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EXHIBIT 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
SOUTHWESTERN LIFE HOLDINGS, INC.
ARTICLE ONE
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Name
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The name of the corporation is Southwestern Life Holdings, Inc.
(hereinafter referred to as the "Corporation").
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ARTICLE TWO
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Registered Office
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The address of the registered office of the Corporation in the State
of Delaware is 1013 Centre Road, in the City of Dover, County of Kent. The name
of the registered agent of the Corporation at that address is The Prentice-Hall
Corporation System, Inc.
ARTICLE THREE
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Purpose
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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 (the "Delaware General Corporation Law").
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ARTICLE FOUR
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Capital Stock
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4.1 Authorized Shares. The maximum number of shares of capital stock
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that the Corporation is authorized to have issued and outstanding at any one
time is 25,000,000 shares, consisting of: (a) 20,000,000 shares of Common Stock,
par value $0.01 per share ("Common Stock"); and (b) 5,000,000 shares of
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Preferred Stock, par value $0.01 per share ("Preferred Stock").
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4.2 Preferred Stock. Authority is hereby expressly vested in the
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Board of Directors of the Corporation, subject to the provisions of this ARTICLE
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IV and to the limitations prescribed by law, to authorize the issuance from time
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to time of one or more series of Preferred Stock. The authority of the Board of
Directors with respect to each series shall include, but not be limited to, the
determination or fixing of the following by resolution or resolutions adopted by
the affirmative vote of a majority of the total number of the Directors then in
office:
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(1) The designation of such series;
(2) The dividend rate of such series, the conditions and dates upon
which such dividends shall be payable, the relation which such dividends shall
bear to the dividends payable on any other class or classes or series of the
Corporation's capital stock and whether such dividends shall be cumulative or
non-cumulative;
(3) Whether the shares of such series shall be subject to redemption
for cash, property or rights, including securities of any other corporation, by
the Corporation at the option of the Corporation, at the option of the holders
of the shares of such series or upon the happening of a specified event and, if
made subject to any such redemption, the times or events, prices, rates,
adjustments and other terms and conditions of such redemptions;
(4) The terms and amount of any sinking fund provided for the
purchase or redemption of the shares of such series;
(5) Whether or not the shares of such series shall be convertible
into, or exchangeable for, at the option of either the holder or the Corporation
or upon the happening of a specified event, shares of any other class or classes
or of any other series of the same class of the Corporation's capital stock and,
if provision be made for conversion or exchange, the times or events, prices,
rates, adjustments and other terms and conditions of such conversions or
exchanges;
(6) The restrictions, if any, on the issue or reissue of any
additional Preferred Stock;
(7) The rights of the holders of the shares of such series upon the
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation; and
(8) The provisions as to voting, optional and/or other special rights
and preferences, if any, including, without limitation, the right to elect one
or more Directors.
4.3 Common Stock.
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A. Dividends. Except as otherwise provided by the Delaware General
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Corporation Law or this Restated Certificate of Incorporation (the "Restated
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Certificate"), and subject to the rights of holders of any series of Preferred
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Stock, the holders of record of Common Stock shall share ratably in all
dividends payable in cash, stock or otherwise and other distributions, whether
in respect of liquidation or dissolution (voluntary or involuntary) or otherwise
and, are subject to all the powers, rights, privileges, preferences and
priorities of any series of Preferred Stock as provided herein or in any
resolution or resolutions adopted by the Board of Directors pursuant to
authority expressly vested in it by the provisions of Section 4.2 of this
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ARTICLE IV.
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B. Conversion Rights. The Common Stock shall not be convertible
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into, or exchangeable for, shares of any other class or classes or of any other
series of the same of the Corporation's capital stock.
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C. Preemptive Rights. No holder of Common Stock shall have any
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preemptive, subscription, redemption, conversion or sinking fund rights with
respect to the Common Stock, or to any obligations convertible (directly or
indirectly) into stock of the Corporation whether now or hereafter authorized.
