THE EQUITABLE LIFE ASSURANCE SOCIETY
OF
THE UNITED STATES
BY-LAWS
As Amended November 21, 1996
THE EQUITABLE LIFE ASSURANCE SOCIETY
OF
THE UNITED STATES
BY-LAWS
Table of Contents
ARTICLE I SHAREHOLDERS................................... 1
Section 1.1 Annual Meetings............................... 1
Section 1.2 Notice of Meetings; Waiver.................... 1
Section 1.3 Organization; Procedure....................... 2
Section 1.4 Action Without a Meeting...................... 2
ARTICLE II BOARD OF DIRECTORS............................. 2
Section 2.1 Regular Meetings.............................. 2
Section 2.2 Special Meetings.............................. 2
Section 2.3 Independent Directors; Quorum................. 2
Section 2.4 Notice of Meetings............................ 3
Section 2.5 Newly Created Directorships;
Vacancies............................ 3
Section 2.6 Presiding Officer............................. 3
Section 2.7 Telephone Participation in
Meetings; Action by Consent
Without Meeting........................ 3
ARTICLE III COMMITTEES..................................... 4
Section 3.1 Committees.................................... 4
Section 3.2 Authority of Committees....................... 5
Section 3.3 Quorum and Manner of Acting................... 5
Section 3.4 Removal of Members............................ 6
Section 3.5 Vacancies..................................... 6
Section 3.6 Subcommittees................................. 6
Section 3.7 Alternate Members of Committees............... 6
Section 3.8 Attendance of Other Directors................. 6
Page 1
ARTICLE IV OFFICERS....................................... 6
Section 4.1 Chairman of the Board......................... 6
Section 4.2 Vice-Chairman of the Board.................... 7
Section 4.3 President..................................... 7
Section 4.4 Chief Executive Officer....................... 7
Section 4.5 Secretary..................................... 7
Section 4.6 Other Officers................................ 8
ARTICLE V CAPITAL STOCK.................................. 8
Section 5.1 Transfers of Stock;
Registered Shareholders................ 8
Section 5.2 Transfer Agent and Registrar.................. 9
ARTICLE VI EXECUTION OF INSTRUMENTS........................ 9
Section 6.1 Execution of Instruments...................... 9
Section 6.2 Facsimile Signatures of
Former Officers......................... 10
Section 6.3 Meaning of Term "Instruments"................. 10
ARTICLE VII GENERAL........................................ 10
Section 7.1 Reports of Committees......................... 10
Section 7.2 Independent Certified
Public Accountants...................... 10
Section 7.3 Directors' Fees............................... 10
Section 7.4 Indemnification of Directors,
Officers and Employees.................. 10
Section 7.5 Waiver of Notice.............................. 11
Section 7.6 Company....................................... 11
ARTICLE VIII AMENDMENT OF BY-LAWS.......................... 11
Section 8.1 Amendment of By-Laws.......................... 11
Section 8.2 Notice of Amendment........................... 12
Page 2
BY-LAWS
OF
THE EQUITABLE LIFE ASSURANCE SOCIETY
OF THE UNITED STATES
ARTICLE I
SHAREHOLDERS
Section 1.1. Annual Meetings. The annual meeting of the shareholders of the
Company for the election of Directors and for the transaction of such other
business as properly may come before such meeting shall be held at the principal
office of the Company on the third Wednesday in the month of May at 3:00 P.M.,
local time, or at such other place, within or without the State of New York, or
on such other earlier or later date in April or May or at such other hour as may
be fixed from time to time by resolution of the Board of Directors and set forth
in the notice or waiver of notice of the meeting. [Business Corporation Law
ss.ss. 602(a), (b)]*
Section 1.2. Notice of Meetings; Waiver. The Secretary or any Assistant
Secretary shall cause written notice of the place, date and hour of each meeting
of the shareholders, and, in the case of a special meeting, the purpose or
purposes for which such meeting is called and by or at whose direction such
notice is being issued, to be given, personally or by first class mail, not
fewer than ten nor more than fifty days before the date of the meeting to each
shareholder of record entitled to vote at such meeting.
