Exhibit 99(3)
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
NEW MARRIOTT MI, INC.
New Marriott MI, Inc., a corporation organized and existing under the laws of
the State of Delaware (the "Corporation"), hereby certifies as follows:
1. The present name of the Corporation is "New Marriott MI, Inc." The
original Certificate of Incorporation was filed with the Secretary of State of
the State of Delaware on September 19, 1997. An Amended and Restated
Certificate of Incorporation was filed with the Secretary of State of the State
of Delaware on March 27, 1998.
2. This Amended and Restated Certificate of Incorporation has been duly
adopted and proposed to the stockholders of the Corporation by the Board of
Directors of the Corporation, and has been approved and adopted by the
stockholders of the Corporation, in accordance with Sections 242 and 245 of the
General Corporation Law of the State of Delaware.
3. Pursuant to Sections 242 and 245 of the General Corporation Law of the
State of Delaware, this Amended and Restated Certificate of Incorporation
restates and integrates and further amends the provisions of the Amended and
Restated Certificate of Incorporation of the Corporation.
4. The text of the Amended and Restated Certificate of Incorporation as
heretofore amended and restated is hereby restated and further amended to read
in its entirety as hereinafter set forth:
FIRST. The name of the corporation is MARRIOTT INTERNATIONAL, INC.
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SECOND. The address of its registered office in the State of Delaware is
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1013 Centre Road, City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Prentice-Hall Corporation System, Inc.
THIRD. The purpose of the corporation is to engage in, promote, and carry
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on in any part of the world any lawful acts or activities for which corporations
may be organized under the Delaware General Corporation Law.
FOURTH. The total number of shares of all classes of stock which the
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corporation shall have authority to issue is eight hundred ten million
(810,000,000) consisting of:
(i) eight hundred million (800,000,000) shares of common stock, with par
value of $0.01 per share, of which
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(a) three hundred million (300,000,000) shares are designated as Class A
Common Stock (the "Class A Common Stock") and
(b) five hundred million (500,000,000) shares are designated as Common
Stock (the "Common Stock"); and
(ii) ten million (10,000,000) shares of preferred stock, without par value
(the "Preferred Stock").
No holder of stock of any class of the corporation, whether now or hereafter
authorized or issued, shall be entitled as such, as a matter of right, to
subscribe for or purchase any part of any new or additional issue of stock of
any class whatsoever, or of any securities convertible into stock of any class,
or any character or to which are attached or with which are issued warrants or
rights to purchase any such stock, whether now or hereafter authorized, issued
or sold, or whether issued for moneys, property or services, or by way of
dividend or otherwise, or any right or subscription to any thereof, other than
such, if any, as the board of directors in its discretion may from time to time
fix, pursuant to authority hereby conferred upon it; and any shares of stock or
convertible obligations with warrants or rights to purchase any such stock,
which the board of directors may determine to offer for subscription, may be
sold without being first offered to any of the holders of the stock of the
corporation of any class or classes or may, as such board shall determine, be
offered to holders of any class or classes of stock exclusively or to the
holders of all classes of stock, and if offered to more than one class of stock,
in such proportions as between such classes of stock as the board of directors,
in its discretion, may determine.
A. Provisions Relating to Preferred Stock. The Preferred Stock may be issued
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from time to time in one or more series pursuant to a resolution or resolutions
providing for such issue duly adopted by the board of directors (authority to do
so being hereby expressly vested in the board) and such resolution or
resolutions shall also set forth the voting powers, full or limited or none, of
each such series of Preferred Stock and shall fix the designations, preferences
and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions of each such series of Preferred
Stock.
B. Provisions Relating to Common Stock
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1. General. The Class A Common Stock and the Common Stock shall be subject
to the express terms of the Preferred Stock and any class or series thereof. The
powers, preferences and rights of the Class A Common Stock and the Common Stock
and the qualifications, limitations and restrictions thereof, shall in all
respects be identical, except as otherwise required by law or as expressly
provided in this Amended and Restated Certificate of Incorporation.
2. Voting Rights. Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be adopted by the board of
directors pursuant to Section A of
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this Article Fourth or as otherwise expressly provided in this Amended and
Restated Certificate of Incorporation:
(a) The holders of shares of Class A Common Stock shall be entitled to
ten votes for each share of Class A Common Stock held on all matters voted
upon by the stockholders of the corporation and shall vote together with
the holders of Common Stock and together with the holders of any other
series of stock who are entitled to vote in such manner and not as a
separate class;
(b) The holders of shares of Common Stock shall be entitled to one vote
for each share of Common Stock held on all matters voted upon by the
stockholders of the corporation and shall vote together with the holders of
Class A Common Stock and together with the holders of any other classes or
series of stock who are entitled to vote in such manner and not as a
separate class.
