ATLANTIC ENERGY, INC.
BY-LAWS
(As amended July 13, 1995)
ARTICLE I
MEETING OF SHAREHOLDERS
SECTION 1. Annual Meetings. The annual meeting of the
shareholders to elect a Board of Directors and to transact such
other business as may properly come before the meeting in
accordance with these By-laws shall be held at such place, within
or without the State of New Jersey, as may be fixed by the Board
of Directors and stated in the notice of meeting, on the fourth
Wednesday of April in each year, at three o'clock in the
afternoon or at such other hour or on such other day stated in
the notice of meeting as the directors shall determine.
At any such annual meeting of shareholders, only such
business shall be conducted as shall have been brought before the
meeting (a) by or at the direction of the Board of Directors, or
(b) by any shareholder entitled to vote at such meeting who
complies with the procedures set forth in this Section 1. Any
shareholder entitled to vote at such meeting may propose business
to be included in the agenda of such meeting only if written
notice of such shareholder's intent is given to the Secretary of
the Corporation, either by personal delivery or by United States
mail, postage prepaid, not later than 90 days in advance of the
anniversary of the immediately preceding annual meeting or if the
date of the annual meeting of shareholders occurs more than 30
days before or 60 days after the anniversary of such immediately
preceding annual meeting, not later than the close of business on
the seventh day following the date on which notice of such
meeting is given to shareholders. A shareholder's notice to the
Secretary shall set forth in writing as to each matter such
shareholder proposes to bring before the annual meeting (a) a
brief description of the business desired to be brought before
the annual meeting and the reasons for conducting such business
at the annual meeting, (b) the name and address, as they appear
on the Corporation's books, of the shareholder proposing such
business, (c) the class and number of shares of the Corporation
which are beneficially owned by the shareholder and (d) any
material interest of the shareholder in such business.
Notwithstanding anything in these By-laws to the contrary, no
business shall be conducted at an annual meeting except in
accordance with the procedures set forth in this Section 1. The
officer of the Corporation or other person presiding at the
annual meeting shall, if the facts so warrant, determine and
declare to the meeting that business was not properly brought
before the meeting in accordance with the provisions of this
Section 1, and, if such officer or other person should so
determine, he or she shall so declare to the meeting and any such
business not properly brought before the meeting shall not be
transacted.
SECTION 2. Special Meetings. Special meetings of the
shareholders of the Corporation shall be held at such place,
within or without the State of New Jersey, as may be fixed by the
Board of Directors and stated in the notice of meeting, and shall
be called by the Chairman of the Board, the President or
Secretary upon direction of the Board of Directors. At any
special meeting of the shareholders, only such business shall be
conducted as shall have been brought before the meeting by or at
the direction of the Board of Directors and such business shall
be confined to the object or objects stated in the notice
thereof.
SECTION 3. Notice. The Secretary or officer
performing his duties shall give notice of every shareholders'
meeting to each shareholder of record on the books of the
Corporation entitled to vote at such meeting, by mailing written
notice to such shareholders' address appearing on the stock books
of the Corporation at least ten and not more than sixty days
before the date of such meeting.
SECTION 4. Officer to Preside. Meetings of the
shareholders shall be presided over by the Chairman of the Board,
or in his absence, by the President, or if neither of these
officers is present, by a Chairman to be elected at the meeting.
The Secretary of the Corporation shall act as Secretary of such
meetings, when present; otherwise a secretary shall be chosen at
the meeting.
SECTION 5. Inspectors. As soon as may be practicable
after their election in each year, the Board of Directors may
appoint two inspectors of shareholders' votes and elections, to
serve until the final adjournment of the next annual
shareholders' meeting. If they fail to make such appointment, or
if their appointees or either of them fails to appear at any
meeting of shareholders, the Chairman or other person presiding
at the meeting may appoint inspectors or an inspector to serve
with the one appearing for that meeting.
