employee benefit plans, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the GCLD, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expenses, liability, and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of his or her heirs, executors, and administrators; provided,
however, that, except as provided in this Article 7, the Corporation shall
indemnify any
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such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if authorized by the Board of Directors
of the Corporation. Any indemnification under this Article 7 (unless ordered by
a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee, or agent is proper in the circumstances because he or she has met the
applicable standard set forth in the GCLD. Such a determination shall be made
(a) by a majority vote of the directors who are not parties to such action, suit
or proceeding, even though less than a quorum; (b) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum; (c) by independent legal counsel (compensated by the Corporation) in a
written opinion; (d) by the stockholders; or (e) in any other manner permitted
by the GCLD. In addition to the right to indemnification conferred in this
Article 7, each of the above persons shall have the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that, if the GCLD requires, the
payment of such expenses incurred by a present director or officer in his or her
capacity as a director or officer of the corporation (and not in any other
capacity in which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such present
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Article 7 or otherwise. The Corporation may, by any manner permitted by the
GCLD, provide indemnification and advancement of expenses to employees and
agents of the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers. The right to indemnification and to
an advancement of expenses conferred in this Article 7 shall be a contract
right.
7.2 If a claim under Section 7.1 of this Article 7 is not paid
in full by the Corporation within 30 days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim (including attorneys' fees). It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the GCLD for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, a committee thereof, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the GCLD, nor an actual determination by the Corporation (including
its Board of Directors, a committee thereof, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct. In any suit brought by the claimant
to enforce a right to indemnification or to an advancement of expenses
hereunder, or brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the claimant
is not entitled to be indemnified, or to such advancement of expenses, under
this Article 7 or otherwise shall be on the Corporation.
7.3 The rights to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Article 7, shall not be exclusive of any other right that any person may
have or hereafter acquire under any statute, provision of the certificate of
incorporation of the Corporation, this bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
7.4 The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee, or agent of the Corporation
or another corporation, partnership, joint venture, trust, or other enterprise
against any such expense, liability, or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability,
or loss under the GCLD.
7.5 The Corporation may enter into an indemnity agreement with
any director, officer, employee, or agent of the Corporation, or of another
corporation, partnership, joint venture, trust, or other
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enterprise, upon terms and conditions that the Board of Directors deems
appropriate, as long as the provisions of the agreement are not impermissible
under applicable law.
7.6 Any amendment or repeal of this Article 7 shall not be
retroactive in effect.
7.7 In case any provision in this Article 7 shall be
determined at any time to be unenforceable in any respect, the other provisions
shall not in any way be affected or impaired thereby, and the affected provision
shall be given the fullest possible enforcement in the circumstances, it being
the intention of the Corporation to afford indemnification and advancement of
expenses to the persons indemnified hereby to the fullest extent permitted by
law.
7.8 The Corporation may, by action of the Board of Directors,
authorize one or more officers to grant rights to indemnification and
advancement of expenses to former directors and officers or to other employees
or agents of the Corporation on such terms and conditions as such officer or
officers deem appropriate under the circumstances.
8. MISCELLANEOUS
8.1 Place and Inspection of Books. (a) The books of the
Corporation other than such books as are required by law to be kept within the
State of Delaware shall be kept in such place or places either within or without
the State of Delaware as the Board of Directors may from time to time determine.
(b) At least ten days before each meeting of
stockholders, the officer in charge of the stock ledger of the Corporation shall
prepare a complete list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
(c) The Board of Directors shall determine from time
to time whether and, if allowed, when and under what conditions and regulations
the accounts and books of the Corporation (except such as may be by law
specifically open to inspection or as otherwise provided by these Bylaws) or any
of them shall be open to the inspection of the stockholders and the
stockholders' rights in respect thereof.
8.2 Voting Shares in Other Corporations. The Chief Executive
Officer, the President, the Chief Financial Officer or any other officer of the
Corporation designated by the Board of Directors may vote any and all shares
held by the Corporation in any other corporation.
8.3 Fiscal Year. The fiscal year of the Corporation shall be
such fiscal year as the Board of Directors from time to time by resolution shall
determine.
8.4 Gender/Number. As used in these Bylaws, the masculine,
feminine, or neuter gender, and the singular or plural number, shall each
include the others whenever the context so indicates.
8.5 Paragraph Titles. The titles of the paragraphs have been
inserted as a matter of reference only and shall not control or affect the
meaning or construction of any of the terms and provisions hereof.
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8.6 Amendment. These Bylaws may be altered, amended, or
repealed by (a) the affirmative vote of 80% or more of the aggregate number of
votes that the holders of the then outstanding shares of common stock and
preferred stock are entitled to cast on the amendment, or (b) by resolution
adopted by the affirmative vote of not less than a majority of the Directors in
office, at any annual or regular meeting of the Board of Directors or at any
special meeting of the Board of Directors if notice of the proposed alteration,
amendment, or repeal be contained in written notice of such special meeting.
Notwithstanding the foregoing, the amendment of any provision of these Bylaws
that requires an affirmative vote in excess of a majority of the Directors in
office shall require the affirmative vote of at least the number of directors
the affirmative vote of whom is required by such provision.
8.7 Certificate of Incorporation. Notwithstanding anything to
the contrary contained herein, if any provision contained in these Bylaws is
inconsistent with or conflicts with a provision of the Certificate of
Incorporation, such provision of these Bylaws shall be superseded by the
inconsistent provision in the Certificate of Incorporation to the extent
necessary to give effect to such provision in the Certificate of Incorporation.
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Vineland General, Inc.
B.35.2
Amended and Restated Bylaws
Adopted December 31, 1999
<PAGE> 2
AMENDED AND RESTATED
B Y L A W S
OF
VINELAND GENERAL, INC.
1. OFFICES.
1.1 Offices. In addition to its registered office in the State
of Delaware, the Corporation shall have a corporate office in Wilmington,
Delaware, and such other offices, either within or without the State of
Delaware, at such locations as the Board of Directors may from time to time
determine or the business of the Corporation may require.
2. SEAL.
2.1 Seal. The Corporation shall have a seal, which shall have
inscribed thereon its name and year of incorporation and the words, "Corporate
Seal Delaware."
3. MEETINGS OF STOCKHOLDERS.
3.1 Annual Meetings. The annual meeting of stockholders of the
Corporation shall be held on such date, at such time and at such place within or
without the State of Delaware as shall be determined by the Board of Directors
from time to time.
3.2 Special Meetings. Special meetings of the stockholders of
the Corporation shall be held on such date, at such time and at such place
within or without the State of Delaware as may be designated by the Chairman of
the Board or by the Board of Directors.
3.3 Notice of Meetings. (a) Notices of meetings of
stockholders shall be in writing and shall state the place, date, and hour of
the meeting, and, in the case of a special meeting, the purpose or purposes for
which a meeting is called. No business other than that specified in the notice
thereof shall be transacted at any special meeting.
(b) Such notice shall either be delivered personally,
mailed, postage prepaid, or delivered by any other lawful means to each
stockholder entitled to vote at such meeting not less than 10 nor more than 60
days before the date of the meeting. If mailed, the notice shall be directed to
the stockholder at his or her address as it appears on the records of the
Corporation. Delivery of any such notice to any officer of a corporation or
association or to any member of a partnership shall constitute delivery of such
notice to such corporation, association, or partnership.
(c) Notice of any meeting of stockholders need not be
given to any stockholder if waived by such stockholder in writing, whether
before or after such meeting is held, or if such stockholder shall sign the
minutes or attend the meeting, except that if such stockholder attends a meeting
for the express purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened, such stockholder shall not be deemed to have waived notice of such
meeting.
3.4 Adjourned Meetings. When a meeting is adjourned to another
time or place, unless otherwise provided by these Bylaws, notice need not be
given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. At the adjourned meeting the
stockholders may transact any business that might have been transacted at the
original meeting. If an adjournment
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is for more than 30 days, or if after an adjournment, a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder entitled to vote at the meeting.
3.5 Quorum and Adjournment. Except as otherwise provided by
law, by the Certificate of Incorporation of the Corporation, or by these Bylaws,
the presence, in person or by proxy, of the holders of a majority of the
aggregate voting power of the stock issued and outstanding, entitled to vote
thereat, shall constitute a quorum for the transaction of business at all
meetings of stockholders. If such majority shall not be present or represented
at any meeting of stockholders, the stockholders present, although less than a
quorum, shall have the power to adjourn the meeting.
3.6 Vote Required. Except as otherwise provided by law or by
the Certificate of Incorporation:
(a) Directors shall be elected by a plurality of the
votes present in person or represented by proxy at a meeting of stockholders and
entitled to vote in the election of directors, and
(b) whenever any corporate action other than the
election of Directors is to be taken, it shall be authorized by a majority in
voting power of the shares present in person or by proxy at a meeting of
stockholders and entitled to vote on the subject matter.
3.7 Manner of Voting. At each meeting of stockholders, each
stockholder having the right to vote shall be entitled to vote in person or by
proxy. Proxies need not be filed with the Secretary of the Corporation until the
meeting is called to order, but shall be filed before being voted. Each
stockholder shall be entitled to vote each share of stock having voting power
registered in his or her name on the books of the Corporation on the record date
fixed for determination of stockholders entitled to vote at such meeting.
3.8 Stockholder Action Without a Meeting. Except as otherwise
provided by law or by the Certificate of Incorporation, any action required to
be taken at any meeting of stockholders of the corporation, or any action that
may be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice, and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing and who,
if the action had been taken at a meeting, would have been entitled to notice of
the meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of the holders to take the action were
delivered to the Corporation.
3.9 Proxies. (a) At any meeting of stockholders, any
stockholder may be represented and vote by proxy or proxies. In the event that
any form of proxy shall designate two or more persons to act as proxies, a
majority of such persons present at the meeting or, if only one shall be
present, then that one shall have and may exercise all of the powers conferred
by the form of proxy upon all of the persons so designated unless the form of
proxy shall otherwise provide.
(b) The Board of Directors may, in advance of any
annual or special meeting of the stockholders, prescribe additional regulations
concerning the validation of the same, which are intended to be voted at any
such meeting.
3.10 Presiding Officer and Secretary. The Chairman of the
Board shall act as chairman of all meetings of the stockholders. In the absence
of the Chairman of the Board, the Vice Chairman of the Board or, in his or her
absence, any Director designated by the Chairman of the Board or the Board of
Directors shall act as chairman of the meeting.
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The Secretary of the Corporation shall act as secretary of all
meetings of the stockholders, but, in the absence of the Secretary, the
Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the stockholders, but in the
absence of a designated Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
3.11 Procedure. At each meeting of stockholders, the chairman
of the meeting shall fix and announce the date and time of the opening and the
closing of the polls for each matter upon which the stockholders will vote at
the meeting and shall determine the order of business and all other matters of
procedure. Except to the extent inconsistent with any such rules and regulations
as adopted by the Board of Directors, the chairman of the meeting may establish
rules, which need not be in writing, to maintain order and safety and for the
conduct of the meeting. Without limiting the foregoing, he or she may:
(a) restrict attendance at any time to bona fide
stockholders of record and their proxies and other persons in attendance at the
invitation of the chairman;
(b) restrict dissemination of solicitation materials
and use of audio or visual recording devices at the meeting;
(c) adjourn the meeting without a vote of the
stockholders, whether or not there is a quorum present; and
(d) make rules governing speeches and debate,
including time limits and access to microphones.
