RESTATED
CERTIFICATE OF INCORPORATION
OF
E. W. BLANCH HOLDINGS, INC.
* * * * *
E. W. Blanch Holdings, Inc., a corporation organized and existing under
the laws of the State of Delaware (the "Corporation"), does hereby certify as
follows:
1. The name of the Corporation is: E. W. BLANCH HOLDINGS, INC. The date
on which the original Certificate of Incorporation of the Corporation was filed
with the Secretary of State of the State of Delaware was March 1, 1993.
2: This Restated Certificate of Incorporation restates and amends the
Certificate of Incorporation of the Corporation to provide (a) for a classified
Board of Directors, (b) that a director of the Corporation may only be removed
for cause and only by a vote of the holders of at least fifty percent (50%) of
the outstanding shares of stock of the Corporation entitled to vote in an
election of directors and (c) that the By-Laws of the Corporation may be made,
altered, amended, repealed or
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rescinded only by a majority of the Board of Directors of the Corporation or by
a vote of the holders of at least eighty percent (80%) of the outstanding shares
of stock of the Corporation entitled to vote in an election of directors.
3. The text of the Certificate of Incorporation is amended and restated
hereby to read as herein set forth in full:
FIRST: The name of the corporation (the "Corporation") is: E. W. BLANCH
HOLDINGS. INC.
SECOND: The address of its registered office in. the State of Delaware
is 1209 Orange Street in the City of Wilmington, County of New Castle. The name
of its registered agent at such address is The Corporation Trust Company.
THIRD: The nature of the business or purposes to be conducted or
promoted by 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: The total number of shares of stock which the Corporation shall
have authority to issue is 40,000,000 shares of all classes of stock. Of such
total number of authorized shares of stock. 30,000,000 shares consist of shares
of Common Stock (the "Common Stock"). $. O1 par value per share, and 10,000,000
shares consist of shares of Preferred Stock (the 'Preferred Stock"), $.01 par
value per share. Each issued and outstanding share of Common Stock shall entitle
the holder thereof to one vote. The holders of the Common Stock shall
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have no preemptive rights to subscribe for any shares of any class of stock of
the Corporation whether now or hereafter authorized.
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
the shares of Preferred Stock in one or more series, and by filing a certificate
pursuant to the applicable law 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 or restrictions thereof.
The authority of the Board of Directors with respect to each series
shall include, but not be limited to, determination of the following:
(a) The number of shares constituting that series and the distinctive
designation of that series;
(b) The dividend rate on the shares of that series, whether dividends
shall be cumulative, and, if so, from which date or dates, and the relative
rights of priority, if any, of payment of dividends on shares of that series;
(c) whether that series shall have voting rights, in addition to the
voting rights provided by law, and, if so, the terms of such voting rights;
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(d) Whether that series shall have conversion privileges, and
if so, the terms and conditions of such conversion, including provision for
adjustment of the conversion rate in such events as the Board of Directors shall
determine;
(e) Whether or not the shares of that series shall be
redeemable, and, if so, the terms and conditions of such redemption, including
the date or date upon or after which they shall be redeemable, and the amount
per share payable in case of redemption, which amount may vary under different
conditions and at different redemption dates;
(f) whether that series shall have a sinking fund for the
redemption or purchase of shares of that series, and, if so, the terms and
amount of such sinking fund;
(g) The rights of the shares of that series 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; and
(h) Any other relative rights, preferences and limitations of
that series.
All accrued dividends on outstanding shares of all series of Preferred
Stock shall be paid or declared and set apart for payment and all required
redemptions of all series of Preferred Stock shall be made before (i) any
dividends shall be paid or declared and set apart for payment on the shares of
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Common Stock or (ii) any shares of Common stock shall be purchased or otherwise
acquired. by the Corporation.
The designations, powers, preferences and relative rights of the shares
of each series of Preferred Stock and the qualifications, limitations and
restrictions thereof, may, to the extent permitted by law, be similar to or
differ from those of any other series.
If upon any voluntary of involuntary liquidation, dissolution or
winding up of the Corporation, the assets available for distribution to holders
of shares of Preferred Stock of all series shall be insufficient to pay such
holders the full preferential amount to which they are entitled, then such
assets shall be distributed ratably among the shares of all series of Preferred
Stock in accordance with the respective preferential amounts (including unpaid
cumulative dividends, if any) payable with respect thereto.
