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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
PROASSURANCE CORPORATION
The undersigned, a natural person, for the purpose of organizing a
corporation under the provisions of the General Corporation Law of the State of
Delaware, hereby certifies that:
FIRST. The name of the corporation (hereinafter referred to as the
"Corporation") is ProAssurance Corporation.
SECOND. The address of the registered office of the Corporation in
the State of Delaware is 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of the registered agent of the Corporation at such
address is The Corporation Trust Company.
THIRD. The nature of the business and the objects and purposes
proposed to be transacted, promoted and carried on are to do any or all the
things herein mentioned, as fully and to the same extent as natural persons
might or could do, and in any part of the world, and to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware, as amended. The business and purposes
specified in the foregoing clause shall not be limited or restricted by
reference to, or inference from, the terms of any clause in this Certificate of
Incorporation.
FOURTH.
A. The total number of shares of stock which the Corporation
shall have authority to issue is one hundred fifty million (150,000,000) shares,
divided into one hundred million (100,000,000) shares of Common Stock, par value
$.01 per share (the "Common Stock") and fifty million (50,000,000) shares of
Preferred Stock, par value $.01 per share (the "Preferred Stock") (Common Stock
and Preferred Stock are hereinafter collectively referred to as "Stock"). Each
holder of Common Stock shall be entitled to one vote for each share of Common
Stock held by him or her which has voting power upon the matter in question.
B. The Board of Directors is authorized, subject to limitations
prescribed by law and the provisions of this Article FOURTH, to provide for the
issuance of shares of Preferred Stock from time to time in one or more series as
may be determined by the Board of Directors of the Corporation (the "Board of
Directors"), and by filing a certificate pursuant to the applicable laws of the
State of Delaware, to establish from time to time the number of shares to be
included in each such series, and to fix the designation powers, preferences and
rights of the shares of each such series, and the qualifications, limitations
and restrictions thereof.
The authority of the Board of Directors with respect to each such
series of shares Preferred Stock shall include, but not be limited to,
determination of the following:
(1) The distinctive designation of, and the number of
shares of Preferred
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Stock, which shall include constitute such series, and such number may be
increased (except where otherwise provided by the Board of Directors, but in no
event exceeding the shares of Preferred Stock authorized by this Article FOURTH)
or decreased (but not below the number of shares thereof then outstanding) from
time to time by like action of the Board of Directors;
(2) The rate and time at which, and the terms and
conditions upon which, dividends, if any, on Preferred Stock of such series
shall be paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes or series of
the same or other classes of stock and whether such dividends shall be
cumulative or non-cumulative;
(3) Whether shares of Preferred Stock of such series have
voting rights, in addition to the voting rights provided by law, and if so, the
terms of such voting rights;
(4) The right, if any, of the holders of Preferred Stock
of such series to convert the same into, or exchange the same for shares of any
other class or classes or of any series of the same or any other class or
classes of stock and the terms and conditions of such conversion or exchange,
including provision for adjustment of the conversion rate in such event as the
Board of Directors shall determine;
(5) Whether or not Preferred Stock of such series shall
be subject to redemption, and the redemption price or prices and the time or
times at which, and the terms and conditions upon which, Preferred Stock of such
series may be redeemed;
(6) The rights, if any, of the holders of Preferred Stock
of such series upon the voluntary or involuntary liquidation, dissolution, or
winding up of the Corporation, and the relative rights of priority, if any, of
payment of shares of that series;
(7) Whether Preferred Stock of such series shall have a
sinking fund for the redemption or purchase of such class, and if so, the terms
and amount of such sinking fund.
(8) The rights of the shares of such series of Preferred
Stock in the event of voluntary or involuntary liquidation, dissolution or
winding up of the corporation, and the relative rights of priority, if any, of
payment of shares of that series.
(9) Any other relative rights, preferences and
limitations of such series of Preferred Stock.
The term "Voting Stock" shall mean all stock of the Corporation which by its
terms may be voted on all matters submitted to the stockholders of the
Corporation generally.
