Exhibit 3.2
LIMITED LIABILITY COMPANY AGREEMENT
OF
PSEG ENERGY HOLDINGS L.L.C.
This Limited Liability Company Agreement (together with the schedules
attached hereto, (the "Agreement") of PSEG Energy Holdings L.L.C., a New Jersey
limited liability company (the "Company"), is entered into by Public Service
Enterprise Group Incorporated, a New Jersey corporation, as the sole member (the
"Initial Member"). Capitalized terms used herein and not otherwise defined have
the meanings set forth on Schedule A hereto.
The Initial Member, by execution of this Agreement, (i) hereby forms and
continues the Company as a limited liability company pursuant to and in
accordance with the New Jersey Limited Liability Company Act, as amended from
time to time (the "Act"), and (ii) hereby agrees as follows:
1. Name.
The name of the limited liability company heretofore formed and continued
hereby is PSEG Energy Holdings L.L.C.
2. Principal Business Office.
The principal business office of the Company shall be located at such
location as may hereafter be determined by the Member.
3. Registered Office.
The address of the registered office of the Company in the State of New
Jersey is 80 Park Plaza, Newark, NJ 07102.
4. Registered Agent.
The name and address of the registered agent of the Company for service of
process on the Company in the State of New Jersey is Edward J. Biggins, Jr., c/o
Public Service Enterprise Group Incorporated, 80 Park Plaza, P.O. Box 1171,
Newark, NJ 07102.
5. Members.
The name and the mailing address of the Initial Member is set forth on
Schedule B attached hereto.
6. Certificates.
The Initial Member has formed the Company pursuant to the Act upon
execution of this Agreement, by causing a Certificate of Formation conforming to
the requirements of the Act to be filed with the Office of the Secretary of
State of the State of New Jersey. The Initial Member or an Officer shall
execute, deliver and file any other certificates (and any amendments and/or
restatements thereof) necessary for the Company to qualify to do business in any
other jurisdiction in which the Company may wish to conduct business.
7. Purposes.
The Company is formed for the object and purpose of, and the nature of the
business to be conducted and promoted by the Company is, engaging in any lawful
act or activity for which limited liability companies may be formed under the
Act.
8. Powers.
The Company shall have the power and right to do any and all acts
necessary, appropriate, proper, advisable, incidental or convenient to or for
the furtherance of the purposes and business described herein or as permitted by
the Act and shall have, without limitation, the power and right to:
a. acquire by purchase, lease, transfer, contribution of property
or otherwise, own, hold, sell, convey, transfer or dispose of
any real or personal property and all associated rights and
liabilities which may be necessary, convenient or incidental
to the accomplishment of the purpose of the Company;
b. act as a nominee, bailee, director, officer, agent or in some
other fiduciary capacity for any person or entity and to
exercise all of the powers, duties, rights and
responsibilities associated therewith;
c. take any and all actions necessary, convenient or appropriate
as nominee, bailee, director, officer, agent or other
fiduciary, including the granting or approval of waivers,
consents or amendments of rights or powers relating thereto
and the execution of appropriate documents to evidence such
waivers, consents or amendments;
d. operate, purchase, maintain, finance, improve, own, sell,
convey, assign, mortgage, lease or demolish or otherwise
dispose of any real or personal property which may be
necessary, convenient or incidental to the accomplishment of
the purposes of the Company;
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e. borrow money and issue evidences of indebtedness in
furtherance of any or all of the purposes of the Company, and
secure the same by mortgage, pledge or other lien on the
assets of the Company;
f. invest any funds of the Company pending distribution or
payment of the same pursuant to the provisions of this
Agreement;
g. prepay in whole or in part, refinance, recast, increase,
modify or extend any indebtedness of the Company and, in
connection therewith, execute any extensions, renewals or
modifications of any mortgage or security agreement securing
such indebtedness;
h. enter into, perform and carry out contracts of any kind,
including, without limitation, contracts with any person or
entity affiliated with the Member, necessary to, in connection
with, convenient to, or incidental to the accomplishment of
the purposes of the Company;
i. employ or otherwise engage employees, managers, contractors,
advisors, attorneys and consultants and pay reasonable
compensation for such services;
j. form, own, acquire and dispose of wholly-owned limited
liability companies, trusts, associations, partnerships
(general and limited), corporations or other ventures in
furtherance of the purposes of the Company;
k. enter into partnerships (general and limited), limited
liability companies, trusts, associations, corporations or
other ventures with other persons or entities, including
affiliated entities, in furtherance of the purposes of the
Company; and
1. do such other things and engage in such other activities
related to the foregoing as may be necessary, appropriate,
proper, advisable, incidental or convenient to the conduct of
the business of the Company, and have and exercise all of the
powers and rights conferred upon limited liability companies
formed pursuant to the Act.
