AMERICAN ANNUITY GROUP, INC.
BY-LAWS
RESTATED AS OF
NOVEMBER 15, 1998
BY-LAWS
OF
AMERICAN ANNUITY GROUP, INC.
(hereinafter called the "Corporation")
ARTICLE I.
OFFICES
Section A. Registered Office.
The registered office of the Corporation shall be in the
City of Wilmington, County of New Castle, State of Delaware.
Section B. Other Offices.
The Corporation may also have offices at such other places
both within and without the State of Delaware as the Board of
Directors may from time to time determine.
ARTICLE II.
MEETINGS OF STOCKHOLDERS
Section A. Place of Meetings.
Meetings of the stockholders for the election of directors
or for any other purpose shall be held at such time and place,
either within or without the State of Delaware, as shall be
designated from time to time by the Board of Directors and stated
in the notice of the meeting or in a duly executed waiver of
notice thereof.
Section B. Annual Meeting.
The annual meeting of stockholders shall be held on such
date and at such time as shall be designated by the Board of
Directors and stated in the notice of the meeting, at which
meeting the stockholders shall elect a Board of Directors and
transact such other business as may properly be brought before
the meeting. Written notice of the annual meeting stating the
place, date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less than ten
nor more than sixty days before the date of the meeting.
Section C. Special Meetings.
Special meetings of stockholders, or of the holders of any
class or series of capital stock, may be called by the Board of
Directors, the Chairman of the Board and Chief Executive Officer
or such other person or persons as may be authorized by law, the
Certificate of Incorporation or the terms of a class or series of
capital stock. Written notice of a special meeting stating the
place, date and hour of the meeting and the purpose or purposes
for which the meeting is called shall be given not less than ten
nor more than sixty days before the date of the meeting to each
stockholder entitled to vote at such meeting.
Section D. Quorum.
The presence at a meeting, in person or by proxy, of the
holders of outstanding shares of capital stock entitled to cast
at least a majority of the votes which all stockholders are
entitled to cast on any matter to come before the meeting shall
constitute a quorum for the purpose of considering such matters
at the meeting; provided, however, that whenever under the
provisions of law, the Certificate of Incorporation or a class or
series of capital stock, the holders of such class or series are
entitled to vote on any matter as a separate class or series of
capital stock, the presence at the meeting in person or by proxy,
of the holders of shares of such class or series entitled to cast
at least a majority of the votes which all stockholders of the
particular class or series are entitled to cast on the particular
matter to be voted on shall constitute a quorum of such class or
series for the purpose of considering such matter. If a quorum
is not present for the purpose of considering any matter, those
present in person and by proxy may adjourn the consideration of
such matter to an adjourned meeting at such time and place as
they may determine. At such adjourned meeting at which a quorum
shall be present or represented, any business may be transacted
which might have been transacted at the meeting as originally
noticed. If the adjournment is for more than thirty days, or if
after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder entitled to vote at the meeting.
Section E. Voting.
Unless otherwise required by law, the Certificate of
Incorporation or these By-laws, any matter brought before any
meeting of stockholders shall be decided by the vote of the
holders of a majority of the shares of capital stock present in
person or represented by proxy at such meeting and entitled to
vote on such matter. Every stockholder entitled to vote may vote
either in person or by proxy but no proxy shall be voted on after
three years from its date, unless such proxy provides for a
longer period. The Board of Directors, in its discretion, or the
officer of the Corporation presiding at the meeting of
stockholders, in his discretion, may require that any votes cast
at such meeting shall be cast by written ballot.
Section F. Presiding Officer.
The Chairman of the Board and Chief Executive Officer, or in
his absence the President, shall act as chairman of each meeting
of stockholders, or of the holders of a class or series of
capital stock, unless another person has been designated for such
purpose by the Board of Directors. In the absence of the
Chairman of the Board and Chief Executive Officer, the President
or a person designated by the Board of Directors, the chairman of
the meeting shall be chosen by a majority of the votes cast by
the holders of the shares of capital stock present in person or
by proxy and entitled to vote at such meeting. The Secretary, an
Assistant Secretary or such other person as the Board of
Directors may designate or in their absence a person whom the
chairman of the meeting shall appoint, shall act as secretary of
the meeting and keep the minutes thereof.
