EXHIBIT 3.1(c)
(Conformed copy giving effect to all
amendments since the date of this
Amended and Restated Certificate of
Incorporation)
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
EXTENDED STAY AMERICA, INC.
(Original Certificate of Incorporation filed October 20, 1995)
Extended Stay America, Inc., a corporation organized and existing
under the laws of the State of Delaware, hereby certifies as follows:
1. The corporation's name is Extended Stay America, Inc. The date of
filing of the corporation's original certificate of incorporation with the
Delaware Secretary of State was January 9, 1995. The date of filing of the
corporation's first amendment to its certificate of incorporation was July 12,
1995.
2. Pursuant to and in accordance with the provisions of Sections 242 and
245 of the General Corporation Law of the State of Delaware, this Restated
Certificate of Incorporation further amends the provisions of the certificate of
incorporation of the corporation and has been duly adopted by written consent of
the holders of all of the outstanding stock entitled to vote thereon.
3. The text of the corporation's certificate of incorporation, as
heretofore amended or supplemented, is hereby restated and further amended to
read in its entirety as follows:
FIRST: The name of the Corporation is: EXTENDED STAY AMERICA, INC.
(the "Corporation").
SECOND: The registered office of the Corporation in the State of
Delaware is located at Corporation Trust Center, 1209 Orange Street, in the City
of Wilmington, County of New Castle. The name and address of its registered
agent is The Corporation Trust Company, Corporation Trust Center, 1209 Orange
Street, Wilmington, Delaware 19801.
THIRD: The purpose of the Corporation is to engage, directly or
indirectly, in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware, either alone or with
others through wholly or partially owned subsidiaries, as a partner (limited or
general) in any partnership, as a joint venturer in any joint venture, or
otherwise.
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 510,000,000 of which (i)
500,000,000 shares, par
value $.01 per share, are to be of a class designated Common Stock ("Common
Stock") and (ii) 10,000,000 shares, par value $.01 per share, are to be of a
class designated Preferred Stock ("Preferred Stock")."
4.1 Common Stock Provisions.
4.1.1 Dividend Rights. Subject to the provisions of applicable law
and the preferences of the Preferred Stock, the holders of the Common Stock
shall be entitled to receive dividends at such times and in such amounts as
may be determined by the Board of Directors.
4.1.2 Voting Rights. The holders of Common Stock shall have one vote
for each share on each matter submitted to a vote or consent of the
stockholders of the Corporation.
4.1.3 Liquidation Rights. In the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary or
involuntary, after payment or provision for payment of the debts and other
liabilities of the Corporation and the preferential amounts to which the
holders of the Preferred Stock shall be entitled, the holders of the Common
Stock shall be entitled to share ratably in the remaining assets of the
Corporation.
4.2 Preferred Stock Provisions.
4.2.1 The Preferred Stock may be issued from time to time in one or
more series. Subject to limitations prescribed by law and the provisions of
this Restated Certificate of Incorporation or any amendment hereto, authority is
expressly granted to the Board of Directors to authorize the issue of one or
more series of Preferred Stock without any vote or other action by the
stockholders of the Corporation, and to fix by a Preferred Stock Designation the
voting powers, designations, preferences and relative, participating, optional
or other special rights, and the qualifications, limitations and restrictions
thereof to the full extent now or hereafter permitted by law, including but not
limited to the following:
(a) The number of shares constituting that series and the distinctive
designation of that series;
(b) The dividend rate (or method of determining such rate) on the
shares of that series, the conditions and dates upon which such
dividends shall be payable, whether such dividends shall be
cumulative, and, if so, from which date or dates, and the relative
rights of priority, if any, of payment of dividends on shares of that
series to the dividends payable on any other class or series of stock
of the Corporation;
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(c) Whether that series shall have voting rights, in addition to the
voting rights provided by law, and, if so, the terms of such voting
rights;
(d) Whether or not the shares of that series shall be convertible into
or exchangeable for shares of any other class or classes or of any
other series of any class or classes of stock of the Corporation, or
convertible into or exchangeable for other securities of the
Corporation or securities of any other corporation, partnership or
other person or entity, and, if so, the times, prices, rates,
adjustments, and other terms and conditions of such conversion or
exchange;
(e) Whether or not the shares of that series shall be redeemable, in
whole or in part, at the option of the Corporation or at the option of
the holder thereof or upon the happening of a specified event, and, if
so, the times, prices and other terms and conditions of such
redemption;
(f) Whether that series shall have a sinking fund for the redemption
or purchase of shares of that series, and, if so, the terms and amount
of such sinking fund;
(g) The rights of the shares of that series in the event of the
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, and the relative rights of priority, if any, with respect
to payment of amounts payable in such event on shares of that series
to amounts payable in such event on shares of any other class or
series of stock of the Corporation; and
(h) Any other relative rights, preferences and limitations of that
series.
