EXHIBIT 3.1
ARTICLES OF AMENDMENT
OF
CELEBRATEEXPRESS.COM, INC.
Pursuant to RCW 23B.10.060 of the Washington Business Corporation Act, the
undersigned corporation hereby submits the following amendment to the
corporation's Amended and Restated Articles of Incorporation, as amended:
1. The name of the corporation is CELEBRATEEXPRESS.COM, INC. (the
Corporation").
2. Effective upon filing of these Articles of Amendment with the
Secretary of State of Washington, Article 1 of the Amended and
Restated Articles of Incorporation of the Corporation is amended to
read in full as follows:
"ARTICLE I
The name of this corporation is CELEBRATE EXPRESS, INC."
3. The date of the adoption of the amendment by the Board of Directors,
pursuant to RCW 23B.10.060 of the Washington Business Corporation
Act is April 22, 2004.
4. Shareholder action on the amendment was not required, and
consequently, the amendment was adopted by the Board of Directors
without shareholder action.
These Articles of Amendment are executed by the Corporation by its Vice
President of Finance.
DATED: June 11, 2004.
CELEBRATEEXPRESS.COM, INC.
By: /s/ Darin White
------------------------------------
Darin White
Vice President-Finance and Secretary
ARTICLES OF AMENDMENT
TO THE
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
CELEBRATEEXPRESS.COM, INC.
Pursuant to the provisions of RCW 23B.10 of the Washington Business
Corporation Act, CelebrateExpress.com, Inc., a Washington corporation, (the
"Corporation") hereby adopts the following amendment to its amended and restated
articles of incorporation:
FIRST: Article III Section 2(c)(i) of the amended and restated articles of
incorporation is amended to read in its entirety as follows:
"(i) DEEMED LIQUIDATION. For purposes of this Section 2, a
liquidation, dissolution or winding up of the Corporation shall be deemed
to occur if the Corporation shall sell, convey, or otherwise dispose of
all or substantially all of its property or business or merge into or
consolidate with any other corporation (other than a wholly-owned
subsidiary corporation) or effect any other transaction or series of
related transactions in which more than fifty percent (50%) of the voting
power of the Corporation is disposed of, provided that this Section
2(c)(i) shall not apply to a merger effected solely for the purpose of
changing the domicile of the Corporation."
SECOND: The amendment does not provide for an exchange, reclassification
or cancellation of any issued shares.
THIRD: The amendment was adopted on November 7, 2000 by the directors and
was adopted on November 8, 2000 by the shareholders of the Corporation in
accordance with the provisions of RCW 23B.10.030 and 23B.10.040.
FOURTH: These Articles of Amendment will become effective upon filing.
[The remainder of this page intentionally left blank.]
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The undersigned hereby certifies that he is an officer of the corporation
and is authorized to execute these Articles of Amendment on behalf of the
Corporation.
EXECUTED this 8th day of November, 2000.
CELEBRATEEXPRESS.COM, INC.
By: /s/ Michael K. Jewell
-----------------------------
Michael K. Jewell
President
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AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
CELEBRATEEXPRESS.COM, INC.
ARTICLE I
The name of this corporation is CELEBRATEEXPRESS.COM, INC. (the
"Corporation").
ARTICLE II
The purpose of the Corporation is to engage in any lawful act or activity
for which a corporation may be organized under the Washington Business
Corporations Act. The Corporation shall have perpetual existence.
ARTICLE III
(A) CLASSES OF STOCK. The Corporation is authorized to issue two classes
of stock to be designated, respectively, "Common Stock" and "Preferred Stock."
The total number of shares which the Corporation is authorized to issue is
Fifteen Million Six Hundred Fifty-Three Thousand Eight Hundred Fifty-One
(15,653,851) shares, each with a par value of $0.001 per share. Ten Million
(10,000,000) shares shall be Common Stock and Five Million Six Hundred
Fifty-Three Thousand Eight Hundred Fifty-One (5,653,851) shares shall be
Preferred Stock.
