1
EXHIBIT 3.2
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
BRISTOL HOTELS & RESORTS
Pursuant to the provisions of Section 245 of the Delaware General
Corporation Law (the "DGCL"), Bristol Hotels & Resorts, Inc., a Delaware
corporation (the "Company"), does hereby certify as follows:
1. The original name of the Company is Bristol Hotels & Resorts, Inc.
2. The original Certificate of Incorporation of the Company was filed
in the office of the Secretary of State of Delaware on March 20, 1998.
3. This Amended and Restated Certificate of Incorporation has been duly
adopted in accordance with the provisions of Sections 242 and 245 of the DGCL.
4. The text of the Certificate of Incorporation of the Company is
hereby amended and restated in its entirety to read as follows:
FIRST. The name of the corporation is Bristol Hotels & Resorts (the
"Company").
SECOND. The address of the Company's registered office in the State of
Delaware is 1013 Centre Road, Wilmington, Delaware 19805, County of New Castle.
The name of its registered agent at that address is Corporation Service Company.
THIRD. The purpose of the Company is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware (the "DGCL").
FOURTH. Section 1. Authorized Capital Stock. The Company is authorized
to issue two classes of capital stock, designated Common Stock and Preferred
Stock. The total number of shares of capital stock that the Company is
authorized to issue is 125,000,000 shares, consisting of 100,000,000 shares of
Common Stock, par value $0.01 per share, and 25,000,000 shares of Preferred
Stock, par value $0.01 per share.
Section 2. Preferred Stock. The Preferred Stock may be issued in one or
more series. The Board of Directors of the Company (the "Board") is hereby
authorized to authorize the issuance of shares of Preferred Stock in any series
and to fix from time to time before issuance the number of shares to be included
in any series and the designation, relative powers, preferences, and rights and
qualifications, limitations, or restrictions of all shares of any series. The
authority of the Board with respect to each series will include, without
limiting the generality or effect of the foregoing, the determination of any or
all of the following:
2
(a) The number of shares of any series and the designation to
distinguish the shares of the series from the shares of all other
series;
(b) The voting powers, if any, and whether such voting powers
are full or limited in the series;
(c) The redemption provisions, if any, applicable to the
series, including the redemption price or prices to be paid;
(d) Whether dividends, if any, will be cumulative or
noncumulative, the dividend rate of the series, and the dates and
preferences of dividends on the series;
(e) The rights of the series upon the voluntary or involuntary
dissolution of, or upon any distribution of the assets of, the Company;
(f) The provisions, if any, pursuant to which the shares of
the series are convertible into, or exchangeable for, shares of any
other class or classes or of any other series of the same or any other
class or classes of stock, or any other security, of the Company or any
other corporation or other entity, and the price or prices or the rates
of exchange applicable thereto;
(g) The right, if any, to subscribe for or to purchase any
securities of the Company or any other corporation or other entity;
(h) The provisions, if any, of a sinking fund applicable to
the series; and
(i) Any other relative, participating, optional, or other
special powers, preferences, rights, qualifications, limitations, or
restrictions of the series;
all as may be determined from time to time by the Board and stated in the
resolution or resolutions providing for the issuance of Preferred Stock
(collectively, a "Preferred Stock Designation").
Section 3. Common Stock. Except as may otherwise be provided in a
Preferred Stock Designation or as a result of Article Seventh, the holders of
Common Stock will be entitled to one vote on each matter submitted to a vote at
a meeting of stockholders for each share of Common Stock held of record by that
holder as of the record date for that meeting.
FIFTH. The Board may make, amend, and repeal the Bylaws of the Company.
