Exhibit 3(a)
CERTIFICATE OF INCORPORATION
OF
LUBY'S CAFETERIAS, INC.
(as in effect February 28, 1994)
FIRST. The name of the Corporation is LUBY'S CAFETERIAS, INC.
SECOND. The address of the registered office of the Corporation in
the State of Delaware is Corporation Trust Center, 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 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.
FOURTH. The total number of shares of all classes of stock which the
Corporation shall have authority to issue is one hundred million (100,000,000)
shares of Common Stock of the par value of thirty-two cents ($.32) per share.
FIFTH. The period of the Corporation's duration is perpetual.
SIXTH. (a) Number, Election and Terms of Directors. The business
and affairs of the Corporation shall be managed by a Board of Directors which
shall consist of not less than nine nor more than fifteen persons, who need
not be residents of the State of Delaware or stockholders of the Corporation.
The exact number of directors within the minimum and maximum limitations
specified in the preceding sentence shall be fixed from time to time by the
Board of Directors pursuant to a resolution adopted by a majority of the
entire Board of Directors. The directors shall be divided into three classes,
as nearly equal in number as possible, with the term of office of the first
class to expire at the 1992 Annual Meeting of Stockholders, the term of office
of the second class to expire at the 1993 Annual Meeting of Stockholders and
the term of office of the third class to expire at the 1994 Annual Meeting of
Stockholders. At each Annual Meeting of Stockholders following such initial
classification and election, directors elected to succeed those directors
whose terms expire shall be elected for a term of office to expire at the
third succeeding Annual Meeting of Stockholders after their election.
(b) Newly Created Directorships. A directorship to be filled by
reason of an increase in the number of directors may be filled (i) by election
at an Annual or Special Meeting of Stockholders called for that purpose or
(ii) by the Board of Directors for a term of office continuing only until the
next election of one or more directors by the stockholders; provided that the
Board of Directors may not fill more than two such directorships during the
period between any two successive Annual Meetings of Stockholders.
(c) Vacancies in the Board of Directors. Any vacancies in the
Board of Directors resulting from death, resignation, retirement,
disqualification, removal from office or other cause shall be filled by a
majority vote of the directors then in office, and directors so chosen shall
hold office for a term expiring at the Annual Meeting of Stockholders at which
the term of the class to which they have been elected expires. No decrease
in the number of directors constituting the Board of Directors shall shorten
the term of any incumbent director.
(d) Removal of Directors. Any director, or the entire Board of
Directors, may be removed from office at any time, but only for cause and only
by the affirmative vote of the holders of at least 80% of the voting power of
all of the shares of the Corporation entitled to vote generally in the
election of directors, voting together as a single class.
(e) Amendment, Repeal, etc. Notwithstanding any other
provisions of this Certificate of Incorporation or the By-laws of the
Corporation (and notwithstanding the fact that a lesser percentage may be
specified by law, this Certificate of Incorporation or the By-laws of the
Corporation), the affirmative vote of the holders of 80% or more of the voting
power of the shares of the Corporation then outstanding, voting together as a
single class, shall be required to alter, amend, repeal or adopt any provision
inconsistent with this Article Sixth.
SEVENTH. In furtherance and not in limitation of the powers conferred
by the laws of the State of Delaware, the Board of Directors is expressly
authorized to make, alter, adopt, amend, change or repeal the By-laws of the
Corporation.
EIGHTH. The Corporation reserves the right to amend, alter, change
or repeal any provision contained in this Certificate of Incorporation in the
manner now or hereafter prescribed by the laws of the State of Delaware. All
rights herein conferred are granted subject to this reservation.
NINTH. The Corporation shall have the power to indemnify to the
fullest extent permitted by, and in the manner permissible under, the laws of
the State of Delaware any person made, or threatened to be made, a party to
any action, suit or proceeding, whether criminal, civil, administrative or
investigative, by reason of the fact that he is or was a director, advisory
director or officer of the Corporation, or served another corporation,
partnership, joint venture, trust or other enterprise as a director, advisory
director, officer, employee or agent at the request of the Corporation,
against expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding. The Board of Directors in
its discretion shall have the power on behalf of the Corporation to indemnify
similarly any person, other than a director, advisory director or officer,
made a party to any action, suit or proceeding by reason of the fact that he
is or was an employee or agent of the Corporation. The provisions of this
Article Ninth shall be applicable to persons who have ceased to be directors,
advisory directors, officers, employees or agents of the Corporation and shall
inure to the benefit of their heirs, executors and administrators.