The chairman of the meeting shall be entitled to act in his or her absolute
discretion and his or her rulings shall not be subject to appeal.
4. DIRECTORS.
4.1 Powers and Number. The Board of Directors shall exercise
all of the powers of the Corporation except such as are by law, or by the
Certificate of Incorporation of this Corporation or by these Bylaws conferred
upon or reserved to the stockholders of any class or classes. The number of
directors that shall constitute the whole Board of Directors shall be no fewer
than three (3) and no greater than nine (9), the exact number of directors to be
determined from time to time by resolution adopted by the Board of Directors or
the stockholders, and until otherwise determined by the Board of Directors or
the stockholders, the number of directors that shall constitute the whole Board
of Directors shall be three (3).
4.2 Resignations. Any Director may resign at any time by
giving written notice to the Board of Directors or the Secretary. Such
resignation shall take effect at the date of receipt of such notice or at any
later time specified therein. Acceptance of such resignation shall not be
necessary to make it effective.
4.3 Presiding Officer and Secretary. The Chairman of the Board
shall act as chairman of all meetings of the Board of Directors. In the absence
of the Chairman of the Board, the Vice Chairman of the Board, or in his absence,
the Chief Executive Officer or other person designated by the Board of Directors
shall act as chairman of the meeting.
The Secretary of the Corporation shall act as
secretary of all meetings of the Board of Directors, but, in the absence of the
Secretary, the Assistant Secretary designated in accordance with Section 5.11(b)
of these Bylaws shall act as secretary of all meetings of the Board of
Directors, but in the absence of a designated Assistant Secretary, the chairman
of the meeting may appoint any person to act as secretary of the meeting.
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4.4 Annual Meetings. The Board of Directors shall meet each
year immediately following the annual meeting of stockholders, at the place
where such meeting of stockholders has been held, or at such other place as
shall be fixed by the person presiding over the meeting of the stockholders, for
the purpose of election of officers and consideration of such other business as
the Board of Directors considers relevant to the management of the Corporation.
In the event that in any year Directors are elected by written consent in lieu
of an annual meeting of stockholders, the Board of Directors shall meet in such
year as soon as practicable after receipt of such written consent by the
Corporation at such time and place as shall be fixed by the Chairman of the
Board, for the purpose of election of officers and consideration of such other
business as the Board of Directors considers relevant to the management of the
Corporation.
4.5 Regular Meetings. Regular meetings of the Board of
Directors shall be held on such dates and at such times and places, within or
without the state of Delaware, as shall from time to time be determined by the
Board of Directors. In the absence of any such determination, such meetings
shall be held at such times and places, within or without the State of Delaware,
as shall be designated by the Chairman of the Board on not less than twelve
hours notice to each Director, given verbally, in writing or electronically,
whether personally, by telephone (including by message or recording device), by
facsimile transmission, by telegram, by telex or by electronic mail or by other
electronic means, or on not less than three (3) calendar days' notice to each
Director given by mail. Notice given by any of the foregoing means shall be
sufficient to constitute notice of a meeting without the necessity of further
notice.
4.6 Special Meetings. Special meetings of the Board of
Directors shall be held at the call of the Chairman of the Board at such times
and places, within or without the State of Delaware, as he or she shall
designate, on not less than twelve hours notice to each Director, given
verbally, in writing or electronically, whether personally, by telephone
(including by message or recording device), by facsimile transmission, by
telegram, by telex, by electronic mail or by other electronic means or on not
less than three (3) calendar days' notice to each Director given by mail. Notice
given by any of the foregoing means shall be sufficient to constitute notice of
a meeting without the necessity of further notice. Special meetings shall be
called by the Secretary on like notice at the written request of a majority of
the Directors then in office.
4.7 Quorum and Powers of a Majority. At all meetings of the
Board of Directors and of each committee thereof, a majority of the members
shall be necessary and sufficient to constitute a quorum for the transaction of
business, and the act of a majority of the members present at any meeting at
which a quorum is present shall be the act of the Board of Directors or such
committee, unless by express provision of law, of the Certificate of
Incorporation, or of these Bylaws, a different vote is required, in which case
such express provision shall govern and control. In the absence of a quorum, a
majority of the members present at any meeting may, without notice other than
announcement at the meeting, adjourn such meeting from time to time until a
quorum is present.
4.8 Waiver of Notice. Notice of any meeting of the Board of
Directors, or any committee thereof, need not be given to any member if waived
by him or her in writing, whether before or after such meeting is held, or if he
or she shall sign the minutes or attend the meeting, except that if such
Director attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened, then such Director shall not be deemed to have
waived notice of such meeting.
4.9 Manner of Acting. (a) Members of the Board of Directors,
or any committee thereof, may participate in any meeting of the Board of
Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating therein can
hear each other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
(b) Any action required or permitted to be taken at
any meeting of the Board of Directors or any committee thereof may be taken
without a meeting if all members of the Board of Directors or
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such committee, as the case may be, consent thereto in writing, and the writings
are filed with the minutes of proceedings of the Board of Directors or such
committee.
4.10 Compensation. (a) The Board of Directors, by a resolution
or resolutions, may fix, and from time to time change, the compensation of
Directors.
(b) Each Director shall be entitled to reimbursement
from the Corporation for his or her reasonable expenses incurred with respect to
duties as a member of the Board of Directors or any committee thereof.
(c) Nothing contained in these Bylaws shall be
construed to preclude any Director from serving the Corporation in any other
capacity and from receiving compensation from the Corporation for service
rendered to it in such other capacity.
4.11 Committees. The Board of Directors (or any committee
thereof having the power and authority to do so) may designate one or more
committees, each committee to consist of one or more Directors, which to the
extent provided in said resolution or resolutions shall have and may exercise
the powers and authority of the Board of Directors in the management of the
business and affairs of the corporation; provided, however, that no such
committee shall have the power or authority in reference to the following
matters: (i) approving or adopting, or recommending to the stockholders, any
action or matter expressly required by the General Corporation Law of Delaware
(the "GCLD") to be submitted to stockholders for approval or (ii) adopting,
amending, or repealing any bylaw of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member of the committee. In the absence or
disqualification of a member of a committee, the member or members present at
any meeting of such committee and not disqualified from voting, whether or not
such member of members constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in place of such absent
or disqualified director.
4.12 Committee Procedure, Limitations of Committee Powers. (a)
Except as otherwise provided by these Bylaws, each committee shall adopt its own
rules governing the time, place and method of holding its meetings and the
conduct of its proceedings and shall meet as provided by such rules or by
resolution of the Board of Directors. Unless otherwise provided by these Bylaws
or any such rules or resolutions, notice of the time and place of each meeting
of a committee shall be given to each member of such committee as provided in
Section 4.6 of these Bylaws with respect to notices of special meetings of the
Board of Directors.
(b) Each committee shall keep regular minutes of its
proceedings and report the same to the Board of Directors when required.
(c) Any member of any committee may be removed from
such committee either with or without cause, at any time, by the Board of
Directors at any meeting thereof. Any vacancy in any committee shall be filled
by the Board of Directors in the manner prescribed by the Certificate of
Incorporation or these Bylaws for the original appointment of the members of
such committee.
5. OFFICERS.
5.1 Number. (a) The officers of the Corporation shall include
a Chief Executive Officer, a President, one or more Vice Presidents (including
one or more Executive Vice Presidents and one or more Senior Vice Presidents if
deemed appropriate by the Board of Directors), a Chief Financial Officer, a
Secretary, a Treasurer, and a Controller. The Board of Directors shall also
elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except
for the Chairman of the Board, the Vice Chairman of the Board, and the Chief
Executive Officer, none of the officers of the Corporation needs to be a
director of the Corporation. Any two or more offices may be held by the same
person to the extent permitted by the GCLD.
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(b) The Chief Executive Officer shall have the power
to appoint one or more employees of the Corporation as divisional or
departmental vice presidents and fix the duties of such appointees. However, no
such divisional or departmental vice president shall be considered as an officer
of the Corporation.
5.2 Election of Officers, Qualification and Term. The Chief
Executive Officer, the President, any Executive Vice President, any Senior Vice
President, the Chief Financial Officer, the Secretary and the Treasurer of the
Corporation shall be elected from time to time by the Board of Directors and,
except as may otherwise be expressly provided in a contract of employment duly
authorized by the Board of Directors, shall hold office at the pleasure of the
Board of Directors. The Board of Directors and the Chief Executive Officer also
may elect such other officers as the Board of Directors or the Chief Executive
Officer may from time to time deem appropriate or necessary.
5.3 Removal. Any officer elected by the Board of Directors may
be removed, either with or without cause, by the Board of Directors at any
meeting thereof, or to the extent delegated to the Chairman of the Board or the
Chief Executive Officer, by the Chairman of the Board or the Chief Executive
Officer.
5.4 Resignations. Any officer of the Corporation may resign at
any time by giving written notice to the Board of Directors or to the Chairman
of the Board or to the Chief Executive Officer. Such resignation shall take
effect at the date of the receipt of such notice or at any later time specified
therein and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
5.5 Compensation. The compensation of all officers of the
Corporation shall be fixed by or in the manner provided by the Board of
Directors from time to time, and no officer shall be prevented from receiving
such compensation by reason of the fact that he or she is also a Director of the
Corporation.
5.6 The Chairman of the Board. The Chairman of the Board shall
have the powers and duties customarily and usually associated with the office of
the Chairman of the Board and shall have such other powers and perform such
other duties as may be delegated to him or her by the Board of Directors. The
Chairman of the Board shall preside at meetings of the stockholders and of the
Board of Directors.
5.7 Vice Chairman of the Board. The Vice Chairman of the
Board, if any, shall have the powers and duties customarily and usually
associated with the office of the Vice Chairman of the Board and shall have such
other powers and perform such other duties as may be delegated to him or her by
the Board of Directors.
5.8 Chief Executive Officer. The Chief Executive Officer shall
have, subject to the supervision, direction and control of the Board of
Directors, the general powers and duties of supervision, direction and
management of the affairs and business of the Corporation usually vested in the
chief executive officer of a corporation, including, without limitation, all
powers necessary to direct and control the organizational and reporting
relationships within the Corporation. In addition, the Chief Executive Officer
shall have such other powers and perform such other duties as may be delegated
to him or her by the Board of Directors. If at any time the office of the
Chairman of the Board and the Vice Chairman of the Board shall not be filled, or
in the event of the temporary absence or disability of the Chairman of the Board
and the Vice Chairman of the Board, the Chief Executive Officer shall have the
powers and duties of the Chairman of the Board.
