12
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
CUC INTERNATIONAL INC.
* * * *
The undersigned, E. Kirk Shelton, President, and Robert
T. Tucker, Secretary, of CUC International Inc. (the
"Corporation"), do hereby certify under seal of the Corporation
as follows:
FIRST: The name of the Corporation is CUC
INTERNATIONAL INC.
SECOND: The original Certificate of Incorporation of
the Corporation was filed with the Secretary of State of the
State of Delaware on August 1, 1974 under the name COMP-U-CARD OF
AMERICA, INC.
THIRD: This Amended and Restated Certificate of
Incorporation has been duly adopted in accordance with Section
245 of the General Corporation Law of the State of Delaware, by a
unanimous written consent of the Board of Directors of the
Corporation, and adopted by the stockholders in the manner and by
the vote prescribed by Section 242 of the General Corporation Law
of the State of Delaware. It restates and integrates the
provisions of the Corporation's Certificate of Incorporation as
heretofore amended or restated, and further amends paragraph 4
only to provide for the increase in the number of shares which
the Corporation shall have authority to issue.
FOURTH: Upon the filing of this Amended and Restated
Certificate of Incorporation with the Secretary of State, the
Corporation's Certificate of Incorporation, as heretofore amended
or restated, shall be amended and restated so as to read in its
entirety as follows:
1. The name of the Corporation is CUC INTERNATIONAL
INC.
2. The address of its registered office in the State
of Delaware is Corporation Trust Center, 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.
3. The nature of the business or purposes to be
conducted or promoted is:
To engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law
of Delaware.
4. The total number of shares of all classes of stock
which the Corporation shall have authority to issue is
601,000,000 shares, of which 1,000,000 shall be Preferred Stock,
par value $.01 per share, and 600,000,000 shall be Common Stock,
par value $.01 per share. No stockholder shall have any
preemptive right to subscribe to or purchase any additional
shares of stock of the Corporation or any securities convertible
into any such shares or representing a right or option to
purchase any such shares.
The Board of Directors is expressly authorized to
adopt, from time to time, a resolution or resolutions providing
for the issuance of Preferred Stock in one or more series, to fix
the number of shares in each such series (subject to the
aggregate limitations thereon in this Article) and to fix the
designations and the powers, preferences and relative,
participating, optional or other special rights, and the
qualifications, limitations and restrictions, of each such
series. The authority of the Board of Directors with respect to
each such series shall include determination of the following
(which may vary as between the different series of Preferred
Stock):
(a) The number of shares constituting the shares
and the distinctive designation of the series;
(b) The dividend rate on the shares of the series
and the extent, if any, to which dividends thereon shall be
cumulative;
(c) Whether shares of the series shall be
redeemable and, if redeemable, the redemption price payable on
redemption thereof, which price may, but need not, vary according
to the time or circumstances of such redemption;
(d) The amount or amounts payable upon the shares
of the series in the event of voluntary or involuntary
liquidation, dissolution or winding up of the Corporation prior
to any payment or distribution of the assets of the Corporation
to any class or classes of stock of the Corporation ranking
junior to the Preferred Stock;
(e) Whether the shares of the series shall be
entitled to the benefit of a sinking or retirement fund to be
applied to the purchase or redemption of shares of the series
and, if so entitled, the amount of such fund and the manner of
its application, including the price or prices at which the
shares may be redeemed or purchased through the application of
such fund;
(f) Whether the shares of the series shall be
convertible into, or exchangeable for, shares of any other class
or classes or of any other series of the same or any other class
or classes of stock of the Corporation, and, if so convertible or
exchangeable, the conversion price or prices, or the rates of
exchange, and the adjustments thereof, if any, at which such
conversion or exchange may be made, and any other terms and
conditions of such conversion or exchange;
(g) The extent, if any, to which the holders of
shares of the series shall be entitled to vote on any question or
in any proceedings or to be represented at or to receive notice
of any meeting of stockholders of the Corporation;
(h) Whether, and the extent to which, any of the
voting powers, designations, preferences, rights and
qualifications, limitations or restrictions of any such series
may be made dependent upon facts ascertainable outside of the
Certificate of Incorporation or of any amendment thereto, or
outside the resolution or resolutions providing for the issuance
of such series adopted by the Board of Directors, provided that
the manner in which such facts shall operate upon the voting
powers, designations, preferences, rights and qualifications,
limitations or restrictions of such series is clearly and
expressly set forth in the resolution or resolutions providing
for the issuance of such series adopted by the Board of
Directors; and
(i) Any other preferences, privileges and powers
and relative, participating, optional or other special rights and
qualifications, limitations or restrictions of such series, as
the Board of Directors may deem advisable, which shall not affect
adversely any other class or series of Preferred Stock at the
time outstanding and which shall not be inconsistent with the
provisions of this Certificate of Incorporation.
