Exhibit 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
ARTHUR J. GALLAGHER & CO.
(FORMERLY AJG CO.)
Arthur J. Gallagher & Co. hereby certifies, by its officers, that this Restated
Certificate of Incorporation has been duly adopted by the board of directors of
Arthur J. Gallagher & Co. without a vote of stockholders, in accordance with the
provisions of Section 245 of the General Corporation Law of the State of
Delaware. The corporation further certifies that this Restated Certificate of
Incorporation only restates and integrates and does not further amend the
provisions of the corporation's certificate of incorporation as heretofore
amended or supplemented and there is no discrepancy between those provisions and
the provisions of this restated certificate.
FIRST. The name of the corporation is Arthur J. Gallagher & Co.
SECOND. The address of the corporation's registered office in the State of
Delaware is 229 South State in the City of Dover, 19901, and County of Kent.
The name of its registered agent at such address is The Prentice-Hall
Corporation System, Inc.
THIRD. The purpose of the corporation is to engage in any lawful act of
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH. (A) The aggregate number of shares which the corporation is authorized
to issue is 51,000,000, of which 1,000,000 shares shall be Preferred Stock with
no par value per share and 50,000,000 shares shall be Common Stock with par
value of $1.00 per share.
(B) The designations, relative rights, voting rights, preferences and
privileges of each class of stock of the corporation, and the restrictions or
qualifications thereof shall be as follows:
1. PREFERRED STOCK
(a) The board of directors is expressly authorized at any time, and from
time to time, to issue shares of Preferred Stock in one or more series, and for
such consideration as the board may determine, with such voting powers, full or
limited but not to exceed one vote per share, or without voting powers, and with
such designations, preferences and relative, participating, optional or other
special rights, and qualifications, limitations or restrictions thereof, as
shall be stated in the resolution or resolutions providing for the issue
thereof, and as are not stated in this Certificate of Incorporation, or any
amendment hereto. All shares of any one series shall be of equal rank and
identical in all respects.
(b) No dividend shall be paid or declared on any particular series of
Preferred Stock unless dividends shall be paid or declared pro rata on all
shares of Preferred Stock at the time outstanding of each other series which
ranks equally as to dividends with such particular series.
(c) Unless and except to the extent otherwise required by law or provided
in the resolution or resolutions of the board of directors creating any series
of Preferred Stock pursuant to this section, the holders of the Preferred Stock
shall have no voting power with respect to any matter whatsoever. In no event
shall the Preferred Stock be entitled to more than one vote in respect of each
share of stock. Subject to the protective conditions or restrictions of any
outstanding series of Preferred Stock, any amendment to this Certificate of
Incorporation which shall increase or decrease the authorized capital stock of
any class or classes may be adopted by the affirmative vote of the holders of a
majority of the outstanding shares of the voting stock of the corporation.
(d) Shares of Preferred Stock redeemed, converted, exchanged, purchased,
retired or surrendered to the corporation, or which have been issued and
reacquired in any manner, shall, upon compliance with any applicable provisions
of The General Corporation Law of the State of Delaware, have the status of
authorized and unissued shares of Preferred Stock and may be reissued by the
board of directors as part of the series of which they were originally a part or
may be reclassified into and reissued as part of a new series or as a part of
any other series, all subject to the protective conditions or restrictions of
any outstanding series of Preferred Stock.
2. 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.
3. NO PRE-EMPTIVE RIGHTS. No stockholder of the corporation shall, because of
his ownership of stock, have a pre-emptive 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 this
Certificate 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.
FIFTH. The corporation is to have perpetual existence.
SIXTH. In furtherance and not in limitation of the powers conferred by statute,
the board of directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
To authorize and cause to be executed mortgages and liens upon the
real and personal property of the corporation.
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 the manner in which it was created.
By resolution passed by a majority of the whole board, to 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. The by-laws may
provide that in the absence or disqualification of a member of a committee,
the member or members thereof present at any meeting and not disqualified
from voting, whether or not he or they constitute a quorum, may unanimously
appoint another member of the board of directors to act at the meeting in
the place of any such absent or disqualified member. Any such committee, to
the extent provided in the resolution of the board of directors, or in the
by-laws of the corporation, 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 by-laws, expressly so provide, no such committee shall have
the power or authority to declare a dividend or to authorize the issuance
of stock.
When and as authorized by the stockholders in accordance with statute,
to sell, lease or exchange all or substantially all of the property and
assets of the corporation including its goodwill, upon such terms and
conditions and for such consideration, which may consist in whole or in
part of money or property including shares of stock in, and/or other
securities of, any other corporation or corporations, as its board of
directors shall deem expedient and for the best interests of the
corporation.