5.9 The President. The President shall serve as chief
operating officer, shall have the powers and duties customarily and usually
associated with the office of the President and shall have such other powers and
perform such other duties as may be delegated to him or her from time to time by
the Board of Directors or the Chief Executive Officer.
5.10 The Vice Presidents. Each Vice President shall have such
powers and duties customarily and usually associated with the office of Vice
President and shall have such other powers and perform
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such other duties as may from time to time be assigned to him or her by the
Board of Directors, the Chief Executive Officer, or the President.
5.11 The Chief Financial Officer. The Chief Financial Officer
shall be responsible for the financial affairs of the Corporation, including
overseeing the duties performed by the Treasurer of the Corporation. In
addition, the Chief Financial Officer shall have such powers and duties
customarily and usually associated with the office of the Chief Financial
Officer and shall have such other powers and perform such other duties as may be
delegated to him or her from time to time by the Board of Directors or the Chief
Executive Officer.
5.12 The Secretary and the Assistant Secretary. (a) The
Secretary shall attend meetings of the Board of Directors and meetings of the
stockholders and record all votes and minutes of all such proceedings in a book
kept for such purpose. In addition, the Secretary shall have such powers and
duties customarily and usually associated with the office of Secretary and shall
have such other powers and perform such other duties as may be delegated to him
or her by the Board of Directors, the Chief Executive Officer, or the President.
(b) Each Assistant Secretary shall have such powers
and perform such duties customarily and usually associated with the office of
Assistant Secretary and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Secretary. In case
of the absence or disability of the Secretary, the Assistant Secretary
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Secretary) shall perform the duties and exercise the powers
of the Secretary.
5.13 The Treasurer and the Assistant Treasurer. (a) The
Treasurer shall have custody of the Corporation's funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit or cause to be deposited moneys or other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The Treasurer shall
also maintain adequate records of all assets, liabilities, and transactions of
the Corporation and shall see that adequate audits thereof are currently and
regularly made. In addition, the Treasurer shall have such powers and duties
customarily and usually associated with the office of Treasurer and shall have
such other powers and perform such other duties as may be delegated to him or
her from time to time by the Board of Directors, the Chief Executive Officer,
the President or the Chief Financial Officer.
(b) Each Assistant Treasurer shall have such powers
and perform such duties customarily and usually associated with the office of
Assistant Treasurer and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Treasurer. In case
of the absence or disability of the Treasurer, the Assistant Treasurer
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Treasurer) shall perform the duties and exercise the powers
of the Treasurer.
5.14 Controller. The Controller shall be responsible for
maintaining the accounting records and statements, and shall properly account
for all monies and obligations due the Corporation and all properties, assets,
and liabilities of the Corporation. The Controller shall render to the Chairman
of the Board, the President or the Chief Financial Officer such periodic reports
covering the results of operations of the Corporation as may be required by
either of them or by law. In addition, the Controller shall have such powers and
duties customarily and usually associated with the office of Controller and
shall have such other powers and perform such other duties as may be delegated
to him or her from time to time by the Board of Directors, the Chief Executive
Officer, the President or the Chief Financial Officer.
6. STOCK
6.1 Certificates. Certificates for shares of stock of the
Corporation shall be issued under the seal of the Corporation, or a facsimile
thereof, and shall be numbered and shall be entered in the books of the
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Corporation as they are issued. Each certificate shall bear a serial number,
shall exhibit the holder's name and the number of shares evidenced thereby, and
shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the
Chief Executive Officer or the President or any Vice President, and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer.
Any or all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if such person or entity
were such officer, transfer agent, or registrar at the date of issue.
6.2 Transfers. Transfers of stock of the Corporation shall be
made on the books of the Corporation only upon surrender to the Corporation of a
certificate (if any) for the shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, provided such
succession, assignment, or transfer is not prohibited by the Certificate of
Incorporation, these Bylaws, applicable law or contract. Thereupon, the
Corporation shall issue a new certificate (if requested) to the person entitled
thereto, cancel the old certificate (if any), and record the transaction upon
its books.
6.3 Lost, Stolen, or Destroyed Certificates. Any person
claiming a certificate of stock to be lost, stolen, or destroyed shall make an
affidavit or an affirmation of that fact, and shall give the Corporation a bond
of indemnity in satisfactory form and with one or more satisfactory sureties,
whereupon a new certificate (if requested) may be issued of the same tenor and
for the same number of shares as the one alleged to be lost, stolen, or
destroyed.
6.4 Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares as the person entitled to exercise the rights of a stockholder
and shall not be bound to recognize any equitable or other claim to or interest
in any such shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise expressly provided by the
GCLD.
6.5 Additional Powers of the Board. (a) In addition to those
powers set forth in Section 4.1, the Board of Directors shall have power and
authority to make all such rules and regulations as it shall deem expedient
concerning the issue, transfer, and registration of certificates for shares of
stock of the Corporation, including the use of uncertificated shares of stock
subject to the provisions of the GCLD.
(b) The Board of Directors may appoint and remove
transfer agents and registrars of transfers, and may require all stock
certificates to bear the signature of any such transfer agent and/or any such
registrar of transfers.
7. INDEMNIFICATION
7.1 Each person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or the person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation, as a
director, officer, employee, or agent of another corporation or of a
partnership, joint venture, trust, or other enterprise, including service with
respect to employee benefit plans, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the GCLD, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expenses, liability, and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of his or her heirs, executors, and administrators; provided,
however, that, except as provided in this Article 7, the Corporation shall
indemnify any
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such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if authorized by the Board of Directors
of the Corporation. Any indemnification under this Article 7 (unless ordered by
a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee, or agent is proper in the circumstances because he or she has met the
applicable standard set forth in the GCLD. Such a determination shall be made
(a) by a majority vote of the directors who are not parties to such action, suit
or proceeding, even though less than a quorum; (b) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum; (c) by independent legal counsel (compensated by the Corporation) in a
written opinion; (d) by the stockholders; or (e) in any other manner permitted
by the GCLD. In addition to the right to indemnification conferred in this
Article 7, each of the above persons shall have the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that, if the GCLD requires, the
payment of such expenses incurred by a present director or officer in his or her
capacity as a director or officer of the corporation (and not in any other
capacity in which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such present
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Article 7 or otherwise. The Corporation may, by any manner permitted by the
GCLD, provide indemnification and advancement of expenses to employees and
agents of the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers. The right to indemnification and to
an advancement of expenses conferred in this Article 7 shall be a contract
right.
7.2 If a claim under Section 7.1 of this Article 7 is not paid
in full by the Corporation within 30 days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim (including attorneys' fees). It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the GCLD for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, a committee thereof, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the GCLD, nor an actual determination by the Corporation (including
its Board of Directors, a committee thereof, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct. In any suit brought by the claimant
to enforce a right to indemnification or to an advancement of expenses
hereunder, or brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the claimant
is not entitled to be indemnified, or to such advancement of expenses, under
this Article 7 or otherwise shall be on the Corporation.
7.3 The rights to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Article 7, shall not be exclusive of any other right that any person may
have or hereafter acquire under any statute, provision of the certificate of
incorporation of the Corporation, this bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
7.4 The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee, or agent of the Corporation
or another corporation, partnership, joint venture, trust, or other enterprise
against any such expense, liability, or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability,
or loss under the GCLD.
7.5 The Corporation may enter into an indemnity agreement with
any director, officer, employee, or agent of the Corporation, or of another
corporation, partnership, joint venture, trust, or other
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enterprise, upon terms and conditions that the Board of Directors deems
appropriate, as long as the provisions of the agreement are not impermissible
under applicable law.
7.6 Any amendment or repeal of this Article 7 shall not be
retroactive in effect.
7.7 In case any provision in this Article 7 shall be
determined at any time to be unenforceable in any respect, the other provisions
shall not in any way be affected or impaired thereby, and the affected provision
shall be given the fullest possible enforcement in the circumstances, it being
the intention of the Corporation to afford indemnification and advancement of
expenses to the persons indemnified hereby to the fullest extent permitted by
law.
7.8 The Corporation may, by action of the Board of Directors,
authorize one or more officers to grant rights to indemnification and
advancement of expenses to former directors and officers or to other employees
or agents of the Corporation on such terms and conditions as such officer or
officers deem appropriate under the circumstances.
8. MISCELLANEOUS
8.1 Place and Inspection of Books. (a) The books of the
Corporation other than such books as are required by law to be kept within the
State of Delaware shall be kept in such place or places either within or without
the State of Delaware as the Board of Directors may from time to time determine.
(b) At least ten days before each meeting of
stockholders, the officer in charge of the stock ledger of the Corporation shall
prepare a complete list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
(c) The Board of Directors shall determine from time
to time whether and, if allowed, when and under what conditions and regulations
the accounts and books of the Corporation (except such as may be by law
specifically open to inspection or as otherwise provided by these Bylaws) or any
of them shall be open to the inspection of the stockholders and the
stockholders' rights in respect thereof.
8.2 Voting Shares in Other Corporations. The Chief Executive
Officer, the President, the Chief Financial Officer or any other officer of the
Corporation designated by the Board of Directors may vote any and all shares
held by the Corporation in any other corporation.
8.3 Fiscal Year. The fiscal year of the Corporation shall be
such fiscal year as the Board of Directors from time to time by resolution shall
determine.
8.4 Gender/Number. As used in these Bylaws, the masculine,
feminine, or neuter gender, and the singular or plural number, shall each
include the others whenever the context so indicates.
8.5 Paragraph Titles. The titles of the paragraphs have been
inserted as a matter of reference only and shall not control or affect the
meaning or construction of any of the terms and provisions hereof.
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8.6 Amendment. These Bylaws may be altered, amended, or
repealed by (a) the affirmative vote of 80% or more of the aggregate number of
votes that the holders of the then outstanding shares of common stock and
preferred stock are entitled to cast on the amendment, or (b) by resolution
adopted by the affirmative vote of not less than a majority of the Directors in
office, at any annual or regular meeting of the Board of Directors or at any
special meeting of the Board of Directors if notice of the proposed alteration,
amendment, or repeal be contained in written notice of such special meeting.
Notwithstanding the foregoing, the amendment of any provision of these Bylaws
that requires an affirmative vote in excess of a majority of the Directors in
office shall require the affirmative vote of at least the number of directors
the affirmative vote of whom is required by such provision.
8.7 Certificate of Incorporation. Notwithstanding anything to
the contrary contained herein, if any provision contained in these Bylaws is
inconsistent with or conflicts with a provision of the Certificate of
Incorporation, such provision of these Bylaws shall be superseded by the
inconsistent provision in the Certificate of Incorporation to the extent
necessary to give effect to such provision in the Certificate of Incorporation.
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Vineland Limited, Inc.
B.36.2
Amended and Restated Bylaws
Adopted December 31, 1999
<PAGE> 2
AMENDED AND RESTATED
B Y L A W S
OF
VINELAND LIMITED, INC.
