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EXHIBIT 3.1
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
THE NEW D&B CORPORATION
The undersigned, being the duly elected President of The New
D&B Corporation, a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware, as amended (the
"Corporation"), DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of the Corporation by
resolution duly adopted by unanimous written consent, declared it advisable that
the Restated Certificate of Incorporation of the Corporation filed with the
Secretary of State of the State of Delaware on September 8, 2000 be amended by
amending Article First to read in its entirety as follows:
"FIRST: The name of the corporation is The Dun & Bradstreet
Corporation."
SECOND: That such amendment was duly adopted by the
shareholders of the Corporation entitled to vote thereon in accordance with
Section 228 of the General Corporation Law of the State of Delaware, as amended
(the "DGCL").
THIRD: That such amendment was duly adopted in accordance with
the provisions of Sections 228 and 242 of the DGCL.
FOURTH: This Certificate of Amendment shall become effective
at 12:02 a.m. on October 1, 2000.
IN WITNESS WHEREOF, the Corporation has caused this
Certificate of Amendment to be executed this ___day of September, 2000.
The New D&B Corporation
By: /s/ David J. Lewinter
Name: David J. Lewinter
Title: President and Corporate
Secretary
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RESTATED CERTIFICATE OF INCORPORATION
OF
THE NEW D&B CORPORATION
The name of the corporation is The New D&B Corporation, and the
original Certificate of Incorporation of the corporation was filed with the
Secretary of State of the State of Delaware on April 25, 2000. The original
Certificate of Incorporation of the corporation is hereby amended and restated
to read in its entirety as follows:
FIRST: The name of the corporation is The New D&B Corporation.
SECOND: The registered office of the corporation in the State of
Delaware is located at No. 1209 Orange Street, in the City of Wilmington,
County of New Castle; and the name of its registered agent at such address is
The Corporation Trust Company.
THIRD: The purposes of the corporation are to engage in any
lawful act or activity for which corporations may be organized under the
General Corporation Law of the State of Delaware.
FOURTH: (1) The total number of shares of all classes of stock which
the corporation shall have authority to issue is 220,000,000, consisting of (1)
10,000,000 shares of Preferred Stock, par value $.01 per share ("Preferred
Stock"), (2) 200,000,000 shares of Common Stock, par value $.01 per share
("Common Stock"), and (3) 10,000,000 shares of Series Common Stock, par value
$.01 per share ("Series Common Stock"). The number of authorized shares of any
of the Preferred Stock, the Common Stock or the Series Common 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 in voting
power of the stock of the corporation entitled to vote thereon irrespective of
the provisions of Section 242(b)(2) of the General Corporation Law of the State
of Delaware (or any successor provision thereto), and no vote of the holders of
any of the Preferred Stock, the Common Stock or the Series Common Stock voting
separately as a class shall be required therefor.
(1) The Board of Directors is hereby expressly authorized, by resolution
or resolutions, to provide, out of the unissued shares of Preferred Stock, for
series of Preferred Stock and, with respect to each such series, to fix the
number of shares constituting such series and the designation of such series,
the voting powers (if any) of the shares of such series, and the preferences and
relative, participating, optional or other special rights, if any, and any
qualifications, limitations or restrictions thereof, of the shares of such
series. The powers, preferences and relative, participating, optional and other
special rights of each series of Preferred Stock, and the qualifications,
limitations or restrictions thereof, if any, may differ from those of any and
all other series at any time outstanding.
(2) The Board of Directors is hereby expressly authorized, by resolution
or resolutions, to provide, out of the unissued shares of Series Common Stock,
for series of Series Common Stock and, with respect to each such series, to fix
the number of shares constituting
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such series and the designation of such series, the voting powers (if any) of
the shares of such series, and the preferences and relative, participating,
optional or other special rights, if any, and any qualifications, limitations or
restrictions thereof, of the shares of such series. The powers, preferences and
relative, participating, optional and other special rights of each series of
Series Common Stock, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series at any time
outstanding.
(3) (a) Each holder of Common Stock, as such, shall be entitled to
one vote for each share of Common Stock held of record by such holder on all
matters on which stockholders generally are entitled to vote; provided, however,
that, except as otherwise required by law, holders of Common Stock, as such,
shall not be entitled to vote on any amendment to this Restated Certificate of
Incorporation (including any certificate of designations relating to any series
of Preferred Stock or Series Common Stock) that relates solely to the terms of
one or more outstanding series of Preferred Stock or Series Common Stock if the
holders of such affected series are entitled, either separately or together with
the holders of one or more other such series, to vote thereon pursuant to this
Restated Certificate of Incorporation (including any certificate of designations
relating to any series of Preferred Stock or Series Common Stock) or pursuant to
the General Corporation Law of the State of Delaware.
