EXHIBIT 3.1
FORM OF
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
THEGLOBE.COM, INC.
TODD V. KRIZELMAN and STEPHAN J. PATERNOT hereby certify that:
1. The date of filing of the original Certificate of Incorporation of
this corporation with the Secretary of State of the State of Delaware was
May 26, 1995.
2. The original Certificate of Incorporation was amended and restated
on August 13, 1997, and was duly filed with the Secretary of State of the
State of Delaware.
3. They are the duly elected and acting Co-Chief Executive Officers
and Co-Presidents of theglobe.com, inc., a Delaware corporation.
4. The Amended and Restated Certificate of Incorporation of this
corporation is hereby amended and restated in its entirety (the "Second
Amended and Restated Certificate of Incorporation") to read as follows:
I.
The name of this Corporation is theglobe.com, inc. (the
"Corporation").
II.
The address, including street, number, city, and county, of the
registered office of the Corporation in the State of Delaware is 1013
Centre Road, City of Wilmington 19805, County of New Castle; and the name
of the registered agent of the Corporation in the State of Delaware at such
address is The Prentice-Hall Corporation System, Inc.
III.
The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the Delaware
General Corporation Law.
IV.
A. Authorized Capital Stock. The aggregate number of shares of capital
stock which the Corporation shall have authority to issue is one hundred
three million (103,000,000) shares divided into the following classes:
1. One hundred million (100,000,000) shares of Common Stock each
having a par value of one-tenth of one cent ($0.001) per share (the "Common
Stock"). Each share of Common Stock shall entitle the holder thereof to one
vote in person or by proxy on all matters submitted to a vote of the
stockholders of the Corporation; and
2. Three million (3,000,000) shares of Preferred Stock, each
having a par value of one-tenth of one cent ($0.001) per share (the
"Preferred Stock").
B. Preferred Stock. Preferred Stock may be issued from time to time in
one or more series. The Board of Directors of the Corporation (the "Board")
is hereby authorized, by filing a certificate pursuant to the Delaware
General Corporation Law, to fix or alter from time to time the designation,
powers, preferences and rights of the shares of each such series and the
qualifications, limitations or restrictions thereof, including without
limitation the dividend rights, dividend rates, conversion rights, voting
rights, rights and terms of redemption (including sinking fund provisions),
redemption price or prices, and the liquidation preferences of any wholly
unissued series of Preferred Stock, and to establish from time to time 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 issuance 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 that such shares had prior to the adoption
of the resolution originally fixing the number of shares of such series.
C. Designation of Preferred Stock.
1. One million one hundred sixty-five thousand, nine hundred
ninety (1,165,990) shares of Preferred Stock are hereby designated Series A
Preferred Stock (the "Series A Preferred Stock");
2. One million one hundred fifty-one thousand, four hundred fifty
(1,151,450) shares of Preferred Stock are hereby designated Series B
Preferred Stock (the "Series B Preferred Stock");
3. Five hundred eighty-two thousand five hundred (582,500) shares
of Preferred Stock are hereby designated Series C Preferred Stock (the
"Series C Preferred Stock");
4. Fifty-one (51) shares of Preferred Stock are hereby designated
Series D Preferred Stock (the "Series D Preferred Stock"); and
5. Ten (10) shares of Preferred Stock are hereby designated
Series E Preferred Stock (the "Series E Preferred Stock").
D. Rights, Preferences, Etc. of Series Preferred Stock. The rights,
preferences, privileges, restrictions and other matters relating to the
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock, Series D Preferred Stock and Series E Preferred Stock (collectively,
the "Series Preferred Stock"), are as follows:
1. Dividend Rights. The holders of the then outstanding shares of
Series Preferred Stock shall be entitled to receive, pari passu (with each
share in the same series of Series Preferred Stock being entitled to the
same dividend), dividends when, as and if declared by the Board out of any
funds legally available therefor, prior and in preference to any
declaration or payment of any dividend on the Common Stock 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. Such dividends shall not be cumulative. No dividend
may be declared or paid on any series of Series Preferred Stock unless such
dividend is declared and paid pro rata on all series of outstanding Series
Preferred Stock.
