Exhibit 3
THIRD AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
MARRIOTT INTERNATIONAL, INC.
Marriott International, 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 "Marriott International, Inc."
The name under which the corporation was originally incorporated is New Marriott
MI, Inc., and the original Certificate of Incorporation of the corporation was
filed with the Secretary of State of the State of Delaware on September 19,
1997.
2. This Third 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 Third 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.
-----
SECOND. The address of its registered office in the State of Delaware is
------
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
-----
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
------
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
Class A Common Stock, with par value of $0.01 per share (the "Class A Common
Stock"); and (ii) ten million (10,000,000) shares of preferred stock, without
par value (the "Preferred Stock").
-1-
The shares of authorized Class A Common Stock of the corporation shall be
identical in all respects and shall have equal rights and privileges. Each
issued and outstanding share of Class A Common Stock shall have ten votes on all
matters submitted to a vote of the stockholders of the corporation.
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,
of 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.
The Preferred Stock may be issued 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.
Pursuant to authority conferred by this Article FOURTH, the board of
directors of the corporation has designated a series of Preferred Stock as the
Series A Junior Participating Preferred Stock, consisting of the number of
shares, with such voting powers and with such designations, preferences and
relative, participating, optional or other special rights, and qualifications,
limitations or restrictions thereof as are stated in Exhibit A attached hereto
and incorporated herein by reference.
FIFTH. THIS SECTION INTENTIONALLY LEFT BLANK.
-----
SIXTH. The corporation is to have perpetual existence.
-----
SEVENTH. The private property of the stockholders shall not be subject to
-------
the payment of the corporate debts to any extent whatsoever.
-2-
EIGHTH. Except as otherwise 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 Class A Common Stock as to
dividends or upon liquidation to elect 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 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 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 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.
-3-
Notwithstanding anything contained in this Third 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.
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 Third 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
-----
business is the sum of One Thousand Dollars ($1,000).
TENTH. The corporation may enter into contracts or transact business with
-----
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
-4-
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.
ELEVENTH. Each person who was or is made a party or is threatened to be
--------
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
-------
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
----------
required or permitted to be taken by the stockholders of the corporation must be
effected
-5-
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 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
Third 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.
FOURTEENTH. The board of directors shall have power to make, alter, amend
----------
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 Third 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 Third
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
---------
Third 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
-6-
(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 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 Third 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
Third 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:
-7-
(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 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 Class A
Common Stock or 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 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.
(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.
-8-
(iii) The consideration to be received by holders of a particular
class of outstanding Voting Stock (including 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 Class A Common Stock (except as necessary to
reflect any subdivision of 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 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 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).
-9-
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
(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
-10-
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 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 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
-11-
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 Third 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
Third 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
---------
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 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.
-12-
IN WITNESS WHEREOF, Marriott International, Inc. has caused this Third
Amended and Restated Certificate of Incorporation to be signed by its Vice
President as of May 6, 1999.
MARRIOTT INTERNATIONAL, INC.
BY: s/RAYMOND G. MURPHY
----------------------------
Name: Raymond G. Murphy
Title: Vice President and Treasurer
-13-
EXHIBIT A
RESOLVED, that pursuant to the authority vested in the board of
directors of this corporation in accordance with the provisions of its Amended
and Restated Certificate of Incorporation, a series of Preferred Stock, no par
value, stated value of $1,000 per share, of the corporation is created, and that
the designation and amount thereof and the voting powers, preferences and
relative, participating, optional and other special rights of the shares of such
series, and the qualifications, limitations or restrictions thereof are as
follows:
Section 1. Designation and Amount. The shares of such series shall
----------------------
be designated as "Series A Junior Participating Preferred Stock" and the number
of shares constituting such series shall be 800,000.
Section 2. Dividends and Distributions.
---------------------------
(A) Subject to the prior and superior rights of the holders of any
shares of any series of Preferred Stock ranking prior and superior to the shares
of Series A Junior Participating Preferred Stock with respect to dividends, the
holders of shares of Series A Junior Participating Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of directors out of
funds legally available for the purpose, quarterly dividends payable in cash on
the last day of March, June, September and December in each year (each such date
being referred to herein as a "Quarterly Dividend Payment Date"), commencing on
the first Quarterly Dividend Payment Date after the first issuance of a share or
fraction of a share of Series A Junior Participating Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the greater of (a) $10
or (b) subject to the provision for adjustment hereinafter set forth, 1,000
times the aggregate per share amount of all cash dividends, and 1,000 times the
aggregate per share amount (payable in kind) of all non-cash dividends or other
distributions other than a dividend payable in shares of Class A Common Stock,
par value $.01 per share of the corporation or a subdivision of the outstanding
shares of Class A Common Stock (by reclassification or otherwise), declared on
the Class A Common Stock, since the immediately preceding Quarterly Dividend
Payment Date, or, with respect to the first Quarterly Dividend Payment Date,
since the first issuance of any share or fraction of a share of Series A Junior
Participating Preferred Stock. In the event the corporation shall at any time
after March 9, 1998 (the "Rights Dividend Declaration Date") (i) declare any
dividend on Class A Common Stock payable in shares of Class A Common Stock, (ii)
subdivide the outstanding Class A Common Stock or (iii) combine the outstanding
Class A Common Stock into a smaller number of shares, then in each such case the
amount to which holders of shares of Series A Junior Participating Preferred
Stock were entitled immediately prior
A-1
to such event under clause (b) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction the numerator of which is the number of
shares of Class A Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Class A Common Stock that were
outstanding immediately prior to such event.