(b) Except as otherwise required by law, holders of a series of
Preferred Stock or Series Common Stock, as such, shall be entitled only to such
voting rights, if any, as shall expressly be granted thereto by this Restated
Certificate of Incorporation (including any certificate of designations relating
to such series).
(c) Subject to applicable law and the rights, if any, of the holders
of any outstanding series of Preferred Stock or Series Common Stock or any class
or series of stock having a preference over or the right to participate with the
Common Stock with respect to the payment of dividends, dividends may be declared
and paid on the Common Stock at such times and in such amounts as the Board of
Directors in its discretion shall determine.
(d) Upon the dissolution, liquidation or winding up of the
corporation, subject to the rights, if any, of the holders of any outstanding
series of Preferred Stock or Series Common Stock or any class or series of stock
having a preference over or the right to participate with the Common Stock with
respect to the distribution of assets of the corporation upon such dissolution,
liquidation or winding up of the corporation, the holders of the Common Stock,
as such, shall be entitled to receive the assets of the corporation available
for distribution to its stockholders ratably in proportion to the number of
shares held by them.
FIFTH: The Board of Directors shall be authorized to make, amend,
alter, change, add to or repeal the By-Laws of the corporation in any manner not
inconsistent with the laws of the State of Delaware, subject to the power of the
stockholders to amend, alter, change, add to or repeal the By-Laws made by the
Board of Directors. Notwithstanding anything contained in this Restated
Certificate of Incorporation to the contrary, the affirmative vote of the
holders of at least 80 percent in voting power of all the shares of the
corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required in order for the stockholders to
alter, amend or repeal any provision of the By-laws which is to the same effect
as
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Article Fifth, Article Seventh, and Article Eighth of this Restated Certificate
of Incorporation or to adopt any provision inconsistent therewith.
SIXTH: (1) To the fullest extent permitted by the laws of the
State of Delaware:
(a) The corporation shall indemnify any person (and such person's
heirs, executors or administrators) who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding
(brought in the right of the corporation or otherwise), whether civil, criminal,
administrative or investigative, and whether formal or informal, including
appeals, by reason of the fact that such person is or was a director or officer
of the corporation or, if a director or officer of the corporation, by reason of
the fact that such person is or was serving at the request of the corporation as
a director, officer, partner, trustee, employee or agent of another corporation,
partnership, joint venture, limited liability company, trust or other
enterprise, for and against all expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such
person or such heirs, executors or administrators in connection with such
action, suit or proceeding, including appeals. Notwithstanding the preceding
sentence, the corporation shall be required to indemnify a person described in
such sentence in connection with any action, suit or proceeding (or part
thereof) commenced by such person only if the commencement of such action, suit
or proceeding (or part thereof) by such person was authorized by the Board of
Directors of the corporation. The corporation may indemnify any person (and such
person's heirs, executors or administrators) who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding (brought in the right of the corporation or otherwise),
whether civil, criminal, administrative or investigative, and whether formal or
informal, including appeals, by reason of the fact that such person is or was an
employee or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, partner, trustee, employee or agent of
another corporation, for and against all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person or such heirs, executors or administrators in connection with
such action, suit or proceeding, including appeals.
(b) The corporation shall promptly pay expenses incurred by (i) any
person whom the corporation is obligated to indemnify pursuant to the first
sentence of subsection (a) of this Article Sixth, Section (1) or (ii) any person
whom the corporation has determined to indemnify pursuant to the third sentence
of subsection (a) of this Article Sixth, Section (1), in defending any action,
suit or proceeding in advance of the final disposition of such action, suit or
proceeding, including appeals, upon presentation of appropriate documentation.
(c) The corporation may purchase and maintain insurance on behalf of
any person described in subsection (a) of this Article Sixth, Section (1)
against any liability asserted against such person, whether or not the
corporation would have the power to indemnify such person against such liability
under the provisions of this Article Sixth, Section (1) or otherwise.
(d) The provisions of this Article Sixth, Section (1) shall be
applicable to all actions, claims, suits or proceedings made or commenced after
the adoption hereof, whether arising from acts or omissions to act occurring
before or after its adoption. The provisions of this Article Sixth, Section (1)
shall be deemed to be a contract between the corporation and each
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director or officer who serves in such capacity at any time while this Article
Sixth, Section (1) and the relevant provisions of the laws of the State of
Delaware and other applicable law, if any, are in effect, and any repeal or
modification hereof shall not affect any rights or obligations then existing
with respect to any state of facts or any action, suit or proceeding then or
theretofore existing, or any action, suit or proceeding thereafter brought or
threatened based in whole or in part on any such state of facts. If any
provision of this Article Sixth, Section (1) shall be found to be invalid or
limited in application by reason of any law or regulation, it shall not affect
the validity of the remaining provisions hereof. The rights of indemnification
provided in this Article Sixth, Section (1) shall neither be exclusive of, nor
be deemed in limitation of, any rights to which an officer, director, employee
or agent may otherwise be entitled or permitted by contract, this Restated
Certificate of Incorporation, vote of stockholders or directors or otherwise, or
as a matter of law, both as to actions in such person's official capacity and
actions in any other capacity while holding such office, it being the policy of
the corporation that indemnification of any person whom the corporation is
obligated to indemnify pursuant to the first sentence of subsection (a) of this
Article Sixth, Section (1) shall be made to the fullest extent permitted by law.