2. Liquidation Preference.
a. In the event of any liquidation, dissolution or winding
up of the Corporation, whether voluntary or involuntary, the holders of
each share of Series Preferred Stock then outstanding shall be entitled,
pari passu, to be paid out of the assets of the Corporation legally
available for distribution to its stockholders, whether from capital,
surplus or earnings, before any payment or setting apart for payment of any
amount shall be made in respect of the Common Stock, until such time as the
holders of the Series Preferred Stock shall have received their respective
preference amounts (the "Preference Amounts") as specified below. Each
Preference Amount shall be adjusted for any combinations, consolidations,
or stock distributions or stock dividends with respect to such shares, plus
all declared but unpaid dividends thereon, if any, to the date fixed for
distribution:
(i) The Series A Preferred Stock Preference Amount is
ten cents ($0.10) per share;
(ii) The Series B Preferred Stock Preference Amount is
fifty-two and one-half cents ($0.525) per share;
(iii) The Series C Preferred Stock Preference Amount is
two dollars ($2.00) per share;
(iv) The Series D Preferred Stock Preference Amount is
three hundred ninety-two thousand one-hundred fifty-six dollars and
eighty-six cents ($392,156.86) per share; and
(v) The Series E Preferred Stock Preference Amount is
five hundred eighty-eight thousand two hundred thirty-five dollars and
thirty cents ($588,235.30) per share.
If upon liquidation, dissolution or winding up of the
Corporation the assets of the Corporation available for distribution to its
stockholders shall be insufficient to pay the holders their full respective
Preference Amounts, then such holders shall share ratably in any
distribution of assets in proportion to the full amount to which they would
otherwise be respectively entitled.
b. After payment has been made to the holders of Series
Preferred Stock of their full Preference Amounts, the remaining assets of
the Corporation shall be distributed ratably among the holders of the
Common Stock.
3. Conversion. The holders of the Series Preferred Stock shall
have conversion rights as follows:
a. Optional Conversion. Subject to and in compliance with
the provisions of this Section 3, any shares of Series Preferred Stock may,
at the option of the holder thereof, be converted at any time into
fully-paid and nonassessable shares of Common Stock as set forth below:
(i) Series A Preferred Stock, Series B Preferred Stock, and
Series C Preferred Stock shall each be convertible into
Common Stock in the amount determined by multiplying
the applicable conversion rate then in effect
(determined as provided in Section 3.b(i) below) by the
number of shares of Series Preferred Stock being
converted.
(ii) The number of shares of Common Stock to which a holder
of Series D Preferred Stock or Series E Preferred Stock
shall be entitled upon conversion shall be an amount as
determined in Section 3.b(ii) below.
b. Conversion Rate.
(i) The conversion rate in effect at any time for
conversion of the Series A Preferred Stock shall be the quotient obtained
by dividing the Series A Original Issue Price (as defined herein) by the
Series A Conversion Price (as defined herein), calculated as provided in
Section 3.c. The conversion rate in effect at any time for conversion of
the Series B Preferred Stock shall be the quotient obtained by dividing the
Series B Original Issue Price (as defined herein) by the Series B
Conversion Price (as defined herein), calculated as provided in Section
3.c. The conversion rate in effect at any time for conversion of the Series
C Preferred Stock shall be the quotient obtained by dividing the Series C
Original Issue Price (as defined herein) by the Series C Conversion Price
(as defined herein), calculated as provided in Section 3.c. The "Series A
Original Issue Price" shall be ten cents ($0.10) per share. The "Series B
Original Issue Price" shall be fifty-two and one-half cents ($0.525) per
share. The "Series C Original Issue Price" shall be two dollars ($2.00) per
share.
(ii) Each share of Series D Preferred Stock shall be
convertible into an amount of Common Stock representing 1.0% of the Fully
Diluted Capital Stock (as defined below), and each share of Series E
Preferred Stock shall be convertible into an amount of Common Stock
representing 1.0% of the Fully Diluted Capital Stock, as calculated on the
date of conversion.
