Exhibit
3.1
AMENDED
AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
CENDANT
CORPORATION
Cendant
Corporation, a corporation organized and existing under the laws of the State
of
Delaware (the "Corporation"), does hereby certify as follows:
(1)
The
name
of the Corporation is Cendant Corporation.
(2)
The
name
under which the Corporation was originally incorporated was Comp-U-Card of
America, Inc. and the original Certificate of Incorporation of the Corporation
was filed with the Secretary of State of the State of Delaware on August 1,
1974.
(3)
This
Amended and Restated Certificate of Incorporation was duly adopted in accordance
with the provisions of Sections 242 and 245 of the General Corporation Law
of
the State of Delaware.
(4)
The
text
of the Amended and Restated Certificate of Incorporation of the Corporation
as
amended hereby is restated to read in its entirety, as follows:
1.
The
name
of the Corporation is Avis Budget Group, Inc. (hereinafter, the
"Corporation").
2.
The
address of its registered office in the State of Delaware is Corporation Service
Company, 2711 Centerville Road, Suite 400, in the City of Wilmington, County
of
New Castle. The name of its registered agent at such address is Corporation
Service Company.
3.
The
nature of the business or purposes to be conducted or promoted is:
To
engage
in any lawful act or activity for which corporations may be organized under
the
General Corporation Law of Delaware.
4.
Capital
Stock
The
total
number of shares of all classes of stock which the Corporation shall have
authority to issue is 260,000,000, consisting of (i) 250,000,000 shares of
Common Stock, $0.01 par value per share (“Common Stock”), and (ii) 10,000,000
shares of Preferred Stock, $0.01 par value per share (“Preferred Stock”). No
stockholder shall have any preemptive right to subscribe to or purchase any
additional shares of stock of the Corporation or any securities convertible
into
any such shares or representing a right or option to purchase any such
shares.
A.
Common
Stock
The
Corporation shall have the authority to issue shares of Common Stock in one
series. Such series of Common Stock shall be designated as Common Stock. When
the filing of this Amended and Restated Certificate of Incorporation becomes
effective, each share of Common Stock (previously classified as Cendant
Corporation-CD Common Stock) (and outstanding certificates that had theretofore
represented shares of Cendant Corporation-CD Common Stock) outstanding
immediately prior thereto shall automatically be reclassified as one share
of
Common Stock (and outstanding certificates that had theretofore represented
shares of Cendant Corporation-CD Common Stock shall thereupon represent an
equal
number of shares of Common Stock despite the absence of any indication thereon
to that effect).
The
total
number of shares of Common Stock which the Corporation shall have the authority
to issue shall initially be 250,000,000. The Board of Directors shall have
the
authority to increase or decrease from time to time the total number of shares
of Common Stock which the Corporation shall have the authority to issue, but
not
above the number which would exceed the total number of shares of Common Stock
that the Corporation has the authority to issue, and not below the number of
shares of Common Stock then outstanding.
The
powers, preferences and rights, and the qualifications, limitations and
restrictions of the Common Stock are as follows:
(1)
Voting.
Each stockholder represented at a meeting of the stockholders shall be entitled
to cast one (1) vote in person or by proxy for each share of the Common Stock
entitled to vote thereat held by such stockholder.
(2)
No
Cumulative Voting. The holders of shares of Common Stock shall not have
cumulative voting rights.
(3)
Dividends;
Stock Splits. Subject to the rights of the holders of Preferred Stock, and
subject to any other provisions of this Amended and Restated Certificate of
Incorporation, as it may be amended from time to time, holders of shares of
the
Common Stock shall be entitled to receive such dividends and other distributions
in cash, stock or property of the Corporation when, as and if declared thereon
by the Board of Directors from time to time out of assets or funds of the
Corporation legally available therefor.
B.
