Exhibit A-1
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 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) 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
ByLaws, 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
good-will 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 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. Elections 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 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 ByLaws. 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 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 ByLaws 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:
(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 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:
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 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 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
Quotation 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 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 ByLaws) 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.