As used herein, "Fully Diluted Capital Stock" means the fully diluted
capital stock of the Corporation, and assumes, without duplication, that
(A) all outstanding shares of capital stock are outstanding, (B) all
warrants (excluding any warrant to purchase Series E Preferred Stock or
Common Stock issued or issuable upon conversion of Series E Preferred
Stock), rights or options to acquire capital stock of the Corporation, or
any other securities which may be exchanged for or convertible into capital
stock of the Corporation, which have been issued or granted, including any
options authorized under any stock option plans (except as set forth
below), shall have been exercised, exchanged or converted whether or not
such warrants, rights or options or other securities shall have vested or
are then exercisable, exchangeable or convertible and (C) if any stock
appreciation rights or other phantom stock or similar rights have been
authorized, granted or issued, the capital stock equivalents underlying
such rights are outstanding; provided, however, that "Fully Diluted Capital
Stock" shall not include (i) any equity securities, equity security
equivalents (including stock appreciation rights) or securities convertible
or exchangeable into any of the foregoing, or into which any of the
foregoing are converted, issued or granted by the Corporation after August
13, 1997, without the approval of six (6) of the nine (9) members of the
Board as required by Article V, or any equity securities issued upon
conversion or exchange of any of the foregoing; (ii) shares of Common Stock
issued in a Qualified IPO; or (iii) options for up to one million
(1,000,000) shares of Common Stock issued pursuant to the Company's 1998
Stock Option Plan. The Fully Diluted Capital Stock shall be calculated
based upon the following formula: Fully Diluted Capital Stock = X/(1-Y),
where "X" equals the Fully Diluted Capital Stock other than with respect to
the Series D Preferred Stock and the Series E Preferred Stock; and "Y"
equals 1/100th of the aggregate number of outstanding shares of Series D
Preferred Stock and Series E Preferred Stock. The antidilution provisions
contained in this Section 3.b shall terminate upon the closing of a
Qualified IPO after giving effect to the conversion as set forth in
paragraph d below.
c. Conversion Price. The conversion price for the Series A
Preferred Stock shall be ten cents ($0.10) per share (the "Series A
Conversion Price"), as adjusted from time to time in accordance with this
Section 3. The conversion price for the Series B Preferred Stock shall be
fifty-two and one-half cents ($0.525) per share (the "Series B Conversion
Price"), as adjusted from time to time in accordance with this Section 3.
The conversion price for the Series C Preferred Stock shall be two dollars
($2.00) per share (the "Series C Conversion Price" and collectively with
the Series A Conversion Price and the Series B Conversion Price, the
"Conversion Prices"), as adjusted from time to time in accordance with this
Section 3.
d. Automatic Conversion. Each share of Series Preferred
Stock shall automatically be converted into shares of Common Stock at the
then effective applicable conversion rate in the event of the closing of a
firm commitment underwritten public offering pursuant to an effective
registration statement under the Securities Act of 1933, as amended (the
"Act"), covering the offer and sale of Common Stock (whether for the
account of the Corporation or for the account of one or more stockholders
of the Corporation) to the public at an aggregate offering price of not
less than fifteen million dollars ($15,000,000) (a "Qualified IPO"), in
which event the conversion of each share of Preferred Stock shall be deemed
to have occurred automatically at the closing of such Qualified IPO. In
addition, each share of the Series A Preferred Stock shall automatically
convert upon (i) the vote or written consent of the holders of a majority
of the outstanding Series A Preferred Stock, or (ii) the conversion into
shares of Common Stock of all outstanding shares of the Series B Preferred
Stock and Series C Preferred Stock. Each share of Series B Preferred Stock
shall automatically convert upon the vote or written consent of the holders
of a majority of the outstanding Series B Preferred Stock. Each share of
Series C Preferred Stock shall automatically convert upon the vote or
written consent of the holders of a majority of the outstanding Series C
Preferred Stock. Each share of Series D Preferred Stock shall automatically
convert upon the vote or written consent of the holders of a majority of
the outstanding Series D Preferred Stock. Each share of Series E Preferred
Stock shall automatically convert upon the vote or written consent of the
holders of a majority of the outstanding Series E Preferred Stock.
e. Mechanics of Conversion. No fractional shares of Common
Stock shall be issued upon conversion of Series Preferred Stock. In lieu of
any fractional shares to which the holder of Series Preferred Stock would
otherwise be entitled, the Corporation shall pay cash equal to such
fraction multiplied by the then-effective applicable Conversion Price.
