Exhibit 3.01
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 10/15/1997
971347482 -- 0904589
RESTATED CERTIFICATE OF INCORPORATION
OF
CHOICE HOTELS FRANCHISING, INC.
Choice Hotels Franchising Inc., a corporation duly incorporated on
December 12, 1980, organized and existing under the laws of the State of
Delaware (the "Corporation"), hereby certifies as follows:
FIRST: The original name of the Corporation was Quality Inns
International, Inc. The date of filing of the Corporation's Certificate of
Incorporation with the Secretary of State was December 12, 1980.
SECOND: The board of directors of the Corporation (the "Board of
Directors") adopted a resolution proposing and declaring advisable the following
amendments to and restatement of the Certificate of Incorporation.
THIRD: This Restated Certificate of Incorporation was duly adopted by
the Corporation in accordance with the provisions of Sections 242 and 245 of the
General Corporation Law ("GCL").
FOURTH: The text of the Certificate of Incorporation is hereby amended
and restated as herein set forth in full:
1. The name of the Corporation is CHOICE HOTELS INTERNATIONAL,
INC. (the "Corporation").
2. The address of the Corporation's registered office in the
State of Delaware is 1209 Orange Street, in the City of Wilmington,
County of New Castle. The name of its registered agent at such address
is The Corporation Trust Company.
3. The purpose of the Corporation is to engage in any lawful
act or activity for which corporations may be organized under the GCL.
4. The total number of shares of capital stock of all
classifications which the Corporation shall have authority to issue is
One Hundred Sixty-Five Million (165,000,000), of which One Hundred
Sixty Million (160,000,000) shares having a par value of One Cent
($.01) per share shall be common stock, and Five Million (5,000,000)
shares having a par value of One Cent ($.01) per share shall be
preferred stock.
Shares of common stock of the Corporation may be issued from time to
time in one or more classes or series, each of which class of series shall have
such distinctive designation or title as shall be fixed by the Board of
Directors prior to the issuance of any shares thereof. Each such class or series
of common stock shall have such voting powers (full or limited) or no voting
powers, such preferences and relative participating, other special rights,
relative ranking and such qualifications, limitations or restrictions, as shall
be stated in such resolution or resolutions providing for the issue of such
class or series of common stock as may be adopted from time to time by the Board
of Directors prior to the issuance of any shares thereof pursuant to the
authority hereby expressly vested in it, all in accordance with the laws of the
State of Delaware.
Without limiting the generality of the foregoing, shares of a series of
common stock consisting of Seventy-five Million (75,000,000) shares, or such
larger number of shares as the Board of Directors shall from time to time fix by
resolution or resolutions, may be issued from time to time by the Board of
Directors. Shares of this series shall be designated, and are hereinafter called
"Common Stock."
The holders of record of the Common Stock shall be entitled to the
following rights:
(a) subject to the rights of any holders of any class or
series of capital stock as specified in the resolution providing for
such class or series of capital stock, to vote at all meetings of
stockholders of
the Corporation, and at all such meeting such holders shall have one
vote in respect of each share of Common Stock held of record by them;
(b) subject to the rights of any holders of any class or series
of capital stock having a preference with respect to dividends, to
receive when, if and as declared by the Board of Directors out of the
assets of the Corporation legally available therefor, such dividends as
may be declared by the Corporation from time to time to holders of
Common Stock; and
(e) subject to the rights of any holders of any class or series
of capital, stock having a preference with respect to distribution of
assets upon liquidation or dissolution, to receive the remaining assets
of the Corporation upon liquidation, dissolution or winding-up.
Shares of preferred stock of the Corporation may be issued from time to
time in one or more classes or series, each of which class or series shall have
such distinctive designation or title as shall be fixed by the Board of
Directors prior to the issuance of any shares thereof. Each such class or series
of preferred stock shall have such voting powers (full or limited) or no voting
powers, such preferences and relative participating, optional or other special
rights, relative ranking and such qualifications, limitations or restrictions,
as shall be stated in such resolution or resolutions providing for the issue of
such class or series of preferred stock as may be adopted from time to time by
the Board of Directors prior to the issuance of any shares thereof pursuant to
the authority hereby expressly vested in it, al1 in accordance with the laws of
the State of Delaware.
Subject to the rights of any holders of any class or series of capital
stock, as specified in the resolution providing for such class or series of
capital stock, the holders of Common Smock are expressly denied the preemptive
right to subscribe to any or all additional shares of capital stock of the
Corporation or any or all classes or series thereof.
