Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CONSECO, INC.
ARTICLE ONE
The name of the Corporation is Conseco, Inc.
ARTICLE TWO
The address of the Corporation's registered office in the State of Delaware
is Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County,
Delaware 19801. The name of its registered agent at such address is The
Corporation Trust Company.
ARTICLE THREE
The nature of the business or purposes to be conducted or promoted 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.
ARTICLE FOUR
Section 1. Authorized Shares. The total number of shares of capital stock
which the Corporation has authority to issue is 8,265,000,000 shares, consisting
of:
(a) 265,000,000 shares of Preferred Stock, par value $.01 per share
("Preferred Stock"); and
(b) 8,000,000,000 shares of Common Stock, par value $.01 per share ("Common
Stock").
The Preferred Stock and the Common Stock shall have the rights, preferences and
limitations set forth below.
Section 2. Preferred Stock. The Preferred Stock may be issued from time to
time and in one or more series. The Board of Directors of the Corporation is
authorized to determine or alter the powers, preferences and rights, and the
qualifications, limitations and restrictions granted to or imposed upon any
wholly unissued series of Preferred Stock, and within the limitations or
restrictions stated in any resolution or resolutions of the Board of Directors
originally fixing the number of shares constituting any series of Preferred
Stock, to increase or decrease (but not below the number of shares of any such
series of Preferred Stock then outstanding) the number of shares of any such
series of Preferred Stock, and to fix the number of shares of any series of
Preferred Stock. In the event that the number of shares of any series of
Preferred Stock shall be so decreased, the shares constituting such decrease
shall resume the status which such shares had prior to the adoption of the
resolution originally fixing the number of shares of such series of Preferred
Stock subject to the requirements of applicable law.
Section 3. Common Stock.
(a) Dividends. Except as otherwise provided by the Delaware General
Corporation Law or this Amended and Restated Certificate of Incorporation (the
"Certificate"), the holders of Common Stock, subject to the rights of holders of
any series of Preferred Stock, shall share ratably in all dividends as may from
time to time be declared by the Board of Directors in respect of the Common
Stock out of funds legally available for the payment thereof and payable in
cash, stock or otherwise and other distributions, whether in respect of
liquidation or dissolution (voluntary or involuntary) or otherwise after payment
of liabilities and liquidation preference on any outstanding Preferred Stock.
(b) Preemptive Rights. No holder of Common Stock shall have any preemptive
rights with respect to the Common Stock or any other securities of the
Corporation, or to any obligations convertible (directly or indirectly) into
securities of the Corporation whether now or hereafter authorized.
(c) Voting Rights. Except as otherwise provided by the Delaware General
Corporation Law or this Certificate and subject to the rights of holders of any
series of Preferred Stock, all of the voting power of the stockholders of the
Corporation shall be vested in the holders of the Common Stock, and each holder
of Common Stock shall have one vote for each share held by such holder on all
matters voted upon by the stockholders of the Corporation.
Section 4. Limitations on Voting Rights.
Notwithstanding the voting rights granted to holders of Common Stock and
Preferred Stock (collectively, the "Stock") elsewhere in this Certificate or in
any certificate of designations with respect to Preferred Stock, the voting
rights of any Stock held by any holder as of the effective date of the
Reorganizing Debtors' Joint Plan of Reorganization pursuant to Chapter 11 of the
United States Bankruptcy Code, dated March 18, 2003, as amended from time to
time shall be automatically reduced, with respect to any particular stockholder
vote or action by written consent, to the extent, if any, required to avoid a
presumption of control arising from the beneficial ownership of voting
securities under the insurance statutes or regulations applicable to any direct
or indirect insurance company subsidiary of the Corporation, provided that no
such reduction shall (without such holder's written consent) reduce such voting
rights (i) by more than the minimum amount required to reduce such voting rights
to less than 10% of the aggregate voting rights of all Stock entitled to vote or
consent with respect to such vote or action, or (ii) to the extent that such
holder's acquisition of control or deemed acquisition of control of the direct
and indirect insurance company subsidiaries of the Corporation has been approved
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under, or is exempt from the approval requirements of, all insurance statutes
and regulations applicable to the direct and indirect insurance company
subsidiaries of the Corporation.