3. Dividends and Distributions. Subject to the rights of the holders of the
Preferred Stock, the holders of Class A Common Stock and Common Stock shall be
entitled to receive when, as and if declared by the board of directors, out of
funds legally available therefor, dividends and other distributions payable in
cash, property, stock or otherwise. Each share of Class A Common Stock and each
share of Common Stock shall have identical rights with respect to dividends and
distributions, subject to the following:
(a) any Regular Cash Dividend (as defined below) declared and paid on
each share of Common Stock may, at the discretion of the board of
directors, equal up to 125% (one hundred twenty-five percent) (rounded up
to the nearest penny) of the per share Regular Cash Dividend declared and
paid on each share of Class A Common Stock, but in no case shall the
Regular Cash Dividend on each share of Common Stock be less than the
equivalent Regular Cash Dividend per share of Class A Common Stock;
(b) if the board of directors, in its discretion, should declare a
Special Dividend (as defined below), such dividend shall be paid in equal
amounts per share of Common Stock and Class A Common Stock; and
(c) whenever, at the discretion of the board of directors, a dividend or
distribution is payable in shares of Common Stock and/or Class A Common
Stock, such stock dividend will be paid in equal amounts per share of
Common Stock and Class A Common Stock; provided, however, that, at the
discretion of the board of directors, such stock dividend may be paid to
the holders of Common Stock either in Common Stock or in Class A Common
Stock or a combination thereof and, similarly, a stock dividend may be paid
to the holders of Class A Common Stock either in Class A Common Stock or in
Common Stock or a combination thereof.
As used herein, the term "Regular Cash Dividend" shall mean dividends of the
corporation payable quarterly in cash consistent with practices established and
revised from time to time by
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the board of directors in its sole discretion; and the term "Special Dividend"
shall mean any dividend of cash or other property or assets (including
securities), other than a Regular Cash Dividend. Any decision by the board of
directors determining whether a dividend constitutes a Regular Cash Dividend
shall be conclusive, binding and not subject to review or challenge.
4. Conversion. Upon a resolution of the board of directors:
(i) each share of Common Stock shall be converted automatically into one
share of Class A Common Stock if at any time the board of directors, in its
sole discretion, decides that all, but not less than all, of the then
outstanding shares of Common Stock shall be so converted; and
(ii) each share of Common Stock shall be converted automatically into one
share of Class A Common Stock if the Common Stock is excluded from trading on
a national securities exchange or listing on the National Association of
Securities Dealers Automated Quotation System (and the Class A Common Stock
is, or is eligible to be, traded on a national securities exchange or listed
on the National Association of Securities Dealers Automated Quotation System)
(the "NASDAQ").
In making the determination referred to in (ii) above, the board of directors
may conclusively rely upon information and documentation available to it,
including but not limited to information or certification from any transfer
agent for the common stock (the "Transfer Agent"), filings made with the
Securities and Exchange Commission or any stock exchange or self-regulatory
organization. The determination of the board of directors that a class of common
stock has been excluded from trading on, or is eligible for trading on, a
national securities exchange or has been excluded from listing on, or is
eligible for listing on the NASDAQ shall be conclusive and binding. At the time
specified in a resolution of the board of directors referred to in this
Paragraph 4, the shares of the Common Stock so converted shall be deemed changed
automatically into shares of Class A Common Stock and stock certificates and
uncertificated shares formerly representing shares of Common Stock shall
thereupon and thereafter be deemed to represent a like number of shares of the
Class A Common Stock, the total number of shares of the Class A Common Stock the
corporation shall have authority to issue shall be eight hundred million
(800,000,000) and the total number of shares of the Common Stock the corporation
shall have authority to issue shall be zero (0).
5. Dissolution and Liquidation; Mergers and Consolidations.
(a) In the event of a liquidation, distribution or sale of assets, dissolution
or winding up of the corporation, whether voluntary or involuntary, and after
the holders of the Preferred Stock have been paid in full the amounts to which
they are entitled, if any, or a sum sufficient for such payment in full has been
set aside, the remaining net assets of the corporation, of whatever kind, shall
be divided among and paid ratably to the holders of Class A Common Stock and
Common
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Stock in proportion to the number of shares of Class A Common Stock or Common
Stock, as the case may be, held by them respectively.