(B) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Junior Participating Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares of Series
A Junior Participating Preferred Stock, unless the date of issue of such shares
is prior to the record date for the first Quarterly Dividend Payment Date, in
which case dividends on such shares shall begin to accrue from the date of issue
of such shares, or unless the date of issue is a Quarterly Dividend Payment Date
or is a date after the record date for the determination of holders of shares of
Series A Junior Participating Preferred Stock entitled to receive a quarterly
dividend and before such Quarterly Dividend Payment Date, in either of which
events such dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series A Junior Participating
Preferred Stock in an amount less than the total amount of such dividends at the
time accrued and payable on such shares shall be allocated pro rata on a share-
by-share basis among all such shares at the time outstanding. The Board of
directors may fix a record date for the determination of holders of shares of
Series A Junior Participating Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date shall be no more
than 30 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Junior
-------------
Participating Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series A Junior Participating Preferred Stock shall entitle
the holder thereof to 1,000 votes on all matters submitted to a vote of the
stockholders of the corporation. In the event the corporation shall at any time
after the Rights Dividend Declaration Date (i) declare any dividend on Class A
Common Stock payable in shares of Class A Common Stock, (ii) subdivide the
outstanding Class A Common Stock or (iii) combine the outstanding Class A Common
Stock in a smaller number of shares, then in each such case the number of votes
per share to which holders of shares of Series A Junior Participating Preferred
Stock were entitled immediately prior to such event shall be adjusted by
multiplying such number by a fraction the numerator of which is the number of
shares of Class A Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Class A Common Stock that were
outstanding immediately prior to such event.
A-2
(B) Except as otherwise provided herein or by law, the holders
of shares of Series A Junior Participating Preferred Stock and the holders of
shares of Class A Common Stock shall vote together as one class on all matters
submitted to a vote of stockholders of the corporation.
(C) (i) If at any time dividends on any Series A Junior
Participating Preferred Stock shall be in arrears in an amount equal to six (6)
quarterly dividends thereon, the occurrence of such contingency shall mark the
beginning of a period (herein called a "default period") which shall extend
until such time when all accrued and unpaid dividends for all previous quarterly
dividend periods and for the current quarterly dividend period on all shares of
Series A Junior Participating Preferred Stock then outstanding shall have been
declared and paid or set apart for payment. During each default period, all
holders of Preferred Stock (including holders of the Series A Junior
Participating Preferred Stock) with dividends in arrears in an amount equal to
six (6) quarterly dividends thereto, voting as a class, irrespective of series,
shall have the right to elect two (2) Directors.
(ii) During any default period, such voting rights of the
holders of Series A Junior Participating Preferred Stock may be exercised
initially at a special meeting called pursuant to subparagraph (iii) of this
Section 3(C) or at any annual meeting of stockholders, and thereafter at annual
meetings of stockholders, provided that neither such voting right nor the right
of the holders of any other series of Preferred Stock, if any, to increase, in
certain cases, the authorized number of Directors shall be exercised unless the
holders of one-third in number of shares of Preferred Stock outstanding shall be
present in person or by proxy. The absence of a quorum of the holders of Class A
Common Stock shall not affect the exercise by the holders of Preferred Stock of
such voting right. At any meeting at which the holders of Preferred Stock shall
exercise such voting right initially during an existing default period, they
shall have the right, voting as a class, to elect Directors to fill such
vacancies, if any, in the Board of Directors as may then exist up to two (2)
Directors, and if such right is exercised at an annual meeting, to elect two (2)
Directors. If the number which may be so elected at any special meeting does not
amount to the required number, the holders of the Preferred Stock shall have the
right to make such increase in the number of Directors as shall be necessary to
permit the election by them of the required number. After the holders of the
Preferred Stock shall have exercised their right to elect Directors in any
default period and during the continuance of such period, the number of
Directors shall not be increased or decreased except by vote of the holders of
Preferred Stock as herein provided or pursuant to the rights of any equity
securities ranking senior to or pari passu with the Series A Junior
---- -----
Participating Preferred Stock.
