Exhibit 3.2
BY - LAWS
OF
EVEREST REINSURANCE HOLDINGS, INC.
ARTICLE I
MEETING OF STOCKHOLDERS
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Section 1. The annual meeting of the stockholders of the corporation
shall be held on a date and time designated by the Board of Directors for the
election of directors and the transaction of such other business as may properly
come before the meeting. Unless otherwise determined by the Board of Directors,
such meeting shall be held at the principle executive office of the corporation.
Section 2. Special meetings of the stockholders, except those regulated
otherwise by statute or the Certificate of Incorporation, may be called at any
time by the Chairman of the Board and Chief Executive Officer, the President, or
the Board of Directors, and shall be called by the Chairman of the Board and
Chief Executive Officer, the President, or the Secretary upon the request of a
majority of the Board of Directors or of the holders of the majority of the
outstanding shares entitled to vote, made to the Chairman of the Board and Chief
Executive Officer, the President, or the Secretary in writing, stating the
purpose or purposes of the proposed meeting.
Section 3. Written notice of each meeting of stockholders stating the
date, time and place, and, in the case of a special meeting, the purpose or
purposes for which the meeting is called, shall be given by serving a copy of
such notice upon each stockholder entitled to vote at such meeting, either
personally, by facsimile or by mail, not less than ten nor more than sixty days
before the date of the meeting. If mailed, such copy shall be addressed to each
such stockholder at his address as it appears on the records of the corporation.
Section 4. At all meetings of stockholders, the holders of record of a
majority of the outstanding shares entitled to vote, present either in person or
by proxy, shall constitute a quorum, except as may be otherwise provided by law,
by the Certificate of Incorporation or by the By-Laws. A quorum, once
established, shall not be broken by the withdrawal of enough votes to leave less
than a quorum and the votes present may continue to transact business until
adjournment. Any meeting of stockholders may be adjourned to a designated time
and place by the vote of a majority of the stockholders present in person or by
proxy and entitled to vote, even though less than a quorum is so present. No
notice of such an adjourned meeting of stockholders need be given, other than by
announcement at the meeting, unless the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed. At any such
adjourned meeting at which a quorum shall attend, any business may be transacted
which might have been transacted at the meeting as originally called.
Section 5. Every stockholder of record entitled to vote shall be
entitled at every meeting of the stockholders to one vote for every share of
voting stock standing in his name. Every such stockholder shall have the right
to vote in person or by proxy, but no proxy shall be voted after three years
from its date, unless the proxy provides for a longer period. All elections of
directors shall be by a majority vote of all outstanding shares entitled to vote
and, unless otherwise provided by law, by the Certificate of Incorporation or by
the By-Laws, all questions shall be decided by the vote of a majority of the
outstanding shares entitled to vote thereon.
Section 6. Whenever by statute or under any provision of the
Certificate of Incorporation or the By-Laws the vote of the holders of stock of
the corporation is required or permitted to be taken for or in connection with
any corporate action, the meeting and vote of such stockholders may be dispensed
with, without prior notice and without a vote, if a consent in writing, setting
forth the action so taken shall be signed by the holders of outstanding stock
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those stockholders who have not
consented in writing.
ARTICLE II
DIRECTORS
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Section 1. The business and affairs of the corporation shall be managed
by the Board of Directors consisting of a minimum of three directors. The number
of directors shall not be subject to any maximum and shall be fixed from time to
time either by the Board of Directors or by the stockholders. Each director
shall hold office until his successor is elected and qualified, or until his
earlier resignation or removal. The Board of Directors may adopt such rules and
regulations for the call and conduct of its meetings and the management of the
affairs of the corporation as it may deem proper, not inconsistent with the laws
of the State of Delaware or the By-Laws. Meetings of the Board of Directors, or
of any committee thereof, may be held either within or outside of the State of
Delaware.
Section 2. At each meeting of the Board of Directors, the presence of a
majority of the total number of members of the Board of Directors then holding
office shall be necessary and sufficient to constitute a quorum for the
transaction of business. In the absence of a quorum, a majority of those present
at the time and place of any meeting may adjourn the meeting from time to time
until a quorum shall be present and the meeting may be held as adjourned without
further notice or waiver. A majority of those present at any meeting at which a
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quorum is present may decide any questions brought before such meeting, except
as otherwise provided by law, the Certificate of Incorporation of the Company or
these By-Laws.
Members of the Board of Directors may participate in a meeting by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other and such
participation shall constitute presence in person at such meeting.
Section 3. The Chairman of the Board and Chief Executive Officer or the
President may call a special meeting of the Board of Directors, twenty-four (24)
hours notice of which shall be given in person or by mail, telegraph, telephone,
facsimile, cable, courier service or electronic mail. At the written request of
two directors, such officers or the Secretary shall call a special meeting in
like manner and on like notice. Regular meetings of the Board of Directors may
be held without notice at such time and places as the Board may determine by
prior resolution.