(b) In the event of a merger, consolidation or combination of the corporation
with another entity (whether or not the corporation is the surviving entity),
the holders of Common Stock and Class A Common Stock shall be entitled to
receive the same per share consideration in that transaction, except that any
common stock that holders of Common Stock are entitled to receive in any such
event may differ as to voting rights and otherwise to the extent and only to the
extent that the Common Stock and the Class A Common Stock differ as set forth in
Section B of this Article Fourth.
6. Minority Rights Protection Provision.
(a) If, at any time after the date upon which the Common Stock and the Class A
Common Stock are distributed to the holders of common stock of Marriott
International, Inc. (to be renamed Sodexho Marriott Services, Inc.) (the
"Distribution"), any Person or group, each as hereinafter defined in this
Paragraph 6, acquires beneficial ownership of shares representing 15% or more of
the number of then outstanding Class A Common Stock and such Person or group (a
"Significant Shareholder") does not then beneficially own an equal or greater
percentage of all then outstanding shares of Common Stock, all of which Common
Stock must have been acquired by such Person or group after the Distribution,
such Significant Shareholder must, within a ninety-day period beginning the day
after becoming a Significant Shareholder, make a public cash tender offer in
compliance with all applicable laws and regulations to acquire additional shares
of Common Stock as provided in this Paragraph 6 (a "Minority Rights Protection
Transaction"). The 15% ownership threshold of the number of Class A Common
Shares which triggers a Minority Rights Protection Transaction may not be waived
by the board of directors, nor may this threshold in this Amended and Restated
Certificate of Incorporation be amended without shareholder approval, including
a majority vote of the outstanding Common Stock voting separately as a class.
(b) In each Minority Rights Protection Transaction, the Significant
Shareholder must make a public cash tender offer to acquire from the holders of
Common Stock at least that number of additional shares of Common Stock
determined by (i) multiplying (x) the percentage of the number of shares of
outstanding Class A Common Stock beneficially owned and acquired after the
Distribution by such Significant Shareholder by (y) the total number of shares
of Common Stock outstanding on the date such Person or group became a
Significant Shareholder, and (ii) subtracting therefrom the number of shares of
Common Stock beneficially owned by such Significant Shareholder on the date such
Person or group became a Significant Shareholder and which were acquired after
the Distribution (as adjusted for stock splits, stock dividends and similar
recapitalizations). The Significant Shareholder must acquire all shares of
Common Stock validly tendered and not withdrawn or, if the number of shares of
Common Stock tendered to the Significant Shareholder and not withdrawn exceeds
the number of shares required to be acquired pursuant to this subparagraph (b),
the number of shares acquired from each tendering holder shall
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be pro rata based on the percentage that the number of shares tendered by such
stockholder bears to the total number of shares tendered and not withdrawn by
all tendering holders.
(c) The cash offer price for any shares of Common Stock required to be
purchased by the Significant Shareholder pursuant to this Paragraph 6 shall be
the greater of: (i) the highest price per share paid by the Significant
Shareholder for any share of Class A Common Stock in the six-month period ending
on the date such Person or group became a Significant Shareholder (or such
shorter period after the Distribution if the date such Person or group became a
Significant Shareholder is not more than six months following the Distribution);
and (ii) the highest reported sale price for a share of Class A Common Stock on
the New York Stock Exchange (or if the Class A Common Stock is not listed on the
New York Stock Exchange, on any other national securities exchange on which the
Class A Common Stock is listed; or if the Class A Common Stock is not listed on
any national securities exchange, on the NASDAQ Market) on the business day
preceding the date the Significant Shareholder commences the required tender
offer. For purposes of subparagraph (d) below, the applicable date for each
calculation required by clauses (i) and (ii) of the preceding sentence shall be
the date on which the Significant Shareholder becomes required to engage in the
Minority Rights Protection Transaction for which such calculation is required.