The listing of powers and rights in this Section 8 shall not in any manner
be deemed a restriction on the power or right of the Company to engage in any
other activities permitted or not prohibited by the Act.
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9. Management.
a. Board of Managers. The business and affairs of the Company
shall be managed by or under the direction of a Board
comprised of one or more Managers to be elected, designated or
appointed by the Member. The Member may determine at any time
in its sole and absolute discretion the number of Managers to
constitute the entire Board. The authorized number of Managers
may be increased or decreased by the Member at any time in its
sole and absolute discretion. The initial number of Managers
shall be six. The names and mailing addresses of the persons
designated as Initial Managers are set forth in Schedule C
attached hereto. Each Manager elected, designated or appointed
by the Member shall hold office until his or her successor is
elected and qualified or until such Manager's earlier death,
resignation or removal. As a condition and qualification to
serving as a Manager, each Manager shall execute and deliver
to the Company the Management Agreement set forth in Schedule
D attached hereto. Managers need not be Members.
b. Powers. The Board shall have the power to do any and all acts
necessary, convenient or incidental to or for the furtherance
of the purposes described herein, including all powers,
statutory or otherwise. Without limiting the scope of the
foregoing, the Board shall have the power to amend the
Agreement to provide for additional classes of membership
interests.
c. Meeting of the Board of Managers. The Board of Managers of the
Company may hold meetings, both regular and special, within or
outside the State of New Jersey. Regular meetings of the Board
may be held without notice at such time and at such place as
shall from time to time be determined by the Board. Special
meetings of the Board may be called by the Chairman of the
Board or President on not less than 24 hours' notice to each
Manager by telephone, facsimile, mail, telegram or any other
means of communication, and special meetings shall be called
by the President, the Chairman of the Board or Secretary in
like manner and with like notice upon the written request of
any one or more of the Managers. A special meeting of the
Board may be held without prior notice if all Managers waive
in writing the requirement for such notice.
d. Quorum; Acts of the Board. At all meetings of the Board, a
majority of the Managers shall constitute a quorum for the
transaction of business and, except as otherwise provided in
any other provision of this Agreement, the act of a majority
of the Managers present at any meeting at which there is a
quorum shall be the act of the Board. If a quorum shall not be
present at any meeting of the Board, the Managers present at
such meeting may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a
quorum shall be present. Any action
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required or permitted to be taken at any meeting of the Board
or of any committee thereof may be taken without a meeting if
all members of the Board or committee, as the case may be,
consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the Board or
committee.
e. Electronic Communications. Members of the Board, or any
committee designated by the Board, may participate in meetings
of the Board, or any committee, by means of telephone
conference or similar communications equipment that allows all
persons participating in the meeting to hear each other, and
such participation in a meeting shall constitute presence in
person at the meeting. If all the participants are
participating by telephone conference or similar
communications equipment, the meeting shall be deemed to be
held at the principal place of business of the Company.
f. Committees of Managers.
(i) The Board may designate one or more committees, each
committee to consist of one or more of the Managers of
the Company. The Board may designate one or more
Managers as alternate members of any committee, who may
replace any absent or disqualified member at any meeting
of the committee.
(ii) In the absence or disqualification of a member of a
committee, the member or members thereof present at any
meeting and not disqualified from voting, whether or not
such members constitute a quorum, may unanimously
appoint another member of the Board to act at the
meeting in the place of any such absent or disqualified
member.