Section 4. Except as provided in Section 5 of this Article, vacancies
occurring in the membership of the Board of Directors, from whatever cause
arising, and newly created directorships resulting from any increase in the
number of directors, may be filled by the affirmative vote of a majority of the
directors in office at the time, although less than a quorum, or of a sole
remaining director.
Section 5. Any one or more or all the directors may be removed from
office, either with or without cause, at any time, by the affirmative vote of
the stockholders holding a majority of the outstanding stock, and thereupon the
terms of such director or directors who shall have been so removed shall
forthwith terminate. Any vacancy or vacancies may be filled by a majority of the
remaining Directors, though less than a quorum, provided, however, that the
stockholders removing any Director may fill the vacancy caused by such removal.
Section 6. The Board of Directors may, by resolution or resolutions
passed by a majority of the whole Board, designate one or more committees, each
committee to consist of one or more directors of the corporation. The board may
also designate one or more directors as alternate members of any committee, who
may replace any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the resolution of the Board or in
the By-Laws, shall have and may exercise all the powers and authority of the
board of Directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it, except that no such committee shall have such power
or authority in reference to:
(a) amending the Certificate of Incorporation;
(b) adopting an agreement of merger or consolidation;
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(c) recommending to the stockholders the sale, lease, or exchange
of all or substantially all of the Company's property and
assets;
(d) recommending to the stockholders a dissolution of the Company
or a revocation of dissolution;
(e) amending or repealing of the By-Laws or adopting new By-Laws;
(f) fixing compensation of the directors for serving on the Board
or any committee thereof;
(g) filling vacancies on the Board or any committee thereof; or
(h) amending or repealing any resolution of the Board which by its
terms shall not be so amendable or repealable.
The Board may in the resolution designating a committee, provide that such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. The Board may also in the resolution
designating a committee, adopt rules and regulations for the call and conduct of
the meetings of such committee. Each committee shall keep regular minutes of its
meetings and report the same to the Board of Directors when required.
Section 7. 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 members of the Board or of such 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.
ARTICLE III
OFFICERS
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Section 1. The officers of the corporation shall be a Chairman of the
Board and Chief Executive Officer, a President, a Treasurer, a Comptroller, and
a Secretary (of whom only the Chairman of the Board and Chief Executive Officer
need be a director of the corporation), and one or more Vice Presidents,
Assistant Treasurers, Assistant Comptrollers and Assistant Secretaries, and such
other officers, assistant officers or agents (none of whom need be a director)
as the Board of Directors from time to time may determine.
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Any two or more offices may be held by the same person, except that the
offices of Chairman of the Board and Chief Executive Officer and Secretary or
Assistant Secretary and of President and Secretary or Assistant Secretary may
not be held by the same person; nor shall the offices of Chairman of the Board
and Chief Executive Officer and Comptroller or Assistant Comptroller and of
President and Comptroller or Assistant Comptroller be held by the same person.
Any Vice President may, in the discretion of the Board of Directors be
designated as "Executive" or "Senior" and, in the case of any appointed Vice
President, may be designated by the proper officer of the corporation by
departmental or functional classification, by any succeeding ordinal number or
such other designation that the proper officer may from time to time determine.
The Chairman of the Board and Chief Executive Officer, President,
Treasurer, Comptroller, Secretary and officers at the level of Senior and
Executive Vice President and above, and such other officers as the Board may
from time to time determine, shall be elected by the Board of Directors. Elected
officers shall hold office until a successor is elected and qualified or until
their earlier resignation or removal. The Board of Directors may remove any
officer from office at any time, with or without cause.
All other officers of the corporation shall be appointed by the
Chairman of the Board and Chief Executive Officer of the corporation or his
designee. Appointed officers shall hold office until their resignation or until
revocation of their appointment, with or without cause, by such proper officer
or his designee or by the Board of Directors.
No person shall be deemed to be an officer of the corporation,
excepting such as shall have been elected or appointed and is holding office
pursuant to the provisions of these By-Laws. The Board of Directors may require
any and all officers and employees to give bonds.
The Board of Directors shall fix the compensation of the Chairman and
Chief Executive Officer, President, Comptroller, Treasurer and Secretary and all
officers of the corporation at or above the level of Senior and Executive Vice
President and such other officers as the Board may from time to time determine.
The compensation for all officers other than those whose compensation
requires approval of the Board of Directors under this By-Law shall be fixed by
the proper officer of the corporation or his designee, in accordance with the
corporation's compensation plans.
Section 2. The Chairman of the Board and Chief Executive
Officer shall be the Chief Executive Officer of the Company and shall have the
general powers and duties of supervision and management usually vested in the
office of Chief Executive Officer of a corporation. He shall preside at all
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meetings of the stockholders and of the Board of Directors, if present thereat.
