EXHIBIT 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
EBAY INC.
[Pursuant to Section 242 and 245 of the General Corporation Law
of the State of Delaware]
eBay Inc., a corporation organized and existing under the laws of the
State of Delaware, does hereby certify as follows:
1. The name of the corporation is eBay Inc. The date of the filing of
its original certification of incorporation with the Secretary of State was
March 13, 1998.
2. This amended and restated certificate of incorporation amends,
restates and integrates the certificate of incorporation of said corporation and
has been duly adopted in accordance with the provisions of Sections 242 and 245
of the General Corporation Law of the State of Delaware by the favorable vote of
the holders of a majority of the outstanding stock entitled to vote thereon.
3. The text of the certificate of incorporation is hereby amended and
restated to read herein as set forth in full.
ARTICLE I
The name of the corporation is eBay Inc.
ARTICLE II
The address of the registered office of the corporation in the State of
Delaware is 9 East Loockerman Street, Suite 1B, City of Dover 19901, County of
Kent. The name of its registered agent at that address is National Registered
Agents, Inc.
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 the authority to issue is One Billion Eight Hundred Million (1,800,000,000)
shares, consisting of two classes: One Billion Seven Hundred Ninety Million
(1,790,000,000) shares of Common Stock, $0.001 par value per share, and Ten
Million (10,000,000)
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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 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 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
The Board of Directors of the corporation shall have the power to adopt,
amend or repeal Bylaws of the corporation.
ARTICLE VI
A. Election of directors need not be by written ballot unless the
Bylaws of the corporation shall so provide.
B. The directors, other than those who may be elected by the holders of
Preferred Stock under specified circumstances, shall be divided into three
classes with the term of office of the first class (Class I) to expire at the
annual meeting of the stockholders held in 1999; the term of office of the
second class (Class II) to expire at the annual meeting of stockholders held in
2000; the term of office of the third class (Class III) to expire at the annual
meeting of stockholders held in 2001; and thereafter for each such term to
expire at each third succeeding annual meeting of stockholders after such
election. All directors shall hold office until the expiration of the term for
which elected, and until their respective successors are elected, except in the
case of the death, resignation, or removal of any director.
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C. Subject to the rights of the holders of any series of Preferred
Stock then outstanding, newly created directorships resulting from any increase
in the authorized number of directors or any vacancies in the Board of Directors
resulting from death, resignation or other cause may be filled (a) by a majority
of the directors, although less than a quorum, or (b) by a sole remaining
director, and directors so chosen shall hold office for a term expiring at the
next annual meeting of stockholders at which the term of office of the class to
which they have been elected expires, and until their respective successors are
elected, except in the case of the death, resignation, or removal of any
director. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
D. 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
stockholders of the corporation and may not be effected by any consent in
writing by such stockholders.
E. Special meetings of stockholders of the corporation may be called
only by either the Board of Directors pursuant to a resolution adopted by a
majority of the total number of authorized directors (whether or not there exist
any vacancies in previously authorized directorships at the time any such
resolution is presented to the Board for adoption), the Chairman of the Board or
the Chief Executive Officer.
ARTICLE VII
A. 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.
B. To the fullest extent permitted by applicable law, this corporation
is also authorized to provide indemnification of (and advancement of expenses
to) agents (and any other persons to which Delaware law permits this corporation
to provide indemnification) through bylaw provisions, agreements with such
agents or other persons, vote of stockholders or disinterested directors or
otherwise, in excess of the indemnification and advancement otherwise permitted
by Section 145 of the Delaware General Corporation Law, subject only to limits
created by applicable Delaware law (statutory or non-statutory), with respect to
actions for breach of duty to the corporation, its stockholders, and others.
C. Neither any amendment nor repeal of this Article VII, nor the
adoption of any provision of this Amended and Restated 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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IN WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation
of eBay Inc. has been signed and attested as of this 24th day of June, 2004.
/s/ Margaret C. Whitman
-----------------------
Margaret C. Whitman,
President and Chief Executive Officer
ATTEST:
/s/ Michael R. Jacobson
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Michael R. Jacobson, Secretary
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