Any Bylaw made by the Board under the powers conferred by this Article Fifth may
be amended or repealed by the Board (except as specified in any such Bylaw so
made or amended) or by the stockholders in the manner provided in the Bylaws of
the Company. Notwithstanding the foregoing and anything contained in this
Certificate of Incorporation to the contrary, Bylaws 1, 3, 8, 10, 11, 12, 13,
34, and 40 may not be amended or repealed by the stockholders, and no provision
inconsistent therewith may be adopted by the stockholders, without the
affirmative vote of the holders of record of at least 80% of the Voting Stock,
voting together as a single class. For the purposes of this Certificate of
Incorporation, "Voting Stock" means capital stock of the Company of any class or
series entitled to vote generally in the election of Directors. Notwithstanding
anything contained in this Certificate of Incorporation to the contrary, the
affirmative vote of the holders of record of at least 80% of the Voting Stock,
voting together as a single
-2-
3
class, is required to amend or repeal, or to adopt any provision inconsistent
with, this Article Fifth.
SIXTH. Subject to the rights of the holders of any series of Preferred
Stock:
(a) Any action required or permitted to be taken by the
stockholders of the Company must be effected at a duly called annual or
special meeting of stockholders of the Company and may not be effected
by any consent in writing of such stockholders; and
(b) Special meetings of stockholders of the Company may be
called only by (i) the Chairman of the Board (the "Chairman") or a Vice
Chairman of the Board (the "Vice Chairman"), (ii) the Secretary of the
Company (the "Secretary") within ten calendar days after receipt of the
written request of a majority of the total number of Directors then in
office (the "Whole Board"), and (iii) as provided in Bylaw 3.
At any annual meeting or special meeting of stockholders of the Company, only
such business will be conducted or considered as has been brought before such
meeting in the manner provided in the Bylaws of the Company. Notwithstanding
anything contained in this Certificate of Incorporation to the contrary, the
affirmative vote of the holders of record of at least 80% of the Voting Stock,
voting together as a single class, is required to amend or repeal, or to adopt
any provision inconsistent with, this Article Sixth.
SEVENTH. Section 1. (a) Definitions. For the purpose of this Article
Seventh, the following terms have the following meanings when used herein with
initial capital letters:
"Affiliate" means, with respect to any Person, any Person directly or
indirectly controlling, controlled by, or under common control with, such
Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.
"Beneficial Ownership" has the meaning ascribed to that term under Rule
13d-3 promulgated under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as such Rule is in effect on June 1, 1998. The terms
"Beneficial Owner," "Beneficially Owns" and "Beneficially Owned" have
correlative meanings.
"Business Day" means any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions in New York City
are authorized or required by law, regulation, or executive order to close.
-3-
4
"Charitable Beneficiary" means one or more beneficiaries of the
Charitable Trust as designated pursuant to Section 3(f) of this Article Seventh.
"Charitable Trust" means any trust provided for in Section 3(f) of this
Article Seventh.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Excepted Holder" means a stockholder of the Company for whom an
Excepted Holder Limit is created by the Board pursuant to Section 2(f) of this
Article Seventh and any stockholder who acquires record and Beneficial Ownership
of Voting Stock as of the Initial Date in excess of the Ownership Limit so long
as such stockholder does not increase his or her percentage equity interest in
the Company.
"Excepted Holder Limit" means the percentage limitation, including the
terms and conditions thereof, established by the Board pursuant to this Article
Seventh.
"Initial Date" means the date upon which Common Stock was distributed
to holders of common stock of Bristol Hotel Company.
"Market Price" on any date means, with respect to any class or series
of outstanding Voting Stock, the Closing Price for the Voting Stock on that
date. The "Closing Price" on any date means the last sale price for the Voting
Stock, regular way, or, in case no sale takes place on that day, the average of
the closing bid and ask prices, regular way, for the Voting Stock, in either
case as reported in the principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the New York Stock
Exchange or, if the Voting Stock is not listed or admitted to trading on the New
York Stock Exchange, as reported on the principal consolidated transaction
reporting system with respect to securities listed on the principal national
securities exchange on which the Voting Stock is listed or admitted to trading
or, if the Voting Stock is not listed or admitted to trading on any national
securities exchange, the last quoted price, or, if not so quoted, the average of
the high bid and low asked prices in the over-the-counter market, as reported by
the National Association of Securities Dealers, Inc. Automated Quotation System
or, if such system is no longer in use, the principal other automated quotation
system that may then be in use or, if the Voting Stock is not quoted by any such
organization, the average of the closing bid and asked prices as furnished by a
professional market maker making a market in the Voting Stock selected by the
Board (in any such case, the "Exchange") or, if no trading price is available
for the Voting Stock, the fair market value of the Voting Stock, as determined
in good faith by the Board.