No notice of any meeting of shareholders need be given to any shareholder
who submits a signed waiver of notice, in person or by proxy, whether before or
after the meeting or who attends the meeting, in person or by proxy, without
protesting prior to its conclusion the lack of notice of such meeting. [Business
Corporation Law ss.ss. 605, 606]
Section 1.3. Organization; Procedure. At every meeting of shareholders the
presiding officer shall be the Chairman of the Board or, in the event of his or
her absence or disability, the President or, in his or her absence, any officer
of the Company designated by the shareholders. The order of business and all
other matters of procedure at every meeting of shareholders may be determined by
such presiding officer. The Secretary, or in the event of his or her absence or
disability, an Assistant Secretary or, in his or her absence, an appointee of
the presiding officer, shall act as Secretary of the meeting.
Section 1.4. Action Without a Meeting. Any action required or permitted to
be taken by shareholders may be taken without a meeting on written consent
signed by the holders of all the outstanding shares entitled to vote on such
action. [Business Corporation Law ss. 615]
Page 3
ARTICLE II
BOARD OF DIRECTORS
Section 2.1. Regular Meetings. Regular meetings of the Board of Directors
shall be held at the principal office of the Company on the third Thursday of
each month, except January and August, unless a change in place or date is
ordered by the Board of Directors. The first regular meeting of the Board of
Directors following the annual meeting of the shareholders of the Company is
designated as the Annual Meeting. [Business Corporation Law ss. 710]
Section 2.2. Special Meetings. Special meetings of the Board of Directors
may be called at any time by the Chairman of the Board, the President, or two
directors. [Business Corporation Law ss. 710]
Section 2.3. Independent Directors; Quorum. Not less than one-third of the
Board of Directors shall be persons who are not officers or employees of the
Company or of any entity controlling, controlled by, or under common control
with the Company and who are not beneficial owners of a controlling interest in
the voting stock of the Company or of any such entity.
A majority of the entire Board of Directors, including at least one
Director who is not an officer or employee of the Company or of any entity
controlling, controlled by, or under common control with the Company and who is
not a beneficial owner of a controlling interest in the voting stock of the
Company or of any such entity, shall constitute a quorum for the transaction of
business at any regular or special meeting of the Board of Directors, except as
otherwise prescribed by these By-Laws. Except as otherwise prescribed by law,
the Charter of the Company, or these By-Laws, the vote of a majority of the
Directors present at the time of the vote, if a quorum is present at such time,
shall be the act of the Board of Directors. A majority of the Directors present,
whether or not a quorum is present, may adjourn any meeting from time to time
and from place to place. As used in these By-Laws "entire Board of Directors"
means the total number of directors which the Company would have if there were
no vacancies. [Business Corporation Law ss.ss. 707, 708; Insurance Law ss. 1202]
Section 2.4. Notice of Meetings. Notice of a regular meeting of the Board
of Directors need not be given. Notice of a change in the time or place of a
regular meeting of the Board of Directors shall be given to each Director at
least five days in advance thereof in writing and by telephone or telecopy.
Notice of each special meeting of the Board of Directors shall be given to each
Director at least 24 hours prior to the special meeting, personally or by
telephone or telegram or telecopy, and shall state in general terms the purpose
or purposes of the meeting. Any such notice for a regular or special meeting not
specifically required by this Section 2.4 to be given by telephone or telecopy
shall be deemed given to a director when sent by mail, telegram, cablegram or
radiogram addressed to such director at his or her address furnished to the
Secretary. Notice of an adjourned regular or special meeting of the Board of
Directors shall be given if and as determined by a majority of the directors
present at the time of the adjournment, whether or not a quorum is present.
