Amended and Restated
BY-LAWS
OF
CONSECO VARIABLE INSURANCE COMPANY
November 6, 1998
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TABLE OF CONTENTS
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ARTICLE I. IDENTIFICATION
Section 1. Name........................................................... 1
Section 2. Registered Office and Registered Agent........................ 1
Section 3. Principal Office.............................................. 1
Section 4. Other Offices................................................. 1
Section 5. Seal.......................................................... 1
Section 6. Fiscal Year................................................... 1
ARTICLE II. SHAREHOLDERS.
Section 1. Place of Meeting.............................................. 2
Section 2. Annual Meetings............................................... 2
Section 3. Special Meetings.............................................. 2
Section 4. Notice of Meeting............................................. 2
Section 5. Waiver of Notice.............................................. 2
Section 6. Voting at Meetings............................................ 3
(a) Voting Rights............................................ 3
(b) Record Date.............................................. 3
(c) Proxies.................................................. 3
(d) Quorum................................................... 4
(e) Adjournments............................................. 4
Section 7. List of Shareholders.......................................... 4
Section 8. Action by Written Consent..................................... 5
Section 9. Meeting by Telephone or Similar
Communications Equipment...................................... 5
ARTICLE III. DIRECTORS.
Section 1. Duties........................................................ 6
Section 2. Number of Directors........................................... 6
Section 3. Election and Term............................................. 6
Section 4. Resignation................................................... 6
Section 5. Vacancies..................................................... 7
Section 6. Annual Meetings............................................... 7
Section 7. Regular Meetings.............................................. 7
Section 8. Special Meetings.............................................. 7
Section 9. Notice........................................................ 7
Section 10. Waiver of Notice.............................................. 7
Section 11. Business to be Transacted..................................... 8
Section 12. Quorum - Adjournment if Quorum is Not
Present....................................................... 8
(i)
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Section 13. Presumption of Assent......................................... 8
Section 14. Action by Written Consent..................................... 9
Section 15. Committees.................................................... 9
Section 16. Meeting by Telephone or Similar
Communication Equipment....................................... 10
ARTICLE IV. OFFICERS.
Section 1. Principal Officers............................................ 10
Section 2. Election and Terms............................................ 10
Section 3. Resignation and Removal....................................... 10
Section 4. Vacancies..................................................... 11
Section 5. Powers and Duties of Officers................................. 11
Section 6. Chairman of the Board......................................... 11
Section 7. President..................................................... 11
Section 8. Vice President................................................ 12
Section 9. Secretary..................................................... 12
Section 10. Treasurer..................................................... 12
Section 11. Assistant Secretaries......................................... 13
Section 12. Assistant Treasurers.......................................... 13
Section 13. Delegation of Authority....................................... 13
Section 14. Securities of Other Corporation............................... 14
ARTICLE V. DIRECTORS' SERVICES, LIMITATION OF LIABILITY AND RELIANCE ON
CORPORATE RECORDS, AND INTEREST OF DIRECTORS IN CONTRACTS.
Section 1. Services...................................................... 14
Section 2. General Limitation of Liability............................... 14
Section 3. Reliance on Corporate Records and
Other Information............................................. 15
Section 4. Interest of Directors in Contracts............................ 15
ARTICLE VI. INDEMNIFICATION.
Section 1. Indemnification against Underlying
Liability..................................................... 16
Section 2. Successful Defense............................................ 17
Section 3. Determination of Conduct...................................... 17
Section 4. Payment of Expenses in Advance................................ 18
Section 5. Indemnity Not Exclusive....................................... 18
Section 6. Insurance Indemnification..................................... 18
Section 7. Employee Benefit Plans........................................ 19
Section 8. Application of Indemnification and
Advancement of Expenses....................................... 19
Section 9. Indemnification Payments...................................... 19
(ii)
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ARTICLE VII. SHARES.
Section 1. Share Certificates............................................ 20
Section 2. Transfer of Shares............................................ 20
Section 3. Registered Holders............................................ 20
Section 4. Lost, Destroyed and Mutilated
Certificates.................................................. 21
Section 5. Consideration for Shares...................................... 21
Section 6. Payment for Shares............................................ 21
Section 7. Distributions to Shareholders................................. 22
Section 8. Regulations................................................... 22
ARTICLE VIII. CORPORATE BOOKS AND REPORTS.
Section 1. Place of Keeping Corporate Books
and Records................................................... 22
Section 2. Place of Keeping Certain Corporate
Books and Records............................................. 22
Section 3. Permanent Records............................................. 23
Section 4. Shareholder Records........................................... 23
Section 5. Shareholder Rights of Inspection.............................. 23
Section 6. Additional Rights of Inspection............................... 23
ARTICLE IX. MISCELLANEOUS.
Section 1. Notice and Waiver of Notice................................... 24
Section 2. Depositories.................................................. 24
Section 3. Signing of Checks, Notes, etc................................. 25
Section 4. Gender and Number............................................. 25
Section 5. Laws.......................................................... 25
Section 6. Headings...................................................... 25
ARTICLE X. AMENDMENTS.................................................... 25
ARTICLE XI. THE TEXAS BUSINESS CORPORATION ACT............................ 26
(iii)
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BY-LAWS
OF
CONSECO VARIABLE INSURANCE COMPANY
ARTICLE I
IDENTIFICATION
SECTION 1. NAME. The name of the Corporation is Conseco Variable
Insurance Company (hereinafter referred to as the "Corporation").
SECTION 2. REGISTERED OFFICE AND REGISTERED AGENT. The Registered
Office and Registered Agent of the Corporation is located in Amarillo, Texas and
may be changed from time to time by the Board of Directors in the manner
provided by law.
SECTION 3. PRINCIPAL OFFICE. The address of the Principal Office of
the Corporation is 11815 North Pennsylvania Street, Carmel, Indiana 46032. The
Principal Office of the Corporation shall be the principal executive and
administrative offices of the Corporation, and such Principal Office may be
changed from time to time by the Board of Directors in the manner provided by
law and need not be the same as the Registered Office of the Corporation.
SECTION 4. OTHER OFFICES. The Corporation may also have offices at
such other places or locations, within or without the State of Texas, as the
Board of Directors may determine or the business of the Corporation may require.
SECTION 5. SEAL. The Corporation need not use a seal. If one is used,
it shall be circular in form and mounted upon a metal die suitable for
impressing the same upon paper. About the upper periphery of the seal shall
appear the words "Conseco Variable Insurance Company" and about the lower
periphery thereof the word "Texas". In the center of the seal shall appear the
word "Seal". The seal may be altered by the Board of Directors at its pleasure
and may be used by causing it or a facsimile thereof to be impressed, affixed,
printed or otherwise reproduced.
