AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
GENWORTH LIFE AND ANNUITY INSURANCE COMPANY
I.
The name of the Corporation is Genworth Life and Annuity Insurance Company.
II.
The purpose for which the Corporation is formed is to transact the
business of insurance (including, without limitation, authority to make all and
every insurance appertaining thereto or connected therewith; to cause itself to
be reinsured; to grant endowments; to grant, purchase, or dispose of annuities,
and to contract for reversionary payments) and any or all other lawful
businesses not required to be specifically stated in these Articles for which
corporations may be incorporated under the Virginia Stock Corporation Act
("VSCA"), as amended from time to time.
III.
The Corporation shall have authority to issue two classes of capital
stock: 50,000 shares of Capital Stock, par value $1,000 per share ("Capital
Stock") and 200,000 shares of preferred stock, par value $1,000 per share
(Preferred Stock").
Preferred Stock
The Board of Directors is authorized at any time and from time to time,
subject to the limitations prescribed by law and the provisions of this Article
III, to provide for the issuance of shares of Preferred Stock in one or more
series with such voting powers, designations, preferences and relative
participating, optional or other special rights, and qualifications, limitations
or restrictions as shall be expressed in the resolutions establishing such
series and providing for the
issuance of such series adopted by the Board of Directors including, without
limiting the generality of the foregoing, the following:
1. the designation and number of shares of such series;
2. the dividend rate of such series, the conditions and dates upon
which such dividends shall be payable, the preference or relation of such
dividends to dividends payable on any other class, classes or series of capital
stock of the Corporation, and whether such dividends shall be cumulative or
noncumulative;
3. whether the shares of such series shall be subject to redemption
by the Corporation, and, if made subject to such redemption, the times, prices,
rates, adjustments and other terms and conditions of such redemption;
4. the terms and amount of any sinking or similar fund provided for
the purchase or redemption of the shares of such series;
5. whether the shares of such series shall be convertible into or
exchangeable for shares of capital stock or other securities of the Corporation
or of any other corporation, and, if provision be made for conversion or
exchange, the times, prices, rates , adjustments and other terms and conditions
of such conversion or exchange;
6. the extent, if any, to which the holders of the shares of such
series shall be entitled to vote as a class or otherwise with respect to the
election of directors or any other matter;
7. the restrictions and conditions, if any, upon the issue or
reissue of any additional Preferred Stock ranking on a parity with or prior to
such shares as to dividends or upon dissolution;
8. the rights of the holders of the shares of such series upon the
dissolution of, or upon the distribution of assets of, the Corporation, which
rights may be different in the case of voluntary dissolution than the case of
involuntary dissolution; and
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9. any other relative rights, preferences or limitations of shares
of such series consistent with these Amended and Restated Articles of
Incorporation, as hereinafter amended from time to time, and applicable law.
The powers, preferences and relative participating, optional and other
special rights of each series of Preferred Stock, and the qualifications,
limitations or restrictions, if any, may differ from those of any and all other
series at any time outstanding. All shares of any one series of Preferred Stock
shall be identical in all respects with all other shares of such series, except
that shares of any series issued at different times may differ as to the dates
from which dividends shall be cumulative. The terms of any series of Preferred
Stock may be amended without consent of the holders of any other series of
Preferred Stock or of the Capital Stock, provided such amendment does not
adversely affect the holders of such other series of Preferred Stock or of the
Capital Stock.
Shares of any series of Preferred Stock which have been issued and
reacquired in any manner, including shares redeemed by purchase (whether through
the operation of a retirement or sinking fund or otherwise), will have the
status of authorized and unissued Preferred Stock and may be reissued as a part
of the series of which they were originally a part or may be reclassified into
and reissued as a part of a new series.
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Designation of Series A Preferred Stock
The Corporation shall have authority to issue shares of Preferred Stock
of the following series:
1. Designation and Amount. The shares of this series shall be
designated as "Series A Preferred Stock" (the "Series A Preferred Stock"), par
value $1,000 per share, and the number of shares constituting such series shall
be ONE HUNDRED TWENTY THOUSAND (120,000), which number may be increased or
decreased by the Board of Directors without a vote of stockholders, provided,
however, that such number may not be decreased below the number of the then
currently issued and outstanding shares of Series A Preferred Stock.