Preferred
Stock
The
Board
of Directors is expressly authorized to adopt, from time to time, a resolution
or resolutions providing for the issuance of Preferred Stock in one or more
series, to fix the number of shares in each such series (subject to the
aggregate limitations thereon in this Article) and to fix the designations
and
the powers, preferences and relative, participating, optional or other special
rights, and the qualifications, limitations and restrictions, of each such
series. The authority of the Board of Directors with respect to each such series
shall include
determination
of the following (which may vary as between the different series of Preferred
Stock):
(a)
The
number of shares constituting the shares and the distinctive designation of
the
series;
(b)
The
dividend rate on the shares of the series and the extent, if any, to which
dividends thereon shall be cumulative;
(c)
Whether
shares of the series shall be redeemable and, if redeemable, the redemption
price payable on redemption thereof, which price may, but need not, vary
according to the time or circumstances of such redemption;
(d)
The
amount or amounts payable upon the shares of the series in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation prior to any payment or distribution of the assets of the
Corporation to any class or classes of stock of the Corporation ranking junior
to the Preferred Stock;
(e)
Whether
the shares of the series shall be entitled to the benefit of a sinking or
retirement fund to be applied to the purchase or redemption of shares of the
series and, if so entitled, the amount of such fund and the manner of its
application, including the price or prices at which the shares may be redeemed
or purchased through the application of such fund;
(f)
Whether
the shares of the series shall be 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 of the Corporation, and, if so convertible or
exchangeable, the conversion price or prices, or the rates of exchange, and
the
adjustments thereof, if any, at which such conversion or exchange may be made,
and any other terms and conditions of such conversion or exchange;
(g)
The
extent, if any, to which the holders of shares of the series shall be entitled
to vote on any question or in any proceedings or to be represented at or to
receive notice of any meeting of stockholders of the Corporation;
(h)
Whether,
and the extent to which, any of the voting powers, designations, preferences,
rights and qualifications, limitations or restrictions of any such series may
be
made dependent upon facts ascertainable outside of the Amended and Restated
Certificate of Incorporation or of any amendment thereto, or outside the
resolution or resolutions providing for the issuance of such series adopted
by
the Board of Directors, provided that the manner in which such facts shall
operate upon the voting powers, designations, preferences, rights and
qualifications, limitations or restrictions of such series is clearly and
expressly set forth in the resolution or resolutions providing for the issuance
of such series adopted by the Board of Directors; and
(i)
Any
other
preferences, privileges and powers and relative, participating, optional or
other special rights, and qualifications, limitations or restrictions of such
series, as the Board of Directors may deem advisable, which shall not affect
adversely any other class
or
series
of Preferred Stock at the time outstanding and which shall not be inconsistent
with the provisions of this Amended and Restated Certificate of
Incorporation.
Shares
of
Common Stock and of Preferred Stock may be issued from time to time as the
Board
of Directors shall determine and on such terms and for such consideration,
not
less than par value, as shall be fixed by the Board of Directors. No consent
by
any series of Preferred Stock shall be required for the issuance of any other
series of Preferred Stock unless the Board of Directors in the resolution
providing for the issuance of any series of Preferred Stock expressly provides
that such consent shall be required.
Subject
to the rights, if any, of holders of shares of Preferred Stock from time to
time
outstanding, dividends may be paid upon the Common Stock as and when declared
by
the Board of Directors out of any funds legally available therefor.
Except
as
otherwise provided by law or as otherwise expressly provided in the resolution
or resolutions providing for the issuance of shares of any series of the
Preferred Stock, the holders of shares of the Common Stock shall have the
exclusive right to vote for the election of directors and for all other
purposes. Each holder of shares of Common Stock of the Corporation entitled
at
any time to vote shall have one vote for each share thereof held. Except as
otherwise provided with respect to shares of Preferred Stock authorized from
time to time by the Board of Directors, the exclusive voting power for all
purposes shall be vested in the holders of shares of Common Stock.
C.
Reverse
Stock Split
(1)
Upon
this
amendment becoming effective (the “Effective Time”), a one-for-ten reverse stock
split of each of the par value $0.01 Common Stock (“Old Common Stock”) shall
become effective, such that (a) every ten (10) shares of $0.01 par value Old
Common Stock of the Corporation either issued and outstanding or held by the
Corporation as treasury stock immediately prior to the Effective Time, will
be
automatically reclassified, combined and converted into one (1) share of $0.01
par value Common Stock of the Corporation.
(2)
Notwithstanding
the immediately preceding sentence, no fractional shares of Common Stock shall
be issued to holders of record of Old Common Stock in connection with the
foregoing reclassification of shares of Old Common Stock. In lieu thereof,
the
Corporation shall pay cash equal to such fraction multiplied by the then fair
value per share of Common Stock, as applicable, as determined by the Board
of
Directors of the Corporation.