SEVENTH. Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof, or on the
application of any receiver or receivers appointed for this corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this corporation under the provisions of Section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stock-holders or class of stockholders of this
corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this corporation, as the case may be,
and also on this corporation.
EIGHTH. (a) Meetings of stockholders may be held within or without the State
of Delaware, as the by-laws may provide. The books of the corporation may be
kept (subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
board of directors or in the by-laws of the corporation.
(b) Whenever the vote of stockholders at a meeting thereof is required
or permitted to be taken for or in connection with any corporate action, by
any provision of the General Corporation Law of the State of Delaware, the
meeting and vote of stockholders may be dispensed with if the holders of a
majority of the shares of stock which would have been entitled to be voted
upon the action if such meeting were held shall consent in writing to such
corporate action being taken; provided that in no case shall the written
consent be by the holders of stock having less than the minimum percentage
of the total vote required by statute for the proposed corporate action and
that prompt notice must be given to all stockholders of the taking of
corporate action without a meeting and by less than unanimous written
consent.
(c) Election of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
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 statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
TENTH. A. In addition to the vote of stockholders otherwise required by law
or by the terms of any other Article of this Certificate of Incorporation, the
affirmative vote of the holders of not less than 80% of the outstanding shares
of voting stock of this corporation and the affirmative vote of the holders of
not less than 67% of the outstanding shares of voting stock held by stockholders
other than a "Related Person" (as hereinafter defined) shall be required for the
approval or authorization of any "Business Combination" (as hereinafter
defined); provided, however, that the 80% and 67% voting requirements shall not
be applicable if:
(1) The "Continuing Directors" of this corporation (as hereinafter defined)
by a two-thirds vote (a) have expressly approved in advance the acquisition of
outstanding shares of voting stock of the corporation that caused the Related
Person to become a Related Person, or (b) have approved the Business Combination
prior to the Related Person involved in the Business Combination having become a
Related Person; or
(2) The Business Combination is solely between this corporation and another
corporation, 50% or more of the voting stock of which is owned by this
corporation and none of which is owned by the Related Person; provided that if
this corporation is not the surviving entity, each stockholder of this
corporation receives the same type of consideration in such transaction in
proportion to his stockholdings and the provisions of this Article TENTH of this
corporation's Certificate of Incorporation are continued in effect or adopted by
such surviving corporation as part of its articles of incorporation or
certificate of incorporation, as the case may be, without any change; or
(3) All of the following conditions are satisfied:
(a) The cash or fair market value of the property, securities or other
consideration to be received per share by holders of common stock of this
corporation in the Business Combination is not less than the higher of:
(i) the highest per share price (including brokerage
commissions, transfer taxes and soliciting dealers' fees) paid by the
the Related Person in acquiring any of its holdings of this
corporation's common stock, or
(ii) an amount that bears that same percentage relationship to
the market price of this corporation's common stock immediately prior
to the announcement of such Business Combination as the highest per
share price determined in (i) above bears to the market price of this
corporation's common stock immediately prior to the commencement of
the acquisition of this corporation's voting stock that caused such
Related Person to become a Related Person, or
(iii) an amount calculated by multiplying the earnings per
share of the corporation's common stock for the four fiscal quarters
immediately preceding the record date for determination of
stockholders entitled to vote on such Business Combination by the
price/earnings multiple of the Related Person as of the record date as
customarily computed and reported in the financial press.
Appropriate adjustments shall be made with respect to (i), (ii) and (iii)
above for recapitalizations and for stock splits, stock dividends, and like
distributions; and
(b) A timely mailing shall have been made to the stockholders of this
corporation containing in a prominent place (i) any recommendations as to
the advisability (or inadvisability) of the Business Combination that the
Continuing Directors or "Outside Directors" (as hereinafter defined) may
choose to state, if there are at the time any such directors, and (ii) the
opinion of a reputable nationally recognized investment banking or
financial services firm as to the fairness from the financial point of view
of the terms of the Business Combination to the stockholders of this
corporation other than the Related Person (such firm to be engaged solely
on behalf of such other stockholders, to be paid a reasonable fee for its
services by this corporation upon receipt of such opinion, to be a firm
that has not previously been significantly associated with the Related
Person and, if there are at the time any such directors, to be selected by
a majority of the Continuing Directors and Outside Directors).
