BY-LAWS
OF
SAGE LIFE ASSURANCE COMPANY OF NEW YORK
ARTICLE I - OFFICES
The office of Sage Life Assurance Company of New York (the "Corporation")
shall be located in the City of White Plains, County of Westchester, State of
New York. The Corporation may also maintain offices at such other places within
or without the State of New York as the Board of Directors may, from time to
time, determine.
ARTICLE II - MEETINGS OF SHAREHOLDERS
SECTION 1 - ANNUAL MEETINGS:
The annual meeting of the shareholders of the Corporation shall be held at
a place and time specified by the Board of Directors on the first Tuesday of
December, if not a legal holiday in the State of New York, and, if such day is a
legal holiday, then on the next succeeding business day not a legal holiday at
the corporation's principal office at 10:00 A.M., for the purpose of electing
Directors, and transacting such other business as may properly come before the
meeting.
SECTION 2 - SPECIAL MEETINGS:
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Special meetings of the shareholders may be called at any time by the Board
of Directors or by the President. The business conducted at such special
meetings shall be limited to that which is related to the purposes set forth in
the notice required by Section 4 of this Article II.
SECTION 3 - PLACE OF MEETINGS:
All meetings of shareholders shall be held at the principal office of the
Corporation, or at such other places as shall be designated in the notices or
waivers of notice of such meetings.
SECTION 4 - NOTICE OF MEETINGS:
(a) Except as otherwise provided by statute, written notice of each meeting
of shareholders, whether annual or special, stating the time when and place
where it is to be held, shall be served either personally or by first class
mail, not fewer than ten or more than fifty days before the meeting, upon each
shareholder of record entitled to vote at such meeting, and to any other
shareholder to whom the giving of notice may be required by law. Notice of a
special meeting shall also state the purpose or purposes for which the meeting
is called, and shall indicate that it is being issued by, or at the direction
of, the person or persons calling the meeting. If, at any meeting, action is
proposed to be taken that would, if taken, entitle shareholders to receive
payment for their shares pursuant to statute, the notice of such meeting shall
include a statement of that purpose and to that effect and shall be accompanied
by a copy of Section 623 of the New York Business Corporation Law or an outline
of its material terms. If mailed, such notice shall be directed to each such
shareholder at his address, as it appears on the records of the shareholders of
the Corporation, unless he shall have previously filed with the Secretary of the
Corporation a written request that notices intended for him be mailed to some
other address, in which case, it shall be mailed to the address designated in
such request.
(b) Notice of any meeting need not be given to any person who may become a
shareholder of record after the mailing of such notice and prior to the meeting,
or to any shareholder who attends such meeting, in person or by proxy, or to any
shareholder who, in person or by proxy, submits a signed waiver of notice either
before or after such meeting. Notice of any adjourned meeting of shareholders
need not be given, unless otherwise required by statute.
SECTION 5 - QUORUM:
(a) Except as otherwise provided herein, or by statute, or in the
Corporation's Charter (such Charter and any amendments thereto being hereinafter
collectively referred to as the "Charter"), at all meetings of shareholders of
the Corporation, the presence at the commencement of such meetings in person or
by proxy of shareholders holding of record a majority of the total number of
shares of the Corporation then issued and outstanding and entitled to vote,
shall be necessary and sufficient to constitute a quorum for the transaction of
any business. The withdrawal of any shareholder after the commencement of a
meeting shall have no effect on the existence of a quorum, after a quorum has
been established at such meeting.
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(b) Despite the absence of a quorum at any annual or special meeting of
shareholders, the shareholders, by a majority of the votes cast by the holders
of shares entitled to vote thereon, may adjourn the meeting. At any time when a
quorum is present at any such adjourned meeting, any business that might have
been transacted at the meeting as originally called (if a quorum had originally
been present) may be transacted at such adjourned meeting.
SECTION 6 - VOTING:
(a) Except as otherwise provided by statute or by the Charter, any
corporate action, other than the election of Directors, to be taken by vote of
the shareholders, shall be authorized by a majority of votes cast at a meeting
of shareholders by the holders of shares, in person or by proxy, entitled to
vote thereon.