(3)
Each
stock certificate that, immediately prior to the Effective Time, represented
shares of Old Common Stock, as applicable, shall, from and after the Effective
Time, automatically and without the necessity of presenting the same for
exchange, represent that number of whole shares of Common Stock into which
the
shares of Old Common
Stock,
as
applicable, represented by such certificate shall have been reclassified (as
well as the right to receive cash in lieu of any fractional shares of Common
Stock, as set forth above).
5.
The
Corporation is to have perpetual existence.
6.
In
furtherance and not in limitation of the powers conferred by statute, the Board
of Directors is expressly authorized:
(a)
To
make,
alter, or repeal the By-Laws of the Corporation.
(b)
To
authorize and cause to be executed mortgages and liens upon the real and
personal property of the Corporation.
(c)
To
set
apart out of any of the funds of the Corporation available for dividends a
reserve or reserves for any proper purpose and to abolish any such reserve
in
the manner in which it was created.
(d)
Subject
to the provisions of the By-Laws, to designate one or more committees, each
committee to consist of one or more of the directors of the Corporation. Subject
to the provisions of the By-Laws, the Board of Directors may designate one
or
more directors as alternate members of any committee, who shall replace any
absent or disqualified member at any meeting of the committee in the manner
specified in such designation. Any such committee, to the extent provided in
the
resolution of the Board of Directors adopted in accordance with the By-Laws
of
the Corporation, shall have and may exercise all the powers and authority of
the
Board of Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to
all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the Amended and Restated Certificate of
Incorporation, adopting an agreement of merger or consolidation, recommending
to
the stockholders a dissolution of the Corporation or a revocation of a
dissolution, or amending the By-Laws of the Corporation; and, unless the
resolution or By-Laws expressly so provide, no such committee shall have the
power or authority to declare a dividend or to authorize the issuance of stock.
(e)
When
and
as authorized by the stockholders in accordance with statute, to sell, lease,
or
exchange all or substantially all of the property and assets of the Corporation,
including its goodwill and its corporate franchises, upon such terms and
conditions and for such consideration, which may consist in whole or in part
of
money or property, including shares of stock in, and/or other securities of,
any
other corporation or corporations, as its Board of Directors shall deem
expedient and for the best interests of the Corporation.
7.
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, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement to
any
reorganization of this Corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on 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.
8.
Meetings
of stockholders may be held within or without the State of Delaware, as the
By-Laws may provide. The books of the Corporation may be kept (subject to any
provision contained in the statues) outside the State of Delaware at such place
or places as may be designated from time to time by the Board of Directors
or in
the By-Laws of the Corporation. Elections of directors need not be by written
ballot unless the By-Laws of the Corporation shall so provide.
9.
For
the
management of the business and for the conduct of the affairs of the
Corporation, and in further creation, definition, limitation and regulation
of
the power of the Corporation and of its directors and of its stockholders,
it is
further provided:
(a)
Election
of Directors
.
Elections of Directors need not be by written ballot unless the By-Laws of
the
Corporation shall so provide.
(b)
Number,
Election and Terms of Directors
.
The
number of Directors of the Corporation shall be fixed from time to time by
or
pursuant to the By-laws. From and after the annual meeting of stockholders
to be
held in 2004, the Directors shall hold office for a term expiring at the annual
meeting of stockholders to be held in the year following the year of their
election, with the members to hold office until their successors are elected
and
qualified; provided that the term of any Director appointed prior to the annual
meeting of stockholders held in 2004 shall be unaffected. At each annual meeting
of the stockholders of the Corporation, the Directors whose term expires at
that
meeting shall be elected to office for a term expiring at the annual meeting
of
stockholders held in the year following the year of their election.
(c)
Stockholder
Nomination of Director Candidates
.
Advance
notice of nominations for the election of Directors, other than by the Board
of
Directors or a Committee thereof, shall be given in the manner provided in
the
By-Laws.
(d)
Newly
Created Directorships and Vacancies
.
