EXHIBIT 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
LODGIAN, INC.
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ARTICLE I
Name
SECTION 1.1 Name. The name of the Corporation is Lodgian, Inc.
ARTICLE II
Registered Office And Registered Agent
SECTION 2.1 Office And Agent. The address of the registered office of
the Corporation in the State of Delaware is Corporation Trust Center, 1209
Orange Street, in the City of Wilmington, County of New Castle. The name of the
registered agent of the Corporation at such address is The Corporation Trust
Company.
ARTICLE III
Corporate Purpose
SECTION 3.1 Purpose. The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized under the
Delaware General Corporation Law ("DGCL").
ARTICLE IV
Capitalization
SECTION 4.1 Authorized Capital; Shares. The total number of shares of
all classes of stock that the Corporation shall have authority to issue is One
Hundred Million (100,000,000), of which Seventy Five Million (75,000,000) shares
shall be shares of Common Stock, par value $0.01 per share ("Common Stock"), and
Twenty Five Million (25,000,000) shares shall be shares of Preferred Stock, par
value $0.01 per share ("Preferred Stock").
SECTION 4.2 Preferred Stock. Shares of Preferred Stock of the
Corporation may be issued from time to time in one or more classes or series,
each of which class or series shall have such distinctive designation or title
as shall be fixed by the affirmative vote of a majority of the whole Board of
Directors of the Corporation (the "Board Of Directors") prior to the issuance of
any shares thereof (the number of directors of the Corporation, as so determined
from time to time, being referred to herein as the "Whole Board"). Each such
class or series of Preferred Stock shall have such voting powers, full or
limited, or no voting powers, and such designations, preferences and relative,
participating, optional or other special rights and qualifications, limitations
or restrictions, including the dividend rate, redemption price and liquidation
preference, and may be convertible into, or exchangeable for, at the option of
either the holder or the Corporation or upon the happening of a specified event,
shares of any other class or classes or any other series of the same or any
other class or classes of capital stock, or any debt securities, of the
Corporation at such price or prices or at such rate or rates of exchange and
with such adjustments as shall be stated and expressed in this Restated
Certificate of Incorporation or in any amendment hereto or in such resolution or
resolutions providing for the issuance of such class or series of Preferred
Stock as may be adopted from time to time
by the affirmative vote of the number of directors constituting the majority of
the Whole Board prior to the issuance of any shares thereof pursuant to the
authority hereby expressly vested in it, all in accordance with the DGCL. The
authority of the Board of Directors with respect to each series shall also
include, but not be limited to, the determination of restrictions, if any, on
the issue or reissue of any additional shares of Preferred Stock.
SECTION 4.3 No Preemptive Rights. The holders of shares of Common Stock
shall have no preemptive or preferential rights of subscription to any shares of
any class of capital stock of the Corporation or any securities convertible into
or exchangeable for shares of any class of capital stock of the Corporation.
ARTICLE V
Compromise Or Arrangement
SECTION 5.1 Compromise Or Arrangement. Whenever a compromise or
arrangement is proposed between the Corporation and its creditors or any class
of them and/or between the 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 the Corporation or of any creditor or
stockholder thereof or on the application of any receiver or receivers appointed
for the Corporation under the provisions of Section 291 of the DGCL or on the
application of trustees in dissolution or of any receiver or receivers appointed
for the Corporation under the provisions of Section 279 of the DGCL, order a
meeting of the creditors or class of creditors, and/or of the stockholders or
class of stockholders of the Corporation, as the case may be, to be summoned in
such a manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of the Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of the
Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization, if sanctioned by the
court to which the said application has been made, shall be binding on all the
creditors or the members of the class of creditors, and/or on all the
stockholders or the members of the class of stockholders, of the Corporation, as
the case may be, and also on the Corporation.
ARTICLE VI
Indemnification
SECTION 6.1 Indemnification. (a) General. The Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the Corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, to
the full extent authorized or permitted by law, as now or hereafter in effect,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement or conviction, or upon
a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person seeking indemnification did not act in good faith
and in a manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) Derivative Actions. The Corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, to the full
extent authorized or permitted by law, as now or hereafter in effect, against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation; provided, however,
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that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery of the State of
Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
(c) Successful Defense. To the extent that a present or former
director, officer, employee or agent of the Corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred to
in subsections (a) and (b) above, or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
(d) Proceedings Initiated By Any Person. Notwithstanding anything to
the contrary contained in subsections (a) or (b) above, except for proceedings
to enforce rights to indemnification, the Corporation shall not be obligated to
indemnify any person in connection with a proceeding (or part thereof) initiated
by such person unless such proceeding (or part thereof) was authorized in
advance, or unanimously consented to, by the Board of Directors.