(d) A Minority Rights Protection Transaction shall also be required to be
effected by any Significant Shareholder each time that the Significant
Shareholder acquires after the Distribution beneficial ownership of additional
shares of Class A Common Stock in an amount equal to or greater than the next
higher integral multiple of 5% in excess of 15% (e.g., 20%, 25%, 30%, etc.) of
the number of shares of outstanding Class A Common Stock if such Significant
Shareholder does not then own an equal or greater percentage of all then
outstanding shares of Common Stock (all of which shares of Common Stock must
have been acquired by such Significant Shareholder after the Distribution,
including pursuant to a previous Minority Rights Protection Transaction). Such
Significant Shareholder shall be required to make a public cash tender offer to
acquire that number of shares of Common Stock prescribed by the formula set
forth in subparagraph (b) above, and must acquire all shares validly tendered
and not withdrawn or a pro rata portion thereof, as specified in such
subparagraph (b), at the price determined pursuant to subparagraph (c) above,
even if a previous Minority Rights Protection Transaction resulted in fewer
shares of Common Stock being tendered than required in the previous offer.
(e) If any Significant Shareholder fails to commence an offer required by this
Paragraph 6 of this Section B of this Article Fourth within the ninety-day
period beginning the day after becoming a Significant Shareholder, or to
purchase shares validly tendered and not withdrawn (after proration, if any),
such Significant Shareholder shall not be entitled to vote any shares of Class A
Common Stock beneficially owned by such Significant Shareholder and acquired by
such Significant Shareholder after the Distribution. To the extent that the
voting power of any shares of Class A Common Stock is so discontinued, such
shares shall not be included in the determination of aggregate voting shares for
any purpose under this Amended and Restated Certificate of Incorporation or
applicable law. The requirement to engage in a Minority Rights Protection
Transaction shall be satisfied by the making of the requisite offer and
purchasing
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validly tendered and not withdrawn shares pursuant to this Paragraph 6, even if
the number of shares tendered is less than the number of shares included in the
required offer.
(f) The Minority Rights Protection Transaction requirement shall not apply to
any increase in percentage beneficial ownership of shares of Class A Common
Stock resulting solely from a change in the aggregate amount of shares of Class
A Common Stock outstanding, provided that any acquisition after such change
which results in any Person or group having acquired after the Distribution
beneficial ownership of 15% or more of the number of then outstanding shares of
Class A Common Stock (or, after the last acquisition which triggered the
requirement for a Minority Rights Protection Transaction, additional shares of
Class A Common Stock in an amount equal to the next higher integral multiple of
5% in excess of the number of shares of Class A Common Stock then outstanding)
shall be subject to any Minority Rights Protection Transaction requirement that
would be imposed pursuant to this Paragraph 6.
(g) In connection with subparagraphs (a) through (d) and (f) above, the
following shares of Class A Common Stock shall be excluded for the purpose of
determining the number of shares of Class A Common Stock beneficially owned or
acquired by any Person or group but not for the purpose of determining shares
outstanding:
(i) shares beneficially owned by such Person or group (or, in the case of a
group, shares beneficially owned by Persons that are members of such group)
immediately after the Distribution;
(ii) shares acquired by will or by the laws of descent and distribution, or
by gift that is made in good faith and not for the purpose of circumventing
this Paragraph 6, or by termination or revocation of a trust or similar
arrangement or by a distribution from a trust or similar arrangement if such
trust or similar arrangement was created, and such termination, revocation or
distribution occurred or was effected, in good faith and not for the purpose
of circumventing this Paragraph 6, or by reason of the ability of a secured
party (following a default) to exercise voting rights with respect to, or to
dispose of, shares that had been pledged in good faith as security for a bona
fide loan, or by foreclosure of a bona fide pledge which secures a bona fide
loan;
(iii) shares acquired upon issuance or sale by the corporation;
(iv) shares acquired by operation of law (including a merger or
consolidation effected for the purpose of recapitalizing such Person or
reincorporating such Person in another jurisdiction but excluding a merger or
consolidation effected for the purpose of acquiring another Person);
(v) shares acquired in exchange for Common Stock by a holder of Common Stock
(or by a parent, lineal descendant or donee of such holder of Common Stock who
received such Common Stock from such holder) if the Common Stock so exchanged
was acquired by such holder directly from the corporation as a dividend on
shares of Class A Common Stock;
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(vi) shares acquired by a plan of the corporation qualified under Section
401(a) of the Internal Revenue Code of 1986, as amended, or any successor
provision thereto, or acquired by reason of a distribution from such a plan;
(vii) shares beneficially owned by a Person or group immediately after the
Distribution which are thereafter acquired by an Affiliate, as defined in
subparagraph (j) below, of such Person or group (or by the members of the
immediate family (or trusts for the benefit thereof) of any such Person or
Affiliate) or by a group which includes such Person or group or any such
Affiliate; and
(viii) shares acquired indirectly through the acquisition of securities, or
of all or substantially all of the assets, of a Person that has a class of its
equity securities registered under Section 12 (or any successor provision) of
the Securities Exchange Act of 1934, as amended (the "1934 Act").
