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Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
TRAVELCENTERS OF AMERICA, INC.
I.
NAME
The name of the Corporation is TravelCenters of America, Inc.
(hereinafter called the "Corporation").
II.
REGISTERED OFFICE AND REGISTERED AGENT
The registered office and registered agent of the
Corporation is The Corporation Trust Company, 1209 Orange Street, Wilmington,
New Castle County, Delaware 19801.
III.
PURPOSE
The purpose of the Corporation is to engage in any lawful
act or activity for which corporations may be organized under the General
Corporation Law of Delaware.
IV.
CAPITAL
A. The Corporation is authorized to issue two classes of stock to be
designated, respectively, "Common Stock" and "Preferred Stock." The total number
of shares that the Corporation is authorized to issue is twenty-five million
(25,000,000) shares, twenty million (20,000,000) shares of which shall be Common
Stock (the "Common Stock") and five million (5,000,000) shares of which shall be
Preferred Stock (the "Preferred Stock"). The Preferred Stock shall have a par
value of one-hundredth of one cent ($0.0001) per share and the Common Stock
shall have a par value of one-hundredth of one cent ($0.0001) per share.
B. The Preferred Stock may be issued from time to time in one or more
series. The Board of Directors is hereby authorized, within the limitations and
restrictions stated in this Certificate of Incorporation, to fix or alter the
dividend rights, dividend rate, conversion rights, voting rights, rights and
terms of redemption (including sinking fund provisions), the redemption price or
prices, the liquidation preferences of any wholly unissued series of Preferred
Stock, and
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the number of shares constituting any such series and the designation thereof,
or any of them; and to increase or decrease the number of shares of any series
subsequent to the issue of shares of that series, but not below the number of
shares of such series then outstanding. In case the number of shares of any
series shall be so decreased, the shares constituting such decrease shall resume
the status which they had prior to the adoption of the resolution originally
fixing the number of shares of such series.
V.
LIMITATION ON LIABILITY; INDEMNIFICATION
A. To the fullest extent permitted by the laws of the State of
Delaware:
(1) The Corporation shall indemnify any person (and such
person's heirs, executors or administrators) who was or is a party or
is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (brought in the right of the
Corporation or otherwise), whether civil, criminal, administrative or
investigative, and whether formal or informal, including appeals, by
reason of the fact that such person is or was a director or officer of
the Corporation or, while a director or officer of the Corporation, is
or was serving at the request of the Corporation as a director,
officer, partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust, limited liability company or other
enterprise, for and against all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person or such heirs, executors or administrators in
connection with such action, suit or proceeding, including appeals.
Notwithstanding the preceding sentence, the Corporation shall be
required to indemnify a person described in such sentence in connection
with any action, suit or proceeding (or part thereof) (except an action
to enforce his or her indemnity rights) commenced by such person only
if the commencement of such action, suit or proceeding (or part
thereof) by such person was authorized by the Board of Directors of the
Corporation. The Corporation may indemnify any person (and such
person's heirs, executors or administrators) who was or is a party or
is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (brought in the right of the
Corporation or otherwise), whether civil, criminal, administrative or
investigative, and whether formal or informal, including appeals, by
reason of the fact that such person is or was an employee or agent of
the Corporation or is or was serving at the request of the Corporation
as a director, officer, partner, trustee, employee or agent of another
corporation, partnership, joint venture, trust, limited liability
company or other enterprise, for and against all expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person or such heirs,
executors or administrators in connection with such action, suit or
proceeding, including appeals.
(2) The Corporation shall promptly pay expenses incurred by
any person described in the first and second sentence of subsection (1)
of this Article Fifth, Section (A) in defending or prosecuting any
action, suit or proceeding in advance of the final disposition of such
action, suit or proceeding, including appeals, upon presentation of
appropriate documentation.
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(3) The Corporation may purchase and maintain insurance on
behalf of any person described in subsection (1) of this Article Fifth,
Section (A) against any liability asserted against such person, whether
or not the Corporation would have the power to indemnify such person
against such liability under the provisions of this Article Fifth,
Section (1) or otherwise.
(4) The provisions of this Article Fifth, Section (A) shall be
applicable to all actions, claims, suits or proceedings made or
commenced after the adoption hereof, whether arising from acts or
omissions to act occurring before or after its adoption. The provisions
of this Article Fifth, Section (A) shall be deemed to be a contract
between the Corporation and each director or officer who serves in such
capacity at any time while this Article Fifth, Section (A) and the
relevant provisions of the laws of the State of Delaware and other
applicable law, if any, are in effect, and any repeal or modification
hereof shall not affect any rights or obligations then existing with
respect to any state of facts or any action, suit or proceeding then or
theretofore existing, or any action, suit or proceeding thereafter
brought or threatened based in whole or in part on any such state of
facts. If any provision of this Article Fifth, Section (A) shall be
found to be invalid or limited in application by reason of any law or
regulation, it shall not affect the validity of the remaining
provisions hereof. The rights of indemnification provided in this
Article Fifth, Section (A) shall neither be exclusive of, nor be deemed
in limitation of, any rights to which an officer, director, employee or
agent may otherwise be entitled or permitted by contract, this
Certificate of Incorporation, vote of stockholders or directors or
otherwise, or as a matter of law, both as to actions in such person's
official capacity and actions in any other capacity while holding such
office, it being the policy of the Corporation that indemnification of
any person whom the Corporation is obligated to indemnify pursuant to
the first and second sentence of subsection (1) of this Article Fifth,
Section (A) shall be made to the fullest extent permitted by law.
(5) For purposes of this Article Fifth, references to "other
enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with
respect to an 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 services by, such director, officer, employee, or agent
with respect to an employee benefit plan, its participants, or
beneficiaries.
B. A director of the Corporation shall not be liable to the Corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, except to the extent such exemption from liability or limitation
thereof is not permitted under the General Corporation Law of the State of
Delaware as the same exists or may hereafter be amended. Any amendment,
modification or repeal of the foregoing sentence shall not adversely affect any
right or protection of a director of the Corporation hereunder in respect of any
act or omission occurring prior to the time of such amendment, modification or
repeal.
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VI.
MISCELLANEOUS
For the management of the business and for the conduct of the affairs
of the Corporation, and in further definition, limitation and regulation of the
powers of the Corporation, of its Directors and of its stockholders or any class
thereof, as the case may be, it is further provided that:
A. The management of the business and the conduct of the
affairs of the Corporation shall be vested in its Board of Directors.
The number of directors that shall constitute the whole Board of
Directors shall be fixed by the Board of Directors in the manner
provided by the Bylaws.
B. The Board of Directors may from time to time make, amend,
supplement or repeal the Bylaws; provided, however, that the
stockholders may change or repeal any Bylaw adopted by the Board of
Directors by the affirmative vote of the holders of a majority of the
voting power of all of the then outstanding shares of the Common Stock
and, provided further, that no amendment or supplement to the Bylaws
adopted by the Board of Directors shall vary or conflict with any
amendment or supplement thus adopted by the stockholders.
VII.
AMENDMENT
A. The Board of Directors of the Corporation, acting by majority vote,
may alter, amend or repeal the By-Laws of the Corporation.