SECTION 6. Nominations of Directors. Nominations
for the election of Directors may be made by the Board of
Directors or a Committee appointed by the Board of Directors or,
in the manner hereinafter provided, by any shareholder entitled
to vote for the election of Directors. Any shareholder entitled
to vote for the election of Directors at a meeting or to express
a consent in writing without a meeting may nominate a person or
persons for election as a Director only if written notice of such
shareholder's intent to make such nomination is given to the
Secretary of the Corporation, either by personal delivery or by
United States mail, postage prepaid, not later than (a) with
respect to an election to be held at an annual meeting of
shareholders, 90 days in advance of the anniversary of the
immediately preceding annual meeting or if the date of the annual
meeting of shareholders occurs more than 30 days before or 60
days after the anniversary of such immediately preceding annual
meeting, not later than the close of business on the seventh day
following the date on which notice of such meeting is given to
shareholders, and (b) in the case of any shareholder who wishes
to nominate a person or persons for election as a Director
pursuant to consents in writing by shareholders without a meeting
(to the extent election by such consents is permitted under
applicable law and the Corporation's Certificate of
Incorporation), 60 days in advance of the date on which materials
soliciting such consents are first mailed to shareholders or, if
no such materials are required to be mailed under applicable law,
60 days in advance of the date on which the first such consent in
writing is executed. Each such notice shall set forth (a) the
name and address of the shareholder who intends to make the
nomination and of the person or persons to be nominated for
election as a Director; (b) a representation that the shareholder
is a holder of record of stock of the Corporation entitled to
vote at such meeting or to express such consent in writing and
intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice or to
execute such a consent in writing to elect such person or persons
as a Director; (c) a description of all arrangements or
understandings between the shareholder and each nominee and any
other person or persons (naming such person or persons) pursuant
to which the nomination or nominations for election as a Director
are to be made by the shareholder; (d) such other information
regarding each nominee proposed by such shareholder as would have
been required to be included in a proxy statement filed pursuant
to the proxy rules of the Securities and Exchange Commission if
such nominee had been nominated, or was intended to be nominated,
for election as a Director by the Board of Directors; and (e) the
consent of each nominee to serve as a Director of the Corporation
if so elected. The Board of Directors may refuse to acknowledge
the nomination of any person not made in compliance with the
foregoing procedures.
ARTICLE II
DIRECTORS
SECTION 1. Number of Directors. The Board of
Directors shall consist of such number of directors, not less
than three nor more than twelve, as shall be fixed from time to
time by the Board of Directors.
SECTION 2. Vacancies. Vacancies on the Board of
Directors, including vacancies caused by reason of an increase in
the number of directors, may be filled until the next
shareholders' election only by a vote of a majority of all the
directors in office. However, if only two directors remain and
are able to meet at a meeting duly called for the purpose, then
by the action of those two at such a meeting, or if only one
director remains, by the act of that director, additional duly
qualified directors shall be elected so that there are at least
three directors holding office until the next annual meeting of
shareholders and until their successors shall be duly elected and
shall qualify.
SECTION 3. Quorum. A majority of directors holding
office at the time of any meeting shall constitute a quorum.
SECTION 4. Chairman and Committees. The Board of
Directors shall elect a Chairman of the Board from among their
own number and the Board may also elect an Vice Chairman of the
Board from among their own number. Meetings of the Board shall
be presided over by the Chairman of the Board, or if he be
absent, by the Vice Chairman, it there be one, or if the Chairman
and Vice Chairman, if there be one, are absent, by the President,
or if none of these persons are present, by a Chairman to be
elected at the meeting. The person serving as Chairman of the
meeting shall determine the agenda and decide all rules of order
and practice at all meetings over which he presides. The
Chairman, and the Vice Chairman, if there be one, may be replaced
at any time by a vote of a majority of all the directors in
office. The Board of Directors, by a majority vote, may appoint
from time to time from among their own number an executive
committee and such other committees having such powers as shall
be designated in the respective resolutions applicable thereto.