Notwithstanding anything to the contrary contained in this Article Fourth, no
Person (and no group including such Person) shall be deemed to have acquired
after the Distribution beneficial ownership of any shares of Class A Common
Stock owned by any other Person solely by reason of such Person being or
becoming an officer, director, executive, trustee, executor, custodian,
guardian, and/or other similar fiduciary or employee of or for such other
Person under circumstances not intended to circumvent the provisions of this
Paragraph 6.
(h) In connection with subparagraphs (a) through (d) and (f) above, for
purposes of calculating the number of shares of Common Stock beneficially owned
or acquired by any Person or group, shares of Common Stock acquired by gift
shall be deemed to be beneficially owned by such Person or member of a group if
such gift was made in good faith and not for the purpose of circumventing the
operations of this Paragraph 6; and only shares of Common Stock owned of record
by such Person or member of a group or held by others as nominees of such Person
or member of a group and identified as such to the corporation shall be deemed
to be beneficially owned by such Person or group (provided that shares of Common
Stock with respect to which such Person or member of a group has sole investment
and voting power shall be deemed to be beneficially owned thereby).
(i) All calculations with respect to percentage beneficial ownership of either
issued and outstanding shares of Class A Common Stock or Common Stock shall be
based upon the number of issued and outstanding shares reported by the
corporation on the last to be filed of (i) the corporation's most recent Annual
Report on Form 10-K, (ii) its most recent Quarterly Report on Form 10-Q, (iii)
its most recent Current Report on Form 8-K, and (iv) its most recent definitive
proxy statement filed with the Securities and Exchange Commission.
(j) For purposes of this Paragraph 6, the term "Person" means any individual,
partnership, joint venture, limited liability company, corporation, association,
trust, incorporated organization, government or governmental department or
agency or any other entity (other than the corporation). Subject to
subparagraphs (g) and (h) above, "beneficial ownership" shall be
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determined pursuant to Rule 13d-3 (as in effect on January 1, 1998) promulgated
under the 1934 Act, and the formation or existence of a "group" shall be
determined pursuant to Rule 13d-5(b) (as in effect on January 1, 1998)
promulgated under the 1934 Act, in each case subject to the following additional
qualifications:
(i) relationships by blood or marriage between or among any Persons will not
constitute any of such Persons as a member of a group with any such other
Person(s), absent affirmative attributes of concerted action; and
(ii) any Person acting in his official capacity as a director or officer of
the corporation shall not be deemed to beneficially own shares where such
ownership exists solely by virtue of such Person's status as a trustee (or
similar position) with respect to shares held by plans or trusts for the
general benefit of employees or former employees of the corporation, and
actions taken or agreed to be taken by a Person in such Person's official
capacity as an officer or director of the corporation will not cause such
Person to become a member of a group with any other Person.
For purposes of this Paragraph 6, an "Affiliate" of any Person means any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such Person. For purposes of this definition,
control when used with respect to any specified Person means the possession of
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms controlling and controlled have meanings correlative to
the foregoing.
FIFTH. The name and mailing address of the incorporator is as follows:
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NAME
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Harold J. Wood
MAILING ADDRESS
1013 Centre Road
Wilmington, Delaware 19805
SIXTH. The corporation is to have perpetual existence.
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SEVENTH. The private property of the stockholders shall not be subject to
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the payment of the corporate debts to any extent whatsoever.
EIGHTH. Except as otherwise fixed by or pursuant to the provisions of
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Article FOURTH hereof relating to the rights of the holders of any class or
series of stock having a preference over the Common Stock and the Class A Common
Stock as to dividends or upon liquidation to elect
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additional directors under specified circumstances, the number of the directors
of the corporation shall be fixed from time to time by or pursuant to the Bylaws
of the corporation. The directors, other than those who may be elected by the
holders of any class or series of stock having a preference over the Common
Stock and the Class A Common Stock as to dividends or upon liquidation, 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 Bylaws of the corporation, one class to be
originally elected for a term expiring at the annual meeting of stockholders to
be held in 1998, another class to be originally elected for a term expiring at
the annual meeting of stockholders to be held in 1999, and another class to be
originally elected for a term expiring at the annual meeting of stockholders to
be held in 2000, with each class to hold office until its successor is elected
and qualified. At each annual meeting of the stockholders of the corporation,
the successors of the class of directors whose term expires at that meeting
shall be elected to hold office for a term expiring at the annual meeting of
stockholders held in the third year following the year of their election.
