Exhibit 3.1
RESTATED
ARTICLES OF INCORPORATION
OF
SYMONS INTERNATIONAL GROUP, INC.
ARTICLE I
Name
The name of the Corporation is Symons International Group, Inc.
ARTICLE II
Purpose
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the Indiana Business
Corporation Law, as amended from time to time.
ARTICLE III
Term of Existence
The period during which the Corporation shall continue is perpetual.
ARTICLE IV
Registered Office and Registered Agent
The address of the Corporation's registered office in Indiana is 4720
Kingsway Drive, Indianapolis, Indiana 46205, and the name of the Corporation's
registered agent is Douglas H. Symons.
ARTICLE V
Number, Terms and Voting Rights of Shares
Section 1. Number and Classes of Shares. The total number of shares
which the Corporation shall have authority to issue is One Hundred Fifty Million
(150,000,000) shares, consisting of One Hundred Million (100,000,000) shares of
a single class of shares to be known as Common Stock, and Fifty Million
(50,000,000) shares of a single class of shares to be known as Preferred Stock.
Section 2. Terms of Common Stock. Only when all dividends accrued on
all preferred or special classes of shares entitled to preferential dividends
shall have been paid or declared and set apart for payment, but not otherwise,
then the holders of Common Stock shall be entitled to receive dividends, when
and as declared by the Board of Directors. In event of any dissolution,
liquidation or winding up of the Corporation, the holders of the Common Stock
shall be entitled, after due payment or provision for payment of the debts and
other liabilities of the Corporation, and the amounts to which the holders of
preferred or special classes of shares may be entitled, to share ratably in the
remaining net assets of the Corporation.
Section 3. Voting Rights of Common Stock. Except as otherwise provided
by law, every holder of Common Stock of the Corporation shall have the right at
every shareholders' meeting to one vote for each share of Common Stock standing
in his name on the books of the Corporation on the date established by the Board
of Directors as the record date for determination of shareholders entitled to
vote at such meeting.
Section 4. Terms of Preferred Stock. The Board of Directors shall have
authority to determine and state in the manner provided by law the rights,
preferences, qualifications, limitations and restrictions (including voting
rights) of the Preferred Stock. The Preferred Stock may be issued in one or more
series for such an amount of consideration as may be fixed from time to time by
the Board of Directors, and the Board of Directors shall have authority to
determine and state in the manner provided by law the designations and the
relative rights, preferences, qualifications, limitations and restrictions
(including voting rights) of each series.
Section 5. Class Voting. The holders of the outstanding shares of a
class, or of any series thereof, shall not be entitled to vote as a class except
as shall be expressly provided by this Article or by law.
-2-
ARTICLE VI
Directors
Section 1. Number. The number of Directors may from time to time be
fixed by the bylaws of the Corporation at any number not less than three and not
more than twenty-five. In the absence of a bylaw fixing the number of Directors,
the number shall be seven.
Section 2. Qualifications. Directors need not be shareholders of the
Corporation, but shall have other qualifications as the bylaws of the
Corporation prescribe.
Section 3. Classification. The bylaws of the Corporation may provide
that the Directors shall be divided into two or more classes whose terms of
office shall expire at different times, but no term shall continue longer than
three years.
Section 4. Removal. Any or all of the members of the Board of Directors
may be removed, with or without cause, at a meeting of shareholders called
expressly for that purpose by a vote of the holders of a majority of the shares
of the Corporation outstanding and then entitled to vote at an election of
Directors.
Section 5. Amendment, Repeal, etc. Notwithstanding anything contained
in these Articles of Incorporation to the contrary, the affirmative vote of the
holders of at least a majority of the shares of the Corporation outstanding and
then entitled to vote at an election of Directors, voting together and not by
class, shall be required to alter, amend, repeal, or adopt provisions
inconsistent with, this Article VI of these Articles of Incorporation.