Before any holder of Series Preferred Stock shall be entitled to convert
the same into full shares of Common Stock, it shall surrender the
certificate or certificates therefor, duly endorsed, at the offices of the
Corporation at such offices that it elects to convert the same (except that
no such written notice of election to convert shall be necessary in the
event of an automatic conversion pursuant to Section 3.d). The Corporation
shall, as soon as practicable thereafter, issue and deliver at such offices
to such holder a certificate or certificates, registered in such names as
specified by the holder, for the number of shares of Common Stock to which
it shall be entitled as aforesaid and a check payable to the holder in the
amount of any cash amounts payable as the result of a conversion into
fractional shares of Common Stock, and any accrued and unpaid dividends on
the converted shares. 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 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 on such date (except that, in the event of an automatic conversion
pursuant to Section 3.d, such conversion shall be deemed to have been made
immediately prior to the closing of a Qualified IPO, or the effective date
of the consent). If the conversion is in connection with an underwritten
offering of securities registered pursuant to the Act, the conversion may,
at the option of any holder tendering shares of Preferred Stock for
conversion, be conditioned upon the closing with the underwriter of the
sale of securities pursuant to such offering, in which event the person(s)
entitled to receive the Common Stock issuable upon such conversion of the
tendered shares shall not be deemed to have converted such shares until
immediately prior to the closing of such sale of securities. Any
conversions of shares of Series D Preferred Stock or Series E Preferred
Stock which occur at substantially the same time shall be deemed to have
occurred simultaneously.
f. Adjustments for Subdivision, Dividends, Combinations or
Consolidations of Common Stock.
(i) If the Corporation shall at any time or from time
to time after the date that the first share of Series D Preferred Stock is
issued (the "Original Issue Date") effect a combination or consolidation of
the outstanding Common Stock, by reclassification or otherwise, into a
lesser number of shares of Common Stock, the Conversion Prices in effect
immediately prior to such combination or consolidation shall, concurrently
with the effectiveness of such combination or consolidation, be
proportionately increased.
(ii) In the event the Corporation shall declare or pay
any dividend on the Common Stock payable in Common Stock or in the event
the outstanding shares of Common Stock shall be subdivided, by
reclassification or otherwise than by payment of a dividend in Common
Stock, into a greater number of shares of Common Stock, the Conversion
Prices in effect immediately prior to such dividend or subdivision shall be
proportionately decreased:
a. in the case of any such dividend, immediately
after the close of business on the record date for the determination of
holders of any class of securities entitled to receive such dividend, or
b. in the case of any such subdivision, at the
close of business on the date immediately prior to the date upon which such
corporate action becomes effective.
If such record date shall have been fixed and such
dividend shall not have been fully paid on the date fixed therefor, the
adjustment previously made in the applicable Conversion Price that became
effective on such record date shall be canceled as of the close of business
on such record date, and thereafter the applicable Conversion Price shall
be adjusted as of the time of actual payment of such dividend. The
adjustment provisions set forth in this subsection shall not apply to the
Series D Preferred Stock or the Series E Preferred Stock to the extent that
an adjustment in the number and kind of securities issuable upon conversion
of the Series D Preferred Stock or the Series E Preferred Stock is effected
through a change in the Fully Diluted Capital Stock pursuant to subsection
3.b above.
g. Adjustments for Other Dividends and Distributions. If the
Corporation at any time or from time to time after the Original Issue Date
makes, or fixes a record date for the termination of holders of Common
Stock entitled to receive, a dividend or other distribution payable in
securities of the Corporation other than shares of Common Stock, in each
such event provision shall be made so that the holders of the Series
Preferred Stock shall receive upon conversion thereof, in addition to the
number of shares of Common Stock receivable thereupon, the amount of other
securities of the Corporation that they would have received had their
Series Preferred Stock been converted into Common Stock on the date of such
event and had they thereafter, during the period from the date of such
event to and including the conversion date, retained such securities
receivable by them as aforesaid during such period, subject to all other
adjustments called for during such period under this Section 3 with respect
to the rights of the holders of the Series Preferred Stock or with respect
to such other securities by their terms. The adjustment provisions set
forth in this subsection shall not apply to the Series D Preferred Stock or
the Series E Preferred Stock to the extent that an adjustment in the number
and kind of securities issuable upon conversion of the Series D Preferred
Stock or the Series E Preferred Stock is effected through a change in the
Fully Diluted Capital Stock pursuant to subsection 3.b above.