SECTION 6. FISCAL YEAR. The fiscal year of the Corporation shall begin
at the beginning of the first day of January in each year and end at the close
of the last day of December next succeeding.
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ARTICLE II
SHAREHOLDERS
SECTION 1. PLACE OF MEETING. All meetings of shareholders of the
Corporation shall be held at such place, within or without the State of Texas,
as may be determined by the President or Board of Directors and specified in the
notices or waivers of notice thereof or proxies to represent shareholders at
such meetings.
SECTION 2. ANNUAL MEETINGS. An annual meeting of shareholders shall be
held each year on such date and at such time as may be determined by the
President or Board of Directors. The failure to hold an annual meeting at the
designated time shall not affect the validity of any corporate action. Any and
all business of any nature or character may be transacted, and action may be
taken thereon, at any annual meeting, except as otherwise provided by law or by
these By-laws.
SECTION 3. SPECIAL MEETINGS. A special meeting of shareholders shall
be held: (a) on call of the Board of Directors or the President; or (b) if the
holders of at least twenty-five percent (25%) of all the votes entitled to be
cast on any issue proposed to be considered at the proposed special meeting
sign, date and deliver to the Secretary one (1) or more written demands for the
meeting describing the purpose or purposes for which it is to be held. At any
special meeting of the shareholders, only business within the purpose or
purposes described in the notice of the meeting may be conducted.
SECTION 4. NOTICE OF MEETING. Written or printed notice stating the
date, time and place of a meeting and, in case of a special meeting, the purpose
or purposes for which the meeting is called, shall be delivered or mailed by the
Secretary, or by the officers or persons calling the meeting, to each
shareholder of record of the Corporation entitled to vote at the meeting, at
such address as appears upon the records of the Corporation, no fewer than ten
(10) days nor more than sixty (60) days, before the meeting date. If mailed,
such notice shall be effective when mailed if correctly addressed to the
shareholder's address shown in the Corporation's current record of shareholders.
SECTION 5. WAIVER OF NOTICE. A shareholder may waive any notice
required by law, the Articles of Incorporation or these By-laws before or after
the date and time stated in the notice. The waiver by the shareholder entitled
to the notice must be in writing and be delivered to the Corporation for
inclusion in the
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minutes or filing with the corporate records. A shareholder's attendance at a
meeting, in person or by proxy: (a) waives objection to lack of notice or
defective notice of the meeting, unless the shareholder at the beginning of the
meeting objects to holding the meeting or transacting business at the meeting;
and (b) waives objection to consideration of a particular matter at the meeting
that is not within the purpose or purposes described in the meeting notice,
unless the shareholder objects to considering the matter when it is presented.
SECTION 6. VOTING AT MEETINGS.
(a) VOTING RIGHTS. At each meeting of the shareholders, each
outstanding share, regardless of class, is entitled to one (1) vote on
each matter voted on at such meeting, except to the extent cumulative
voting is allowed by the Articles of Incorporation. Only shares are
entitled to vote.
(b) RECORD DATE. The record date for purposes of determining
shareholders entitled to vote at any meeting shall be ten (10) days
prior to the date of such meeting or such different date not more than
seventy (70) days prior to such meeting as may be fixed by the Board
of Directors.
(c) PROXIES.
(1) A shareholder may vote the shareholder's shares in
person or by proxy.
(2) A shareholder may appoint a proxy to vote or otherwise
act for the shareholder by executing in writing an appointment
form, either personally or by the shareholder's attorney-in-fact.
For purposes of this Section, a proxy appointed by telegram,
telex, telecopy or other document transmitted electronically for
or by a shareholder shall be deemed "executed in writing" by the
shareholder.
(3) An appointment of a proxy is effective when received by
the Secretary or other officer or agent authorized to tabulate
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votes. An appointment is valid for eleven (11) months, unless a
longer period is expressly provided in the appointment form.
(4) An appointment of a proxy is revocable by the
shareholder, unless the appointment form conspicuously states
that it is irrevocable and the appointment is coupled with an
interest.
(d) QUORUM. At all meetings of shareholders, a majority of the
votes entitled to be cast on a particular matter constitutes a quorum
on that matter. If a quorum exists, action on a matter (other than the
election of directors) is approved if the votes cast favoring the
action exceed the votes cast opposing the action, unless the Articles
of Incorporation or law require a greater number of affirmative votes.
(e) ADJOURNMENTS. Any meeting of shareholders, including both
annual and special meetings and any adjournments thereof, may be
adjourned to a different date, time or place. Notice need not be given
of the new date, time or place if the new date, time or place is
announced at the meeting before adjournment, even though less than a
quorum is present. At any such adjourned meeting at which a quorum is
present, in person or by proxy, any business may be transacted which
might have been transacted at the meeting as originally notified or
called.
SECTION 7. LIST OF SHAREHOLDERS.
(a) After a record date has been fixed for a meeting of
shareholders, the Secretary shall prepare or cause to be prepared an
alphabetical list of the names of the shareholders of the Corporation
who are entitled to vote at such meeting. The list shall show the
address of and number of shares held by each shareholder.
(b) The shareholders' list must be available for inspection by
any shareholder entitled to vote at the meeting, beginning five (5)
business days before the date of the meeting for which the list was
prepared and continuing through the meeting, at the Corporation's
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principal office or at a place identified in the meeting notice in the
city where the meeting will be held. Subject to the restrictions of
applicable law, a shareholder, or the shareholder's agent or attorney
authorized in writing, is entitled on written demand to inspect and to
copy the list, during regular business hours and at the shareholder's
expense, during the period it is available for inspection.
(c) The Corporation shall make the shareholders' list available
at the meeting, and any shareholder, or the shareholder's agent or
attorney authorized in writing, is entitled to inspect the list at any
time during the meeting or any adjournment.
SECTION 8. ACTION BY WRITTEN CONSENT. Any action required or permitted
to be taken at any meeting of the shareholders may be taken without a meeting if
the action is taken by all the shareholders entitled to vote on the action. The
action must be evidenced by one or more written consents describing the action
taken, signed by all the shareholders entitled to vote on the action, and
delivered to the Corporation for inclusion in the minutes or filing with the
corporate records. Such action is effective when the last shareholder signs the
consent, unless the consent specifies a different prior or subsequent effective
date. Such consent shall have the same force and effect as a unanimous vote at a
meeting of the shareholders, and may be described as such in any document or
instrument.
SECTION 9. MEETING BY TELEPHONE OR SIMILAR COMMUNICATIONS EQUIPMENT.
