Exhibit 3.(I)
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
AMADEUS HOLDERS, INC.
Pursuant to Section 242 and Section 245 of the General Corporation Law
of the State of Delaware, Amadeus Holdings, Inc. has adopted this Amended and
Restated Certificate of Incorporation, restating, integrating and further
amending its Certificate of Incorporation originally filed November 24, 1987 as
Asquith Venture Associates, Inc.
1. NAME: The name of the corporation is National Equities Holdings,
Inc.
2. Registered Office: The address of the registered office of the
corporation in the State of Delaware is 1013 Centre Road, the City of
Wilmington, County of New Castle and its registered agent is Corporate Agents,
Inc.
3. Purpose: The Purpose of the corporation is to engage in any lawful
act or activity for which a corporation may now or hereafter be organized under
the General Corporation Law of the State of Delaware as set forth in Title 8 of
the Delaware Code (the "GCL").
4. Corporate Stock:
a. The total number of shares of stock which the corporation shall
have authority to issue is Fifty Million (50,000,000) shares, consisting of
Forty-nine Million (49,000,000) shares of Common Stock, having a par value of
$.001 per share, and One Million (1,000,000) shares of Preferred Stock, having a
par
value of $.01 per share.
b. Shares of the Preferred Stock of the corporation may be issued
from time to time in one or more classes or series, each of which class or
series shall have such distinctive designation or title as shall be fixed by the
Board of Directors of the corporation (the "Board of Directors") prior to the
issuance of any shares thereof. Each such class or series of Preferred Stock
shall have such voting powers, full or limited, or no voting powers, and such
preferences and relative, participating, optional or other special rights and
such qualifications, limitations or restrictions thereof, as shall be stated in
such resolution or resolutions providing for the issue of such class or series
of Preferred Stock as may be adopted from time to time by the Board of
Directors prior to the issuance of any shares thereof pursuant to the authority
hereby expressly vested in it, all in accordance with the laws of the State of
Delaware. The number of authorized shares of Preferred Stock may be increased or
decreased (but not below the number of shares thereof then outstanding) by the
affirmative vote of the holders of a majority of the Common Stock, without a
vote of the holders of the Preferred Stock, or of any class or series thereof,
unless a vote of any such holders is required pursuant to the certificate or
certificates establishing the class or series of Preferred Stock.
c. The shares of Common Stock and Preferred Stock shall be issued
only as fully paid and non-assessable shares.
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d. Holders of shares of Common Stock shall be entitled to one (1)
vote for each share held of record. Shares of the Common Stock shall have no
preference over any other shares of capital stock of the corporation with
respect to distribution of assets on dissolution or liquidation or with respect
to payment of dividends.
5. Directors:
a. The business and affairs of the corporation shall be managed by
or under the direction of the Board of Directors consisting of not less than
four (4) directors nor more than seven (7) directors, the exact number of
directors to be determined from time to time by resolution adopted by the Board
of Directors. The directors shall be divided into three classes, designated
Class I, Class II and Class III. The term of the initial Class I directors shall
terminate on the date of the 1993 annual meeting of stockholders; the term of
the initial Class II directors shall terminate on the date of the 1994 annual
meeting of stockholders and the term of the initial Class III directors shall
terminate on the date of the 1995 annual meeting of stockholders. At each annual
meeting of stockholders beginning in 1993, successors to the class of Directors
whose term expires at the annual meeting shall be elected for a three-year term.
If the number of directors is changed, any increase or decrease shall be
apportioned among the classes so as to maintain the number of directors in each
class as nearly equal as reasonably possible, and any additional directors
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of any class elected to fill a vacancy resulting from an increase in such class
shall hold office for a term that shall coincide with the remaining term of that
class, but in no case will a decrease in the number of directors shorten the
term of any incumbent directors. A director shall hold office until the annual
meeting for the year in which his term expires and until his successor shall be
elected and shall qualify, subject, however, to prior death, resignation,
retirement, disqualification or removal from office. Any vacancy on the Board of
Directors, howsoever resulting, shall be filled only by a majority of the
directors then in office, even if less than a quorum, or by a sole remaining
director and not by the stockholders. Any director elected to fill a vacancy
shall hold office for a term that shall coincide with the terms of the class to
which such director shall have been elected.