5. The Corporation expressly elects not to be governed by
Section 203 of the GCL.
6. Subject to the rights of any holders of any class or series
of capital stock as specified in the resolution providing for such
class or series of capital stock, any action required to be taken by
the stockholders of the Corporation must be effected at a duly called
annual or special meeting of stockholders of the Corporation and may
not be effected by any consent in writing of such stockholders in lieu
of a meeting.
Special meetings of the stockholders of the Corporation may be called
only by (i) the Chairman or Vice Chairmnan of the Board of Directors or (ii) the
Secretary at the Corporation within 10 calendar days after receipt of the
written request of a majority of the total number of directors which the
Corporation would have If there were no vacancies (the "Whole Board").
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept
outside the State of Delaware as such place or places as may be designated from
time to time by the Board of Directors or in the Bylaws.
7.
A. Subject to the rights of any holders of any class or series
of capital stock as specified in the resolution providing for such
class or series of capital stock, the business and affairs of the
Corporation shall be managed by or under the direction of the Board of
Directors consisting of not less than 3 nor more than 12 directors, the
exact number of directors to be determined from time to time solely by
resolution adopted by the affirmative vote of a majority of the Whole
Board. The directors shall be divided into three classes, designated
Class I, Class II and Class III. Each Class of directors shall consist,
as nearly as may be possible, of one-third of the total number of
directors constituting the Whole Board. The initial term of the Class I
directors shall expire upon the election and qualification of their
successors at the 1998 annual
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meeting of stockholders; the initial term of the Class II directors
shall expire upon the election and qualification of their successors at
the 1999 annual meeting of stockholders; and the initial term of the
Class III directors shall expire upon the election and qualification of
their successors at the 2000 annual meeting of stockholders. At each
annual meeting of stockholders beginning with the 1998 annual meeting,
successors to the Class of directors whose term expires at that annual
meeting shall be elected for a three-year term and shall hold office
until the annual meeting for the year in which his or her term expires
and until his or her successor shall be elected and shall qualify,
subject, however, to prior death, resignation, retirement,
disqualification or removal from office.
B. Subject to the rights of any holders of any class or series of
capital stock as specified in the resolution providing for such class
or series of capital stock, newly created directorships resulting from
any increase in the number of directors and any vacancies on the Board
of Directors resulting from death, resignation, retirement,
disqualification, removal or other cause will be filled solely 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.
Increases or decreases in the number of directors 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 or any
Class elected to fill a vacancy resulting from an increase in such
Class shall hold office for a term that shall coincide with the
remaining term of that Class, but in no case will a decrease in the
number of directors shorten the term of any incumbent director.
C. The election of directors need not be by written ballot unless
the Bylaws shall so provide.
D. Notwithstanding the foregoing, whenever the holders of any
one or more class or series of capital stock shall have the right,
voting separately as a class or series, to elect directors, the
election, removal, term of office, filling of vacancies and other
features of such directorships shall be governed by the terms of this
Restated Certificate of Incorporation applicable thereto, and such
directors so elected shall not be divided into classes pursuant to
Article 7, Section A, unless expressly provided by such terms.
8. The affirmative vote of the holders of the outstanding shares
of capital stock representing not less than two-thirds of the Voting
Power (as defined) of the Corporation shall he required for the
approval of any proposal for the Corporation to dissolve, liquidate,
merge, or consolidate with any other entity (other than an entity 90%
of the Voting Power of which is owned by the Corporation), or sell,
lease or exchange al1 or substantially al1 of its property and assets,
including its goodwill and its corporate franchises. "Voting Powers"
means the total number of votes that may be cast by holders of capital
stock in the election of directors.
9. The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by statute,
and al1 rights conferred upon stockholders herein are granted subject
to this reservation. Notwithstanding anything contained in this
Restated Certificate of Incorporation to the contrary, the affirmative
vote of the holders of, the outstanding shares of capital stock
representing not less than two-thirds of the Voting Power of the
Corporation shall be required to amend alter, change or repeal, or to
adopt any provision inconsistent with, Article 8 of this Restated
Certificate of Incorporation. The Board of Directors shall have the
power to make, adopt, alter, amend, change or repeal the Bylaws by
resolution adopted by the affirmative vote of a majority of the Whole
Board. Stockholders may not make, adopt, alter, amend, change or repeal
the Bylaws except upon the affirmative vote of the holders of the
outstanding shares of capital stock representing not less than two-
thirds of the Voting Power of the Corporation and no Bylaws hereafter
adopted by the stockholders or otherwise shall invalidate any prior act
of the directors which would have been valid if such Bylaws had not
been adopted.
