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SUN LIFE ASSURANCE COMPANY OF CANADA (U.S.)
BY-LAWS
ARTICLE 1
OFFICES
Section 1.01. REGISTERED OFFICE. The registered office of
the corporation shall be in the city of Wilmington, County of New Castle, State
of Delaware.
Section 1.02. OTHER OFFICES. The corporation may also have
offices at such other places both within and without the State of Delaware as
the board of directors may from time to time determine or the business of the
corporation may require.
ARTICLE 2
MEETINGS OF STOCKHOLDERS
Section 2.01. PLACE OF MEETINGS. All meetings of the
stockholders shall be held at such place, either within or without the State of
Delaware, as shall be designated from time to time by the board of directors and
stated in the notice of the meeting or in a duly executed waiver of notice
thereof.
Section 2.02. ANNUAL MEETING. Annual meetings of
stockholders shall be held in each year on such date and at such time as shall
be determined from time to time by the board of directors and stated in the
notice of the meeting or in a duly executed waiver of notice thereof. At each
annual meeting the stockholders shall elect by a plurality vote a board of
directors, and transact such other business as may properly be brought before
the meeting.
Section 2.03. NOTICE OF ANNUAL MEETING. Written notice of
the annual meeting stating the place, date and hour of the meeting shall be
given to each stockholder entitled to vote at such meeting not less than ten nor
more than fifty days before the date of the meeting.
Section 2.04. STOCKHOLDERS' LIST. The officer who has charge
of the stock ledger of the corporation shall prepare and make, at least ten days
before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held.
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The list shall also be produced and kept at the time and place of
the meeting during the whole time therof, and may be inspected by any
stockholder who is present.
Section 2.05. SPECIAL MEETINGS. Special meetings of the
stockholders, for any purpose or purposes, unless otherwise prescribed by
statute or by the certificate of incorporation, may be called by the president
and shall be called by the president or secretary at the request in writing of a
majority of the board of directors or at the request in writing of the holders
of a majority of the outstanding stock.
Section 2.06. NOTICE OF SPECIAL MEETINGS. Written notice of
a special meeting stating the place, date and hour of the meeting and the
purpose or purposes for which the meeting is called, shall be given not less
than ten nor more than fifty days before the date of the meeting, to each
stockholder entitled to vote at such meeting.
Section 2.07. LIMITATION ON BUSINESS AT SPECIAL MEETING.
Business transacted at any special meeting of stockholders shall be limited to
the purposes stated in the notice.
Section 2.08 QUORUM. The holders of a majority of the stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise provided by
statute or by the certificate of incorporation. If, however, such quorum shall
not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present or
represented any business may be transacted which might have been transacted at
the meeting as originally notified. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.
Section 2.09. VOTE REQUIRED FOR ACTION. When a quorum is
present at any meeting, the vote of the holders of a majority of the stock
having voting power present in person or represented by proxy shall decide any
question brought before such meeting, unless the question is one upon which by
express provision of the statutes or of the certificate of incorporation, a
different vote is required in which case such express provision shall govern and
control the decision of such question.
Section 2.10. VOTING - PROXY. Unless otherwise provided in
the certificate of incorporation each stockholder shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each share of the
capital stock having voting power held by such stockholder, but no proxy shall
be voted on after three years from its date, unless the proxy provides for a
longer period.
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Section 2.11. WRITTEN CONSENT IN LIEU OF VOTE. Any action
required to be taken at any annual or special meeting of stockholders of the
corporation, or any action which may be taken at any annual or special meeting
of such stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of all shares of outstanding stock entitled to
vote thereon at a meeting.