(b) Except as otherwise provided by statute or by the Charter, at each
meeting of shareholders, each holder of record of stock of the Corporation
entitled to vote thereat, shall be entitled to one vote for each share of stock
registered in his name on the books of the Corporation.
(c) Each shareholder entitled to vote at a meeting of shareholders or to
express consent or dissent without a meeting may authorize another person or
person to act for him by proxy; provided, however, that the instrument
authorizing such proxy to act shall have been executed in writing by the
shareholder himself, or by his attorney-in-fact thereunto duly authorized in
writing. No proxy shall be valid after the expiration of eleven months from the
date of its execution, unless the person executing it shall have specified
therein the length of time it is to continue in force. Such instrument shall be
exhibited to the Secretary at the meeting and shall be filed with the records of
the Corporation.
(d) Any resolution in writing, signed by all of the shareholders entitled
to vote thereon, shall be and constitute action by such shareholders to the
effect therein expressed, with the same force and effect as if the same had been
duly passed by unanimous vote at a duly called meeting of shareholders and such
resolution so signed shall be inserted in the Minute Book of the Corporation
under its proper date.
ARTICLE III - BOARD OF DIRECTORS
SECTION 1 - NUMBER, ELECTION AND TERM OF OFFICE:
(a) The number of Directors of the Corporation shall be nine, except that
the number of Directors shall be increased to thirteen within one year following
the end of the calendar year in which the corporation exceeds one and one-half
billion U.S. dollars in admitted assets. The number of Directors may be
increased by amendment of these By-laws or by vote of a majority of the entire
Board of Directors. No decrease in the number of Directors shall shorten the
term of any incumbent Director.
(b) A majority of the Directors must, during their entire terms of service
as Directors, be citizens of the United States, and at least three of the
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Directors shall reside in the state of New York. At least one-third (but no less
than four) of the Directors, and at least one-third of the members of each
committee of the Board of Directors, shall be persons who are not officers or
employees of the Corporation or officers or employees of any entity controlling,
controlled by or under common control with the Corporation and who are not
beneficial owners of a controlling interest in the voting stock of the
Corporation or any such entity. No Director need be a shareholder of the
Corporation.
(c) Except as may otherwise be provided herein or in the Charter, the
members of the Board of Directors shall be elected by a majority of the votes
cast at a meeting of shareholders, by the holders of shares, present in person
or by proxy, entitled to vote in the election.
(d) A notice of election of Directors shall be filed with the
Superintendent of Insurance of the State of New York at least ten days before
the day of the election.
(e) Each Director shall hold office until the annual meeting of the
shareholders next succeeding his election, and until his successor is elected
and qualified, or until his prior death, resignation or removal.
(f) Whenever any Director of the Corporation resigns and a successor is
chosen pursuant to the provisions of these By-laws, the successors may not take
office or exercise their duties until ten days after written notice of their
election has been filed with the Superintendent of Insurance of the State of New
York.
SECTION 2 - DUTIES AND POWERS:
The Board of Directors shall be responsible for the control and management
of the affairs, property and interests of the Corporation, and may exercise all
powers of the Corporation, except as are in the Charter or by statute expressly
conferred upon or reserved to the shareholders.
SECTION 3 - ANNUAL AND OTHER REGULAR MEETINGS; NOTICE:
(a) A regular annual meeting of the Board of Directors shall be held
immediately following the annual meeting of the shareholders, at the place of
such annual meeting of shareholders.
(b) The Board of Directors, from time to time, may provide by resolution
for the holding of other regular meetings of the Board of Directors, and may fix
the time and place thereof.
(c) Notice of any regular meeting of the Board of Directors shall not be
required to be given and, if given, need not specify the purpose of the meeting;
provided, however, that in case the Board of Directors shall fix or change the
time or place of any regular meeting, notice of such action shall be given to
each Director who shall not have been present at the meeting at which such
action was taken within the time required and in the manner set forth in
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paragraph (b) Section 4 of this Article III, with respect to special meetings,
unless such notice shall be waived in the manner set forth in paragraph (c) of
such Section 4.