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FIFTH. The name and mailing address of the sole incorporator are as
follows:
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Name Mailing Address
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<S> <C>
Jack P. Stephenson, Jr. 420 North 20th Street, Suite 3100
Birmingham, Alabama 35203
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SIXTH. The following provisions are inserted for the management of
the business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
the Board of Directors and stockholders of the Corporation:
A. The business and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors.
B. The Board of Directors of the Corporation shall initially be
comprised of three (3) directors. The number of directors which shall constitute
the whole Board of Directors may be as determined from time to time by
resolution adopted by the affirmative vote of a majority of the Board of
Directors, but shall not be less than three (3) nor more than twenty-four (24)
directors; provided that the number of directors shall not be decreased if such
decrease would have the effect of shortening the term of an incumbent director.
Directors need not be stockholders.
C. The directors shall be divided into three classes, designated
Class I, Class II and Class III, each Class to be as nearly equal in number as
possible. If the number of directors is not evenly divisible by three (3), one
additional director shall be allocated to Class III and, if necessary, to Class
II. The terms of the directors shall expire as follows: Class I directors at the
first annual meeting of stockholders, Class II directors at the second
succeeding annual meeting, and Class III directors at the third succeeding
annual meeting. At each annual meeting the successors to the class of directors
whose term shall then expire shall be elected to hold office until the third
succeeding annual meeting. Any vacancies in the Board of Directors resulting
from any reason, including the death, resignation or removal of a director, and
any directorships resulting from any increase in the number of directors, may be
filled by the Board of Directors, acting by a majority of the directors then in
office, although less than a quorum, and any directors so chosen shall hold
office until the next election of the class for which such directors shall have
been chosen and until their successors have been elected and qualified.
Notwithstanding any other provisions of this Certificate of
Incorporation or the By-Laws of the Corporation (and notwithstanding the fact
that some lesser percentage may be specified by law), a director or the entire
Board of Directors of the Corporation may be removed only for cause and only by
the affirmative vote of the holders of a majority of the outstanding Voting
Stock of the Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) cast at a meeting of the stockholders
called for that purpose.
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D. No action required to be taken or which may be taken at any
annual or special meeting of stockholders of the Corporation, may be taken
without a meeting, without prior notice and without a vote. The power of
stockholders to consent in writing, without a meeting, to the taking of any
action is specifically denied.
SEVENTH. Whenever a compromise or arrangement is proposed
between the Corporation and its creditors or any class of them and/or between
the 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 the Corporation or of any creditor or stockholder thereof or on
application of any receive or receivers appointed for the 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 the
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 the 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 stockholders or class of stockholders of the Corporation, as the
case may be, agree to any compromise or arrangement and to any reorganization of
the 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 the Corporation, as the case may be, and also on the
Corporation.
EIGHTH. No director of the Corporation shall be personally liable to
the Corporation or its stockholders for monetary damages for a breach of a
fiduciary duty as a director, except that a director may be liable (a) for any
breach of the director's duty of loyalty to the Corporation or its stockholders,
(b) for acts and omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (c) for illegal payment of dividends
under Section 174 of the Delaware General Corporation Law, as amended, or any
successor provision thereto, and (d) for any transaction from which the director
derives an improper personal benefit. Neither the repeal or the modification of
this Article EIGHTH nor the adoption of any provisions of the Certificate of
Incorporation or By-Laws of the Corporation inconsistent with the Article EIGHTH
shall adversely affect the rights or protection of any director of the
Corporation with respect to any matter, act or omission occurring, or any cause
of action, suit or claim that, but for this Article EIGHTH, would accrue or
arise, prior to such modification or repeal or adoption of an inconsistent
provision. If the Delaware General Corporation Law is amended to authorize
corporate action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Company shall be eliminated
or limited to the fullest extent permitted by the Delaware General Corporation
Law, as so amended.
NINTH. The Corporation shall be subject to and controlled by the
provisions of Section 203 of the Delaware General Corporation Law, as amended,
or any successor provision thereto.