10.
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A. No director of the Corporation shall be liable to the
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 a knowing violation of law, (iii)
under Section 174 of the GCL, or (iv) for any transaction from which
the director derived an improper personal benefit. No amendment to or
repeal of this Article 10 shall apply to or have any effect on the
liability or alleged liability of any director of the Corporation for
or with respect to any acts or omissions of such director occurring
prior to such amendment or repeal. If the GCL is amended hereafter to
further limit the liability of a director, then the liability of a
director of the Corporation shall be further limited to the fullest
extent permitted by the GCL, as so amended.
B. The Corporation shall Indemnify each person who is or was or
has agreed to become a director or officer of the Corporation, and may
indemnify other employees and agents of the Corporation, to the fullest
extent permitted by Section 145 of the GCL, as the same may be amended
or supplemented, against al1 expenses and liabilities (including, but
not limited to, counsel fees) reasonably incurred by or imposed upon
such person in connection with any proceeding to which he or she may be
made a party, or in which he or she may become involved, by reason of
his or her being or having been a director, officer, employee or agent
of the Corporation, or any settlement thereof, whether or not he or she
is a director, officer, employee or agent is adjudged guilty of willful
misfeasance or malfeasance in the performance of his or her duties;
provided that in the event of a settlement the indemnification herein
shall apply only when the Board of Directors approves such settlement
and reimbursement as being for the best interests of the Corporation.
Without limiting the generality or the effect of the foregoing, the
Corporation may adopt Bylaws, or enter into one or more agreements with
any person, which provide for indemnification greater or different than
that provided in this Article 10 or the GCL and the foregoing, right of
indemnification shall be in addition to and not exclusive of al1 other
rights to which such director, officer, employee or agent may be
entitled.
C. The Corporation may purchase insurance on behalf of any
person who is a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as
a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any
liability asserted by him or her and incurred by him or her in any such
capacity, or arising out of his or her status as such, whether or not
the Corporation would have the power or the obligation to indemnity him
or her against such liability under the provisions of this Article 10.
11. The Board of Directors, each committee of the Board of
Directors and each individual director, in discharging their respective
duties under applicable law and this Restated Certificate of
Incorporation and in determining what they each believe to be in the
best interests of the Corporation and its stockholders, may consider
the effects, both short-term and long-term, of any action or proposed
action taken or to be taken by the Corporation, the Board of Directors
or any committee of the Board of Directors on the interests of (i) the
employees, franchisees, licensees, customers, suppliers and/or
creditors of the Corporation and its subsidiaries and (ii) the
communities in which the Corporation and its subsidiaries own or lease
property or conduct business, all to the extent that the Board of
Directors, any committee of the Board of Directors or any individual
director deems pertinent under the circumstances; provided, however,
that the provisions of this Article II shall not limit in any way the
right of the Board of Directors to consider any other lawful factors in
making its determinations, including, without limitation, the effects,
both short-term and long-term, or any action or proposed action on the
Corporation or its stockholders directly; and provided further that
this Article II shall be deemed solely to grant discretionary authority
to the Board of Directors, each committee of the Board of Directors and
each individual director and shall not be deemed to provide to any
specific constituency any right to be considered.
12. Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of
equitable jurisdiction within the State of Delaware may, on the
application in a summary way of this Corporation or of any creditor or
stockholder thereof or on the application of any receiver or
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receivers appointed for this Corporation under the provisions of
Section 291 of the GCL or on the application of trustees in dissolution
or of any receiver or receivers appointed for this Corporation under
the provisions of Section 279 of the GCL, order a meeting of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, to be summoned in
such manner as the said court directs. If a majority in number
representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement
and to any reorganization of this Corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the
said reorganization shall, if sanctioned by the court to which the said
application has been made, be binding on al1 the creditors or class of
creditors, and/or on all the stockholders or class of stockholders, of
this Corporation, as the case may be, and also on this Corporation.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation has been
signed by Michael J. DeSantis, its authorized officer as of this 15th day of
October, 1997.
/s/ Michael J. DeSantis
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Name: Michael J. DeSantis
Title: Senior Vice President, General Counsel and
Secretary
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