SECTION 4 - SPECIAL MEETINGS; NOTICE:
(a) Special meetings of the Board of Directors shall be held whenever
called by the President or by one of the Directors, at such time and place as
may be specified in the respective notices or waivers of notice thereof.
(b) Except as otherwise required by statute, notice of special meetings
shall be mailed directly to each Director, addressed to him at his residence or
usual place of business, at least ten (10) days before the day on which the
meeting is to be held, or shall be sent to him at such place by facsimile or
telegram, delivered to him personally, or given to him orally, not later than
the day before the day on which the meeting is to be held. A notice, or waiver
of notice, except as required by Section 8 of this Article III, need not specify
the purpose of the meeting.
(c) Notice of any special meeting shall not be required to be given to any
Director who shall attend such meeting without protesting prior thereto or at
its commencement, the lack of notice to him, or who submits a signed waiver of
notice, whether before or after the meeting. Notice of any adjournment of a
meeting shall not be required to be given.
SECTION 5 - CHAIRMAN:
At all meetings of the Board of Directors, the Chairman of the Board, if
any and if present, shall preside. If there shall be no Chairman, or he shall be
absent, then the President shall preside, and in his absence, a Chairman chosen
by the Directors shall preside.
SECTION 6 - QUORUM AND ADJOURNMENTS:
(a) At all meetings of the Board of Directors, the presence of a majority
of the entire Board shall be necessary and sufficient to constitute a quorum for
the transaction of business, except as otherwise provided by law and by
paragraph (b) of this Section 6.
(b) At least one Director who is not an officer or employee of the
Corporation or an officer or employee of any entity controlling, controlled by
or under common control with the Corporation and who is not a beneficial owner
of a controlling interest in the voting stock of the Corporation or any such
entity must be included in any quorum for the transaction of business at any
meeting of the Board of Directors or any committee thereof.
(c) A majority of the Directors present at the time and place of any
regular or special meeting, although less than a quorum, may adjourn the same
from time to time without notice, until a quorum shall be present.
SECTION 7 - MANNER OF ACTING:
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(a) At all meetings of the Board of Directors, each Director present shall
have one vote, irrespective of the number of shares of stock, if any, that he
may hold.
(b) Except as otherwise provided by statute, by the Charter, or by these
By-laws, the action of a majority of the Directors present at any meeting at
which a quorum is present shall be the act of the Board of Directors. Any action
authorized, in writing, by all of the Directors entitled to vote thereon and
filed with the minutes of the Corporation shall be the act of the Board of
Directors with the same force and effect as if the same had been passed by
unanimous vote at a duly called meeting of the Board.
(c) Any one or more members of the Board of Directors may participate in a
meeting of the Board of Directors by means of a conference telephone or similar
communications equipment allowing all persons participating in the meeting to
hear each other at the same time. Participation by such means shall constitute
presence in person at a meeting.
SECTION 8 - VACANCIES:
Any vacancy in the Board of Directors occurring by reason of an increase in
the number of Directors, or by reason of the death, resignation,
disqualification, removal (unless a vacancy created by the removal of a Director
by the shareholders shall be filled by the shareholders at the meeting at which
the removal was effected) or inability to act of any Director, or otherwise,
shall be filled for the unexpired portion of the term by a majority vote of the
remaining Directors, though less than a quorum, at any regular meeting or
special meeting of the Board of Directors called for that purpose.
SECTION 9 - RESIGNATION:
Any Director may resign at any time by giving written notice to the Board
of Directors, the President or the Secretary of the Corporation. Unless
otherwise specified in such written notice, such resignation shall take effect
upon receipt thereof by the Board of Directors or such officer, and the
acceptance of such resignation shall not be necessary to make it effective.
SECTION 10 - REMOVAL:
Any Director may be removed with or without cause at any time by the
affirmative vote of shareholders holding of record in the aggregate at least a
majority of the outstanding shares of the Corporation at a special meeting of
the shareholders called for that purpose, and may be removed for cause by action
of the Board.