TENTH. Pursuant to section 102(b)(7) (or any successor statute) of
the General Corporation Law of the State of Delaware, the personal liability
of a director to the Corporation or the stockholders of the Corporation for
monetary damages for breach of fiduciary duty is hereby eliminated. The terms
of the preceding sentence, however, shall not eliminate or limit the liability
of a director (i) for any breach of the director's duty of loyalty to the
Corporation or the stockholders of the Corporation, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 (or a successor statute) of the
General Corporation Law of the State of Delaware, or (iv) for any transaction
from which the director derived an improper personal benefit.
ELEVENTH. Section l. Vote Required for Certain Business Combinations.
A. Higher Vote for Certain Business Combinations. In addition to any
affirmative vote required by law or this Certificate of Incorporation, and
except as otherwise expressly provided in Section 2 of this Article:
(i) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (a) any Interested Stockholder (as
hereinafter defined) or (b) any other corporation (whether or not itself an
Interested Stockholder) which is, or after such merger or consolidation would
be, an Affiliate (as hereinafter defined) of an Interested Stockholder; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) to or with
any Interested Stockholder or any Affiliate of any Interested Stockholder of
any assets of the Corporation or any Subsidiary having an aggregate Fair
Market Value of $10,000,000 or more; or
(iii) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of transactions) of any securities
of the Corporation or any Subsidiary to any Interested Stockholder or any
Affiliate of any Interested Stockholder in exchange for cash, securities or
other property (or a combination thereof) having an aggregate Fair Market
Value of $10,000,000 or more; or
(iv) the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation proposed by or on behalf of an Interested
Stockholder or any Affiliate of any Interested Stockholder; or
(v) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any other
transaction with any of its Subsidiaries or any other transaction (whether or
not with or into or otherwise involving an Interested Stockholder) which has
the effect, directly or indirectly, of increasing the proportionate share of
the outstanding shares of any class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or indirectly owned by any
Interested Stockholder or any Affiliate of any Interested Stockholder;
shall require the affirmative vote of the holders of at least 80% of the
voting power of the then outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors (the
"Voting Stock"), voting together as a single class. Such affirmative vote
shall be required notwithstanding the fact that no vote may be required, or
that a lesser percentage may be specified, by law or in any agreement with any
national securities exchange or otherwise.
B. Definition of "Business Combination." The term "Business
Combination" as used in this Article shall mean any transaction which is
referred to in any one or more of clauses (i) through (v) of paragraph A of
this Section 1.
Section 2. When Higher Vote is Not Required. The provisions of Section
I of this Article shall not be applicable to any particular Business
Combination, and such Business Combination shall require only such affirmative
vote as is required by law and any other provision of this Certificate of
Incorporation, if all of the conditions specified in either of the following
paragraphs A and B are met:
A. Approval by Continuing Directors. The Business Combination shall
have been approved by a majority of the Continuing Directors (as hereinafter
defined).
B. Price and Procedure Requirements. All of the following conditions
shall have been met:
(i) The aggregate amount of the cash and the Fair Market Value
(as hereinafter defined) as of the date of the consummation of the Business
Combination of consideration other than cash to be received per share by
holders of Common Stock in such Business Combination shall be at least equal
to the higher of the following:
(a) (if applicable) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting dealers' fees) paid
by the Interested Stockholder for any shares of Common Stock acquired by it
(1) within the two-year period immediately prior to the first public
announcement of the proposal of the Business Combination (the "Announcement
Date") or (2) in the transaction in which it became an Interested Stockholder,
whichever is higher; and
b) The Fair Market Value per share of Common Stock on the
Announcement Date or on the date on which the Interested Stockholder became an
Interested Stockholder (such latter date being referred to in this Article as
the "Determination Date"), whichever is higher.
(ii) The aggregate amount of the cash and the Fair Market Value
as of the date of the consummation of the Business Combination of
consideration other than cash to be received per share by holders of shares of
any other class of outstanding Voting Stock shall be at least equal to the
highest of the following (it being intended that the requirements of this
paragraph B(ii) shall be required to be met with respect to every class of
outstanding Voting Stock, whether or not the Interested Stockholder has
previously acquired any shares of a particular class of Voting Stock):
(a) (if applicable) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting dealers' fees) paid
by the Interested Stockholder for any shares of such class of Voting Stock
acquired by it (1) within the two year period immediately prior to the
Announcement Date or (2) in the transaction in which it became an Interested
Stockholder, whichever is higher;
(b) (if applicable) the highest preferential amount per
share to which the holders of shares of such class of Voting Stock are
entitled in the event of any voluntary or involuntary liquidation, dissolution
or winding up of the Corporation; and
(c) the Fair Market Value per share of such class of Voting
Stock on the Announcement Date or on the Determination Date, whichever is
higher.