"Ownership Limit" means not more than 9.9% (by voting power or total
number of shares, whichever is more restrictive) of the aggregate of the
outstanding shares of Common Stock and 9.9% of any series or class of other
outstanding Voting Stock. The number and voting power of outstanding Voting
Stock will be determined by the Board in good faith, which determination will be
conclusive for all purposes hereof.
"Person" means an individual, corporation, partnership, limited
liability company, estate, trust, association, foundation, joint stock company,
or other entity and also includes a group as
-4-
5
that term is used in Section 13(d)(3) of the Exchange Act, and a group to which
an Excepted Holder Limit applies.
"Prohibited Owner" means, with respect to any purported Transfer, any
Person who, but for the provisions of this Article Seventh, would Beneficially
Own an amount of Voting Stock in excess of the Ownership Limit, and if
appropriate in the context, also means any Person who would have been the record
owner of Voting Stock that the Prohibited Owner would have so beneficially
owned.
"Restriction Termination Date" means December 31, 2000 or such earlier
date as may be fixed for purposes hereof by the Board.
"Transfer" means any sale, transfer, gift, assignment, devise, or other
disposition, whether or not for value and whether by contract, by operation of
law, or otherwise. The terms "Transferring" and "Transferred" have correlative
meanings.
"Trustee" means the Person appointed by the Board to serve as trustee
of the Charitable Trust.
Section 2. Ownership Limitations. During the period commencing on the
Initial Date and ending on the Restriction Termination Date:
(a) Basic Restrictions. No Person, other than an Excepted
Holder, may Beneficially Own Voting Stock in excess of the Ownership
Limit, and no Excepted Holder may Beneficially Own Voting Stock in
excess of the Excepted Holder Limit for such Excepted Holder.
(b) Transfer in Trust. If any Transfer of Voting Stock
(whether or not such Transfer is the result of a transaction entered
into through the facilities of the Exchange) occurs which, if
effective, would result in any Person Beneficially Owning Voting Stock
in violation of Section 2(a) of this Article Seventh, then:
(i) The amount of Voting Stock the Beneficial
Ownership of which otherwise would cause that Person to
violate Section 2(a) (rounded up to the nearest whole share)
will be, without further action, transferred to a Charitable
Trust for the benefit of a Charitable Beneficiary, as
described in Section 3 of this Article Seventh, effective as
of the close of business on the Business Day prior to the date
of the Transfer, and that Person will acquire no rights in the
Voting Stock; or
(ii) If the transfer to the Charitable Trust described
in clause (i) of this sentence would not be effective for any
reason to prevent the violation of Section 2(a) of this
Article Seventh, then the Transfer of Voting Stock that
otherwise would cause the Person to violate Section 2(a) will
be void ab initio, and the intended Transferee will acquire no
rights in the Voting Stock.
-5-
6
(c) Remedies for Breach. If the Board or any duly authorized
committee thereof at any time determines that a Transfer or other event
has taken place that results in a violation of Section 2(a) or that a
Person intends to acquire or has attempted to acquire Beneficial
Ownership of any Voting Stock in violation of Section 2(a) (whether or
not such violation is intended), the Board or a committee thereof may
take such action as it deems advisable to refuse to give effect to or
to prevent that Transfer or other event, including without limitation
causing the Company to redeem Voting Stock, refusing to give effect to
that Transfer on the books of the Company or instituting proceedings to
enjoin that Transfer or other event; provided, however, that any
Transfer or attempted Transfer or other event in violation of Section
2(a) will automatically result in the Transfer to the Charitable Trust
described above, and, where applicable, the Transfer (or other event)
will be void ab initio as provided above irrespective of any action (or
non-action) by the Board or a committee thereof.