B. For the purposes of this Article TENTH, the following definitions
shall apply:
(1) The term "Business Combination" shall mean (a) any merger or
consolidation of this corporation or a subsidiary of this corporation with or
into a Related Person, (b) any sale, lease, exchange, transfer or other
disposition, including without limitation a mortgage or any other security
device, of all or any "Substantial Part" (as hereinafter defined) of the assets
either of this corporation (including without limitation any voting securities
of a subsidiary) or of a subsidiary, to a Related Person, (c) any merger or
consolidation of a Related Person with or into this corporation or a subsidiary
of this corporation, (d) any sale, lease, exchange, transfer or other
disposition of all or any Substantial Part of the assets of a Related Person to
this corporation or a subsidiary of this corporation, (e) the issuance of any
securities of this corporation or a subsidiary of this corporation to a Related
Person, (f) the acquisition of this corporation or a subsidiary of this
corporation of any securities issued by a Related Person, (g)
any reclassification of securities, recapitalization or other transaction
designed to decrease the number of holders of this corporation's voting
securities remaining, if there is a Related Person, and (h) any agreement,
contract or other arrangement providing for any of the transactions described in
this definition of Business Combination.
(2) The term "Related Person" shall mean and include any individual,
corporation, partnership or other person or entity which, together with their
"Affiliates" and "Associates" (as defined as of November 1, 1983, in Rule 12b-2
under the Securities Exchange Act of 1934), "Beneficially Owns" (as defined as
of November 1, 1983, in Rule 13d-3 under the Securities Exchange Act of 1934) in
the aggregate 20% or more of the outstanding shares of the voting stock of this
corporation, and any Affiliate or Associate of any such individual, corporation,
partnership or other person or entity; provided that "Related Person" shall not
include any person who beneficially owned 20% or more of the outstanding shares
of the voting stock of the corporation on November 1, 1983.
(3) The term "Substantial Part" shall mean more than 30% of the fair market
value of the total assets of the corporation in question, as of the end of its
most recent fiscal year ending prior to the time the determination is being
made.
(4) Without limitation, any shares of voting stock of this corporation that
any Related Person has the right to acquire pursuant to any agreement, or upon
exercise of conversion rights, warrants or options, or otherwise, shall be
deemed beneficially owned by the Related Person.
(5) For the purposes of subparagraph A.(3)(a) of this Article TENTH, the
term "other consideration to be received" shall include, without limitation,
capital stock of this corporation retained by its existing public stockholders
in the event of a Business Combination in which this corporation is the
surviving corporation.
(6) The term "Continuing Director" shall mean a director who was a member
of the board of directors of this corporation immediately prior to the time that
the Related Person involved in a Business Combination became a Related Person,
and the term "Outside Director" shall mean a director who is not (a) an officer
or employee of this corporation or any relative of an officer or employee or (b)
a Related Person or an officer, director, employee, Associate or Affiliate of a
Related Person, or a relative of any of the foregoing.
C. The affirmative vote required by this Article TENTH is required
notwithstanding the fact that no vote may be required, or that some lesser
percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
ELEVENTH. A. The number of directors of the corporation shall be fixed from
time to time by, or in the manner provided in, its by-laws, but in no event
shall the number of directors of the corporation be less than three nor more
than fifteen. The directors shall be divided into three classes, designated
Class I, Class II, and Class III. Such classes shall be as nearly equal in
number as possible. At the 1984 annual meeting of the stockholders, directors
of Class I shall be elected for a term expiring at the first annual meeting of
the stockholders following their election, directors of Class II shall be
elected for a term expiring at the second annual meeting of the stockholders
following their election, and directors of Class III shall be elected for a term
expiring at the third annual meeting of the stockholders following their
election. At each annual meeting of stockholders of the corporation following
the 1984 annual meeting, successors to the directors of the class whose terms
then expire shall be elected to hold
office for a full term expiring at the third succeeding annual meeting of
stockholders. All directors shall continue in office until their respective
successors are duly elected and qualified.
B. Vacancies on the board of directors resulting from the death,
resignation or removal of a director or directors, and newly created
directorships resulting from any increases in the authorized number of
directors, shall be filled by a majority of the directors then in office, though
less than a quorum, or by a sole remaining director, and any director so chosen
shall, in the case of a director elected to fill a vacancy, hold office until
the expiration of the term of the office of the director he replaces, and in the
case of a director elected to fill a newly created directorship, shall hold
office until the expiration of the term of the class of directors to which he
was elected. If there are no directors in office, then an election of directors
shall be held in the manner provided by statute. If, at the time of filling any
vacancy or any newly created directorship, the directors then in office shall
constitute less than a majority of the whole board (as constituted immediately
prior to any such increase), the Court of Chancery may, upon application of any
stockholder or stockholders holding at least twenty-five percent of the total
number of shares at the time outstanding having the right to vote for such
directors, summarily order an election to be held to fill any such vacancies or
newly created directorships, or to replace the directors chosen by the directors
then in office.
