EX-4.1



 






Exhibit 4.1




PHH CORPORATION




ARTICLES OF AMENDMENT AND RESTATEMENT




PHH Corporation, a Maryland corporation (which is hereinafter called the “Corporation”),
hereby certifies to the State Department of Assessments and Taxation of Maryland (the “SDAT”) that:



FIRST:
The name of the Corporation is “PHH Corporation.” The Corporation desires to amend and
restate its Charter as currently in effect. The Articles of Incorporation of the Corporation were
originally filed with the SDAT on December 9, 1953 and were last amended by Articles of Amendment
and Restatement filed with the SDAT on January [ ], 2005.



SECOND: Pursuant to Section 2-609 of the Maryland General Corporation Law (the “MGCL”), these
Articles of Amendment and Restatement (these “Articles”) restate and further amend the provisions
of the Amended and Restated Articles of Incorporation of the Corporation.



THIRD: The text of the Amended and Restated Articles of Incorporation of the Corporation is
hereby amended and restated in its entirety to read as follows:




“FIRST: THE UNDERSIGNED, Duane L. Peterson, whose post office address is 2521 North
Charles Street, Baltimore, Maryland 21218, Harley W. Howell, whose post office address is
2521 North Charles Street, Baltimore, Maryland 21218, and Richard M. Heather, whose post
office address is 2521 North Charles Street, Baltimore, Maryland 21218, being at least 18
years of age, does hereby form a corporation under the general laws of the State of
Maryland.




SECOND: The name of the corporation (which is hereinafter called the “Corporation”)
is:



PHH Corporation.





THIRD: The purposes for which the Corporation is formed are to engage in any lawful
act or activity for which corporations may be organized under the general laws of the State
of Maryland as now or hereafter in force.




FOURTH: The post office address of the principal office of the Corporation in the
State of Maryland is 940 Ridgebrook Road, The Highlands Corporate Office Park, Sparks,
Maryland 21152.




FIFTH: The name of the resident agent of the Corporation in the State of Maryland is
CSC – Lawyers Incorporating Service Company, whose post office address is 11 East Chase
Street, Baltimore, Maryland, 21202. The resident agent is a citizen of and resides in the
State of Maryland.



 









 






SIXTH:          (a) The total number of shares of stock of all classes and series which the
Corporation has authority to issue is 110,000,000 shares of stock (par value $0.01 per share), amounting in aggregate par value to $1,100,000. 100,000,000 of such shares
are initially classified as “Common Stock” and 10,000,000 of such shares are initially
classified as “Preferred Stock”. The Board of Directors may classify and reclassify any
unissued shares of stock (whether or not such shares have been previously classified or
reclassified) by setting or changing in any one or more respects the class and series
designations of shares of stock or setting or changing in any one or more respects the
preferences, conversion or other rights, voting powers, restrictions, limitations as to
dividends, qualifications, or terms or conditions of redemption of such shares of stock.
The board of directors, with the approval of a majority of the entire board and without
action by the stockholders, may amend the charter to increase or decrease the aggregate
number of shares of stock of the corporation or the number of shares of stock of any class
that the corporation has authority to issue.




(b) The following is a description of the preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends, qualifications and terms and
conditions of redemption of the Common Stock:



(1) Each share of Common Stock shall have one vote, and, except as
otherwise provided in respect of any class of stock hereafter classified or
reclassified, the exclusive voting power for all purposes shall be vested in
the holders of the Common Stock. Shares of Common Stock shall not have
cumulative voting rights.



(2) Subject to the provisions of applicable law and any preferences of
any class of stock hereafter classified or reclassified, dividends,
including dividends payable in shares of another class of the Corporation’s
stock, may be paid ratably on the Common Stock at such times and in such
amounts as the Board of Directors may deem advisable.



(3) In the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the holders of the Common
Stock shall be entitled, together with the holders of any other class of
stock hereafter classified or reclassified not having a preference on
distributions in the liquidation, dissolution or winding up of the
Corporation, to share ratably in the net assets of the Corporation
remaining, after payment or provision for payment of the debts and other
liabilities of the Corporation and the amount to which the holders of any
class of stock hereafter classified or reclassified having a preference on
distributions in the liquidation, dissolution or winding up of the
Corporation shall be entitled.