(d) Notice of Restricted Transfer. Any Person who acquires or
attempts or intends to acquire Beneficial Ownership of Voting Stock
that will or may violate Section 2(a), or any Person who would have
owned the Voting Stock that resulted in a transfer to the Charitable
Trust pursuant to the provisions of Section 2(b) of this Article
Seventh, must immediately give written notice to the Company of that
event, or in the case of a proposed or attempted transaction, give at
least ten Business Days prior written notice, and must provide to the
Company such other information as the Company may request in order to
determine the effect, if any, of that Transfer under this Article
Seventh.
(e) Ambiguity. In the case of an ambiguity in the application
of any of the provisions of this Article Seventh, the Board will have
the power conclusively to determine the application of the provisions
of this Article Seventh with respect to any situation based on the
facts then known to it. If this Article Seventh and this Certificate of
Incorporation fails to provide specific guidance with respect to any
situation, the Board will have the power to determine the action to be
taken so long as the action is not contrary to the provisions of this
Article Seventh.
(f) Exceptions. (i) The Board, in its sole discretion, may
exempt a Person from the Ownership Limit, and may establish or increase
an Excepted Holder Limit for such Person on such terms and subject to
such conditions as the Board determines in its sole discretion.
(ii) An underwriter which participates in a public
offering or a private placement of Voting Stock (or securities
convertible into or exchangeable for Voting Stock) may
Beneficially Own Voting Stock (or securities convertible into
or exchangeable for Voting Stock) in excess of the Ownership
Limit, but only to the extent necessary to facilitate such
public offering or private placement.
(iii) The Board may only reduce the Excepted Holder
Limit for an Excepted Holder (A) with the written consent of
such Excepted Holder at any time, or (B) pursuant to the terms
and conditions of the agreements and undertakings entered into
with such Excepted Holder in connection with the
-6-
7
establishment of the Excepted Holder Limit for that Excepted
Holder. No Excepted Holder Limit shall be reduced to a
percentage that is less than the Ownership Limit.
(iv) A Person shall not become a Prohibited Owner if
that Person shall become the Beneficial Owner of Voting Stock
in excess of the Ownership Limit solely as a result of a
reduction in the number of shares of Voting Stock by the
Company, unless and until such time as that Person shall
purchase or otherwise become (as a result of actions taken by
such Person or its Affiliates) the Beneficial Owner of
additional shares of Voting Stock.
(g) Legend. Through the Restriction Termination Date, each
certificate for Voting Stock will bear substantially the following
legend (as modified from time to time by action of the Board):
The shares represented by this certificate are subject to
restrictions on Beneficial Ownership and Transfer provided in
the Company's Certificate of Incorporation, as amended from
time to time, under which, subject to certain exceptions, no
Person may Beneficially Own Voting Stock in excess of 9.9% (by
voting power or number of shares) of the outstanding Voting
Stock of the Company. Any Person who Beneficially Owns or
attempts to Beneficially Own Voting Stock which causes or will
cause any Person to Beneficially Own Voting Stock in excess or
in violation of the above limitations must immediately notify
the Company. If any of the restrictions on Transfer or
Ownership are violated, the shares represented hereby will be
automatically transferred to a Trustee of a Charitable Trust
for the benefit of one or more Charitable Beneficiaries. In
addition, upon the occurrence of certain events, attempted
Transfers in violation of the restrictions described above may
be void ab initio. All capitalized terms in this legend have
the meanings defined in the Company's Certificate of
Incorporation, as the same may be amended from time to time, a
copy of which, including the restrictions on Transfer and
Ownership, will be furnished to each holder of Voting Stock of
the Company on request and without charge.
Instead of the foregoing legend, the certificate may state that the Company will
furnish a full statement about certain restrictions on transferability to a
stockholder on request and without charge.
Section 3. Transfer of Voting Stock in Trust. (a) Ownership in Trust.
Upon any purported Transfer or other event described in Section 2(a) that would
result in a Transfer of Voting Stock to a Charitable Trust, such Voting Stock
will be deemed to have been Transferred to the Trustee as trustee of a
Charitable Trust for the exclusive benefit of one or more Charitable
Beneficiaries effective as of the close of business on the Business Day prior to
the purported
-7-
8
Transfer or other event that results in the transfer to the Charitable Trust
pursuant to Section 2(a). Each Charitable Beneficiary will be designated by the
Company as provided in Section 3(f).