4.2.2 All shares of any one series of Preferred Stock shall be
identical except as to dates of issue and the dates from which dividends on
shares of the series issued on different dates shall cumulate (if cumulative).
4.2.3 If upon any voluntary or involuntary liquidation, dissolution
or winding up of the Corporation, the assets available for distribution to
holders of shares of Preferred Stock of all series shall be insufficient to pay
such holders the full preferential amount to which they are entitled, then such
assets shall be distributed ratably among the shares of all series of Preferred
Stock in accordance with the respective preferential amounts (including unpaid
cumulative dividends, if any) payable with respect thereto.
4.3 Other Provisions.
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4.3.1 The Board of Directors shall have authority to authorize the
issuance, from time to time without any vote or other action by the stockholders
of the Corporation, of any or all shares of stock of the Corporation of any
class at any time authorized, and any securities convertible into or
exchangeable for any such shares, in each case to such persons and for such
consideration and on such terms as the Board of Directors from time to time in
its discretion lawfully may determine; provided, however, that the consideration
for the issuance of shares of stock of the Corporation having par value shall
not be less than such par value. Shares so issued, for which the consideration
has been paid to the Corporation, shall be fully paid stock, and the holders of
such stock shall not be liable to any further call or assessments thereon.
4.3.2 No holder of stock of any class or series of the Corporation,
nor of any security convertible into or exchangeable for stock of any class or
series of the Corporation, nor of any warrant, option or right to purchase,
subscribe for or otherwise acquire stock of any class or series of the
Corporation, whether now or hereafter authorized, shall, as such holder, have
any preemptive right whatsoever to purchase, subscribe for or otherwise acquire
stock of any class or series of the Corporation, or any security convertible
into or exchangeable for, or any warrant, option or right to purchase, subscribe
for or otherwise acquire, stock of any class or series of the Corporation,
whether now or hereafter authorized. Nothing in this Section 4.3.2 shall be
deemed to eliminate or limit the ability of the Corporation to grant by contract
a preemptive right to purchase, subscribe for or otherwise acquire stock of any
class or series of the Corporation or any security convertible into or
exchangeable for, or any warrant, option or right to purchase, subscribe for or
otherwise acquire, stock of any class or series of the Corporation, whether now
or hereafter authorized.
4.3.3 The Board of Directors may set a record date, in the manner and
for the purposes authorized in the bylaws of the Corporation, with respect to
shares of stock of the Corporation of any class or series.
FIFTH:
5.1 From and after the date of the closing of the initial public
offering of the Common Stock, no action required to be taken or which may be
taken at any annual or special meeting of stockholders of the Corporation may be
taken without a meeting, and the power of stockholders to consent in writing,
without a meeting, to the taking of any action is specifically denied. Meetings
of stockholders may be held within or outside the State of Delaware, as the
bylaws may provide.
5.2 Special meetings of stockholders of the Corporation may be called
only by the Chairman of the Board or by the Board of Directors pursuant to a
resolution adopted by the affirmative vote of a majority of the entire Board of
Directors.
5.3 At a meeting of the stockholders of the Corporation, only such
business shall be conducted which has been properly brought before the meeting.
To be properly brought before a meeting of the stockholders, business must be
(i) specified in the notice of meeting (or any supplement thereto) given by, or
at the direction of, the Board of Directors or (ii) otherwise
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properly brought before the meeting by or at the direction of the Board of
Directors or by a stockholder. For business to be properly brought before a
meeting by a stockholder, the stockholder must have given timely notice of the
business to the Corporate Secretary of the Corporation. To be timely, a
stockholder's notice must be in writing delivered to or mailed, postage prepaid,
and received by the Corporate Secretary not less than 60 days nor more than 120
days prior to the meeting; provided, however, that if less than 65 days' notice
or prior public disclosure of the date of the meeting is given to stockholders,
notice by the stockholder to be timely must be received by the Corporate
Secretary not later than the close of business on the seventh day following the
day on which notice of the date of the meeting was mailed or public disclosure
was made. For each matter the stockholder proposes to bring before the meeting,
the notice to the Corporate Secretary shall include (i) a brief description of
the business desired to be brought before the meeting and the reasons for
conducting the business at the meeting, (ii) the name and address, as they
appear on the Corporation's books, of the stockholder proposing the business,
(iii) the class and number of shares of the Corporation which are beneficially
owned by the stockholder and (iv) any material interest of the stockholder in
such business. Notwithstanding anything in the Corporation's bylaws to the
contrary, no business shall be conducted at the meeting except in accordance
with the procedures set forth in this Section 5.3. The chairman of a meeting
shall, if the facts warrant, determine and declare to the meeting that business
was not properly brought before the meeting in accordance with the provisions of
this Section 5.3. If the chairman determines that business was not properly
brought before the meeting in accordance with the provisions of this Section
5.3, the business shall not be transacted.