Advance notice of stockholder nominations for the election of directors shall
be given in the manner provided in the Bylaws of the corporation.
Except as otherwise provided for or fixed by or pursuant to the provisions of
Article FOURTH hereof relating to the rights of the holders of any class or
series of stock having a preference over the Common Stock and the Class A Common
Stock as to dividends or upon liquidation to elect directors under specified
circumstances, 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 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 directors elected
in accordance with the preceding sentence shall hold office for the remainder of
the full term of the class of directors in which the new directorship was
created or the vacancy occurred and until such director's successor shall have
been elected and qualified. No decrease in the number of directors constituting
the board of directors shall shorten the term of any incumbent director.
Subject to the rights of any class or series of stock having a preference over
the Common Stock and the Class A Common Stock as to dividends or upon
liquidation to elect directors under specified circumstances, any director may
be removed from office, but only for cause and only by the affirmative vote of
the holders of at least 66 2/3% 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.
Notwithstanding anything contained in this Amended and Restated Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at least
66 2/3% 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,
shall be required to alter, amend or adopt any provision inconsistent with or
repeal this Article EIGHTH.
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The directors shall have the power to fix the amount to be reserved as working
capital and to authorize and cause to be executed, mortgages and liens without
limit as to amount, upon the property and franchises of this corporation.
The Bylaws shall determine whether and to what extent the accounts and books
of this corporation, or any of them, shall be open to the inspection of the
stockholders; and no stockholder shall have any right of inspecting any account,
or book, or document of this corporation, except as conferred by law or the
Bylaws, or by resolution of the stockholders or directors.
The stockholders and directors shall have power to hold their meetings and
keep the books, documents and papers of the corporation outside the State of
Delaware, at such places as may be from time to time designated by the Bylaws or
by resolution of the stockholders or directors.
The directors shall have power by a resolution passed by a majority vote of
the whole board, under suitable provision of the Bylaws, to designate two or
more of their number to constitute an executive committee, which committee shall
for the time being, as provided in said resolution or in the Bylaws, have and
exercise any or all the powers of the board of directors which may be lawfully
delegated in the management of the business and affairs of the corporation, and
shall have power to authorize the seal of the said corporation to be affixed to
all papers which may require it.
This corporation reserves the right to amend, alter, change or repeal any
provision contained in this Amended and Restated Certificate of Incorporation,
in the manner now or hereafter set forth herein or, in the absence of specific
provision herein, in the manner prescribed by the statutes of the State of
Delaware, and all rights conferred on officers, directors and stockholders
herein are granted subject to this reservation.
Election of directors need not be by written ballot unless the Bylaws of the
corporation shall so provide.
NINTH. The amount of capital with which this corporation will commence
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business is the sum of One Thousand Dollars ($1,000).
TENTH. The corporation may enter into contracts or transact business with
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one or more of its officers or directors, or with any firms of which one or more
of its officers or directors is a member, or may invest its funds in the
securities of and may enter into contracts, or transact business with any
corporation or association in which any one or more of its officers or directors
is a stockholder, officer or director, and in the absence of bad faith, or
unfair dealing, such contract or transaction or investment shall not be
invalidated or to any extent affected by the fact that any such officer or
officers or any such director or directors has or may have interests therein
which are or might be adverse to the interests of the corporation, provided that
the remaining directors are sufficient in number to ratify and approve the
transaction.
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ELEVENTH. Each person who was or is made a party or is threatened to be
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made a party to or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she is or was a director,
officer or employee of the corporation or 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 or other enterprise, including service
with respect to an employee benefit plan (hereafter an "indemnitee"), whether
the basis of such proceeding is alleged activity 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
the corporation to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
corporation to provide broader indemnification rights than permitted prior
thereto), against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid in
settlement) reasonably incurred or suffered by such indemnitee in connection
therewith and such indemnification shall continue as to an indemnitee who has
ceased to be a director, officer or employee and shall inure to the benefit of
the indemnitee's heirs, executors and administrators; provided that except with
respect to proceedings to enforce rights to indemnification, the corporation
shall indemnify any such indemnitee 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. The foregoing right of indemnification
shall be in addition to and not exclusive of all other rights to which such
director, officer, or employee may be entitled.