(b) Status of Shares Held by the Trustee. Voting Stock held by
the Trustee will be issued and outstanding Voting Stock of the Company.
The Prohibited Owner will have no rights in the Voting Stock held by
the Trustee, will not benefit economically from ownership of any Voting
Stock held in trust by the Trustee, will have no rights to dividends,
and will not possess any rights to vote or other rights attributable to
the Voting Stock held in the Charitable Trust.
(c) Dividend and Voting Rights. The Trustee will have all
voting rights and rights to dividends or other distributions with
respect to Voting Stock held in the Charitable Trust which rights will
be exercised for the exclusive benefit of the Charitable Beneficiary.
Any dividend or other distribution paid prior to the discovery by the
Company that Voting Stock has been Transferred to the Trustee will be
paid with respect to that Voting Stock to the Trustee by the Prohibited
Owner upon demand of the Trustee and any dividend or other distribution
authorized but unpaid will be paid when due to the Trustee. Any
dividends or distributions so paid over to the Trustee will be held in
trust for the Charitable Beneficiary. Effective as of the date that
Voting Stock has been Transferred to the Trustee, the Trustee will have
the authority (at the Trustee's sole discretion) to (i) rescind as void
any vote cast by a Prohibited Owner prior to the discovery by the
Company that Voting Stock has been transferred to the Trustee and (ii)
recast such vote in accordance with the desires of the Trustee acting
for the benefit of the Charitable Beneficiary. Notwithstanding the
provisions of this Article Seventh, until the Company has received
notification that Voting Stock has been transferred into a Charitable
Trust, the Company will be entitled to rely on its stock transfer and
other stockholder records for purposes of preparing lists of
stockholders entitled to vote at meetings, determining the validity and
authority of proxies and otherwise conducting votes of stockholders.
(d) Sale of Shares by Trustee. Within 20 Business Days of
receiving notice from the Company that Voting Stock has been
Transferred to the Charitable Trust, the Trustee will sell the Voting
Stock held in the Charitable Trust to a Person, designated by the
Trustee, whose ownership of the Voting Stock will not violate the
ownership limitations set forth in Section 2(a) of this Article
Seventh. Upon such sale, the interest of the Charitable Beneficiary in
the Voting Stock sold will terminate and the Trustee will distribute
the net proceeds of the sale to the Prohibited Owner and to the
Charitable Beneficiary as provided in this Section 3(d). The Prohibited
Owner will receive the lesser of (i) the price paid by the Prohibited
Owner for the Voting Stock or, if the Prohibited Owner did not give
value for the Voting Stock in connection with the event causing the
Voting Stock to be held in the Charitable Trust (e.g., in the case of a
gift, devise or other similar transaction), the Market Price of the
Voting Stock on the day of the event causing the Voting Stock to be
held in the Charitable Trust and (ii) the price per share received by
the Trustee from the sale or other disposition of the Voting Stock held
in the Charitable Trust. Any net sales proceeds in excess of the amount
payable to the Prohibited Owner will be immediately paid to the
Charitable Beneficiary. If, prior to the discovery by the
-8-
9
Company that Voting Stock has been Transferred to the Trustee, the
Voting Stock is sold by a Prohibited Owner, then (i) the Voting Stock
will be deemed to have been sold on behalf of the Charitable Trust and
(ii) to the extent that the Prohibited Owner received an amount for
that Voting Stock that exceeds the amount that the Prohibited Owner was
entitled to receive pursuant to this Section 3(d), such excess will be
paid by the Prohibited Owner to the Trustee upon demand.
(e) Purchase Right in Shares Transferred to the Trustee.