Shares of Common Stock and of Preferred Stock may be issued from
time to time as the Board of Directors shall determine and on
such terms and for such consideration, not less than par value,
as shall be fixed by the Board of Directors. No consent by any
series of Preferred Stock shall be required for the issuance of
any other series of Preferred Stock unless the Board of Directors
in the resolution providing for the issuance of any series of
Preferred Stock expressly provides that such consent shall be
required.
Subject to the rights, if any, of holders of shares of Preferred
Stock from time to time outstanding, dividends may be paid upon
the Common Stock as and when declared by the Board of Directors
out of any funds legally available therefor.
Except as otherwise provided by law or as otherwise expressly
provided in the resolution or resolutions providing for the
issuance of shares of any series of the Preferred Stock, the
holders of shares of the Common Stock shall have the exclusive
right to vote for the election of directors and for all other
purposes. Each holder of shares of Common Stock of the
Corporation entitled at any time to vote shall have one vote for
each share thereof held. Except as otherwise provided with
respect to shares of Preferred Stock authorized from time to time
by the Board of Directors, the exclusive voting power for all
purposes shall be vested in the holders of shares of Common
Stock.
5. The Corporation is to have perpetual existence.
6. In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly
authorized:
(a) To make, alter, or repeal the By-Laws of the
Corporation.
(b) To authorize and cause to be executed
mortgages and liens upon the real and personal property of the
Corporation.
(c) To set apart out of any of the funds of the
Corporation available for dividends a reserve or reserves for any
proper purpose and to abolish any such reserve in the manner in
which it was created.
(d) By a majority of the whole Board of
Directors, to designate one or more committees, each committee to
consist of one or more of the directors of the Corporation. The
Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. The By-Laws
may provide that in the absence or disqualification of a member
of a committee, the member at any meeting or members thereof
present at any meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in
the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board
of Directors, or in the By-Laws of the Corporation, shall have
and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it; but no such committee
shall have the power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders a dissolution of
the Corporation or a revocation of a dissolution, or amending the
By-Laws of the Corporation; and, unless the resolution or By-Laws
expressly so provide, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of
stock.
(e) When and as authorized by the stockholders in
accordance with statute, to sell, lease or exchange all or
substantially all of the property and assets of the Corporation,
including its goodwill and its corporate franchises, upon such
terms and conditions and for such consideration, which may
consist in whole or in part of money or property, including
shares of stock in, and/or other securities of, any other
corporation or corporations, as its Board of Directors shall deem
expedient and for the best interests of the Corporation.
7. 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 to any
reorganization of this Corporation as consequence of such
compromise or arrangement, the said 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 the stockholders
or class of stockholders of this Corporation, as the case may be,
and also on this Corporation.
8. Meetings of stockholders may be held within or
without the State of Delaware, as the By-Laws may provide. The
books of the Corporation may be kept (subject to any provision
contained in the statutes) outside the State of Delaware at such
place or places as may be designated from time to time by the
Board of Directors or in the By-Laws of the Corporation.
Elections of directors need not be written ballot unless the By-
Laws of the Corporation shall so provide.
9. For the management of the business and for the
conduct of the affairs of the Corporation, and in further
creation, definition, limitation and regulation of the power of
the Corporation and of its directors and of its stockholders, it
is further provided:
(a) Election of Directors. Elections of
Directors need not be by written ballot unless the By-Laws of the
Corporation shall so provide.