Subject to the control of the Board of Directors, he shall supervise and direct
the business of the Company and shall also have and perform such other duties as
from time to time be assigned to him by the Board of Directors. He may sign with
any other officer so duly authorized, certificates representing stock of the
Company, the issuance of which shall have been duly authorized (the signature to
which may be a facsimile signature) and may sign and execute documents in the
name of the Company, including, but not limited to, deeds, mortgages, bonds,
contracts, agreements, proxies, bank checks and bank drafts. From time to time,
he shall report to the Board of Directors all matters within his knowledge which
the interests of the Company may require to be brought to their attention. He
shall have such other powers and perform such other duties as may from time to
time be prescribed by the Board of Directors or these By-Laws.
Section 3. The President shall have the responsibility to implement the
directives of the Board of Directors and the Chairman of the Board and Chief
Executive Officer as such directives relate to the corporation's business plans
and the conduct of its business operations. He shall exercise all the powers and
perform all the duties usual to such office. Unless prohibited by law, the
Certificate of Incorporation or the By-Laws, the President may execute any
contract, agreement or instrument necessary for the conduct of the business of
the corporation. In the absence or incapacity of the Chairman of the Board and
Chief Executive Officer, the President shall perform all the duties and exercise
the authority of the Chairman of the Board and Chief Executive Officer. He shall
also perform such other duties and have such other powers as may be prescribed
or assigned to him from time to time by the Board of Directors, by the Chairman
of the Board and Chief Executive Officer, or the By-Laws.
Section 4. The Vice President or, if more than one, the Vice Presidents
in the order established by the Board of Directors, shall in the absence or
incapacity of the President, exercise all the powers and perform the duties of
the President. The Vice Presidents shall also perform such other duties and have
such other powers as may be prescribed or assigned to them, respectively, from
time to time by the Chairman of the Board and Chief Executive Officer, the
President, the Board of Directors or the By-Laws.
Section 5. The Treasurer shall, except as may be otherwise provided in
the By-Laws or by the Board of Directors, exercise all the powers and perform
all the duties usual to such office, including having the care and custody of
the funds and securities of the corporation and depositing the same with such
depositories as the Board of Directors may designate. The Treasurer shall also
perform such other duties and have such other powers as may be prescribed or
assigned to him from time to time by the Chairman of the Board and Chief
Executive Officer, the President, the Board of Directors or the By-Laws.
Section 6. The Secretary shall exercise all the powers and perform all
the duties usual to such office, including keeping the minutes of the meetings
of the Board of Directors and of the stockholders, having custody of the seal of
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the corporation and affixing the seal to documents when authorized to do so. He
shall also perform such other duties and have such other powers as may be
prescribed or assigned to him from time to time by the Chairman of the Board and
Chief Executive Officer, the President, the Board of Directors or the By-Laws.
Section 7. The Comptroller shall exercise all the powers and perform
all the duties usual to such office, including supervising the accounts of the
corporation, having supervision over and responsibility for the books, records,
accounting and system of accounting and auditing in each office of the
corporation. He shall also perform such other duties and have such other powers
as may be prescribed or assigned to him from time to time by the Chairman of the
Board and Chief Executive Officer, the President, the Board of Directors or the
By-Laws.
Section 8. The assistant officers of the corporation shall have such
powers and authority and perform such duties as commonly pertain to their
respective offices and as may be prescribed by the Chairman of the Board and
Chief Executive Officer, the President, the Treasurer, the Secretary, the
Comptroller, the Board of Directors or the By-Laws.
ARTICLE IV
CORPORATE SEAL
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The corporate seal shall be circular in form and shall contain the name
of the corporation around the circumference and "Delaware 1973" in the center.
ARTICLE V
CAPITAL STOCK
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Section 1. Certificates of stocks shall be in such form or forms as
shall be approved by the Board of Directors and shall be signed by the Chairman
of the Board and Chief Executive Officer, or the President or a Vice President,
and the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary. Any or all of the signatures on the certificate may be a facsimile.
In case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent or registrar before such certificate is issued,
such certificate may be issued by the corporation with the same effect as if
such person were an officer, transfer agent or registrar at the date of issue.
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Section 2. Transfers of shares shall only be made upon the books of the
corporations by the registered holder in person or by attorney, duly authorized,
and on surrender of the certificate or certificates for such shares, properly
assigned for transfer.
Section 3. Any person claiming a certificate of stock to be lost or
destroyed shall make an affidavit or affirmation of that fact and shall give the
corporation a bond of indemnity in such form and amount or unlimited in amount
as the Board of Directors may prescribe or approve and, if requested to do so,
shall advertise the fact of loss or destruction in such manner as the Board of
Directors may prescribe, whereupon a new certificate may be issued for the same
number of shares as the one claimed to be lost or destroyed.