Section G. List of Stockholders Entitled to Vote.
The officer of the Corporation who has charge of the stock
ledger of the Corporation shall cause to be prepared and made, at
least ten days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced
and kept at the time and place of the meeting during the whole
time thereof, and may be inspected by any stockholder of the
Corporation who is present.
ARTICLE III.
DIRECTORS
Section A. Duties and Powers.
The business of the Corporation shall be managed by or under
the direction of the Board of Directors which may exercise all
such powers of the Corporation and do all such lawful acts and
things as are not by law or by the Certificate of Incorporation
or these By-laws directed or required to be exercised or done by
the stockholders.
Section B. Number and Election of Directors.
The Board of Directors shall consist of not less than three
members, the exact number of which shall initially be fixed by
the Incorporator and thereafter from time to time by resolution
adopted by a majority of the total number of directors then in
office. Except as provided in Section 3 of this Article III,
directors shall be elected by a plurality of the votes cast at
annual meetings of stockholders, and each director so elected
shall hold office until the next annual meeting and until his
successor is duly elected and qualified, or until his earlier
resignation or removal. Any director may resign at any time upon
notice to the Corporation. Directors need not be stockholders.
Section C. Vacancies.
Unless otherwise provided in the Certificate of
Incorporation or required by law, vacancies in the Board of
Directors and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a
majority of the directors then in office, though less than a
quorum, or by a sole remaining director, and any director so
chosen shall hold office until the next annual meeting of
stockholders and until his successor is duly elected and
qualified, or until his earlier resignation or removal.
Section D. Meetings.
1. Regular Meetings. Regular meetings of the Board of
Directors shall be held on dates specified by the Board of
Directors, or if it fails to so specify, as called by the
Chairman of the Board and Chief Executive Officer. Notice of
regular meetings shall be given unless otherwise ordered by the
Board of Directors.
2. Special Meetings. Special meetings of the Board of
Directors may be called at any time by the Chairman of the Board
and Chief Executive Officer or the President and shall be called
by either of them upon the written request of not less than three
directors. Notice of the time, place and general nature of the
business to be transacted at each special meeting shall be given
by the Secretary to each director before such meeting.
3. Place Meetings of the Board of Directors shall be held
at such place as the Board of Directors, the Chairman of the
Board and Chief Executive Officer or the President may designate
within or without the State of Delaware.
4. Notice of Meetings. Notice of each special meeting of
the Board of Directors, or of any regular meeting of which notice
is to be given, shall specify the date, place and time of the
meeting and shall be given to each director at least 24 hours
before the meeting if given personally or by telephone, at least
48 hours if given by telegram or similar mode of communication,
and at least three days before the meeting if given by mail.
Notice of any meeting shall be deemed to be given when a.
personally delivered, b. mailed by first class United States
mail, postage prepaid, addressed to the business address of the
director or c. a telegram or similar mode of communication is
delivered to the telegraph or other transmitting company
addressed to the business address of the director. Any director
may waive notice of any meeting before or after the meeting. The
attendance of a director at a meeting shall constitute a waiver
of notice of such meeting, except where the director attends a
meeting for the express purpose of objecting to the transaction
of any business because the meeting is not lawfully called or
convened.
5. Organization. At each meeting of the Board of
Directors, the Chairman of the Board or in his absence a director
previously designated by the Board of Directors by resolution, or
if a director has not been so designated, a director chosen by a
majority of the directors present at the meeting, shall act as
chairman of the meeting. The Secretary, or in his absence an
Assistant Secretary, or in the absence of the Secretary and all
Assistant Secretaries, a person whom the chairman of the meeting
shall appoint, shall act as secretary of such meeting and keep
the minutes thereof.
Section E. Quorum.
Except as otherwise provided by law, the Certificate of
Incorporation or these By-laws, a majority of the total number of
directors then in office shall constitute a quorum for the
transaction of business at any meeting of the Board of Directors,
and the act of a majority of the directors present at a meeting
at which a quorum is present shall be the act of the Board of
Directors. If a quorum shall not be present at any meeting of
the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section F. Actions by Written Consent.
Unless otherwise provided by law, the Certificate of
Incorporation or these By-laws, any action required or permitted
to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting if all the
members of the Board of Directors 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 of Directors
or committee.