1. OFFICES.
1.1 Offices. In addition to its registered office in the State
of Delaware, the Corporation shall have a corporate office in Wilmington,
Delaware, and such other offices, either within or without the State of
Delaware, at such locations as the Board of Directors may from time to time
determine or the business of the Corporation may require.
2. SEAL.
2.1 Seal. The Corporation shall have a seal, which shall have
inscribed thereon its name and year of incorporation and the words, "Corporate
Seal Delaware."
3. MEETINGS OF STOCKHOLDERS.
3.1 Annual Meetings. The annual meeting of stockholders of the
Corporation shall be held on such date, at such time and at such place within or
without the State of Delaware as shall be determined by the Board of Directors
from time to time.
3.2 Special Meetings. Special meetings of the stockholders of
the Corporation shall be held on such date, at such time and at such place
within or without the State of Delaware as may be designated by the Chairman of
the Board or by the Board of Directors.
3.3 Notice of Meetings. (a) Notices of meetings of
stockholders shall be in writing and shall state the place, date, and hour of
the meeting, and, in the case of a special meeting, the purpose or purposes for
which a meeting is called. No business other than that specified in the notice
thereof shall be transacted at any special meeting.
(b) Such notice shall either be delivered personally,
mailed, postage prepaid, or delivered by any other lawful means to each
stockholder entitled to vote at such meeting not less than 10 nor more than 60
days before the date of the meeting. If mailed, the notice shall be directed to
the stockholder at his or her address as it appears on the records of the
Corporation. Delivery of any such notice to any officer of a corporation or
association or to any member of a partnership shall constitute delivery of such
notice to such corporation, association, or partnership.
(c) Notice of any meeting of stockholders need not be
given to any stockholder if waived by such stockholder in writing, whether
before or after such meeting is held, or if such stockholder shall sign the
minutes or attend the meeting, except that if such stockholder attends a meeting
for the express purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened, such stockholder shall not be deemed to have waived notice of such
meeting.
3.4 Adjourned Meetings. When a meeting is adjourned to another
time or place, unless otherwise provided by these Bylaws, notice need not be
given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. At the adjourned meeting the
stockholders may transact any business that might have been transacted at the
original meeting. If an adjournment
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is for more than 30 days, or if after an adjournment, a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder entitled to vote at the meeting.
3.5 Quorum and Adjournment. Except as otherwise provided by
law, by the Certificate of Incorporation of the Corporation, or by these Bylaws,
the presence, in person or by proxy, of the holders of a majority of the
aggregate voting power of the stock issued and outstanding, entitled to vote
thereat, shall constitute a quorum for the transaction of business at all
meetings of stockholders. If such majority shall not be present or represented
at any meeting of stockholders, the stockholders present, although less than a
quorum, shall have the power to adjourn the meeting.
3.6 Vote Required. Except as otherwise provided by law or by
the Certificate of Incorporation:
(a) Directors shall be elected by a plurality of the
votes present in person or represented by proxy at a meeting of stockholders and
entitled to vote in the election of directors, and
(b) whenever any corporate action other than the
election of Directors is to be taken, it shall be authorized by a majority in
voting power of the shares present in person or by proxy at a meeting of
stockholders and entitled to vote on the subject matter.
3.7 Manner of Voting. At each meeting of stockholders, each
stockholder having the right to vote shall be entitled to vote in person or by
proxy. Proxies need not be filed with the Secretary of the Corporation until the
meeting is called to order, but shall be filed before being voted. Each
stockholder shall be entitled to vote each share of stock having voting power
registered in his or her name on the books of the Corporation on the record date
fixed for determination of stockholders entitled to vote at such meeting.
3.8 Stockholder Action Without a Meeting. Except as otherwise
provided by law or by the Certificate of Incorporation, any action required to
be taken at any meeting of stockholders of the corporation, or any action that
may be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice, and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing and who,
if the action had been taken at a meeting, would have been entitled to notice of
the meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of the holders to take the action were
delivered to the Corporation.
3.9 Proxies. (a) At any meeting of stockholders, any
stockholder may be represented and vote by proxy or proxies. In the event that
any form of proxy shall designate two or more persons to act as proxies, a
majority of such persons present at the meeting or, if only one shall be
present, then that one shall have and may exercise all of the powers conferred
by the form of proxy upon all of the persons so designated unless the form of
proxy shall otherwise provide.
(b) The Board of Directors may, in advance of any
annual or special meeting of the stockholders, prescribe additional regulations
concerning the validation of the same, which are intended to be voted at any
such meeting.
3.10 Presiding Officer and Secretary. The Chairman of the
Board shall act as chairman of all meetings of the stockholders. In the absence
of the Chairman of the Board, the Vice Chairman of the Board or, in his or her
absence, any Director designated by the Chairman of the Board or the Board of
Directors shall act as chairman of the meeting.
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The Secretary of the Corporation shall act as secretary of all
meetings of the stockholders, but, in the absence of the Secretary, the
Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the stockholders, but in the
absence of a designated Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
3.11 Procedure. At each meeting of stockholders, the chairman
of the meeting shall fix and announce the date and time of the opening and the
closing of the polls for each matter upon which the stockholders will vote at
the meeting and shall determine the order of business and all other matters of
procedure. Except to the extent inconsistent with any such rules and regulations
as adopted by the Board of Directors, the chairman of the meeting may establish
rules, which need not be in writing, to maintain order and safety and for the
conduct of the meeting. Without limiting the foregoing, he or she may:
(a) restrict attendance at any time to bona fide
stockholders of record and their proxies and other persons in attendance at the
invitation of the chairman;
(b) restrict dissemination of solicitation materials
and use of audio or visual recording devices at the meeting;
(c) adjourn the meeting without a vote of the
stockholders, whether or not there is a quorum present; and
(d) make rules governing speeches and debate,
including time limits and access to microphones.
The chairman of the meeting shall be entitled to act in his or her absolute
discretion and his or her rulings shall not be subject to appeal.
4. DIRECTORS.
4.1 Powers and Number. The Board of Directors shall exercise
all of the powers of the Corporation except such as are by law, or by the
Certificate of Incorporation of this Corporation or by these Bylaws conferred
upon or reserved to the stockholders of any class or classes. The number of
directors that shall constitute the whole Board of Directors shall be no fewer
than three (3) and no greater than nine (9), the exact number of directors to be
determined from time to time by resolution adopted by the Board of Directors or
the stockholders, and until otherwise determined by the Board of Directors or
the stockholders, the number of directors that shall constitute the whole Board
of Directors shall be three (3).
4.2 Resignations. Any Director may resign at any time by
giving written notice to the Board of Directors or the Secretary. Such
resignation shall take effect at the date of receipt of such notice or at any
later time specified therein. Acceptance of such resignation shall not be
necessary to make it effective.
4.3 Presiding Officer and Secretary. The Chairman of the Board
shall act as chairman of all meetings of the Board of Directors. In the absence
of the Chairman of the Board, the Vice Chairman of the Board, or in his absence,
the Chief Executive Officer or other person designated by the Board of Directors
shall act as chairman of the meeting.
The Secretary of the Corporation shall act as
secretary of all meetings of the Board of Directors, but, in the absence of the
Secretary, the Assistant Secretary designated in accordance with Section 5.11(b)
of these Bylaws shall act as secretary of all meetings of the Board of
Directors, but in the absence of a designated Assistant Secretary, the chairman
of the meeting may appoint any person to act as secretary of the meeting.
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4.4 Annual Meetings. The Board of Directors shall meet each
year immediately following the annual meeting of stockholders, at the place
where such meeting of stockholders has been held, or at such other place as
shall be fixed by the person presiding over the meeting of the stockholders, for
the purpose of election of officers and consideration of such other business as
the Board of Directors considers relevant to the management of the Corporation.
In the event that in any year Directors are elected by written consent in lieu
of an annual meeting of stockholders, the Board of Directors shall meet in such
year as soon as practicable after receipt of such written consent by the
Corporation at such time and place as shall be fixed by the Chairman of the
Board, for the purpose of election of officers and consideration of such other
business as the Board of Directors considers relevant to the management of the
Corporation.
4.5 Regular Meetings. Regular meetings of the Board of
Directors shall be held on such dates and at such times and places, within or
without the state of Delaware, as shall from time to time be determined by the
Board of Directors. In the absence of any such determination, such meetings
shall be held at such times and places, within or without the State of Delaware,
as shall be designated by the Chairman of the Board on not less than twelve
hours notice to each Director, given verbally, in writing or electronically,
whether personally, by telephone (including by message or recording device), by
facsimile transmission, by telegram, by telex or by electronic mail or by other
electronic means, or on not less than three (3) calendar days' notice to each
Director given by mail. Notice given by any of the foregoing means shall be
sufficient to constitute notice of a meeting without the necessity of further
notice.
4.6 Special Meetings. Special meetings of the Board of
Directors shall be held at the call of the Chairman of the Board at such times
and places, within or without the State of Delaware, as he or she shall
designate, on not less than twelve hours notice to each Director, given
verbally, in writing or electronically, whether personally, by telephone
(including by message or recording device), by facsimile transmission, by
telegram, by telex, by electronic mail or by other electronic means or on not
less than three (3) calendar days' notice to each Director given by mail. Notice
given by any of the foregoing means shall be sufficient to constitute notice of
a meeting without the necessity of further notice. Special meetings shall be
called by the Secretary on like notice at the written request of a majority of
the Directors then in office.
4.7 Quorum and Powers of a Majority. At all meetings of the
Board of Directors and of each committee thereof, a majority of the members
shall be necessary and sufficient to constitute a quorum for the transaction of
business, and the act of a majority of the members present at any meeting at
which a quorum is present shall be the act of the Board of Directors or such
committee, unless by express provision of law, of the Certificate of
Incorporation, or of these Bylaws, a different vote is required, in which case
such express provision shall govern and control. In the absence of a quorum, a
majority of the members present at any meeting may, without notice other than
announcement at the meeting, adjourn such meeting from time to time until a
quorum is present.
4.8 Waiver of Notice. Notice of any meeting of the Board of
Directors, or any committee thereof, need not be given to any member if waived
by him or her in writing, whether before or after such meeting is held, or if he
or she shall sign the minutes or attend the meeting, except that if such
Director attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened, then such Director shall not be deemed to have
waived notice of such meeting.
4.9 Manner of Acting. (a) Members of the Board of Directors,
or any committee thereof, may participate in any meeting of the Board of
Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating therein can
hear each other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
(b) Any action required or permitted to be taken at
any meeting of the Board of Directors or any committee thereof may be taken
without a meeting if all members of the Board of Directors or
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such committee, as the case may be, consent thereto in writing, and the writings
are filed with the minutes of proceedings of the Board of Directors or such
committee.
4.10 Compensation. (a) The Board of Directors, by a resolution
or resolutions, may fix, and from time to time change, the compensation of
Directors.