[Business Corporation Law ss. 711]
Section 2.5. Newly Created Directorships; Vacancies. Any newly created
directorships resulting from an increase in the number of Directors and
vacancies occurring in the Board of Directors for any reasons (including
vacancies resulting from the removal of a Director without cause) shall be
filled by the shareholders of the Company. [Business Corporation Law ss. 705;
Insurance Law ss. 4211]
Section 2.6. Presiding Officer. In the absence or inability to act of the
Chairman of the Board at any regular or special meeting of the Board of
Directors, any Vice-Chairman of the Board, or the President, as designated by
the chief executive officer, shall preside at such meeting. In the absence or
inability to act of all of such officers, the Board of Directors shall select
from among their number present a presiding officer.
Section 2.7. Telephone Participation in Meetings; Action by Consent Without
Meeting. Any Director may participate in a meeting of the Board or any committee
thereof by means of a conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other
at the same time, and such participation shall constitute presence in person at
such meeting; provided that one meeting of the Board each year shall be held
without the use of such conference telephone or similar communication equipment.
When time is of the essence, but not in lieu of a regularly scheduled meeting of
the Board of Directors, any action required or permitted to be taken by the
Board or any committee thereof may be taken without a meeting if all members of
the Board or such committee, as the case may be, consent in writing to the
adoption of a resolution authorizing the action and such written consents and
resolution are filed with the minutes of the Board or such committee, as the
case may be. [Business Corporation Law ss. 708]
Page 4
ARTICLE III
COMMITTEES
Section 3.1. Committees. (a) The Board of Directors, by resolution adopted
by a majority of the entire Board of Directors, may establish from among its
members an Executive Committee of the Board composed of three or more Directors.
Not less than one-third of the members of such committee shall be persons who
are not officers or employees of the Company or of any entity controlling,
controlled by, or under common control with the Company and who are not
beneficial owners of a controlling interest in the voting stock of the Company
or of any such entity.
(b) The Board of Directors, by resolution adopted by a majority of the
entire Board of Directors, shall establish from among its members one or more
committees with authority to discharge the responsibilities enumerated in this
subsection (b). Each such committee shall be composed of three or more Directors
and shall be comprised solely of Directors who are not officers or employees of
the Company or of any entity controlling, controlled by, or under common control
with the Company and who are not beneficial owners of a controlling interest in
the voting stock of the Company or of any such entity. Such committee or
committees shall have responsibility for:
(i) Recommending to the Board of Directors candidates for nomination for
election by the shareholders to the Board of Directors;
(ii) Evaluating the performance of officers deemed by any such committee to
be principal officers of the Company and recommending their selection and
compensation;
(iii) Recommending the selection of independent certified public
accountants;
(iv) Reviewing the scope and results of the independent audit and of any
internal audit; and
(v) Reviewing the Company's financial condition.
(c) The Board of Directors, by resolution adopted from time to time by a
majority of the entire Board of Directors, may establish from among its members
one or more additional committees of the Board, each composed of five or more
Directors. Not less than one-third of the members of each such committee shall
be persons who are not officers or employees of the Company or of any entity
controlling, controlled by, or under common control with the Company and who are
not beneficial owners of a controlling interest in the voting stock of the
Company or of any such entity. [Business Corporation Law ss. 712; Insurance Law
ss. 1202]
Section 3.2. Authority of Committees. Each committee shall have all the
authority of the Board of Directors, to the extent permitted by law and provided
in the resolution creating such committee, provided, however, that no committee
shall have authority as to the following matters:
(a) the submission to shareholders of any action as to which shareholder
approval is required by law;
(b) the filling of vacancies in the Board of Directors or in any committee
thereof;
(c) the fixing of compensation of the Directors for serving on the Board of
Directors or any committee thereof;
(d) the amendment or repeal of the By-Laws, or the adoption of new By-Laws;
or
(e) the amendment or repeal of any resolution of the Board of Directors
unless such resolution of the Board of Directors by its terms provides that it
may be so amended or repealed.
Section 3.3. Quorum and Manner of Acting. A majority of the total
membership that a committee would have if there were no vacancies (including at
least one Director who is not an officer or employee of the Company or of any
entity controlling, controlled by, or under common control with the Company and
who is not a beneficial owner of a controlling interest in the voting stock of
the Company or of any such entity) shall constitute a quorum for the transaction
of business. The vote of a majority of the members present at the time of the
vote, if a quorum is present at such time, shall be the act of such committee.