Newly
created directorships resulting from any increase in the number of Directors
and
any vacancies on the Board of Directors resulting from the death, resignation,
disqualification, or removal of a director shall be filled solely by the
affirmative vote of the majority of the remaining Directors then in office,
even
though less than a quorum of the Board of Directors. Any Director
elected
(a) to fill any vacancy resulting from the death, resignation, disqualification
or removal of a Director shall hold office for the remainder of the full term
of
the Director whose death, resignation, disqualification or removal created
such
vacancy or (b) to fill any vacancy resulting from a newly created directorship
shall hold office until the next annual meeting of stockholders and, in each
case, until such Director's successors shall have become elected and qualified.
No decrease in the number of Directors constituting the Board of Directors
shall
shorten the term of any incumbent Director.
(e)
Removal
of Directors
.
Any
Director may be removed from office with or without cause only by the
affirmative vote of the holders of a majority of the combined voting power
of
the then outstanding shares of stock entitled to vote generally in the election
of Directors voting together as a single class.
(f)
Stockholder
Action
.
Any
action required or permitted to be taken by the stockholders of the Corporation
must be effected 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, special meetings of stockholders of the Corporation
may be called only by the Chairman of the Board, the President or the Board
of
Directors pursuant to a resolution approved by a majority of the entire Board
of
Directors.
(g)
By-Law
Amendments
.
The
Board of Directors shall have power to make, alter, amend and repeal the By-Laws
(except so far as the By-Laws adopted by the stockholders shall otherwise
provide). Any By-Laws 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 Amended and
Restated Certificate of Incorporation to the contrary, Sections 1, 2 and 3
of
Article II of the By-Laws 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 80% 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 and Sections 1, 2 and 3 of Article III of the By-Laws
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 a majority of the voting power of all shares of the Corporation entitled
to vote generally in the election of Directors, voting together as a single
class.
(h)
Amendment,
Repeal
.
Notwithstanding anything contained in this Amended and Restated Certificate
of
Incorporation to the contrary, the affirmative vote of the holders of at least
80% of the voting power of all 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, Article 9 a., c., d., f., g., or h.
10.
(a)
Vote
Required for Certain Business Combinations.
A.
Higher
Vote for Certain Business Combinations
.
In
addition to any affirmative vote required by law or this Amended and Restated
Certificate of Incorporation, and except as otherwise expressly provided
herein:
(1)
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 itself an Interested Stockholder) which is,
or
after such merger or consolidation would be, an Affiliate (as hereinafter
defined) of an Interested Stockholder; or
(2)
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 of $10 million or more;
or
(3)
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 to 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 $10 million or more; or
(4)
the
adoption of any plan or proposal for the liquidation or dissolution of the
Corporation proposed by or on behalf of any Interested Stockholder or any
Affiliate of any Interested Stockholder; or
(5)
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 Security (as hereinafter defined)
of
the Corporation or any Subsidiary which is directly or indirectly owned by
any
Interested Stockholder or any Affiliate of any Interested Stockholder;
shall
require the affirmative vote of the holders of at least 80% of the voting power
of the then outstanding shares of capital stock 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 the purposes of Article
10, each share of the Voting Stock shall have one vote). 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.
B.
Definition
of "Business Combination
".
The
term "Business Combination" used in this Article 10 shall mean any transaction
which is referred to in any one or more of clauses (1) through (5) of Paragraph
A hereof.
(b)
When
Higher Vote is Not Required
.
The
provisions of Article 10(a) 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 Amended and Restated
Certificate of Incorporation, if all of the conditions specified in either
of
the following Paragraphs A and B are met:
A.
Approval
by Disinterested Directors
.
The
Business Combination shall have been approved by majority of the Disinterested
Directors (as hereinafter defined).
B.
Price
and Procedure Requirements
.
All of
the following conditions shall have been met:
(i)
The
aggregate amount of the cash and the Fair Market Value (as hereinafter defined)
as of the date of the consummation of the Business Combination of consideration
other than cash to be received per share by holders of 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 Common Stock acquired by it (1) within the two-year period
immediately prior to the first public announcement of the terms of the proposed
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 Common Stock on the Announcement Date or on the date
on which the Interested Stockholder became an Interested Stockholder (such
latter date is referred to in this Paragraph 10 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 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 Common 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; and
(b)
the
Fair
Market Value per share of such class of Voting Stock on the Announcement Date
or
on the Determination Date, whichever is higher.