C. A director or the entire board of directors may only be removed, with
or without cause, by the affirmative vote of the holders of 80% of the
outstanding shares of voting stock of this corporation and the affirmative vote
of the holders of not less than 67% of the outstanding shares of voting stock
held by stockholders other than a "Related Person" (as defined in Article
TENTH). Any director may be removed with cause at any time by the affirmative
vote of the majority of directors in office.
TWELFTH. The provisions set forth in this ARTICLE TWELFTH and in ARTICLES TENTH
and ELEVENTH may not be amended or repealed in any respect, unless such action
is approved by the affirmative vote of the holders of 80% or more of the
outstanding shares of voting stock of the corporation and the affirmative vote
of the holders of not less than 67% of the outstanding shares of voting stock
held by stockholders other than a "Related Person" (as defined in Article
TENTH).
THIRTEENTH. No director shall be personally liable to the corporation or any
stockholder for monetary damages for breach of fiduciary duty as a director,
except for any matter in respect of which such director shall be liable under
Section 174 of Title 8 of the Delaware Code (relating to the Delaware General
Corporation Law) or any amendment thereto or successor provision thereto or
shall be liable by reason that, in addition to any and all other requirements
for such liability, such director (i) shall have breached the duty of loyalty to
the corporation or its stockholders, (ii) shall not have acted in good faith, or
in failing to act, shall not have acted in good faith, (iii) shall have acted in
a manner involving intentional misconduct or a knowing violation of law or, in
failing to act, shall have acted in a manner involving intentional misconduct or
a knowing violation of law, or (iv) shall have derived an improper personal
benefit. Neither the amendment nor repeal of this Article THIRTEENTH, nor the
adoption of
any provision of the Certificate of Incorporation inconsistent with this Article
THIRTEENTH, shall eliminate or reduce the effect of this Article THIRTEENTH in
respect of any matter occurring, or any cause of action, suit or claim that, but
for this Article THIRTEENTH would accrue or arise, prior to such amendment,
repeal or adoption of an inconsistent provision.
IN WITNESS WHEREOF, Arthur J. Gallagher & Co. has caused this certificate
to be signed by its President and attested to by its Secretary this 12th day of
May, 1987.
ARTHUR J. GALLAGHER & CO.
By:/s/ Robert E. Gallagher
-----------------------------------
Robert E. Gallagher, President
ATTEST:
By:/s/ Dean H. Goossen
--------------------------------
Dean H. Goossen, Secretary
CERTIFICATE OF AMENDMENT OF
RESTATED CERTIFICATE OF INCORPORATION
OF
ARTHUR J. GALLAGHER & CO.
It is hereby certified that:
1. The name of the corporation (hereinafter called the "Corporation") is:
Arthur J. Gallagher & Co.
2. The Restated Certificate of Incorporation of the Corporation is hereby
amended by striking out Article Eighth (b) thereof and by substituting in lieu
of said Article the following new Article:
"(b) Any action required or permitted to be taken by the stockholders of
the corporation must be taken at a duly called annual or special meeting of
the stockholders of the corporation and the power of stockholders to
consent in writing, without a meeting, to the taking of any action is
specifically denied."
3. The amendment of the Restated Certificate of Incorporation herein certified
has been duly adopted in accordance with the provisions of Section 242 of the
General Corporation Law of the State of Delaware.
Signed and attested to on September 30, 1991.
/s/ Michael J. Cloherty
-------------------------------
Michael J. Cloherty
Vice President
Attest:
/s/ Carl E. Fasig
- --------------------------------
Carl E. Fasig
Assistant Secretary
CERTIFICATE OF AMENDMENT OF
RESTATED CERTIFICATE OF INCORPORATION
OF ARTHUR J. GALLAGHER & CO.
It is hereby certified that:
1. The name of the corporation (hereinafter called the "Corporation") is:
Arthur J. Gallagher & Co.
2. The Restated Certificate of Incorporation of the Corporation is hereby
amended by striking out Article Fourth (A) thereof and by substituting in lieu
of said Article the following new Article:
"(A) The aggregate number of shares which the corporation is authorized to
issue is 101,000,000, of which 1,000,000 shares shall be Preferred Stock
with no par value per share and 100,000,000 shares shall be Common Stock
with par value of $1.00 per share."
3. The amendment of the Restated Certificate of Incorporation herein certified
has been duly adopted in accordance with the provisions of Section 242 of the
General Corporation Law of the State of Delaware.
Signed and attested to on May 30, 1996.
/s/ Michael J. Cloherty
-------------------------------
Michael J. Cloherty
Executive Vice President
Attest:
/s/ Carl E. Fasig
- -------------------------------
Carl E. Fasig
Secretary