(b) Number, Election and Terms of Directors. The
number of Directors of the Corporation shall be fixed from time
to time by or pursuant to the By-Laws. The Directors shall be
classified, with respect to the time for which they severally
hold office, into three classes, as nearly equal in number as
possible, as shall be provided in the manner specified in the By-
Laws, one class to hold office initially for a term expiring at
the annual meeting of stockholders to be held in 1986, another
class to hold office initially for a term expiring at the annual
meeting of stockholders to be held in 1987, and another class to
hold office initially for a term expiring at the annual meeting
of stockholders to be held in 1988, with the members of each
class to hold office until their successors are elected and
qualified. At each annual meeting of the stockholders of the
Corporation, the successors to the class of Directors whose term
expires at that meeting shall be elected to hold office for a
term expiring at the annual meeting of stockholders held in the
third year following the year of their election.
(c) Stockholder Nomination of Director
Candidates. Advance notice of nominations for the election of
Directors, other than by the Board of Directors or a Committee
thereof, shall be given in the manner provided in the By-Laws.
(d) Newly Created Directorships and Vacancies.
Newly created directorships resulting from any increase in the
number of Directors and any vacancies on the Board of Directors
resulting from death, resignation, disqualification, removal or
other cause shall be filled solely by the affirmative vote of a
majority of the remaining Directors then in office, even though
less than a quorum of the Board of Directors. Any Director
elected in accordance with the preceding sentence shall hold
office for the remainder of the full term of the class of
Directors for which the new directorship was created or the
vacancy occurred and until such Director's successor shall have
become elected and qualified. No decrease in the number of
Directors constituting the Board of Directors shall shorten the
term of any incumbent Director.
(e) Removal of Directors. Any Director may be
removed from office without cause only by the affirmative vote of
the holders of 80% of the combined voting power of the then
outstanding shares of stock entitled to vote generally in the
election of Directors voting together as a single class.
(f) Stockholder Action. Any action required or
permitted to be taken by the stockholders of the Corporation must
be effected at a duly called annual or special meeting of such
holders and may not be effected by any consent in writing by such
holders. Except as otherwise required by law, special meetings
of stockholders of the Corporation may be called only by the
Chairman of the Board, the President or the Board of Directors
pursuant to a resolution approved by a majority of the entire
Board of Directors.
(g) By-Law Amendments. The Board of Directors
shall have power to make, alter, amend and repeal the By-Laws
(except so far as the By-Laws adopted by the stockholders shall
otherwise provide). Any By-Laws made by the Directors under the
powers conferred hereby may be altered, amended or repealed by
the Directors or by the stockholders. Notwithstanding the
foregoing and anything contained in this Certificate of
Incorporation to the contrary, Sections 1, 2 and 3 of Article II,
and Sections 1, 2 and 3 of Article III of the By-Laws shall not
be altered, amended or repealed and no provision inconsistent
therewith shall be adopted without the affirmative vote of the
holders of at least 80% of the voting power of all the shares of
the Corporation entitled to vote generally in the election of
Directors, voting together as a single class.
(h) Amendment, Repeal. Notwithstanding anything
contained in this Certificate of Incorporation to the contrary,
the affirmative vote of the holders of at least 80% of the voting
power of all shares of the Corporation entitled to vote generally
in the election of Directors, voting together as a single class,
shall be required to alter, amend, adopt any provision
inconsistent with, or repeal, this Article 9 or any provision
hereof.
10. (a) 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 herein in:
(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 million or more; or
(iii) the issuance or transfer by the Corporation
or any Subsidiary (in one transaction or series of
transactions) of any securities of the Corporation
or any subsidiary to any Interested Stockholder or
to 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 million 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 any 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 (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 Security
(as hereinafter defined) 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 (it being understood that for the purposes of
Article 10, each share of the Voting Stock shall have one vote).
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" used in this Article 10 shall mean any
transaction which is referred to in any one or more of clauses
(i) through (v) of Paragraph A hereof.
