Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1/A Pre-Effective Amendment to Registration Statement 99 487K
(General Form)
2: EX-2.01 Form of Agreement and Plan of Merger 7 25K
3: EX-3.02 Form of First Amended & Restated Certificate 22 100K
4: EX-3.03 Form of Second Amended & Restated Certificate 4 20K
5: EX-3.05 Restated Bylaws of Registrant 20 89K
6: EX-4.02 Second Amended & Restated Investors Rights 38 140K
7: EX-10.01 Form of Indemnity Agreement 9 45K
8: EX-10.03 2000 Equity Incentive Plan of Registrant 40 150K
9: EX-10.04 2000 Equity Incentive Plan and Related Forms 14 80K
10: EX-10.05 2000 Employee Stock Purchase Plan 7 51K
11: EX-10.12 Series D Preferred Stock Purchase 83 270K
12: EX-23.02 Consent of Ernst & Young LLP 1 7K
EX-3.03 — Form of Second Amended & Restated Certificate
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EXHIBIT 3.03
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ALLADVANTAGE.COM INC.
ARTICLE I
The name of the corporation is AllAdvantage.com Inc.
ARTICLE II
The address of the registered office of the corporation in the State of
Delaware is 15 East North Street, City of Dover, County of Kent. The name of
its registered agent at that address is Incorporating Services, Ltd.
ARTICLE III
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 the
State of Delaware.
ARTICLE IV
The total number of shares of all classes of stock which the corporation
has authority to issue is 1,005,000,000 shares, consisting of two classes:
1,000,000,000 shares of Common Stock, $0.001 par value per share, and 5,000,000
shares of Preferred Stock, $0.001 par value per share.
The Board of Directors is authorized, subject to any limitations prescribed
by the law of the State of Delaware, to provide for the issuance of the shares
of Preferred Stock in one or more series, and, by filing a Certificate of
Designation pursuant to the applicable law of the State of Delaware, to
establish from time to time the number of shares to be included in each such
series, to fix the designation, powers, preferences and rights of the shares of
each such series and any qualifications, limitations or restrictions thereof,
and to increase or decrease the number of shares of any such series (but not
below the number of shares of such series then outstanding). The number of
authorized shares of Preferred Stock may also be increased or decreased (but not
below the number of shares thereof then outstanding) by the affirmative vote of
the holders of a majority of the stock of the corporation entitled to vote,
unless a vote of any other holders is required pursuant to a Certificate or
Certificates of Designation establishing a series of Preferred Stock.
Except as otherwise expressly provided in any Certificate of Designation
designating any series of Preferred Stock pursuant to the foregoing provisions
of this Article IV, any new series of Preferred Stock may be designated, fixed
and determined as provided herein by the Board of Directors without approval of
the holders of Common Stock or the holders of Preferred Stock, or any series
thereof, and any such new series may have powers, preferences and rights,
including, without limitation, voting rights, dividend rights, liquidation
rights, redemption rights and
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conversion rights, senior to, junior to or pari passu with the rights of the
Common Stock, the Preferred Stock, or any future class or series of Preferred
Stock or Common Stock.
ARTICLE V
In furtherance of and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to adopt, amend or repeal the
Bylaws of this corporation, subject to the right of the stockholders entitled to
vote with respect thereto, in accordance with the provisions of such Bylaws, to
alter and repeal the Bylaws adopted or amended by the Board of Directors.
Notwithstanding any other provisions of law, this Certificate of Incorporation
or the Bylaws, each as amended, and notwithstanding the fact that a lesser
percentage may be specified by law, this Certificate of Incorporation or the
Bylaws, the affirmative vote of the holders of at least sixty six and two-thirds
percent (66 2/3%) of the outstanding voting stock then entitled to vote at an
election of directors, voting together as a single class, shall be required to
alter, change, amend, repeal or adopt any provision inconsistent with this
Article V.
ARTICLE VI
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 conduct of the affairs of the corporation shall be managed under
the direction of the Board of Directors. The number of directors shall be fixed
from time to time exclusively by resolution of the Board of Directors.
(B) Notwithstanding the foregoing provision of this Article VI, each
director shall hold office until such director's successor is elected and
qualified, or until such director's earlier death, resignation or removal. No
decrease in the authorized number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
(C) Subject to the rights of the holders of any series of Preferred Stock,
any vacancy occurring in the Board of Directors for any cause, and any newly
created directorship resulting from any increase in the authorized number of
directors, shall, unless (i) the Board of Directors determines by resolution
that any such vacancies or newly created directorships shall be filled by the
stockholders, or (ii) as otherwise provided by law, be filled only by the
affirmative vote of a majority of the directors then in office, although less
than a quorum, or by a sole remaining director, and not by the stockholders.
Any director elected in accordance with the preceding sentence shall hold office
for the remainder of the full term of the director for which the vacancy was
created or occurred.
(D) Subject to the rights of the holders of any series of Preferred Stock,
any director or the entire Board of Directors may be removed by the holders of
at least sixty-six and two-thirds percent (66-2/3%) of the shares then entitled
to vote at an election of directors.
(E) Classification of Board of Directors:
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(1) The provisions of this Article VI, Section (E) are subject to the
rights of the holders of any series of Preferred Stock to elect additional
directors under specified circumstances. As used in this Article VI, Section
(E), the term "Initial Public Offering" shall mean the initial public offering
of the corporation pursuant to an effective registration statement under the
Securities Act of 1933, as amended, covering the offer and sale of Common Stock
to the public.