(B) RIGHTS, PREFERENCES AND RESTRICTIONS OF PREFERRED STOCK. The Preferred
Stock authorized by these Amended and Restated Articles of incorporation may be
issued from time to time in one or more series. The first series of Preferred
Stock shall be designated "Series A Preferred Stock" and shall consist of One
Million Five Hundred Thousand Five (1,500,005) shares. The second series of
Preferred Stock shall be designated "Series B Preferred Stock" and shall consist
of One Million Six Hundred Fifty Thousand (1,650,000) shares. The third series
of Preferred Stock shall be designated "Series C Preferred Stock" and shall
consist of Two Million Five Hundred Three Thousand Eight Hundred Forty-Six
(2,503,846) shares. The rights, preferences, privileges, and restrictions
granted to and imposed on the Series A Preferred Stock, Series B Preferred Stock
and Series C Preferred Stock (collectively, the "Series Preferred") are as set
forth below in this Article III(B).
SECTION 1. DIVIDEND PROVISIONS. The holders of shares of the Series
Preferred shall be entitled to receive dividends, out of any assets legally
available therefore, prior and in preference to any declaration or payment of
any dividend (payable other than in Common Stock or other securities and rights
convertible into or entitling the holder thereof to receive, directly or
indirectly, additional shares of Common Stock of the Corporation) on the Common
Stock of the Corporation, at the rate of $0.096 per share per annum on each
outstanding share of Series A Preferred Stock, $0.6656 per share per annum on
each outstanding share of Series B Preferred Stock, and $0.6656 per share per
annum on each outstanding share of Series C Preferred Stock,
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payable quarterly when, as and if declared by the Board of Directors. Such
dividends shall not be cumulative.
SECTION 2. LIQUIDATION
(a) PREFERENCE.
(i) In the event of any liquidation, dissolution or winding
up of the Corporation, either voluntary or involuntary, the holders of the
Series C Preferred Stock shall be entitled to receive, prior and in preference
to any distribution of any of the assets of the Corporation to the holders of
Common Stock, Series A Preferred Stock and Series B Preferred Stock by reason of
their ownership thereof, an amount per share equal to $8.32 per share for each
share of Series C Preferred Stock then held by them, plus, in each case, all
declared but unpaid dividends (as adjusted for any stock dividends,
combinations, splits, recapitalizations and the like with respect to such
shares). If, upon the occurrence of such event, the assets and funds thus
distributed among the holders of the Series C Preferred Stock shall be
insufficient to permit the payment to such holders of the full aforesaid
preferential amounts, then the entire assets and funds of the Corporation
legally available for distribution shall be distributed ratably among the
holders of the Series C Preferred Stock in proportion to the preferential amount
each such holder is otherwise entitled to receive.
(ii) After the payment of the full liquidation preference of
the Series C Preferred Stock as set forth in Section 2(a)(i) above, the holders
of the Series A Preferred Stock and Series B Preferred Stock shall be entitled
to receive, prior and in preference to any distribution of any of the assets of
the Corporation to the holders of Common Stock by reason of their ownership
thereof, an amount per share equal to (i) $1.20 per share for each share of
Series A Preferred Stock then held by them and (ii) $8.32 per share for each
share of Series B Preferred Stock then held by them, plus, in each case, all
declared but unpaid dividends (as adjusted for any stock dividends,
combinations, splits, recapitalizations and the like with respect to such
shares). If, upon the occurrence of such event, the assets and funds thus
distributed among the holders of the Series A Preferred Stock and Series B
Preferred Stock shall be insufficient to permit the payment to such holders of
the full aforesaid preferential amounts, then such assets and funds of the
Corporation legally available for distribution shall be distributed ratably
among the holders of the Series A Preferred Stock and Series B Preferred Stock
in proportion to the preferential amount each such holder is otherwise entitled
to receive.