(b) Each Director shall be entitled to reimbursement
from the Corporation for his or her reasonable expenses incurred with respect to
duties as a member of the Board of Directors or any committee thereof.
(c) Nothing contained in these Bylaws shall be
construed to preclude any Director from serving the Corporation in any other
capacity and from receiving compensation from the Corporation for service
rendered to it in such other capacity.
4.11 Committees. The Board of Directors (or any committee
thereof having the power and authority to do so) may designate one or more
committees, each committee to consist of one or more Directors, which to the
extent provided in said resolution or resolutions shall have and may exercise
the powers and authority of the Board of Directors in the management of the
business and affairs of the corporation; provided, however, that no such
committee shall have the power or authority in reference to the following
matters: (i) approving or adopting, or recommending to the stockholders, any
action or matter expressly required by the General Corporation Law of Delaware
(the "GCLD") to be submitted to stockholders for approval or (ii) adopting,
amending, or repealing any bylaw of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member of the committee. In the absence or
disqualification of a member of a committee, the member or members present at
any meeting of such committee and not disqualified from voting, whether or not
such member of members constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in place of such absent
or disqualified director.
4.12 Committee Procedure, Limitations of Committee Powers. (a)
Except as otherwise provided by these Bylaws, each committee shall adopt its own
rules governing the time, place and method of holding its meetings and the
conduct of its proceedings and shall meet as provided by such rules or by
resolution of the Board of Directors. Unless otherwise provided by these Bylaws
or any such rules or resolutions, notice of the time and place of each meeting
of a committee shall be given to each member of such committee as provided in
Section 4.6 of these Bylaws with respect to notices of special meetings of the
Board of Directors.
(b) Each committee shall keep regular minutes of its
proceedings and report the same to the Board of Directors when required.
(c) Any member of any committee may be removed from
such committee either with or without cause, at any time, by the Board of
Directors at any meeting thereof. Any vacancy in any committee shall be filled
by the Board of Directors in the manner prescribed by the Certificate of
Incorporation or these Bylaws for the original appointment of the members of
such committee.
5. OFFICERS.
5.1 Number. (a) The officers of the Corporation shall include
a Chief Executive Officer, a President, one or more Vice Presidents (including
one or more Executive Vice Presidents and one or more Senior Vice Presidents if
deemed appropriate by the Board of Directors), a Chief Financial Officer, a
Secretary, a Treasurer, and a Controller. The Board of Directors shall also
elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except
for the Chairman of the Board, the Vice Chairman of the Board, and the Chief
Executive Officer, none of the officers of the Corporation needs to be a
director of the Corporation. Any two or more offices may be held by the same
person to the extent permitted by the GCLD.
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(b) The Chief Executive Officer shall have the power
to appoint one or more employees of the Corporation as divisional or
departmental vice presidents and fix the duties of such appointees. However, no
such divisional or departmental vice president shall be considered as an officer
of the Corporation.
5.2 Election of Officers, Qualification and Term. The Chief
Executive Officer, the President, any Executive Vice President, any Senior Vice
President, the Chief Financial Officer, the Secretary and the Treasurer of the
Corporation shall be elected from time to time by the Board of Directors and,
except as may otherwise be expressly provided in a contract of employment duly
authorized by the Board of Directors, shall hold office at the pleasure of the
Board of Directors. The Board of Directors and the Chief Executive Officer also
may elect such other officers as the Board of Directors or the Chief Executive
Officer may from time to time deem appropriate or necessary.
5.3 Removal. Any officer elected by the Board of Directors may
be removed, either with or without cause, by the Board of Directors at any
meeting thereof, or to the extent delegated to the Chairman of the Board or the
Chief Executive Officer, by the Chairman of the Board or the Chief Executive
Officer.
5.4 Resignations. Any officer of the Corporation may resign at
any time by giving written notice to the Board of Directors or to the Chairman
of the Board or to the Chief Executive Officer. Such resignation shall take
effect at the date of the receipt of such notice or at any later time specified
therein and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
5.5 Compensation. The compensation of all officers of the
Corporation shall be fixed by or in the manner provided by the Board of
Directors from time to time, and no officer shall be prevented from receiving
such compensation by reason of the fact that he or she is also a Director of the
Corporation.
5.6 The Chairman of the Board. The Chairman of the Board shall
have the powers and duties customarily and usually associated with the office of
the Chairman of the Board and shall have such other powers and perform such
other duties as may be delegated to him or her by the Board of Directors. The
Chairman of the Board shall preside at meetings of the stockholders and of the
Board of Directors.
5.7 Vice Chairman of the Board. The Vice Chairman of the
Board, if any, shall have the powers and duties customarily and usually
associated with the office of the Vice Chairman of the Board and shall have such
other powers and perform such other duties as may be delegated to him or her by
the Board of Directors.
5.8 Chief Executive Officer. The Chief Executive Officer shall
have, subject to the supervision, direction and control of the Board of
Directors, the general powers and duties of supervision, direction and
management of the affairs and business of the Corporation usually vested in the
chief executive officer of a corporation, including, without limitation, all
powers necessary to direct and control the organizational and reporting
relationships within the Corporation. In addition, the Chief Executive Officer
shall have such other powers and perform such other duties as may be delegated
to him or her by the Board of Directors. If at any time the office of the
Chairman of the Board and the Vice Chairman of the Board shall not be filled, or
in the event of the temporary absence or disability of the Chairman of the Board
and the Vice Chairman of the Board, the Chief Executive Officer shall have the
powers and duties of the Chairman of the Board.
5.9 The President. The President shall serve as chief
operating officer, shall have the powers and duties customarily and usually
associated with the office of the President and shall have such other powers and
perform such other duties as may be delegated to him or her from time to time by
the Board of Directors or the Chief Executive Officer.
5.10 The Vice Presidents. Each Vice President shall have such
powers and duties customarily and usually associated with the office of Vice
President and shall have such other powers and perform
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such other duties as may from time to time be assigned to him or her by the
Board of Directors, the Chief Executive Officer, or the President.
5.11 The Chief Financial Officer. The Chief Financial Officer
shall be responsible for the financial affairs of the Corporation, including
overseeing the duties performed by the Treasurer of the Corporation. In
addition, the Chief Financial Officer shall have such powers and duties
customarily and usually associated with the office of the Chief Financial
Officer and shall have such other powers and perform such other duties as may be
delegated to him or her from time to time by the Board of Directors or the Chief
Executive Officer.
5.12 The Secretary and the Assistant Secretary. (a) The
Secretary shall attend meetings of the Board of Directors and meetings of the
stockholders and record all votes and minutes of all such proceedings in a book
kept for such purpose. In addition, the Secretary shall have such powers and
duties customarily and usually associated with the office of Secretary and shall
have such other powers and perform such other duties as may be delegated to him
or her by the Board of Directors, the Chief Executive Officer, or the President.
(b) Each Assistant Secretary shall have such powers
and perform such duties customarily and usually associated with the office of
Assistant Secretary and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Secretary. In case
of the absence or disability of the Secretary, the Assistant Secretary
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Secretary) shall perform the duties and exercise the powers
of the Secretary.
5.13 The Treasurer and the Assistant Treasurer. (a) The
Treasurer shall have custody of the Corporation's funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit or cause to be deposited moneys or other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The Treasurer shall
also maintain adequate records of all assets, liabilities, and transactions of
the Corporation and shall see that adequate audits thereof are currently and
regularly made. In addition, the Treasurer shall have such powers and duties
customarily and usually associated with the office of Treasurer and shall have
such other powers and perform such other duties as may be delegated to him or
her from time to time by the Board of Directors, the Chief Executive Officer,
the President or the Chief Financial Officer.
(b) Each Assistant Treasurer shall have such powers
and perform such duties customarily and usually associated with the office of
Assistant Treasurer and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Treasurer. In case
of the absence or disability of the Treasurer, the Assistant Treasurer
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Treasurer) shall perform the duties and exercise the powers
of the Treasurer.
5.14 Controller. The Controller shall be responsible for
maintaining the accounting records and statements, and shall properly account
for all monies and obligations due the Corporation and all properties, assets,
and liabilities of the Corporation. The Controller shall render to the Chairman
of the Board, the President or the Chief Financial Officer such periodic reports
covering the results of operations of the Corporation as may be required by
either of them or by law. In addition, the Controller shall have such powers and
duties customarily and usually associated with the office of Controller and
shall have such other powers and perform such other duties as may be delegated
to him or her from time to time by the Board of Directors, the Chief Executive
Officer, the President or the Chief Financial Officer.
6. STOCK
6.1 Certificates. Certificates for shares of stock of the
Corporation shall be issued under the seal of the Corporation, or a facsimile
thereof, and shall be numbered and shall be entered in the books of the
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Corporation as they are issued. Each certificate shall bear a serial number,
shall exhibit the holder's name and the number of shares evidenced thereby, and
shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the
Chief Executive Officer or the President or any Vice President, and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer.
Any or all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if such person or entity
were such officer, transfer agent, or registrar at the date of issue.
6.2 Transfers. Transfers of stock of the Corporation shall be
made on the books of the Corporation only upon surrender to the Corporation of a
certificate (if any) for the shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, provided such
succession, assignment, or transfer is not prohibited by the Certificate of
Incorporation, these Bylaws, applicable law or contract. Thereupon, the
Corporation shall issue a new certificate (if requested) to the person entitled
thereto, cancel the old certificate (if any), and record the transaction upon
its books.
6.3 Lost, Stolen, or Destroyed Certificates. Any person
claiming a certificate of stock to be lost, stolen, or destroyed shall make an
affidavit or an affirmation of that fact, and shall give the Corporation a bond
of indemnity in satisfactory form and with one or more satisfactory sureties,
whereupon a new certificate (if requested) may be issued of the same tenor and
for the same number of shares as the one alleged to be lost, stolen, or
destroyed.
6.4 Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares as the person entitled to exercise the rights of a stockholder
and shall not be bound to recognize any equitable or other claim to or interest
in any such shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise expressly provided by the
GCLD.
6.5 Additional Powers of the Board. (a) In addition to those
powers set forth in Section 4.1, the Board of Directors shall have power and
authority to make all such rules and regulations as it shall deem expedient
concerning the issue, transfer, and registration of certificates for shares of
stock of the Corporation, including the use of uncertificated shares of stock
subject to the provisions of the GCLD.
(b) The Board of Directors may appoint and remove
transfer agents and registrars of transfers, and may require all stock
certificates to bear the signature of any such transfer agent and/or any such
registrar of transfers.