SECTION 5. Meetings. Meetings of the Board of
Directors shall be held upon the order of the Board, the Chairman
of the Board, the Vice Chairman of the Board, if there be one,
the President, or two directors. The Secretary or officer
performing his duties shall give reasonable notice of all
meetings to each director, but no notice need be given of the
meeting, immediately after the annual meeting of shareholders, at
the same place, or of any other regular meetings held at times
fixed by resolution of the Board. Meetings of the Board of
Directors may be held within or without the State of New Jersey.
ARTICLE III
OFFICERS
The Board of Directors shall elect, an officers of the
Corporation, a President, who shall at the time of such election
be a director of the Corporation, a Secretary, and a Treasurer,
and may elect one or more Vice Presidents and such other officers
as may be deemed useful. The chief executive officer of the
Corporation shall be the officer designated from time to time by
the Board as the chief executive officer. Any two or more
offices may be filled by the same person. All officers shall be
chosen by the Board of Directors and any officer may be removed
from office at any time by a vote of majority of all the
directors in office. The several officers of the Corporation
shall exercise the usual powers and duties pertaining to their
respective offices, subject to such limitations as may be adopted
by resolutions of the Board, and shall exercise such other powers
and duties as the Board of Directors may from time to time
determine.
ARTICLE IV
RECORD DATE FOR PAYMENTS
The Board of Directors of the Corporation shall have power
by resolution to close the stock transfer books of the
Corporation for a period not exceeding fifty days preceding the
date of any meeting of shareholders or the date for payment of
any dividend, or the date for the allotment of rights, or the
date when any change or conversion or exchange of capital stock
shall go into effect, provided, however, in lieu of closing the
stock transfer books as aforesaid, the Board of Directors of the
Corporation may by resolution fix in advance a date not exceeding
fifty days preceding the date of any meeting of shareholders or
the date for the payment of any dividend, or the date for the
allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, as a record date
for the determination of the shareholders entitled to notice of
and to vote at any such meeting or entitled to receive payment of
any such dividend, or any such allotment of rights, or to
exercise rights in respect of such change, conversion or exchange
of capital stock, and in such case only shareholders of record on
the date so fixed shall be entitled to such notice of, and to
vote at, such meeting, or to receive payment of such dividend, or
allotment of rights, or exercise of such rights, as the case may
be, and notwithstanding any transfer of any stock on the books of
the Corporation after any such record date fixed as aforesaid.
ARTICLE V
STOCK CERTIFICATES
The Board of Directors of the Corporation may authorize the
issuance of duplicate stock certificates to replace stock
certificates lost, stolen or destroyed, upon such terms and
conditions as it may by resolution prescribe.
ARTICLE VI
INDEMNIFICATION AND INSURANCE
SECTION 1. Right to Indemnification. The Company
shall to the fullest extent permitted by applicable law as then
in effect indemnify any person (the "Indemnitee") who was or is
involved in any manner (including, without limitation, as a party
or a witness) or is threatened to be made so involved in any
threatened, pending or completed investigation, claim, action,
suit or proceeding, whether civil, criminal, administrative or
investigative (including without limitation, any action, suit or
proceeding by or in the right of the Company to procure a
judgment in its favor) (a "Proceeding") by reason of the fact
that he or she is or was a director, officer or employee of the
Company, or is or was serving at the request of the Company as a
director, officer or employee of another company, partnership,
joint venture, trust or other enterprise (including, without
limitation, any employee benefit plan) against all expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection
with such Proceeding. Such indemnification shall be a contract
right and shall include the right to receive payment of any
expenses incurred by the Indemnitee in connection with such
Proceeding in advance of its final disposition, consistent with
the provisions of applicable law as then in effect. Such
indemnification may be extended by the Board of Directors to any
other person who is a "corporate agent" as defined in R.S.
14:A:3-5(1)(a) of the New Jersey Business Corporation Act.
