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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
of
USFS HAWTHORN, INC.
The undersigned incorporator, in order to form a corporation under the
General Corporation Law of the State of Delaware (the "General Corporation Law")
certifies as follows:
1. Name. The name of the corporation USFS Hawthorn, Inc. (the
"Corporation").
2. Address; Registered Office and Agent. The address of the
Corporation's registered office is 1209 Orange Street, Wilmington, New Castle
County, State of Delaware; and its registered agent at such address is The
Corporation Trust Company.
3. Purposes. 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.
4. Number and Designation of Shares of Capital Stock. The total
number of shares of all classes of stock that the Corporation shall have
authority to issue is Thirty-Six Million (36,000,000), of which (a) Thirty-Five
Million (35,000,000) shall be shares of Common Stock, par value $.01 per share,
and (b) One Million (1,000,000) shall be shares of preferred stock, par value
$.01 per share (the "Preferred Stock").
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4.1 Common Stock. The common stock, par value $.01 per
share, shall be divided into Class A Common Stock and Class B Common Stock.
There shall be Thirty Million (30,000,000) shares of Class A Common Stock and
Five Million (5,000,000) shares of Class B Common Stock (the Class A Common
Stock and Class B Common Stock are sometimes collectively referred to herein as
the "Common Stock"). All shares of Common Stock will be identical and will
entitle the holders thereof to the same rights and privileges, except as
otherwise provided herein.
(a) Voting Rights. Except as otherwise set forth herein or
as otherwise required by law, in all matters, every holder of Class A Common
Stock shall be entitled to one (1) vote in person or by proxy for each share of
Class A Common Stock standing in such holder's name on the transfer books of the
Corporation and every holder of Class B Common Stock shall be entitled to ten
(10) votes in person or by proxy for each share of Class B Common Stock standing
in such holder's name on the transfer books of the Corporation. Holders of
Common Stock shall not have cumulative voting rights. Except as otherwise
provided herein or required by law, the holders of Class A Common Stock and
Class B Common Stock shall vote together as a single class on all matters. The
number of authorized shares of any class or classes of stock may be increased or
decreased (but not below the number of shares thereof then outstanding) by the
affirmative vote of holders of a majority of the voting power of the Common
Stock of the Corporation irrespective of the provisions of Section 242(b)(2) of
Delaware Law.
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(b) Dividends. Subject to the rights of holders of
Preferred Stock, and subject to any other provisions of this Certificate of
Incorporation, as amended from time to time, holders of Class A Common Stock and
Class B Common Stock shall be entitled to receive such dividends and other
distributions in cash, property or shares of stock of the Corporation as may be
declared thereon by the Board of Directors of the Corporation (the "Board of
Directors") from time to time out of assets or funds of the Corporation legally
available therefor. Shares of Class A Common Stock and Class B Common Stock will
rank on a par with each other as to dividends. No dividend in cash, property or
shares of stock of the Corporation may be declared and paid on any shares of
Common Stock unless a dividend of the same character (i.e., cash, property or
shares of stock of the Corporation) is simultaneously declared and paid on all
Common Stock, except as set forth in the sentence immediately following. If
stock dividends are paid on shares of Common Stock, then the dividends paid with
respect to (i) the Class A Common Stock shall be paid with shares of Class A
Common Stock and (ii) the Class B Common Stock shall be paid with shares of
Class B Common Stock. In the case of dividends or other distributions consisting
of other voting securities of the Corporation, the Corporation shall declare and
pay such dividends in two separate classes of such voting securities, identical
in all respects, except that the voting rights of each such security paid to the
holders of Class A Common Stock shall be one-tenth of the voting rights of each
such security paid to the holders of Class B Common Stock, and such security
paid to the holders of Class B Common Stock shall convert into the security paid
to the holders of Class A Common Stock upon the same terms
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and conditions applicable to the Class B Common Stock. In the case of dividends
or other distributions consisting of securities convertible into, or
exchangeable for, voting securities of the Corporation, the Corporation shall
provide that such convertible or exchangeable securities and the underlying
securities be identical in all respects (including, without limitation, the