FIFTH: The name and mailing address of the incorporator is as follows:
Patricia E. Torrente, Esq.
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
SIXTH: The number of directors constituting the entire Board of
Directors shall be as set forth in the by-laws of Corporation: provided,
however, that the number of directors constituting the entire Board of Directors
shall initially be
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three (3) until otherwise fixed pursuant to the by-laws. The name and mailing
addresses of the persons who are to serve as directors of the Corporation until
the first annual meeting of stockholders is held (the "Initial Annual Meeting")
or until their successors are elected and qualify are as follows:
Name Address
Edgar W. Blanch, Jr. 3500 West 80th Street
Minneapolis, Minnesota 55431
Michael W. Cashman, Sr. 3500 West 80th Street
Minneapolis, Minnesota 55431
Frank S. Wilkinson 3500 West 80th Street
Minneapolis, Minnesota 55431
SEVENTH: The Board of Directors of the Corporation shall be divided
into three classes. Class I, Class II and Class III, as nearly equal in number
as the total number of directors constituting the entire Board of Directors
permits. The term of one class of directors shall expire each year, Directors of
Class I shall be elected to the Board of Directors for a term expiring at the
initial Annual Meeting, directors of Class 11 shall be elected to the Board of
Directors for a term expiring at the next succeeding annual meeting of
stockholders and directors of Class III shall be elected to the Board of
Directors for a term expiring at the second succeeding annual meeting of
stockholders. At each annual meeting of stockholders, the directors chosen to
succeed those whose terms are expiring shall be identified as being of the same
class as the directors whom they succeed and shall be elected for a term
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expiring at the time of the third succeeding annual meeting of stockholders, or
thereafter in each case when their respective successors are elected and
qualified.
Subject to any rights of holders of one or more series of Preferred
Stock to elect directors under certain circumstances, any vacancies in the Board
of Directors for any reason, 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 in each case until his
respective successor shall be elected and qualified. If the number of directors
constituting the entire Board of Directors is changed, any increase or decrease
shall be apportioned among the classes by resolution of the Board of Directors
so as to maintain the number of directors in each class as nearly equal as
possible, but in no case shall a decrease in the number of directors shorten the
term of any incumbent director.
EIGHTH: Subject to any rights of holders of one or more series of
Preferred Stock, a director of the Corporation may be removed from office only
for cause and only by vote of the holders of at least fifty percent (50%) of the
outstanding shares of stock of the Corporation entitled to vote in an election
of directors.
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NINTH: The by-laws of the Corporation may be made, altered, amended,
repealed or rescinded only by a majority of the entire Hoard of Directors or by
the vote of holders of at least eighty percent (80%) of the outstanding shares
of stock of the Corporation entitled to vote in an election of directors.
TENTH: 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 stockholders 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 a consequence of such compromise or
arrangement, the said
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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 stockholders or class of
stockholders of this corporation, as the case may be, and also on this
Corporation.
ELEVENTH: Any action required or permitted to be taken by the
stockholders of the Corporation must be effected at an annual or special meeting
of stockholders of the Corporation and may not be effected by any consent in
writing by such stockholders.
TWELFTH: Elections of directors need not be by written ballot.
THIRTEENTH: (a) The Corporation shall indemnify to the fullest extent
permitted under and in accordance with the laws of the State of Delaware any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative by reason of the fact that he is or
was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, trustee,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit
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or proceeding if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Corporation, and with
respect to any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful.
(b) Expenses (including attorney's fees) incurred in defending any
civil, criminal, administrative or investigative action, suit or proceeding
shall (in the case of any action, suit or proceeding against a director of the
Corporation) or may (in the case of any action, suit or proceeding against an
officer, trustee, employee or agent) be paid by the Corporation in advance of
the final disposition of such action, suit or proceeding as authorized by the
Board upon receipt of an undertaking by or on behalf of the indemnified person
to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as authorized in this Paragraph.