(b) REMAINING ASSETS. After the payment of the full liquidation
preferences of the Series Preferred as set forth in Section 2(a) above, and any
other distribution that may be required with respect to any series of Preferred
Stock that may from time to time come into existence, the assets of the
Corporation legally available for distribution, if any, shall be distributed
ratably to the holders of the Common Stock and the Series C Preferred Stock on
an as-if-converted to Common Stock basis, subject to the rights of any series of
Preferred Stock that may from time to time come into existence.
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(c) CERTAIN ACQUISITIONS
(i) DEEMED LIQUIDATION. For purposes of this Section 2, a
liquidation, dissolution or winding up of the Corporation shall be deemed to
occur if the Corporation shall sell, convey, or otherwise dispose of or encumber
all or substantially all of its property or business or merge into or
consolidate with any other corporation (other than a wholly-owned subsidiary
corporation) or effect any other transaction or series of related transactions
in which more than fifty percent (50%) of the voting power of the Corporation is
disposed of, provided that this Section 2(c)(i) shall not apply to a merger
effected solely for the purpose of changing the domicile of the Corporation.
(ii) VALUATION OF CONSIDERATION. In the event of a deemed
liquidation as described in Section 2(c)(i) above, if the consideration received
by the Corporation is other than cash, its value will be deemed its fair market
value. Any securities shall be valued as follows:
(A) Securities not subject to investment letter or other
similar restrictions on free marketability:
(1) If traded on a securities exchange or the
Nasdaq National Market, the value shall be deemed to be the average of the
closing prices of the securities on such exchange over the thirty-day period
ending three (3) days prior to the closing;
(2) If actively traded over-the-counter, the
value shall be deemed to be the average of the closing bid or sale prices
(whichever is applicable) over the thirty-day period ending three (3) days prior
to the closing; and
(3) If there is no active public market, the
value shall be the fair market value thereof, as mutually determined by the
Corporation and the holders of at least a majority of the voting power of all
then outstanding shares of Preferred Stock.
(B) The method of valuation of securities subject to
investment letter or other restrictions on free marketability (other than
restrictions arising solely by virtue of a shareholder's status as an affiliate
or former affiliate) shall be to make an appropriate discount from the market
value determined as above in Section 2(c)(ii)(a) to reflect the approximate fair
market value thereof, as mutually determined by the Corporation arid the holders
of at least a majority of the voting power of all then outstanding shares of
Preferred Stock.
(iii) NOTICE OF TRANSACTION. The Corporation shall give each
holder of record of the Series Preferred written notice of such impending
transaction not later than twenty (20) days prior to the shareholders' meeting
called to approve such transaction, or twenty (20) days prior to the closing of
such transaction, whichever is earlier, and shall also notify, such holders in
writing of the final approval of such transaction. The first of such notices
shall describe the material terms and conditions of the impending transaction
and the provisions of this Section 2, and the Corporation shall thereafter give
such holders prompt notice of any material changes. The transaction shall in no
event take place sooner than ten (10) days after the Corporation has given the
first notice provided for herein or sooner than ten (10) days after the
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Corporation has given notice of any material changes provided for herein;
provided, however, that such periods may be shortened upon the written consent
of the holders of the Series Preferred that are entitled to such notice rights
or similar notice rights and that represent at least a majority of the voting
power of all then outstanding shares of the Series Preferred.
(iv) EFFECT OF NONCOMPLIANCE. In the event the requirements
of this Section 2(c) are not complied with, the Corporation shall forthwith
either cause the closing of the transaction to be postponed until such
requirements have been complied with, or cancel such transaction, in which event
the rights, preferences and privileges of the holders of the Series Preferred
shall revert to and be the same as such rights, preferences and privileges
existing immediately prior to the date of the first notice referred to in
Section 2(c)(iii) hereof.