h. Adjustment for Reclassification, Exchange and
Substitution. If at any time or from time to time after the Original Issue
Date, the Common Stock issuable upon the conversion of the Series Preferred
Stock is changed into the same or a different number of shares of any class
or classes of stock, whether by recapitalization, reclassification or
otherwise (other than a subdivision or combination of shares or stock
dividend or a reorganization, merger, consolidation or sale of assets
provided for elsewhere in this Section 3), in any such event each holder of
Series Preferred Stock shall have the right thereafter to convert such
stock into the kind and amount of stock and other securities and property
receivable upon such recapitalization, reclassification or other change by
holders of the maximum number of shares of Common Stock into which such
shares of Series Preferred Stock could have been converted immediately
prior to such recapitalization, reclassification or change, all subject to
further adjustment as provided herein or with respect to such other
securities or property by the terms thereof. The adjustment provisions set
forth in this subsection shall not apply to the Series D Preferred Stock or
the Series E Preferred Stock to the extent that an adjustment in the number
and kind of securities issuable upon conversion of the Series D Preferred
Stock or the Series E Preferred Stock is effected through a change in the
Fully Diluted Capital Stock pursuant to subsection 3.b above.
i. Sale of Shares Below Conversion Price.
(i) If at any time or from time to time the Corporation
issues or sells, or is deemed by the express provisions of this subsection
(i) to have issued or sold, Additional Shares of Common Stock (as defined
herein), other than as provided in Sections 3.f through 3.h above, for an
Effective Price (as defined herein) less than the then effective Series B
Conversion Price or Series C Conversion Price, then and in each such case
the then existing Series B Conversion Price or Series C Conversion Price,
as applicable, shall be reduced, as of the opening of business on the date
of such issue or sale, to a price determined by multiplying the Series B
Conversion Price or Series C Conversion Price, as applicable, by a fraction
(i) the numerator of which shall be (A) the number of shares of Common
Stock deemed Outstanding (as defined herein) immediately prior to such
issue or sale, plus (B) the number of shares of Common Stock that the
Aggregate Consideration Received (as defined herein) by the Corporation for
the total number of Additional Shares of Common Stock so issued could
purchase at such Series B Conversion Price or Series C Conversion Price, as
applicable, and (ii) the denominator of which shall be the number of shares
of Common Stock deemed Outstanding immediately prior to such issue or sale
plus the total number of Additional Shares of Common Stock so issued. For
the purposes of this paragraph, the number of shares of Common Stock deemed
to be outstanding as of a given date shall be the sum of (A) the number of
shares of Common Stock actually "Outstanding," (B) the number of shares of
Common Stock into which the then outstanding shares of Series Preferred
Stock could be converted if fully converted on the day immediately
preceding the given date, and (C) the number of shares of Common Stock
which could be obtained through the exercise or conversion of all other
rights, options and convertible securities on the day immediately preceding
the given date.
(ii) For the purpose of making any adjustment required
under this Section 3.i, the consideration received by the Corporation from
any issue or sale of securities shall (A) to the extent it consists of
cash, be computed at the net amount of cash received by the Corporation
after deduction of any underwriting or similar commissions, compensation or
concessions paid or allowed by the Corporation in connection with such
issue or sale but without deduction of any expenses payable by the
Corporation, (B) to the extent it consists of property other than cash, be
computed at the fair value of that property as determined in good faith by
the Board, and (C) if Additional Shares of Common Stock, Convertible
Securities (as defined herein) or rights or options to purchase either
Additional Shares of Common Stock or Convertible Securities are issued or
sold together with other stock or securities or other assets of the
Corporation for a consideration that covers both, be computed as the
portion of the consideration so received that may be reasonably determined
in good faith by the Board to be allocable to such Additional Shares of
Common Stock, Convertible Securities or rights or options.