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TENTH. When considering a merger, consolidation, business combination
(as defined in Section 203(c)(3) of the Delaware General Corporation Law as of
the date hereof) or similar transaction, the Board of Directors, committees of
the Board, individual directors and individual officers may, in considering the
best interests of the Corporation and its stockholders, consider the effects of
any such transaction upon the employees, customers and suppliers of the
Corporation and its subsidiaries, and upon communities in which offices of the
Corporation and its subsidiaries are located, to the extent permitted by
Delaware law.
ELEVENTH.
A. The Board of Directors shall have the power to adopt the
original By-Laws of the Corporation and thereafter shall have concurrent power
with the stockholders as set forth in this Certificate of Incorporation to
amend, change, or add to, or to repeal (collectively, "Amend"), the By-Laws of
the Corporation. The Board of Directors may Amend the By-Laws of the Corporation
upon the affirmative vote of the number of directors which shall constitute, a
majority of the members of the Board of Directors then in office. The
stockholders may Amend the By-Laws of the Corporation only upon the affirmative
vote of the holders of at least eighty percent (80%) of the votes entitled to be
cast by the holders of all outstanding shares of the Voting Stock, voting
together as a single class. Neither the Board of Directors nor the stockholders
may Amend the By-Laws, if the By-Laws as so Amended, would conflict with any
provision of this Certificate of Incorporation, as then in effect.
B. Notwithstanding any other provisions of the Certificate of
Incorporation or the By-Laws of the Corporation (and notwithstanding the fact
that a lesser percentage or separate class vote may be specified by law, this
Certificate of Incorporation or the By-Laws of the Corporation), the affirmative
vote of the holders of not less than eighty percent (80%) of the votes entitled
to be cast by the holders of all outstanding shares of Voting Stock, voting
together as a single class, shall be required to Amend any provision of the
By-Laws inconsistent with Articles SIXTH, EIGHTH, NINTH, TENTH, and ELEVENTH of
this Certificate of Incorporation.
C. Notwithstanding anything contained in this Certificate of
Incorporation or the By-Laws of the Corporation to the contrary (and
notwithstanding the fact that a lesser percentage may be specified by law, in
this Certificate of Incorporation, or in the By-Laws of the Corporation),
neither this Article ELEVENTH nor Articles SIXTH, EIGHTH, NINTH or TENTH, of
this Certificate of Incorporation shall be amended, altered, changed, added to
or repealed, in any respect, nor shall any provision which will either (i) have
the effect of modifying or permitting circumvention of this Article ELEVENTH or
Articles SIXTH, EIGHTH, NINTH or TENTH of this Certificate of Incorporation or
(ii) establish cumulative voting in the election of directors of the
Corporation, be adopted and added to this Certificate of Incorporation, except
upon the affirmative vote of not less than eighty percent (80%) of the shares of
Voting Stock of the Corporation issued and outstanding entitled to vote thereon
and, in the case of any matter on which the holders of shares of any class or
series of capital stock of the Corporation shall be entitled to vote as a class
or series, upon the affirmative vote of not less
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than eighty percent (80%) of each such class or each such series, as the case
may be.
D. Subject to the provisions of this Certificate of
Incorporation, the Corporation reserves the right at any time, and from time to
time, to amend, alter, change or repeal any provision contained in this
Certificate of Incorporation, and other provisions authorized by the laws of the
State of Delaware at the time in force may be added or inserted, in the manner
now or hereafter prescribed by law; and all rights, preferences and privileges
of whatsoever nature conferred upon stockholders, directors or any other persons
whomsoever by and pursuant to this Certificate of Incorporation in its present
form or as hereafter amended are granted subject to the rights reserved in this
Article ELEVENTH.
I, the undersigned, being the incorporator hereinabove named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, as amended, do make this certificate, hereby declaring and
certifying that this is my act and deed and the facts herein stated are true,
and accordingly hereunto set my hand this 18th day of October, 2000.
/s/ Jack P. Stephenson, Jr.
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Jack P. Stephenson, Jr.
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