(e) Procedure. Any indemnification under subsections (a) and (b) above
(unless ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the present or
former director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in subsections
(a) and (b) above. Such determination shall be made with respect to a person who
is a director or officer at the time of such determination, (i) by a majority
vote of a quorum of the directors who are not parties to such action, suit or
proceeding, (ii) by a committee of such nonparty directors designated by a
majority vote of such directors, even though less than a quorum, (iii) if there
are no such directors, or if such directors so direct, by independent legal
counsel in a written opinion, or (iv) by the stockholders of the Corporation.
(f) Advancement Of Expenses. Expenses (including attorneys' fees)
incurred by a director or an officer in defending any civil, criminal,
administrative or investigative action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking in form and substance satisfactory to
the Corporation by or on behalf of such director or officer to repay such amount
if it shall ultimately be determined that he is not entitled to be indemnified
by the Corporation pursuant to this Article VI. Such expenses (including
attorneys' fees) incurred by former directors or officers or other employees and
agents may be so paid upon such terms and conditions, if any, as the Board of
Directors deems appropriate.
(g) Rights Not Exclusive. The indemnification and advancement of
expenses provided by, or granted pursuant to, the other subsections of this
Article VI shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any
law, bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office.
(h) Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such liability under the provisions of the DGCL.
(i) Definition Of "Corporation". For purposes of this Article VI,
references to "the Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees or agents so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under the provisions
of this Article VI with respect to the
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resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
(j) Certain Other Definitions. For purposes of this Article VI,
references to "other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to "serving at the request
of the Corporation" shall include any service as a director, officer, employee
or agent of the Corporation which imposes duties on, or involves service by,
such director, officer, employee or agent with respect to an employee benefit
plan, its participants or beneficiaries; and a person who acted in good faith
and in a manner he reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation," as referred to in
this Article VI.
(k) Continuation Of Rights. The indemnification and advancement of
expenses provided by, or granted pursuant to, this Article VI shall, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
(l) Repeal Or Modification. Any repeal or modification of this Article
VI by the stockholders of the Corporation shall not adversely affect any rights
to indemnification and to advancement of expenses that any person may have at
the time of such repeal or modification with respect to any acts or omissions
occurring prior to such repeal or modification.
(m) Action Against Corporation. Notwithstanding any provisions of this
Article VI to the contrary, no person shall be entitled to indemnification or
advancement of expenses under this Article VI with respect to any action, suit
or proceeding, or any claim therein, brought or made by him against the
Corporation.
ARTICLE VII
Directors
SECTION 7.1 Director Liability. (a) A director of the Corporation shall
not be personally liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability (i) for
any breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the DGCL or (iv) for any transaction from which the director derived any
improper personal benefit.
(b) If the DGCL is amended hereafter to authorize the further
elimination or limitation of the liability of directors, then the liability of a
director of the Corporation shall be eliminated or limited to the fullest extent
authorized by the DGCL, as so amended, without further action by either the
Board of Directors or the stockholders of the Corporation.
(c) Any repeal or modification of this Article VII shall not adversely
affect any right or protection of a director of the Corporation existing
hereunder with respect to any act or omission occurring prior to or at the time
of such repeal or modification.
SECTION 7.2 Removal. Any or all of the directors may be removed only
for due cause by vote of the record holders of a majority of the outstanding
shares of the Corporation entitled to vote thereon at a meeting of the
stockholders; PROVIDED, HOWEVER, that no such removal can be made at such
meeting unless the notice thereof specifies such removal and the reasons
therefor as one of the matters that shall be considered at such meeting.
ARTICLE VIII
Management Of The Affairs Of The Corporation
SECTION 8.1 Management Of The Affairs Of The Corporation. (a) The
business and affairs of the Corporation shall be managed by the Board of
Directors, which may exercise all the powers of the Corporation and
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do all such lawful acts and things that are not conferred upon or reserved to
the stockholders by law, by this Restated Certificate of Incorporation or by the
bylaws of the Corporation (the "Bylaws").