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(c) Subject to the foregoing, the power of the Board of Directors to classify
and reclassify any of the shares of stock shall include, without limitation, subject
to the provisions of the Charter, authority to classify or reclassify any unissued shares
of such stock into Preferred Stock, and to divide and classify shares
of any class into one or more series of such class, by determining, fixing, or
altering one or more of the following:



(1) The distinctive designation of such class or series and the number
of shares to constitute such class or series; provided that, unless
otherwise prohibited by the terms of such class or series or any other class
or series, the number of shares of any class or series may be decreased by
the Board of Directors in connection with any classification or
reclassification of unissued shares and the number of shares of such class
or series may be increased by the Board of Directors in connection with any
such classification or reclassification, and any shares of any class or
series which have been redeemed, purchased, otherwise acquired or converted
into shares of Common Stock or any other class or series shall again become
part of the authorized stock and be subject to classification and
reclassification as provided in this sub-paragraph.



(2) Whether or not and, if so, the rates, amounts and times at which,
and the conditions under which, dividends shall be payable on shares of such
class or series, whether any such dividends shall rank senior or junior to
or on a parity with the dividends payable on any other class or series, and
the status of any such dividends as cumulative, cumulative to a limited
extent or non-cumulative and as participating or non-participating.



(3) Whether or not shares of such class or series shall have voting
rights, in addition to any voting rights provided by applicable law and, if
so, the terms of such voting rights.



(4) Whether or not shares of such class or series shall have
conversion or exchange privileges and, if so, the terms and conditions
thereof, including provision for adjustment of the conversion or exchange
rate in such events or at such times as the Board of Directors shall
determine.



(5) Whether or not shares of such class or series shall be subject to
redemption and, if so, the terms and conditions of such redemption,
including the date or dates upon or after which they shall be redeemable and
the amount per share payable in case of redemption, which



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amount may vary under different conditions and at different redemption
dates; and whether or not there shall be any sinking fund or purchase
account in respect thereof, and if so, the terms thereof.



(6) The rights of the holders of shares of such class or series upon
the liquidation, dissolution or winding up of the affairs of, or upon any
distribution of the assets of, the Corporation, which rights may vary
depending upon whether such liquidation, dissolution or winding up is
voluntary or involuntary and, if voluntary, may vary at different dates, and
whether such rights shall rank senior or junior to or on a parity with such
rights of any other class or series of stock.



(7) Whether or not there shall be any limitations applicable, while
 shares of such class or series are outstanding, upon the payment of
dividends or making of distributions on, or the acquisition of, or the use
of moneys for purchase or redemption of, any stock of the Corporation, or
upon any other action of the Corporation, including action under this
sub-paragraph, and, if so, the terms and conditions thereof.



(8) Any other preferences, rights, restrictions, including
restrictions on transferability, and qualifications of shares of such class
or series, not inconsistent with applicable law and the Charter.




(d) For the purposes hereof and of any Articles Supplementary to the Charter providing
for the classification or reclassification of any shares of stock or of any other Charter
document of the Corporation (unless otherwise provided in any such articles or document),
any class or series of stock of the Corporation shall be deemed to rank:



(1) prior to another class or series either as to dividends or upon
liquidation, if the holders of such class or series shall be entitled to the
receipt of dividends or of amounts distributable on liquidation, dissolution
or winding up, as the case may be, in preference or priority to holders of
such other class or series;



(2) on a parity with another class or series either as to dividends or
upon liquidation, whether or not the dividend rates, dividend payment dates
or redemption or liquidation price per share thereof be different from those
of such others, if the holders of such class or series shall be entitled to
receipt of dividends or amounts distributable upon liquidation, dissolution
or winding up, as the case may be, in proportion to their respective
dividend rates or redemption or liquidation



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prices, without preference or priority over the holders of such other
class or series; and



(3) junior to another class or series either as to dividends or upon
liquidation, if the rights of the holders of such class or series shall be
subject or subordinate to the rights of the holders of such other class or
series in respect of the receipt of dividends or the amounts distributable
upon liquidation, dissolution or winding up, as the case may be.




SEVENTH: (a) The number of directors of the Corporation shall be seven, which number
may be increased or decreased pursuant to the By-Laws of the Corporation, but shall never be
less than the minimum number permitted by the MGCL now or hereafter in force.