Except as otherwise prescribed by these By-Laws or by the Board of Directors,
each committee may elect a chairman from among its members, fix the times and
dates of its meetings, and adopt other rules of procedure.
Page 5
Section 3.4. Removal of Members. Any member (and any alternate member) of a
committee may be removed by vote of a majority of the entire Board of Directors.
Section 3.5. Vacancies. Any vacancy occurring in any committee for any
reason may be filled by vote of a majority of the entire Board of Directors.
Section 3.6. Subcommittees. Any committee may appoint one or more
subcommittees from its members. Any such subcommittee may be charged with the
duty of considering and reporting to the appointing committee on any matter
within the responsibility of the committee appointing such subcommittee but
cannot act in place of the appointing committee.
Section 3.7. Alternate Members of Committees. The Board of Directors may
designate, by resolution adopted by a majority of the entire Board of Directors,
one or more directors as alternate members of any committee who may replace any
absent member or members at a meeting of such committee. [Business Corporation
Law ss. 712]
Section 3.8. Attendance of Other Directors. Except as otherwise prescribed
by the Board of Directors, members of the Board of Directors may attend any
meeting of any committee.
Page 6
ARTICLE IV
OFFICERS
Section 4.1. Chairman of the Board. The Board of Directors may at a regular
or special meeting elect from among their number a Chairman of the Board who
shall hold office, at the pleasure of the Board of Directors, until the next
Annual Meeting.
The Chairman of the Board shall preside at all meetings of the Board of
Directors and also shall exercise such powers and perform such duties as may be
delegated or assigned to or required of him or her by these By-Laws or by or
pursuant to authorization of the Board of Directors.
Section 4.2. Vice-Chairman of the Board. The Board of Directors may at a
regular or special meeting elect from among their number one or more
Vice-Chairmen of the Board who shall hold office, at the pleasure of the Board
of Directors, until the next Annual Meeting.
The Vice-Chairmen of the Board shall exercise such powers and perform such
duties as may be delegated or assigned to or required of them by these By-Laws
or by or pursuant to authorization of the Board of Directors or by the Chairman
of the Board.
Section 4.3. President. The Board of Directors shall at a regular or
special meeting elect from among their number a President who shall hold office,
at the pleasure of the Board of Directors, until the next Annual Meeting and
until the election of his or her successor.
The President shall exercise such powers and perform such duties as may be
delegated or assigned to or required of him or her by these By-Laws or by or
pursuant to authorization of the Board of Directors or (if the President is not
the chief executive officer) by the chief executive officer. The President and
Secretary may not be the same person.
Section 4.4. Chief Executive Officer. The Chairman of the Board or the
President shall be the chief executive officer of the Company as the Board of
Directors from time to time shall determine, and the Board of Directors from
time to time may determine who shall act as chief executive officer in the
absence or inability to act of the then incumbent.
Subject to the control of the Board of Directors, and to the extent not
otherwise prescribed by these By-Laws, the chief executive officer shall have
plenary power over all departments, officers, employees, and agents of the
Company, and shall be responsible for the general management and direction of
all the business and affairs of the Company.
Section 4.5. Secretary. The Board of Directors shall at a regular or
special meeting elect a Secretary who shall hold office, at the pleasure of the
Board of Directors, until the next Annual Meeting and until the election of his
or her successor.
The Secretary shall issue notices of the meetings of the shareholders and
the Board of Directors and its committees, shall keep the minutes of the
meetings of the shareholders and the Board of Directors and its committees and
shall have custody of the Company's corporate seal and records. The Secretary
shall exercise such powers and perform such other duties as relate to the office
of the Secretary, and also such powers and duties as may be delegated or
assigned to or required of him or her by or pursuant to authorization of the
Board of Directors or by the Chairman of the Board or (if the Chairman of the
Board is not the chief executive officer) the chief executive officer.