D. Voting Rights. Except as otherwise provided by the Delaware
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General Corporation Law, or the Restated 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.
E. Liquidation. In the event of any voluntary or involuntary
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liquidation, dissolution or winding up of the Corporation and after the payment
of any preferential amounts to be distributed to the holders of Preferred Stock,
the remaining assets of the Corporation shall be distributed ratably among the
holders of the Common Stock in proportion to the number of shares held by each.
For purposes of this Section 4.3(E), a consolidation or merger of the
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Corporation or a sale, lease, exchange or transfer of all or substantially all
of the Corporation's assets shall not be deemed to be a liquidation, dissolution
or winding up of the Corporation.
ARTICLE FIVE
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Existence
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The Corporation is to have perpetual existence.
ARTICLE SIX
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By-laws
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In furtherance and not in limitation of the powers conferred
by the Delaware General Corporation Law, the Board of Directors of the
Corporation is expressly authorized to make, alter, amend, change, add to or
repeal the By-laws of the Corporation by the affirmative vote of a majority of
the total number of Directors then in office. Any alteration or repeal of the
By-laws of the Corporation by the stockholders of the Corporation shall require
the affirmative vote of at least a majority of the voting power of the then
outstanding shares of capital stock of the Corporation entitled to vote on such
alteration or repeal, subject to ARTICLE IX hereof and ARTICLE VII of the
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Corporation's By-laws.
ARTICLE SEVEN
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Stockholders and Directors
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7.1 Stockholder Action. Election of Directors need not be by
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written ballot unless the By-laws of the Corporation so provide. Subject to any
rights of holders of any series of Preferred
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Stock, from and after the date on which the Common Stock of the Corporation is
registered pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), (i) any action required or permitted to be taken by the
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stockholders of the Corporation must be effected at an annual or special meeting
of stockholders of the Corporation and may not be effected in lieu thereof by
any consent in writing by such stockholders, (ii) special meetings of
stockholders of the Corporation may be called only by either 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 or by the chief
executive officer of the Corporation and (iii) advance notice of stockholder
nominations of persons for election to the Board of Directors of the Corporation
and of business to be brought before any annual meeting of the stockholders by
the stockholders of the Corporation shall be given in the manner provided in the
By-laws of the Corporation.
7.2 Number of Directors and Term of Office. Subject to any rights
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of holders of any series of Preferred Stock to elect additional Directors
under specified circumstances, the number of Directors which shall constitute
the Board of Directors of the Corporation shall be fixed from time to time in
the manner set forth in the By-laws of the Corporation. The Directors of the
Corporation shall be divided into three classes: Class I, Class II and Class
III. Membership in such classes shall be as nearly equal in number as possible.
The term of office of the initial Class I Directors shall expire at the next
succeeding annual meeting of stockholders, the term of office of the initial
Class II Directors shall expire at the second succeeding annual meeting of
stockholders and the term of office of the initial Class III Directors shall
expire at the third succeeding annual meeting of stockholders, or thereafter
when their respective successors in each case are elected by the stockholders
and qualified, subject however, to prior death, resignation, retirement,
disqualification or removal from office for cause. At each succeeding annual
election of Directors by the stockholders of the Corporation beginning in 2000,
the Directors chosen to succeed those whose terms then expire shall be
identified as being of the same class as the Directors they succeed and shall be
elected for a term expiring at the third succeeding annual election of Directors
by the stockholders of the Corporation, or thereafter when their respective
successors in each case are elected by the stockholders and qualified. If the
number of Directors is changed, any increase or decrease shall be apportioned
among the classes so as to maintain the number of Directors in each class as
nearly equal as possible, and any additional Director of any class elected to
fill a vacancy resulting from an increase in such class shall hold office for a
term that shall coincide with the remaining term of that class, but in no case
shall a decrease in the number of Directors shorten the term of any incumbent
Director.