(b) Subject to the rights of the holders of any class of Preferred Stock then
outstanding, newly created directorships resulting from any increase in the authorized
number of directors or any vacancies on the Board of Directors resulting from death,
resignation, retirement, disqualification, removal from office, or other cause may be filled
by the directors then in office. No decrease in the number of directors constituting the
Board of Directors shall affect the tenure of office of any director. In addition, subject
to the rights of the holders of any class of Preferred Stock then outstanding, any vacancies
on the Board of Directors resulting from removal from office may be filled by the required
vote of the stockholders. A director so chosen by the stockholders shall hold office for
the balance of the term then remaining. A director so chosen by the remaining directors
shall hold office until the next annual meeting of stockholders, at which time the
stockholders shall elect a director to hold office for the balance of the term then
remaining. Notwithstanding the foregoing, immediately upon registration of a class of the
Corporation’s equity securities under the Securities Exchange Act of 1934, as amended, the
Corporation elects to be subject to the provisions of 3-804(c) of the MGCL which provides
that (1) any vacancy created by an increase in the size of the board of directors or the
death, resignation or removal of a director may be filled only by the affirmative vote of a
majority of the remaining directors in office, even if the remaining directors do not
constitute a quorum and (2) any director so elected to fill a vacancy shall hold office for
the remained of the full term of the class of directors in which the vacancy occurred and
until a successor is elected and qualifies.




(c) Whenever the holders of any one or more series of Preferred Stock of the
Corporation shall have the right, voting separately as a class, to elect one or more
directors of the Corporation, the Board of Directors shall consist of said directors so
elected in addition to the number of directors fixed as provided in paragraph (a) of this
Article SEVENTH or in the By-Laws. Notwithstanding the foregoing, and except as otherwise
may be required by applicable law, whenever the holders of any one or more



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class or series of Preferred Stock of the Corporation shall have the right, voting
separately as a class, to elect one or more directors of the Corporation, the terms of the
director or directors elected by such holders shall expire at the next succeeding annual
meeting of stockholders.




(d) Subject to the rights of the holders of any class or series of Preferred Stock of
the Corporation entitled, voting as a class, to elect or remove one or more directors of the
Corporation, any director, or the entire Board of Directors, may be removed from office at
any time, but only for cause and by the vote of the holders of not less than 66-2/3% of the
outstanding shares of stock of the Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class).




(e) The directors (except for the directors elected by the holders of any one or more
class or series of Preferred Stock of the Corporation as provided in paragraph (c) of this
Article SEVENTH) shall be divided into three classes as follows:



(1) The term of office of Class I shall be until the 2006 annual
meeting of stockholders and until their successors shall be elected and have
qualified and thereafter shall be for three years and until their successors
shall be elected and have qualified;



(2) the term of office of Class II shall be until the 2007 annual
meeting of stockholders and until their successors shall be elected and have
qualified and thereafter shall be for three years and until their successors
shall be elected and have qualified; and



(3) the term of office of Class III shall be until the 2008 annual
meeting of stockholders and until their successors shall be elected and have
qualified and thereafter shall be for three years and until their successors
shall be elected and have qualified.




If the number of directors is changed, any increase or decrease shall be apportioned among
the classes so as to maintain or attain, if possible, the equality of the number of
directors in each class. If such equality is not possible, the increase or decrease shall
be apportioned among the classes in such a way that the difference in the number of
directors in any two classes shall not exceed one.




(f) The names of the individuals who will serve as directors of the Corporation until
their successors are elected and qualify are as follows:




(1) The following persons shall serve as Class I directors:



	 	 	 
	 

	 	Francis J. Van Kirk;






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	 	Terence W. Edwards; and
	 
	 	 
	

	 	A.B. Krongard.







(2) The following persons shall serve as Class II directors:



	 	 	 
	

	 	George J. Kilroy; and
	 
	 	 
	

	 	Ann D. Logan.







(3) The following persons shall serve as Class III directors:



	 	 	 
	 

	 	Jonathan D. Mariner; and
	 
	 	 
	 

	 	James W. Brinkley.