conversion or exchange rate), except that the voting rights for the underlying
securities of the convertible or exchangeable security paid to the holders of
Class A Common Stock shall be one-tenth of the voting rights of each underlying
security of the convertible or exchangeable security paid to the holders of the
Class B Common Stock, and such underlying securities paid to the holders of the
Class B Common Stock shall convert into the underlying securities paid to the
holders of Class A Common Stock upon the same terms and conditions applicable to
the Class B Common Stock. The rate per share of each share dividend declared and
paid on the Class A Common Stock shall be identical to the simultaneous dividend
per share declared and paid on the Class B Common Stock. No offering of rights
to subscribe for shares of capital stock may be made to holders of Class A
Common Stock or Class B Common Stock unless an identical offering is made
simultaneously to the holders of the other class, except that if the offering is
of rights to subscribe for shares of Common Stock, the holders of the Class A
Common Stock shall be offered the right to subscribe for shares of Class A
Common Stock and the holders of Class B Common Stock shall be offered the right
to subscribe for shares of Class B Common Stock. All such rights offerings shall
offer the respective holders of Class A Common Stock and Class B Common Stock
the right to subscribe at the same rate per share.
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(c) Liquidation Rights, Merger, Etc. In the event of any
dissolution, liquidation or winding up of the affairs of the Corporation,
whether voluntary or involuntary, after payment or provision for payment of the
debts and other liabilities of the Corporation and after making provision for
the holders of each series of Preferred Stock, if any, the remaining assets and
funds of the Corporation, if any, shall be divided among and paid ratably to the
holders of the Class A Common Stock and the Class B Common Stock treated as a
single class. For purposes of this Section 4.1(c), a merger or consolidation of
the Corporation with or into any other corporation shall not constitute a
dissolution, liquidation or winding up of the affairs of the Corporation. In the
event of any merger or consolidation of the Corporation with or into any other
corporation pursuant to which shares of Class A Common Stock and Class B Common
Stock are converted into other securities, cash or other property, the shares of
Class A Common Stock and Class B Common Stock shall be converted into the
identical consideration at the same rate per share, except that any voting
securities into which Class B Common Stock shall be converted shall have ten
(10) times the voting power of any otherwise identical securities into which
Class A Common Stock is converted, unless the holders of a majority of the
shares of each such class shall have approved such merger or consolidation.
(d) Conversion Rights of Class B Common Stock.
(i) Optional Conversion. Subject to and upon
compliance with the provisions of this Section 4.1(d), each holder of shares of
Class B Common Stock shall be entitled to convert, at any time and from time to
time, any and all of the shares of such holder's Class B Common Stock, on a
one-for-
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one basis, into shares of Class A Common Stock. Each conversion of shares of
Class B Common Stock into shares of Class A Common Stock pursuant to this
Section 4.1(d) shall be effected by the surrender of the certificate or
certificates representing the shares to be converted (the "Converting Shares")
at the principal office of the Corporation (or such other office or agency of
the Corporation as the Corporation may designate by written notice to the
holders of Class B Common Stock) at any time during its usual business hours,
together with written notice by the holder of such Converting Shares, stating
that such holder desires to convert the Converting Shares, or a stated number of
the shares represented by such certificate or certificates, into an equal number
of shares of Class A Common Stock (the "Converted Shares"). Such notice shall
also state the name or names (with addresses) and denominations in which the
certificate or certificates for Converted Shares are to be issued and shall
include instructions for the delivery thereof. Promptly after such surrender and
the receipt of such written notice, the Corporation will issue and deliver in
accordance with the surrendering holder's instructions the certificate or
certificates evidencing the Converted Shares issuable upon such conversion, and
the Corporation will deliver to the converting holder a certificate or
certificates (which shall contain such legends, if any, as were set forth on the
surrendered certificate or certificates) representing any shares that are
represented by the certificate or certificates that were delivered to the
Corporation in connection with such conversion, but which were not converted.