ARTICLE 3
DIRECTORS
Section 3.01. NUMBER AND QUALIFICATIONS OF DIRECTORS. The
number of directors which shall constitute the whole board shall not be less
than three. The first board shall consist of five directors. Thereafter, within
the limits above specified, the number of directors shall be determined by
resolution of the board of directors or by the stockholders at the annual
meeting. The directors shall be elected at the annual meeting of the
stockholders, except as provided in Section 3.02 of this Article, and each
director elected shall hold office until his or her successor is elected and
qualified. Subject to such transition rules as may be adopted by the board of
directors, except for any person who is an employee of the corporation or its
affiliates, no person shall be eligible to stand for election or re-election as
a director of the corporation if that person has reached the age of 70 years at
the time of the election or re-election. Directors need not be stockholders.
Section 3.02. VACANCIES AND NEWLY CREATED DIRECTORSHIHPS.
Vacancies and newly created directorships resulting from any increase in the
authorized number of directors may be filled by a majority of the directors then
in office, though less than a quorum, or by a sole remaining director, and the
directors so chosen shall hold office until the next annual election and until
their successors are duly elected and shall qualify, unless sooner displaced.
Section 3.03. POWERS OF DIRECTORS. The business and affairs
of the corporation shall be managed by its board of directors which may exercise
all such powers of the corporation and do all such lawful acts and things as are
not by statute or by the certificate of incorporation or by these by-laws
directed or required to be exercised or done by the stockholders, including,
without limitation, the creation of one or more separate accounts and adoption
of rules and regulations providing for the operation and management of any such
separate account by a board, committee or other body selected as authorized by
such rules and regulations and the provisions of the certificate of
incorporation.
Section 3.04. PLACE OF MEETING. The board of directors of
the corporation may hold meetings, both regular and special, either within or
without the State of Delaware.
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Section 3.05. REGULAR MEETINGS. Regular meetings of the
board of directors may be held without notice at such time and at such place as
shall from time to time be determined by the board.
Section 3.06. SPECIAL MEETINGS. Special meetings of the
board may be called by the president on three days' notice to each director,
either personally or by mail, telegram or telephone; special meetings shall be
called by the president or secretary in like manner and on like notice on the
written request of two directors.
Section 3.07. QUORUM. At all meetings of the board one-third
of the whole number of directors as last fixed prior to such meeting, but in any
event not less than two, shall constitute a quorum for the transaction of
business and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the board of directors, except as
may be otherwise specifically provided by statute or by the certificate of
incorporation. If a quorum shall not be present at any meeting of the board of
directors the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
Section 3.08. WRITTEN CONSENT IN LIEU OF MEETING. Unless
otherwise restricted by the certificate of incorporation or these by-laws, any
action required or permitted to be taken at any meeting of the board of
directors or of any committee thereof may be taken without a meeting, if all
members of the board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the board or committee.
Section 3.09. COMMITTEES. The board of directors may, by
resolution passed by a majority of the whole board, designate one or more
committees, each committee to consist of one or more of the directors of the
corporation. The board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. Any such committee, to the extent provided in the
resolution of the board of directors, shall have and may exercise all the powers
and authority of the board of directors in the management of the business and
affairs of the corporation, and may authorize the seal of the corporation to be
affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to amending the certificate of incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending the
by-laws of the corporation; and, unless the resolution or the certificate of
incorporation expressly so provide, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the board of directors.
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Section 3.10. COMMITTEE MINUTES AND REPORTS. Each committee
shall keep regular minutes of its meetings and report the same to the board of
directors when required.
Section 3.11. COMPENSATION. The compensation of the members
of the board of directors shall be authorized by the holders of a majority of
the outstanding stock. The directors may be paid their expenses, if any, of
attendance at each meeting of the board of directors and may be paid a fixed sum
for attendance at each meeting of the board of directors or a stated salary as
director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
ARTICLE 4
NOTICES
Section 4.01. MANNER OF GIVING NOTICE. Whenever, under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, notice is required to be given to any director or stockholder, it shall
not be construed to mean personal notice, but such notice may be given in
writing, by mail, addressed to such director or stockholder, at his address as
it appears on the records of the corporation, with postage thereon prepaid, and
such notice shall be deemed to be given at the time when the same shall be
deposited in the mail. Notice to directors may also be given by telegram or
telephone.