EIGHTH: (a) The following provisions are hereby adopted for the purpose of defining,
limiting, and regulating the powers of the Corporation and of the directors and the
stockholders:



(1) No holder of any stock or any other securities of the
Corporation, whether now or hereafter authorized, shall have any preemptive
right to subscribe for or purchase any stock or any other securities of the
Corporation other than such, if any, as the Board of Directors, in its sole
discretion, may determine and at such price or prices and upon such other
terms as the Board of Directors, in its sole discretion, may fix; and any
stock or other securities of the Corporation which the Board of Directors
may determine to offer for subscription may, as the Board of Directors in
its sole discretion shall determine, be offered to the holders of any class
or series of stock or other securities of the Corporation at the time
outstanding to the exclusion of the holders of any or all other classes or
series of stock or other securities at the time outstanding.



(2) No holder of any stock or any other securities of the Corporation,
whether now or hereafter authorized, shall be entitled to exercise the
rights of an objecting stockholder under Sections 3-201 et seq. of the MGCL
other than such, if any, as the Board of Directors, in its sole discretion,
may determine.



(3) The Board of Directors of the Corporation shall, consistent
with applicable law, have power in its sole discretion to determine from
time to time in accordance with sound accounting practice or other
reasonable valuation methods what constitutes annual or other net profits,
earnings, surplus or net assets in excess of capital; to fix and vary



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from time to time the amount to be reserved as working capital, or
determine that retained earnings or surplus shall remain in the hands of the
Corporation; to set apart out of any funds of the Corporation such reserve
or reserves in such amount or amounts and for such proper purpose or
purposes as it shall determine and to abolish any such reserve or any part
thereof; to redeem or purchase its stock or to distribute and pay
distributions or dividends in stock, cash or other securities or property,
out of surplus or any other funds or amounts legally available therefor, at
such times and to the stockholders of record on such dates as it may, from
time to time, determine; to determine the amount, purpose, time of creation,
increase or decrease, alteration or cancellation of any reserves or charges
and the propriety thereof (whether or not any obligation or liability for
which such reserves or charges shall have been created shall have been paid
or discharged); to determine the fair value and any matters relating to the
acquisition, holding and disposition of any assets by the Corporation; and
to determine whether and to what extent and at what times and places and
under what conditions and regulations the books, accounts and documents of
the Corporation, or any of them, shall be open to the inspection of
stockholders, except as otherwise provided by statute, the rules of any
stock exchange or market system on which securities of the Corporation are
listed or by the By-Laws, and, except as so provided, no stockholder shall
have any right to inspect any book, account or document of the Corporation
unless authorized so to do by resolution of the Board of Directors.



(4) Except as specifically provided in Article SEVENTH clause (d)
(relating to the removal of directors) and in this Article EIGHTH,
notwithstanding any provision of applicable law requiring the authorization
of any action by a greater proportion than a majority of the total number of shares of all classes or series of stock or of the total number of shares of
any class or series of stock, such action shall be valid and effective if
authorized by the affirmative vote of the holders of a majority of the total
number of shares of all classes or series outstanding and entitled to vote
thereon, except as otherwise provided in the Charter.



(5) The Corporation shall indemnify (A) its current and former
directors and officers, whether serving the Corporation or at its request
any other entity, to the full extent required or permitted by the MGCL now
or hereafter in force, including the advance of expenses under the
procedures and to the full extent permitted by law and (B) other employees
and agents to such extent as shall be authorized by the Board of Directors
or the Corporation’s By-Laws and be permitted by applicable



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law. The foregoing rights of indemnification shall not be exclusive of
any other rights to which those seeking indemnification may be entitled.
The Board of Directors may take such action as is necessary to carry out
these indemnification provisions and is expressly empowered to adopt,
approve and amend from time to time such by-laws, resolutions or contracts
implementing such provisions or such further indemnification arrangements as
may be permitted by law. No amendment of the Charter of the Corporation or
repeal of any of its provisions shall limit or eliminate the right to
indemnification provided hereunder with respect to acts or omissions
occurring prior to such amendment or repeal.



(6) To the fullest extent permitted by applicable law, as amended or
interpreted, no current or former director or officer of the Corporation
shall be personally liable to the Corporation or its stockholders for money
damages. No amendment of the Charter of the Corporation or repeal of any of
its provisions shall limit or eliminate the limitation on liability provided
to directors and officers hereunder with respect to any act or omission
occurring prior to such amendment or repeal.