7.3 Removal and Resignation. No Director may be removed from
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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 of
the Corporation entitled to vote generally in the election of Directors voting
together as a single class; provided, however, that if the holders of any class
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or series of capital stock are entitled by the provisions of this Restated
Certificate (it being understood that any references to this Restated
Certificate shall include any duly authorized certificate of designation) to
elect one or more Directors, such Director or Directors so elected may be
removed without cause only by the vote of the holders of a majority of the
outstanding shares of that class or series entitled to vote. Any Director may
resign at any time upon written notice to the Corporation.
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7.4 Vacancies and Newly Created Directorships. Subject to any rights
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of holders of any series of Preferred Stock to fill such newly created
Directorships or vacancies, any newly created Directorships resulting from any
increase in the authorized number of Directors and any vacancies in the Board of
Directors resulting from death, resignation, disqualification or removal from
office for cause shall, unless otherwise provided by law or by resolution
approved by the affirmative vote of a majority of the total number of Directors
then in office, be filled only by resolution approved by the affirmative vote of
a majority of the total number of Directors then in office. Any Director so
chosen shall hold office until the next election of the class for which such
Director shall have been chosen, and until his successor shall have been duly
elected and qualified, unless he/she shall resign, die, become disqualified or
be removed for cause.
ARTICLE EIGHT
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General Provisions
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8.1 Dividends. The Board of Directors shall have authority
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from time to time to set apart out of any assets of the Corporation otherwise
available for dividends a reserve or reserves as working capital or for any
other purpose or purposes, and to abolish or add to any such reserve or reserves
from time to time as said board may deem to be in the interest of the
Corporation; and said Board shall likewise have power to determine in its
discretion, except as herein otherwise provided, what part of the assets of the
Corporation available for dividends in excess of such reserve or reserves shall
be declared in dividends and paid to the stockholders of the Corporation.
8.2 Issuance of Stock. The shares of all classes of stock of
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the Corporation may be issued by the Corporation from time to time for such
consideration as from time to time may be fixed by the Board of Directors of the
Corporation, provided that shares of stock having a par value shall not be
issued for a consideration less than such par value, as determined by the Board.
At any time, or from time to time, the Corporation may grant rights or options
to purchase from the Corporation any shares of its stock of any class or classes
to run for such period of time, for such consideration, upon such terms and
conditions, and in such form as the Board of Directors may determine. The Board
of Directors shall have authority, as provided by law, to determine that only a
part of the consideration which shall be received by the Corporation for the
shares of its stock which it shall issue from time to time, shall be capital;
provided, however, that, if all the shares issued shall be shares having a par
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value, the amount of the part of such consideration so determined to be capital
shall be equal to the aggregate par value of such shares. The excess, if any, at
any time, of the total net assets of the Corporation over the amount so
determined to be capital, as aforesaid, shall be surplus. All classes of stock
of the Corporation shall be and remain at all times nonassessable.
The Board of Directors is hereby expressly authorized, in its
discretion, in connection with the issuance of any obligations or stock of the
Corporation (but without intending hereby to limit its general power so to do in
other cases), to grant rights or options to purchase stock of the Corporation of
any class upon such terms and during such period as the Board of Directors shall
determine, and to cause such rights to be evidenced by such warrants or other
instruments as it may deem advisable.
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8.3 Inspection of Books and Records. The Board of Directors shall
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have power from time to time to determine to what extent and at what times
and places and under what conditions and regulations the accounts and books of
the Corporation, or any of them, shall be open to the inspection of the
stockholders; and no stockholder shall have any right to inspect any account or
book or document of the Corporation, except as conferred by the laws of the
State of Delaware, unless and until authorized so to do by resolution of the
Board of Directors or of the stockholders of the Corporation.
8.4 Location of Meetings, Books and Records. Except as otherwise
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provided in the By-laws, the stockholders of the Corporation and the Board of
Directors may hold their meetings and have an office or offices outside of the
State of Delaware and, subject to the provisions of the laws of said State, may
keep the books of the Corporation outside of said State at such places as may,
from time to time, be designated by the Board of Directors.