Any or all shareholders may participate in and hold a meeting of shareholders
by, or through the use of, any means of conference telephone or other similar
communications equipment by which all persons participating in the meeting may
simultaneously hear each other during the meeting. Participation in a meeting
pursuant to this Section shall constitute presence in person at such meeting,
except where a person participates in the meeting for the express purposes of:
(a) objecting to holding the meeting or transacting business at the meeting on
the ground that the meeting is not lawfully called or convened; or (b) objecting
to the consideration of a particular matter that is not within the purpose or
purposes described in the meeting notice.
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ARTICLE III
DIRECTORS
SECTION 1. DUTIES. The business, property and affairs of the
Corporation shall be managed and controlled by the Board of Directors and,
subject to such restrictions, if any, as may be imposed by law, the Articles of
Incorporation or by these By-laws, the Board of Directors may, and are fully
authorized to, do all such lawful acts and things as may be done by the
Corporation which are not directed or required to be exercised or done by the
shareholders. Directors need not be residents of the State of Texas or
shareholders of the Corporation.
SECTION 2. NUMBER OF DIRECTORS. The Board of Directors shall consist
of at least five (5) and not more than fifteen (15) directors. A Board of
Directors shall be chosen annually by the shareholders at their annual meeting,
except as hereinafter provided. Subject to Article VI of the Articles of
Incorporation, the number of directors may be increased or decreased from time
to time by amendment to these By-Laws, but no decrease shall have the effect of
shortening the term of any incumbent director. A person need not be a
shareholder of the Corporation to serve as a Director. The Directors' terms of
office shall be for one year, or until their successors are elected and have
qualified.
SECTION 3. ELECTION AND TERM. Except as otherwise provided in Section
5 of this Article, the directors shall be elected each year at the annual
meeting of the shareholders, or at any special meeting of the shareholders. Each
such director shall hold office, unless he is removed in accordance with the
provisions of these By-laws or he resigns or dies or becomes so incapacitated he
can no longer perform any of his duties as a director, for the term for which he
is elected and until his successor shall have been elected and qualified. Each
director shall qualify by accepting his election to office either expressly or
by acting as a director. The shareholders or directors may remove any director,
with or without cause, and elect a successor at a meeting called expressly for
such purpose.
SECTION 4. RESIGNATION. Any director may resign at any time by
delivering written notice to the Board of Directors, the President, or the
Secretary of the Corporation. A resignation is effective when the notice is
delivered unless the notice specifies a later effective date. The acceptance of
a resignation shall not
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be necessary to make it effective, unless expressly so provided in the
resignation.
SECTION 5. VACANCIES. Vacancies occurring in the membership of the
Board of Directors caused by resignation, death or other incapacity, or increase
in the number of directors shall be filled by a majority vote of the remaining
members of the Board, and each director so elected shall serve until the next
meeting of the shareholders, or until a successor shall have been duly elected
and qualified.
SECTION 6. ANNUAL MEETINGS. The Board of Directors shall meet
annually, without notice, immediately following, and at the same place as, the
annual meeting of the shareholders.
SECTION 7. REGULAR MEETINGS. Regular meetings shall be held at such
times and places, either within or without the State of Texas, as may be
determined by the President or the Board of Directors.
SECTION 8. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the President or by two (2) or more members of the
Board of Directors, at any place within or without the State of Texas, upon
twenty-four (24) hours' notice, specifying the time, place and general purposes
of the meeting, given to each director personally, by telephone, telegraph,
teletype, or other form of wire or wireless communication; or notice may be
given by mail if mailed at least three (3) days before such meeting.
SECTION 9. NOTICE. The Secretary or an Assistant Secretary shall give
notice of each special meeting, and of the date, time and place of the
particular meeting, in person or by mail, or by telephone, telegraph, teletype,
or other form of wire or wireless communication, and in the event of the absence
of the Secretary or an Assistant Secretary or the failure, inability, refusal or
omission on the part of the Secretary or an Assistant Secretary so to do, any
other officer of the Corporation may give said notice.
SECTION 10. WAIVER OF NOTICE. A director may waive any notice required
by law, the Articles of Incorporation, or these By-laws before or after the date
and time stated in the notice. Except as otherwise provided in this Section, the
waiver by the director must be in writing, signed by the director entitled to
the
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notice, and included in the minutes or filed with the corporate records. A
director's attendance at or participation in a meeting waives any required
notice to the director of the meeting unless the director at the beginning of
the meeting (or promptly upon the director's arrival) objects to holding the
meeting or transacting business at the meeting and does not thereafter vote for
or assent to action taken at the meeting.
SECTION 11. BUSINESS TO BE TRANSACTED. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the Board
of Directors need be specified in the notice or any waiver of notice of such
meeting. Any and all business of any nature or character whatsoever may be
transacted and action may be taken thereon at any meeting, regular or special,
of the Board of Directors.
SECTION 12. QUORUM - ADJOURNMENT IF QUORUM IS NOT PRESENT. A majority
of the number of directors fixed by, or in the manner provided in, the Articles
of Incorporation or these By-laws shall constitute a quorum for the transaction
of any and all business, unless a greater number is required by law or Articles
of Incorporation or these By-laws. At any meeting, regular or special, of the
Board of Directors, if there be less than a quorum present, a majority of those
present, or if only one director be present, then such director, may adjourn the
meeting from time to time without notice until the transaction of any and all
business submitted or proposed to be submitted to such meeting or any
adjournment thereof shall have been completed. In the event of such adjournment,
written, telegraphic or telephonic announcement of the time and place at which
the meeting will reconvene must be provided to all directors. The act of the
majority of the directors present at any meeting of the Board of Directors at
which a quorum is present shall constitute the act of the Board of Directors,
unless the act of a greater number is required by law or the Articles of
Incorporation or these By-laws.
SECTION 13. PRESUMPTION OF ASSENT. A director of the Corporation who
is present at a meeting of the Board of Directors at which action on any
corporate matter is taken shall be presumed to have assented to the action taken
unless his dissent or abstention shall be entered in the minutes of the meeting
or unless he shall file his written dissent or abstention to such action with
the presiding officer of the meeting before the adjournment thereof or to the
Secretary of the Corporation immediately after the
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adjournment of the meeting. Such right to dissent or abstain shall not apply to
a director who voted in favor of such action.
SECTION 14. ACTION BY WRITTEN CONSENT. Any action required or
permitted to be taken at a meeting of the Board of Directors or any committee
thereof may be taken without a meeting if the action is taken by all the members
of the Board of Directors or committee, as the case may be. The action must be
evidenced by one or more written consents describing the action taken, signed by
each director or committee member, and included in the minutes or filed with the
corporate records reflecting the action taken. Such action is effective when the
last director or committee member signs the consent, unless the consent
specifies a different prior or subsequent effective date. Such consent shall
have the same force and effect as a unanimous vote at a meeting, and may be
described as such in any document or instrument.