7. INDEMNIFICATION
7.1 Each person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or the person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation, as a
director, officer, employee, or agent of another corporation or of a
partnership, joint venture, trust, or other enterprise, including service with
respect to employee benefit plans, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the GCLD, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expenses, liability, and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of his or her heirs, executors, and administrators; provided,
however, that, except as provided in this Article 7, the Corporation shall
indemnify any
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such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if authorized by the Board of Directors
of the Corporation. Any indemnification under this Article 7 (unless ordered by
a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee, or agent is proper in the circumstances because he or she has met the
applicable standard set forth in the GCLD. Such a determination shall be made
(a) by a majority vote of the directors who are not parties to such action, suit
or proceeding, even though less than a quorum; (b) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum; (c) by independent legal counsel (compensated by the Corporation) in a
written opinion; (d) by the stockholders; or (e) in any other manner permitted
by the GCLD. In addition to the right to indemnification conferred in this
Article 7, each of the above persons shall have the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that, if the GCLD requires, the
payment of such expenses incurred by a present director or officer in his or her
capacity as a director or officer of the corporation (and not in any other
capacity in which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such present
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Article 7 or otherwise. The Corporation may, by any manner permitted by the
GCLD, provide indemnification and advancement of expenses to employees and
agents of the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers. The right to indemnification and to
an advancement of expenses conferred in this Article 7 shall be a contract
right.
7.2 If a claim under Section 7.1 of this Article 7 is not paid
in full by the Corporation within 30 days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim (including attorneys' fees). It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the GCLD for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, a committee thereof, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the GCLD, nor an actual determination by the Corporation (including
its Board of Directors, a committee thereof, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct. In any suit brought by the claimant
to enforce a right to indemnification or to an advancement of expenses
hereunder, or brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the claimant
is not entitled to be indemnified, or to such advancement of expenses, under
this Article 7 or otherwise shall be on the Corporation.
7.3 The rights to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Article 7, shall not be exclusive of any other right that any person may
have or hereafter acquire under any statute, provision of the certificate of
incorporation of the Corporation, this bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
7.4 The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee, or agent of the Corporation
or another corporation, partnership, joint venture, trust, or other enterprise
against any such expense, liability, or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability,
or loss under the GCLD.
7.5 The Corporation may enter into an indemnity agreement with
any director, officer, employee, or agent of the Corporation, or of another
corporation, partnership, joint venture, trust, or other
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enterprise, upon terms and conditions that the Board of Directors deems
appropriate, as long as the provisions of the agreement are not impermissible
under applicable law.
7.6 Any amendment or repeal of this Article 7 shall not be
retroactive in effect.
7.7 In case any provision in this Article 7 shall be
determined at any time to be unenforceable in any respect, the other provisions
shall not in any way be affected or impaired thereby, and the affected provision
shall be given the fullest possible enforcement in the circumstances, it being
the intention of the Corporation to afford indemnification and advancement of
expenses to the persons indemnified hereby to the fullest extent permitted by
law.
7.8 The Corporation may, by action of the Board of Directors,
authorize one or more officers to grant rights to indemnification and
advancement of expenses to former directors and officers or to other employees
or agents of the Corporation on such terms and conditions as such officer or
officers deem appropriate under the circumstances.
8. MISCELLANEOUS
8.1 Place and Inspection of Books. (a) The books of the
Corporation other than such books as are required by law to be kept within the
State of Delaware shall be kept in such place or places either within or without
the State of Delaware as the Board of Directors may from time to time determine.
(b) At least ten days before each meeting of
stockholders, the officer in charge of the stock ledger of the Corporation shall
prepare a complete list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
(c) The Board of Directors shall determine from time
to time whether and, if allowed, when and under what conditions and regulations
the accounts and books of the Corporation (except such as may be by law
specifically open to inspection or as otherwise provided by these Bylaws) or any
of them shall be open to the inspection of the stockholders and the
stockholders' rights in respect thereof.
8.2 Voting Shares in Other Corporations. The Chief Executive
Officer, the President, the Chief Financial Officer or any other officer of the
Corporation designated by the Board of Directors may vote any and all shares
held by the Corporation in any other corporation.
8.3 Fiscal Year. The fiscal year of the Corporation shall be
such fiscal year as the Board of Directors from time to time by resolution shall
determine.
8.4 Gender/Number. As used in these Bylaws, the masculine,
feminine, or neuter gender, and the singular or plural number, shall each
include the others whenever the context so indicates.
8.5 Paragraph Titles. The titles of the paragraphs have been
inserted as a matter of reference only and shall not control or affect the
meaning or construction of any of the terms and provisions hereof.
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8.6 Amendment. These Bylaws may be altered, amended, or
repealed by (a) the affirmative vote of 80% or more of the aggregate number of
votes that the holders of the then outstanding shares of common stock and
preferred stock are entitled to cast on the amendment, or (b) by resolution
adopted by the affirmative vote of not less than a majority of the Directors in
office, at any annual or regular meeting of the Board of Directors or at any
special meeting of the Board of Directors if notice of the proposed alteration,
amendment, or repeal be contained in written notice of such special meeting.
Notwithstanding the foregoing, the amendment of any provision of these Bylaws
that requires an affirmative vote in excess of a majority of the Directors in
office shall require the affirmative vote of at least the number of directors
the affirmative vote of whom is required by such provision.
8.7 Certificate of Incorporation. Notwithstanding anything to
the contrary contained herein, if any provision contained in these Bylaws is
inconsistent with or conflicts with a provision of the Certificate of
Incorporation, such provision of these Bylaws shall be superseded by the
inconsistent provision in the Certificate of Incorporation to the extent
necessary to give effect to such provision in the Certificate of Incorporation.
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Pedrick Gen, Inc.
B.37.2
Amended and Restated Bylaws
Adopted December 31, 1999
<PAGE> 2
AMENDED AND RESTATED
B Y L A W S
OF
PEDRICK GEN., INC.
1. OFFICES.
1.1 Offices. In addition to its registered office in the State
of Delaware, the Corporation shall have a corporate office in Wilmington,
Delaware, and such other offices, either within or without the State of
Delaware, at such locations as the Board of Directors may from time to time
determine or the business of the Corporation may require.
2. SEAL.
2.1 Seal. The Corporation shall have a seal, which shall have
inscribed thereon its name and year of incorporation and the words, "Corporate
Seal New Jersey."
3. MEETINGS OF STOCKHOLDERS.
3.1 Annual Meetings. The annual meeting of stockholders of the
Corporation shall be held on such date, at such time and at such place within or
without the State of Delaware as shall be determined by the Board of Directors
from time to time.
3.2 Special Meetings. Special meetings of the stockholders of
the Corporation shall be held on such date, at such time and at such place
within or without the State of Delaware as may be designated by the Chairman of
the Board or by the Board of Directors.
3.3 Notice of Meetings. (a) Notices of meetings of
stockholders shall be in writing and shall state the place, date, and hour of
the meeting, and, in the case of a special meeting, the purpose or purposes for
which a meeting is called. No business other than that specified in the notice
thereof shall be transacted at any special meeting.
(b) Such notice shall either be delivered personally,
mailed, postage prepaid, or delivered by any other lawful means to each
stockholder entitled to vote at such meeting not less than 10 nor more than 60
days before the date of the meeting. If mailed, the notice shall be directed to
the stockholder at his or her address as it appears on the records of the
Corporation. Delivery of any such notice to any officer of a corporation or
association or to any member of a partnership shall constitute delivery of such
notice to such corporation, association, or partnership.
(c) Notice of any meeting of stockholders need not be
given to any stockholder if waived by such stockholder in writing, whether
before or after such meeting is held, or if such stockholder shall sign the
minutes or attend the meeting, except that if such stockholder attends a meeting
for the express purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened, such stockholder shall not be deemed to have waived notice of such
meeting.
3.4 Adjourned Meetings. When a meeting is adjourned to another
time or place, unless otherwise provided by these Bylaws, notice need not be
given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. At the adjourned meeting the
stockholders may transact any business that might have been transacted at the
original meeting. If an adjournment
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is for more than 30 days, or if after an adjournment, a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder entitled to vote at the meeting.
3.5 Quorum and Adjournment. Except as otherwise provided by
law, by the Certificate of Incorporation of the Corporation, or by these Bylaws,
the presence, in person or by proxy, of the holders of a majority of the
aggregate voting power of the stock issued and outstanding, entitled to vote
thereat, shall constitute a quorum for the transaction of business at all
meetings of stockholders. If such majority shall not be present or represented
at any meeting of stockholders, the stockholders present, although less than a
quorum, shall have the power to adjourn the meeting.
3.6 Vote Required. Except as otherwise provided by law or by
the Certificate of Incorporation:
(a) Directors shall be elected by a plurality of the
votes present in person or represented by proxy at a meeting of stockholders and
entitled to vote in the election of directors, and
(b) whenever any corporate action other than the
election of Directors is to be taken, it shall be authorized by a majority in
voting power of the shares present in person or by proxy at a meeting of
stockholders and entitled to vote on the subject matter.
3.7 Manner of Voting. At each meeting of stockholders, each
stockholder having the right to vote shall be entitled to vote in person or by
proxy. Proxies need not be filed with the Secretary of the Corporation until the
meeting is called to order, but shall be filed before being voted. Each
stockholder shall be entitled to vote each share of stock having voting power
registered in his or her name on the books of the Corporation on the record date
fixed for determination of stockholders entitled to vote at such meeting.
3.8 Stockholder Action Without a Meeting. Except as otherwise
provided by law or by the Certificate of Incorporation, any action required to
be taken at any meeting of stockholders of the corporation, or any action that
may be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice, and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing and who,
if the action had been taken at a meeting, would have been entitled to notice of
the meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of the holders to take the action were
delivered to the Corporation.
3.9 Proxies. (a) At any meeting of stockholders, any
stockholder may be represented and vote by proxy or proxies. In the event that
any form of proxy shall designate two or more persons to act as proxies, a
majority of such persons present at the meeting or, if only one shall be
present, then that one shall have and may exercise all of the powers conferred
by the form of proxy upon all of the persons so designated unless the form of
proxy shall otherwise provide.
(b) The Board of Directors may, in advance of any
annual or special meeting of the stockholders, prescribe additional regulations
concerning the validation of the same, which are intended to be voted at any
such meeting.
3.10 Presiding Officer and Secretary. The Chairman of the
Board shall act as chairman of all meetings of the stockholders. In the absence
of the Chairman of the Board, the Vice Chairman of the Board or, in his or her
absence, any Director designated by the Chairman of the Board or the Board of
Directors shall act as chairman of the meeting.
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The Secretary of the Corporation shall act as secretary of all
meetings of the stockholders, but, in the absence of the Secretary, the
Assistant Secretary designated in accordance with Section 5.11(b) of these
Bylaws shall act as secretary of all meetings of the stockholders, but in the
absence of a designated Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
3.11 Procedure. At each meeting of stockholders, the chairman
of the meeting shall fix and announce the date and time of the opening and the
closing of the polls for each matter upon which the stockholders will vote at
the meeting and shall determine the order of business and all other matters of
procedure. Except to the extent inconsistent with any such rules and regulations
as adopted by the Board of Directors, the chairman of the meeting may establish
rules, which need not be in writing, to maintain order and safety and for the
conduct of the meeting. Without limiting the foregoing, he or she may:
(a) restrict attendance at any time to bona fide
stockholders of record and their proxies and other persons in attendance at the
invitation of the chairman;
(b) restrict dissemination of solicitation materials
and use of audio or visual recording devices at the meeting;
(c) adjourn the meeting without a vote of the
stockholders, whether or not there is a quorum present; and
(d) make rules governing speeches and debate,
including time limits and access to microphones.