ARTICLE NINE
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Amendments
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The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Restated Certificate in the manner now or
hereinafter prescribed herein and by the laws of the State of Delaware, and all
rights conferred upon stockholders herein are granted subject to this
reservation. Notwithstanding anything contained in this Restated Certificate to
the contrary, Section 4.1, 4.2 and 4.3 of ARTICLE IV, ARTICLE VII, ARTICLE X,
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and this ARTICLE IX of this Restated Certificate shall not be altered, amended
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or repealed and no provision inconsistent therewith shall be adopted without the
affirmative vote of the holders of at least 66 2/3% of the voting power of the
then outstanding shares of capital stock of the Corporation entitled to vote on
such alteration, amendment or repeal, voting together as a single class (other
than any alteration or amendment to Section 4.1 of ARTICLE IV that increases the
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authorized number of shares of Preferred Stock or Common Stock).
ARTICLE TEN
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Liability
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10.1 Limitation of Liability.
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(1) 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 that requires the Corporation to provide narrower
indemnification rights than permitted prior thereto, such amendment shall not
eliminate or reduce the effect of this Section 10.1 in respect of any matter
occurring, or any cause of action, suit or claim that would accrue or arise
prior to such amendment), and except as otherwise provided in the Corporation's
By-laws, 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.
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(2) 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.
10.2 Right to Indemnification. Each person who was or is made a
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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
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the fact that he or she is or was a Director or officer of the Corporation or,
while a Director or officer of the Corporation, is or was serving at the request
of the Corporation as a Director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan (an "indemnitee"),
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whether the basis of such proceeding is alleged action in an official capacity
as a Director or officer or in any other capacity while serving as a Director or
officer, 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 that
requires the Corporation to provide narrower indemnification rights than
permitted prior thereto, such amendment shall not eliminate or reduce the effect
of this Section 10.2 in respect of any matter occurring, or any cause of action,
suit or claim that would accrue or arise prior to such amendment), against all
expense, liability and loss (including attorneys' fees, judgments, fines, excise
exercise 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 or agent and shall inure to the benefit of the indemnitee's heirs,
executors and administrators; provided, however, that, except as provided in
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Section 10.3 of this ARTICLE X with respect to proceedings to enforce rights to
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indemnification, 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 10.2 of
this ARTICLE X shall be a contract right. In addition, to the fullest extent
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permitted by the Delaware General Corporation Law as it now exists or may
hereafter be amended (but, in the case of any such amendment that requires the
Corporation to provide narrower indemnification rights than permitted prior
thereto, such amendment shall not eliminate or reduce the effect of this Section
10.2 in respect of any matter occurring, or any cause of action, suit or claim
that would accrue or arise prior to such amendment), the Corporation shall 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
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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 (and not in any other capacity in which service was or is rendered by
such indemnitee, including, without limitation, service to an employee benefit
plan) shall be made only upon delivery to the Corporation of an undertaking (an
"undertaking"), by or on behalf of such indemnitee, to repay all amounts so
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advanced if it shall ultimately be determined by final judicial decision from
which there is no further right to appeal (a "final adjudication") that such
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indemnitee is not entitled to be indemnified for such expenses under this
Section 10.2 or otherwise. The Corporation may, by action of its Board of
Directors, provide indemnification to employees and agents of the Corporation
with the same or lesser scope and effect as the foregoing indemnification of
Directors and officers.