ARTICLE FIVE
The Corporation is to have perpetual existence.
ARTICLE SIX
Except as otherwise provided in this Certificate (including any duly
authorized certificate of designation of any series of Preferred Stock),
Directors shall be elected by a plurality of the votes of the shares present in
person or represented by proxy at the meeting of the stockholders at which
Directors are elected and entitled to vote in the election of Directors or
pursuant to a valid written consent in lieu of a meeting. Elections of directors
need not be by written ballot unless the Bylaws of the Corporation shall so
provide.
ARTICLE SEVEN
Subject to any rights of the holders of any series of Preferred Stock
pursuant to a duly authorized certificate of designation to elect additional
Directors under specified circumstances, the number of directors which shall
constitute the Board of Directors shall initially be established at seven and,
thereafter, shall be fixed from time to time by resolution adopted by the
affirmative vote of a majority of the total number of Directors then in office.
ARTICLE EIGHT
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to make, alter, amend or repeal
the Bylaws of the Corporation.
ARTICLE NINE
Section 1. Limitation of Liability.
(a) To the fullest extent permitted by the Delaware General Corporation Law
as it now exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than permitted prior thereto), and except
as otherwise provided in the Corporation's Bylaws, no Director of the
Corporation shall be liable to the Corporation or its stockholders for monetary
damages arising from a breach of fiduciary duty owed to the Corporation or its
stockholders.
(b) 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.
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Section 2. Right to Indemnification. Each person who was or is made a party
or is threatened to be made a party to or is otherwise involved (including
involvement as a witness) in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "proceeding"), by reason of the
fact that he or she is or was a Director, officer or employee of the Corporation
or a wholly owned subsidiary of the Corporation or, while a Director, officer or
employee of the Corporation or a wholly owned subsidiary of the Corporation, is
or was serving at the request of the Corporation or a wholly owned subsidiary of
the Corporation as a Director, officer, employee, partner, member, manager,
trustee, fiduciary or agent of another corporation or of a partnership, joint
venture, limited liability company, trust or other entity or enterprise,
including service with respect to an employee benefit plan (an "indemnitee")
shall be indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than permitted prior thereto), against all expense, liability and loss
(including attorneys' fees, judgments, fines, excise taxes or penalties and
amounts paid in settlement) reasonably incurred or suffered by such indemnitee
in connection therewith and such indemnification shall continue as to an
indemnitee who has ceased to be a Director, officer, employee, partner, member,
trustee, fiduciary or agent and shall inure to the benefit of the indemnitee's
heirs, executors and administrators; provided, however, that the Corporation
shall indemnify any such indemnitee in connection with a proceeding (or part
thereof) initiated by such indemnitee only if such proceeding (or part thereof)
was authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Section 2 of this ARTICLE NINE shall be a
contract right and shall include the obligation of the Corporation to pay the
expenses incurred in defending any such proceeding in advance of its final
disposition (an "advance of expenses"); provided, however, that, if and to the
extent that the Delaware General Corporation Law requires, an advance of
expenses incurred by an indemnitee in his or her capacity as a Director or
officer shall be made only upon delivery to the Corporation of an undertaking,
by or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal that such indemnitee is not entitled to be indemnified
for such expenses under this Section 2 or otherwise.
ARTICLE TEN
Section 1. Classification of Directors. At each annual meeting of
stockholders, directors of the Corporation shall be elected to hold office until
the expiration of the term for which they are elected, and until their
successors have been duly elected and qualified; except that if any such
election shall be not so held, such election shall take place at a stockholders'
meeting called and held in accordance with the Delaware General Corporation Law.
The directors of the Corporation shall initially be divided into two classes as
nearly equal in size as is practicable, hereby designated Class I and Class II.