Such conversion, to the extent permitted by law, shall be deemed to have been
effected as of the close of business on the date on which (A) such certificate
or certificates shall have been surrendered, (B) such notice shall have been
received by
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the Corporation and (C) any payment required pursuant to Section 4.1(f) shall
have been made, and at such time the rights of the holder of the Converting
Shares as such holder shall cease and the person or persons in whose name or
names the certificate or certificates for the Converted Shares are to be issued
upon such conversion shall be deemed to have become the holder or holders of
record of the Converted Shares. Upon issuance of shares in accordance with this
Section 4.1(d), such Converted Shares shall be deemed to be duly authorized,
validly issued, fully paid and non-assessable. All Converting Shares shall be
retired and canceled.
(ii) Automatic Conversion. Except as otherwise provided
in the following paragraph, each share of Class B Common Stock shall
automatically convert into one (1) share of Class A Common Stock upon the
transfer (including any transfer by operation of law, including to any estate of
a holder thereof) of such share, effective on the date on which a certificate
representing such share is presented for transfer on the books of the
Corporation. As promptly as practicable following the surrender for transfer of
a certificate representing shares of Class B Common Stock and the payment in
cash of any amount required by the provisions of Section 4.1(f), the Corporation
will deliver or cause to be delivered a certificate or certificates representing
the number of full shares of Class A Common Stock issuable upon such transfer
and automatic conversion, issued in such name or names as such holder may
direct. Such automatic conversion shall be deemed to have been effected
immediately prior to the close of business on the date of transfer. Upon the
date any automatic conversion under this Section 4.1(d)(ii), all rights of the
holder of the transferred shares of Class B Common Stock shall cease, and the
new owner or
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owners of such shares shall be treated for all purposes as having become the
record holder or holders of an equivalent number of shares of Class A Common
Stock.
The foregoing provision for automatic conversion shall not apply to any
transfer by a holder of Class B Common Stock (other than by will or through
intestate succession) to any immediate family member (which shall mean, with
respect to any person, such person's spouse, parents, children and grandchildren
and the spouse of such person's children and grandchildren) of such holder or to
any trust or partnership of which all the beneficiaries or partners, as the case
may be, are such holder and/or an immediate family member of such holder,
provided that the transferee of such shares grants the exclusive power to vote
such shares to the person who had such right prior to such transfer.
Shares of Class B Common Stock shall be registered in the names of the
beneficial owners thereof and not in "street" or "nominee" name. For this
purpose, a "beneficial owner" of any shares of Class B Common Stock shall mean a
person who, or an entity which, possesses the power, either singly or jointly,
to direct the voting of such shares.
(iii) Reservation of Shares. The Corporation shall at
all times reserve and keep available out of its authorized but unissued shares
of Class A Common Stock, solely for the purpose of issuance upon the conversion
of shares of Class B Common Stock, such number of shares of such class as are
then issuable upon the conversion of all outstanding shares of Class B Common
Stock; provided, that, nothing contained herein shall be construed to preclude
the Corporation from satisfying its obligations in respect of the conversion of
the
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outstanding shares of Class B Common Stock by delivery of shares of Class A
Common Stock held in the treasury of the Corporation. The Corporation covenants
that if any shares of Class A Common Stock required registration with or
approval of any governmental authority under any federal or state law before
such shares of Class A Common Stock may be issued upon conversion, the
Corporation will use reasonable efforts to cause such shares to be duly
registered or approved, as the case may be. The Corporation will use its
reasonable efforts to list the shares of Class A Common Stock required to be
delivered upon conversion prior to such delivery upon each national securities
exchange (including, if applicable, The NASDAQ Stock Market) upon which the
outstanding Class A Common Stock is listed or quoted at the time of such
delivery. The Corporation covenants that all shares of Class A Common Stock that
shall be issued upon conversion of the shares of fully paid and nonassessable
Class B Common Stock will, upon issue, be fully paid and nonassessable.