5.4 Notwithstanding any other provisions of this Restated Certificate
of Incorporation or any provision of law which might permit a lesser vote or no
vote, but in addition to any affirmative vote of the holders of any particular
class or series of the capital stock of the Corporation required by law, this
Restated Certificate of Incorporation or any amendment hereto or any Preferred
Stock Designation, the affirmative vote of the holders of at least 66-2/3% of
the voting power of all of the then outstanding shares of capital stock of the
Corporation entitled to vote on all matters submitted to the stockholders of the
Corporation generally (the "Voting Stock") shall be required to alter, amend,
repeal, or adopt any provision inconsistent with this Article FIFTH.
SIXTH: Whenever a compromise or arrangement is proposed between this
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 receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code 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 Title 8 of the
Delaware Code 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,
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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 a 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 all 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.
SEVENTH: The Corporation is to have perpetual existence.
EIGHTH:
8.1 The business and affairs of the Corporation shall be managed by
or under the direction of the Board of Directors. The number of the directors
of the Corporation shall be fixed from time to time by resolution adopted by the
affirmative vote of a majority of the entire Board of Directors of the
Corporation, except that the minimum number of directors shall be fixed at no
less than 3 and the maximum number of directors shall be fixed at no more than
15.
8.2 Nominations for election to the Board of Directors of the
Corporation at a meeting of stockholders may be made by the Board of Directors,
on behalf of the Board of Directors by any nominating committee appointed by the
Board of Directors, or by any stockholder of the Corporation entitled to vote
for the election of directors at the meeting. Nominations, other than those
made by or on behalf of the Board of Directors, shall be made by notice in
writing delivered to or mailed, postage prepaid, and received by the Corporate
Secretary not less than 60 nor more than 120 days prior to any meeting of
stockholders called for the election of directors; provided, however, that if
less than 65 days notice or prior public disclosure of the date of the meeting
is given to stockholders, the nomination must be received by the Corporate
Secretary not later than the close of business on the seventh day following the
day on which notice of the date of the meeting was mailed or public disclosure
was made. The notice shall set forth: (i) the name and address, as they appear
on the Corporation's books, of the stockholder who intends to make the
nomination; (ii) the name, age, business address and, if known, residence
address of each nominee; (iii) the principal occupation or employment of each
nominee; (iv) the class and number of shares of stock of the Corporation which
are beneficially owned by each nominee and by the nominating stockholder; (v)
any other information concerning the nominee that must be disclosed of nominees
in a proxy solicitation pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended; and (vi) the executed consent of each nominee to being
named in the proxy statement for such proxy solicitation as a nominee, and to
serve as a director of the Corporation, if elected. The chairman of the meeting
of stockholders may, if the facts warrant, determine that a nomination was not
made in accordance with the foregoing procedures, and if the chairman should so
determine, the chairman shall so declare to the meeting and the defective
nomination shall be disregarded.
8.3 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 directors then in office, even though
less than a quorum, or by the sole remaining director, as the
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case may be. A director shall hold office until the first annual meeting of
stockholders next succeeding their election 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.
8.4 Notwithstanding the foregoing Sections 8.1, 8.2 and 8.3 of this
Article EIGHTH, whenever the holders of any one or more classes or series of
Preferred Stock issued by the Corporation shall have the right, voting
separately by class or series, to elect directors at an annual or special
meeting of stockholders, (i) the election, filling of vacancies and other
features of such directorships shall be governed by the terms of this Restated
Certificate of Incorporation or the Preferred Stock Designation applicable to
such class or series of Preferred Stock, (ii) the then authorized number of
directors of the Corporation shall be increased by the number of additional
directors to be elected, and (iii) the directors so elected shall serve a term
which shall expire at the annual meeting of stockholders next succeeding their
election or as otherwise specified by the terms of this Restated Certificate of
Incorporation or the Preferred Stock Designation applicable to such class or
series.
8.5 Unless and except to the extent that the bylaws of the
Corporation shall so require, the election of directors of the Corporation need
not be by written ballot.
8.6 Notwithstanding any other provisions of this Restated Certificate
of Incorporation or any provisions of law which might permit a lesser vote or no
vote, but in addition to any affirmative vote of the holders of any particular
class or series of the capital stock of the Corporation required by law, this
Restated Certificate of Incorporation or any amendment hereto or any Preferred
Stock Designation, the affirmative vote of the holders of at least 66-2/3% of
the voting power of all of the then outstanding shares of Voting Stock, voting
together as a single class, shall be required to alter, amend, repeal, or adopt
any provision inconsistent with, this Article EIGHTH.