Section 4.02. WAIVER OF NOTICE. Whenever any notice is
required to be given under the provisions of the statutes or of the certificate
of incorporation or of these by-laws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
ARTICLE 5
OFFICERS
Section 5.01. PRINCIPAL AND OTHER OFFICERS. The officers of
the corporation shall include a president, a secretary and a treasurer. The
board of directors may also appoint a chairman, one or more vice-presidents, and
such other officers as are from time to time desired. Any number of offices may
be held by the same person, unless the certificate of incorporation or these
by-laws otherwise provide.
Section 5.02. TIME AND MANNER OF SELECTION. The board of
directors at its first meeting after each annual meeting of stockholders shall
choose a president, a secretary, a treasurer and such other officers as it shall
deem necessary.
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Section 5.03. COMPENSATION. The remuneration of all officers
of the corporation shall be fixed by the board of directors.
Section 5.04. TERM OF OFFICE - VACANCIES. The officers of
the corporation shall hold office until their successors are chosen and
qualified or until their earlier resignation or removal. Any officer elected or
appointed by the board of directors may be removed at any time by the
affirmative vote of a majority of the whole board of directors. Any vacancy
occurring in any office of the corporation shall be filled by the board of
directors.
Section 5.05. THE CHAIRMAN. The chairman, if one be
appointed, shall preside at all meetings of the stockholders and of the board of
directors, and shall perform such other duties and have such other powers as the
board of directors may from time to time prescribe.
Section 5.06. THE PRESIDENT. The president shall be the
chief executive officer of the corporation, and if there is no chairman, or in
the absence of the chairman, or at the chairman's request, the president shall
preside at all meetings of the stockholders and of the board of directors, shall
have general management of the business of the corporation and shall see that
all orders and resolutions of the board of directors are carried into effect.
Section 5.07. THE VICE-PRESIDENTS. In the absence of the
president or in the event of his inability or refusal to act, the vice-president
(or in the event there be more than one vice-president, the vice-presidents in
the order designated, or in the order of their election) shall perform the
duties of the president, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the president. The vice-presidents shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
Section 5.08. THE SECRETARY. The secretary shall attend all
meetings of the board of directors and all meetings of the stockholders and
record all the proceedings of the meetings of the corporation and of the board
of directors in a book to be kept for that purpose and shall perform like duties
for the standing committees when required. He shall give, or cause to be given,
notice of all meetings of the stockholders and special meetings of the board of
directors, and shall perform such other duties as may be prescribed by the board
of directors or president, under whose supervision he shall be. He shall have
custody of the corporate seal of the corporation and he shall have authority to
affix the same to any instrument requiring it and when so affixed, it may be
attested by his signature. The board of directors may give general authority to
any other officer to affix the seal of the corporation and to attest the
affixing by his signature.
Section 5.09. TREASURER. The treasurer shall keep full and
accurate books of account in which shall be recorded all receipts and
disbursements of the
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corporation, and shall pursuant to the direction of the board of directors or of
the president, under whose supervision he shall be, control the deposit of
moneys, the safekeeping of securities and the disbursement of the funds of the
corporation; he shall render to the president, or the board of directors at the
regular meetings thereof, or whenever required of him, an account of all his
transactions as treasurer and of the financial condition of the corporation; and
he shall perform such other duties as may from time to time be prescribed by the
board of directors or the president.
Section 5.10. OTHER OFFICERS. Officers other than the
president, secretary and treasurer, shall perform such duties as may be assigned
to them by the board of directors.
ARTICLE 6
STOCK
Section 6.01. STOCK CERTIFICATES. Every holder of stock in
the corporation shall be entitled to have a certificate, signed by, or in the
name of the corporation by, the president or a vice-president and the treasurer
or the secretary of the corporation, certifying the number of shares owned by
him in the corporation.
Section 6.02. FACSIMILE SIGNATURE. Where a certificate is
countersigned (1) by a transfer agent other than the corporation or its
employee, or (2) by a registrar other than the corporation or its employee, any
other signature on the certificate may be facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer, transfer agent or
registrar at the date of issue.