SECTION 11 - SALARY:
The salary to be paid to Directors shall be approved by the Board of
Directors; provided, however, that no officer of the Corporation that receives a
salary for his or her services as an officer may also receive a salary for his
or her services as a Director. In addition, the Board of Directors may, by
resolution, allow the expenses of attendance, if any, to be reimbursed to the
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Directors (including Directors who are also officers of the Corporation) for
their attendance at each regular or special meeting of the Board. Nothing herein
shall be construed to preclude any Director from serving the Corporation in any
other capacity and receiving compensation therefor.
SECTION 12 - CONTRACTS:
(a) Except as provided by Section 1411 of the New York Insurance Law, no
contract or other transaction between this Corporation and any other corporation
shall be impaired, affected or invalidated, nor shall any Director be liable in
any way by reason of the fact that any one or more of the Directors of this
Corporation is or are interested in, or is a director or officer, or are
directors or officers of such other corporation, provided that such facts are
disclosed or made known to the Board of Directors.
(b) Except as provided in Section 1411 of the New York Insurance Law, any
Director, personally and individually, may be a party to or may be interested in
any contract or transaction of this Corporation, and no Director shall be liable
in any way by reason of such interest, provided that the fact of such interest
be disclosed or made known to the Board of Directors, and provided that the
Board of Directors shall authorize, approve or ratify such contract or
transaction by the vote (not counting the vote of any such Director) of a
majority of a quorum, notwithstanding the presence of any such Director at the
meeting at which such action is taken. Such Director or Directors may be counted
in determining the presence of a quorum at such meeting. This Section shall not
be construed to impair or invalidate or in any way affect any contract or other
transaction that would otherwise be valid under the law (common, statutory or
otherwise) applicable thereto.
SECTION 13 - LOANS:
The Corporation shall make no loan to any Director, directly or indirectly,
or through any of its subsidiaries; nor shall any Director accept any loan
directly or indirectly.
SECTION 14 - COMMITTEES:
(a) The Board of Directors, by resolution adopted by a majority of the
entire Board, shall establish a committee comprised solely of Directors who are
not officers or employees of the Corporation or officers or employees of any
entity controlling, controlled by or under common control with the Corporation
and who are not beneficial owners of a controlling interest in the voting stock
of the Corporation or any such entity. Such committee shall have the following
responsibilities, among others: recommending the selection of independent
certified public accountants; reviewing the Corporation's financial condition,
reviewing the scope and results of the independent audit and any internal audit,
nominating candidates for Director for election by shareholders, evaluating the
performance of officers deemed by such committee to be principal officers of the
Corporation, recommending to the Board of Directors the selection and
compensation of such principal officers, and recommending to the Board of
Directors any plan to issue options to its officers and employees for the
purchase of shares of stock.
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(b) The Board of Directors, by resolution adopted by a majority of the
entire Board, may from time to time establish other committees and designate the
Directors who will be members and, if desired, alternate members thereof. Each
committee will have such powers and authority (to the extent permitted by law)
as may be provided in such resolution, and will consist of at least three
members, except that the number of members of each major committee shall be
increased to five within one year following the end of the calendar year during
which the admitted assets of the Corporation exceeds the limit prescribed by the
New York Insurance Law for New York domiciled life insurance companies with nine
directors. At least one-third of the Directors on each committee shall be
persons who are not officers or employees of the Corporation or officers or
employees of any entity controlling, controlled by or under common control with
the Corporation and who are not beneficial owners of a controlling interest in
the voting stock of the Corporation or any such entity. Each committee shall
serve at the pleasure of the Board.
(c) At all meetings of committees of the Board of Directors, the presence
of all of the members of a committee comprised of less than five members, and
the presence of a majority of the entire committee for committees comprised of
five members or more, shall be necessary and sufficient to constitute a quorum
for the transaction of business, except as otherwise provided by law.