Section 4.6. Other Officers. The Board of Directors may elect such other
officers as may be deemed necessary for the conduct of the business of the
Company. Each such officer elected by the Board of Directors shall exercise such
powers and perform such duties as may be delegated or assigned to or required of
him or her by the Board of Directors or the chief executive officer, and shall
hold office until the next Annual Meeting, but at any time may be suspended by
the chief executive officer or by the Board of Directors, or removed by the
Board of Directors. [Business Corporation Law ss.ss. 715, 716]
Page 7
ARTICLE V
CAPITAL STOCK
Section 5.1. Transfers of Stock; Registered Shareholders. (a) Shares of
stock of the Company shall be transferable only upon the books of the Company
kept for such purpose upon surrender to the Company or its transfer agent or
agents of a certificate (unless such shares shall be uncertificated shares)
representing shares, duly endorsed or accompanied by appropriate evidence of
succession, assignment or authority to transfer. Within a reasonable time after
the transfer of uncertificated shares, the Company shall send to the registered
owner thereof a written notice containing the information required to be set
forth or stated on certificates.
(b) Except as otherwise prescribed by law, the Board of Directors may make
such rules, regulations and conditions as it may deem expedient concerning the
subscription for, issue, transfer and registration of, shares of stock. Except
as otherwise prescribed by law, the Company, prior to due presentment for
registration of transfer, may treat the registered owner of shares as the person
exclusively entitled to vote, to receive notifications, and otherwise to
exercise all the rights and powers of an owner. [Business Corporation Law ss.
508(d), (f); Insurance Law ss. 4203]
Section 5.2 Transfer Agent and Registrar. The Board of Directors may
appoint one or more transfer agents and one or more registrars, and may require
all certificates representing shares to bear the signature of any such transfer
agents or registrars. The same person may act as transfer agent and registrar
for the Company.
Page 8
ARTICLE VI
EXECUTION OF INSTRUMENTS
Section 6.1. Execution of Instruments. (a) Any one of the following,
namely, the Chairman of the Board, any Vice-Chairman of the Board, the
President, any Vice-President (including a Deputy or Assistant Vice-President or
any other Vice-President designated by a number or a word or words added before
or after the title Vice-President to indicate his or her rank or
responsibilities), the Secretary, or the Treasurer, or any officer, employee or
agent designated by or pursuant to authorization of the Board of Directors or
any committee created under these By-Laws, shall have power in the ordinary
course of business to enter into contracts or execute instruments on behalf of
the Company (other than checks, drafts and other orders drawn on funds of the
Company deposited in its name in banks) and to affix the corporate seal. If any
such instrument is to be executed on behalf of the Company by more than one
person, any two or more of the foregoing or any one or more of the foregoing
with an Assistant Secretary or an Assistant Treasurer shall have power to
execute such instrument and affix the corporate seal.
(b) The signature of any officer may be in facsimile on any such instrument
if it shall also bear the actual signature, or personally inscribed initials, of
an officer, employee or agent empowered by or pursuant to the first sentence of
this Section to execute such instrument, provided that the Board of Directors or
a committee thereof may authorize the issuance of insurance contracts and
annuity contracts on behalf of the Company bearing the facsimile signature of an
officer without the actual signature or personally inscribed initials of any
person.
(c) All checks, drafts and other orders drawn on funds of the Company
deposited in its name in banks shall be signed only pursuant to authorization of
and in accordance with rules prescribed from time to time by the Board of
Directors or a committee thereof, which rules may permit the use of facsimile
signatures.
Section 6.2. Facsimile Signatures of Former Officers. If any officer whose
facsimile signature has been placed upon any instrument shall have ceased to be
such officer before such instrument is issued, it may be issued with the same
effect as if he or she had been such officer at the time of its issue.
Section 6.3. Meaning of Term "Instruments". As used in this Article VI, the
term "instruments" includes, but is not limited to, contracts and agreements,
checks, drafts and other orders for the payment of money, transfers of bonds,
stocks, notes and other securities, and powers of attorney, deeds, leases,
releases of mortgages, satisfactions and all other instruments entitled to be
recorded in any jurisdiction.