SECTION 2. Insurance, Contracts and Funding. The
company may purchase and maintain insurance to protect itself and
any Indemnitee against any expenses, judgments, fines and amounts
paid in settlement as specified in SECTION 1 of this Article VI
or incurred by any Indemnitee in connection with any Proceeding
referred to in SECTION I of this Article VI, to the fullest
extent permitted by applicable law as then in effect. The
Company may enter into contracts with any director, officer,
employee or agent of the Company in furtherance of the provisions
of this Article VI and may create a trust fund, grant a security
interest or use other means (including, without limitation, a
letter of credit) to ensure the payment of such amounts as may be
necessary to effect indemnification as provided in this Article
VI.
SECTION 3. Indemnification; Not Exclusive Right. The
right of indemnification provided in this Article VI shall not be
exclusive of any other rights to which those seeking
indemnification may otherwise be entitled, and the provisions of
this Article VI shall inure to the benefit of the heirs and legal
representatives of any person entitled to indemnity, or to whom
indemnification is extended, under this Article VI and shall be
applicable to Proceedings commenced or continuing after the
adoption of this Article VI, whether arising from acts or
omissions occurring before or after such adoption.
SECTION 4. Advancement of Expenses; Procedures;
Presumptions and Effect of Certain Proceedings; Remedies. In
furtherance, but not in limitation of the foregoing provisions,
the following procedures, presumptions and remedies shall apply
with respect to advancement of expenses and the right to
indemnification under this Article VI:
(1) Advancement of Expenses. All reasonable expenses
incurred by or on behalf of the Indemnitees in connection
with any Proceeding shall be advanced to the Indemnitee by
the Company within 20 days after the receipt by the Company
of a statement or statements from the Indemnitee requesting
such advance or advances from time to time, whether prior to
or after final disposition of such Proceeding. Such
statement or statements shall reasonably evidence the
expenses incurred by the Indemnitee and, if required by law
at the time of such advance, shall include or be accompanied
by an undertaking by or on behalf of the Indemnitee to repay
the amounts advanced unless it is ultimately determined that
the Indemnitee is entitled to be indemnified against such
expenses pursuant to this Article VI.
(2) Procedure for Determination of Entitlement to
Indemnification.
(a) To obtain indemnification under this Article VI,
an Indemnitee shall submit to the Secretary of the Company a
written request, including such documentation and information as
is reasonably available to the Indemnitee and reasonably
necessary to determine whether and to what extent the Indemnitee
is entitled to indemnification (the "Supporting Documentation").
The determination of the Indemnitee's entitlement to
indemnification shall be made not later than 60 days after
receipt by the Company of the written request for indemnification
together with the Supporting Documentation. The Secretary of the
Company shall, promptly upon receipt of such a request for
indemnification, advise the Board of Directors in writing that,
the Indemnitee has requested indemnification.
(b) The Indemnitee's entitlement to indemnification
under this Article VI shall be determined in one of the following
ways: (i) by a majority vote of the Disinterested Directors (as
hereinafter defined), if they constitute a quorum of the Board of
Directors; (ii) by a written opinion of Independent Counsel (as
hereinafter defined) if (x) a Change of Control (as hereinafter
defined) shall have occurred and the Indemnitee so requests, or
(y) a quorum of the Board of Directors consisting of
Disinterested Directors is not obtainable or, even if obtainable,
a majority of such Disinterested Directors so directs; (iii) by
the stockholders of the Company (but only if a majority of the
Disinterested Directors, if they constitute a quorum of the Board
of Directors, presents the issue of entitlement to
indemnification to the stockholders for their determination); or
(iv) as provided in SECTION 4(3).
(c) In the event the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to
SECTION 4(2)(b), a majority of the Disinterested Directors shall
select the Independent Counsel, but only an Independent Counsel
to which the Indemnitee does not reasonably object; provided,
however, that if a Change of Control shall have occurred, the
Indemnitee shall select such Independent Counsel but only an
Independent Counsel to which the Board of Directors does not
reasonably object.
(d) The only basis upon which a finding of no
entitlement to indemnification may be made is that
indemnification is prohibited by law.
(3) Presumptions and Effect of Certain Proceedings.
