Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
UTG, INC.
1. Name. The name of the corporation is UTG, Inc. (hereinafter the or this
"Corporation").
2. Registered Office; Registered Agent. The registered office of the
Corporation in the State of Delaware is 2711 Centerville Road, Suite 400, New
Castle County, Wilmington, Delaware 19808. The Registered Agent at the same
address is Corporation Service Company.
3. Purpose. The purpose of the Corporation is to engage in any lawful act
or activity for which a corporation may be organized under the Delaware General
Corporation Law.
4. Capital Stock.
A. Classes of Stock. The Corporation is authorized to issue two (2)
classes of stock designated, respectively, "Common Stock" (the "Common
Stock") and "Preferred Stock" (the "Preferred Stock"). The total number of
shares which the Corporation is authorized to issue is Seven Million One
Hundred Fifty Thousand (7,150,000), each with a par value of $0.001 per
share, of which Seven Million (7,000,000) shares shall be Common Stock and
One Hundred Fifty Thousand (150,000) shares shall be Preferred Stock.
The following is a statement of the designations and the powers,
privileges and rights, and the qualifications, limitations or restrictions
thereof in respect of each class of capital stock of the Corporation.
B. Common Stock. The holders of the Common Stock shall be entitled to
receive such dividends as the Board of Directors may declare from time to
time, provided that any and all preferred dividends on the Preferred Stock
for the then current quarter have been theretofore set aside or paid, and
all prior quarterly dividends on the Preferred Stock have been paid in
full. Upon the liquidation of the Corporation, the holders of the Common
Stock shall receive, share and share alike, all of the net assets of the
Corporation remaining after the payment of the liquidation preference
payable with respect to the Preferred Stock. The Common Stock shall not be
subject to redemption or retirement. Each holder of the Common Stock shall
be entitled to one vote for each share of such stock standing in his name
on the books of the Corporation. The holders of the Common Stock shall not
have cumulative voting rights in the election of directors.
C. Preferred Stock.
[1] Rank. The Preferred Stock is senior to the Common Stock, and
the Common Stock is subject to the rights and preferences of the
Preferred Stock as hereinafter set forth.
[2] Series. The Preferred Stock may be issued from time to time
in one or more series in any manner permitted by law, as determined
from time to time by the Board of Directors and stated in the
resolution or resolutions providing for the issuance of such stock
adopted by the Board of Directors pursuant to authority hereby vested
in it, each series to be appropriately designated, prior to the
issuance of any shares thereof, by some distinguishing letter or
number. All shares of each series of Preferred Stock shall be alike in
every particular (except as to the dates from which dividends shall
commence to accrue). All shares of Preferred Stock shall be of equal
rank and have the same powers, preferences and rights, and shall be
subject to the same qualifications, limitations, and restrictions,
without distinction between the shares of different series thereof,
except only in regard to the following particulars, which may be
different in different series:
[a] dates from which such dividends shall commence to
accrue;
[b] the amount or amounts payable upon redemption thereof
and the manner in which the same may be redeemed;
[c] the amount or amounts payable to holders thereof upon
any voluntary or involuntary liquidation, dissolution, or winding
up of the Corporation;
[d] the provisions relative to a sinking fund, if any, with
respect thereto;
[e] terms and rates of conversion or exchange thereof, if
convertible or exchangeable; and
[f] the provisions as to voting rights, if any;
provided that if the stated dividends and amounts payable on
liquidation are not paid in full, the shares of all series of the
Preferred Stock shall share ratably in the payment of dividends
including accumulation, if any, in accordance with the sums which
would be payable on such shares if all dividends were declared
and paid in full, and in any distribution of assets other than by
way of dividends in accordance with the sums which would be
payable on such distribution if all sums payable were discharged
in full.
The designation of each particular series of Preferred Stock
and its terms in respect of the foregoing particulars shall be
fixed and determined by the Board of Directors in any manner
permitted by law and stated in the resolution or resolutions
providing for the issuance of such stock adopted by the Board of
Directors pursuant to authority hereby vested in it, before any
shares of such series are issued, and shall be set forth in full
or summarized on the stock certificates for such series. The
Board of Directors may from time to time increase the number of
shares of any series of Preferred Stock already created by
providing that any unissued shares of Preferred Stock shall
constitute part of such series, or may decrease (but not below
the number of shares thereof then outstanding) the number of
shares of any series of Preferred Stock already created by
providing that any unissued shares previously assigned to such
series shall no longer constitute part thereof. The Board of
Directors is hereby empowered to classify or reclassify any
unissued Preferred Stock by fixing or altering the terms thereof
in respect of the above-mentioned particulars and by assigning
the same to an existing or newly created series from time to time
before the issuance of such stock.
[3] Dividends. The holders of Preferred Stock of each series
shall be entitled to receive, out of any funds legally available for
the purpose, when and as declared by the Board of Directors, cash
dividends thereon at such rate per annum as shall be fixed by
resolution of the Board of Directors for such series, and no more,
payable as determined by the Board of Directors in the resolution
creating such series. Such dividends shall be cumulative or
non-cumulative, as determined by the Board of Directors in fixing the
rights and preferences of such series, and if cumulative shall be
deemed to accrue from day to day regardless of whether or not earned
or declared, and shall commence to accrue with respect to each share
of Preferred Stock from such date or dates as may be fixed by the
Board of Directors prior to the issue thereof.