SECTION 3. REDEMPTION
(a) Subject to the rights of series of Preferred Stock which may
from time to time come into existence, at any time after September 30, 2005, but
within thirty (30) days (the "Redemption Date") after the receipt by this
Corporation of a written request from a holder of shares of the Series
Preferred, that all or some of such holder's shares of the Series Preferred be
redeemed, and concurrently with surrender by such holder of the certificate(s)
representing such shares, this Corporation shall, to the extent it may lawfully
do so, redeem the shares specified in such request by paying in cash therefor a
sum per share equal to the Original Issue Price (as defined below) plus, in each
case, all declared or accumulated by unpaid dividends on such shares (the
"Redemption Price"); provided, however, that in no event, shall the Corporation
be obligated to redeem any shares of such holder (or any shares thereinafter
transferred by such redeeming holder) more than once during any calendar year.
The Original Issue Price shall be One Dollar Twenty Cents ($1.20) per share in
the case of the Series A Preferred and Eight Dollars Thirty-two Cents per share
($8.32) in the case of the Series B Preferred and the Series C Preferred, in
each case subject to appropriate adjustment in the event of any stock dividend,
stock split, stock distribution, or combination with respect to such shares.
(b) Subject to the rights of series of Preferred Stock which may
from time to time come into existence, at least fifteen (15) but no more than
thirty (30) days prior to each Redemption Date, written notice shall be mailed,
first class postage prepaid, to each holder of record of shares of the Series
Preferred to be redeemed, at the address last shown on the records of this
Corporation for such holder, notifying such holder of the redemption to be
effected, specifying the number of shares to be redeemed from such holder of the
Redemption Date, the Redemption Price, the place at which payment may be
obtained and calling upon such holder to surrender to this Corporation, in the
manner and at the place designated, his, her, or its certificate or certificates
representing the shares to be redeemed (the "Redemption Notice"). Except as
provided in Section 3(c), on or after the Redemption Date, each holder of shares
of the Series Preferred to be redeemed shall surrender to this Corporation the
certificate or certificates representing such shares, in the manner and at the
place designated in the Redemption Notice, and thereupon the Redemption Price of
such shares shall be payable to the order of the person whose name appears on
such certificate or certificates as the owner thereof an each surrendered
certificate shall be canceled. At its option the Corporation may elect to pay
the Redemption
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Price in three equal annual installments, which installments shall be paid on
the applicable Redemption Date and the first and second year anniversaries
thereof, respectively. In the event less than all the shares represented by any
such certificate are redeemed, a new certificate shall be issued representing
the unredeemed shares.
(c) From and after the Redemption Date, unless there shall have
been a default in payment of the Redemption Price, all rights of the holder of
shares of the Series Preferred designated for redemption in the Redemption
Notice as holder of shares of the Series Preferred (except the right to receive
the Redemption Price without interest upon surrender of their certificate or
certificates) shall cease with respect to such shares, and such shares shall not
thereafter be transferred on the books of this Corporation or be deemed to be
outstanding for any purpose whatsoever. Subject to the rights of series of
Preferred Stock which may from time to time come into existence, if the funds of
the Corporation legally available for redemption of shares of the Series
Preferred on any Redemption Date are insufficient to redeem the total number of
shares of the Series Preferred to be redeemed on such date, those funds which
are legally available will be used to redeem the maximum possible number of such
shares ratably among the holders of such shares to be redeemed based upon the
total Redemption Price applicable to the shares of the Series Preferred for
which each holder has requested redemption on such Redemption Date. The shares
of the Series Preferred not redeemed shall remain outstanding and entitled to
all the rights and preferences provided herein. Subject to the rights of series
of Preferred Stock which may from time to time come into existence, at any time
thereafter when additional funds of the Corporation are legally available for
the redemption of shares of the Series Preferred, such funds will immediately be
used to redeem the balance of the shares which the Corporation has become
obliged to redeem on any Redemption Date but which it has not redeemed.