2. Dividend Rights. (a) The holders of shares of Series A Preferred
Stock, in preference to the holders of shares of the Capital Stock of the
Corporation and of any other capital stock of the Corporation ranking junior to
the Series A Preferred Stock as to payment of dividends (the Capital Stock and
any such other stock referred to jointly as "Junior Stock"), shall be entitled
to receive, when and as declared by the Board of Directors out of the unreserved
and unrestricted earned surplus of the Corporation, cumulative cash dividends at
the annual rate of 8.0% of the par value of $1,000 per share of the Series A
Preferred Stock, and no more, in equal semi-annual payments (rounded down to the
nearest cent) on the last business day of May and November in each year (each, a
"Semi-annual Dividend Payment Date"), commencing on the first Semi-annual
Dividend Payment Date following the date of original issue of the Series A
Preferred Stock; provided, that the dividend payable on the first Semi-annual
Dividend Payment Date shall be paid as if the Series A Preferred Stock had been
outstanding for the full period, regardless of the date such Series A Preferred
Stock was issued. The record date for the determination of holders of
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shares of Series A Preferred Stock entitled to receive payment of a dividend
declared thereon shall be the close of business on the respective Semi-annual
Dividend Payment Date.
(b) Dividends paid on the shares of Series A Preferred Stock in an
amount less than the total amount of such dividends at the time payable on such
shares shall be allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. Dividends on the Series A Preferred Stock shall
be cumulative and shall accrue from the date of issue. Unless full dividends on
the Series A Preferred Stock for all past dividend periods and the then current
dividend period shall have been paid or declared and a sum sufficient for the
payment thereof set apart: (i) no dividend (other than a dividend payable in
Junior Stock) shall be paid or declared, and no distribution shall be made on
any Junior Stock of the Company; (ii) no shares of Junior Stock, Preferred Stock
or Parity Stock (as hereinafter defined) shall be repurchased or redeemed or
acquired by the Corporation; and (iii) no monies shall be paid to or set aside
or made available for a sinking fund for the repurchase or redemption of any
such Junior Stock, Preferred Stock or Parity Stock.
3. Redemption. (a) The Corporation, at its option, and with prior
regulatory approval, if required, may redeem shares of Series A Preferred Stock,
in whole or in part, at any time or from time to time, out of funds of the
Corporation legally available for the redemption of stock, at a price of $1,000
per share, plus an amount per share equal to all accrued and unpaid dividends to
the date fixed for redemption (the "redemption price"). The Corporation's
election to redeem shares of Series A Preferred Stock shall be expressed by
resolution of the Board of Directors. Any such redemption shall be made upon not
less than 30 nor more than 60 days' notice prior to the redemption date, given
as hereinafter provided.
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(b) If less than all outstanding shares of Series A Preferred Stock
are to be redeemed, the shares to be redeemed shall be selected pro rata or by
lot, in such manner as may be prescribed by resolution of the Board or
Directors.
(c) Notice of any redemption of shares of Series A Preferred Stock
shall be mailed not less than 30 nor more than 60 days prior to such redemption
date, addressed to the respective holders of record of shares of Series A
Preferred Stock to be redeemed at their last known addresses as shown by the
Corporation's records. A defect in the mailing of such notice or the failure of
any holder to receive such notice shall not be a condition of such redemption.
(d) After giving notice and prior to or on the redemption date, the
Corporation shall deposit money for the payment of the redemption price with any
bank or trust company doing business in Richmond, Virginia, having a capital and
surplus of at least $10,000,000. From and after the date specified for
redemption, unless default shall be made by the Corporation in depositing money
for the payment of the redemption price, all rights of the holders thereof as
stockholders of the Corporation, except the right to receive the redemption
price (but without interest), shall cease. Any interest allowed on moneys so
deposited shall be paid to the Corporation.
4. Reacquired Shares. Any shares of Series A Preferred Stock
redeemed, purchased or otherwise acquired by the Corporation shall become
authorized but unissued shares of Preferred Stock, par value $1,000 per share,
of the Corporation and may be reissued as Series A Preferred Stock, or as part
of another series of Preferred Stock of the Company.
5. Liquidation, Dissolution or Winding Up. (a) Upon any
liquidation, dissolution or winding up of the Corporation, no distribution shall
be made (i) to the holders of shares of Junior Stock, unless, prior thereto, the
holders of shares of Series A Preferred Stock shall have received
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$1,000 per share, plus an amount per share equal to all accrued but unpaid
dividends to the date of such payment or (ii) to the holders of Preferred Stock
ranking pari passu with the Series A Preferred Stock ("Parity Stock"), except
distributions made ratably on the Series A Preferred Stock and all such Parity
Stock in proportion to the total amounts to which the holders of all such shares
are entitled upon such liquidation, dissolution or winding up. After payment of
the full amount of the liquidating distribution to which holders of the Series A
Preferred Stock are entitled, such holders shall have no right or claim to any
of the remaining assets of the Corporation.