ARTICLE VII
Indemnification
Section 1. Actions by a Third Party. The corporation shall, to the
fullest extent to which it is empowered to do so by the Indiana Business
Corporation Law, or any other applicable laws, as from time to time in effect,
indemnify any person who is or was a party, or is threatened to be made a
defendant or respondent, to a proceeding, including any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than actions by or in the right of the corporation), and
whether formal or informal, who is or was a director, officer, employee, or
agent of the corporation or who, while a director, officer, employee, or agent
of the corporation, is or was serving at the corporation's request as a
director, officer, partner, trustee, employee, or agent of another foreign or
domestic corporation, partnership, joint venture, trust, employee benefit plan,
or other enterprise, whether for profit or not, against:
-3-
(a) any reasonable expenses (including attorneys' fees) incurred
with respect to a proceeding, if such person is wholly
successful on the merits or otherwise in the defense of such
proceeding, or
(b) judgments, settlements, penalties, fines (including excise
taxes assessed with respect to employee benefit plans) and
reasonable expenses (including attorneys fees) incurred with
respect to a proceeding where such person is not wholly
successful on the merits or otherwise in the defense of the
proceeding if:
(i) the individual's conduct was in good faith; and
(ii) the individual reasonably believed:
(A) in the case of conduct in the individual's
official capacity as a director, officer,
employee or agent of the corporation, that
the individual's conduct was in the
corporation's best interests; and
(B) in all other cases, that the individual's
conduct was at least not opposed to the
corporation's best interests; and
(iii) in the case of any criminal proceeding, the
individual either:
(A) had reasonable cause to believe the
individual's conduct was lawful; or
(B) had no reasonable cause to believe the
individual's conduct was unlawful;
except that the foregoing shall not apply to a director or officer of the
corporation with respect to a proceeding that was commenced by such director or
officer prior to a Change in Control (as defined in Section 9 to this Article
VII).
The termination of a proceeding by a judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent is not, of itself,
determinative that the director, officer, or employee did not meet the standard
of conduct described in this section.
Section 2. Actions by or in the Right of the Corporation. The
corporation shall, to the fullest extent to which it is empowered to do so by
the Indiana Business Corporation Law, or any other applicable laws, as from time
to time in effect, indemnify any person who is or was a party, or is threatened
to be made a defendant or respondent, to a proceeding, including any threatened,
pending or completed action, suit or proceeding, by or in the right of the
corporation to procure a judgment in its favor, by reason of the fact that such
person is or was a director, officer, employee, or agent of the corporation or
is or was serving at
-4-
the request of the corporation as a director, officer, partner, trustee,
employee, or agent of another foreign or domestic corporation, partnership,
joint venture, trust, employee benefit plan, or other enterprise, whether for
profit or not, against any reasonable expenses (including attorneys' fees):
(a) if such person is wholly successful on the merits or otherwise
in the defense of such proceeding, or
(b) if not wholly successful:
(i) the individual's conduct was in good faith; and
(ii) the individual reasonably believed:
(A) in the case of conduct in the individual's
official capacity as a director, officer, or
employee of the corporation, that the
individual's conduct was in the
corporation's best interests; and
(B) in all other cases, that the individual's
conduct was at least not opposed to the
corporation's best interests;
except that the foregoing shall not apply to a director or officer of the
corporation with respect to a proceeding that was commenced by such director or
officer prior to a Change in Control.
Section 3. Good Faith Defined. For purposes of any determination under
Section 1 or 2, a person shall be deemed to have acted in good faith and to have
otherwise met the applicable standard of conduct set forth in such section if
his action is based on information, opinions, reports, or statements, including
financial statements and other financial data, if prepared or presented by (1)
one or more officers or employees of the corporation or another enterprise whom
he reasonably believes to be reliable and competent in the matters presented;
(2) legal counsel, public accountants, appraisers or other persons as to matters
he reasonably believes are within the person's professional or expert
competence; or (3) a committee of the board of directors of the corporation or
another enterprise of which the person is not a member if he reasonably believes
the committee merits confidence. The term "another enterprise" as used in this
Section 3 shall mean any other corporation or any partnership, joint venture,
trust, employee benefit plan or other enterprise of which such person is or was
serving at the request of the corporation as a director, officer, partner,
trustee, employee or agent. The provisions of this Section 3 shall not be deemed
to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standards of conduct set forth in Section 1
or 2.
Section 4. Advancement of Defense Expenses. The corporation shall pay
for or reimburse the reasonable expenses incurred by a director, officer,
employee or agent who is a party to a proceeding described in Section 1 or 2 of
this Article VII in advance of the final disposition of said proceeding if:
-5-
(a) the director, officer, employee or agent furnishes the
corporation a written affirmation of his good faith belief
that he has met the standard of conduct described in Section 1
or 2; and
(b) the director, officer, employee or agent furnishes the
corporation a written undertaking, executed personally or on
his behalf, to repay the advance if it is ultimately
determined that the director, officer, employee or agent did
not meet the standard of conduct; and
(c) a determination is made that the facts then known to those
making the determination would not preclude indemnification
under Section 1 or 2.
The undertaking required by this Section 4 must be an unlimited general
obligation of the director, officer, employee or agent but need not be secured
and may be accepted by the corporation without reference to the financial
ability of such person to make repayment.