Section 6.03. LOST CERTIFICATES. The board of directors may
direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates, the
board of directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require and/or give the corporation a bond in such
sum as it may direct as indemnity against any claim that may be made against the
corporation with respect to the certificate alleged to have been lost, stolen or
destroyed.
Section 6.04 TRANSFER OF STOCK. Upon surrender to the
corporation or the transfer agent of the corporation of a certificate for shares
duly endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, it
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shall be the duty of the corporation to issue a new certificate to the person
entitled thereto, cancel the old certificate and record the transaction upon its
books.
Section 6.05. FIXING RECORD DATE. In order that the
corporation may determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, to express consent to
corporate action in writing without a meeting, to receive payment of any
dividend or other distribution or allotment of any rights, to exercise any
rights in respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the board of directors may fix, in advance,
a record date, which shall not be more than sixty nor less than ten days before
the date of a stockholders' meeting, nor more than sixty days prior to the
distribution of such rights, the exercise of such rights or the taking of any
other lawful action. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting; provided, however, that the board of directors may fix a new
record date for the adjourned meeting.
Section 6.06. REGISTERED STOCKHOLDERS. The corporation shall
be entitled to treat the record holder of any shares of the corporation as the
owner thereof for all purposes, including all rights deriving from such shares,
and shall not be bound to recognize any equitable or other claim to, or interest
in, such shares or rights deriving from such shares, on the part of any other
person, whether or not the corporation shall have either actual or constructive
notice thereof.
ARTICLE 7
GENERAL PROVISIONS
Section 7.01. DIVIDENDS. Dividends upon the capital stock of
the corporation may be declared by the board of directors at any regular or
special meeting out of any funds legally available therefor. Cash dividends may
be paid out of that part of the corporation's available and accumulated surplus
funds which was derived from realized net operating profits of its business and
realized capital gains. A cash dividend otherwise lawful may be paid out of such
earned surplus even though total surplus is at the time less than previously
contributed or paid in surplus. Stock dividends may be paid out of any available
surplus funds.
Section 7.02. EXECUTION OF INSTRUMENTS. Except as otherwise
provided in these by-laws, all deeds, mortgages, bonds, contracts, policies,
reports and other instruments may be executed on behalf of the company by the
president or any vice-president or by any other officer authorized to act in
such manner, whether by law, the certificate of incorporation, these by-laws, or
any general or special authorization of the board of directors. The corporate
seal may be affixed and attested by the secretary or any other officer
authorized by the board of directors.
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Section 7.03. FACSIMILE SIGNATURES. Any policy, insurance
contract, annuity contract, contract of deposit, premium receipt, dividend
notice or endorsement or amendment of any such instrument may be signed by means
of an engraved, lithographed or otherwise mechanically produced facsimile of the
signature of the president, secretary or other person or persons as may be
designated for this purpose by resolution of the board of directors, and the
execution by the corporation of any such instrument so signed shall be as valid
and binding upon the corporation as though manual signatures of the authorized
officers had been used in the signing thereof. If any officer whose facsimile
signature has been used as above provided has ceased to hold office prior to the
delivery of the instrument, the instrument may nevertheless be issued and
delivered by the corporation and shall be valid and binding on the corporation.
Section 7.04. DISBURSEMENT OF FUNDS. All checks, drafts or
demands for money and notes of the corporation shall be signed by such officer
or officers or such other person or persons as the board of directors may from
time to time designate.
Section 7.05. VOTING STOCK IN OTHER CORPORATIONS. Unless
otherwise ordered by the board of directors, the chairman, the president, or any
vice-president shall have full power and authority to attend and act and vote at
any meeting of stockholders of any corporation in which this corporation may
hold stock, and the chairman, the president, or any vice-president of the
corporation may execute proxies authorizing designated persons to vote shares of
stock of other corporations standing in the name of this corporation.
