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CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
JB'S RESTAURANTS, INC.
(Pursuant to Section 242)
Clark D. Jones and Charlotte L. Miller certify that:
1. They are the President and Secretary, respectively of JB's
Restaurants, Inc., a Delaware corporation (the "Company").
2. Article Fourteenth of the Company's Certificate of Incorporation
is amended in full as follows:
FOURTEENTH:
Section 1. Elimination of Certain Liability of Directors. A director of
the corporation shall not be personally liable to the corporation or its
shareholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to
the corporation or its shareholders, (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 Delaware General Corporation Law, or (iv) for
any transaction from which the director derived an improper personal benefit.
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Section 2. Indemnification and Insurance.
(a) Right to Indemnification. The corporation shall indemnify
and hold harmless any person who was or is made a party to or is threatened to
be made a party to or is involved in any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (a "proceeding"), by reason of the fact that he or she, or a
person of whom he or she is the legal representative, is or was a director or
officer of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or
agent or in any other capacity while serving as a director, officer, employee
or agent. The corporation's indemnification hereby shall be to the fullest
extent authorized by the Delaware General Corporation Law, as the same exists
or may hereafter be amended (but, in the case of any amendment, only to the
extent that the amendment permits the corporation to provide broader
indemnification rights than the law permitted the corporation to provide prior
to the amendment), against all expense, liability and loss (including attorneys
fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to
be paid in settlement) reasonably incurred or suffered by the person in
connection therewith and the indemnification shall continue as to a person who
has ceased to be a director, officer, employee or agent and shall inure to the
benefit of his or her heirs, executors and administrators. The right to
indemnification conferred in this Section shall be a contract right and shall
include the right to be paid by the corporation the expenses incurred in
defending any such proceeding in advance of its final disposition, except
that, if the Delaware General Corporation Law requires, the payment of expenses
incurred by a director or officer in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
the person while a director or officer, including, without limitation, service
to an employee benefit plan) in advance of the final disposition of a
proceeding, shall be made only upon delivery to the
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corporation of an undertaking, by or on behalf of the director or officer, to
repay all amounts advanced if it shall ultimately be determined that the
director or officer is not entitled to be indemnified under this Section or
otherwise. The corporation may, by action of its Board of Directors, provide
indemnification to employees and agents of the corporation with the same scope
and effect as the foregoing indemnification of directors and officers.
(b) Right of Claimant to Bring Suit. If a claim under
paragraph (a) of this Section is not paid in full by the corporation within
thirty days after a written claim has been received by the corporation, the
claimant may at any time thereafter bring suit against the corporation to
recover the unpaid amount of the claim and, if successful in whole or in part,
the claimant shall be entitled to be paid also the expense of prosecuting the
claim. It shall be a defense to any action (other than an action brought to
enforce a claim for expenses incurred in defending any proceeding in advance of
its final disposition where the required undertaking, if any is required, has
been tendered to the corporation) that the claimant has not met the standards
of conduct which make it permissible under the Delaware General Corporation Law
for the corporation to indemnify the claimant for the amount claimed, but the
burden of proving such defense shall be on the corporation. Neither the
failure of the corporation (including its Board of Directors, independent legal
counsel or shareholders) to have made a determination prior to the commencement
of the action that indemnification of the claimant is proper in the
circumstances because he or she has met the applicable standard of conduct set
forth in Delaware General Corporation Law, nor an actual determination by the
corporation (including its Board of Directors, independent legal counsel or
shareholders) that the claimant has not met the applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
(c) Non-Exclusivity of Rights. The right to indemnification
and the payment of expenses incurred in defending a proceeding in advance of
its final disposition conferred in this Section shall not be exclusive of any
other right which any person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, bylaw, agreement, vote of
shareholders or disinterested directors or otherwise.
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(d) Insurance. The corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
corporation would have the power to indemnify the person against expense,
liability or loss under the Delaware General Corporation Law.
3. The foregoing Amendment was approved by the Company's Board of
Directors.
4. The foregoing Amendment was approved by the Company's
shareholders at the 1987 Annual Shareholders Meeting on Friday, February 13,
1987 by more than 50% of the number of shares entitled to be voted.
The undersigned hereby certify that they have personal knowledge
that the information set forth above is true.
Date: 2/25/87 /s/ Clark D. Jones
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Clark D. Jones, President
Date: 2/25/87 /s/ Charlotte L. Miller
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Charlotte L. Miller, Secretary