SECTION 4. CONVERSION. The holders of shares of the Series Preferred shall
have conversion rights as follows (the "Conversion Rights"):
(a) RIGHT TO CONVERT. Subject to Section 4(c), each share of
Series Preferred shall be convertible, at the option of the holder thereof, at
any time after the date of issuance of such share, at the office of the
Corporation or any transfer agent for such stock, into shares of fully paid and
nonassessable shares of Common Stock on a one-for-one basis (as adjusted for any
stock dividends, combinations, splits, recapitalizations and the like with
respect to such shares) (the "Series Preferred Conversion Ratio").
(b) AUTOMATIC CONVERSION. Each share of Series Preferred shall
automatically be converted into shares of Common Stock on a one-for-one basis
(as adjusted for any stock dividends, combinations, splits, recapitalizations
and the like with respect to such shares), upon the earlier of (i) except as
provided below in Section 4(c), the Corporation's sale of its Common Stock in a
firm commitment underwritten public offering pursuant to a registration
statement under the Securities Act of 1933, as amended (the "Securities Act"),
which results in aggregate cash proceeds to the Corporation of $20,000,000 (net
of underwriting discounts and commissions) at a public offering price of at
least $12.00 per share (as adjusted for any stock dividends, combinations,
splits, recapitalizations and the like with respect to such shares) or
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(ii) the date specified by written consent or agreement of the holders of
two-thirds (66-2/3%) of the then outstanding shares of Series Preferred, voting
together as a single class.
(c) MECHANICS OF CONVERSION. Before any holder of Series Preferred
shall be entitled to convert the same into shares of Common Stock, he, she or it
shall surrender the certificate or certificates therefor, duly endorsed, at the
office of the Corporation or of any transfer agent for the Series Preferred, and
shall give written notice to the Corporation at its principal corporate office,
of the election to convert the same and shall state therein the name or names in
which the certificate or certificates for shares of Common Stock are to be
issued. The Corporation shall, as soon as practicable thereafter, issue and
deliver at such office to such holder of Series Preferred, or to the nominee or
nominees of such holder, a certificate or certificates for the number of shares
of Common Stock to which such holder shall be entitled as aforesaid. Such
conversion shall be deemed to have been made immediately prior to the close of
business on the date of such surrender of the shares of Series Preferred to be
converted, and the person or persons entitled to receive the shares of Common
Stock issuable upon such conversion shall be treated for all purposes as the
record holder or holders of such shares of Common Stock as of such date. If the
conversion is in connection with an underwritten offering of securities
registered pursuant to the Securities Act the conversion may, at the option of
any holder tendering the Series Preferred for conversion, be conditioned upon
the closing with the underwriters of the sale of securities pursuant to such
offering, in which event the person(s) entitled to receive Common Stock upon
conversion of such Preferred Stock shall not be deemed to have converted such
Preferred Stock until immediately prior to the closing of such sale of
securities.
(d) CONVERSION PRICE ADJUSTMENTS OF PREFERRED STOCK FOR SPLITS AND
COMBINATIONS. The Series Preferred Conversion Ratio shall be subject to
adjustment from time to time as follows:
(i) If the Corporation shall, after the date upon which any
shares of the Series Preferred were first issued in each case (the "Purchase
Date"), fix a record date for the effectuation of a split or subdivision of the
outstanding shares of Common Stock or the determination of holders of Common
Stock entitled to receive a dividend or other distribution payable in additional
shares of Common Stock or other securities or rights convertible into, or
entitling the holder thereof to receive directly or indirectly, additional
shares of Common Stock (hereinafter referred to as "Common Stock Equivalents")
without payment of any consideration by such holder for the additional shares of
Common Stock or the Common Stock Equivalents (including the additional shares of
Common Stock issuable upon conversion or exercise thereof), then, as of such
record date (or the date of such dividend distribution, split or subdivision if
no record date is fixed), the Series Preferred Conversion Ratio of each series
of the Series Preferred shall be appropriately decreased so that the number of
shares of Common Stock issuable on conversion of each share of such series shall
be increased in proportion to such increase of the aggregate of shares of Common
Stock outstanding (with such increase of the aggregate of shares of Common Stock
outstanding with respect to such Common Stock Equivalents determined based upon
the maximum number of shares of Common Stock issuable upon exercise of such
Common Stock Equivalents).