b. Subject to the rights, if any, of the holders of shares of
Preferred Stock then outstanding, any or all of the directors of the corporation
may be removed from office at any time, for cause only, by the affirmative vote
of the holders of seventy-five percent (75%) of the outstanding shares of the
corporation then entitled to vote generally in the election of directors,
considered for purposes of this Paragraph 5(b) as one class.
c. Notwithstanding the foregoing, whenever the holders of any one or
more classes or series of Preferred Stock issued by
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the corporation shall have the right, voting separately by class or series, to
elect directors at an annual or special meeting of stockholders, the election,
term of office, filling of vacancies and other features of such directorships
shall be governed by the terms of this Certificate of Incorporation or the
resolution or resolutions adopted by the Board of Directors pursuant to
Paragraph 4(b) applicable thereto, and such directors so elected shall not be
divided into classes pursuant to this Paragraph 5 unless expressly provided by
such terms.
6. Stockholders:
a. Special Meetings: Special meetings of the stockholders for any
purpose or purposes may be called at any time only by the Board of Directors,
the Chairman of the Board, or by the Chief Executive Officer or President of the
corporation.
b. Meeting Location: Meetings of stockholders may be held within or
without the State of Delaware, as the Bylaws may provide. The books of the
corporation may be kept (subject to any provision contained in the GCL) 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 Bylaws of the corporation.
c. Power of Stockholders: Bylaws may be adopted, amended, or
repealed by the affirmative vote of the holders of
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seventy-five percent (75%) of the outstanding shares of the corporation except
as otherwise provided by law or by this Certificate of Incorporation.
d. Power of Directors: Subject to the rights of stockholders as
provided in Paragraph 6(c) to adopt, amend or repeal Bylaws and except as
otherwise provided in Paragraph 6(c), Bylaws may be adopted, amended or repealed
by the Board of Directors at any regular or special meeting thereof.
e. Election of Directors by Ballot: Elections of directors need not
be by ballot unless a stockholder demands election by ballot at the meeting and
before the voting begins.
f. Vote of Stockholders: Any action required or permitted to be
taken at any annual or special meeting of stockholders may be taken only upon
the vote of the stockholders at an annual or special meeting duly noticed and
called, as provided in the Bylaws of the corporation, and may not be taken by a
written consent of the stockholders pursuant to the GCL unless such action by
written consent shall be authorized by resolution of the Board of Directors.
7. Limitation on Liability of Directors: No director of the corporation
shall be personally liable to the corporation or its
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stockholders for monetary damages for any breach of fiduciary duty by such
director as a director. Notwithstanding the foregoing sentence, a director shall
be liable 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) pursuant to Section 174 of the GCL or (iv) for
any transaction from which the director derived an improper personal benefit. No
amendment to or repeal of this Paragraph 7 shall apply to or have any effect on
the liability or alleged liability of the director of the corporation for or
with respect to any acts or omissions of such director occurring prior to such
amendment or repeal.