The chairman of the meeting shall be entitled to act in his or her absolute
discretion and his or her rulings shall not be subject to appeal.
4. DIRECTORS.
4.1 Powers and Number. The Board of Directors shall exercise
all of the powers of the Corporation except such as are by law, or by the
Certificate of Incorporation of this Corporation or by these Bylaws conferred
upon or reserved to the stockholders of any class or classes. The number of
directors that shall constitute the whole Board of Directors shall be no fewer
than three (3) and no greater than nine (9), the exact number of directors to be
determined from time to time by resolution adopted by the Board of Directors or
the stockholders, and until otherwise determined by the Board of Directors or
the stockholders, the number of directors that shall constitute the whole Board
of Directors shall be three (3).
4.2 Resignations. Any Director may resign at any time by
giving written notice to the Board of Directors or the Secretary. Such
resignation shall take effect at the date of receipt of such notice or at any
later time specified therein. Acceptance of such resignation shall not be
necessary to make it effective.
4.3 Presiding Officer and Secretary. The Chairman of the Board
shall act as chairman of all meetings of the Board of Directors. In the absence
of the Chairman of the Board, the Vice Chairman of the Board, or in his absence,
the Chief Executive Officer or other person designated by the Board of Directors
shall act as chairman of the meeting.
The Secretary of the Corporation shall act as
secretary of all meetings of the Board of Directors, but, in the absence of the
Secretary, the Assistant Secretary designated in accordance with Section 5.11(b)
of these Bylaws shall act as secretary of all meetings of the Board of
Directors, but in the absence of a designated Assistant Secretary, the chairman
of the meeting may appoint any person to act as secretary of the meeting.
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4.4 Annual Meetings. The Board of Directors shall meet each
year immediately following the annual meeting of stockholders, at the place
where such meeting of stockholders has been held, or at such other place as
shall be fixed by the person presiding over the meeting of the stockholders, for
the purpose of election of officers and consideration of such other business as
the Board of Directors considers relevant to the management of the Corporation.
In the event that in any year Directors are elected by written consent in lieu
of an annual meeting of stockholders, the Board of Directors shall meet in such
year as soon as practicable after receipt of such written consent by the
Corporation at such time and place as shall be fixed by the Chairman of the
Board, for the purpose of election of officers and consideration of such other
business as the Board of Directors considers relevant to the management of the
Corporation.
4.5 Regular Meetings. Regular meetings of the Board of
Directors shall be held on such dates and at such times and places, within or
without the state of Delaware, as shall from time to time be determined by the
Board of Directors. In the absence of any such determination, such meetings
shall be held at such times and places, within or without the State of Delaware,
as shall be designated by the Chairman of the Board on not less than twelve
hours notice to each Director, given verbally, in writing or electronically,
whether personally, by telephone (including by message or recording device), by
facsimile transmission, by telegram, by telex or by electronic mail or by other
electronic means, or on not less than three (3) calendar days' notice to each
Director given by mail. Notice given by any of the foregoing means shall be
sufficient to constitute notice of a meeting without the necessity of further
notice.
4.6 Special Meetings. Special meetings of the Board of
Directors shall be held at the call of the Chairman of the Board at such times
and places, within or without the State of Delaware, as he or she shall
designate, on not less than twelve hours notice to each Director, given
verbally, in writing or electronically, whether personally, by telephone
(including by message or recording device), by facsimile transmission, by
telegram, by telex, by electronic mail or by other electronic means or on not
less than three (3) calendar days' notice to each Director given by mail. Notice
given by any of the foregoing means shall be sufficient to constitute notice of
a meeting without the necessity of further notice. Special meetings shall be
called by the Secretary on like notice at the written request of a majority of
the Directors then in office.
4.7 Quorum and Powers of a Majority. At all meetings of the
Board of Directors and of each committee thereof, a majority of the members
shall be necessary and sufficient to constitute a quorum for the transaction of
business, and the act of a majority of the members present at any meeting at
which a quorum is present shall be the act of the Board of Directors or such
committee, unless by express provision of law, of the Certificate of
Incorporation, or of these Bylaws, a different vote is required, in which case
such express provision shall govern and control. In the absence of a quorum, a
majority of the members present at any meeting may, without notice other than
announcement at the meeting, adjourn such meeting from time to time until a
quorum is present.
4.8 Waiver of Notice. Notice of any meeting of the Board of
Directors, or any committee thereof, need not be given to any member if waived
by him or her in writing, whether before or after such meeting is held, or if he
or she shall sign the minutes or attend the meeting, except that if such
Director attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened, then such Director shall not be deemed to have
waived notice of such meeting.
4.9 Manner of Acting. (a) Members of the Board of Directors,
or any committee thereof, may participate in any meeting of the Board of
Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating therein can
hear each other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
(b) Any action required or permitted to be taken at
any meeting of the Board of Directors or any committee thereof may be taken
without a meeting if all members of the Board of Directors or
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such committee, as the case may be, consent thereto in writing, and the writings
are filed with the minutes of proceedings of the Board of Directors or such
committee.
4.10 Compensation. (a) The Board of Directors, by a resolution
or resolutions, may fix, and from time to time change, the compensation of
Directors.
(b) Each Director shall be entitled to reimbursement
from the Corporation for his or her reasonable expenses incurred with respect to
duties as a member of the Board of Directors or any committee thereof.
(c) Nothing contained in these Bylaws shall be
construed to preclude any Director from serving the Corporation in any other
capacity and from receiving compensation from the Corporation for service
rendered to it in such other capacity.
4.11 Committees. The Board of Directors (or any committee
thereof having the power and authority to do so) may designate one or more
committees, each committee to consist of one or more Directors, which to the
extent provided in said resolution or resolutions shall have and may exercise
the powers and authority of the Board of Directors in the management of the
business and affairs of the corporation; provided, however, that no such
committee shall have the power or authority in reference to the following
matters: (i) approving or adopting, or recommending to the stockholders, any
action or matter expressly required by the General Corporation Law of Delaware
(the "GCLD") to be submitted to stockholders for approval or (ii) adopting,
amending, or repealing any bylaw of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member of the committee. In the absence or
disqualification of a member of a committee, the member or members present at
any meeting of such committee and not disqualified from voting, whether or not
such member of members constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in place of such absent
or disqualified director.
4.12 Committee Procedure, Limitations of Committee Powers. (a)
Except as otherwise provided by these Bylaws, each committee shall adopt its own
rules governing the time, place and method of holding its meetings and the
conduct of its proceedings and shall meet as provided by such rules or by
resolution of the Board of Directors. Unless otherwise provided by these Bylaws
or any such rules or resolutions, notice of the time and place of each meeting
of a committee shall be given to each member of such committee as provided in
Section 4.6 of these Bylaws with respect to notices of special meetings of the
Board of Directors.
(b) Each committee shall keep regular minutes of its
proceedings and report the same to the Board of Directors when required.
(c) Any member of any committee may be removed from
such committee either with or without cause, at any time, by the Board of
Directors at any meeting thereof. Any vacancy in any committee shall be filled
by the Board of Directors in the manner prescribed by the Certificate of
Incorporation or these Bylaws for the original appointment of the members of
such committee.
5. OFFICERS.
5.1 Number. (a) The officers of the Corporation shall include
a Chief Executive Officer, a President, one or more Vice Presidents (including
one or more Executive Vice Presidents and one or more Senior Vice Presidents if
deemed appropriate by the Board of Directors), a Chief Financial Officer, a
Secretary, a Treasurer, and a Controller. The Board of Directors shall also
elect a Chairman of the Board and may elect a Vice Chairman of the Board. Except
for the Chairman of the Board, the Vice Chairman of the Board, and the Chief
Executive Officer, none of the officers of the Corporation needs to be a
director of the Corporation. Any two or more offices may be held by the same
person to the extent permitted by the GCLD.
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(b) The Chief Executive Officer shall have the power
to appoint one or more employees of the Corporation as divisional or
departmental vice presidents and fix the duties of such appointees. However, no
such divisional or departmental vice president shall be considered as an officer
of the Corporation.
5.2 Election of Officers, Qualification and Term. The Chief
Executive Officer, the President, any Executive Vice President, any Senior Vice
President, the Chief Financial Officer, the Secretary and the Treasurer of the
Corporation shall be elected from time to time by the Board of Directors and,
except as may otherwise be expressly provided in a contract of employment duly
authorized by the Board of Directors, shall hold office at the pleasure of the
Board of Directors. The Board of Directors and the Chief Executive Officer also
may elect such other officers as the Board of Directors or the Chief Executive
Officer may from time to time deem appropriate or necessary.
5.3 Removal. Any officer elected by the Board of Directors may
be removed, either with or without cause, by the Board of Directors at any
meeting thereof, or to the extent delegated to the Chairman of the Board or the
Chief Executive Officer, by the Chairman of the Board or the Chief Executive
Officer.
5.4 Resignations. Any officer of the Corporation may resign at
any time by giving written notice to the Board of Directors or to the Chairman
of the Board or to the Chief Executive Officer. Such resignation shall take
effect at the date of the receipt of such notice or at any later time specified
therein and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
5.5 Compensation. The compensation of all officers of the
Corporation shall be fixed by or in the manner provided by the Board of
Directors from time to time, and no officer shall be prevented from receiving
such compensation by reason of the fact that he or she is also a Director of the
Corporation.
5.6 The Chairman of the Board. The Chairman of the Board shall
have the powers and duties customarily and usually associated with the office of
the Chairman of the Board and shall have such other powers and perform such
other duties as may be delegated to him or her by the Board of Directors. The
Chairman of the Board shall preside at meetings of the stockholders and of the
Board of Directors.
5.7 Vice Chairman of the Board. The Vice Chairman of the
Board, if any, shall have the powers and duties customarily and usually
associated with the office of the Vice Chairman of the Board and shall have such
other powers and perform such other duties as may be delegated to him or her by
the Board of Directors.
5.8 Chief Executive Officer. The Chief Executive Officer shall
have, subject to the supervision, direction and control of the Board of
Directors, the general powers and duties of supervision, direction and
management of the affairs and business of the Corporation usually vested in the
chief executive officer of a corporation, including, without limitation, all
powers necessary to direct and control the organizational and reporting
relationships within the Corporation. In addition, the Chief Executive Officer
shall have such other powers and perform such other duties as may be delegated
to him or her by the Board of Directors. If at any time the office of the
Chairman of the Board and the Vice Chairman of the Board shall not be filled, or
in the event of the temporary absence or disability of the Chairman of the Board
and the Vice Chairman of the Board, the Chief Executive Officer shall have the
powers and duties of the Chairman of the Board.