The term of office of the initial Class I directors shall expire at the next
succeeding annual meeting of stockholders and the term of office of the initial
Class II directors shall expire at the second succeeding annual meeting of
stockholders. Other than the term of office of the initial Class II directors,
the term of office of each Class of directors shall expire at the next
succeeding annual meeting of stockholders. For the purposes hereof, the initial
Class I and Class II directors shall be those directors elected by
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the stockholders of the Corporation in connection with the adoption of this
Certificate. At each annual meeting of stockholders, directors to replace those
of a Class or Classes whose terms expire at such annual meeting shall be elected
to hold office until the next succeeding annual meeting and until their
respective successors shall have been duly elected and qualified. If the number
of directors is hereafter changed, any newly created directorships or decrease
in directorships shall be so apportioned among the classes as to make all
classes as nearly equal in number as practicable.
Section 2. Removal. Subject to the rights, if any, of the holders of any
series of Preferred Stock to remove directors (with or without cause) and fill
the vacancies thereby created (as specified in any duly authorized certificate
of designation of any series of Preferred Stock), (i) prior to the second annual
meeting of stockholders, no Director may be removed from office without cause
and without the affirmative vote of the holders of a majority of the voting
power of the then outstanding shares of capital stock entitled to vote generally
in the election of Directors voting together as a single class and (ii)
thereafter, a Director may be removed with or without cause with the affirmative
vote of the holders of a majority of the voting power of the then outstanding
shares of capital stock entitled to vote generally in the election of Directors
voting together as a single class; provided, however, that if the holders of any
class or series of capital stock are entitled by the provisions of any duly
authorized certificate of designation to elect one or more Directors, such
Director or Directors so elected may be removed with or without cause by the
vote of the holders of a majority of the outstanding shares of that class or
series entitled to vote.
Section 3. Vacancies. Subject to the rights of the holders of any series of
Preferred Stock to remove Directors and fill the vacancies thereby created (as
specified in any duly authorized certificate of designation of any series of
Preferred Stock), vacancies occurring on the Board of Directors for any reason
may be filled by vote of a majority of the remaining members of the Board of
Directors, although less than a quorum, at any meeting of the Board of Directors
or by the stockholders. A person so elected by the Board of Directors to fill a
vacancy shall hold office until the next succeeding annual meeting of
stockholders of the Corporation and until his or her successor shall have been
duly elected and qualified.
ARTICLE ELEVEN
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside of 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 Bylaws of the Corporation.
ARTICLE TWELVE
The stockholders of the Corporation may take any action by written consent
in lieu of a meeting. Subject to the rights of the holders of any series of
Preferred Stock as specified in any duly authorized certificate of designation,
special meetings of stockholders of the Corporation
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may be called only by the Board of Directors pursuant to a resolution adopted by
the affirmative vote of the majority of the total number of directors then in
office, by the chairman of the Board of Directors or the chief executive officer
of the Corporation, or by the secretary of the Corporation upon request in
writing of the stockholder or stockholders holding of record at least 25% of the
voting power of the issued and outstanding shares of stock of the Corporation
entitled to vote at such meeting.
ARTICLE THIRTEEN
The Corporation expressly elects not to be governed by Section 203 of the
Delaware General Corporation Law.
ARTICLE FOURTEEN
The Corporation shall not issue any class of non-voting equity securities
unless and solely to the extent permitted by Section 1123(a)(6) of the United
States Bankruptcy Code (the "Bankruptcy Code") as in effect on the date of
filing this Certificate with the Secretary of State of the State of Delaware;
provided, however, that this ARTICLE FOURTEEN: (a) will have no further force
and effect beyond that required under Section 1123(a)(6) of the Bankruptcy Code;
(b) will have such force and effect, if any, only for so long as Section
1123(a)(6) of the Bankruptcy Code is in effect and applicable to the
Corporation; and (c) in all events may be amended or eliminated in accordance
with applicable law from time to time in effect.
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