(iii) Any such committee, to the extent provided in the
resolution of the Board, shall have and may exercise all
the powers and authority of the Board in the management
of the business and affairs of the Company. Such
committee or committees shall have such name or names as
may be determined from time to time by resolution
adopted by the Board. Each committee shall keep regular
minutes of its meetings and report the same to the Board
when required. If not otherwise specified by the Board,
unless there is only one member of a committee (in which
case one member shall constitute a quorum for the
transaction of business), one-third of the entire
committee, or two members, whichever is greater, shall
constitute a quorum for the transaction of business.
g. Compensation of Managers; Expenses. The Board shall have the
authority to fix the compensation of Managers. The Manager may
be paid their
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expenses, if any, of attendance at meetings of the Board,
which may be a fixed sum for attendance at each meeting of the
Board and/or a stated retainer for each Manager. No such
payment shall preclude any Manager from serving the Company in
any other capacity and receiving compensation therefor.
Members of special or standing committees may be allowed like
compensation for attending committee meetings.
h. Removal of Managers. Unless otherwise restricted by law, any
Manager or the entire Board of Mangers may be removed, with or
without cause, by the Member, and, any vacancy caused by any
such removal may be filled by action of the Member.
i. Managers as Agents. To the extent of their powers set forth in
this Agreement the Managers are agents of the Company for the
purpose of the Company's business, and the actions of the
Managers taken in accordance with such powers set forth in
this Agreement shall bind the Company. However, except as
provided in this Agreement, no Manager shall have the
authority to bind the Company in his or her individual
capacity. Any and all actions of the Board must be taken at a
duly authorized meeting of the Board or upon unanimous written
consent of the Board.
10. Duties of Managers.
Except as provided in this Agreement, in exercising their rights and
performing their duties under this Agreement, the Managers shall have a
fiduciary duty of loyalty and care similar to that of a director of a business
corporation organized under the New Jersey Business Corporation.
11. Officers.
a. Officers. The initial Officers of the Company are listed on
Schedule E attached hereto. The Officers of the Company shall
be chosen by the Board and shall consist of a Chairman of the
Board, a President, a Secretary and a Treasurer. The Board of
Managers may also choose one or more Executive Vice
Presidents, Senior Vice Presidents, one or more Vice
Presidents, one or more Assistant Secretaries and one or more
Assistant Treasurers. Any number of offices may be held by the
same person. Each Officer shall hold office until his or her
successor is elected and qualified or until such officer's
earlier resignation or removal. Any Officer may resign at any
time upon written notice to the Company. In addition, the
Board may appoint such other Officers and agents as it shall
deem necessary or advisable who shall hold their offices for
such terms and shall exercise such powers and perform such
duties as shall be determined from time to time by the Board.
The salaries of all Officers and employees of the Company
shall be fixed by or in the manner prescribed by the Board.
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Any initial Officer or any Officer elected or appointed by the
Board may be removed at any time, with or without cause, by
the affirmative vote of a majority of the Board. Any vacancy
occurring in any office of the Company shall be filled by the
Board. The Chairman of the Board, the President, each
Executive Vice President, each Senior Vice President and each
Vice President, severally, shall have the power to sign deeds,
contracts and other instruments; to attend, act and vote at
any meeting of stockholders, partners, members, beneficial
owners or the substantial equivalent of any corporation,
partnership (limited and general), limited liability company,
trust or any other entity in which the Company may hold stock,
partnership interests, limited liability company interests,
beneficial interests or other interests and to appoint, if
permitted by the relevant entity, one or more other persons as
proxy or proxies to attend, act, and vote at any such meeting
and such officer or such proxy or proxies shall possess and
may exercise on behalf of the Company any and all rights and
powers incident to its ownership of such stock, partnership
interests, limited liability company interests, beneficial
interests or other interests; and shall have such powers and
perform such duties as may be assigned by the Board of
Managers, and any Committee of the Board, or the chief
executive officer, in addition to any powers and duties that
are assigned specifically by this Agreement.
b. Chairman of the Board. The Chairman of the Board shall preside
at all meetings of the Board of Managers, and shall have such
other powers and perform such other duties as may be assigned
to him by the Board of Managers. The Chairman of the Board
shall be the chief executive officer of the Company with
plenary powers of supervision and direction of the business
and affairs of the Company.