Section G. Meetings by Means of Conference Telephone.
Unless otherwise provided by law, the Certificate of
Incorporation or these By-laws, members of the Board of
Directors, or of any committee thereof, may participate in a
meeting of the Board of Directors or committee, as the case may
be, by means of a conference telephone or similar communications
equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting
pursuant to this Section 7 shall constitute presence in person at
such meeting.
Section H. Committees.
1. Committees. The Board of Directors may, by resolution
adopted by a majority of the total number of directors then in
office, designate such committees as it may deem appropriate,
each committee to consist of one or more directors of the
Corporation and to have such functions, duties and powers as the
Board of Directors from time to time may specify by resolution.
Except as otherwise provided in Section 8(b) of this Article III,
any such committee shall have and exercise the authority of the
Board of Directors to the extent provided in the resolution(s)
designating the committee.
2. Limitations on Committees' Authority. No committee
shall have or exercise the authority of the Board of Directors
over the business of the Corporation in respect of a. matters the
delegation of which to a committee shall be limited by, or
contrary to, law, the Certificate of Incorporation or these By-
laws, b. amending the Certificate of Incorporation or these By-
laws, c. filing vacancies in the Board of Directors, d. declaring
a dividend, e. electing or removing officers of the Corporation,
f. adopting or approving a plan of merger, consolidation or sale
of a substantial portion of the assets of the Corporation or the
dissolution or reorganization of the Corporation or g. such other
matters as may be specified by the Board of Directors.
3. Committee Minutes and Meetings. Each committee shall
fix the time and place of its meetings and shall meet on the call
of its chairman or of any two members of the committee. It shall
keep minutes of its meetings and report the same to the Board of
Directors. Each committee shall be organized in such manner, not
inconsistent with these By-laws, as it may determine.
4. Quorum. The presence of a majority of the members of a
committee shall constitute a quorum for the transaction of its
business. The act of a majority of the members present at any
meeting of a committee at which a quorum is present shall be the
act of the committee.
Section I. Compensation.
By resolution of the Board of Directors, each director may
be paid his expenses of attendance at each meeting of the Board
of Directors or of a committee thereof and may be paid a stated
fee as a director or committee member, or a stated fee for
attendance at meetings, or both. No such payment shall preclude
any director from serving the Corporation in any other capacity
and receiving compensation therefor.
Section J. Chairman of the Board.
The Chairman of the Board shall be elected by the Board of
Directors and shall serve at the pleasure of the Board of
Directors. He shall act as chairman of each meeting of the Board
of Directors and shall have such other powers and duties as may
be provided in these By-laws or assigned to him by the Board of
Directors.
Section K. Vice Chairman of the Board.
The Board of Directors may also elect a Vice Chairman of the
Board, who shall serve at the pleasure of the Board of Directors.
He shall have such powers and duties as may be assigned to him
from time to time by the Board of Directors.
Section L. Interested Directors.
No contract or transaction between the Corporation and one
or more of its directors or officers, or between the Corporation
and any other corporation, partnership, association or other
organization in which one or more of its directors or officers
are directors or officers, or have a financial interest, shall be
void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting
of the Board of Directors or committee thereof which authorizes
the contract or transaction, or solely because his or their votes
are counted for such purposes, if a. the material facts as to his
or their relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors
or the committee, and the Board of Directors or committee in good
faith authorizes the contract or transaction by the affirmative
votes of a majority of the disinterested directors, even though
the disinterested directors be less than a quorum; or b. the
material facts as to his or their relationship or interest and as
to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the
stockholders; or c. the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or
ratified, by the Board of Directors, a committee thereof or the
stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or
transaction.
ARTICLE IV.
OFFICERS
Section A. Selection of Officers.
1. Principal Officers. The principal officers of the
Corporation shall be elected by the Board of Directors. They
shall include a Chairman of the Board and Chief Executive
Officer, a President, one or more Vice Presidents, a Controller,
a Secretary, a Treasurer and such other principal officers as the
Board of Directors may from time to time determine. Any number
of offices may be held by the same person, unless otherwise
prohibited by law, the Certificate of Incorporation or these By-
laws. Pursuant to the provisions of Section 3 of this Article
IV, every officer elected by the Board of Directors shall serve
at the pleasure of the Board of Directors.