SECTION 15. COMMITTEES. The Board of Directors, by resolution adopted
by a majority of the Board of Directors, may designate from among its members an
executive committee and one or more other committees, each of which, to the
extent provided in such resolution or in the Articles of Incorporation or in
these By-laws of the Corporation, shall have and may exercise such authority of
the Board of Directors as shall be expressly delegated by the Board from time to
time; except that no such committee shall have the authority of the Board of
Directors in reference to (a) amending the Articles of Incorporation; (b)
approving a plan of merger even if the plan does not require shareholder
approval; (c) authorizing dividends or distributions, except a committee may
authorize or approve a reacquisition of shares, if done according to a formula
or method prescribed by the Board of Directors; (d) approving or proposing to
shareholders action that requires shareholder approval; (e) amending, altering
or repealing the By-laws of the Corporation or adopting new By-laws for the
Corporation; (f) filling vacancies in the Board of Directors or in any of its
committees; or (g) electing or removing officers or members of any such
committee. A majority of all the members of any such committee may determine its
action and fix the time and place of its meetings, unless the Board of Directors
shall otherwise provide. The Board of Directors shall have power at any time to
change the number and members of any such committee, to fill vacancies and to
discharge any such committee. The designation of such committee and the
delegation thereto of authority shall not alone constitute compliance by the
Board of Directors, or any member thereof, with the standard of conduct
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imposed upon it or him by the Texas Business Corporation Act, as the same may,
from time to time, be amended.
SECTION 16. MEETING BY TELEPHONE OR SIMILAR COMMUNICATION EQUIPMENT.
Any or all directors may participate in and hold a regular or special meeting of
the Board of Directors or any committee thereof by, or through the use of, any
means of conference telephone or other similar communications equipment by which
all directors participating in the meeting may simultaneously hear each other
during the meeting. Participation in a meeting pursuant to this Section shall
constitute presence in person at such meeting, except where a director
participates in the meeting for the express purpose of objecting to holding the
meeting or transacting business at the meeting on the ground that the meeting is
not lawfully called or convened.
ARTICLE IV
OFFICERS
SECTION 1. PRINCIPAL OFFICERS. The officers of the Corporation shall
be chosen by the Board of Directors and shall consist of a Chairman of the
Board, a President, a Treasurer and a Secretary. There may also be one or more
Vice Presidents and such other officers or assistant officers as the Board shall
from time to time create and so elect. Any two (2) or more offices may be held
by the same person.
SECTION 2. ELECTION AND TERMS. Each officer shall be elected by the
Board of Directors at the annual meeting thereof and shall hold office until the
next annual meeting of the Board or until his or her successor shall have been
elected and qualified or until his or her death, resignation or removal. The
election of an officer shall not of itself create contract rights.
SECTION 3. RESIGNATION AND REMOVAL. An officer may resign at any time
by delivering notice to the Board of Directors, its President or the Secretary
of the Corporation. A resignation is effective when the notice is delivered
unless the notice specifies a later effective date. If an officer's resignation
is made effective at a later date and the Corporation accepts the future
effective date, the Board of Directors may fill the pending vacancy before the
effective date, if the Board of Directors provides that the successor does not
take office until the
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effective date. The acceptance of a resignation shall not be necessary to make
it effective, unless expressly provided in the resignation. An officer's
resignation does not affect the Corporation's contract rights, if any, with the
officer. Any officer may be removed at any time, with or without cause, by vote
of a majority of the whole Board. Such removal shall not affect the contract
rights, if any, of the officer so removed.
SECTION 4. VACANCIES. Whenever any vacancy shall occur in any office
by death, resignation, increase in the number of officers of the Corporation, or
otherwise, the same shall be filled by the Board of Directors, and the officer
so elected shall hold office until the next annual meeting of the Board or until
his or her successor shall have been elected and qualified.
SECTION 5. POWERS AND DUTIES OF OFFICERS. The officers so chosen shall
perform the duties and exercise the powers expressly conferred or provided for
in these By-laws, as well as the usual duties and powers incident to such
office, respectively, and such other duties and powers as may be assigned to
them by the Board of Directors or by the President.
SECTION 6. CHAIRMAN OF THE BOARD. The Chairman of the Board shall be
the Chief Executive Officer of the Corporation and shall have general charge of,
and supervision and authority over, all of the affairs and business of the
Corporation. He shall have general supervision of and direct all officers,
agents and employees of the Corporation; shall see that all orders and
resolutions of the Board are carried into effect; and in general, shall exercise
all powers and perform all duties incident to his office and such other powers
and duties as may from time to time be assigned to him by the Board.
SECTION 7. PRESIDENT. The President shall have the authority to sign,
with the Secretary or an Assistant Secretary, any and all certificates for
shares of the capital stock of the Corporation, and shall have the authority to
sign singly deeds, bonds, mortgages, contracts, or other instruments to which
the Corporation is a party (except in cases where the signing and execution
thereof shall be expressly delegated by the Board or by these By-laws, or by law
to some other officer or agent of the Corporation); and, in the absence,
disability or refusal to act of the Chairman of the Board, shall preside at
meetings of the shareholders and of the Board of Directors and shall possess all
of the powers and perform all of the duties of the Chairman of the
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Board. He shall also serve the Corporation in such other capacities and perform
such other duties and have such additional authority and powers as are incident
to his office or as may be defined in these By-laws or delegated to him from
time to time by the Board of Directors or by the Chairman of the Board.
SECTION 8. VICE PRESIDENTS. The Vice Presidents shall assist the
President and shall perform such duties as may be assigned to them by the Board
of Directors or the President. Unless otherwise provided by the Board, in the
absence or disability of the President, the Vice President (or, if there be more
than one, the Vice President first named as such by the Board of Directors at
its most recent meeting at which Vice Presidents were elected) shall execute the
powers and perform the duties of the President. Any action taken by a Vice
President in the performance of the duties of the President shall be conclusive
evidence of the absence or inability to act of the President at the time such
action was taken.