c. President. The President shall have charge of the coordination
and supervision of all matters of operation of the Company. In
the absence of the Chairman of the Board, the President shall
have the powers and perform the duties of the Chairman of the
Board.
d. Executive Vice President. The Executive Vice Presidents,
severally, in the order designated by the chief executive
officer, shall, in the absence of the President, have the
powers and perform the duties of the President, and in the
absence of the Chairman of the Board and the President, they
shall have the powers and perform the duties of the Chairman
of the Board.
e. Senior Vice President. The Senior Vice Presidents, severally,
in the order designated by the chief executive officer, shall,
in the absence of the President and the Executive Vice
Presidents, have the powers and perform the duties of the
President, and in the absence of the Chairman of the
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Board, the President and the Executive Vice Presidents, they
shall have the powers and perform the duties of the Chairman
of the Board.
f. Vice President. The Vice Presidents, severally, in the order
designated by the chief executive officer, shall, in the
absence of the President, Executive Vice Presidents and the
Senior Vice Presidents, have the powers and perform the duties
of the President, and in the absence of the Chairman of the
Board, the President and the Executive Vice Presidents and the
Senior Vice Presidents, they shall have the powers and perform
the duties of the Chairman of the Board.
g. Secretary and Assistant Secretary. The Secretary shall be
responsible for filing legal documents and maintaining records
for the Company. The Secretary shall attend all meetings of
the Board and all meetings of the Members, if any, and record
all the proceedings of the meetings of the Company and of the
Board and shall perform like duties for special and standing
committees when required. The Secretary shall give, or cause
to be given, notice of all meetings of the Members, if any,
and special meetings of the Board, and shall perform such
other duties as may be prescribed by the Board, the Chairman
of the Board or the President, under whose supervision the
Secretary shall serve. The Assistant Secretary, or if there be
more than one, the Secretaries in the order determined by the
Board (or if there be no such determination' then in order of
their election), shall, in the absence of the Secretary or in
the event of the Secretary's inability to act, perform the
duties and exercise the powers of the Secretary and shall
perform such other duties and have such other powers as the
Board may from time to time prescribe.
h. Treasurer and Assistant Treasurer. The Treasurer shall have
the authority to open all bank accounts, including brokerage
accounts, as necessary to conduct the business of the Company,
and shall have custody of the Company funds and securities and
shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Company and shall
deposit all moneys and other valuable effects in the name and
to the credit of the Company in such depositories as may be
designated by the Board or the Treasurer. The Treasurer shall
disburse the funds of the Company as may be ordered by the
Board, taking proper vouchers for such disbursements, and
shall render to the Chairman of the Board, the President and
to the Board, at its regular meetings or when the Board so
requires, an account of all of the Treasurer's transactions
and of the financial condition of the Company. The Assistant
Treasurer, or if there shall be more than one, the Assistant
Treasurers in the order determined by the Board (or if there
be no such determination, then in the order of their
election), shall, in the absence of the Treasurer or in the
event of the
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Treasurer's inability to act, perform the duties and exercise
the powers of the Treasurer and shall perform such other
duties and have such other powers as the Board may from time
to time prescribe.
i. Officers as Agents. The Officers, to the extent of their
powers set forth in this Agreement or otherwise vested in them
by action of the Board not inconsistent with this Agreement,
are agents of the Company for the purpose of the Company's
business, and, the actions of the Officers taken in accordance
with such powers shall bind the Company.
j. Duties of Officers. Except to the extent otherwise provided
herein, each Officer shall have a fiduciary duty of loyalty
and care similar to that of officers of business corporations
organized under the New Jersey Business Corporation Act.
12. Limited Liability.
Except as otherwise expressly provided by the Act, the debts, obligations
and liabilities of the Company, whether arising in contract, tort or otherwise,
shall be the debts, obligations and liabilities solely of the Company, and
neither any Member nor any Manager nor any Officer shall be obligated personally
for any such debt, obligation or liability of the Company solely by reason of
being a Member, a Manager or an Officer of the Company.
13. Capital Contributions.
The Member shall be deemed admitted as the Member of the Company effective
as of the date of this Agreement. The Initial Member shall contribute the amount
of cash to the Company listed on Schedule B attached hereto.