Voting Stock Transferred to the Trustee will be deemed to have been
offered for sale to the Company, or its designee, at a price per share
equal to the lesser of (i) the price per share in the transaction that
resulted in the Transfer to the Charitable Trust (or, in the case of a
devise or gift, the Market Price at the time of the devise or gift) and
(ii) the Market Price on the date the Company, or its designee, accepts
the offer. The Company will have the right to accept the offer until
the Trustee has sold the Voting Stock held in the Charitable Trust
pursuant to Section 3(d) of this Articles Seventh. Upon such a sale to
the Company, the interest of the Charitable Beneficiary in the Voting
Stock sold will terminate and the Trustee will distribute the net
proceeds of the sale to the Prohibited Owner.
(f) Designation of Charitable Beneficiaries. By written notice
to the Trustee, the Company will designate one or more nonprofit
organizations to be the Charitable Beneficiary of the interest in the
Charitable Trust such that Voting Stock held in the Charitable Trust
would not violate the restrictions set forth in Section 2(a) in the
hands of such Charitable Beneficiary. Each organization designated
under this Section 3(f) must be described in Section 501(c)(3) of the
Code and contributions to the organization must be eligible for
deduction under each of Sections 170(b)(1)(A), 2055 and 2522 of the
Code.
Section 4. Exchange Transactions. Nothing in this Article Seventh
precludes the settlement of any transaction entered into through the facilities
of the Exchange. The fact that the settlement of any transaction is so permitted
will not, however, negate the effect of any other provision of this Article
Seventh and any Transferee in such a transaction is subject to all of the
provisions set forth in this Article Seventh.
Section 5. Enforcement. The Company is authorized specifically to seek
equitable relief, including injunctive relief, to enforce the provisions of this
Article Seventh.
Section 6. Non-Waiver. No delay or failure on the part of the Company
or the Board in exercising any right hereunder will operate as a waiver.
EIGHTH. Section 1. Number, Election, and Terms of Directors. Subject to
the rights, if any, of the holders of any series of Preferred Stock to elect
additional Directors under circumstances specified in a Preferred Stock
Designation, the number of the Directors of the Company will not be less than
three nor more than 15 and will be fixed from time to time in the manner
described in the Bylaws of the Company. The Directors, other than those who may
be elected by the holders of any series of Preferred Stock, will be classified
with respect to the time for which they severally hold office into three
classes, as nearly equal in number as possible,
-9-
10
designated Class I, Class II, and Class III, all as determined by action of the
full Board. At any meeting of stockholders at which Directors are to be elected,
commencing with the 1999 meeting of stockholders, the number of Directors
elected may not exceed the greatest number of Directors then in office in either
class of Directors not standing for election at such meeting. The Directors
first appointed to Class I will hold office for a term expiring at the annual
meeting of stockholders to be held in 1999; the Directors first appointed to
Class II will hold office for a term expiring at the annual meeting of
stockholders to be held in 2000; and the Directors first appointed to Class III
will hold office for a term expiring at the annual meeting of stockholders to be
held in 2001, with the members of each class to hold office until their
successors are elected and qualified. At each succeeding annual meeting of the
stockholders of the Company, the successors of the class of Directors whose
terms expire at that meeting will be elected by plurality vote of all votes cast
at such meeting to hold office for a term expiring at the annual meeting of
stockholders held in the third year following the year of their election.
Subject to the rights, if any, of the holders of any series of Preferred Stock
to elect additional Directors under circumstances specified in a Preferred Stock
Designation, Directors may be elected by the stockholders only at an annual
meeting of stockholders. Election of Directors of the Company need not be by
written ballot unless requested by the Chairman or by the holders of a majority
of the Voting Stock present in person or represented by proxy at a meeting of
the stockholders at which Directors are to be elected.
Section 2. Nomination of Director Candidates. Advance notice of
stockholder nominations for the election of Directors must be given in the
manner provided in the Bylaws of the Company.
Section 3. Newly Created Directorships and Vacancies. Subject to the
rights, if any, of (a) the holders of any series of Preferred Stock or (b) any
party to the Stockholders Agreement (the "Stockholders Agreement") among the
Corporation, Bass plc, Bass America, Inc., Holiday Corporation and United/Harvey
Holdings, L.P. to elect additional Directors, newly created directorships
resulting from any increase in the number of Directors and any vacancies on the
Board resulting from death, resignation, 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,
by a sole remaining Director, or, if there is no remaining Director, by the
stockholders. Any Director elected in accordance with the preceding sentence
will 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 has been elected and qualified. No decrease in the number
of Directors constituting the Board may shorten the term of any incumbent
Director.