ARTICLE IV - OFFICERS
SECTION 1 - NUMBER, QUALIFICATIONS, ELECTION AND TERM OF OFFICE:
(a) The officers of the Corporation shall consist of a President, a
Secretary, a Treasurer, and such other officers, including a Chairman of the
Board of Directors, and one or more Vice Presidents, as the Board of Directors
may from time to time deem advisable. Any officer other than the Chairman of the
Board of Directors may be, but is not required to be, a Director of the
Corporation.
(b) The officers of the Corporation shall be elected by the Board of
Directors at the regular annual meeting of the Board following the annual
meeting of shareholders.
(c) Each officer shall hold office until the annual meeting of the Board of
Directors next succeeding his election, and until his successor shall have been
elected and qualified, or until his death, resignation or removal.
SECTION 2 - RESIGNATION:
Any officer may resign at any time by giving written notice of such
resignation to the Board of Directors, or to the President or the Secretary of
the Corporation. Unless otherwise specified in such written notice, such
resignation shall take effect upon receipt thereof by the Board of Directors or
by such officer, and the acceptance of such resignation shall not be necessary
to make it effective.
SECTION 3 - REMOVAL:
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Any officer may be removed, either with or without cause, and a successor
may be elected by a majority vote of the Board of Directors at any time.
SECTION 4 - VACANCIES:
A vacancy in any office by reason of death, resignation, inability to act,
disqualification, or any other cause, may at any time be filled for the
unexpired portion of the term by a majority vote of the Board of Directors.
SECTION 5 - DUTIES OF OFFICERS:
Officers of the Corporation, unless otherwise provided by the Board of
Directors, each shall have such powers and duties as generally pertain to their
respective offices as well as such powers and duties as may be set forth in
these By-laws, or may from time to time by specifically conferred or imposed by
the Board of Directors. The President shall be the chief executive officer of
the Corporation.
SECTION 6 - SURETIES AND BONDS:
In case the Board of Directors shall so require, any officer, employee or
agent of the Corporation shall execute to the Corporation a bond in such sum,
and with such surety or sureties as the Board of Directors may direct,
conditioned upon the faithful performance of his duties to the Corporation,
including responsibility for negligence and for the accounting for all property,
funds or securities of the Corporation that may come into his hands.
SECTION 7 - SHARES OF OTHER CORPORATIONS:
Whenever the Corporation is the holder of shares of any other corporation,
any right or power of the Corporation as such shareholder (including the
attendance, acting and voting at shareholders' meetings and execution of
waivers, consents, proxies or other instruments) may be exercised on behalf of
the Corporation by the President, Vice President, or such other person as the
Board of Directors may authorize.
ARTICLE V - SHARES OF STOCK
SECTION 1 - CERTIFICATE OF STOCK:
(a) The certificates representing shares of the Corporation shall be in
such form as shall be adopted by the Board of Directors, and shall be numbered
and registered in the order issued. Such certificates shall bear the holder's
name and the number of shares, and shall be signed by (i) the Chairman of the
Board or the President or a Vice President, and (ii) the Secretary or Treasurer,
or any Assistant Secretary or Assistant Treasurer, and shall bear the corporate
seal.
(b) No certificate representing shares shall be issued until the full
amount of consideration therefor has been paid, except as otherwise provided by
law.
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(c) To the extent permitted by law, the Board of Directors may authorize
the issuance of certificates for fractions of a share which shall entitle the
holder to exercise voting rights, receive dividends and participate in
liquidating distributions, in proportion to the fractional holdings; or it may
authorize the payment in cash of the fair value of fractions of a share as of
the time when those entitled to receive such fractions are determined; or it may
authorize the issuance, subject to such conditions as may be permitted by law,
of scrip in registered or bearer form over the signature of an officer or agent
of the Corporation, exchangeable as therein provided for full shares, but such
scrip shall not entitle the holder to any rights of a shareholder, except as
therein provided.