(b) Neither the consolidation, merger or other business combination
of the Corporation with or into any other Person or Persons, nor the sale,
lease, exchange or conveyance of all or any part of the property, assets or
business of the Corporation shall be deemed to be a liquidation, dissolution or
winding up of the Corporation for purposes of this Section 5.
6. Voting Rights. The holders of shares of Series A Preferred Stock
shall have no voting rights except as from time to time required by law and
their consent shall not be required for the taking of any corporate action.
6. Fully paid. Non-assessable; Preemptive Rights. Each share of
Series A Preferred Stock, when issued, will be fully paid and non-assessable.
The holders of Series A Preferred Stock will have no preemptive rights to
subscribe for additional securities which may be issued by the Company.
7. Definitions. For the purposes of this Article:
"Person" shall mean any individual, firm, corporation or other
entity, and shall include any successor (by merger or otherwise) of such entity.
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Preemptive Rights
No holder of shares of any class of the Corporation shall have any preemptive or
preferential right to purchase or subscribe to (i) any shares of any class of
the Corporation, whether now or hereafter authorized; (ii) any warrants, rights,
or options to purchase any such shares; or (iii) any securities or obligations
convertible into or exchangeable for any such shares or warrants, rights, or
options to purchase any such shares.
IV.
The number of Directors constituting the Board of Directors shall be
designated in the Corporation's Bylaws.
V.
A. In this Article:
"applicant" means the person seeking indemnification pursuant to
this Article;
"expenses" includes counsel fees;
"liability" means the obligation to pay a judgment, settlement,
penalty, fine, including any excise tax assessed with respect to an employee
benefit plan, or reasonable expenses incurred with respect to a proceeding;
"party" includes an individual who was, is, or is threatened to
be made a named defendant or respondent in a proceeding; and
"proceeding" means any threatened, pending, or completed action,
suit, or proceeding, whether civil, criminal, administrative or investigative
and whether formal or informal.
B. In any proceeding brought by or in the right of the Corporation
or brought by or on behalf of shareholders of the Corporation, no director or
officer of the Corporation shall be liable to the Corporation or its
shareholders for monetary damages with respect to any transaction,
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occurrence or course of conduct, whether prior or subsequent to the effective
date of this Article, except for liability resulting from such person's having
engaged in willful misconduct or a knowing violation of the criminal law or any
federal or state securities law.
C. The Corporation shall indemnify (i) any person who was or is a
party to any proceeding, including a proceeding brought by a shareholder in the
right of the Corporation or brought by or on behalf of shareholders of the
Corporation, by reason of the fact that he or she is or was a director or
officer of the Corporation, or (ii) any director or officer who is or was
serving at the request of the Corporation as a director, trustee, partner or
officer of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, against any liability incurred by him or her
in connection with such proceeding unless he or she engaged in willful
misconduct or a knowing violation of the criminal law. A person is considered to
be serving an employee benefit plan at the Corporation's request if his or her
duties to the Corporation also impose duties on, or otherwise involve services
by, him or her to the plan or to participants in or beneficiaries of the plan.
The Board of Directors is hereby empowered, by a majority vote of a quorum of
disinterested directors, to enter into a contract to indemnify any director or
officer in respect of any proceedings arising from any act or omission, whether
occurring before or after the execution of such contract.
D. No amendment or repeal of this Article shall have any effect on
the rights provided under this Article with respect to any act or omission
occurring prior to such amendment or repeal. The Corporation shall promptly take
all such actions, and make all such determinations, as shall be necessary or
appropriate to comply with its obligation to make any indemnity under this
Article and shall promptly pay or reimburse all reasonable expenses, including
attorneys' fees, incurred by any
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such director, officer, employee or agent in connection with such actions and
determinations or proceedings of any kind arising therefrom.
E. The termination of any 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 applicant did not meet the
standard of conduct described in Section (B) or (C) of this Article.
F. Any indemnification under Section (C) of this Article (unless
ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the applicant is
proper in the circumstances because he or she has met the applicable standard of
conduct set forth in Section (C).