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(ii) If the number of shares of Common Stock outstanding at
any time after the Purchase Date is decreased by a combination of the
outstanding shares of Common Stock, then, following the record date of such
combination, the Series Preferred Conversion Ratio for each applicable series of
the Series Preferred shall be appropriately increased so that the number of
shares of Common Stock issuable on conversion of each share of such series shall
be decreased in proportion to such decrease in outstanding shares.
(e) OTHER DISTRIBUTIONS. In the event the Corporation shall
declare a distribution payable in securities of other persons, evidences of
indebtedness issued by the Corporation or other persons, assets (excluding cash
dividends) or options or rights, then, in each such case for the purpose of this
Section 4(e), the holders of shares of the Series Preferred shall be entitled to
a proportionate share of any such distribution as though they were the holders
of the number of shares of Common Stock of the Corporation into which their
shares of Preferred Stock are convertible as of the record date fixed for the
determination of the holders of Common Stock of the Corporation entitled to
receive such distribution.
(f) RECAPITALIZATIONS. If at any Lime or from time to time there
shall be a recapitalization of the Common Stock (other than a subdivision,
combination or merger or sale of assets transaction provided for elsewhere in
this Section 4 or Section 2) provision shall be made so that the holders of
shares of the Series Preferred shall thereafter be entitled to receive upon
conversion of such Preferred Stock the number of shares of stock or other
securities or property of the Corporation or otherwise, to which a holder of
Common Stock deliverable upon conversion would have been entitled on such
recapitalization. In any such case, appropriate adjustment shall be made in the
application of the provisions of this Section 4 with respect to the rights of
the holders of such Preferred Stock after the recapitalization to the end that
the provisions of this Section 4 shall be applicable after that event and be as
nearly equivalent as practicable.
(g) NO IMPAIRMENT. The Corporation will not, by amendment of its
Articles of Incorporation or through any reorganization, recapitalization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed hereunder by the
Corporation, but will at all times in good faith assist in the carrying out of
all the provisions of this Section 4 and in the taking of all such action as may
be necessary or appropriate in order to protect the Conversion Rights of the
holders of Preferred Stock against impairment.
(h) NO FRACTIONAL SHARES. No fractional shares shall be issued
upon the conversion of any share or shares of the Series Preferred, and the
number of shares of Common Stock to be issued shall be rounded to the nearest
whole share. The number of shares issuable upon such conversion shall be
determined on the basis of the total number of shares of the Series Preferred
the holder is at the time converting into Common Stock and the number of shares
of Common Stock issuable upon such aggregate conversion.
(i) NOTICES OF RECORD DATE. In the event of any taking by the
Corporation of a record of the holders of any class of securities for the
purpose of determining the holders
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thereof who are entitled to receive any dividend (other than a cash dividend) or
other distribution, any right to subscribe for, purchase or otherwise acquire
any shares of stock of any class or any other securities or property, or to
receive any other right, the Corporation shall mail to each holder of shares of
the Series Preferred, at least ten (10) days prior to the date specified
therein, a notice specifying the date on which any such record is to be taken
for the purpose of such dividend, distribution or right, and the amount and
character of such dividend, distribution or right.