Section 7.06. FISCAL YEAR. The fiscal year of the
corporation shall be the calendar year unless otherwise fixed by resolution of
the board of directors.
Section 7.07. SEAL. The corporate seal shall have inscribed
thereon the name of the corporation, the year of its organization and the words
"Corporate Seal, Delaware." The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE 8
INDEMNIFICATION
Section 8.01(a). Every person who is or was a director,
officer or employee of this corporation or of any other corporation which he
served at the request of this corporation and in which this corporation owns
or owned shares of capital stock or of which it is or was a creditor shall
have a right to be indemnified by this corporation against all liability and
reasonable expenses incurred by him in connection with or resulting from any
claim, action, suit or proceeding in which he may become involved as a party
or otherwise by reason of his being or having been a director, officer or
employee of this corporation or such other corporation, provided (1) said
claim, action, suit or
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proceeding shall be prosecuted to a final determination and he shall be
vindicated on the merits, or (2) in the absence of such a final determination
vindicating him on the merits, the board of directors shall determine that 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; said determination to be made by the board of directors acting
through a quorum of disinterested directors, or in its absence on the opinion of
counsel.
(b) For purposes of the preceding subsection: (1) "liability
and reasonable expenses" shall include but not be limited to reasonable counsel
fees and disbursements, amounts of any judgment, fine or penalty, and reasonable
amounts paid in settlement; (2) "claim, action, suit or proceeding" shall
include every such claim, action, suit or proceeding, whether civil or criminal,
derivative or otherwise, administrative, judicial or legislative, any appeal
relating thereto, and shall include any reasonable apprehension or threat of
such a claim, action, suit or proceeding; (3) a settlement, plea of nolo
contendere, consent judgment, adverse civil judgment, or conviction shall not of
itself create a presumption that the conduct of the person seeking
indemnification did not meet the standard of conduct set forth in subsection (a)
(2) hereof.
(c) Notwithstanding the foregoing, the following limitations
shall apply with respect to any action by or in the right of the corporation:
(1) no indemnification shall be made in respect of any claim, issue or matter as
to which the person seeking indemnification shall have been adjudged to be
liable for negligence or misconduct in the performance of his duty to the
corporation unless and only to the extent that the Court of Chancery of the
State of Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper; and (2) indemnification shall extend only to
reasonable expenses, including reasonable counsel's fees and disbursements.
(d) The right of indemnification shall extend to any person
otherwise entitled to it under this by-law whether or not that person continues
to be a director, officer or employee of this corporation or such other
corporation at the time such liability or expense shall be incurred. The right
of indemnification shall extend to the legal representative and heirs of any
person otherwise entitled to indemnification. If a person meets the requirements
of this by-law with respect to some matters in a claim, action, suit, or
proceeding, but not with respect to others, he shall be entitled to
indemnification as the former. Advances against liability and expenses may be
made by the corporation on terms fixed by the board of directors subject to an
obligation to repay if indemnification proves unwarranted.
(e) This by-law shall not exclude any other rights of
indemnification or other rights to which any director, officer or employee may
be entitled to by contract, vote of the stockholders or as a matter of law. If
any clause, provision or
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application of this section shall be determined to be invalid, the other
clauses, provisions or applications of this section shall not be affected but
shall remain in full force and effect. The provisions of this by-law shall be
applicable to claims, actions, suits, or proceedings made or commenced after the
adoption hereof, whether arising from acts or omissions to act occurring before
or after the adoption hereof.
(f) Nothing contained in this by-law shall be construed to
protect any director or officer of the corporation against any liability to the
corporation or its security holders to which he would otherwise be subject by
reason of wilful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of his office.
ARTICLE 9
AMENDMENTS
Section 9.01. These by-laws may be altered, amended or
repealed or new by-laws be adopted by the stockholders at any meeting of the
stockholders.
Adopted January 23, 1970
Amended April 12, 1985 (Sec. 3.01)
Amended October 28, 1999, Effective January 1, 2000 (Sec. 3.01)