SECTION 9. SECRETARY. The Secretary (a) shall keep the minutes of all
meetings of the Board of Directors and the minutes of all meetings of the
shareholders in books provided for that purpose; (b) shall attend to the giving
and serving of all notices; (c) when required, may sign with the President or a
Vice President in the name of the Corporation, and may attest the signature of
any other officers of the Corporation to all contracts, conveyances, transfers,
assignments, encumbrances, authorizations and all other instruments, documents
and papers, of any and every description whatsoever, of or executed for or on
behalf of the Corporation and affix the seal of the Corporation thereto; (d) may
sign with the President or a Vice President all certificates for shares of the
capital stock of the Corporation and affix the corporate seal of the Corporation
thereto; (e) shall have charge of and maintain and keep or supervise and control
the maintenance and keeping of the stock certificate books, transfer books and
stock ledgers and such other books and papers as the Board of Directors may
authorize, direct or provide for, all of which shall at all reasonable times be
open to the inspection of any director, upon request, at the office of the
Corporation during business hours; (f) shall, in general, perform all the duties
incident to the office of Secretary; and (g) shall have such other powers and
duties as may be conferred upon or assigned to him by the Board of Directors.
SECTION 10. TREASURER. The Treasurer shall have custody of all the
funds and securities of the Corporation which come into
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his hands. When necessary or proper, he may endorse on behalf of the
Corporation, for collection, checks, notes and other obligations, and shall
deposit the same to the credit of the Corporation in such banks or depositories
as shall be selected or designated by or in the manner prescribed by the Board
of Directors. He may sign all receipts and vouchers for payments made to the
Corporation, either alone or jointly with such officer as may be designated by
the Board of Directors. Whenever required by the Board of Directors, he shall
render a statement of his cash account. He shall enter or cause to be entered,
punctually and regularly, on the books of the Corporation, to be kept by him or
under his supervision or direction for that purpose, full and accurate accounts
of all moneys received and paid out by, for or on account of the Corporation. He
shall at all reasonable times exhibit his books and accounts and other financial
records to any director of the Corporation during business hours. He shall have
such other powers and duties as may be conferred upon or assigned to him by the
Board of Directors. The Treasurer shall perform all acts incident to the
position of Treasurer, subject always to the control of the Board of Directors.
He shall, if required by the Board of Directors, give such bond for the faithful
discharge of his duties in such form and amount as the Board of Directors may
require.
SECTION 11. ASSISTANT SECRETARIES. The Assistant Secretaries shall
assist the Secretary in the performance of his or her duties. In the absence of
the Secretary, any Assistant Secretary shall exercise the powers and perform the
duties of the Secretary. The Assistant Secretaries shall exercise such other
powers and perform such other duties as may from time to time be assigned to
them by the Board, the President, or the Secretary.
SECTION 12. ASSISTANT TREASURERS. The Assistant Treasurers shall
assist the Treasurer in the performance of his or her duties. Any Assistant
Treasurer shall, in the absence or disability of the Treasurer, exercise the
powers and perform the duties of the Treasurer. The Assistant Treasurers shall
exercise such other duties as may from time to time be assigned to them by the
Board, the President, or the Treasurer.
SECTION 13. DELEGATION OF AUTHORITY. In case of the absence of any
officer of the Corporation, or for any reason that the Board may deem
sufficient, a majority of the entire Board may transfer or delegate the powers
or duties of any officer to any
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other officer or officers for such length of time as the Board may determine.
SECTION 14. SECURITIES OF OTHER CORPORATIONS. The President or any
Vice President or Secretary or Treasurer of the Corporation shall have power and
authority to transfer, endorse for transfer, vote, consent or take any other
action with respect to any securities of another issuer which may be held or
owned by the Corporation and to make, execute and deliver any waiver, proxy or
consent with respect to any such securities.
ARTICLE V
DIRECTORS' SERVICES, LIMITATION OF LIABILITY
AND RELIANCE ON CORPORATE RECORDS, AND
INTEREST OF DIRECTORS IN CONTRACTS
SECTION 1. SERVICES. No director of this Corporation who is not an
officer or employee of this Corporation shall be required to devote his time or
any particular portion of his time or render services or any particular services
exclusively to this Corporation. Every director of this Corporation shall be
entirely free to engage, participate and invest in any and all such businesses,
enterprises and activities, either similar or dissimilar to the business,
enterprise and activities of this Corporation, without breach of duty to this
Corporation or to its shareholders and without accountability or liability to
this Corporation or to its shareholders.
Every director of this Corporation shall be entirely free to act for,
serve and represent any other corporation, any entity or any person, in any
capacity, and be or become a director or officer, or both, of any other
corporation or any entity, irrespective of whether or not the business,
purposes, enterprises and activities, or any of them thereof, be similar or
dissimilar to the business, purposes, enterprises and activities, or any of
them, of this Corporation, without breach of duty to this Corporation or to its
shareholders and without accountability or liability of any character or
description to this Corporation or to its shareholders.
SECTION 2. GENERAL LIMITATION OF LIABILITY. A director shall, based on
facts then known to the director, discharge the duties as a director, including
the director's duties as a member
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of a committee, in good faith, with the care an ordinarily prudent person in a
like position would exercise under similar circumstances, and in a manner the
director reasonably believes to be in the best interests of the Corporation. A
director is not liable to the Corporation for any action taken as a director, or
any failure to take any action, unless: (a) the director has breached or failed
to perform the duties of the director's office in accordance with the standard
of care set forth above; and (b) the breach or failure to perform constitutes
willful misconduct or recklessness.
SECTION 3. RELIANCE ON CORPORATE RECORDS AND OTHER INFORMATION. Any
person acting as a director of the Corporation shall be fully protected, and
shall be deemed to have complied with the standard of care set forth in Section
2 of this Article, in relying in good faith upon any information, opinions,
reports or statements, including financial statements and other financial data,
if prepared or presented by (a) one or more officers or employees of the
Corporation whom such person reasonably believes to be reliable and competent in
the matters presented; (b) legal counsel, public accountants, or other persons
as to matters such person reasonably believes are within the person's
professional or expert competence; or (c) a committee of the Board of Directors
of which such person is not a member, if such person reasonably believes the
committee merits confidence; provided, however, that such person shall not be
considered to be acting in good faith if such person has knowledge concerning
the matter in question that would cause such reliance to be unwarranted.