(j) Reservation of Stock issuable Upon Conversion. The Corporation
shall at all times reserve and keep available out of its authorized but unissued
shares of Common Stock, solely for the purpose of effecting the conversion of
the shares of the Series Preferred, such number of its shares of Common Stock as
shall from time to time be sufficient to effect the conversion of all
outstanding shares of such series of Preferred Stock; and if at any time the
number of authorized but unissued shares of Common Stock shall not be sufficient
to effect the conversion of all then outstanding shares of such series of
Preferred Stock, in addition to such other remedies as shall be available to the
holder of such Preferred Stock, the Corporation will take such corporate action
as may, in the opinion of its counsel, be necessary, to increase its authorized
but unissued shares of Common Stock to such number of shares as shall be
sufficient for such purposes, including, without limitation, engaging in best
efforts to obtain the requisite shareholder approval of any necessary amendment
to these Amended and Restated Articles of Incorporation.
(k) NOTICES. Any notice required by the provisions of this Section
4 to be given to the holders of shares of the Series Preferred shall be deemed
given if deposited in the United States mail, postage prepaid, and addressed to
each holder of record at his address appearing on the books of the Corporation.
SECTION 5. VOTING RIGHTS. The holder of each share of the Series Preferred
shall, have the right to one vote for each share of Common Stock into which such
Preferred Stock could then be converted, and with respect to such vote, such
holder shall have full voting rights and powers equal to the voting rights and
powers of the holders of Common Stock, and shall be entitled, notwithstanding
any provision hereof, to notice of any shareholders' meeting in accordance with
the bylaws of the Corporation, and shall be entitled to vote, together with
holders of Common Stock, with respect to any question upon which holders of
Common Stock have the right to vote. Fractional votes shall not, however, be
permitted and any fractional voting rights available on an as-converted basis
(after aggregating all shares into which shares of the Series Preferred held by
each holder could be converted) shall be rounded to the nearest whole number
(with one-half being rounded upward).
SECTION 6. PROTECTIVE PROVISIONS. So long as at least 500,000 shares of
Preferred Stock are outstanding (as adjusted for stock splits, stock dividends
or recapitalizations), the Corporation shall not without first obtaining the
approval (by vote or written consent, as provided by law) of the holders of at
least a majority of the then outstanding shares of the Series Preferred, voting
together as a single class:
(a) effect a transaction described in Section 2(c)(i) above;
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(b) alter or change the rights, preferences or privileges of the
shares of the Series Preferred so as to affect materially and adversely any
shares of the Series Preferred;
(c) increase or decrease (other than by redemption or conversion)
the total number of authorized shares of the Series A, Series B or Series C
Preferred;
(d) authorize or issue, or obligate itself to issue, any other
equity security, including any other security convertible into or exercisable
for any equity security, having a preference over, or being on a parity, with,
the Series A, Series B or Series C Preferred with respect to voting, dividends,
conversion or upon liquidation;
(e) redeem, purchase or otherwise acquire (or pay into or set
funds aside for a sinking fund for such purpose) any share or shares of
Preferred Stock or Common Stock; provided, however, that this restriction shall
not apply to the repurchase of shares of Common Stock from employees, officers,
directors, consultants or other persons performing services for the Corporation
or any subsidiary pursuant to agreements under which the Corporation has the
option to repurchase such shares at cost upon the occurrence of certain events,
such as the termination of employment, or through the exercise of any right of
first refusal;
(f) change the number of directors except as may be provided
pursuant to that certain Voting Agreement entered into between the Corporation
and the parties set forth on the execution pages thereto, as may be amended from
time to time; or
(g) amend these Amended and Restated Articles of Incorporation or
the Bylaws of the Corporation in a manner which materially and adversely affects
the holders of shares of the Series Preferred.
SECTION 7. STATUS OF CONVERTED STOCK. in the event any shares of the
Series Preferred shall be converted pursuant to Section 4 hereof, the shares so
converted shall be canceled and shall not be issuable by the Corporation. The
Amended and Restated Articles of incorporation for the Corporation shall be
appropriately amended to effect the corresponding reduction in the Corporation's
authorized capital stock.
SECTION 8. RESIDUAL RIGHTS. All rights accruing to the outstanding shares
of the Corporation not expressly provided for to the contrary herein shall be
vested with the Common Stock.