(e) Stock Splits, Adjustments. If the Corporation shall in
any manner subdivide (by stock split, stock dividend or otherwise) or combine
(by reverse stock split or otherwise) the outstanding shares of the Class A
Common Stock or the Class B Common Stock, then the outstanding shares of such
other classes of Common Stock will be subdivided or combined, as the case may
be, to the same extent, share and share alike, and effective provision shall be
made for the protection of the conversion rights hereunder. In case of any
reorganization, reclassification or change of shares of the Common Stock
subsequent to the date hereof (other than a change in par value or from par to
no par value as a result of a subdivision or
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combination), or in case of any consolidation of the Corporation with one or
more corporations or a merger of the Corporation with another corporation (other
than a consolidation or merger in which the Corporation is the resulting or
surviving corporation and which does not result in any reclassification or
change of outstanding shares of Common Stock), each holder of a share of Class B
Common Stock shall have the right at any time thereafter, so long as the
conversion right hereunder with respect to such share would exist had such event
not occurred, to convert such share into the kind and amount of shares of stock
and other securities and properties (including cash) receivable upon such
reorganization, reclassification, change, consolidation or merger by a holder of
the number of shares of Class A Common Stock, into which such shares of Class B
Common Stock might have been converted immediately prior to such reorganization,
reclassification, change, consolidation or merger. In the event of such a
reorganization, reclassification, change, consolidation or merger, effective
provision shall be made in the certificate of incorporation of the resulting or
surviving corporation or otherwise for the protection of the conversion rights
of the shares of Class B Common Stock.
(f) No Charge. The issuance of certificates for any shares
of Class A Common Stock upon conversion of shares of Class B Common Stock shall
be made without charge to the holders of such shares for any issuance or
transfer tax in respect thereof or other cost incurred by the Corporation in
connection with such conversion and the related issuance of shares of Class A
Common Stock; provided, however, that the Corporation shall not be required to
pay any tax that may be payable in respect of any transfer involved in the
issuance and delivery of any
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certificate in a name other than that of the holder of the Class B Common Stock
that is converted.
4.2 Preferred Stock.
(a) The shares of Preferred Stock may be issued from time to
time in one or more series of any number of shares, provided that the aggregate
number of shares issued and not canceled of any and all such series shall not
exceed the total number of shares of Preferred Stock hereinabove authorized, and
with distinctive serial designations, all as shall hereafter be stated and
expressed in the resolution or resolutions providing for the issue of such
shares of Preferred Stock from time to time adopted by the Board of Directors
pursuant to authority so to do which is hereby vested in the Board of Directors
or as is stated and expressed in this Certificate of Incorporation. Each series
of shares of Preferred Stock (i) may have such voting powers, full or limited,
or may be without voting powers; provided, however, that, unless holders of at
least seventy-five percent (75%) of the outstanding shares of Class B Common
Stock have approved the issuance of such shares of Preferred Stock, the Board of
Directors may not issue any shares of Preferred Stock that have the right (A) to
vote for the election of directors under ordinary circumstances or (B) under any
circumstances to elect fifty percent (50%) or more of the directors of the
Corporation; (ii) may be subject to redemption at such time or times and at such
prices; (iii) may be entitled to receive dividends (which may be cumulative or
non-cumulative) at such rate or rates, on such conditions and at such times, and
payable in preference to, or in such relation to, the dividends payable on any
other class or classes or series of stock; (iv) may have such rights upon the
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dissolution of, or upon any distribution of the assets of, the Corporation; (v)
may be made 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
shares of the Corporation or any securities of the Corporation at such price or
prices or at such rates of exchange and with such adjustments; (vi) may be
entitled to the benefit of a sinking fund to be applied to the purchase or
redemption of shares of such series in such amount or amounts; (vii) may be
entitled to the benefit of conditions and restrictions upon the creation of
indebtedness of the Corporation or any subsidiary, upon the issue of any
additional shares (including additional shares of such series or of any other
series) and upon the payment of dividends or the making of other distributions
