AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
of
HFS CORE SYSTEMS, INC.
1. Name. The name of the corporation is HFS Core Systems, Inc. (the
"Corporation").
2. Address; Registered Office and Agent. The address of the
Corporation's registered office is Corporation Trust Center, 1209 Orange Street,
Wilmington, County of New Castle, Delaware 19801 and the name of its registered
agent at such address is The Corporation Trust Company.
3. Purposes. The purpose of the Corporation is to engage in any lawful
act or activity for which corporations may be organized under the General
Corporation Law.
4. Number of Shares. The total number of shares of stock that the
Corporation shall have authority to issue is: Two Hundred (200), all of which
shall be shares of Common Stock with $0.01 par value.
5. Name and Mailing Address of Incorporator. The name and mailing
address of the incorporator are: Robert B. Dellenbach, c/o Fenwick & West, Two
Palo Alto Square, Ste 800, Palo Alto, CA 94306.
2
6. Election of Directors. Unless and except to the extent that the
By-laws of the Corporation (the "By-laws") shall so require, the election of
directors of the Corporation need not be by written ballot.
7. Limitation of Liability. To the fullest extent permitted under the
General Corporation Law, as amended from time to time, no director of the
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director.
Any amendment, repeal or modification of the foregoing provision 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, repeal or modification.
8. Indemnification.
8.1 Right to Indemnification. The Corporation shall indemnify and
hold harmless, to the fullest extent permitted by applicable law as it presently
exists or may hereafter be amended, any person (a "Covered Person") who was or
is made or is threatened to be made a party or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (a "Proceeding"), by reason of the fact that he or she, or a
person for whom he or she is the legal representative, 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,
employee or agent of another corporation or of a partnership, joint venture,
trust, enterprise or nonprofit entity (an "Other Entity"), including service
with respect to employee benefit plans, against all liability and loss suffered
and expenses (including attorneys' fees) reasonably
3
incurred by such Covered Person. Notwithstanding the preceding sentence, except
as otherwise provided in Section 8.3, the Corporation shall be required to
indemnify a Covered Person in connection with a Proceeding (or part thereof)
commenced by such Covered Person only if the commencement of such Proceeding (or
part thereof) by the Covered Person was authorized by the Board of Directors of
the Corporation (the "Board").
8.2 Prepayment of Expenses. The Corporation shall pay the
expenses (including attorneys' fees) incurred by a Covered Person in defending
any Proceeding in advance of its final disposition, provided, however, that, to
the extent required by applicable law, such payment of expenses in advance of
the final disposition of the Proceeding shall be made only upon receipt of an
undertaking by the Covered Person to repay all amounts advanced if it should be
ultimately determined that the Covered Person is not entitled to be indemnified
under this Article 8 or otherwise.
8.3 Claims. If a claim for indemnification or advancement of
expenses under this Article 8 is not paid in full within 30 days after a written
claim therefor by the Covered Person has been received by the Corporation, the
Covered Person may file suit to recover the unpaid amount of such claim and, if
successful in whole or in part, shall be entitled to be paid the expense of
prosecuting such claim. In any such action the Corporation shall have the burden
of proving that the Covered Person is not entitled to the requested
indemnification or advancement of expenses under applicable law.
8.4 Nonexclusivity of Rights. The rights conferred on any Covered
Person by this Article 8 shall not be exclusive of any other rights that such
4
Covered Person may have or hereafter acquire under any statute, provision of
this Certificate of Incorporation, the By-laws, agreement, vote of stockholders
or disinterested directors or otherwise.
8.5 Other Sources. The Corporation's obligation, if any, to
indemnify or to advance expenses to any Covered Person who was or is serving at
its request as a director, officer, employee or agent of an Other Entity shall
be reduced by any amount such Covered Person may collect as indemnification or
advancement of expenses from such Other Entity.
8.6 Amendment or Repeal. Any repeal or modification of the
foregoing provisions of this Article 8 shall not adversely affect any right or
protection hereunder of any Covered Person in respect of any act or omission
occurring prior to the time of such repeal or modification.
8.7 Other Indemnification and Prepayment of Expenses. This
Article 8 shall not limit the right of the Corporation, to the extent and in the
manner permitted by applicable law, to indemnify and to advance expenses to
persons other than Covered Persons when and as authorized by appropriate
corporate action.
9. Adoption, Amendment and/or Repeal of By-Laws. In furtherance and
not in limitation of the powers conferred by the laws of the State of Delaware,
the Board is expressly authorized to make, alter and repeal the By-laws, subject
to the power of the stockholders of the Corporation to alter or repeal any
By-law whether adopted by them or otherwise.
10. Certificate Amendments. The Corporation reserves the right at any
time, and from time to time, to amend, alter, change or repeal any provision
contained in
5
this Certificate of Incorporation, and other provisions authorized by the laws
of the State of Delaware at the time in force may be added or inserted, in the
manner now or hereafter prescribed by applicable law; and all rights,
preferences and privileges of whatsoever nature conferred upon stockholders,
directors or any other persons whomsoever by and pursuant to this Certificate of
Incorporation in its present form or as hereafter amended are granted subject to
the rights reserved in this article.