Section 4. Removal. Subject to the rights, if any, of the holders of
any series of Preferred Stock or of any party to the Stockholders Agreement to
elect additional Directors under circumstances specified in a Preferred Stock
Designation or the Stockholders Agreement, any Director may be removed from
office (a) by the Board as provided in the Bylaws and (b) by the stockholders
only for cause and only in the manner provided in this Section 4. At any annual
meeting or special meeting of the stockholders, the notice of which states that
the removal of a Director or Directors is among the purposes of the meeting, the
affirmative vote of the holders of
-10-
11
at least 80% of the Voting Stock, voting together as a single class, may remove
such Director or Directors for cause.
Section 5. Amendment, Repeal, Etc. Notwithstanding anything contained
in this Certificate of Incorporation to the contrary, the affirmative vote of at
least 80% of the Voting Stock, voting together as a single class, is required to
amend or repeal, or to adopt any provision inconsistent with, this Article
Eighth.
NINTH. To the fullest extent permitted by the DGCL or any other
applicable law currently or hereafter in effect, no Director of the Company will
be personally liable to the Company or its stockholders for or with respect to
any acts or omissions in the performance of his or her duties as a Director of
the Company. Any repeal or modification of this Article Ninth will not adversely
affect any right or protection of a Director of the Company in respect of any
act or omission occurring in whole or in part prior to such repeal or
modification.
TENTH. Each Person who is or was or had agreed to become a Director or
officer of the Company, and each such Person who is or was serving or who had
agreed to serve at the request of the Board or an officer of the Company as an
employee or agent of the Company or as a director, officer, employee, trustee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan, or other entity, whether for profit or not for profit (including
the heirs, executors, administrators, or estate of such Person), will be
indemnified by the Company to the fullest extent permitted by the DGCL or any
other applicable law as currently or hereafter in effect. The right of
indemnification provided in this Article Tenth (a) will not be exclusive of any
other rights to which any Person seeking indemnification may otherwise be
entitled, including without limitation pursuant to any contract approved by a
majority of the Whole Board (whether or not the Directors approving such
contract are or are to be parties to such contract or similar contracts) and (b)
will be applicable to matters otherwise within its scope whether or not such
matters arose or arise before or after the adoption of this Article Tenth.
Without limiting the generality or the effect of the foregoing, the Company may
adopt Bylaws, or enter into one or more agreements with any Person, which
provide for indemnification greater or otherwise different than that provided in
this Article Tenth or the DGCL, and any such agreement approved by the Whole
Board will be a valid and binding obligation of the Company regardless of
whether one or more members of the Board, or all members of the Board, are
parties thereto or to similar agreements. Notwithstanding anything to the
contrary in this Article Tenth, in the event that the Company enters into a
contract with any Person providing for indemnification of such Person, the
provisions of such contract will exclusively govern the Company's obligations in
respect of indemnification for or advancement of fees or disbursements of such
Person's counsel or any other professional engaged by such Person. Any amendment
or repeal of, or adoption of any provision inconsistent with, this Article Tenth
will not adversely affect any right or protection existing hereunder, or arising
out of events occurring or circumstances existing, in whole or in part, prior to
such amendment, repeal, or adoption and no such amendment, repeal, or adoption,
will affect the legality, validity, or enforceability of any contract entered
into or right granted prior to the effective date of such amendment, repeal, or
adoption.
-11-
12
This Amended and Restated Certificate of Incorporation shall be
effective on the date of its filing with the Secretary of State of the State of
Delaware.
EXECUTED effective as of ___________________, 1998.
BRISTOL HOTELS & RESORTS, INC.
By:
-------------------------------------
Name:
Title:
ATTEST:
- -----------------------------------
Secretary
-12-