(7) Nominations for the election of directors and proposals for any
new business to be taken up at any annual meeting of stockholders shall be
made in accordance with the By-laws.



(8) The Board of Directors of the Corporation is expressly and
exclusively authorized to make, repeal, alter, amend and rescind the By-Laws
of the Corporation. Notwithstanding any other provision of the Charter or
the By-Laws of the Corporation, the By-Laws shall not be made, repealed,
altered, amended or rescinded by the stockholders of the Corporation.



(9) The Corporation reserves the right from time to time to make any
amendments of the Charter which may now or hereafter be authorized by law,
including any amendments changing the terms or contract rights, as expressly
set forth in the Charter, of any of its outstanding stock by classification,
reclassification or otherwise; provided, however, that any amendment to,
repeal of or adoption of any provision inconsistent with Article SEVENTH,
sub-paragraphs (a)(5), (6), (7) or (8) of this Article EIGHTH, this
sub-paragraph (a)(9) of this Article EIGHTH or Article NINTH must be
authorized by not less than 80% of the aggregate votes entitled to be cast
thereon (considered for this purpose as a single class), by vote at a
meeting or in writing with or without a meeting.



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(b) The enumeration and definition of particular powers of the Board of Directors
included in the foregoing shall in no way be limited or restricted by reference to or
inference from the terms of any other clause of this or any other Article of the Charter of
the Corporation, or construed as or deemed by inference or otherwise in any manner to
exclude or limit any powers conferred upon the Board of Directors under the General Laws of
the State of Maryland now or hereafter in force.




NINTH: Any action required to be taken or which may be taken by the holders of the
Common Stock may not be taken without a duly called annual or special meeting of such
holders in the absence of unanimous written consent in lieu of a meeting.




TENTH: The duration of the Corporation shall be perpetual.”



FOURTH: Pursuant to a unanimous written consent of the Board, each member of the Board
approved these Articles pursuant to Section 2-408 of the MGCL, by which these Articles were set
forth, declared to be advisable and directed to be submitted to the stockholders of the Corporation
for consideration and approval.



FIFTH: The holder of the Common Stock, the only class of stock issued, outstanding and
entitled to vote thereon, adopted and approved these Articles pursuant to a unanimous written
consent of the sole stockholder dated as of January ___, 2005.



SIXTH:
Both prior to and following the filing of these Articles, the Corporation has authority to issue
110,000,000 shares of stock, consisting of 100,000,000 shares of Common Stock and 10,00,000 shares
of Preferred Stock. Prior to and following the filing of these Articles, the aggregate par value of all
authorized shares of stock having par value is $1,100,000.



SEVENTH: None of the preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends, qualifications, or terms and conditions of redemption of any class of
the Corporation’s stock was changed by these Articles.



EIGHTH:
The number of directors of the Corporation is three (3) and the names of those
currently in office are:



	 	 	 
	 

	 	James E. Buckman
	

	 	Ronald L. Nelson
	

	 	Stephen P. Holmes






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NINTH: The provisions set forth in the foregoing Articles are all of the provisions of the
Amended and Restated Articles of Incorporation currently in effect.



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IN WITNESS WHEREOF, I have signed these Articles of Amendment and Restatement, acknowledging
the same to be my act, on January ___, 2005.



	 	 	 	 	 	 	 	 	 
	Witness:
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	 	 	 
	 	By:	 	 
	

	 	 
	 	 	 	 	 	 
	

	 	Name: Eric J. Bock
	 	 	 	 	 	Name: Richard A. Smith
	

	 	Title: Secretary
	 	 	 	 	 	Title: President






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Consent of Resident Agent




THE UNDERSIGNED, hereby consents to act as resident agent in Maryland for the entity
named in the attached instrument.



	 	 	 	 	 	 	 
	[
	 	 	 	 	 	 
	 	 	 
	Signature	 	 	 	 
	Printed Name:	 	]	 	 
	

	 	 	 	 	 	 
	

	 	 	 	 	 	 
	[The Corporate Resident Agent	 	 
	

	 	 	 	 	 	 
	

	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	Printed Name:	 	]	 	 
	

	 	 	 	 	 	 







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