on, and the purchase, redemption or other acquisition by the Corporation or any
subsidiary of, any outstanding shares of the Corporation and (viii) may have
such other relative, participating, optional or other special rights,
qualifications, limitations or restrictions thereof, all as shall be stated in
said resolution or resolutions providing for the issue of such shares of
Preferred Stock. Any of the voting powers, designations, preferences, rights and
qualifications, limitations or restrictions of any such series of Preferred
Stock may be made dependent upon facts ascertainable outside of the resolution
or resolutions providing for the issue of such Preferred Stock adopted by the
Board pursuant to the authority vested in it by this Section 4.2, 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 of Preferred Stock is clearly and expressly set
forth in the resolution or resolutions providing for the issue of such Preferred
Stock. The term "facts" as used
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in the next preceding sentence shall have the meaning given to it in Section
151(a) of the General Corporation Law. Shares of Preferred Stock of any series
that have been redeemed (whether through the operation of a sinking fund or
otherwise) or that if convertible or exchangeable, have been converted into or
exchanged for shares of any other class or classes or for securities of the
Corporation shall have the status of authorized and unissued shares of Preferred
Stock of the same series and may be reissued as a part of the series of which
they were originally a part or may be reclassified and reissued as part of a new
series of shares of Preferred Stock to be created by resolution or resolutions
of the Board or as part of any other series of shares of Preferred Stock, all
subject to the conditions or restrictions on issuance set forth in the
resolution or resolutions adopted by the Board of Directors providing for the
issue of any series of shares of Preferred Stock.
(b) Subject to the provisions of any applicable law or of
the By-laws of the Corporation, as from time to time amended, with respect to
the closing of the transfer books or the fixing of a record date for the
determination of stockholders entitled to vote and except as otherwise provided
by law or by the resolution or resolutions, or by the provisions of this
Certificate of Incorporation, providing for the issue of any series of shares of
Preferred Stock, the holders of out standing shares of Common Stock shall
exclusively possess voting power for the election of directors and for all other
purposes, each holder of record of shares of Common Stock being entitled to the
number of votes established herein for each share of Common Stock standing in
his or her name on the books of the Corporation. Except as otherwise provided by
the resolution or resolutions, or by the provisions of
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this Certificate of Incorporation, providing for the issue of any series of
shares of Preferred Stock, the holders of shares of Common Stock shall be
entitled, to the exclusion of the holders of shares of Preferred Stock of any
and all series, to receive such dividends as from time to time may be declared
by the Board. In the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, after payment shall have been
made to the holders of shares of Preferred Stock of the full amount to which
they shall be entitled pursuant to the resolution or resolutions, or by the
provisions of this Certificate of Incorporation, providing for the issue of any
series of shares of Preferred Stock, the holders of shares of Common Stock shall
be entitled, to the exclusion of the holders of shares of Preferred Stock of any
and all series, to share, ratably according to the number of shares of Common
Stock held by them, in all remaining assets of the Corporation available for
distribution to its stockholders.
4.3 Issuance and Consideration. Subject to the provisions of this
Certificate of Incorporation and except as otherwise provided by law, the stock
of the Corporation, regardless of class, may be issued for such consideration
and for such corporate purposes as the Board may from time to time determine.
5. Name and Mailing Address of Incorporator. The name and mailing
address of the incorporator are: Dalia Litay, Paul, Weiss, Rifkind, Wharton and
Garrison, 1285 Avenue of the Americas, New York, New York 10019-6064.
6. Election of Directors. Members of the Board of Directors may be
elected either by written ballot or by voice vote.
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7. Limitation of Liability. No director of the Corporation shall be
personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, provided that this provision shall
not eliminate or limit the liability of a director (a) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (b) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (c) under Section 174 of the General Corporation Law
or (d) for any transaction from which the director derived any improper personal
benefits. Any repeal or modification of the foregoing provision shall not
adversely affect any right or protection of a director of the Corporation
existing at the time of such repeal or modification.