(C) COMMON STOCK
SECTION 1. DIVIDEND RIGHTS. Subject to the prior rights of holders of all
classes of stock at the time outstanding having prior rights as to dividends,
the holders of the Common Stock shall be entitled to receive, when and as
declared by the Board of Directors, out of any assets of the Corporation legally
available therefor, such dividends as may be declared from time to time by the
Board of Directors.
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SECTION 2. LIQUIDATION RIGHTS. Upon the liquidation, dissolution or
winding up of the Corporation, the assets of the Corporation shall be
distributed as provided in Section 2 of Division (b) of this Article III.
SECTION 3. REDEMPTION. The Common Stock is not redeemable.
SECTION 4. VOTING RIGHTS. The holder of each share of Common Stock shall
have the right to one vote, and shall be entitled to notice of any shareholders'
meeting in accordance with the bylaws of the Corporation, and shall be entitled
to vote upon such matters and in such manner as may be provided by law.
ARTICLE IV
The name of the registered agent of this Corporation and the address of
its registered office are as follows:
Corporation Service Company
1010 Union Avenue, SE, Suite B
Olympia, Washington 98501-1539
ARTICLE V
No shareholder of the Corporation shall have, solely by reason of being a
shareholder, any preemptive or preferential right or subscription right to any
stock of the Corporation or to any obligations convertible into stock of the
Corporation, or to any warrant or option for the purchase thereof, except to the
extent provided by resolution or resolutions of the Board of Directors or by
written agreement with the Corporation.
ARTICLE VI
The right to cumulate votes in the election of Directors shall not exist
with respect to shares of stock of this Corporation.
ARTICLE VII
The number of Directors of this Corporation shall be determined in the
manner provided by the Bylaws and may be increased or decreased from time to
time in the manner provided therein, subject to Article III(B)(6)(f) of these
Amended and Restated Articles of Incorporation.
ARTICLE VIII
The Board of Directors shall have the power to adopt, amend or repeal the
Bylaws of this Corporation, subject to the power of the shareholders to amend or
repeal such Bylaws. The shareholders shall also have the power to amend or
repeal the Bylaws of this Corporation and to adopt new Bylaws.
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ARTICLE IX
This Corporation reserves the right to amend or repeal any of the
provisions contained in these Amended and Restated Articles of Incorporation in
any manner now or hereafter permitted by law, and the rights of the shareholders
of this Corporation are granted subject to this reservation.
ARTICLE X
Any action which could be taken at a meeting of the shareholders may be
taken without a meeting or a vote if the action is taken by shareholders holding
of record or otherwise entitled to vote in the aggregate not less than the
minimum number of votes necessary, to authorize or take such action at a meeting
at which all shares entitled to vote on the action were present and voted. The
taking of action by shareholders without a meeting or vote must be evidenced by
one or more written consents describing the action taken, signed by shareholders
holding of record or otherwise entitled to vote in the aggregate not less than
the minimum number of votes necessary, in order to take such action by written
consent.
ARTICLE XI
To the full extent that the Washington Business Corporation Act, as it
exists on the date hereof or may hereafter be amended, permits the limitation or
elimination of the liability of Directors and Officers, a Director or Officer of
this Corporation shall not be liable to this Corporation or its shareholders for
monetary damages for conduct as a Director or Officer. Any amendments to or
repeal of this Article XI shall not adversely affect any right or protection of
a Director or Officer of this corporation for or with respect to any acts or
omissions of such Director or Officer occurring prior to such amendment or
repeal.
ARTICLE XII
This Corporation is authorized to indemnify its Directors and Officers to
the fullest extent permitted by the Washington Business Corporation Act, as it
exists on the date hereof or may hereafter be amended.
Dated: September 7, 2000
CELEBRATEEXPRESS.COM, INC.
By: /s/ Michael K. Jewell
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Its: President
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