Except as otherwise expressly provided in this Article VI, if a
Change of Control shall have occurred, the Indemnitee shall be
presumed to be entitled to indemnification under this Article VI
upon submission of a request for indemnification together with
the Supporting Documentation in accordance with SECTION 4 (2)
(a), and thereafter the Company shall have the burden of proof to
overcome that presumption in reaching a contrary determination.
In any event, if the person or persons empowered under SECTION
4(2) to determine entitlement to indemnification shall not have
been appointed or shall not have made a determination within 60
days after receipt by the Company of the request therefor
together with the Supporting Documentation, the Indemnitee shall
be deemed to be entitled to indemnification and the Indemnitee
shall be entitled to such indemnification unless (a) the
Indemnitee misrepresented or failed to disclose a material fact
in making the request for indemnification or in the Supporting
Documentation, or (b) such indemnification is prohibited by law.
The termination of any Proceeding described in SECTION 1, or of
any claim, issue or matter therein, by judgement, order,
settlement or conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, adversely affect the right
of the Indemnitee to indemnification or create a presumption that
the indemnitee did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests
of the Company or, with respect to any criminal Proceedings, that
the Indemnitee had reasonable cause to believe that his conduct
was unlawful.
(4) Remedies of Indemnitee.
(a) In the event that a determination is made
pursuant to SECTION 4(2) that the Indemnitee is not entitled to
indemnification under this Article VI, (i) the Indemnitee shall
be entitled to seek an adjudication of his entitlement to such
lndemnification either, at the Indemnitee's sole option, in (x)
an appropriate court of the State of New Jersey or any other
court of competent jurisdiction or (y) an arbitration to be
conducted by a single arbitrator pursuant to the rules of the
American Arbitration Association; (ii) any such judicial
proceeding or arbitration shall be de novo and the Indemnitee
shall not be prejudiced by reason of such adverse determination;
and (iii) in any such judicial proceeding or arbitration the
Company shall have the burden of proving that the Indemnitee is
not entitled to indemnification under this Article VI.
(b) If a determination shall have been made or deemed
to have been made, pursuant to SECTION 4(2) or 4(3), that the
Indemnitee is entitled to indemnification, the Company shall be
obligated to pay the amounts constituting such indemnification
within five days after such determination has been made or deemed
to have been made and shall be conclusively bound by such
determination unless (i) the Indemnitee misrepresented or failed
to disclose a material fact in making the request for
indemnification or in the Supporting Documentation or (ii) such
indemnification is prohibited by law. In the event that
advancement of expenses is not timely made pursuant to SECTION
4(1), or payment of indemnification is not made within five days
after a determination of entitlement to indemnification has been
made or deemed to have been made pursuant to SECTION 4(2) or
4(3), the Indemnitee shall be entitled to seek judicial
enforcement of the Company's obligation to pay to the Indemnitee
such advancement of expenses or indemnification. Notwithstanding
the foregoing, the Company may bring an action, in an appropriate
court in the State of New Jersey or any other court of competent
jurisdiction, contesting the right of the Indemnitee to receive
indemnification hereunder due to the occurrence of an event
described in subclause (1) or (ii) of this clause (b) (a
"Disqualifying Event"), provided however, that in any such action
the Company shall have the burden of proving the occurrence of
such Disqualifying Event.
(c) The Company shall be precluded from asserting in
any judicial proceeding or arbitration commenced pursuant to this
SECTION 4(4) that the procedures and presumptions of this
Article VI are not valid, binding and enforceable and shall
stipulate in any such court or before any such arbitrator that
the Company is bound by all the provisions of this Article VI.
(d) In the event that the Indemnitee, pursuant to this
SECTION 4(4), seeks a judicial adjudication of or an award in
arbitration to enforce his rights under, or to recover damages
for breach of, this Article VI, the Indemnitee shall be entitled
to recover from the Company, and shall be indemnified by the
Company against, any expenses actually and reasonably incurred by
him if the Indemnitee prevails in such judicial adjudication or
arbitration. If it shall be determined in such judicial
adjudication or arbitration that the Indemnitee is entitled to
receive part but not all of the indemnification or advancement
of expenses sought, the expenses incurred by the Indemnitee in
connection with such judicial adjudication or arbitration shall
be prorated accordingly.