(b) Election of directors of the Corporation need not be by written
ballot, unless required by the Bylaws.
(c) The following provisions are inserted for the limitation and
regulation of the powers of the Corporation and of its directors and
stockholders:
(i) The Bylaws, or any of them, may be altered, amended or repealed, or
new bylaws may be made, but only to the extent any such alteration, amendment,
repeal or new bylaw is not inconsistent with any provision of this Restated
Certificate of Incorporation as it may be amended from time to time, either by
the number of directors constituting the majority of the Whole Board or by the
stockholders of the Corporation upon the affirmative vote of the holders of at
least 80% of the outstanding capital stock entitled to vote thereon.
(ii) The Board of Directors shall be divided into three classes,
designated Class I, Class II and Class III. Each class shall consist, as nearly
as may be possible, of one-third of the total number of directors constituting
the entire Board of Directors. The term of the initial Class I directors shall
terminate on the date of the 1999 annual meeting of stockholders; the term of
the initial Class II directors shall terminate on the date of the 2000 annual
meeting of stockholders; and the term of the initial Class III directors shall
terminate on the date of the 2001 annual meeting of stockholders. At each annual
meeting of stockholders, beginning with the 1999 annual meeting of stockholders,
successors to the class of directors whose term expires at that annual meeting
shall be elected for a three-year term. If the number of directors is changed,
any increase or decrease shall be apportioned among the classes so as to
maintain the number of directors in each class as nearly equal as possible, but
in no case will a decrease in the number of directors shorten the term of any
incumbent director. A director shall hold office until the annual meeting for
the year in which his term expires and until his successor shall be elected and
shall qualify, subject, however, to prior death, resignation, retirement,
disqualification or removal from office. The term of a director elected by
stockholders to fill a newly created directorship or other vacancy shall expire
at the same time as the terms of the other directors of the class for which the
new directorship is created or in which the vacancy occurred. Any director
elected by the Board of Directors to fill a vacancy shall hold office for a term
that shall coincide with the term of the class to which such director shall have
been elected.
Notwithstanding the foregoing, 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, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
terms of this Restated Certificate of Incorporation or the resolution or
resolutions adopted by the Board of Directors pursuant to Section 4.2 of Article
IV hereof applicable thereto, and such directors so elected shall not be divided
into classes pursuant to this Section 8.1(c) unless expressly provided by such
terms.
(iii) Subject to the rights, if any, of the holders of shares of
Preferred Stock then outstanding and the notice provisions set forth in Section
7.2 of Article VII, any or all of the directors of the Corporation may be
removed from office at any time only for cause by the affirmative vote of
holders of a majority of the outstanding shares of the Corporation entitled to
vote generally in the election of directors, considered for purposes of this
paragraph as one class.
(iv) Special meetings of the stockholders of the Corporation for any
purpose or purposes may be called at any time by a majority of the members of
the Board of Directors or Chief Executive Officer of the Corporation. A special
meeting of the stockholders of the Corporation may not be called by any other
person or persons.
ARTICLE IX
Private Property
SECTION 9.1 Private Property. The private property of the stockholders
of the Corporation shall not be subject to the payment of corporate debts to any
extent whatsoever.
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ARTICLE X
Shareholder Consent
SECTION 10.1 No Stockholders' Consent In Lieu Of Meeting. Any action
required or permitted to be taken by the stockholders of the Corporation must be
effected at a duly called annual meeting or special meeting of such stockholders
and may not be effected by any consent in writing by any such stockholders.
ARTICLE XI
Amendment
SECTION 11.1 Amendments. Notwithstanding anything contained in this
Restated Certificate of Incorporation to the contrary, the affirmative vote of
the holders of at least 80% of the outstanding shares of capital stock of the
Corporation entitled to vote thereon shall be required to amend, repeal, or
adopt any provision inconsistent with, Section 7.2 of Article VII, Section
8.1(c) of Article VIII or this Article XI of this Restated Certificate of
Incorporation.
ARTICLE XII
Effective Date
SECTION 12.1 Effective Date. This Restated Certificate of Incorporation
shall become effective upon filing with the Secretary of State of the State of
Delaware.
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