(e) For purposes of this Article Sixth, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the corporation"
shall include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such director,
officer, employee, or agent with respect to an employee benefit plan, its
participants, or beneficiaries.
(2) A director of the corporation shall not be liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent such exemption from liability or
limitation thereof is not permitted under the General Corporation Law of the
State of Delaware as the same exists or may hereafter be amended. Any amendment,
modification or repeal of the foregoing sentence shall not adversely affect any
right or protection of a director of the corporation hereunder in respect of any
act or omission occurring prior to the time of such amendment, modification or
repeal.
SEVENTH: (1) The business and affairs of the corporation shall be
managed by or under the direction of a Board of Directors consisting of not less
than three directors, the exact number of directors to be determined from time
to time by resolution adopted by affirmative vote of a majority of the Board of
Directors. The directors shall be divided into three classes designated Class I,
Class II and Class III. Each class shall consist, as nearly as possible, of
one-third of the total number of directors constituting the entire Board of
Directors. Class I directors shall be originally elected for a term expiring at
the succeeding annual meeting of stockholders, Class II directors shall be
originally elected for a term expiring at the second succeeding annual meeting
of stockholders, and Class III directors shall be originally elected for a term
expiring at the third succeeding annual meeting of stockholders. At each
succeeding annual meeting of stockholders following 2000, successors to the
class of directors whose term expires at that annual meeting shall be elected
for a term expiring at the third succeeding annual meeting. 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 possible, and any additional director of any class elected to fill a newly
created directorship
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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 shall a decrease
in the number of directors remove or shorten the term of any incumbent director.
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 newly created directorship on the Board of Directors
that results from an increase in the number of directors and any vacancy
occurring in the Board of Directors may be filled only by a majority of the
directors then in office, although less than a quorum, or by a sole remaining
director. If any applicable provision of the General Corporation Law of the
State of Delaware expressly confers power on stockholders to fill such a
directorship at a special meeting of stockholders, such a directorship may be
filled at such meeting only by the affirmative vote of at least 80 percent of
the voting power of all shares of the corporation entitled to vote generally in
the election of directors voting as a single class. Any director elected to fill
a vacancy not resulting from an increase in the number of directors shall have
the same remaining term as that of his predecessor. Directors may be removed
only for cause, and only by the affirmative vote of at least 80 percent in
voting power of all shares of the corporation entitled to vote generally in the
election of directors, voting as a single class.
(2) Notwithstanding the foregoing, whenever the holders of any one
or more series of Preferred Stock or Series Common Stock issued by the
corporation shall have the right, voting separately as a series or separately as
a class with one or more such other series, to elect directors at an annual or
special meeting of stockholders, the election, term of office, removal, filling
of vacancies and other features of such directorships shall be governed by the
terms of this Restated Certificate of Incorporation (including any certificate
of designations relating to any series of Preferred Stock or Series Common
Stock) applicable thereto, and such directors so elected shall not be divided
into classes pursuant to this Article Seventh unless expressly provided by such
terms.
EIGHTH: Any action required or permitted to be taken by the holders
of the Common Stock 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 and subject to the
rights of the holders of any series of Preferred Stock or Series Common Stock,
special meetings of stockholders of the corporation may be called only by the
Chief Executive Officer of the corporation or by the Board of Directors pursuant
to a resolution approved by the Board of Directors.
NINTH: Notwithstanding anything contained in this Restated
Certificate of Incorporation to the contrary, the affirmative vote of the
holders of at least 80 percent in voting power of all the 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 or repeal Article
Fifth, Article Seventh, Article Eighth or this Article Ninth or to adopt any
provision inconsistent therewith."
The New D&B Corporation does hereby further certify that this
Restated Certificate of Incorporation was duly adopted by unanimous written
consent of the stockholders in accordance with the provisions of Sections 228,
242 and 245 of the General Corporation Law of the State of Delaware.
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IN WITNESS WHEREOF, The New D&B Corporation has caused its corporate
seal to be hereunto affixed and this certificate to be signed by David J.
Lewinter, its President and Secretary, this 8th day of September 2000.
THE NEW D&B CORPORATION
By: /s/ David J. Lewinter
Name: David J. Lewinter
Title: President and Secretary