(5) Definitions. For purposes of this SECTION 4:
(a) "Change in Control" means
(i) so long as the Public Utility Holding
Company Act of 1935 is in effect, any "company"
becoming a "holding company" in respect to the
Company of any determination by the Securities and
Exchange Commission that any "person" should be
subject to the obligations, duties, and
liabilities if imposed by said Act by virtue of
his or its influence over the management or
policies of the Company, or
(ii) whether said Act is in effect a change
in control of the Company of a nature that would
be required to be reported in response to Item
5(f) of Schedule 14A of Regulation 14A promulgated
under the Securities Exchange Act of 1934 (the
"Act"), whether the Company is then subject to
such reporting requirement; provided that, without
limitation, such a change in control shall be
deemed to have occurred if (A) any "person" (as
such term is used in Section 13(d) and 14(d) of
the Act) is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Act), directly or
indirectly, of securities of the Company
representing 10% or more of the combined voting
power of the Company's then outstanding securities
without the prior approval of at least two-thirds
of the members of the Board of Directors in office
immediately prior to such acquisition; (B) the
Company is a party to a merger, consolidation,
sale of assets or other reorganization, or a proxy
contact, as a consequence of which members of the
Board of Directors in office immediately prior to
such transaction or event constitute less than a
majority of the Board of Directors thereafter; or
(C) during any period of two consecutive years,
individuals who at the beginning of such period
constituted the Board of Directors (including for
this purpose any new director whose election or
nomination for election by the Company's
stockholders was approved by a vote of at least
two-thirds of the directors then still in office
who were directors at the beginning of such
period) cease for any reason to constitute at
least a majority of the Board of Directors.
(b) "Disinterested Director" means a
director of the Company who is not or was party to
the Proceeding in respect of which indemnification
is sought by the Indemnitee.
(c) "Independent Counsel" means a law firm
or a member of a law firm that neither presently
is, nor in the past five years has been, retained
to represent: (i) the Company or the Indemnitee in
any matter material to either such party or (ii)
any other party to the Proceeding giving rise to a
claim for indemnification under this Article VI.
Notwithstanding the foregoing, the term
"Independent Counsel" shall not include any person
who, under the applicable standards of
professional conduct then prevailing under the law
of the State of New Jersey, would have a conflict
of interest in representing either the Company or
the Indemnitee in an action to determine the
Indemnitee's rights under this Article VI.
SECTION 5. Severability. If any provision or
provisions of this Article VI shall be held to be invalid,
illegal or unenforceable for any reason whatsoever:
(1) the validity, legality and enforceability of
the remaining provisions of this Article VI (including,
without limitation, all portions of any paragraph of this
Article VI containing any such provision held to be invalid,
illegal or unenforceable, that are not themselves invalid,
illegal or unenforceable) shall not in any way be affected
or impaired thereby; and
(2) to the fullest extent possible, the
provisions of this Article VI (including, without
limitation, all portions of any paragraph of this Article VI
containing any such provision held to be invalid, illegal or
unenforceable, that are not themselves invalid, illegal or
unenforceable) shall be construed so as to give effect to
the intent manifested by the provision held invalid, illegal
or unenforceable.
SECTION 6. Successor Laws, Regulations and Agencies.
Reference herein to laws, regulations or agencies shall be deemed
to include all amendments thereof, substitutions therefor and
successors. (Amended July 9, 1987)
ARTICLE VII
AMENDMENT
These By-Laws may be amended or added to at any meeting of
the Board of Directors by an affirmative vote of a majority of
all the directors, if notice of the proposed change has been sent
to all the directors ten days before the meeting, or if all the
directors are present, or if those not present assent in writing
to such a change.