Certificate of Incorporation - The New Dun & Bradstreet Corp.
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
THE NEW DUN & BRADSTREET CORPORATION
The undersigned, being the duly elected Senior Vice President and Chief
Legal Counsel of The New Dun & Bradstreet Corporation, a corporation organized
and existing under the laws of the State of Delaware (the "Corporation"),
pursuant to Section 228 of the General Corporation Law of the State of Delaware
(the "DGCL"), 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 (the "Certificate") of the Corporation
filed with the Secretary of State of the State of Delaware on June 15, 1998 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 DGCL.
THIRD: That such amendment was duly adopted in accordance with the
provisions of Section 242 of the DGCL.
FOURTH: That such amendment shall be effective at 5:30 p.m., Eastern
Standard Time, on June 30, 1998.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be duly executed this 29th day of June, 1998.
THE NEW DUN & BRADSTREET CORPORATION
By: \s\ Nancy L. Henry
-------------------------------
Name: Nancy L. Henry
Title: Senior Vice President &
Chief Legal Counsel
Attest: \s\ Mitchell C. Sussis
-------------------------------
Name: Mitchell C. Sussis
Title: Corporate Secretary
<PAGE> 2
RESTATED CERTIFICATE OF INCORPORATION
OF
THE NEW DUN & BRADSTREET CORPORATION
The name of the corporation is The New Dun & Bradstreet Corporation, and
the original Certificate of Incorporation of the corporation was filed with the
Secretary of State of the State of Delaware on April 8, 1998. 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 Dun & Bradstreet
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 420,000,000, consisting of (1)
10,000,000 shares of Preferred Stock, par value $.01 per share ("Preferred
Stock"), (2) 400,000,000 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.
(2) 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.
(3) 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 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
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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.
(4) (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 Article Fifth, Article Seventh, and Article Eighth of this Restated
Certificate of Incorporation or to adopt any provision inconsistent
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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, while a director or officer of the corporation, 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,
trust, limited liability company 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, partnership, joint
venture, trust, limited liability company 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.
(b) The corporation shall promptly pay expenses incurred by any person
described in the first 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
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and each 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 1998, 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
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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 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 shall 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 Dun & Bradstreet Corporation does hereby further certify that
this Restated Certificate of Incorporation was duly adopted by the Board of
Directors and 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 DUN & BRADSTREET CORPORATION has caused its
corporate seal to be hereunto affixed and this certificate to be signed by
Nancy L. Henry, its Senior Vice President and Chief Legal Counsel this 15th day
of June, 1998.
THE NEW DUN & BRADSTREET CORPORATION
/s/ Nancy L. Henry
By: _______________________________
Name: Nancy L. Henry
Title: Senior Vice President
and Chief Legal Counsel