Section 5. Non-Exclusiveness of Indemnification. The indemnification
and advancement of expenses provided for or authorized by this Article VII do
not exclude any other rights to indemnification or advancement of expenses that
a person may have under:
(a) the corporation's articles of incorporation or bylaws;
(b) any resolution of the board of directors or the shareholders
of the corporation;
(c) any other authorization adopted by the shareholders;
(d) any director and officer insurance policy, or any other type
of insurance policy; or
(e) otherwise as provided by law, both as to such person's actions
in his capacity as a director, officer, employee or agent of
the corporation and as to actions in another capacity while
holding such office.
Such indemnification shall continue as to a person who has ceased to be a
director, officer, or employee, and shall inure to the benefit of the heirs and
personal representatives of such person.
Section 6. Vested Right to Indemnification. The right of any individual
to indemnification under this Article VII 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 or 2 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, whether or not any such
amendment, repeal, alteration or other modification occurs after
-6-
a Change in Control. Notwithstanding the foregoing, the indemnification afforded
under this Article VII shall be applicable to all alleged prior acts or
omissions of any individual seeking indemnification hereunder, regardless of the
fact that such alleged acts or omissions may have occurred prior to the adoption
of this Article VII. To the extent such prior acts or omissions cannot be deemed
to be covered by this Article VII, the right of any individual to
indemnification shall be governed by the indemnification provisions in effect at
the time of such prior acts or omissions.
Section 7. Insurance. The corporation may purchase and maintain
insurance covering any person who is or was a director, officer, employee or
agent of the corporation, or who is or was serving at the request of the
corporation as a director, officer, partner, trustee, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, against any liability asserted against or incurred by the
individual in that capacity or arising from the individual's status as a
director, officer, employee or agent, whether or not the corporation would have
power to indemnify the individual against the same liability under this Article
VII.
Section 8. Additional Definitions. For purposes of this Article VII,
references to the "corporation" shall include any domestic or foreign
predecessor entity of the corporation in a merger or other transaction in which
the predecessor's existence ceased upon consummation of the transaction.
For purposes of this Article VII, "Change in Control" shall mean a
change in control of the corporation of a nature that would be required to be
reported in response to Item 6(e) (or any successor provision) of Schedule 14A
of Regulation 14A (or any amendment or successor provision thereto) promulgated
under the Securities Exchange Act of 1934 (the "1934 Act"), whether or not the
corporation is then subject to such reporting requirement; provided that,
without limitation, such a change in control shall be deemed to have occurred if
(A) any "person" (as such term is used in Sections 13(d) and 14(d) of the 1934
Act) is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
1934 Act), directly or indirectly, of securities of the corporation representing
20% or more of the voting power of all outstanding shares of stock of the
corporation entitled to vote generally in an election of directors without the
prior approval of at least two-thirds of the members of the board of directors
in office immediately prior to such acquisition; (B) the corporation is a party
to any merger or consolidation in which the corporation is not the continuing or
surviving corporation or pursuant to which shares of the corporation's common
stock would be converted into cash, securities or other property, other than a
merger of the corporation in which the holders of the corporation's common stock
immediately prior to the merger have the same proportionate ownership of common
stock of the surviving corporation immediately after the merger, (C) there is a
sale, lease, exchange or other transfer (in one transaction or a series of
related transactions) of all, or substantially all, the assets of the
corporation, or liquidation or dissolution of the corporation; (D) the
corporation is a party to a merger, consolidation, sale of assets or other
reorganization, or a proxy contest, as a consequence of which members of the
board of directors in office immediately prior to such
-7-
transaction or event constitute less than a majority of the board of directors
thereafter; or (E) during any period of two consecutive years, individuals who
at the beginning of such period constituted the board of directors (including
for this purpose any new director whose election or nomination for election by
the shareholders was approved by a vote of at least two-thirds of the directors
then still in office who were directors at the beginning of such period) cease
for any reason to constitute at least a majority of the board of directors.
For purposes of this Article VII, "serving an employee benefit plan 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 best interests
of the participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner "not opposed to the best interest of the
corporation" referred to in this Article VII.
For purposes of this Article VII, "official capacity," when used with
respect to a director, shall mean the office of director of the corporation; and
when used with respect to an individual other than a director, shall mean the
office in the corporation held by the officer or the employment or agency
relationship undertaken by the employee or agent on behalf of the corporation.
"Official capacity" does not include service for any other foreign or domestic
corporation or any partnership, joint venture, trust, employee benefit plan, or
other enterprise, whether for profit or not.
Section 9. Payments a Business Expense. Any payments made to any
indemnified party under this Article VII 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.
-9-