14. Additional Contributions.
The Initial Member is not required to make any additional capital
contribution to the Company. However, a Member may make additional capital
contributions to the Company at any time upon the written consent of such
Member. To the extent that the Member makes an additional capital contribution
to the Company, Schedule B of this Agreement does not need to be revised;
rather, the Secretary or Treasurer shall modify the books and records of the
Company to reflect such additional capital contribution. The provisions of this
Agreement, including this Section 14, are intended solely to benefit the Member
and, to the fullest extent permitted by law, shall not be construed as
conferring any benefit upon any creditor of the Company (and no such creditor of
the Company shall be a third-party beneficiary of this Agreement) and no Member
shall have any duty or obligation to any creditor of the Company to make any
contribution to the Company or to issue any call for capital pursuant to this
Agreement.
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15. Certificate of Common Interest.
The interest of the Members in the Company shall be evidenced by
certificates issued by the Company in the form determined by the Company.
16. Allocation of Profits and Losses.
The Company's profits and losses shall be allocated to the Member.
17. Distributions.
Distributions shall be made to the Member at the times and in the
aggregate amounts determined by the Board. Notwithstanding any provision to the
contrary contained in this Agreement, the Company shall not be required to make
a distribution to any Member on account of its interest in the Company if such
distribution would violate the Act or any other applicable law.
18. Books and Records.
The Board shall keep or cause to be kept complete and accurate books of
account and records with respect to the Company's business. Each Member and its
duly authorized representatives shall have the right to examine the Company
books, records and documents during normal business hours. The Company, and the
Board on behalf of the Company, shall not have the right to keep confidential
from the Member any information that the Board would otherwise be permitted to
keep confidential from the Member pursuant to the Act. The Company's books of
account shall be kept using the method of accounting determined by the Board.
The Company's independent auditor shall be an independent public accounting firm
selected by the Member.
19. Exculpation and Indemnification.
a. No Member, Officer, Manager, employee or agent of the Company
and no employee, representative, agent or Affiliate of the
Member (collectively, the "Covered Persons") shall be liable
to the Company or any other Person who has an interest in or
claim against the Company for any loss, damage or claim
incurred by reason of any act or omission performed or omitted
by such Covered Person in good faith on behalf of the Company
and in a manner reasonably believed to be within the scope of
the authority conferred on such Covered Person by this
Agreement, except that a Covered Person shall be liable for
any such loss, damage or claim incurred by reason of such
Covered Person's willful misconduct.
b. To the fullest extent permitted by applicable law, a Covered
Person shall be entitled to indemnification from the Company
for any loss, damage or claim incurred by such Covered Person
by reason of any act or omission
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performed or omitted by such Covered Person in good faith on
behalf of the Company and in a manner reasonably believed to
be within the scope of the authority conferred on such Covered
Person by this Agreement, except that no Covered Person shall
be entitled to be indemnified in respect of any loss, damage
or claim incurred by such Covered Person by reason of such
Covered Person's willful misconduct with respect to such acts
or omissions; provided, however, that any indemnity under this
Section 18 shall be provided out of and to the extent of
Company assets only, and no Member shall have personal
liability on account thereof.
c. To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by a Covered Person defending
any claim, demand, action, suit or proceeding shall, from time
to time, be advanced by the Company prior to the final
disposition of such claim, demand, action, suit or proceeding
upon receipt by the Company of an undertaking by or on behalf
of the Covered Person to repay such amount if it shall be
determined that the Covered Person is not entitled to be
indemnified as authorized in this Section 18.
d. A Covered Person shall be fully protected in relying in good
faith upon the records of the Company and upon such
information, opinions, reports or statements presented to the
Company by any Person as to matters the Covered Person
reasonably believes are within such other Person's
professional or expert competence and who has been selected
with reasonable care by or on behalf of the Company, including
information, opinions, reports or statements as to the value
and amount of the assets, liabilities, or any other facts
pertinent to the existence and amount of assets from which
distributions to the Member might properly be paid.
