Exhibit 3(a)
State of Delaware
Office of the Secretary of State
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "LUBY'S CAFETERIAS, INC.," CHANGING ITS NAME FROM "LUBY'S
CAFETERIAS, INC." TO "LUBY'S, INC." FILED IN THIS OFFICE ON THE ELEVENTH DAY
OF JANUARY, A.D. 1999, AT 10 O'CLOCK A.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
EDWARD J. FREEL
____________________________________
Edward J. Freel, Secretary of State
AUTHENTICATION: 9513495
DATE: 01-11-99
2277358 8100
991010526
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 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.,
(the "Corporation") declares it advisable that Article First of the
Certificate of Incorporation be amended so as to read in its entirety
as follows:
"FIRST: The name of the Corporation is LUBY'S, INC."
AND BE IT FURTHER RESOLVED: That the Board of Directors hereby directs
that such proposed amendment be considered at the 1999 Annual Meeting of
Shareholders of the Corporation.
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 James R. Hale, its Secretary, this 8th day of
January, 1999.
LUBY'S CAFETERIAS, INC.
By: JAMES R. HALE
___________________________
James R. Hale, Secretary
Exhibit 3(b)
CERTIFICATE OF INCORPORATION
OF
LUBY'S, INC.
FIRST. The name of the Corporation is LUBY'S, 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.
(a) 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, altar, 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 1. 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 1
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 affect 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.
/s/James R. Hale
______________________________
James R. Hale, Incorporator