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EXHIBIT 3.1
SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
EXECUTIVE RISK INC.
Executive Risk Inc., a corporation organized and existing
under the laws of the State of Delaware, hereby certifies as follows:
1. The name of the Corporation is Executive Risk Inc. The
Corporation originally incorporated under the same name, and the original
Certificate of Incorporation was filed with the Secretary of State of the State
of Delaware on August 17, 1993. The first Amended and Restated Certificate of
Incorporation was filed with the Secretary of the State of Delaware on December
31, 1993.
2. Pursuant to Sections 242 and 245 of the General Corporation
Law of the State of Delaware, this Second Amended and Restated Certificate of
Incorporation restates and integrates and further amends the provisions of the
Amended and Restated Certificate of Incorporation of the Corporation.
3. The text of the Amended and Restated Certificate of
Incorporation of the Corporation is hereby restated and amended pursuant to this
Second Amended and Restated Certificate of Incorporation to read in its entirety
as follows:
FIRST: The name of the corporation is EXECUTIVE RISK INC.
(hereinafter called the "Corporation").
SECOND: The address of the registered office and registered
agent in this state is 1013 Centre Road, Wilmington, DE 19805, and the name of
the registered agent at said address is Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
FOURTH: The authorized capital stock of the Corporation shall
consist of 4,000,000 shares of Preferred Stock, par value $.01 per share (the
"Preferred Stock"), and 50,000,000 shares of Common Stock, $.01 par value per
share (the "Common Stock"). The Preferred Stock shall consist of one or more
series of Preferred Stock which shall have the powers, terms, conditions,
designations, preferences and privileges, the relative, participating, optional
and other special rights, and the qualifications, limitations and restrictions,
if any, as provided herein.
A. PREFERRED STOCK
The Board of Directors is hereby expressly authorized to
provide for, designate and issue, out of the authorized but unissued shares of
Preferred Stock, one or more series of Preferred Stock. Before any shares of any
such series are issued, the Board of Directors shall fix, and hereby is
expressly empowered to fix, as to the shares of any such series:
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(a) the designation of such series, the number of shares to
constitute such series and the stated value thereof, if different from the par
value thereof;
(b) whether the shares of such series shall have voting rights
or powers, in addition to any voting rights required by law and, if so, the
terms of such voting rights or powers, which may be full or limited;
(c) the dividends, if any, payable on such series, whether any
such dividends shall be cumulative and, if so, from what dates, the conditions
and dates upon which such dividends shall be payable, the preferences or
relation which such dividends shall bear to the dividends payable on any shares
of stock of any other class or any other series of this class;
(d) whether the shares of such series shall be subject to
redemption by the Corporation and, if so, the times, prices and other conditions
of such redemption;
(e) the amount or amounts payable upon shares of such series
upon, and the rights of the holders of such series in, the voluntary or
involuntary liquidation, dissolution or winding up, or upon any distribution of
the assets, of the Corporation;
(f) whether the shares of such series shall be subject to the
operation of a retirement or sinking fund and, if so, the extent to which and
manner in which any such retirement or sinking fund shall be applied to the
purchase or redemption of the shares of such series for retirement or other
corporate purposes and the terms and provisions relative to the operation
thereof;
(g) whether the shares of such series shall be convertible
into or exchangeable for shares of stock of any other class or any other series
of this class or any other securities and, if so, the price or prices or the
rate or rates of conversion or exchange and the method, if any, of adjusting the
same, and any other terms and conditions of conversion or exchange;
(h) the limitations and restrictions, if any, to be effective
while any shares of such series are outstanding upon the payment of dividends or
the making of other distributions on, and upon the purchase, redemption or other
acquisition by the Corporation of, the Common Stock or shares of stock of any
other class or any other series of this class;
(i) the conditions or restrictions, if any, to be effective
while any shares of such series are outstanding upon the creation of
indebtedness of the Corporation or upon the issue of any additional stock,
including additional shares of such series or of any other series of this class
or of any other class; and
(j) any other powers, designations, preferences and relative,
participating, optional or other special rights, and any qualifications,
limitations, or restrictions thereof.
The powers, designations, preferences and relative,
participating, optional or other special rights of each series of Preferred
Stock, and the qualifications, limitations or restrictions thereof, if any, may
differ from those of any and all other series at any time outstanding. The Board
of Directors is hereby expressly authorized from time to time to increase (but
not above the total number of authorized shares of Preferred Stock) or decrease
(but not below the number of shares thereof then outstanding) the number of
shares of stock of any series of Preferred Stock designated to any one or more
series of Preferred Stock pursuant to this Section A of this Paragraph Fourth.
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B. COMMON STOCK
All shares of Common Stock will be identical and will entitle the
holders thereof to the same rights and privileges.
Dividends
When, as and if dividends are declared thereon, whether
payable in cash, property or securities of the Corporation, the holders of
Common Stock will be entitled to share equally in and receive, in accordance
with the number of shares of Common Stock held by each such holder, such
dividends. Dividends payable under this Paragraph Fourth shall be paid to the
holders of record of the outstanding Common Stock as their names shall appear on
the stock register of the Corporation on the record date fixed by the Board of
Directors in advance of declaration and payment of each dividend. Any Common
Stock issued as a dividend pursuant to this Paragraph Fourth shall, when so
issued, be duly authorized, validly issued, fully paid and non-assessable, and
free of all liens and charges.
Notwithstanding anything contained herein to the contrary, no
dividends on Common Stock shall be declared by the Corporation's Board of
Directors or paid or set apart for payment by the Corporation at any time that
such declaration, payment, or setting apart is prohibited by applicable law.
Voting Rights
Each holder of the Common Stock shall be entitled to one vote for each
share of Common Stock held on all matters submitted to a vote of the
stockholders.