e. To the extent that, at law or in equity, a Covered Person has
duties (including fiduciary duties) and liabilities relating
thereto to the Company or to any other Covered Person, a
Covered Person acting under this Agreement shall not be liable
to the Company or to any other Covered Person for its good
faith reliance on the provisions of this Agreement or any
approval or authorization granted by the Company or any other
Covered Person. The provisions of this Agreement, to the
extent that they restrict the duties and liabilities of a
Covered Person otherwise existing at law or in equity, are
agreed by the Member to replace such other duties and
liabilities of such Covered Person.
f. The Company may purchase and maintain insurance, to the extent
and in such amounts as the Treasurer, in his sole discretion,
shall deem reasonable, on behalf of Covered Persons and such
other persons or entities as the Treasurer shall determine,
against any liability that may be asserted against or expenses
that may be incurred by any such person or
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entity in connection with the activities of the Company or
such indemnities, regardless of whether the Company would have
the power to indemnify such person or entity against such
liability under the provisions of this Agreement. The Company
may enter into indemnity contracts with Covered Persons and
such other persons or entities as the Board shall determine
and adopt written procedures pursuant to which arrangements
are made for the advancement of expenses and the funding of
obligations under Section 18(c) and containing such other
procedures regarding indemnification as are appropriate.
g. The foregoing provisions of this Section 18 shall survive any
termination of this Agreement.
20. Assignments.
The Member may assign in whole or in part its limited liability company
interest in the Company. If the Member transfers any or all of its limited
liability company interest in the Company pursuant to this Section 19, the
transferee shall be admitted to the Company as a member of the Company upon its
execution of an instrument signifying its agreement to be bound by the terms and
conditions of this Agreement, which instrument may be a counterpart signature
page to this Agreement. Such admission shall be deemed effective immediately
prior to the transfer, and, if the transfer is a transfer of the transferor
Member's entire limited liability company interest in the Company, the
transferor Member shall cease to be a member of the Company immediately
following such admission.
21. Resignation.
A Member may resign from the Company with the written consent of the
Initial Member. If a Member is permitted to resign pursuant to this Section 20,
an additional member of the Company may be admitted to the Company, subject to
Section 21, upon its execution of an instrument signifying its agreement to be
bound by the terms and conditions of this Agreement, which instrument may be a
counterpart signature page to this Agreement. Such admission shall be deemed
effective immediately prior to the resignation, and, immediately following such
admission, the resigning Member shall cease to be a member of the Company.
22. Admission of Additional Members.
One or more additional members of the Company may be admitted to the
Company with the written consent of the Member.
23. Dissolution.
a. The Company shall be dissolved, and its affairs shall be wound
up upon the first to occur of the following: (i) the
retirement, resignation or dissolution of the last remaining
Member or the occurrence of any other
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event which terminates the continued membership of the last
remaining Member in the Company unless the business of the
Company is continued in a manner permitted by the Act or (ii)
the entry of a decree of judicial dissolution under the Act.
b. The bankruptcy (as defined in the Act) of the Member shall not
cause the Member to cease to be a member of the Company and
upon the occurrence of such an event, the business of the
Company shall continue without dissolution.
c. In the event of dissolution, the Company shall conduct only
such activities as are necessary to wind up its affairs
(including the sale of the assets of the Company in an orderly
manner), and the assets of the Company shall be applied in the
manner, and in the order of priority, set forth in the Act.
24. Waiver of Partition; Nature of Interest.
Except as otherwise expressly provided in this Agreement, to the fullest
extent permitted by law, each Member hereby irrevocably waives any right or
power that such Member might have to cause the Company or any of its assets to
be partitioned, to cause the appointment of a receiver for all or any portion of
the assets of the Company, to compel any sale of all or any portion of the
assets of the Company pursuant to any applicable law or to file a complaint or
to institute any proceeding at law or in equity to cause the dissolution,
liquidation, winding up or termination of the Company. No Member shall have any
interest in any specific assets of the Company, and no Member shall have the
status of a creditor with respect to any distribution pursuant to Section 16
hereof. The interest of the Members in the Company is personal property.
25. Benefits of Agreement: No Third-Party Rights.
None of the provisions of this Agreement shall be for the benefit of or
enforceable by any creditor of the Company or by any creditor of any Member.
Nothing in this Agreement shall be deemed to create any right in any Person
(other than Covered Persons) not a party hereto, and this Agreement shall not be
construed in any respect to be a contract in whole or in part for the benefit of
any third Person.