SECTION 2 - LOST OR DESTROYED CERTIFICATES:
The holder of any certificate representing shares of the Corporation shall
immediately notify the Corporation of any loss or destruction of the certificate
representing the same. The Corporation may issue a new certificate in the place
of any certificate theretofore issued by it, alleged to have been lost or
destroyed. On production of such evidence of loss or destruction as the Board of
Directors in its discretion may require, the Board of Directors may, in its
discretion, require the owner of the lost or destroyed certificate, or his legal
representatives, to give the Corporation a bond in such sum as the Board may
direct, and with such surety or sureties as may be satisfactory to the Board, to
indemnify the Corporation against any claims, loss, liability or damage it may
suffer on account of the issuance of the new certificate. A new certificate may
be issued without requiring any such evidence or bond when, in the judgment of
the Board of Directors, it is proper to do so.
SECTION 3 - TRANSFERS OF SHARES:
(a) Transfers of shares of the Corporation shall be made only on the share
records of the Corporation by the holder of record thereof, in person or by his
duly authorized attorney, upon surrender for cancellation of the certificate or
certificates representing such shares, with an assignment or power of transfer
endorsed thereon or delivered therewith, duly executed, with such proof of the
authenticity of the signature and of authority to transfer and of payment of
transfer taxes as the Corporation or its agents may require.
(b) The Corporation shall be entitled to treat the holder of record of any
share or shares as the absolute owner thereof for all purposes and, accordingly,
shall not be bound to recognize any legal, equitable or other claim to, or
interest in, such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise expressly
provided by law.
SECTION 4 - RECORD DATE:
In lieu of closing the share records of the Corporation, the Board of
Directors may fix, in advance, a date not exceeding fifty days, nor less than
ten days, as the record date for the determination of shareholders entitled to
receive notice of, or to vote at, any meeting of shareholders, or to consent to
any proposal without a meeting, or for the purpose of determining shareholders
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entitled to receive payment of any dividends, or allotment of any rights, or for
the purpose of any other action. If no record date is fixed, the record date for
the determination of shareholders entitled to notice of or to vote at a meeting
of shareholders shall be at the close of business on the day next preceding the
day on which notice is given, or, if no notice is given, the day on which the
meeting is held; the record date for determining shareholders for any other
purpose shall be at the close of business on the day on which the resolution of
the Directors relating thereto is adopted. When a determination of shareholders
of record entitled to notice of or to vote at any meeting of shareholders has
been made as provided for herein, such determination shall apply to any
adjournment thereof, unless the Directors fix a new record date for the
adjourned meeting.
ARTICLE VI - DIVIDENDS
(a) Subject to applicable law, dividends to shareholders may be declared
and paid out of any funds available therefor, as often, in such amounts, and at
such time or times as the Board of Directors may determine.
(b) The Corporation shall file any notice with the Superintendent of
Insurance of the State of New York that is required by the New York Insurance
Law in connection with the declaration and payment of dividends to shareholders.
ARTICLE VII - FISCAL YEAR
The fiscal year of the Corporation shall be the calendar year, unless
applicable law permits otherwise, in which case the fiscal year shall be fixed
by the Board of Directors from time to time in accordance with applicable law.
ARTICLE VIII - CORPORATE SEAL
The corporate seal, if any, shall be in such form as shall be approved from
time to time by the Board of Directors.
ARTICLE IX - AMENDMENTS
SECTION 1 - BY SHAREHOLDERS:
All By-laws of the Corporation shall be subject to alteration or repeal,
and new By-laws may be made, by the affirmative vote of shareholders holding of
record in the aggregate at least a majority of the outstanding shares entitled
to vote in the election of Directors at any annual or special meeting of
shareholders, provided that the notice or waiver of notice of such meeting shall
have summarized or set forth in full therein, the proposed amendment.