A-3
(iii) Unless the holders of Preferred Stock shall, during
an existing default period, have previously exercised their right to elect
Directors, the Board of Directors may order, or any stockholder or stockholders
owning in the aggregate not less than ten percent (10%) of the total number of
shares of Preferred Stock outstanding, irrespective of series, may request, the
calling of a special meeting of the holders of Preferred Stock, which meeting
shall thereupon be called by the President, a Vice President or the Secretary of
the corporation. Notice of such meeting and of any annual meeting at which
holders of Preferred Stock are entitled to vote pursuant to this paragraph
(C)(iii) shall be given to each holder of record of Preferred Stock by mailing a
copy of such notice to such holder at their last address as the same appears on
the books of the corporation. Such meeting shall be called for a time not
earlier than 20 days and not later than 60 days after such order or request or
in default of the calling of such meeting within 60 days after such order or
request, such meeting may be called on similar notice by any stockholder or
stockholders owning in the aggregate not less than ten percent (10%) of the
total number of shares of Preferred Stock outstanding. Notwithstanding the
provisions of this paragraph (C)(iii), no such special meeting shall be called
during the period within 60 days immediately preceding the date fixed for the
next annual meeting of the stockholders.
(iv) In any default period, the holders of Class A Common
Stock, and other classes of stock of the corporation if applicable, shall
continue to be entitled to elect the whole number of Directors until the holders
of Preferred Stock shall have exercised their right to elect two (2) Directors
voting as a class, after the exercise of which right (x) the directors so
elected by the holders of Preferred Stock shall continue in office until the
successors shall have been elected by such holders or until the expiration of
the default period, and (y) any vacancy in the Board of directors may (except as
provided in paragraph (C)(ii) of this Section 3) be filled by vote of a majority
of the remaining Directors theretofore elected by the holders of the class of
stock which elected the Director whose office shall have become vacant.
References in this paragraph (C) to Directors elected by the holders of a
particular class of stock shall include Directors elected by such Directors to
fill vacancies as provided in clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a default period,
(x) the right of the holders of Preferred Stock as a class to elect Directors
shall cease, (y) the term of any Directors elected by the holders of Preferred
Stock as a class shall terminate, and (z) the number of Directors shall be such
number as may be provided for in the certificate of incorporation or by-laws
irrespective of any increase made pursuant to the provisions of paragraph
(C)(ii) of this Section 3 (such number being subject, however, to change
thereafter in any manner provided by law or in the certificate of incorporation
or
A-4
by-laws). Any vacancies in the Board of directors effected by the provisions of
clauses (y) and (z) in the preceding sentence may be filled by a majority of the
remaining Directors.
(D) Except as set forth herein, holders of Series A Junior
Participating Preferred Stock shall have no special voting rights and their
consent shall not be required (except to the extent they are entitled to vote
with holders of Class A Common Stock as set forth herein) for taking any
corporate action.
Section 4. Certain Restrictions.
--------------------
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Junior Participating Preferred Stock as
provided in Section 2 are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on shares of Series
A Junior Participating Preferred Stock outstanding shall have been paid in full,
the corporation shall not
(i) declare or pay dividends on, make
any other distributions on, or redeem, purchase or otherwise acquire for
consideration any shares of stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series A Junior
Participating Preferred Stock;
(ii) declare or pay dividends on or
make any other distributions on any shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up)
with the Series A Junior Participating Preferred Stock, except dividends
paid ratably on the Series A Junior Participating Preferred Stock and all
such parity stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all such shares are
then entitled;
(iii) redeem or purchase or otherwise
acquire for consideration shares of any stock ranking on a parity (either
as to dividends or upon liquidation, dissolution or winding up) with the
Series A Junior Participating Preferred Stock, provided that the
corporation may at any time redeem, purchase or otherwise acquire shares of
any such parity stock in exchange for shares of any stock of the
corporation ranking junior (either as to dividends or upon dissolution,
liquidation or winding up) to the Series A Junior Participating Preferred
Stock;
A-5
(iv) purchase or otherwise acquire for
consideration any shares of Series A Junior Participating Preferred Stock,
or any share of stock ranking on a parity with the Series A Junior
Participating Preferred Stock, except in accordance with a purchase offer
made in writing or by publication (as determined by the Board of directors)
to all holders of such shares upon such terms as the Board of directors,
after consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and classes, shall
determine in good faith will result in fair and equitable treatment among
the respective series or classes.
(B) The corporation shall not permit any subsidiary of the
corporation to purchase or otherwise acquire for consideration any shares of
stock of the corporation unless the corporation could, under paragraph (A) of
this Section 4, purchase or otherwise acquire such shares at such time and in
such manner.