Other Rights
Except for and subject to those rights expressly granted to
the holders of Preferred Stock or as otherwise provided herein, and except as
may be provided by the laws of the State of Delaware, the holders of Common
Stock shall have exclusively all other rights of stockholders, including,
without limitation, (a) the right to receive dividends, when, as and if declared
by the Board of Directors, out of assets lawfully available therefor, and (b) in
the event of any distribution of assets upon a liquidation, dissolution or
winding-up of the affairs of the Corporation (each a "Liquidation") or
otherwise, the right to receive ratably and equally with all other holders of
Common Stock in all the assets and funds of the Corporation remaining after the
payment to the holders of the Preferred Stock of the specific amounts which they
are entitled to receive upon such Liquidation. For the purposes of this
Paragraph Fourth, neither the consolidation or merger of the Corporation with or
into any other corporation or corporations in which the stockholders of the
Corporation receive capital stock and/or other securities (including debt
securities) of the acquiring corporation (or of the direct or indirect parent
corporation of the acquiring corporation), nor the sale, lease, or transfer by
the Corporation of all or any part of its assets, nor the reduction of the
capital stock of the Corporation, shall be deemed to be a voluntary or
involuntary liquidation, dissolution, or winding up of the Corporation as those
terms are used in this Paragraph Fourth.
FIFTH: The number which shall constitute the Board of
Directors of the Corporation shall be no less than seven and no more than
eleven, as determined by the Board of Directors from time to time. The Board of
Directors shall be classified, with respect to the time for which they severally
hold office, into three classes, as nearly equal in number as possible, as shall
be provided in the manner specified in the By-Laws, one class to hold office
initially for a term expiring at the annual meeting of stockholders to be held
in 1998, another class to hold office initially for a term expiring at the
annual meeting of stockholders to be held in 1999 and another class to hold
office initially for a term expiring at the annual meeting of stockholders to be
held in 2000, with the
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members of each class to hold office until their successors are duly elected and
qualified. At each annual meeting of the stockholders of the Corporation, the
successors to the class of directors whose term expires at that meeting shall be
elected to hold office for a term expiring at the annual meeting of stockholders
held in the third year following the year of their election. The election of
directors need not be by ballot unless the By-Laws so provide.
In any election of directors, no holder of Common Stock shall be
entitled to cumulate the number of votes that such holder is entitled to cast
for the election of directors with respect to such holder's Common Stock.
SIXTH: The following provisions are inserted for the
management of the business and for the conduct of the affairs of the
Corporation, and in furtherance and, except as specifically set forth in this
Paragraph, not in limitation of the powers of the Corporation and of its
directors and stockholders conferred by statute:
The Board of Directors shall have power without (except as
provided by applicable law) the assent or vote of the stockholders to make,
alter, amend, change, add to or repeal the By-Laws of the Corporation; to
authorize and cause to be executed mortgages and liens upon all or any part of
the property of the Corporation; to determine the use and disposition of any
surplus or net profits; to fix the times for the declaration and payment of
dividends; and to set apart out of any of the funds of the Corporation available
for dividends a reserve or reserves for any proper purpose and to abolish any
such reserve.
In addition to the powers and authorities hereinbefore or by
statute expressly conferred upon them, the Board of Directors is hereby
empowered to exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation; subject, nevertheless, to the provisions
of the statutes of Delaware, this Certificate of Incorporation and the
Corporation's By-Laws, as in effect from time to time.
SEVENTH: No director shall be liable to the Corporation or any
of its stockholders for monetary damages for breach of fiduciary duty as a
director, provided that the foregoing shall not eliminate or limit any liability
that may exist with respect to (1) a breach of the director's duty of loyalty to
the Corporation or its stockholders, (2) acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (3)
liability under Section 174 of the Delaware General Corporation Law or (4) a
transaction from which the director derived an improper personal benefit, it
being the intention of the foregoing provision to eliminate the liability of the
Corporation's directors to the Corporation or its stockholders to the fullest
extent permitted by Section 102(b)(7) of the Delaware General Corporation Law,
as in effect on the date hereof and as such Section may be amended after the
date hereof to the extent such amendment permits such liability to be further
eliminated or limited. The Corporation shall indemnify to the fullest extent
permitted by Section 145 of the Delaware General Corporation Law (as in effect
on the date hereof and as such Section may be amended after the date hereof)
each person that such Section grants the Corporation the power to indemnify.
EIGHTH: Except as fixed pursuant to the provisions of Section
A of Paragraph Fourth of this Certificate of Incorporation relating to the
rights of the holders of Preferred Stock, no action required to be taken or that
may be taken at any annual or special meeting of stockholders of the Corporation
may be taken without a meeting and the power of the stockholders of the
Corporation to consent in writing, without a meeting, to the taking of any
action is specifically denied.
NINTH: The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Certificate of Incorporation in
the manner now or hereafter prescribed by law and in this Certificate of
Incorporation and all rights and powers conferred herein on stockholders,
directors and officers are subject to this reserved power. Any amendment to the
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provisions of Paragraph Fifth, Paragraph Seventh, Paragraph Eighth or this
Paragraph Ninth, and any amendment by the stockholders to the By-Laws of the
Corporation, shall require, in addition to the approval required by applicable
law and the other paragraphs of this Certificate of Incorporation, the
affirmative vote of the holders of at least seventy-five percent of the
then-outstanding shares of Common Stock.
IN WITNESS WHEREOF, we have signed this Second Amended and
Restated Certificate of Incorporation and caused the corporate seal of the
Corporation to be hereunto affixed this 27th day of May, 1997.
/s/ LeRoy A. Vander Putten
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Chairman and Chief Executive Officer