2. Other Officers. Officers of the Corporation, including
assistant officers and subordinate officers other than the
principal officers elected by the Board of Directors pursuant to
Section 1(a) of this Article IV, shall be selected by the
Chairman of the Board and Chief Executive Officer, or such other
officer or officers as he may designate, and shall have such
authority and duties as the Chairman of the Board and Chief
Executive Officer or officer or officers designated by him shall
specify.
Section B. Compensation of Officers
The compensation of the principal officers of the
Corporation shall be fixed by the Board of Directors. The
compensation of other officers or employees of the Corporation
shall be fixed in such manner as the Board of Directors may
determine, or in the absence of such determination, as shall be
fixed by the Chairman of the Board and Chief Executive Officer or
other officer or officers designated by him.
Section C. Removal from Office or Employment.
Any principal officer or other officer of the Corporation,
whether elected or appointed by the Board of Directors, the
Chairman of the Board and Chief Executive Officer or other
officer, and any employee may be removed or discharged at any
time by the Board of Directors whenever in its judgment the best
interests of the Corporation will be served thereby. Unless
otherwise specified by resolution of the Board of Directors, any
officer, other than a principal officer, or employee may be
removed or discharged as such at any time by the Chairman of the
Board and Chief Executive Officer whenever in his judgment the
best interests of the Corporation will be served thereby.
Subject to the foregoing the Board of Directors or the Chairman
of the Board and Chief Executive Officer may delegate to any
officer the power to remove or discharge any other officer or
employee as such, other than a principal officer. The removal of
an officer or employee shall be without prejudice to the contract
rights, if any, of the person so removed.
Section D. Powers and Duties of Specified Officers.
1. Chairman of the Board and Chief Executive Officer. The
Chairman of the Board and Chief Executive Officer shall be the
chief executive officer of the Corporation. He shall have
plenary power over the business and activities of the Corporation
and over its officers and employees, subject, however, to the
control of the Board of Directors and any limitation contained in
these By-laws. The authority and duties of all the officers in
respect of matters not specified or provided for in these By-
laws, and not fixed by action of the Board of Directors, shall be
determined by the Chairman of the Board and Chief Executive
Officer or by an officer or officers to whom he may delegate such
power. In the absence or disability of the Chairman of the Board
and Chief Executive Officer, such director or officer as may be
specified in a resolution of the Board of Directors shall perform
the functions of the Chairman of the Board and Chief Executive
Officer.
2. President. The President shall have powers and perform
such duties as shall from time to time be assigned to him by the
Board of Directors or the Chairman of the Board and Chief
Executive Officer.
3. Vice Presidents. The Vice Presidents shall have such
powers and perform such duties as shall from time to time be
assigned to them by the Board of Directors or the Chairman of the
Board and Chief Executive Officer.
4. Controller. The Controller shall prescribe and have
charge of the system of books and accounts of the Corporation.
He may require reports from the Treasurer and all other officers
or agents of the Corporation who receive or disburse funds for
its account at such times and in such forms as he may deem
desirable.
5. Secretary. The Secretary shall attend all meetings of
the stockholders and the Board of Directors and shall keep an
accurate record of the proceedings at such meetings and shall
notify the several officers of the Corporation of action taken
concerning matters in their respective areas of responsibility.
Upon request of any committee of the Board of Directors, he shall
attend a meeting or meetings of such committee and keep an
accurate record of the proceedings at its meeting or meetings.
He shall have custody of the seal of the Corporation. He shall
give notice of all meetings of stockholders (or of a class or
series of capital stock) and, when requested, of any meeting of
the Board of Directors or a committee thereof. He, or the
designated agent of the Corporation, shall keep and have custody
of the stock books required by law to be kept, and he or one or
more agents approved by the Board of Directors shall transfer all
shares of capital stock of the Corporation.
6. Assistant Secretary. The Assistant Secretary or
Assistant Secretaries shall perform and discharge the duties of
and act for the Secretary in his absence or disability.