8. Indemnity:
a. Right to Indemnification: Each person who was or is made a party
or is threatened to be made a party to or is otherwise involved in any action,
suit or proceeding, whether civil, criminal, administrative or investigative
("proceeding"), by reason of the fact that he or she is or was a director or
officer of this corporation or, while a director or officer of this corporation,
is or was serving at the request of this corporation as a director, officer,
employee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including
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service with respect to employee benefit plans ("indemnitee"), 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, shall be indemnified and held harmless by this
corporation to the fullest extent authorized by the GCL against all expense,
liability and loss (including attorneys' fees, judgments, fines, excise taxes
under the Employee Retirement Income Security Act of 1974 or penalties, and
amounts paid or to be paid in settlement) reasonably incurred or suffered by
indemnitee in connection therewith and such indemnification shall continue as to
any indemnitee who has ceased to be director, officer, employee or agent and
shall inure to the benefit of his or her heirs, executors or administrators;
provided, however, that except as provided in Paragraph 8(d) with respect to
proceedings to enforce rights of indemnification this corporation shall
indemnify any indemnitee seeking indemnification in connection with a proceeding
(or part thereof) initiated by such indemnitee only if such proceeding (or part
thereof) was authorized by the Board of Directors of this corporation. The right
to indemnification conferred in these Paragraphs 8(a) through (e) shall be a
contract right and shall include the right to be paid by this corporation the
expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that, if the GCL requires, the payment of such
expenses incurred by indemnitee in his or her capacity as a director or officer
(and not in any other capacity in
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which service was or is rendered by an indemnitee while a director or officer,
including, without limitation, service with respect to an employee benefit plan)
in advance of the final disposition of such proceeding, shall be made only upon
delivery to this corporation of an undertaking, by or on behalf of such
indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by final judicial determination from which there is no right of
appeal that such indemnitee is not entitled to be indemnified under these
Paragraphs 8(a)-(e) or otherwise. This corporation may, by action of its Board
of Directors, provide indemnification to employees and agents of this
corporation and any subsidiary of this corporation with the same scope and
effect as the foregoing indemnification of directors and officers.
b. 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 these Paragraphs 8(a)-(e) shall not be exclusive of any
right which any person may have or hereafter acquire under any statute,
provision of this Certificate of Incorporation, Bylaw, agreement, vote of
stockholders or disinterested directors or otherwise.
c. 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
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such expense, liability or loss, whether or not the corporation would have the
power to indemnify such person against such expense, liability or loss under the
GCL.
d. Right of Indemnitee to Bring Suit: If a claim under Paragraph (a)
of this Paragraph 8 is not paid in full by the corporation within sixty days
after a written claim has been received by the corporation, except in the case
of a claim for advancement of expenses, in which case the applicable period
shall be twenty days, the indemnitee may at any time thereafter bring suit
against the corporation to recover the unpaid amount of the claim. If successful
in whole or in part in any such suit or in a suit brought by the corporation to
recover an advancement of expenses pursuant to the terms of an undertaking, the
indemnitee shall be entitled to be paid also the expense of prosecuting or
defending such suit. In any suit brought by the indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the indemnitee to
enforce a right to an advancement of expenses) it shall be a defense that the
indemnitee has not met the applicable standard of conduct set forth in the GCL,
and, in any suit by the corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the corporation shall be entitled to
recover such expenses upon a final adjudication that the indemnitee has not met
the applicable standard of conduct set forth in the CGL. Neither the failure of
the corporation (including its Board of Directors, independent legal counsel, or
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its stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the GCL, nor an actual determination by the corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the indemnitee
has not met such applicable standard of conduct, shall create a presumption that
the indemnitee, has not met the applicable standard of conduct or, in the case
of such a suit brought by the indemnitee, by a defense to such suit. In any suit
brought by the indemnitee to enforce a right hereunder, or by the corporation to
recover an advancement of expenses pursuant to the terms of an undertaking, the
burden of proving that the indemnitee is not entitled to be indemnified or to
such advancement of expenses under this Paragraph 8(d) or otherwise shall be on
the corporation.
e. In any suit or proceeding with respect to the corporation's
refusal to grant indemnification, (i) the corporation shall conclusively be
deemed to have acted in good faith and to have fully complied with any implied
covenant of good faith and fair dealing unless the indemnitee affirmatively
proves by clear and convincing evidence that the corporation acted or omitted to
act without any reasonable basis; and (ii) no indemnitee shall be entitled
hereunder or otherwise to consequential damages, including without limitation,
damages for inconvenience, emotional distress, lost profits, injury to privacy,
publicity, or reputation, or
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punitive damages, all of which are expressly waived.