TWELFTH. The affirmative vote of the holders of shares representing not
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less than sixty-six and two-thirds percent (66 2/3%) of the voting power of the
corporation shall be required for the approval of any proposal for the
corporation to reorganize, merge, or consolidate with any other corporation, or
sell, lease, or exchange substantially all of its assets or business. The
amendment, alteration or repeal of this Article TWELFTH, or any portion hereof,
shall require the approval of the holders of shares representing at least sixty-
six and two-thirds percent (66 2/3%) of the voting power of the corporation.
THIRTEENTH. Notwithstanding the provisions of Article TWELFTH, any action
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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 and subject to the rights of the holders of any class or series
of stock having a preference over the Common Stock and the Class A Common Stock
as to dividends or upon liquidation, special meetings of stockholders of the
corporation may be called only by the board of directors pursuant to a
resolution approved by a majority of the entire board of directors.
Notwithstanding anything contained in this Amended and Restated Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at least
66 2/3% 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,
shall be required to alter, amend or adopt any provision inconsistent with or
repeal this Article THIRTEENTH.
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FOURTEENTH. The board of directors shall have power to make, alter, amend
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and repeal the Bylaws of the corporation (except insofar as the Bylaws of the
corporation 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 Amended and Restated Certificate of
Incorporation to the contrary, Sections 3.1, 3.2 and 3.13 of Article III and
Articles VIII and IX of the Bylaws 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 66 2/3% 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. Notwithstanding anything contained in this Amended
and Restated Certificate of Incorporation to the contrary, the affirmative vote
of the holders of at least 66 2/3% 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, shall be required to alter, amend or adopt any
provision inconsistent with or repeal this Article FOURTEENTH.
FIFTEENTH. In addition to any affirmative vote required by law or this
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Amended and Restated Certificate of Incorporation, and except as otherwise
expressly hereinafter provided in this Article:
(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 such other corporation
is 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 (as hereinafter defined) of Fifteen Million Dollars 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 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 Fifteen
Million Dollars 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 an Interested Stockholder or
any Affiliate or any Interested Stockholder; or
(v) any reclassification of securities (including any reverse stock split),
or recapitalization 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
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proportionate share of the outstanding shares of any class of equity or
convertible securities of the corporation or any Subsidiary which is directly
or indirectly owned by an Interested Stockholder or any Affiliate of any
Interested Stockholder:
shall require the affirmative vote of the holders of at least 66 2/3% of the
voting power of all the shares 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 purposes of this Article FIFTEENTH, each
share of the Voting Stock shall have the number of votes granted to it pursuant
to Article FOURTH of this Amended and Restated Certificate of Incorporation).
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.
The term "Business Combination" as used in this Article FIFTEENTH shall mean
any transaction which is referred to in any one or more of clauses (i) through
(v) of the first paragraph of this Article.
The provisions of this Article FIFTEENTH 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
Amended and Restated Certificate of Incorporation, if either of the conditions
hereinafter specified under (a) or (b) are met:
(a) The Business Combination shall have been approved by a majority of the
Disinterested Directors (as hereinafter defined), or
(b) All of the following conditions shall have been met:
(i) 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 Common Stock and the Class
A 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 or Class A
Common Stock acquired by it (1) within the two-year period immediately
prior to the first public announcement of the proposal of the 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 either the Common Stock or the
Class A Common Stock on the Announcement Date or on the date on which
the Interested Stockholder became an Interested Stockholder (such latter
date referred to in this Article as the "Determination Date"), whichever
is higher.
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(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 highest of the
following (it being intended that the requirements of this paragraph shall
be required to be met with respect to every class of outstanding Voting
Stock, whether or not the Interested Stockholder has previously acquired
any shares of a particular class of Voting Stock):
(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 such class of Voting
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:
(b) (if applicable) the highest preferential amount per share which
the holders of shares of such class of Voting Stock are entitled in the
event of any voluntary or involuntary liquidation, dissolution or
winding up of the corporation; and
(c) 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 a particular class
of outstanding Voting Stock (including Common Stock and the Class A Common
Stock) shall be 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 shares of any class of Voting Stock with varying
forms of consideration, the form of consideration for such class of Voting
Stock shall be either cash or the form used to acquire the largest number
of shares of such class of Voting Stock previously acquired by it.