7. Treasurer. The Treasurer shall have custody of the
corporate funds and securities of the Corporation. He shall
maintain accounts in such banks or places of deposit, and shall
invest the funds of the Corporation in such manner as the Board
of Directors or a committee thereof may from time to time
designate. He shall disburse the funds of the Corporation. He
shall keep full and accurate accounts of receipts and
disbursements. He shall be bonded with one or more sureties
against loss of money, securities and other property which the
Corporation may sustain through any fraudulent or dishonest act
in the discharge of his duties.
8. Assistant Treasurer. The Assistant Treasurer or
Assistant Treasurers shall perform and discharge the duties of
and act for the Treasurer in his absence of disability. They
shall be bonded with one or more sureties against loss of money,
securities and other property which the Corporation may sustain
through any fraudulent or dishonest act in the discharge of their
duties.
ARTICLE V.
STOCK CERTIFICATES AND TRANSFERS
Section A. Stock Certificates.
The shares of capital stock of the Corporation shall be
represented by stock certificates, which shall be signed by
manual, facsimile, printed or engraved signatures of the Chairman
of the Board and Chief Executive Officer or the President and by
the Secretary or an Assistant Secretary, and shall be manually
countersigned by a transfer agent or a registrar, if there be
one, and sealed with the seal of the Corporation, which may be a
facsimile, engraved or imprinted seal. In case any officer who
has signed or whose facsimile signature has been printed on any
stock certificate shall have ceased to be such officer before the
certificate is issued, it may be issued by the Corporation with
the same effect as if the officer had not ceased to be such at
the date of its issue.
Section B. Registers.
The certificate representing shares of capital stock of the
Corporation shall be numbered and registered in a stock register
as they are issued. They shall exhibit the name of each
registered holder, the number of shares, the class of capital
stock and the series, if any, represented thereby and the par
value of each share or a statement that such shares are without
par value, as the case may be.
Section C. Transfers.
Transfers of shares of capital stock shall be made on the
books of the Corporation upon presentation to a transfer agent of
the Corporation of a stock certificate, duly endorsed, or
accompanied by proper evidence of succession, assignment or
authority to transfer, and payment of any charges, fees or taxes
which the Secretary or a transfer agent may reasonably require.
Section D. Lost Certificates.
Any person or persons desiring the issue of a certificate
for shares of capital stock in lieu of one alleged to be lost,
stolen or destroyed, shall apply therefor to the Secretary or a
transfer agent describing, under oath or affirmation, the
certificate and the time, place and manner of its loss; whereupon
the Board of Directors, the Chairman of the Board and Chief
Executive Officer or any other officer designated by the Board of
Directors or the Chairman of the Board and Chief Executive
Officer may direct the issue of a new certificate, of the same
tenor as the original. Before such new certificate shall be
issued, the applicant shall furnish an open-penalty bond
indemnifying the Corporation and its transfer agents and
registrars against any loss or damage that may arise from the
issuance of a new certificate. The Board of Directors, at its
discretion, may waive the furnishing of such bond of indemnity.
Section E. Transfer Agents and Registrars.
The Corporation, if and whenever the Board of Directors so
determines, may maintain one or more transfer offices or
designate one or more transfer agents where the shares of capital
stock of the Corporation shall be transferable, and also one or
more registrars which shall register the shares of capital stock.
No certificates for shares of capital stock shall be valid unless
registered by a registrar designated by the Board of Directors
for such purpose. The Board of Directors may make such
additional rules and regulations as it may deem expedient
concerning the issue, transfer and registration of stock
certificates of the Corporation.
ARTICLE VI.
GENERAL PROVISIONS
Section A. Record Date.
In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or entitled to express consent to
corporate action in writing without a meeting, or entitled to
receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock, or for
the purpose of any other lawful action, the Board of Directors
may fix, in advance, a record date, which shall not be more than
sixty days nor less than ten days before the date of such
meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
Section B. Voting Securities Owned by the Corporation.
Powers of attorney, proxies, waivers of notice of meeting,
consents and other instruments relating to securities owned by
the Corporation may be executed in the name of and on behalf of
the Corporation by the Chairman of the Board and Chief Executive
Officer, the President or any Vice President and any such officer
may, in the name of and on behalf of the Corporation, take all
such action as any such officer may deem advisable to vote in
person or by proxy at any meeting of security holders of any
corporation in which the Corporation may own securities and at
any such meeting such officer shall possess and may exercise any
and all rights and powers incident to the ownership of such
securities and which, as the owner thereof, the Corporation might
have exercised and possessed if present. The Board of Directors
may, by resolution, from time to time confer like powers upon any
other person or persons.