26. Other Business.
The Member may engage in or possess an interest in other business ventures
(unconnected with the Company) of every kind and description, independently or
with others. The Company shall not have any rights in or to such independent
ventures or the income or profits therefrom by virtue of this Agreement.
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27. Severability of Provisions.
Each provision of this Agreement shall be considered severable and if for
any reason any provision or provisions herein are determined to be invalid,
unenforceable or illegal under any existing or future law, such invalidity,
unenforceability or illegality shall not impair the operation of or affect those
portions of this Agreement which are valid, enforceable and legal.
28. Entire Agreement.
This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof.
29. Governing Law.
This Agreement shall be governed by and construed under the laws of the
State of New Jersey (without regard to conflict of laws principles), all rights
and remedies being governed by said laws.
30. Amendments.
This Agreement may not be modified, altered, supplemented or amended
except pursuant to a written instrument executed and delivered by the Member.
31. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original of this Agreement and all of which together
shall constitute one and the same instrument
32. Notices.
Any notices required to be delivered hereunder shall be in writing and
personally delivered, mailed or sent by telecopy, electronic mail, or other
similar form of rapid transmission, and shall be deemed to have been duly given
upon receipt (a) in the case of the Company, to the Company at its address in
Section 2, (b) in the case of a Member, to such Member at its address as listed
on Schedule B attached hereto and (c) in the case of either of the foregoing, at
such other address as may be designated by written notice to the other party.
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby,
has duly executed this Agreement as of the 2nd day of October, 2002.
MEMBER:
PUBLIC SERVICE ENTERPRISE GROUP
INCORPORATED
By: /s/ Robert J. Dougherty, Jr.
--------------------------------
Name: Robert J. Dougherty, Jr.
Title: Vice President
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SCHEDULE A
Definitions
A. Definitions
When used in this Agreement, the following terms not otherwise defined
herein have the following meanings:
"Act" has the meaning set forth in the preamble to this Agreement.
"Affiliate" means with respect to any Person, any other Person directly or
indirectly Controlling or Controlled by or under direct or indirect common
Control with such Person.
"Agreement" means this Limited Liability Company Agreement of the Company,
together with the schedules attached hereto, as amended, restated or
supplemented form time to time.
"Board" or "Board of Managers" means the Board of Managers of the Company.
"Certificate of Formation" means the Certificate of Formation of the
Company filed with the Secretary of State of the State of New Jersey on July 24,
2002, as amended or amended and restated from time to time. For the purposes of
this Agreement, the term "Certificate of Formation" incorporates the Certificate
of Amendment of the Certificate of Formation of the Company filed with the
Secretary of the State of New Jersey on October 2, 2002. The Certificate of
Amendment changed the Company's name from its prior name, PSEGH LLC, to its
current name.
"Control" means the possession, directly or indirectly, or the power to
direct or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities or general partnership or managing
member interests, by contract or otherwise. "Controlling" and "Controlled" shall
have correlative meanings. Without limiting the generality of the foregoing, a
Person shall be deemed to Control any other Person in which it owns, directly or
indirectly, a majority of the ownership interests.
"Covered Persons" has the meaning set forth in Section 18a.
"Initial Member" means Public Service Enterprise Group Incorporated, a New
Jersey corporation, as the sole member of the Company.
"Management Agreement" means the agreement of the Managers in the form
attached hereto as Schedule D. The Management Agreement shall be deemed to be
and constitute part of this Agreement.
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"Managers" means the managers elected to the Board of Managers from time
to time by the Member.
"Member" means the Initial Member and includes any Person admitted as an
additional member of the Company or a substitute member of the Company pursuant
to the provisions of this Agreement.
"Officer" means an officer of the Company described in Section 11.
"Person" means any individual, corporation, partnership, joint venture,
limited liability company, limited liability partnership, association,
joint-stock company, trust, unincorporated organization, or other organization,
whether or not a legal entity, and any governmental authority.
B. Rules of Construction
Definitions in this Agreement apply equally to both the singular and
plural forms of the defined terms. The words "include" and "including" shall be
deemed to be followed by the phrase "without limitation." The terms "herein,"
"hereof"' and "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular Section, paragraph or
subdivision. The Section titles appear as a matter of convenience only and shall
not affect the interpretation of this Agreement. All Section, paragraph, clause,
Exhibit or Schedule references not attributed to a particular document shall be
references to such parts of this Agreement.