ARTICLE VI
CHECKS AND DRAFTS
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All checks, drafts or orders for the payment of money shall be signed
by such officer or officers or agent or agents, and in such manner, as shall be
determined from time to time by the Board of Directors.
ARTICLE VII
RECORD DATES
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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 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 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.
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ARTICLE VIII
NOTICE AND WAIVER OF NOTICE
---------------------------
Section 1. Whenever any notice is required by these By-Laws to be
given, personal notice is not meant unless expressly so stated; and any notice
so required shall be deemed to be sufficient if given by depositing it in the
United States mail, postage prepaid, directed to the person entitled thereto at
his address, as shown on the records of the corporation in the case of a
stockholder, or to his last known post office address, if he is not a
stockholder, and such notice shall be deemed to have been given on the day of
such mailing.
Section 2. Any notice required to be given under these By-Laws may be
waived by the person entitled thereto.
ARTICLE IX
INDEMNIFICATION
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Section 1. 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 (including any 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, employee or
agent of the corporation or, while a director, officer, employee or agent of the
corporation, is or was serving at the request of the corporation as a director,
officer, employee, trustee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, shall be indemnified
by the corporation, if, as and to the extent authorized by the laws of the State
of Delaware, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with, or in connection with the defense or settlement of, such action, suit or
proceeding. The indemnification provided by statute shall not be deemed
exclusive of any other rights to which any person seeking indemnification may be
entitled under any lawful agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall continue as to a
person who has ceased to be director, officer, employee or agent and shall inure
to the benefit of the heirs, executors and administrators of such a person.
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Section 2. Expenses incurred by a person who is or was a director,
officer, employee or agent of the corporation or, while a director, officer,
employee or agent of the corporation, is or was serving at the request of the
corporation as a director, officer, employee, trustee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, in appearing at, participating in or defending any such action, suit
or proceeding shall be paid by the corporation at reasonable intervals in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of the director, officer, employee or agent to
repay such amount if it shall ultimately be determined that such person is not
entitled to be indemnified by corporation as authorized by this Article. If a
claim under this Article is not paid in full by the corporation within ninety
(90) days after a written claim has been received by the corporation, the
claimant may at any time thereafter bring suit against the corporation to
recover the unpaid amount of the claim and, if successful in whole or in part,
the claimant shall be paid also the expense of prosecuting such claim. It shall
be a defense to any such action (other than an action brought to enforce a claim
for expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the corporation) that the claimant has not met the standards of
conduct which make it permissible under the Delaware General Corporation Law or
other applicable law for the corporation to indemnify the claimant for the
amount claimed, but the burden of proving such defense shall be on the
corporation. Neither the failure of the corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because the claimant has met the
applicable standard of conduct set forth in the Delaware General Corporation Law
or other applicable law, nor an actual determination by the corporation
(including its Board of Directors, independent legal counsel or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
Section 3. The corporation shall have the power to 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, agent or trustee of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against him and incurred by him in any
such capacity or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability under
the provisions of the Delaware General Corporation Law or other applicable law.
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ARTICLE X
CONFLICTING INTERESTS
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No director, officer or employee of the corporation at manager level or
higher or other employee from time to time designated by the Chairman of the
Board and Chief Executive Officer or the President shall have any position with
or a substantial interest in any other enterprise operated for profit, the
existence of which would conflict or might reasonably be supposed to conflict
with the proper performance of his or her responsibilities to the corporation or
which might tend to affect his or her independence of judgment with respect to
transactions between the corporation and such other enterprise. If a director,
officer or any such employee has a position with or substantial interest in
another such enterprise, which, when acquired, did not create such an actual or
apparent conflict of interest, he or she shall make timely disclosure of such
position or interest to the Board of Directors when he or she learns that there
is an impending transaction between such enterprise and the corporation or any
subsidiary or affiliate of the corporation that might create such an actual or
apparent conflict. The Board of Directors, which may act through an appropriate
committee or sub-committee, shall adopt such regulations and procedures as shall
from time to time appear to it sufficient to secure compliance with the above
policy.
ARTICLE XI
RESIGNATIONS
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Any director, member of a committee, officer or agent of the
corporation may resign at any time. Such resignation shall be made in writing,
and shall take effect at the time specified therein, and if no time be
specified, at the time of its receipt by the corporation. The acceptance of such
resignation shall not be necessary to make it effective.
ARTICLE XII
AMENDMENTS
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These By-Laws may be altered, amended or repealed at any stockholders'
meeting by the affirmative vote of the stockholders holding a majority of the
outstanding shares entitled to vote, present in person or by proxy, provided
that notice of such meeting shall have contained a reference to the proposed
alteration, amendment or repeal. The Board of Directors also may alter, amend or
repeal these By-Laws at any regular or special meeting, by a majority vote of
the entire Board.
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