Section C. Fiscal Year.
The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section D. Corporate Seal.
The corporate seal shall be adopted by resolution of the
Board of Directors and shall have inscribed thereon the name of
the Corporation, the year of its organization and the words
"Corporate Seal, Delaware." The seal may be used by causing it
or a facsimile thereof to be impressed or affixed or reproduced
or otherwise.
ARTICLE VII.
INDEMNIFICATION
Section A. Indemnification in Actions, Suits or Proceedings
other than those by or in the Right of the
Corporation.
Subject to Section 3 of this Article VII, the Corporation
shall indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in
the right of the Corporation) by reason of the fact that he is or
was a director, officer or employee of the Corporation, or is or
was serving at the request of the Corporation as a director,
officer or employee of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise,
against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the
person 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 Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was
unlawful.
Section B. Indemnification in Actions, Suits or Proceedings
by or in the Right of the Corporation
Subject to Section 3 of this Article VII, the Corporation
shall indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action
or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was a
director, officer or employee of the Corporation, or is or was
serving at the request of the Corporation as a director, officer
or employee of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action
or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
Corporation, except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless
and only to the extent that the Court of Chancery of the State of
Delaware or the court in which such action or suit was brought,
shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for
such expenses which the Court of Chancery or such other court
shall deem proper.
Section C. Authorization of Indemnification.
Any indemnification under this Article VII (unless ordered
by a court) shall be made by the Corporation only as authorized
in the specific cases upon a determination that indemnification
of the director, officer or employee is proper in the
circumstances because he has met the applicable standard of
conduct set forth in Section 1 or Section 2 of this Article VII,
as the case may be. Such determination shall be made a. by a
majority vote of the directors who are not parties to such
action, suit or proceeding, even though less than a quorum, or
(ii) by a committee of such directors designated by majority vote
of such directors, even though less than a quorum, or (3) if
there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion or (iv) by the
stockholders. To the extent, however, that a director, officer
or employee of the Corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding
referred to in Section 1 or Section 2 of this Article VII, or in
defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection therewith, without
the necessity of authorization in the specific case.
Section D. Advancement of Expenses.
Expenses incurred by a director, officer or employee in
defending or investigating a threatened or pending action, suit
or proceeding shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such director, officer or
employee to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the
Corporation as authorized in this Article VII.
Section E. Arbitration.
Any dispute related to the right to indemnification or
advancement of expenses as provided under this Article VII,
except with respect to indemnification for liabilities arising
under the Securities Act of 1933 which the Corporation has
undertaken to submit to a court for adjudication, shall be
decided only by arbitration in the metropolitan area in which the
Corporation's executive offices are located, in accordance with
the commercial arbitration rules then in effect of the American
Arbitration Association, before a panel of three arbitrators, one
of whom shall be selected by the Corporation, the second of whom
shall be selected by the person seeking indemnification and the
third of whom shall be selected by the other two arbitrators. In
the absence of the American Arbitration Association or if for any
reason arbitration under the arbitration rules of the American
Arbitration Association cannot be initiated, or if the
arbitrators selected by the Corporation and the person seeking
indemnification cannot agree on the selection of the third
arbitrator within 30 days after such time as the Corporation and
such person have each been notified of the selection of the
other's arbitrator, the necessary arbitrator or arbitrators shall
be selected by the presiding judge of the court of general
jurisdiction in such metropolitan area. Each arbitrator selected
as provided herein is required to be or have been a director of a
corporation whose shares of common stock were listed during at
least one year of such service on the New York Stock Exchange or
the American Stock Exchange or quoted on the National Association
of Securities Dealers Automated Quotations System. The party or
parties challenging the right of a person to be indemnified under
this Article VII shall have the burden of proof. The Corporation
shall reimburse the person seeking indemnification for the
expenses (including attorneys' fees) incurred in successfully
prosecuting or defending such arbitration. Any award entered by
the arbitrators shall be final, binding and nonappealable, and
judgment may be entered thereon by any party in accordance with
applicable law in any court of competent jurisdiction; provided,
however, that if the conduct giving rise to the liability for
which the person is seeking indemnification has been the subject
of another proceeding not directly involving such person's right
to indemnification under this Article VII or otherwise, the
Corporation shall be entitled to interpose, as a defense in any
judicial enforcement proceeding on the arbitrators' award, any
prior final judicial determination adverse to such person in such
other proceeding. This arbitration provision shall be
specifically enforceable.