In no event, so long as any Preferred Stock shall remain
outstanding, shall any dividend whatsoever (other than a dividend
payable in shares of stock ranking junior to the Preferred Stock as to
the dividends and assets) be declared or paid upon, nor shall any
distribution be made or ordered in respect of, the Common Stock or any
class of stock ranking junior to the Preferred Stock as to dividends
or assets, nor shall any moneys (other than the net proceeds received
from the sale of stock ranking junior to the Preferred Stock as to
dividends and assets) be set aside for or applied to the purchase or
redemption (through a sinking fund or otherwise) of shares of Common
Stock or of any other class of stock ranking junior to the Preferred
Stock as to dividends or assets, unless
[a] all dividends on the Preferred Stock of all series for
past dividend periods shall have been paid and the full dividend
on all outstanding shares of Preferred Stock of all series for
the then current dividend period shall have been paid or declared
and set apart for payment; and
[b] the Corporation shall have set aside all amounts, if
any, theretofore required to be set aside as and for sinking
funds, if any, for the Preferred Stock of all series for the then
current year, and all defaults, if any, in complying with any
such sinking fund requirements in respect of previous years shall
have been made good.
[4] Redemption. The Corporation, at the option of the Board of
Directors, may at any time redeem the whole, or from time to time may
redeem any part of any series of Preferred Stock by paying therefor in
cash the amount which shall have been determined by the Board of
Directors, in the resolution or resolutions authorizing such series,
to be payable upon the redemption of such shares at such time.
Redemption may be made of the whole or any part of the outstanding
shares of any one or more series, in the discretion of the Board of
Directors; if the redemption be a part of a series, the shares to be
redeemed may be selected by lot, or all of the shares of such series
may be redeemed pro rate, in such manner as may be prescribed by
resolutions of the Board of Directors.
Subject to the foregoing provisions and to any qualifications,
limitations, or restrictions applicable to any particular series of
Preferred Stock which may be stated in the resolution or resolutions
providing for the issuance of such series, the Board of Directors
shall have authority to prescribe from time to time the manner in
which any series of Preferred Stock shall be redeemed.
[5] Liquidation. Upon any liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary, the Preferred
Stock of each series shall be entitled, before any distribution shall
be made to the Common Stock or to any other class of stock junior to
the Preferred Stock as to dividends or assets to be paid the full
preferential amount or amounts fixed the Board of Directors for such
series as herein authorized, but the Preferred Stock shall not be
entitled to any further payment and any remaining net assets shall be
distributed ratably to the holders of the outstanding Common Stock. If
upon such liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, the net assets of the Corporation
shall be insufficient to permit the payment to the holders of all
outstanding shares of Preferred Stock of all series of the full
preferential amounts to which they are respectively entitled, then the
entire net assets of the Corporation shall be distributed ratably to
the holders of all outstanding shares of Preferred Stock in proportion
to the full preferential amount to which each such share is entitled.
Neither a consolidation nor a merger of the Corporation with or into
any corporation or corporations nor the sale of all or substantially
all of the assets of the Corporation shall be deemed to be a
liquidation, dissolution or winding up within the meaning of this
clause.
[6] Voting. The holders of the Preferred Stock of each series
shall be entitled to such voting rights, if any, as shall be fixed by
resolution of the Board of Directors in creating such series. If so
provided in the resolution creating any series of Preferred Stock, the
shares of such series may be nonvoting.
[7] Conversion or Exchange. Any series of Preferred Stock may be
made convertible into, or exchangeable for, at the option of either
the holder or the Corporation or upon the happening of a specified
event, shares of any other class or classes or any other series of the
same or any other class or classes of stock of the Corporation, at
such price or prices or at such rate or rates of exchange and with
such adjustments as shall be stated in the resolution or resolutions
providing for the issuance of such stock adopted by the Board of
Directors.
D. No Preemptive Rights. No stockholder of the Corporation shall,
because of his ownership of stock, have a preemptive or other right to
purchase, subscribe for or take any part of any stock or any part of the
notes, debentures, bonds, or other securities convertible into or carrying
options or warrants to purchase stock of the Corporation. Any part of the
capital stock and any part of the notes, debentures, bonds or other
securities convertible into or carrying options or warrants to purchase
stock of the Corporation authorized by the Articles of Incorporation or any
amendment thereto, may at any time be issued, optioned for sale, and sold
or disposed of by the Corporation pursuant to resolutions of its Board of
Directors to such persons and upon such terms as may to such Board seem
proper without first offering such stock or securities or any part thereof
to existing stockholders.
5. Incorporator. The name and original mailing address of the sole
incorporator is as follows: WT&C Corporate Services, Inc., 500 West Jefferson
Street, Suite 2800, Louisville, Kentucky 40202.
6. Elimination of Director Liability. A director of the Corporation shall
not be personally liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability (i) for
any breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the Delaware General Corporation Law, or (iv) for any transaction from which the
director derived an improper personal benefit. If the Delaware General
Corporation Law is amended after the filing of the Certificate of Incorporation
of which this Article 6 is a part to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of a director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the stockholders
of the Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or modification.
7. Bylaws. The Board of Directors of the Corporation is authorized and
empowered from time to time in its discretion to make, alter, amend or repeal
the Bylaws of the Corporation, except as such power may be restricted or limited
by Delaware General Corporation Law.
8. Election of Directors. Directors of the Corporation need not be elected
by written ballot unless otherwise required in the Corporation's Bylaws.
IN WITNESS WHEREOF, this Certificate of Incorporation has been executed by
the Incorporator of UTG, Inc. as of the 1st day of April, 2005.
WT&C CORPORATE SERVICES, INC.
By:____/s/ Barbara G. Mangus ______
Barbara G. Mangus, Vice President