Section 5. Retired Shares. Any shares of Series A Junior
--------------
Participating Preferred Stock purchased or otherwise acquired by the corporation
in any manner whatsoever shall be retired and cancelled promptly after the
acquisition thereof. All such shares shall upon their cancellation become
authorized but unissued shares of Preferred Stock and may be reissued as part of
a new series of Preferred Stock to be created by resolution or resolutions of
the board of directors, subject to the conditions and restrictions on issuance
set forth herein.
Section 6. Liquidation, Dissolution or Winding Up.
--------------------------------------
(A) Upon any liquidation (voluntary or otherwise), dissolution
or winding up of the corporation, no distribution shall be made to the holders
of shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Junior Participating Preferred Stock
unless, prior thereto, the holders of shares of Series A Junior Participating
Preferred Stock shall have received $1,000 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment (the "Series A Liquidation Preference"). Following
the payment of the full amount of Series A Liquidation Preference, no additional
distributions shall be made to the holders of shares of Series A Junior
Participating Preferred Stock unless, prior thereto, the holders of shares of
Class A Common Stock shall have received an amount per share (the "Common
Adjustment") equal to the quotient obtained by dividing (i) the Series A
Liquidation Preference by (ii) 1,000 (as appropriately adjusted as set forth in
subparagraph C below to reflect such events as stock splits, stock dividends and
recapitalizations with respect to the Class A Common Stock) (such number in
clause (ii) immediately above being referred to as the "Adjustment Number").
Following the payment of the full amount of the Series A Liquidation Preference
and the Common Adjustment in respect of all outstanding shares of Series A
Junior Participating Preferred Stock and Class A Common Stock, respectively,
holders of
A-6
Series A Junior Participating Preferred Stock and holders of shares
of Class A Common Stock shall receive their ratable and proportionate share of
the remaining assets to be distributed in the ratio of the Adjustment Number to
one (1) with respect to such Preferred Stock and Class A Common Stock, on a per
share basis, respectively.
(B) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series A Liquidation Preference and
the liquidation preferences of all other series of Preferred Stock, if any,
which rank on a parity with the Series A Junior Participating Preferred Stock,
then such remaining assets shall be distributed ratably to the holders of such
parity shares in proportion to their respective liquidation preferences. In the
event, however, that there are not sufficient assets available to permit payment
in full of the Common Adjustment, then such remaining assets shall be
distributed ratably to the holders of Class A Common Stock.
(C) In the event the corporation shall at any time after the
Rights Dividend Declaration Date (i) declare any dividend on Class A Common
Stock payable in shares of Class A Common Stock, (ii) subdivide the outstanding
Class A Common Stock or (iii) combine the outstanding Class A Common Stock into
a smaller number of shares, then in each such case the Adjustment Number in
effect immediately prior to such event shall be adjusted by multiplying such
Adjustment Number by a fraction the numerator of which is the number of shares
of Class A Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Class A Common Stock that were
outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the corporation shall
---------------------------
enter into any consolidation, merger, combination or other transaction in which
the shares of Class A Common Stock are exchanged for or changed into other stock
or securities, cash and/or any other property, then in any such case the shares
of Series A Junior Participating Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share (subject to the provision
for adjustment hereinafter set forth) equal to 1,000 times the aggregate amount
of stock, securities, cash and/or any other property (payable in kind), as the
case may be, into which or for which each share of Class A Common Stock is
changed or exchanged. In the event the corporation shall at any time after the
Rights Dividend Declaration Date (i) declare any dividend on Class A Common
Stock payable in shares of Class A Common Stock, (ii) subdivide the outstanding
Class A Common Stock or (iii) combine the outstanding Class A Common Stock into
a smaller number of shares, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of shares of Series A
Junior Participating Preferred Stock shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of shares of Class A
Common Stock outstanding immediately after such event and the
A-7
denominator of which is the number of shares of Class A Common Stock that were
outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series A Junior
-------------
Participating Preferred Stock shall not be redeemable.
Section 9. Ranking. The Series A Junior Participating Preferred
-------
Stock shall rank junior to all other series of the corporation's Preferred Stock
as to the payment of dividends and the distribution of assets, unless the terms
of any such series shall provide otherwise.
Section 10. Amendment. The Certificate of Incorporation of the
---------
corporation shall not be further amended in any manner which would materially
alter or change the powers, preferences or special rights of the Series A Junior
Participating Preferred Stock so as to affect them adversely without the
affirmative vote of the holders of a majority or more of the outstanding shares
of Series A Junior Participating Preferred Stock, voting separately as a class.
Section 11. Fractional Shares. Series A Junior Participating
-----------------
Preferred Stock may be issued in fractions of a share but no such fraction shall
be less than one one-thousandth of a share which shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have the benefit of all
other rights of holders of Series A Junior Participating Preferred Stock.
A-8