8. Indemnification.
8.1 To the extent not prohibited by law, the Corporation
shall indemnify any person who is or was made, or threatened to be made, a party
to any threatened, pending or completed action, suit or proceeding (a
"Proceeding"), whether civil, criminal, administrative or investigative,
including, without limitation, an action by or in the right of the Corporation
to procure a judgment in its favor, by reason of the fact that such person, or a
person of whom such person is the legal representative, is or was a director or
officer of the Corporation, or, at the request of the Corporation, is or was
serving as a director or officer of any other corporation or in a capacity with
comparable authority or responsibilities for any partnership, joint venture,
trust, employee benefit plan or other enterprise (an "Other Entity"), against
judgments, fines, penalties, excise taxes, amounts paid in settlement and costs,
charges and expenses (including attorneys' fees, disbursements and other
charges).
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Persons who are not directors or officers of the Corporation (or otherwise
entitled to indemnification pursuant to the preceding sentence) may be similarly
indemnified in respect of service to the Corporation or to an Other Entity at
the request of the Corporation to the extent the Board at any time specifies
that such persons are entitled to the benefits of this Article 8.
8.2 The Corporation shall, from time to time, reimburse or advance
to any director or officer or other person entitled to indemnification hereunder
the funds necessary for payment of expenses, including attorneys' fees and
disbursements, incurred in connection with any Proceeding, in advance of the
final disposition of such Proceeding; provided, however, that, if required by
the General Corporation Law, such expenses incurred by or on behalf of any
director or officer or other person may be paid in advance of the final
disposition of a Proceeding only upon receipt by the Corporation of an
undertaking, by or on behalf of such director or officer (or other person
indemnified hereunder), to repay any such amount so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right of appeal that such director, officer or other person is not
entitled to be indemnified for such expenses.
8.3 The rights to indemnification and reimbursement or advancement
of expenses provided by, or granted pursuant to, this Article 8 shall not be
deemed exclusive of any other rights to which a person seeking indemnification
or reimbursement or advancement of expenses may have or hereafter be entitled
under any statute, this Certificate of Incorporation, the By-laws, any
agreement, any vote of
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stockholders or disinterested directors or otherwise, both as to action in his
or her official capacity and as to action in another capacity while holding such
office.
8.4 The rights to indemnification and reimbursement or advancement
of expenses provided by, or granted pursuant to, this Article 8 shall continue
as to a person who has ceased to be a director or officer (or other person
indemnified hereunder) and shall inure to the benefit of the executors,
administrators, legatees and distributees of such person.
8.5 The Corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of an Other Entity, against any
liability asserted against such person and incurred by such person in any such
capacity, or arising out of such person's status as such, whether or not the
Corporation would have the power to indemnify such person against such liability
under the provisions of this Article 8, the By-laws or under Section 145 of the
General Corporation Law or any other provision of law.
8.6 The provisions of this Article 8 shall be a contract between
the Corporation, on the one hand, and each director and officer who serves in
such capacity at any time while this Article 8 is in effect and any other person
entitled to indemnification hereunder, on the other hand, pursuant to which the
Corporation and each such director, officer, or other person intend to be, and
shall be, legally bound. No repeal or modification of this Article 8 shall
affect any rights or obligations with respect to any state of facts then or
theretofore existing or there-
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after arising or any proceeding theretofore or thereafter brought or threatened
based in whole or in part upon any such state of facts.
8.7 The rights to indemnification and reimbursement or advancement
of expenses provided by, or granted pursuant to, this Article 8 shall be
enforceable by any person entitled to such indemnification or reimbursement or
advancement of expenses in any court of competent jurisdiction. The burden of
proving that such indemnification or reimbursement or advancement of expenses is
not appropriate shall be on the Corporation. Neither the failure of the
Corporation (including its Board, its independent legal counsel and its
stockholders) to have made a determination prior to the commencement of such
action that such indemnification or reimbursement or advancement of expenses is
proper in the circumstances nor an actual determination by the Corporation
(including its Board, its independent legal counsel and its stockholders) that
such person is not entitled to such indemnification or reimbursement or
advancement of expenses shall constitute a defense to the action or create a
presumption that such person is not so entitled. Such a person shall also be
indemnified for any expenses incurred in connection with successfully
establishing his or her right to such indemnification or reimbursement or
advancement of expenses, in whole or in part, in any such proceeding.