8.7 In furtherance, and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized:
(a) to adopt, amend or repeal the bylaws of the Corporation,
subject to such restrictions upon the exercise of such power as may be imposed
by this Restated Certificate of Incorporation or any amendment hereto;
(b) to authorize and cause to be executed mortgages and liens
upon the whole or any part of the real and personal property of the Corporation,
without any action of or by the stockholders of the Corporation, except as
otherwise provided by statute; and
(c) to set apart out of any of the funds of the Corporation
available for dividends a reserve or reserves for any proper purpose or to
abolish any such reserve in the manner in which it was created.
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The Corporation may in its bylaws confer powers upon its Board of
Directors in addition to the foregoing, and in addition to the powers and
authorities expressly conferred upon it by statute.
8.8 The Board of Directors shall have power from time to time to fix
and to determine and vary the amount of the working capital of the Corporation
and to direct and determine the use and disposition of any surplus or net
profits over and above the capital as determined pursuant to, and subject to,
the provisions of the General Corporation Law of Delaware; and in its discretion
the Board of Directors may use and apply any such surplus or accumulated profits
in purchasing or acquiring bonds, debentures, notes, or other obligations or
securities of the Corporation or shares of its own Stock of any class so far as
may be permitted by law, to such extent and in such manner and upon such terms
as the Board of Directors shall deem expedient, but any such bonds, debentures,
notes, obligations, securities or stock so purchased or acquired (together with
any stock or securities acquired in satisfaction of a debt or otherwise), may be
resold. Nothing, however, shall be held to limit the general power of the
Corporation to apply any other funds or assets to the purchase or acquisition or
retirement of its stock, bonds, debentures, notes or other obligations or
securities.
8.9 The Board of Directors, subject to the applicable provisions of
the General Corporation Law of Delaware, may from time to time determine whether
and to what extent, and at what times and places and under what conditions and
regulations the accounts and books of the Corporation or any of them shall be
open to the inspection of the stockholders; and no stockholder shall have any
right to inspect any account, book or document of the Corporation, except as
conferred by law or as authorized by the Board of Directors or by resolutions of
the Stockholders.
8.10 The books of the Corporation may be kept within or without the
State of Delaware at such place or places as may be designated from time to time
by the Board of Directors. Elections of directors need not be by written ballot
unless the Bylaws of the Corporation shall so provide.
8.11 The Board of Directors may determine, from time to time, the
amount of compensation which shall be paid to its members. The Board of
Directors shall also have power, in its discretion, to provide for and to pay
directors rendering unusual or exceptional services to the Corporation special
compensation appropriate to the value of such services as determined by the
Board of Directors from time to time.
NINTH:
9.1 No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for any breach of fiduciary
duty by such director as a director. Notwithstanding the foregoing sentence, a
director shall be liable to the extent provided by applicable law (i) for 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) pursuant to Section 174 of the Delaware
General Corporation
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Law, or (iv) for any transaction from which the director derived an improper
personal benefit. No amendment to or repeal of this Section 9.1 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 prior to such amendment
or repeal.
9.2 The Corporation shall indemnify, to the fullest extent authorized
or permitted and in the manner provided by law, any person made, or threatened
to be made, a party to any action, suit, or proceeding (whether civil, criminal,
or otherwise) by reason of the fact that he or she or a person of whom he or she
is the legal representative is or was a director or officer of the Corporation
or by reason of the fact that such director or officer, at the request of the
Corporation, is or was serving any other corporation, partnership, joint
venture, trust, employee benefit plan, or other enterprise, in any capacity.
Nothing contained herein shall affect any rights to indemnification to which
employees and agents other than directors and officers may be entitled by law,
and the Corporation may indemnify such employees and agents to the fullest
extent and in the manner permitted by law. The rights to indemnification set
forth in this Section 9.2 shall not be exclusive of any other rights to which
any person may be entitled under any statute, provision of this Restated
Certificate of Incorporation, bylaw, agreement, contract, vote of stockholders
or disinterested directors, or otherwise. The Corporation also is authorized to
enter into contracts of indemnification.
TENTH: 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 all rights conferred upon
Stockholders herein are granted subject to this reservation.
IN WITNESS WHEREOF, Extended Stay America, Inc., has caused its
corporate seal to be hereunto affixed and this Restated Certificate of
Incorporation to be signed by its Chairman and attested by its Corporate
Secretary this 20th day of October, 1995.
EXTENDED STAY AMERICA, INC.
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Robert A. Brannon
Senior Vice President
Attest:
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Gregory R. Moxley
Assistant Secretary
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