The determination shall be made:
(1) By the Board of Directors by a majority vote of a quorum
consisting of directors not at the time parties to the proceeding;
(2) If a quorum cannot be obtained under subsection (1) of
this Section, by majority vote of a committee duly designated by the Board of
Directors (in which designation directors who are parties may participate),
consisting solely of two or more directors not at the time parties to the
proceeding;
(3) By special legal counsel
(a) Selected by the Board of Directors or its
committee in the manner prescribed in subsection (1) or (2) of this Section; or
(b) If a quorum of the Board of Directors cannot be
obtained under subsection (1) of this Section and a committee cannot be
designated under subsection (2) of this Section, selected by majority vote of
the full Board of Directors, in which selection directors who are parties may
participate; or
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(4) By the shareholders, but shares owned by or voted under
the control of directors who are at the time parties to the proceeding may not
be voted on the determination.
Any evaluation as to reasonableness of expenses shall be made in the
same manner as the determination that indemnification is appropriate, except
that if the determination is made by special legal counsel, such evaluation as
to reasonableness of expenses shall be made by those entitled under subsection
(3) of this Section (F) to select counsel.
Notwithstanding the foregoing, in the event there has been a change in
the composition of a majority of the Board of Directors after the date of the
alleged act or omission with respect to which indemnification is claimed, any
determination as to indemnification and advancement of expenses with respect to
any claim for indemnification made pursuant to this Article shall be made by
special legal counsel agreed upon by the Board of Directors and the applicant.
If the Board of Directors and the applicant are unable to agree upon such
special legal counsel the Board of Directors and the applicant each shall select
a nominee, and the nominees shall select such special legal counsel.
G. (1) The Corporation shall pay for or reimburse the
reasonable expenses incurred by any applicant who is a party to a proceeding in
advance of final disposition of the proceeding or the making of any
determination under Section (C) if the applicant furnishes the Corporation:
(a) a written statement of his or her good faith belief
that he or she has met the standard of conduct described in Section (C); and
(b) a written undertaking, executed personally or on his
or her behalf, to repay the advance if it is ultimately determined that he or
she did not meet such standard of conduct.
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(2) The undertaking required by paragraph (b) of subsection
(1) of this Section shall be an unlimited general obligation of the applicant
but need not be secured and may be accepted without reference to financial
ability to make repayment.
(3) Authorizations of payments under this section shall be
made by the persons specified in Section (F).
H. The Board of Directors is hereby empowered, by majority vote of
a quorum consisting of disinterested directors, to cause the Corporation to
indemnify or contract to indemnify any person not specified in Section (B) or
(C) of this Article who was, is or may become a party to any proceeding, by
reason of the fact that he or she is or was an 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, to the same extent as
if such person were specified as one to whom indemnification is granted in
Section (C). The provisions of Sections (D) through (G) of this Article shall be
applicable to any indemnification provided hereafter pursuant to this S ection
(H).
I. The Corporation may purchase and maintain insurance to indemnify
it against the whole or any portion of the liability assumed by it in accordance
with this Article and may also procure insurance, in such amounts as the Board
of Directors may determine, 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 liability asserted against or incurred by him or her in
any such capacity or arising from his or her status as such, whether or not the
Corporation would have power to indemnify him or her against such liability
under the provisions of this Article.
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J. Every reference herein to directors, officers, employees or
agents shall include former directors, officers, employees and agents and their
respective heirs, executors and administrators. The indemnification hereby
provided and provided hereafter pursuant to the power hereby conferred by this
Article on the Board of Directors shall not be exclusive of any other rights to
which any person may be entitled, including any right under policies of
insurance that may be purchased and maintained by the Corporation or others,
with respect to claims, issues or matters in relation to which the Corporation
would not have the power to indemnify such person under the provisions of this
Article. Such rights shall not prevent or restrict the power of the Corporation
to make or provide for any further indemnity, or provisions for determining
entitlement to indemnity, pursuant to one or more indemnification agreements,
bylaws, or other arrangements (including, without limitation, creation of trust
funds or security interests funded by letters of credit or other means) approved
by the Board of Directors (whether or not any of the directors of the
Corporation shall be a party to or beneficiary of any such agreements, bylaws or
arrangements); provided, however, that any provision of such agreements, bylaws
or other arrangements shall not be effective if and to the extent that it is
determined to be contrary to this Article or applicable laws of the Commonwealth
of Virginia.
K. Each provision of this Article shall be severable, and an
adverse determination as to any such provision shall in no way affect the
validity of any other provision.
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