SECTION 2 - BY DIRECTORS:
The Board of Directors shall have power to make, adopt, alter, amend and
repeal, from time to time, By-laws of the Corporation; provided, however, that
the shareholders entitled to vote with respect thereto as in this Article IX
above-provided may alter, amend or repeal By-laws made by the Board of
Directors, except that the Board of Directors shall have no power to change the
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quorum for meetings of shareholders or of the Board of Directors, or to change
any provisions of the By-laws with respect to the removal of Directors or the
filling of vacancies in the Board resulting from the removal by the
shareholders. If any By-law regulating an impending election of Directors is
adopted, amended or repealed by the Board of Directors, there shall be set forth
in the notice of the next meeting of shareholders for the election of Directors,
the By-law so adopted, amended or repealed, together with a concise statement of
the changes made.
SECTION 3 - APPROVAL:
No By-law, or amendment or repeal of a By-law, shall be effective until it
is approved by the Superintendent of Insurance of the State of New York.
ARTICLE X - INDEMNIFICATION AND INSURANCE
SECTION 1 - INDEMNIFICATION:
(a) The Corporation shall indemnify any person made, or threatened to be
made, a party to an action or proceeding (other than one by or in the right of
the Corporation to procure a judgment in its favor), whether civil or criminal,
including an action by or in the right of any other corporation of any type or
kind, domestic or foreign, or any partnership, joint venture, trust, employee
benefit plan or other enterprise, that any Director or officer of the
Corporation served in any capacity at the request of the Corporation, by reason
of the fact that he, his testator or intestate, was a Director or officer of the
Corporation, or served such other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise at the request of the
Corporation in any capacity, against judgments, fines, amounts paid in
settlement and reasonable expenses, including attorneys' fees actually and
necessarily incurred as a result of such action or proceeding, or any appeal
therein, if such Director or officer (i) acted in good faith, for a purpose that
he reasonably believed to be in, or, in the case of service for any other
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise, not opposed to, the best interests of the Corporation and (ii)
in criminal actions or proceedings, in addition, had no reasonable cause to
believe that his conduct was unlawful.
(b) The termination of any such civil or criminal action or proceeding by
judgment, settlement, conviction or upon a plea of nolo contendere, or its
equivalent, shall not in itself create a presumption (i) that any such person
did not act in good faith, for a purpose that he reasonably believed to be in,
or, in the case of service for any other corporation or any partnership, joint
venture, trust, employee benefit plan or other enterprise, not opposed to, the
best interests of the Corporation or (ii) that he had reasonable cause to
believe that his conduct was unlawful.
(c) The Corporation shall indemnify any person made, or threatened to be
made, a party to an action by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he, his testator or intestate,
is or was a Director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director or officer of any other corporation of
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any type or kind, domestic or foreign, of any partnership, joint venture, trust,
employee benefit plan or other enterprise, against amounts paid in settlement
and reasonable expenses, including attorneys' fees, actually and necessarily
incurred by him in connection with the defense or settlement of such action, or
in connection with an appeal therein if such Director or officer acted in good
faith, for a purpose that he reasonably believed to be in, or, in the case of
service for any other corporation or any partnership, joint venture, trust,
employee benefit plan or other enterprise, not opposed to, the best interests of
the Corporation; except that no indemnification under this subsection (c) shall
be made in respect of (i) a threatened action, or a pending action that is
settled or otherwise disposed of, or (ii) 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 on which the action was brought, or, if no
action was brought, any court of competent jurisdiction, determines upon
application that, in view of all the circumstances of the case, the person is
fairly and reasonably entitled to indemnity for such portion of the settlement
amount and expenses as the court deems proper.
(d) (1) No payment of indemnification, advancement or allowance under
Sections 721-727 of the New York Business Corporation Law shall be made by the
Corporation unless a notice has been filed with the Superintendent of Insurance
of the State of New York not less than thirty days prior to such payment
specifying the payees, the amounts, the manner in which such payment is
authorized and the nature and status, at the time of such notice, of the
litigation or threatened litigation.
(2) If any action with respect to indemnification of Directors or officers
of the Corporation shall be taken by amendment of the By-laws, such action shall
be in accordance with the approval requirements in Section 1210 of the New York
Insurance Law.
(3) If any action shall be taken by resolution of Directors, or by
agreement or otherwise, a notice shall be filed with the Superintendent of
Insurance of the State of New York not less than thirty days thereafter
specifying the action taken.