(iv) After such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business Combination:
(a) except as approved by a majority of the Disinterested Directors, there
shall have been no failure to declare and pay at the regular date therefor
any full quarterly dividends (whether or not cumulative) on the
outstanding Preferred Stock; (b) there shall have been (1) no reduction in
the annual rate of dividend paid on the Common Stock and the Class A Common
Stock (except as necessary to reflect any subdivision of the Common Stock
and the Class A 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 Common Stock or the Class A Common Stock, unless the failure so
to increase such annual rate is approved by a majority of the Disinterested
Directors; and (c) such Interested Stockholder shall have not become the
beneficial owner of any additional
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shares of Voting Stock except as part of the transaction which results in
such Interested Stockholder becoming an Interested Stockholder.
(v) After such Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder shall not have received the
benefit, directly or indirectly (except proportionately as a stockholder),
of any loans, advances, guarantees, pledges or other financial assistance
or any tax credits or other tax advantages provided by the corporation,
whether in anticipation of or in connection with such Business Combination
or otherwise.
(vi) A proxy or information statement describing the proposed Business
Combination and complying with the requirements of the Securities Exchange
Act of 1934 and the rules and regulations thereunder (or any subsequent
provisions replacing such Act, rules or regulations) shall be mailed to
public stockholders of the corporation at least 30 days prior to the
consummation of such Business Combination (whether or not such proxy or
information statement is required to be mailed pursuant to such Act or
subsequent provisions).
For the purposes of this Article FIFTEENTH:
A. A "person" shall mean any individual, firm, corporation, partnership,
trust 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 more than 25% 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 25% 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
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(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 purposes of determining whether a person is an Interested
Stockholder pursuant to paragraph B of this Article, the number of shares of
Voting Stock deemed to be outstanding shall include shares deemed owned
through application of paragraph C of this Article 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, 1998.
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, 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.
H. "Fair Market Value" means: (i) in the case of stock, the highest closing
sale price during the 30-day period immediately preceding the date in question
of a share of such stock on the Composite 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, 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 Quotations System or any system then in
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use, or if no such quotations are available, the fair market value on the
date in question of a share of such stock as determined by the board 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 a
majority of Disinterested Directors then on the board of directors.
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
paragraph b(i) and (ii) of this Article shall include the shares of Common
Stock and the Class A Common Stock and/or the shares of any other class of
outstanding Voting Stock retained by the holders of such shares.
A majority of the Disinterested Directors of the corporation shall have the
power and duty to determine for the purposes of this Article FIFTEENTH, 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 Voting 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 the issuance
or transfer of securities by the corporation or any Subsidiary in any Business
Combination has, an aggregate Fair Market Value of Fifteen Million Dollars or
more.
Nothing contained in this Article FIFTEENTH shall be construed to relieve any
Interested Stockholder from any fiduciary obligation imposed by law.
Notwithstanding any other provisions of this Amended and Restated Certificate
of Incorporation or the Bylaws of the corporation (and notwithstanding the fact
that a lesser percentage may be specified by law, this Amended and Restated
Certificate of Incorporation or the Bylaws of the corporation), the affirmative
vote of the holders of at least 66 2/3% or more 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, shall be required to alter, amend
or adopt any provisions inconsistent with or repeal this Article FIFTEENTH.
SIXTEENTH. No director of the corporation shall be liable to the
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corporation or its stockholders for monetary damages, for breach of fiduciary
duty as a director, except for liability (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 knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived an improper
personal benefit.
Any amendment or repeal of this Article SIXTEENTH shall not adversely affect
any right or protection of a director of the corporation existing hereunder in
respect of any act or omission occurring prior to such amendment or repeal.
If the Delaware General Corporation Law shall be amended to authorize
corporate action further eliminating or limiting the liability of directors,
then a director of the corporation, in
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addition to the circumstances in which such director is not liable immediately
prior to such amendment, shall be free of liability to the fullest extent
permitted by the Delaware General Corporation Law, as so amended.
IN WITNESS WHEREOF, New Marriott MI, Inc. has caused this Amended and Restated
Certificate of Incorporation to be signed by its Vice President and Treasurer
and attested to by its Secretary as of March 27, 1998.
NEW MARRIOTT MI, INC.
By: /s/ RAYMOND G. MURPHY
---------------------------------------------
Name: Raymond G. Murphy
Title: Vice President and Treasurer
ATTEST: /s/ W. DAVID MANN
---------------------------------------
Name: W. David Mann
Title: Secretary
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