5.9 The President. The President shall serve as chief
operating officer, shall have the powers and duties customarily and usually
associated with the office of the President and shall have such other powers and
perform such other duties as may be delegated to him or her from time to time by
the Board of Directors or the Chief Executive Officer.
5.10 The Vice Presidents. Each Vice President shall have such
powers and duties customarily and usually associated with the office of Vice
President and shall have such other powers and perform
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such other duties as may from time to time be assigned to him or her by the
Board of Directors, the Chief Executive Officer, or the President.
5.11 The Chief Financial Officer. The Chief Financial Officer
shall be responsible for the financial affairs of the Corporation, including
overseeing the duties performed by the Treasurer of the Corporation. In
addition, the Chief Financial Officer shall have such powers and duties
customarily and usually associated with the office of the Chief Financial
Officer and shall have such other powers and perform such other duties as may be
delegated to him or her from time to time by the Board of Directors or the Chief
Executive Officer.
5.12 The Secretary and the Assistant Secretary. (a) The
Secretary shall attend meetings of the Board of Directors and meetings of the
stockholders and record all votes and minutes of all such proceedings in a book
kept for such purpose. In addition, the Secretary shall have such powers and
duties customarily and usually associated with the office of Secretary and shall
have such other powers and perform such other duties as may be delegated to him
or her by the Board of Directors, the Chief Executive Officer, or the President.
(b) Each Assistant Secretary shall have such powers
and perform such duties customarily and usually associated with the office of
Assistant Secretary and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Secretary. In case
of the absence or disability of the Secretary, the Assistant Secretary
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Secretary) shall perform the duties and exercise the powers
of the Secretary.
5.13 The Treasurer and the Assistant Treasurer. (a) The
Treasurer shall have custody of the Corporation's funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit or cause to be deposited moneys or other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The Treasurer shall
also maintain adequate records of all assets, liabilities, and transactions of
the Corporation and shall see that adequate audits thereof are currently and
regularly made. In addition, the Treasurer shall have such powers and duties
customarily and usually associated with the office of Treasurer and shall have
such other powers and perform such other duties as may be delegated to him or
her from time to time by the Board of Directors, the Chief Executive Officer,
the President or the Chief Financial Officer.
(b) Each Assistant Treasurer shall have such powers
and perform such duties customarily and usually associated with the office of
Assistant Treasurer and shall have such other powers and perform such other
duties as may be delegated to him or her from time to time by the Board of
Directors, the Chief Executive Officer, the President, or the Treasurer. In case
of the absence or disability of the Treasurer, the Assistant Treasurer
designated by the Chief Executive Officer (or, in the absence of such
designation, by the Treasurer) shall perform the duties and exercise the powers
of the Treasurer.
5.14 Controller. The Controller shall be responsible for
maintaining the accounting records and statements, and shall properly account
for all monies and obligations due the Corporation and all properties, assets,
and liabilities of the Corporation. The Controller shall render to the Chairman
of the Board, the President or the Chief Financial Officer such periodic reports
covering the results of operations of the Corporation as may be required by
either of them or by law. In addition, the Controller shall have such powers and
duties customarily and usually associated with the office of Controller and
shall have such other powers and perform such other duties as may be delegated
to him or her from time to time by the Board of Directors, the Chief Executive
Officer, the President or the Chief Financial Officer.
6. STOCK
6.1 Certificates. Certificates for shares of stock of the
Corporation shall be issued under the seal of the Corporation, or a facsimile
thereof, and shall be numbered and shall be entered in the books of the
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Corporation as they are issued. Each certificate shall bear a serial number,
shall exhibit the holder's name and the number of shares evidenced thereby, and
shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the
Chief Executive Officer or the President or any Vice President, and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer.
Any or all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if such person or entity
were such officer, transfer agent, or registrar at the date of issue.
6.2 Transfers. Transfers of stock of the Corporation shall be
made on the books of the Corporation only upon surrender to the Corporation of a
certificate (if any) for the shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, provided such
succession, assignment, or transfer is not prohibited by the Certificate of
Incorporation, these Bylaws, applicable law or contract. Thereupon, the
Corporation shall issue a new certificate (if requested) to the person entitled
thereto, cancel the old certificate (if any), and record the transaction upon
its books.
6.3 Lost, Stolen, or Destroyed Certificates. Any person
claiming a certificate of stock to be lost, stolen, or destroyed shall make an
affidavit or an affirmation of that fact, and shall give the Corporation a bond
of indemnity in satisfactory form and with one or more satisfactory sureties,
whereupon a new certificate (if requested) may be issued of the same tenor and
for the same number of shares as the one alleged to be lost, stolen, or
destroyed.
6.4 Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares as the person entitled to exercise the rights of a stockholder
and shall not be bound to recognize any equitable or other claim to or interest
in any such shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise expressly provided by the
GCLD.
6.5 Additional Powers of the Board. (a) In addition to those
powers set forth in Section 4.1, the Board of Directors shall have power and
authority to make all such rules and regulations as it shall deem expedient
concerning the issue, transfer, and registration of certificates for shares of
stock of the Corporation, including the use of uncertificated shares of stock
subject to the provisions of the GCLD.
(b) The Board of Directors may appoint and remove
transfer agents and registrars of transfers, and may require all stock
certificates to bear the signature of any such transfer agent and/or any such
registrar of transfers.
7. INDEMNIFICATION
7.1 Each person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or the person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation, as a
director, officer, employee, or agent of another corporation or of a
partnership, joint venture, trust, or other enterprise, including service with
respect to employee benefit plans, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the GCLD, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expenses, liability, and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of his or her heirs, executors, and administrators; provided,
however, that, except as provided in this Article 7, the Corporation shall
indemnify any
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such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if authorized by the Board of Directors
of the Corporation. Any indemnification under this Article 7 (unless ordered by
a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee, or agent is proper in the circumstances because he or she has met the
applicable standard set forth in the GCLD. Such a determination shall be made
(a) by a majority vote of the directors who are not parties to such action, suit
or proceeding, even though less than a quorum; (b) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum; (c) by independent legal counsel (compensated by the Corporation) in a
written opinion; (d) by the stockholders; or (e) in any other manner permitted
by the GCLD. In addition to the right to indemnification conferred in this
Article 7, each of the above persons shall have the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that, if the GCLD requires, the
payment of such expenses incurred by a present director or officer in his or her
capacity as a director or officer of the corporation (and not in any other
capacity in which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such present
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Article 7 or otherwise. The Corporation may, by any manner permitted by the
GCLD, provide indemnification and advancement of expenses to employees and
agents of the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers. The right to indemnification and to
an advancement of expenses conferred in this Article 7 shall be a contract
right.
7.2 If a claim under Section 7.1 of this Article 7 is not paid
in full by the Corporation within 30 days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim (including attorneys' fees). It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the GCLD for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, a committee thereof, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the GCLD, nor an actual determination by the Corporation (including
its Board of Directors, a committee thereof, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct. In any suit brought by the claimant
to enforce a right to indemnification or to an advancement of expenses
hereunder, or brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the claimant
is not entitled to be indemnified, or to such advancement of expenses, under
this Article 7 or otherwise shall be on the Corporation.
7.3 The rights to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Article 7, shall not be exclusive of any other right that any person may
have or hereafter acquire under any statute, provision of the certificate of
incorporation of the Corporation, this bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
7.4 The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee, or agent of the Corporation
or another corporation, partnership, joint venture, trust, or other enterprise
against any such expense, liability, or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability,
or loss under the GCLD.
7.5 The Corporation may enter into an indemnity agreement with
any director, officer, employee, or agent of the Corporation, or of another
corporation, partnership, joint venture, trust, or other
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enterprise, upon terms and conditions that the Board of Directors deems
appropriate, as long as the provisions of the agreement are not impermissible
under applicable law.
7.6 Any amendment or repeal of this Article 7 shall not be
retroactive in effect.
7.7 In case any provision in this Article 7 shall be
determined at any time to be unenforceable in any respect, the other provisions
shall not in any way be affected or impaired thereby, and the affected provision
shall be given the fullest possible enforcement in the circumstances, it being
the intention of the Corporation to afford indemnification and advancement of
expenses to the persons indemnified hereby to the fullest extent permitted by
law.
7.8 The Corporation may, by action of the Board of Directors,
authorize one or more officers to grant rights to indemnification and
advancement of expenses to former directors and officers or to other employees
or agents of the Corporation on such terms and conditions as such officer or
officers deem appropriate under the circumstances.
8. MISCELLANEOUS
8.1 Place and Inspection of Books. (a) The books of the
Corporation other than such books as are required by law to be kept within the
State of Delaware shall be kept in such place or places either within or without
the State of Delaware as the Board of Directors may from time to time determine.
(b) At least ten days before each meeting of
stockholders, the officer in charge of the stock ledger of the Corporation shall
prepare a complete list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
(c) The Board of Directors shall determine from time
to time whether and, if allowed, when and under what conditions and regulations
the accounts and books of the Corporation (except such as may be by law
specifically open to inspection or as otherwise provided by these Bylaws) or any
of them shall be open to the inspection of the stockholders and the
stockholders' rights in respect thereof.
8.2 Voting Shares in Other Corporations. The Chief Executive
Officer, the President, the Chief Financial Officer or any other officer of the
Corporation designated by the Board of Directors may vote any and all shares
held by the Corporation in any other corporation.
8.3 Fiscal Year. The fiscal year of the Corporation shall be
such fiscal year as the Board of Directors from time to time by resolution shall
determine.
8.4 Gender/Number. As used in these Bylaws, the masculine,
feminine, or neuter gender, and the singular or plural number, shall each
include the others whenever the context so indicates.
8.5 Paragraph Titles. The titles of the paragraphs have been
inserted as a matter of reference only and shall not control or affect the
meaning or construction of any of the terms and provisions hereof.
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8.6 Amendment. These Bylaws may be altered, amended, or
repealed by (a) the affirmative vote of 80% or more of the aggregate number of
votes that the holders of the then outstanding shares of common stock and
preferred stock are entitled to cast on the amendment, or (b) by resolution
adopted by the affirmative vote of not less than a majority of the Directors in
office, at any annual or regular meeting of the Board of Directors or at any
special meeting of the Board of Directors if notice of the proposed alteration,
amendment, or repeal be contained in written notice of such special meeting.
Notwithstanding the foregoing, the amendment of any provision of these Bylaws
that requires an affirmative vote in excess of a majority of the Directors in
office shall require the affirmative vote of at least the number of directors
the affirmative vote of whom is required by such provision.
8.7 Certificate of Incorporation. Notwithstanding anything to
the contrary contained herein, if any provision contained in these Bylaws is
inconsistent with or conflicts with a provision of the Certificate of
Incorporation, such provision of these Bylaws shall be superseded by the
inconsistent provision in the Certificate of Incorporation to the extent
necessary to give effect to such provision in the Certificate of Incorporation.
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