SECTION 4. INTEREST OF DIRECTORS IN CONTRACTS. Any contract or other
transaction between the Corporation and (a) any director, or (b) any
corporation, unincorporated association, business trust, estate, partnership,
trust, joint venture, individual or other legal entity (1) in which any director
has a material financial interest or is a general partner, or (2) of which any
director is a director, officer, or trustee, shall be valid for all purposes, if
the material facts of the contract or transaction and the director's interest
were disclosed or known to the Board of Directors, a committee of the Board of
Directors with authority to act thereon, or the shareholders entitled to vote
thereon, and the Board of Directors, such committee or such shareholders
authorized, approved or ratified the contract or transaction. Such a contract or
transaction is authorized, approved or ratified: (i) by the Board of Directors
or such committee, if it receives the affirmative vote of a majority of the
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directors who have no interest in the contract or transaction, notwithstanding
the fact that such majority may not constitute a quorum or a majority of the
directors present at the meeting, and notwithstanding the presence or vote of
any director who does have such an interest; provided, however, that no such
contract or transaction may be authorized, approved or ratified by a single
director; and (ii) by such shareholders, if it receives the vote of a majority
of the shares entitled to be counted, in which vote shares owned by or voted
under the control of any director who, or of any corporation, unincorporated
association, business trust, estate, partnership, trust, joint venture,
individual or other legal entity that, has an interest in the contract or
transaction may be counted; provided, however, that a majority of such shares,
whether or not present, shall constitute a quorum for the purpose of
authorizing, approving or ratifying such a contract or transaction. This Section
shall not be construed to require authorization, ratification or approval by the
shareholder of any such contract or transaction, or to invalidate any such
contract or transaction that is fair to the Corporation or would otherwise be
valid under the common and statutory law applicable thereto.
ARTICLE VI
INDEMNIFICATION
SECTION 1. INDEMNIFICATION AGAINST UNDERLYING LIABILITY. The
Corporation shall indemnify any person who was or is a party, or is threatened
to be made a party, to any threatened, pending, or completed action, suit or
proceeding, whether civil, criminal, administrative, or investigative, by reason
of the fact that he is or was a director or officer 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 or other
enterprise (collectively, "Agent") against expenses (including attorneys' fees),
judgments, fines, penalties, court costs and amounts paid in settlement actually
and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit, or proceeding by
judgment, order, settlement (whether with or without court approval), conviction
or upon a plea of NOLO CONTENDERE or its equivalent, shall not, of
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itself, create a presumption that the Agent did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that his conduct was unlawful. If
several claims, issues or matters are involved, an Agent may be entitled to
indemnification as to some matters even though he is not entitled as to other
matters. Any director or officer of the Corporation serving in any capacity of
another corporation, of which a majority of the shares entitled to vote in the
election of its directors is held, directly or indirectly, by the Corporation,
shall be deemed to be doing so at the request of the Corporation.
SECTION 2. SUCCESSFUL DEFENSE. To the extent that an Agent of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Section 1 of this Article, or in
defense of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
SECTION 3. DETERMINATION OF CONDUCT. Subject to any rights under any
contract between the Corporation and any Agent, any indemnification against
underlying liability provided for in Section 1 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 Agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
said Section. Such determination shall be made (a) by the Board of Directors by
a majority vote of a quorum consisting of directors not at the time parties to
the proceeding; (b) if such an independent quorum is not obtainable, by majority
vote of a committee duly designated by the full Board of Directors (in which
designation directors who are parties may participate), consisting solely of one
or more directors not at the time parties to the proceeding; (c) by special
legal counsel (1) selected by the independent quorum of the Board of Directors
(or the independent committee thereof if no such quorum can be obtained), or (2)
if no such independent quorum or committee thereof can be obtained, selected by
majority vote of the full Board of Directors (in which selection directors who
are parties may participate); or (d) 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. Notwithstanding the foregoing,
an Agent shall be able to contest any determination that the Agent has
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not met the applicable standard of conduct by petitioning a court of appropriate
jurisdiction.
SECTION 4. PAYMENT OF EXPENSES IN ADVANCE. Expenses incurred in
defending or settling a civil, criminal, administrative or investigative action,
suit or proceeding by an Agent who may be entitled to indemnification pursuant
to Section 1 of this Article shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of a written
affirmation by the Agent of his good faith belief that he has met the applicable
standard of conduct set forth in Section 1 of this Article and a written
undertaking by or on behalf of the Agent to repay such amount if it is
ultimately determined that he is not entitled to be indemnified by the
Corporation as authorized in this Article. Notwithstanding the foregoing, such
expenses shall not be advanced if the Corporation conducts the determination of
conduct procedure referred to in Section 3 of this Article and it is determined
from the facts then known that the Agent will be precluded from indemnification
against underlying liability because he has failed to meet the applicable
standard of conduct set forth in Section 1 of this Article. The full Board of
Directors (including directors who are parties) may authorize the Corporation to
implement the determination of conduct procedure, but such procedure is not
required for the advancement of expenses. The full Board of Directors (including
directors who are parties) may authorize the Corporation to assume the Agent's
defense where appropriate, rather than to advance expenses for such defense.
SECTION 5. INDEMNITY NOT EXCLUSIVE. The indemnification against
underlying liability, and advancement of expenses provided by, or granted
pursuant to, this Article shall not be deemed exclusive of, and shall be subject
to, any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any By-law, agreement, vote of shareholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office.
SECTION 6. INSURANCE INDEMNIFICATION. The Corporation shall have the
power to purchase and maintain insurance on behalf of any person who is or was
an Agent of the Corporation, or is or was serving at the request of the
Corporation as an Agent 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
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Corporation would have the power to indemnify him against such liability under
the provisions of this Article.
SECTION 7. EMPLOYEE BENEFIT PLANS. For purposes of this Article,
references to "other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to "serving at the request
of the Corporation" shall include any service as a director, officer, employee
or agent of the Corporation which imposes duties on, or involves services by,
such director, officer, employee or agent with respect to an employee benefit
plan, its participants or beneficiaries. A person who acted in good faith and in
a manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to in
this Article.
SECTION 8. APPLICATION OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES.
The indemnification and advancement of expenses provided by, or granted pursuant
to, this Article shall, unless otherwise provided when authorized or ratified,
be applicable to claims, actions, suits or proceedings made or commenced after
the adoption thereof, whether arising from acts or omissions to act during,
before or after the adoption hereof, and shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person. The right
of any person to indemnification and advancement of expenses shall vest at the
time of occurrence or performance of any event, act or omission giving rise to
any action, suit or proceeding of the nature referred to in Section 1 of this
Article and, once vested, shall not later be impaired as a result of any
amendment, repeal, alteration or other modification of any or all of these
provisions.
SECTION 9. INDEMNIFICATION PAYMENTS. Any payments made to any
indemnified party under this Article or under any other right to indemnification
shall be deemed to be an ordinary and necessary business expense of the
Corporation, and payment thereof shall not subject any person responsible for
the payment, or the Board of Directors, to any action for corporate waste or to
any similar action. Such payments shall be reported to the shareholders of the
Corporation before or with the notice of the next shareholders' meeting.