(2) In the event that the corporation is prohibited from dividing its
board of directors into three classes in accordance with subsection (3) below
through the operation of Section 2115 of the California General Corporation Law,
at each annual meeting of stockholders, each director shall be elected for a
term of office to expire at the first succeeding annual meeting of stockholders
after his or her election, or until such director's earlier death, resignation
or removal.
(3) Unless otherwise provided pursuant to subsection (2) above, the
directors shall be divided, with respect to the time for which they severally
hold office, into three classes designated as Class I, Class II and Class III,
respectively. Directors shall be assigned to each class in accordance with a
resolution or resolutions adopted by the Board of Directors (the "Board
Classification Resolutions"), with the number of directors in each class to be
divided as equally as reasonably possible. No one class shall have more than
one director more than any other class. The term of office of the Class I
directors shall expire at the corporation's first annual meeting of stockholders
following the closing of the Initial Public Offering, the term of office of the
Class II directors shall expire at the corporation's second annual meeting of
stockholders following the closing of the Initial Public Offering, and the term
of office of the Class III directors shall expire at the corporation's third
annual meeting of stockholders following the closing of the Initial Public
Offering. At each annual meeting of stockholders commencing with the first
annual meeting of stockholders following the closing of the Initial Public
Offering, each director elected to succeed a director of the class whose term
then expires shall be elected for a term of office to expire at the third
succeeding annual meeting of stockholders after his or her election, or until
such director's earlier death, resignation or removal.
(4) In the event that (i) at any annual meeting of stockholders
following the closing of the Initial Public Offering, the directors are elected,
pursuant to subsection (2) above, for a term of office to expire at the first
succeeding annual meeting of stockholders after their election, and (ii) prior
to the first succeeding annual meeting of stockholders (the "Succeeding
Meeting"), the corporation is no longer prohibited through the operation of
Section 2115 of the California General Corporation Law from dividing its board
of directors into three classes, then the directors shall again be divided, with
respect to the time for which they severally hold office, into three classes
designated as Class I, Class II and Class III, respectively, and shall be
assigned to each class in accordance with the Board Classification Resolutions
previously adopted, and as the same may be subsequently modified. The term of
office of the Class I directors shall expire at the Succeeding Meeting, the term
of office of the Class II directors shall expire at the corporation's first
annual meeting of stockholders following the Succeeding Meeting, and the term of
office of the Class III directors shall expire at the corporation's second
annual meeting of stockholders following the Succeeding Meeting. At each annual
meeting of stockholders commencing with the Succeeding Meeting, each director
elected to succeed a director of the class whose term then expires shall be
elected for a term of office to expire at the third
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succeeding annual meeting of stockholders after his or her election, or until
such director's earlier death, resignation or removal.
(5) In the event of any increase or decrease in the authorized number
of directors, (i) each director then serving as such shall nevertheless continue
as a director of the class of which he is a member and (ii) the newly created or
eliminated directorships resulting from such increase or decrease shall be
apportioned by the Board of Directors among the three classes of directors so as
to ensure that no one class has more than one director more than any other
class. To the extent possible, consistent with the foregoing rule, any newly
created directorships shall be added to those classes whose terms of office are
to expire at the latest dates following such allocation, and any newly
eliminated directorships shall be subtracted from those classes whose terms of
office are to expire at the earliest dates following such allocation, unless
otherwise provided from time to time by resolution adopted by the Board of
Directors.
(F) Election of directors need not be by written ballot unless the Bylaws
of the corporation shall so provide.
(G) No action shall be taken by the stockholders of the corporation except
at an annual or special meeting of stockholders called in accordance with the
Bylaws of the corporation, and no action shall be taken by the stockholders by
written consent.
(H) Advance notice of stockholder nominations for the election of directors
of the corporation and of business to be brought by stockholders before any
meeting of stockholders of the corporation shall be given in the manner provided
in the Bylaws of the corporation. Business transacted at special meetings of
stockholders shall be confined to the purpose or purposes stated in the notice
of meeting.
(I) Notwithstanding any other provisions of law, this Certificate of
Incorporation or the Bylaws, each as amended, and notwithstanding the fact that
a lesser percentage may be specified by applicable law, this Certificate of
Incorporation or the Bylaws, the affirmative vote of the holders of at least
sixty-six and two-thirds percent (66-2/3%) of the corporation's outstanding
voting stock then entitled to vote at an election of directors, voting together
as a single class, shall be required to alter, change, amend, repeal or adopt
any provision inconsistent with this Article VI.
ARTICLE VII
To the fullest extent permitted by law, no director of the corporation
shall be personally liable for monetary damages for breach of fiduciary duty as
a director. Without limiting the effect of the preceding sentence, if the
Delaware General Corporation Law is hereafter amended to authorize the further
elimination or limitation of the liability of a director, then the liability of
a director of the corporation shall be eliminated or limited to the fullest
extent permitted by the Delaware General Corporation Law, as so amended.
Neither any amendment nor repeal of this Article VII, nor the adoption of any
provision of this Certificate of Incorporation inconsistent with this Article
VII, shall eliminate, reduce or otherwise adversely affect any limitation on the
personal liability of a director of the corporation existing at the time of such
amendment, repeal or adoption of such an inconsistent provision.
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