Exhibit 99.3
RESTATED CERTIFICATE OF INCORPORATION
OF
[NAME TO BE DETERMINED]
The undersigned, _________________ and
_________________, certify that they are the Vice President and
Secretary, respectively, of CUC International Inc., a
corporation organized and existing under the laws of the State
of Delaware (the "Corporation"), and do hereby further certify
as follows:
FIRST: The name of the Corporation is CUC
International Inc.
SECOND: The name under which the Corporation was
originally incorporated was "Comp-U-Card of America, Inc.," and
the original Certificate of Incorporation of Comp-U-Card of
America, Inc. was filed with the Secretary of State of the
State of Delaware on August 1, 1974.
THIRD: This Restated Certificate of Incorporation
was duly adopted in accordance with Sections 242 and 245 of the
General Corporation Law of the State of Delaware.
FOURTH: The text of the Certificate of Incorporation
of the Corporation as amended hereby is restated to read in its
entirety, as follows:
1. The name of the Corporation is [name to be
determined].
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
2,010,000,000 shares, of which 10,000,000 shall be Preferred
Stock, par value $.01 per share, and 2,000,000,000 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 class-
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es 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
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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:
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(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) Subject to the provisions of the By-Laws, to
designate one or more committees, each committee to
consist of one or more of the directors of the
Corporation. Subject to the provisions of the By-Laws,
the Board of Directors may designate one or more directors
as alternate members of any committee, who shall replace
any absent or disqualified member at any meeting of the
committee in the manner specified in such designation.
Any such committee, to the extent provided in the
resolution of the Board of Directors adopted in accordance
with 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 securi-
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ties 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 stock-
holders 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 statues) 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. Elec-
tions of directors need not be by 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
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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 the 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
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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 or 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
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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:
(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 Cor-
poration 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 Cor-
9
poration 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 recapi-
talization 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:
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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 "An-
nouncement 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)
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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 Combinations: (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
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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
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acquire (whether such right is exercisable
immediately or only after the passage of time),
pursuant to any agreement, arrangement or un
derstanding 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, arrange-
ment 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
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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 Quotation System or any system
then in use, or, if such stock is then listed on an ex-
change, 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 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
15
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
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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.
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