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ARTICLE VII
Shares
SECTION 1. SHARE CERTIFICATES. The certificate for shares of the
Corporation shall be in such form as shall be approved by the Board of
Directors. Each share certificate shall state on its face the name and state of
organization of the Corporation, the name of the person to whom the certificate
is issued, and the number and class of shares the certificate represents. Share
certificates shall be consecutively numbered and shall be entered in the books
of the Corporation as they are issued. Every certificate for shares of the
Corporation shall be signed (either manually or in facsimile) by, or in the name
of, the Corporation by the Chairman of the Board, President or a Vice President
and either the Secretary or an Assistant Secretary of the Corporation, with the
seal of the Corporation, if any, or a facsimile thereof impressed or printed
thereon. If the person who signed (either manually or in facsimile) a share
certificate no longer holds office when the certificate is issued, the
certificate is nevertheless valid.
SECTION 2. TRANSFER OF SHARES. Except as otherwise provided by law,
transfers of shares of the capital stock of the Corporation, whether part paid
or fully paid, shall be made only on the books of the Corporation by the owner
thereof in person or by duly authorized attorney, on payment of all taxes
thereon and surrender for cancellation of the certificate or certificates for
such shares (except as hereinafter provided in the case of loss, destruction or
mutilation of certificate) properly endorsed by the holder thereof or
accompanied by the proper evidence of succession, assignment or authority to
transfer, and delivered to the Secretary or an Assistant Secretary.
SECTION 3. REGISTERED HOLDERS. The Corporation shall be entitled to
treat the person in whose name any share of stock or any warrant, right or
option is registered as the owner thereof for all purposes and shall not be
bound to recognize any equitable or other claim to, or interest in, such share,
warrant, right or option on the part of any other person, whether or not the
Corporation shall have notice thereof, save as may be expressly provided
otherwise by the laws of the State of Texas, the Articles of Incorporation of
the Corporation or these By-laws. In no event
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shall any transferee of shares of the Corporation become a shareholder of the
Corporation until express notice of the transfer shall have been received by the
Corporation.
SECTION 4. LOST, DESTROYED AND MUTILATED CERTIFICATES. The holder of
any share certificate of the Corporation shall immediately notify the
Corporation of any loss, destruction or mutilation of the certificate, and the
Board may, in its discretion, cause to be issued to such holder of shares a new
certificate or certificates of shares of capital stock, upon the surrender of
the mutilated certificate, or, in case of loss or destruction, upon the
furnishing of an affidavit or satisfactory proof of such loss or destruction.
The Board may, in its discretion, require the owner of the lost or destroyed
certificate or such owner's legal representative to give the Corporation a bond
in such sum and in such form, and with such surety or sureties as it may direct,
to indemnify the Corporation, its transfer agents and registrars, if any,
against any claim that may be made against them or any of them with respect to
the certificate or certificates alleged to have been lost or destroyed, but the
Board may, in its discretion, refuse to issue a new certificate or new
certificates, save upon the order of a court having jurisdiction in such
matters.
SECTION 5. CONSIDERATION FOR SHARES. The Corporation may issue shares
for such consideration received or to be received as the Board of Directors
determines to be adequate. That determination by the Board of Directors is
conclusive insofar as the adequacy of consideration for the issuance of shares
relates to whether the shares are validly issued, fully paid and nonassessable.
When the Corporation receives the consideration for which the Board of Directors
authorized the issuance of shares, the shares issued therefor are fully paid and
nonassessable.
SECTION 6. PAYMENT FOR SHARES. The Board of Directors may authorize
shares to be issued for consideration consisting of any tangible or intangible
property or benefit to the Corporation, including cash, promissory notes,
services performed, contracts for services to be performed, or other securities
of the Corporation. If shares are authorized to be issued for promissory notes
or for promises to render services in the future, the Corporation must report in
writing to the shareholders the number of shares authorized to be so issued
before or with the notice of the next shareholders' meeting.
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SECTION 7. DISTRIBUTIONS TO SHAREHOLDERS. The Board of Directors may
authorize and the Corporation may make distributions to the shareholders subject
to any restrictions set forth in the Articles of Incorporation of the
Corporation and any limitations in the Texas Business Corporation Act, as
amended.
SECTION 8. REGULATIONS. The Board of Directors shall have power and
authority to make all such rules and regulations as they may deem expedient
concerning the issue, transfer and registration or the replacement of
certificates for shares of the Corporation.
ARTICLE VIII
CORPORATE BOOKS AND REPORTS
SECTION 1. PLACE OF KEEPING CORPORATE BOOKS AND RECORDS. Except as
expressly provided otherwise in this Article, the books of account, records,
documents and papers of the Corporation shall be kept at any place or places,
within or without the State of Texas, as directed by the Board of Directors. In
the absence of a direction, the books of account, records, documents and papers
shall be kept at the principal office of the Corporation.
SECTION 2. PLACE OF KEEPING CERTAIN CORPORATE BOOKS AND RECORDS. The
Corporation shall keep a copy of the following records at its principal office:
(1) Its Articles or restated Articles of Incorporation and all
amendments to them currently in effect;
(2) Its By-laws or restated By-laws and all amendments to them
currently in effect;
(3) Resolutions adopted by the Board of Directors with respect
to one or more classes or series of shares and fixing their relative
rights, preferences and limitations, if shares issued pursuant to
those resolutions are outstanding;
(4) The minutes of all shareholders' meetings and records of all
action taken by shareholders without a meeting, for the past three (3)
years;
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(5) All written communications to shareholders generally within
the past three (3) years, including financial statements furnished to
shareholders;
(6) A list of the names and business addresses of its current
directors and officers; and
(7) The Corporation's most recent annual report.
SECTION 3. PERMANENT RECORDS. The Corporation shall keep as permanent
records minutes of all meetings of its shareholders and Board of Directors, a
record of all actions taken by the shareholders or Board of Directors without a
meeting, and a record of all actions taken by a committee of the Board of
Directors in place of the Board of Directors on behalf of the Corporation. The
Corporation shall also maintain appropriate accounting records.
SECTION 4. SHAREHOLDER RECORDS. The Corporation shall maintain a
record of its shareholders, in a form that permits preparation of a list of the
names and addresses of all shareholders, in alphabetical order by class of
shares showing the number and class of shares held by each.
SECTION 5. SHAREHOLDER RIGHTS OF INSPECTION. The records designated in
Section 2 of this Article may be inspected and copied by shareholders of record,
during regular business hours at the Corporation's principal office, provided
that the shareholder gives the Corporation written notice of the shareholder's
demand at least five (5) business days before the date on which the shareholder
wishes to inspect and copy. A shareholder's agent or attorney, if authorized in
writing, has the same inspection and copying rights as the shareholder
represented. The Corporation may impose a reasonable charge, covering the costs
of labor and material, for copies of any documents provided to the shareholder.