(iii) The consideration to be received by holders of a particular
class of outstanding Voting Stock (including Common Stock) shall be in cash or
in the same form as the Interested Stockholder has previously paid for shares
of such class of Voting Stock. If the Interested Stockholder has paid for
shares of any class of Voting Stock with varying forms of consideration, the
form of consideration for such class of Voting Stock shall be either cash or
the form used to acquire the largest number of shares of such class of Voting
Stock previously acquired by it. In the determination of amounts per share
pursuant to subparagraphs (i) and (ii) of this paragraph B, appropriate
adjustment shall be made to reflect any stock dividend, stock split,
combination of shares or similar event.
(iv) After such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business Combination:
(a) there shall have been (1) no reduction in the annual rate of dividends paid
on the Common Stock (except as necessary to reflect any subdivision of the
Common Stock), except as approved by a majority of the Continuing Directors,
and (2) an increase in such annual rate of dividends as necessary to reflect any
reclassification (including any reverse stock split), recapitalization,
reorganization or any similar transaction which has the effect of reducing the
number of outstanding shares of the Common Stock, unless the failure so to
increase such annual rate is approved by a majority of the Continuing
Directors; and (b) such Interested Stockholder shall have not become the
beneficial owner of any additional shares of Voting Stock except as part of
the transaction which results in such Interested Stockholder becoming an
Interested Stockholder.
(v) After such Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder shall not have received the benefit,
directly or indirectly (except proportionately as a stockholder), of any
loans, advances, guarantees, pledges or other financial assistance or any tax
credits or other tax advantages provided by the Corporation, whether in
anticipation of or in connection with such Business Combination or otherwise.
(vi) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the Securities
Exchange Act of 1934 and the rules and regulations thereunder (or any
subsequent provisions replacing such Act, rules or regulations) shall be
mailed to public stockholders of the Corporation at least 30 days prior to the
consummation of such Business Combination (whether or not such proxy or
information statement is required to be mailed pursuant to such Act or
subsequent provisions).
Section 3. Certain Definitions. For the purposes of this Article:
A. A "person" shall mean any individual, firm, corporation or other
entity.
B. "Interested Stockholder" shall mean any person (other than the
Corporation or any Subsidiary) who or which:
(i) is the beneficial owner, directly or indirectly, of more than
10% of the voting power of the outstanding Voting Stock; or
(ii) is an Affiliate of the Corporation and at any time within
the two-year period immediately prior to the date in question was the
beneficial owner, directly or indirectly, of 10% or more of the voting power
of the then outstanding Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to any shares
of Voting Stock which were at any time within the two-year period immediately
prior to the date in question beneficially owned by any Interested
Stockholder, if such assignment or succession shall have occurred in the
course of a transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
C. A person shall be a "beneficial owner" of any Voting Stock:
(i) which such person or any of its Affiliates or Associates (as
hereinafter defined) beneficially owns, directly or indirectly; or
(ii) which such person or any of its Affiliates or Associates has
(a) the right to acquire (whether such right is exercisable immediately or
only after the passage of time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (b) the right to vote pursuant to any
agreement, arrangement or understanding; or
(iii) which are beneficially owned, directly or indirectly, by
any other person with which such person or any of its Affiliates or Associates
has any agreement, arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of Voting Stock.
D. For the purposes of determining whether a person is an Interested
Stockholder pursuant to paragraph B of this Section 3, the number of shares of
Voting Stock deemed to be outstanding shall include shares deemed owned
through application of paragraph C of this Section 3, but shall not include
any other shares of Voting Stock which may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of conversion
rights, warrants or options, or otherwise.
E. "Affiliate" or "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on October 1, 1985.
F. "Subsidiary" means any corporation of which a majority of any
class of equity security is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Interested
Stockholder set forth in paragraph B of this Section 3, the term "Subsidiary"
shall mean only a corporation of which a majority of each class of equity
security is owned, directly or indirectly, by the Corporation.
G. "Continuing Director" means any member of the Board of Directors
of the Corporation (the "Board") who is unaffiliated with the Interested
Stockholder and was a member of the Board prior to the time that the
Interested Stockholder became an Interested Stockholder, and any successor of
a Continuing Director who is unaffiliated with the Interested Stockholder and
is recommended to succeed a Continuing Director by a majority of Continuing
Directors then on the Board.