8.8 Any director or officer of the Corporation serving in any
capacity (a) another corporation of which a majority of the shares entitled to
vote in the election of its directors is held, directly or indirectly, by the
Corporation or (b) any employee benefit plan of the Corporation or any
corporation referred to in clause (a) shall be deemed to be doing so at the
request of the Corporation.
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8.9 Any person entitled to be indemnified or to reimbursement or
advancement of expenses as a matter of right pursuant to this Article 8 may
elect to have the right to indemnification or reimbursement or advancement of
expenses interpreted on the basis of the applicable law in effect at the time of
the occurrence of the event or events giving rise to the applicable Proceeding,
to the extent permitted by law, or on the basis of the applicable law in effect
at the time such indemnification or reimbursement or advancement of expenses is
sought. Such election shall be made, by a notice in writing to the Corporation,
at the time indemnification or reimbursement or advancement of expenses is
sought; provided, however, that if no such notice is given, the right to
indemnification or reimbursement or advancement of expenses shall be determined
by the law in effect at the time indemnification or reimbursement or advancement
of expenses is sought.
9. Action by Stockholders.
9.1 No Action by Written Consent. The stockholders of the
Corporation entitled to take action on any matter may not consent in writing to
the taking of any such action without a meeting of stockholders duly called and
held in accordance with law and this Certificate of Incorporation and the
By-laws.
9.2 Meetings of Stockholders. The annual meeting of
stockholders for the election of directors and the transaction of such other
business as may be brought before such meeting in accordance with this
Certificate of Incorporation shall be held at such hour and on such business day
in each year as may be determined by resolution adopted by the affirmative vote
of a majority of the entire Board of Directors (the "entire Board"). Except as
otherwise required by law, special meetings of stockholders may be called only
at the direction of the
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Directors by resolution adopted by the affirmative vote of a majority of the
entire Board or by the Chairman or by the Chief Executive Officer. Upon a
written request by the Board of Directors to call a special meeting of
stockholders, the Chairman, the President or the Chief Executive Officer shall
call such meeting. Except as otherwise required by law, stockholders of the
Corporation shall not have the right to request or call a special meeting of the
stockholders. Annual and special meetings of stockholders shall not be called or
held otherwise than as herein provided.
10. Adoption, Amendment and/or Repeal of By-Laws. The Board of
Directors may from time to time adopt, amend or repeal the By-laws; provided,
however, that any By-laws adopted or amended by the Board of Directors may be
amended or repealed, and any By-laws may be adopted, by the stockholders of the
Corporation by vote of a majority of the holders of shares of stock of the
Corporation entitled to vote in the election of directors of the Corporation.
11. Amendment of Certain Articles.
11.1 The provisions set forth in Article Eleven, Article Nine
and Section 4.2 (a)(i) may not be amended, altered, changed or repealed in any
respect unless such amendment, alteration, change or repeal is approved by the
affirmative vote of holders of not less than seventy-five percent (75%) of the
voting power of the outstanding shares of the Corporation entitled to vote
thereon, voting together as a single class. In addition, any proposed amendment,
alteration or change to this Certificate of Incorporation, or repeal of any
provision of this Certificate of Incorporation, which would amend, alter, change
or repeal the powers, preferences or
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special rights of the shares of Class B Common Stock so as to affect them
adversely, the affirmative vote of not less than seventy-five percent (75%) of
the outstanding shares of Class B Common Stock voting as a separate class, shall
be required in addition to the vote otherwise required pursuant to this Article
Eleven.
11.2 Subject to the provisions of Section 11.1 of this Article
Eleven, 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 statute, and all rights conferred on stockholders herein
are granted subject to this reservation.
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WITNESS the signature of this Certificate this 26th of November, 1997.
By: /s/ Dalia Litay
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Dalia Litay