9. Certain Extraordinary Transactions:
a. Except as set forth in Paragraph 9(b) the affirmative vote of the
holders of seventy-five percent (75%) of the outstanding shares of the
corporation entitled to vote on the applicable Record Date shall be required
for:
(i) any merger or consolidation to which the corporation, or any
of its subsidiaries, and an Interested Person (as hereinafter
defined) are parties;
(ii) any sale, lease, exchange or other disposition by the
corporation, or any of its subsidiaries, of all of substantially all
of the corporation's or its subsidiaries' assets to an Interested
Person.
(iii) any purchase or other acquisition by the corporation, or
any of its subsidiaries, of assets or stock of an Interested Person,
the aggregate purchase price of which exceeds $20,000,000.00; and
(iv) any other transaction with an Interested Person which
requires the approval of the stockholders of the corporation under
the Delaware General Corporation Law, as in effect from time to
time.
b. The provisions of Paragraph 9(a) shall not be applicable to any
transaction described therein if such transaction is
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approved by resolution of the Board, provided that a majority of the members of
the Board voting for the approval of such transaction were duly elected and
acting members of the Board prior to the time that the person, firm or
corporation, or any group thereof, with whom such transaction is proposed,
became an Interested Person.
c. As used in this Paragraph 9, the term "Interested Person" shall
mean any person, firm or corporation, or any group thereof, acting or intending
to act in concert, including any person directly or indirectly controlling or
controlled by or under direct or indirect common control with such person, firm,
or corporation or group, which owns of record or beneficially, directly or
indirectly, five percent (5%) or more of the shares of any class of voting
securities of the corporation.
10. Reserved Power to Amend. 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, provided
that, no such amendment, alteration, change or repeal shall be made without
the affirmative vote of the holders of not less than seventy-five percent (75%)
of the outstanding shares of stock of the corporation entitled to vote in order
to alter, amend or repeal this Paragraph 10 or Paragraphs 5(b), 6, 7, 8 and 9,
and all rights conferred herein are granted subject to this reservation.
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The undersigned officers hereby acknowledges that the foregoing
Certificate of Incorporation is his act and deed and that the facts stated
therein are true.
By: /s/ Joel Christe
------------------------------
Joel Christe, President
By: /s/ Anthony J. Spallone
------------------------------
Anthony J. Spallone, Secretary
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State of Delaware
Office of the Secretary of State
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
CHANGE OF REGISTERED AGENT OF "NATIONAL EQUITIES HOLDINGS, INC.", FILED IN THIS
OFFICE ON THE FIFTH DAY OF DECEMBER, A.D. 1994, AT 9 O'CLOCK A.M.
[SEAL] /s/ Edward J. Freel
------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9028133
DATE: 04-15-98
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 12/05/1994
944235196 - 2144417
CERTIFICATE OF CHANGE OF LOCATION
OF REGISTERED OFFICE AND REGISTERED AGENT
OF
NATIONAL EQUITIES HOLDINGS, INC.
The Board of Directors of NATIONAL EQUITIES HOLDINGS, INC., a
Corporation of Delaware, on this 1st day of November, A.D. 1994, do hereby
resolve and order that the location of the Registered Office of this Corporation
within this State be, and the same hereby is 25 Greystone Manor, DE 19801 County
of Sussex.
The name of the Registered Agent therein and in charge thereof upon
whom process against this Corporation may be served, is Harvard Business
Services, Inc. The address of the Registered Agent is 25 Greystone Manor, Lewes,
DE 19958 County of Sussex.
NATIONAL EQUITIES HOLDINGS, INC., a Corporation of Delaware, does
hereby certify that the foregoing is a true copy of a resolution adopted by the
Board of Directors at a meeting held as herein stated.
IN WITNESS WHEREOF, said Corporation has caused this certificate to be
signed by its Authorized Officer, this 1st day of November, A.D., 1994.
By: /s/ P. A. Hartley, CEO
----------------------------
Authorized Officer (title)
NATIONAL EQUITIES HOLDINGS, INC.
[SEAL]
ATTEST:
--------------------------
Secretary
NATIONAL EQUITIES HOLDINGS, INC.
3430 E. FLAMINGO ROAD - SUITE 206
LAS VEGAS, NV 89121