SECTION 2 - OTHER INDEMNIFICATION:
The Corporation may, to the fullest extent permitted by law, indemnify or
advance the expenses of any other person including agents and employees to whom
the Corporation is permitted by law to provide indemnification or advancement of
expenses.
SECTION 3 - PAYMENT OF EXPENSES IN ADVANCE:
To the fullest extent permitted by the New York Business Corporation Law,
the Corporation will advance, to any person who may be entitled to
indemnification under Sections 1 or 2, sums with which to pay expenses incurred
by that person in defending against the claims, actions or proceedings for which
such person may become entitled to indemnification, upon receipt of an
undertaking by or on behalf of such person to repay the sums that are advanced
if it is ultimately determined that such person is not entitled to
<PAGE>
indemnification under Sections 1 or 2 or to the extent the sums that are
advanced exceed the indemnification to which such person is entitled.
SECTION 4 - ENFORCEMENT, DEFENSES:
The right to indemnification or advancement of expenses granted by this
Article X shall be enforceable by the person in any court of competent
jurisdiction if the Corporation denies such request, in whole or in part, or if
no disposition thereof is made within 60 days. Such person's expenses incurred
in connection with successfully establishing his right to indemnification, in
whole or in part, in any such action shall also be indemnified by the
Corporation. It shall be a defense to any such action (other than an action
brought to enforce a claim for the advancement of expenses under Section 3 of
this Article X where the required undertaking has been received by the
Corporation) that the claimant has conducted himself in a manner that would
preclude the Corporation from indemnifying him pursuant to Sections 1 or 2 of
this Article X, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, its independent legal counsel, and its shareholders) to have made a
determination that indemnification of the claimant is proper in the
circumstances, nor the fact that there has been an actual determination by the
Corporation (including its Board of Directors, its independent legal counsel,
and its shareholders) that indemnification of the claimant is not proper in the
circumstances shall be a defense to the action or create a presumption that the
claimant is not entitled to indemnification.
SECTION 5 - SURVIVAL: SAVINGS CLAUSE; PRESERVATION OF OTHER RIGHTS:
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(a) The foregoing indemnification provisions shall be deemed to be a
contract between the Corporation and each person who serves in such capacity at
any time while these provisions are in effect, and any repeal or modification of
the New York Business Corporation Law shall not affect any right or obligation
then existing with respect to any state of facts then or previously existing or
any action or proceeding previously or thereafter brought or threatened based in
whole or in part upon any such state of facts, except as provided by law. Such a
contract right may not be modified retroactively without the consent of such
person, except as provided by law.
(b) If this Article X or any portion hereof shall be invalidated on any
ground by any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify each person of the Corporation against judgments, fines,
amounts paid in settlement and expenses (including attorneys' fees) incurred in
connection with any actual or threatened action or proceeding, whether civil or
criminal, including any actual or threatened action by or in the right of the
Corporation, or any appeal therein, to the fullest extent permitted by any
applicable portion of this Article X that shall not have been invalidated and to
the fullest extent permitted by applicable law.
(c) The indemnification provided by this Article X shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any other by-law, agreement, vote of shareholders or Directors or otherwise,
<PAGE>
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 a Director or officer and shall inure to the benefit of the heirs, executors
and administrators of such a person. The Corporation is hereby authorized to
provide further indemnification if it deems advisable by resolution of
shareholders or Directors, by amendment of these By-laws or by agreement.
SECTION 6 - INSURANCE:
The Corporation may purchase and maintain insurance to indemnify officers,
Directors and others against costs or liabilities incurred by them in connection
with the performance of their duties and any activities undertaken by them for,
or at the request of, the Corporation, to the fullest extent permitted by the
New York Business Corporation Law and the New York Insurance Law.
SECTION 7 - NEW YORK BUSINESS CORPORATION LAW AND INSURANCE LAW:
All references to the New York Business Corporation Law and the New York
Insurance Law in these By-laws shall mean such laws as they may from time to
time be amended.