(c) The indemnification and other rights set forth in this Paragraph
shall not be exclusive of any provisions with respect thereto in the by-laws or
any other contract or agreement between the Corporation and any officer,
director, employer or agent of the Corporation.
(d) Neither the amendment nor repeal of this paragraph 13, subparagraph
(a), (b) or (c), nor the adoption of any provision of this Certificate of
Incorporation inconsistent with
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this paragraph 13, subparagraph (a), (b) or (c), shall eliminate or reduce the
effect of this paragraph 13, subparagraphs (a), (b) and (c), in respect of any
matter occurring before such amendment, repeal or adoption of an inconsistent
provision or in respect of any cause of action, suit or claim relating to any
such matter which would have given rise to a right of indemnification or right
to receive expenses pursuant to this paragraph 13, subparagraph (a), (b) or (c),
if such provision had not been so amended or repealed or if a provision
inconsistent therewith had not been so adopted.
(e) 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 (A) shall be liable
under section 174 of the General Corporation Law of the State of Delaware or any
amendment thereto or successor provision thereto, or (8) shall be liable by
reason that, in addition to any and all other requirements for liability, he:
(i) shall have breached his 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.
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If the General Corporation Law of the State of Delaware is amended
after the date hereof to authorize corporate action further eliminating or
limiting the personal liability of directors, then the liability of a director
of the Corporation shall be eliminated or limited to the fullest extent
permitted by the General Corporation Law of the State of Delaware, as so
amended.
4. This Restated Certificate of Incorporation was duly adopted by
unanimous written consent of the stockholders in accordance with Sections 228,
242 and 245 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
executed on its behalf by Edgar W. Blanch, Jr., its Chairman of the Board of
Directors and Chief Executive officer, and attested by Robert M. Benjamin, its
Secretary, on this 15th day of April, 1993.
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Edgar W. Blanch, Jr.
Chairman of the Board of Directors and
Chief Executive Officer
Attest:
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Robert M. Benjamin
Secretary
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E. W. BLANCH HOLDINGS, INC.
CERTIFICATE OF AMENDMENT
OF CERTIFICATE OF INCORPORATION
E. W. Blanch Holdings, Inc., a corporation organized and existing under
the laws of the State of Delaware ("the Corporation"), does hereby certify as
follows:
FIRST: That at a regular meeting of the Board of Directors of E. W. Blanch
Holdings, Inc. held on July 22, 1999, resolutions were duly adopted setting
forth a proposed amendment of the Certificate of Incorporation of said
Corporation, declaring said amendment to be advisable and calling for the
resolution to be considered at the next annual meeting of the stockholders of
the Corporation. The resolution setting forth the proposed amendment is as
follows:
RESOLVED, That Article Four, Paragraph 1 of the Restated Certificate of
Incorporation of this Corporation be amended to read as follows:
The total number of shares of stock which the Corporation shall
have authority to issue is 70,000,000 shares of all classes of
stock. Of such total number of authorized shares of stock,
60,000,000 shares consist of shares of Common Stock (the
"Common Stock"), $.01 par value per share, and 10,000,000
shares consist of shares of Preferred Stock (the "Preferred
Stock"), $.01 par value per share. Each issued and outstanding
share of Common Stock shall entitle the holder thereof to one
vote. The holders of the Common Stock shall have no preemptive
rights to subscribe for any shares of any class of stock of the
Corporation whether now or hereafter authorized.
SECOND: That thereafter, pursuant to the resolution of its Board of Directors,
the annual meeting of the stockholders of said corporation was duly called and
held on April 27, 2000, pursuant to notice in accordance with the General
Corporation Law of the State of Delaware at which meeting the necessary number
of shares as required by statute were voted in favor of the amendment.
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THIRD: That said amendment was duly adopted in accordance with the provisions of
Section 242 of the General Corporation Law of the State of Delaware.
FOURTH: That the capital of said corporation shall not be reduced under or by
reason of said amendment.
IN WITNESS WHEREOF, SAID E. W. BLANCH HOLDINGS, INC. has caused this certificate
to be signed by DANIEL P. O'KEEFE, an Authorized Officer, this 17th day of JUNE,
2000.
BY:
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TITLE: SECRETARY
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NAME: DANIEL P. O'KEEFE
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