(c) Liquidation. In the event of any liquidation, dissolution or
winding up (either voluntarily or involuntarily) of the Corporation, after
payment shall be made to creditors and holders of any Preferred Stock of the
Corporation that may be outstanding and to any other class or series of
securities that shall rank senior to the Common Stock in right of payment upon a
liquidation, the holders of the Common Stock then outstanding shall be entitled
to receive on a pro rata basis, any and all assets and funds of the Corporation
remaining to be paid or distributed.
Section 3. Preferred Stock. The Preferred Stock may be issued from time to
time in one or more classes or series. The Board of Directors of the Corporation
shall have authority to the fullest extent permitted under the DGCL to adopt by
resolution from time to time one or more Certificates of Designation providing
for the designation of one or more classes or series of Preferred Stock and the
voting powers, whether full or limited or no voting powers, and such
designations, preferences and relative, participating, optional, or other
special rights and qualifications, limitations or restrictions thereof, and to
fix or alter the number of shares comprising any such class or series, subject
to any requirements of the DGCL and this Third Amended and Restated Certificate
of Incorporation, as amended from time to time.
Section 1. Board of Directors. The business and affairs of the Corporation
shall be managed by or under the direction of the Board of Directors. The number
of directors which shall constitute the whole Board of Directors shall be fixed
by the Board of Directors as provided in the By-Laws. The directors shall be
divided into three (3) classes, Class I, Class II and Class III, each class to
be as nearly equal in number as possible. The term of office of each director
shall be until the third annual meeting following his or her election and until
the election and qualification of his or her successor; or until his or her
earlier resignation or removal; provided, however, the directors first serving
as Class I directors shall serve for a term expiring at the annual meeting of
stockholders next following December 31, 2005, the directors first serving as
Class II directors shall serve for a term expiring at the annual meeting of
stockholders next following December 31, 2006, and the directors first serving
as Class III directors shall serve for a term expiring at the annual meeting of
stockholders next following December 31, 2007. Any director may resign at any
time upon notice to the Corporation. Directors need not be stockholders.
Section 2. Vacancy. Vacancies and newly created directorships resulting
from any increase in the authorized number of directors or otherwise may be
filled only by the affirmative vote of a majority of the remaining directors
then in office, even if less than a quorum, or by the sole remaining director,
and the directors so chosen shall hold office for the remainder of the full term
of the director for which the vacancy was created or occurred and until the
election and qualification of his or her successor, or until his or her earlier
resignation or removal.
Section 3. Written Ballot. Elections of directors at an annual or special
meeting of stockholders need not be by written ballot unless and to the extent
that the By-Laws of the Corporation shall otherwise provide.
Section 1. Indemnification. The Corporation, to the fullest extent
permitted by Section 145 of the DGCL, as the same may be amended and
supplemented, may indemnify any and all
persons whom it shall have power to indemnify under said section from and
against any and all of the expenses, liabilities or other matters referred to in
or covered by said section, and the indemnification provided for herein shall
not be deemed exclusive of any other rights to which those indemnified may be
entitled under any by-law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall continue as to a
person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of such a
Section 2. Limitation on Liability. A director of the Corporation shall not
be personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability: (i) for any
breach of the director's duty of loyalty to the Corporation or its stockholders;
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; (iii) under Section 174 of the DGCL;
or (iv) for any transaction from which the director derived an improper personal
benefit. If the DGCL is amended 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 DGCL, as so amended. Any repeal or modification of this
provision shall be prospective only and shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
Existence. The Corporation is to have perpetual existence.
Section 1. No Stockholder Action Without Meeting. Any action required or
permitted to be taken at any annual or special meeting of stockholders may be
taken only upon the vote of the stockholders at an annual or special meeting
duly noticed and called, as provided in the By-Laws of the Corporation, and may
not be taken by a written consent of the stockholders pursuant to the DGCL.
Section 2. Special Meeting of Stockholders. Special meetings of the
stockholders of the Corporation for any purposes may be called only by the Board
of Directors pursuant to a resolution approved by a majority of the then
authorized number of directors or by the Chairman of the Board of Directors.
Special meetings of the stockholders of the Corporation may not be called by any
other person or persons.
Section 1. Amendment of By-Laws. The By-Laws of this corporation may be
amended, altered, modified, or repealed by a resolution adopted by the Board of
Directors or by such vote of the shareholders as is required by this the By-Laws
and any law then applicable.
Section 2. Amendment of Third Amended and Restated Certificate of
Incorporation. Notwithstanding any other provision of this Third Amended and
Restated Certificate of Incorporation, the affirmative vote of at least 66 2/3%
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, shall be required to amend or repeal, or to
adopt any provisions as part of this Third Amended and Restated Certificate of
Incorporation or as part of the Corporation's By-Laws inconsistent with the
purpose and intent of Articles V (Board of Directors), VI (Indemnification;
Limitation of Director Liability), VIII (No Stockholder Action Without Meeting;
Special Meeting of Stockholders) or this Article IX (Amendment of By-Laws and
Amendment of Third Amended and Restated Certificate of Incorporation).
IN WITNESS WHEREOF, JAMES RIVER GROUP, INC. has caused this Certificate to
be executed by an authorized officer as of August 12, 2005.
JAMES RIVER GROUP, INC.
By: /s/ J. Adam Abram
J. Adam Abram,
Chief Executive Officer