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SCHEDULE B
Members
Agreed Value
of Capital Percentage
Name Mailing Address Contribution Interest
- ---- --------------- ------------ --------
Public Service Enterprise 80 Park Plaza $1,000 100%
Group Incorporated P.O. Box 1171
Newark, NJ 07102-1171
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SCHEDULE C
Managers
Name Address
- ---- -------
Robert E. Busch c/o Public Service Enterprise
Group Incorporated
80 Park Plaza, P.O. Box 1171
Newark, NJ 07102-1171
Frank Cassidy c/o Public Service Enterprise
Group Incorporated
80 Park Plaza, P.O. Box 1171
Newark, NJ 07102-1171
Robert J. Dougherty, Jr. c/o Public Service Enterprise
Group Incorporated
80 Park Plaza, P.O. Box 1171
Newark, NJ 07102-1171
E. James Ferland c/o Public Service Enterprise
Group Incorporated
80 Park Plaza, P.O. Box 1171
Newark, NJ 07102-1171
Thomas M. O'Flynn c/o Public Service Enterprise
Group Incorporated
80 Park Plaza, P.O. Box 1171
Newark, NJ 07102-1171
R. Edwin Selover c/o Public Service Enterprise
Group Incorporated
80 Park Plaza, P.O. Box 1171
Newark, NJ 07102-1171
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SCHEDULE D
Management Agreement
October 2, 2002
PSEG Energy Holdings LLC
80 Park Plaza, P.O. Box 1171
Newark, NJ 07102-1171
Re: Management Agreement
PSEG Energy Holdings LLC
Ladies and Gentlemen:
For good and valuable consideration, each of the undersigned persons, who
have been designated as managers of PSEG Energy Holdings LLC, a New Jersey
limited liability company (the "Company"), in accordance with the Limited
Liability Company Agreement of the Company, dated as of October 2, 2002, as it
may be amended or restated from time to time (the "LLC Agreement"), hereby agree
as follows:
1. Each of the undersigned accepts such person's rights and authority
as a Manager (as defined in the LLC Agreement) under the LLC
Agreement and agrees to perform and discharge such person's duties
and obligations as a Manager under the LLC Agreement, and further
agrees that such rights, authorities, duties and obligations under
the LLC Agreement shall continue until such person's successor as a
Manager is designated or until such person's resignation or removal
as a Manager in accordance with the LLC Agreement. Each of the
undersigned agrees and acknowledges that he or she has been
designated as a "manager" of the Company within the meaning of the
New Jersey Limited Liability Company Act.
2. THIS MANAGEMENT AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW JERSEY, AND ALL RIGHTS
AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
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IN WITNESS WHEREOF, the undersigned have executed this Management
Agreement as of the day and year first above written.
/s/ Robert E. Busch
---------------------------------
Name: Robert E. Busch
/s/ Frank Cassidy
---------------------------------
Name: Frank Cassidy
/s/ Robert J. Dougherty, Jr.
---------------------------------
Name: Robert J. Dougherty, Jr.
/s/ E. James Ferland
---------------------------------
Name: E. James Ferland
/s/ Thomas M. O'Flynn
---------------------------------
Name: Thomas M. O'Flynn
/s/ R. Edwin Selover
---------------------------------
Name: R. Edwin Selover
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SCHEDULE E
Officers
Elective Officers
Name Title
- ---- -----
E. James Ferland Chairman of the Board and Chief Executive Officer
Thomas M. O'Flynn Executive Vice President and Chief Financial Officer
Robert J. Dougherty, Jr. President and Chief Operating Officer
Derek M. DiRisio Vice President
Miriam E. Gilligan Vice President - Finance and Treasurer
Elizabeth M. Collins Assistant Treasurer
Ardeshir Rostami Assistant Treasurer
Edward J. Biggins, Jr. Secretary
Patrick M. Burke Assistant Secretary
Appointed Officers
Name
- ----
Derek M. DiRisio Controller
Robert N. Oade Assistant Controller
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