SECTION 6. ADDITIONAL RIGHTS OF INSPECTION. Shareholder rights
enumerated in Section 5 of this Article may also apply to the following
corporate records, provided that the notice requirements of Section 5 are met,
the shareholder's demand is made in good faith and for a proper purpose, the
shareholder describes with reasonable particularity the shareholder's purpose
and the records the shareholder desires to inspect, and the records are directly
connected with the shareholder's purpose: excerpts from
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minutes of any meeting of the Board of Directors, records of any action of a
committee of the Board of Directors while acting in place of the Board of
Directors on behalf of the Corporation, minutes of any meeting of the
shareholders, and records of action taken by the shareholders or Board of
Directors without a meeting, to the extent not subject to inspection under
Section 5 of this Article, as well as accounting records of the Corporation and
the record of shareholders. Such inspection and copying is to be done during
regular business hours at a reasonable location specified by the Corporation.
The Corporation may impose a reasonable charge, covering the costs of labor and
material, for copies of any documents provided to the shareholder.
ARTICLE IX
MISCELLANEOUS
SECTION 1. NOTICE AND WAIVER OF NOTICE. Subject to the specific and
express notice requirements set forth in other provisions of these By-laws, the
Articles of Incorporation, and the Texas Business Corporation Act, as the same
may, from time to time, be amended, notice may be communicated to any
shareholder or director in person, by telephone, telegraph, teletype, or other
form of wire or wireless communication, or by mail. If the foregoing forms of
personal notice are deemed to be impracticable, notice may be communicated in a
newspaper of general circulation in the area where published or by radio,
television, or other form of public broadcast communication. Subject to Section
4 of ARTICLE II of these By-laws, written notice is effective at the earliest of
the following: (a) when received; (b) if correctly addressed to the address
listed in the most current records of the Corporation, five days after its
mailing, as evidenced by the postmark or private carrier receipt; or (c) if sent
by registered or certified United States mail, return receipt requested, on the
date shown on the return receipt which is signed by or on behalf of the
addressee. Oral notice is effective when communicated. A written waiver of
notice, signed by the person or persons entitled to such notice, whether before
or after the time stated therein, shall be equivalent to the giving of such
notice.
SECTION 2. DEPOSITORIES. Funds of the Corporation not otherwise
employed shall be deposited in such banks or other depositories as the Board of
Directors, the President or the Treasurer may select or approve.
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SECTION 3. SIGNING OF CHECKS, NOTES, ETC. In addition to and
cumulative of, but in no way limiting or restricting, any other provision of
these By-laws which confers any authority relative thereto, all checks, drafts
and other orders for the payment of money out of funds of the Corporation and
all notes and other evidence of indebtedness of the Corporation may be signed on
behalf of the Corporation, in such manner, and by such officer or person as
shall be determined or designated by the Board of Directors; provided, however,
that if, when, after and as authorized or provided for by the Board of
Directors, the signature of any such officer or person may be a facsimile or
engraved or printed, and shall have the same force and effect and bind the
Corporation as though such officer or person had signed the same personally;
and, in the event of the death, disability, removal or resignation of any such
officer or person, if the Board of Directors shall so determine or provide, as
though and with the same effect as if such death, disability, removal or
resignation had not occurred.
SECTION 4. GENDER AND NUMBER. Wherever used or appearing in these
By-laws, pronouns of the masculine gender shall include the female gender and
the neuter gender, and the singular shall include the plural wherever
appropriate.
SECTION 5. LAWS. Wherever used or appearing in these By-laws, the
words "law" or "laws" shall mean and refer to laws of the State of Texas, to the
extent only that such are expressly applicable, except where otherwise expressly
stated or the context requires that such words not be so limited.
SECTION 6. HEADINGS. The headings of the Certificate and Sections of
these By-laws are inserted for convenience of reference only and shall not be
deemed to be a part thereof or used in the construction or interpretation
thereof.
ARTICLE X
AMENDMENTS
These By-laws may, from time to time, be added to, changed, altered,
amended or repealed or new By-laws may be made or adopted by a majority vote of
the whole Board of Directors at any meeting of the Board of Directors, if the
notice or waiver of notice of such meeting shall have stated that the By-laws
are to be
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amended, altered or repealed at such meeting, or if all directors at the time
are present at such meeting, have waived notice of such meeting, or have
consented to such action in writing.
ARTICLE XI
THE TEXAS BUSINESS CORPORATION ACT
The provisions of the Texas Business Corporation Act, as the same may,
from time to time, be amended, applicable to any of the matters not herein
specifically covered by these By-laws, are hereby incorporated by reference in
and made a part of these By-laws.
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Conseco Variable Insurance Company
SECRETARY'S CERTIFICATE
The undersigned, Michael A. Colliflower, hereby certifies that he is the
duly elected and qualified Assistant Secretary of Conseco Variable Insurance
Company, (the "Company"); that attached hereto is a true and correct copy of the
Amended and Restated Bylaws of the Company; and, that such Amended and Restated
Bylaws have not been further amended, and as of the date hereof remain in full
force and effect.
IN WITNESS WHEREOF, this Certificate has been executed this 2nd day of
December, 1998.
/s/ Michael A. Colliflower
--------------------------
Michael A. Colliflower
Assistant Secretary
Filed with State Board of In-
surance of the State of
Texas This 4th
Day of DECEMBER 1998
Commissioner of Insurance
By /s/ LE
<PAGE>
AMENDMENT TO THE AMENDED AND RESTATED BYLAWS
OF
CONSECO VARIABLE INSURANCE COMPANY
The following amendment to the Amended and Restated Bylaws of Conseco
Variable Insurance Company (the "Company" or "Corporation") was approved by
unanimous written consent of the Board of Directors, effective as of November 6,
1998:
RESOLVED, that Section 7 of Article IV of the By-laws of the
Company be amended to read as follows:
"SECTION 7. PRESIDENT. The President shall have the authority to sign,
with the Secretary or an Assistant Secretary, any and all certificates
for shares of the capital stock of the Corporation, and shall have the
authority to sign singly deeds, bonds, mortgages, contracts, or other
instruments to which the Corporation is a party (except in cases where
the signing and execution thereof shall be expressly delegated by the
Board or by these Bylaws, or by law to some other officer of agent of
the Corporation); and, in the absence, disability or refusal to act of
the Chairman of the Board, shall preside at meetings of the
shareholders and of the Board of Directors and shall possess all of
the powers and perform all of the duties of the Chairman of the Board.
He shall also serve the Corporation in such other capacities and
perform such other duties and have such additional authority and
powers as are incident to his office or as may be defined in these
Bylaws or delegated to him from time to time by the Board of Directors
or by the Chairman of the Board."
FURTHER RESOLVED, that the Amended and Restated Bylaws of the
Company shall be further amended and restated to reflect the foregoing
amendment.