H. "Fair Market Value" means: (i) in the case of stock, the highest
closing sale price during the 30-day period immediately preceding the date in
question of a share of such stock on the Composite Tape for New York Stock
Exchange-Listed Stocks, or, if such stock is not quoted on the Composite Tape,
on the New York Stock Exchange, or, if such stock is not listed on such
Exchange, on the principal United States securities exchange registered under
the Securities Exchange Act of 1934 on which such stock is listed, or, if such
stock is not listed on any such exchange, the highest closing bid quotation
with respect to a share of such stock during the 30-day period preceding the
date in question on the National Association of Securities Dealers, Inc.
Automated Quotations System or any system then in use, or if no such
quotations are available, the fair market value on the date in question of a
share of such stock as determined by the Board in good faith; and (ii) in the
case of property other than cash or stock, the fair market value of such
property on the date in question as determined by the Board in good faith.
I. In the event of any Business Combination in which the Corporation
survives, the phrase "other consideration to be received" as used in
paragraphs B(i) and B(ii) of Section 2 of this Article shall include the
shares of Common Stock and/or the shares of any other class of outstanding
Voting Stock retained by the holders of such shares.
Section 4. Powers of the Board of Directors. A majority of the directors of
the Corporation shall have the power and duty to determine for the purposes of
this Article, on the basis of information known to them after reasonable
inquiry, (A) whether a person is an Interested Stockholder, (B) the number of
shares of Voting Stock beneficially owned by any person, (C) whether a person
is an Affiliate or Associate of another and (D) whether the assets which are
the subject of any Business Combination have, or the consideration to be
received for the issuance or transfer of securities by the Corporation or any
Subsidiary in any Business Combination has, an aggregate Fair Market Value of
$10,000,000 or more.
Section 5. No Effect on Fiduciary Obligations of Interested Stockholders.
Nothing contained in this Article shall be construed to relieve any Interested
Stockholder from any fiduciary obligation imposed by law.
Section 6. Amendment, Repeal, etc. Notwithstanding any other provisions of
this Certificate of Incorporation or the By-laws of the Corporation (and
notwithstanding the fact that a lesser percentage may be specified by law,
this Certificate of Incorporation or the By-laws of the Corporation), the
affirmative vote of the holders of 80% or more of the voting power of the
shares of the then outstanding Voting Stock, voting together as a single
class, shall be required to alter, amend, repeal or adopt any provision
inconsistent with this Article Eleventh.
TWELFTH. Special meetings of the stockholders of the Corporation may
be called (1) by the President, the Board of Directors, or such other person
or persons as may be authorized in the Corporation's By-laws or (2) by the
holders of at least fifty percent of all the shares of the Corporation
entitled to vote at the proposed special meeting.
THIRTEENTH. 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.
FOURTEENTH. The name and post office address of the incorporator signing
this Certificate of Incorporation is James R. Hale, 112 East Pecan, Suite
2000, San Antonio, Texas 78205.
The undersigned, being the incorporator herein before named, for the
purposes of organizing a corporation pursuant to the General Corporation Law
of the State of Delaware, does make this certificate, hereby declaring and
certifying that this is his act and deed and the facts herein stated are true,
and accordingly has hereunto set his hand this 28th day of October, 1991.
James R. Hale
___________________________
James R. Hale: Incorporator
Exhibit 3(b)
CERTIFICATE OF AMENDMENT TO
CERTIFICATE OF INCORPORATION OF
LUBY'S CAFETERIAS, INC.
LUBY'S CAFETERIAS, INC., a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: That at a meeting of the Board of Directors of Luby's Cafeterias,
Inc., resolutions were duly adopted setting forth a proposed amendment to the
Certificate of Incorporation of said corporation, declaring said amendment to
be advisable and calling a meeting of the stockholders of said corporation for
consideration thereof. The resolution setting forth the proposed amendment is
as follows:
RESOLVED: That the Board of Directors of Luby's Cafeterias, Inc., a
Delaware corporation, proposes and declares advisable that Article Fourth
of the Certificate of Incorporation of Luby's Cafeterias, Inc. be amended
so as to read in its entirety as follows:
"FOURTH: The total number of shares of all classes of stock
which the Corporation shall have authority to issue is one
hundred million (100,000,000) shares of Common Stock of the
par value of thirty two cents ($.32) per share."
SECOND: That thereafter, pursuant to resolution of its Board of
Directors, an annual meeting of the stockholders of said corporation was
duly called and held, upon notice in accordance with Section 222 of 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.
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.
IN WITNESS WHEREOF, said LUBY'S CAFETERIAS, INC. has caused this
certificate to be signed by Ralph Erben, its President, and attested by James R.
Hale, its Secretary, this 13th day of January, 1994.
LUBY'S CAFETERIAS, INC.
Ralph Erben
_______________________
By: Ralph Erben, President
James R. Hale
________________________
ATTEST: James R. Hale, Secretary