Page 9
ARTICLE VII
GENERAL
Section 7.1. Reports of Committees. Reports of any committee charged with
responsibility for supervising or making investments shall be submitted at the
next meeting of the Board of Directors. Reports of other committees of the Board
of Directors shall be submitted at a regular meeting of the Board of Directors
as soon as practicable, unless otherwise directed by the Board of Directors.
Section 7.2 Independent Certified Public Accountants. The books and
accounts of the Company shall be audited throughout each year by such
independent certified public accountants as shall be selected by the Board of
Directors.
Section 7.3. Directors' Fees. The Directors shall be paid such fees for
their services in any capacity as may have been authorized by the Board of
Directors. No Director who is a salaried officer of the Company shall receive
any fees for serving as a Director of the Company. [Business Corporation Law ss.
713(e)]
Section 7.4. Indemnification of Directors, Officers and Employees. (a) To
the extent permitted by the law of the State of New York and subject to all
applicable requirements thereof:
(i) any person made or threatened to be made a party to any action or
proceeding, whether civil or criminal, by reason of the fact that he or she, or
his or her testator or intestate, is or was a director, officer or employee of
the Company shall be indemnified by the Company;
(ii) any person made or threatened to be made a party to any action or
proceeding, whether civil or criminal, by reason of the fact that he or she, or
his or her testator or intestate serves or served any other organization in any
capacity at the request of the Company may be indemnified by the Company; and
(iii) the related expenses of any such person in any of said categories may
be advanced by the Company.
(b) To the extent permitted by the law of the State of New York, the
Company may provide for further indemnification or advancement of expenses by
resolution of shareholders of the Company or the Board of Directors, by
amendment of these By-Laws, or by agreement. [Business Corporation Law ss.ss.
721-726; Insurance Law ss. 1216]
Section 7.5. Waiver of Notice. Notice of any meeting of the Board of
Directors or any committee thereof shall not be required to be given to any
Director who submits a signed waiver of notice whether before or after the
meeting, or who attends the meeting without protesting, prior to or at its
commencement, the lack of notice to him. [Business Corporation Law ss. 711(c)]
Section 7.6. Company. The term "Company" in these By-Laws means The
Equitable Life Assurance Society of the United States.
Page 10
ARTICLE VIII
AMENDMENT OF BY-LAWS
Section 8.1. Amendment of By-Laws. Subject to Section 1210 of the Insurance
Law of the State of New York, all By-Laws of the Corporation, whether adopted by
the Board of Directors or the shareholders, shall be subject to amendment,
alteration or repeal, and new By-Laws may be made, either
(a) by the shareholders at any annual or special meeting of shareholders
the notice of which shall have specified or summarized the proposed amendment,
alteration, repeal or new By-Laws, or
(b) by resolution adopted by the Board of Directors at any regular or
special meeting, the notice or waiver of notice of which, unless none is
required hereunder, shall have specified or summarized the proposed amendment,
alteration, repeal or new By-Laws,
provided, however, that the shareholders may at any time provide in the By-Laws
that any specified provision or provisions of the By-Laws may be amended,
altered or repealed only in the manner specified in the foregoing clause (a), in
which event such provision or provisions shall be subject to amendment,
alteration or repeal only in such manner. [Business Corporation Law ss. 601(a);
Insurance Law ss. 1210]
Section 8.2. Notice of Amendment. If any By-Law regulating an impending
election of directors is adopted, amended or repealed by the Board of Directors,
there shall be set forth in the notice of the next meeting of shareholders for
the election of directors the By-Law so adopted, amended or repealed, together
with a concise statement of the changes made. [Business Corporation Law ss. 601
(b).]
- - --------
* Citations are to the Business Corporation Law and Insurance Law of the State
of New York, as in effect on [date of adoption], and are inserted for reference
only, and do not constitute a part of the By-Laws.
Page 11