Section F. Insurance
The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee
or agent of the Corporation, or is or was serving at the request
of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise against any lability asserted
against him and incurred by him in any such capacity, or arising
out of this status as such, whether or not the Corporation would
have the power or the obligation to indemnify him against such
liability under the provisions of this Article VII.
Section G. Certain Definitions.
For purposes of this Article VII, references to "the
Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have
had power and authority to indemnify its directors, officers or
employees so that any person who is or was a director, officer or
employee of such constituent corporation, or is or was a
director, officer or employee of such constituent corporation
serving at the request of such constituent corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise, shall stand in the same position under the provisions
of this Article VII with respect to the resulting or surviving
corporation as he would have with respect to such constituent
corporation if its separate existence had continued. For
purposes of this Article VII, references to "fines" shall include
any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the
Corporation" shall include any service as a director, officer or
employee of the Corporation which imposes duties on, or involves
services by, such director, officer or employee with respect to
an employee benefit plan, its participants or beneficiaries; and
a person who acted in good faith and in a manner he reasonably
believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have
acted in a manner "not opposed to the best interests of the
Corporation" as referred to in this Article VII.
Section H. Survival of Indemnification and Advancement of
Expenses.
The indemnification and advancement of expenses provided by,
or granted pursuant to this Article VII shall, unless otherwise
provided when authorized or ratified, continue as to a person who
has ceased to be a director, officer or employee and shall inure
to the benefit of the heirs, executors and administrators of such
a person.
Section I. Limitation on Indemnification.
Notwithstanding anything contained in this Article VII to
the contrary, the Corporation shall not be obligated to indemnify
any director, officer or employee in connection with a proceeding
initiated (which shall not be deemed to include counter-claims or
affirmative defenses) or participated in as an intervenor or
amicus cunae by such person unless such initiation of or
participation in the proceeding is authorized, either before or
after its commencement, by the affirmative vote of a majority of
the directors in office. This section does not apply to
successfully prosecuting or defending the rights of a person to
be indemnified under or pursuant to this Article VII.
Section J. Nonexclusivity.
The indemnification and advancement of expenses provided by
or granted pursuant to this Article VII shall not be deemed
exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under
any statute, certificate or articles of incorporation, by-law,
agreement, or vote of stockholders or disinterested directors or
pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his
official capacity and as to action in another capacity while
holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Section 1 and Section
2 of this Article VII shall be made to the fullest extent
permitted by law. The provisions of this Article VII shall not
be deemed to include the indemnification of any person who is not
specified in Section 1 or Section 2 of this Article VII but whom
the Corporation has the power or obligation to indemnify under
the provisions of the General Corporation Law of the State of
Delaware, or otherwise. The Corporation may, to the extent
permitted by law and as authorized form time to time by the Board
of Directors, provide rights to indemnification and to the
advancement of expenses to agents of the Corporation.
ARTICLE VIII.
AMENDMENTS
These By-laws may be altered, amended or repealed, in whole
or in part, and new By-laws may be adopted, by the stockholders
or by the Board of Directors; provided, however, that notice of
the proposed alteration, amendment, repeal or adoption of new By-
laws shall be given in the notice of such meeting of stockholders
or Board of Directors, as the case may be. All such amendments
must be approved by either the holders of a majority of the
outstanding shares of capital stock entitled to vote thereon or
by a majority of the total number of directors then in office.
ARTICLE IX.
INAPPLICABILITY OF SECTION 203 OF THE
DELAWARE GENERAL CORPORATION LAW
Effective March 22, 1988, Section 203 of the Delaware
General Corporation Law (enacted on February 2, 1988) shall not
be applicable to the Corporation.