(b) When Higher Vote is Not Required. The
provisions of Article 10(a) 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 Disinterested Directors. The Business
Combination shall have been approved by majority of the
Disinterested 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
terms of the proposed 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 is
referred to in this Paragraph 10 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 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 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 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 Voting 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 any Voting
Stock with varying forms of consideration, the
form of consideration for such Voting Stock shall
be either cash or the form used to acquire the
largest number of shares of such Voting Stock
previously acquired by it. The price determined
in accordance with paragraphs B(i) and B(ii) of
this Article 10(b) shall be subject to appropriate
adjustment in the event of 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 Disinterested 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 Disinterested
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.
(c) Certain Definitions. For the purpose of this
Article 10:
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 5% or more 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 5% 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 purpose of determining whether a person is
an Interested Stockholder pursuant to paragraph B of this Article
10(c), the number of shares of Voting Stock deemed to be
outstanding shall include shares deemed owned through application
of paragraph C of the Article 10(c) 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 January 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 Article 10(c), 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. "Disinterested Director" means any member of the
Board of Directors who is unaffiliated with the Interested
Stockholder and was a member of the Board of Directors prior to
the time that the Interested Stockholder became an Interested
Stockholder, and any successor of a Disinterested Director who is
unaffiliated with the Interested Stockholder and is recommended
to succeed a Disinterested Director by a majority of
Disinterested Directors then on the Board of Directors.
H. "Fair Market Value" means: (i) in the case of
stock, 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
such stock is then listed on an exchange, the highest closing
sale price during the 30-day period immediately preceding the
date in question of a share of such stock on the Composition Tape
for the 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 or
quoted as aforesaid, the fair market value on the date in
question of a share of such stock as determined by the Board of
Directors 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 of Directors, in good
faith.
I. In the event of any Business Combination in which
the Corporation survives, the phrase "consideration other than
cash to be received" as used in paragraphs B(i) and (ii) of
Article 10(b) shall include the shares of Common Stock retained
by the holders of such shares.
J. "Equity Security" shall have the meaning ascribed
to such term in Section 3(a)(11) of the Securities Exchange Act
of 1934, as in effect on January 1, 1985.
(d) Powers of the Board of Directors. A majority
of the Directors shall have the power and duty to determine for
the purposes of this Article 10 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 Common Stock
beneficially owned by any person, (C) whether a person is an
Affiliate or Associate of another, (D) whether the assets which
are the subject of any Business Combination have, or the
consideration to be received for an issuance of transfer of
securities by the Corporation or any Subsidiary in any Business
Combination has, or an issuance or transfer of securities by the
Corporation or any Subsidiary in any Business Combination has, an
aggregate Fair Market Value of $10 million or more. A majority
of the Directors shall have the further power to interpret all of
the terms and provisions of this Article 10.
(e) No Effect on Fiduciary Obligations of
Interested Shareholders. Nothing contained in this Article 10
shall be construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
(f) Amendment, Repeal, etc. Notwithstanding any
other provisions of this Certificate of Incorporation or the By-
Laws (and notwithstanding the fact that a lesser percentage may
be specified by law, this Certificate of Incorporation or the By-
Laws) the affirmative vote of the holders of 80% or more of the
outstanding Voting Stock, voting together as a single class,
shall be required to amend or repeal, or adopt any provisions
inconsistent with this Article 10.
11. No director of the Corporation shall be personally
liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty by such director as a
director; provided, however, that this Article 11 shall not
eliminate or limit the liability of a director to the extent
provided by applicable law (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 General Corporation Law of the State of Delaware, or
(iv) for any transaction from which the director derived an
improper personal benefit. No amendment to or repeal of this
Article 11 shall apply to or have any effect on the liability or
alleged liability of any director of the Corporation for or with
respect to any acts or omissions of such director occurring prior
to such amendment or repeal.
IN WITNESS WHEREOF, we have signed this certificate and
caused the corporate seal of the corporation to be hereunto
affixed this 5th day of June 1996.
/s/E. Kirk Shelton
E. Kirk Shelton, President
ATTEST:
/s/Robert T. Tucker
Robert T. Tucker, Secretary