(iii)
The
consideration to be received by holders of Voting Stock shall be in 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 any
Voting Stock with varying forms of consideration, the form of consideration
for
such Voting Stock shall be either cash or the form used to acquire the largest
number of shares of such Voting Stock previously acquired by it. The price
determined in accordance with paragraphs B(i) and B(ii) of this Article 10(b)
shall be subject to appropriate adjustment in the event of any stock dividend,
stock split, combination of shares or similar event.
(iv)
After
such Interested Stockholder has become an Interested Stockholder and prior
to
the consummation of such Business Combinations: (a) there shall have been (1)
no
reduction in the annual rate of dividends paid on the Common Stock (except
as
necessary to reflect any subdivision of the 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
the Common Stock, unless the failure so to increase such annual rate is approved
by a majority of the Disinterested Directors; and (b) 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.
(c)
Certain
Definitions
.
For the
purpose of this Article 10:
A.
A
"person" shall mean any individual, firm, corporation 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 5% or more 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 5% 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
purpose of determining whether a person is an interested Stockholder pursuant
to
paragraph B of this Article 10(c), the number of shares of Voting Stock deemed
to be outstanding shall include shares deemed owned through application of
paragraph C of the Article 10(c) but shall not include any other shares of
Voting Stock which 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, 1985.
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 10(c), 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 of
Directors.
H.
"Fair
Market Value" means: (i) in the case of stock, 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 Quotation System or any system then in use, or, if such stock is
then
listed on an exchange, the highest closing sale price during the 30-day period
immediately preceding the date in question of a share of such stock on the
Composition 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 or quoted as aforesaid, the fair market value on
the
date in question of a share of such stock as determined by the Board of
Directors 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 the Board of Directors, in good faith.
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 paragraphs B(i) and
(ii) of Article 10(b) shall include the shares of Common Stock retained by
the
holders of such shares.
J.
"Equity
Security" shall have the meaning ascribed to such term in Section 3(a)(11)
of
the Securities Exchange Act of 1934, as in effect on January 1,
1985.
(d)
Powers
of the Board of Directors
.
A
majority of the Directors shall have the power and duty to determine for the
purposes of this Article 10 on the basis of information known to them after
reasonable inquiry, (A) whether a person is an Interested Stockholder, (B)
the
number of shares of Common 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 an issuance of transfer of securities by the Corporation or any
Subsidiary in any Business Combination has, or an issuance or transfer of
securities by the Corporation or any Subsidiary in any Business Combination
has,
an aggregate Fair Market Value of $10 million or more. A majority of the
Directors shall have the further power to interpret all of the terms and
provisions of this Article 10.
(e)
No
Effect on Fiduciary Obligations of Interested Shareholders
.
Nothing
contained in this Article 10 shall be construed to relieve any Interested
Stockholder from any fiduciary obligation imposed by law.
(f)
Amendment,
Repeal, etc
.
Notwithstanding any other provisions of this Amended and Restated Certificate
of
Incorporation or the By-Laws (and notwithstanding the fact that a lesser
percentage may be specified by law, this Amended and Restated Certificate of
Incorporation or the By-Laws) the affirmative vote of the holders of 80% or
more
of the outstanding Voting Stock, voting together as a single class, shall be
required to amend or repeal, or adopt any provisions inconsistent with this
Article 10.
11.
No
director of the Corporation shall be personally liable to the Corporation or
its
stockholders for monetary damages for breach of fiduciary duty by such director
as a director; provided, however, that this Article 11 shall not eliminate
or
limit the liability of a director to the extent provided by applicable law
(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 General Corporation Law of the State of Delaware, or (iv) for any
transaction from which the director derived an improper personal benefit. No
amendment to or repeal of this Article 11 shall apply to or have any effect
on
the liability or alleged liability of any director of the Corporation for or
with respect to any acts or omissions of such director occurring prior to such
amendment or repeal.
12.
This Amended and Restated Certificate of Incorporation shall be effective
as of
5:00 p.m. Eastern Standard Time on September 1, 2006.
IN
WITNESS WHEREOF, the Corporation has caused this Amended and Restated
Certificate of Incorporation to be executed this 1st day of September, 2006.
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CENDANT
CORPORATION
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By:
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/s/
Karen C. Sclafani
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KAREN
C. SCLAFANI
Executive Vice
President and General Counsel
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