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10.3 Procedure for Indemnification. Any indemnification of a
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Director or officer of the Corporation or advance of expenses under Section 10.2
of this ARTICLE X shall be made promptly, and in any event within forty-five
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days (or, in the case of an advance of expenses, twenty days), upon the written
request of the Director or officer. If a determination by the Corporation that
the Director or officer is entitled to indemnification pursuant to this ARTICLE
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X is required, and the Corporation fails to respond within sixty days to a
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written request for indemnity, the Corporation shall be deemed to have approved
the request. If the Corporation denies a written request for indemnification or
advance of expenses, in whole or in part, or if payment in full pursuant to such
request is not made within forty-five days (or, in the case of an advance of
expenses, twenty days), the right to indemnification or advances as granted by
this ARTICLE X shall be enforceable by the Director or officer in any court of
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competent jurisdiction. Such person's costs and expenses incurred in connection
with successfully establishing his or her right to indemnification, in whole or
in part, in any such action shall also be indemnified by the Corporation. It
shall be a defense to any such action (other than an action brought to enforce a
claim for the advance of expenses where the undertaking required pursuant to
Section 10.2 of this ARTICLE X, if any, has been tendered to the Corporation)
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that the claimant has not met the standards of conduct which make it permissible
under the Delaware General Corporation Law for the Corporation to indemnify the
claimant for the amount claimed, but the burden of such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct. The procedure for indemnification of other employees and agents for
whom indemnification is provided pursuant to Section 10.2 of this ARTICLE X
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shall be the same procedure set forth in this Section 10.3 for Directors or
officers, unless otherwise set forth in the action of the Board of Directors
providing indemnification for such employee or agent.
10.4 Insurance. The Corporation may purchase and maintain insurance on
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its own behalf and on behalf of any person who is or was a Director, officer,
employee or agent of the Corporation or was serving at the request of the
Corporation as a Director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any expense,
liability or loss asserted against him or her and incurred by him or her in any
such capacity, whether or not the Corporation would have the power to indemnify
such person against such expenses, liability or loss under the Delaware General
Corporation Law.
10.5 Service for Subsidiaries. Any person serving as a Director,
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officer, employee or agent of another corporation, partnership, limited
liability company, joint venture or other enterprise, at least 50% of whose
equity interests are owned by the Corporation (a "subsidiary" for this ARTICLE
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X) shall be conclusively presumed to be serving in such capacity at the request
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of the Corporation.
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10.6 Reliance. Persons who after the date of the adoption of this
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provision become or remain Directors or officers of the Corporation or who,
while a Director or officer of the Corporation, become or remain a Director,
officer, employee or agent of a subsidiary, shall be conclusively presumed to
have relied on the rights to indemnity, advance of expenses and other rights
contained in this ARTICLE X in entering into or continuing such service. The
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rights to indemnification and to the advance of expenses conferred in this
ARTICLE X shall apply to claims made against an indemnitee arising out of acts
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or omissions which occurred or occur both prior and subsequent to the adoption
hereof.
10.7 Non-Exclusivity of Rights. The rights to indemnification
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and to the advance of expenses conferred in this ARTICLE X shall not be
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exclusive of any other right which any person may have or hereafter acquire
under this Restated Certificate or under any statute, by-law, agreement, vote of
stockholders or disinterested Directors or otherwise.
10.8 Merger or Consolidation. For purposes of this ARTICLE X,
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references to the "Corporation" shall include, in addition to the resulting
Corporation, any constituent Corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
Directors, officers and employees or agents, so that any person who is or was a
Director, officer, employee or agent of such constituent Corporation, or is or
was serving at the request of such constituent Corporation as a Director,
officer, employee or agent of another Corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under this ARTICLE X
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with respect to the resulting or surviving Corporation as he or she would have
with respect to such constituent Corporation if its separate existence had
continued.
ARTICLE ELEVEN
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Business Combinations
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The Corporation expressly elects to be governed by Section 203 of the
Delaware General Corporation Law. Notwithstanding the terms of Section 203 of
the Delaware General Corporation Law, Inverness/Phoenix Capital LLC and its
affiliates (the "Inverness Entities"), Vicuna Advisors L.L.C. and its affiliates
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(the "Vicuna Entities"), John Sharpe and any trust or entity established for the
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benefit of John Sharpe or any of his family members (the "Sharpe Entities") and
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Bernard Rapoport ("Rapoport")shall not be deemed at any time and without regard
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to the percentage of voting stock of the Corporation owned by the Inverness
Entities, the Vicuna Entities, the Sharpe Entities or Rapoport to be an
"interested stockholder" as such term is defined in Section 203(c)(5) of the
Delaware General Corporation Law.
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