(iii) For the purpose of the adjustment required under
this Section 3.i, if the Corporation issues or sells any rights or options
for the purchase of, stock or other securities convertible into, Additional
Shares of Common Stock (such convertible stock or securities being herein
referred to as "Convertible Securities") and if the Effective Price of such
Additional Shares of Common Stock is less than the Series B Conversion
Price (in the case of the Series B Preferred Stock) or the Series C
Conversion Price (in the case of the Series C Preferred Stock), in each
case the Corporation shall be deemed to have issued at the time of the
issuance of such rights or options or Convertible Securities the maximum
number of Additional Shares of Common Stock issuable upon exercise or
conversion thereof and to have received as consideration for the issuance
of such shares an amount equal to the total amount of the consideration, if
any, received by the Corporation for the issuance of such rights or options
or Convertible Securities, plus, in the case of such rights or options, the
minimum amounts of consideration, if any, payable to the Corporation upon
the exercise of such rights or options, plus, in the case of Convertible
Securities, the minimum amounts of consideration, if any, payable to the
Corporation (other than by cancellation of liabilities or obligations
evidenced by such Convertible Securities) upon the conversion thereof;
provided that, if in the case of Convertible Securities the minimum amounts
of such consideration cannot be ascertained but are a function of
antidilution or similar protective clauses, the Corporation shall be deemed
to have received the minimum amounts of consideration without reference to
such clauses; provided further, that, if the minimum amount of
consideration payable to the Corporation upon the exercise or conversion of
rights, options or Convertible Securities is reduced over time or on the
occurrence or non-occurrence of specified events other than by reason of
antidilution adjustments, the Effective Price shall be recalculated using
the figure to which such minimum amount of consideration is reduced;
provided further, that, if the minimum amount of consideration payable to
the Corporation upon the exercise or conversion of such rights, options or
Convertible Securities is subsequently increased, the Effective Price shall
be again recalculated using the increased minimum amount of consideration
payable to the Corporation upon the exercise or conversion of such rights,
options or Convertible Securities. No further adjustment of the Series B
Conversion Price or the Series C Conversion Price, as adjusted upon the
issuance of such rights, options or Convertible Securities, shall be made
as a result of the actual issuance of Additional Shares of Common Stock on
the exercise of any such rights or options or the conversion of any such
Convertible Securities. If any such rights or options or the conversion
privilege represented by any such Convertible Securities shall expire
without having been exercised, the Series B Conversion Price and Series C
Conversion Price as adjusted upon the issuance of such rights, options or
Convertible Securities shall be readjusted to the Series B Conversion Price
and Series C Conversion Price which would have been in effect had an
adjustment been made on the basis that the only Additional Shares of Common
Stock so issued were the Additional Shares of Common Stock, if any,
actually issued or sold on the exercise of such rights or options or rights
of conversion of such Convertible Securities, and such Additional Shares of
Common Stock, if any, were issued or sold for the consideration actually
received by the Corporation upon such exercise, plus the consideration, if
any, actually received by the Corporation for the granting of all such
rights or options, whether or not exercised, plus the consideration
received for issuing or selling the Convertible Securities actually
converted, plus the consideration, if any, actually received by the
Corporation (other than by cancellation of liabilities or obligations
evidenced by such Convertible Securities) on the conversion of such
Convertible Securities, provided that such readjustment shall not apply to
prior conversion of Series B Preferred or Series C Preferred.
(iv) "Additional Shares of Common Stock" shall mean all
shares of Common Stock issued by the Corporation or deemed to be issued
pursuant to this Section 3.i, whether or not subsequently reacquired or
retired by the Corporation, other than (A) shares of Common Stock issued
upon conversion of the Series Preferred Stock; (B) shares of Common Stock
and/or options, warrants or other Common Stock purchase rights, and the
Common Stock issued pursuant to such options warrants or other rights (as
adjusted for any stock dividends, combinations, splits, recapitalizations
and the like) issued or to be issued to employees, officers or directors
of, or consultants or advisors to, the Corporation or any subsidiary
pursuant to stock purchase or stock option plans or other arrangements that
are approved by the Board; (C) shares of Common Stock issued pursuant to
the exercise of options, warrants or convertible securities outstanding as
of the Original Issue Date and (D) shares of Common Stock issued in a
Qualified IPO. The "Effective Price" of Additional Shares of Common Stock
shall mean the quotient determined by dividing the total number of
Additional Shares of Common Stock issued or sold, or deemed to have been
issued or sold by the Corporation under this Section 3.i, into the
aggregate consideration received, or deemed to have been received by the
Corporation for such issue under this Section 3.i, for such Additional
Shares of Common Stock.
j. Certificate as to Adjustments. Upon the occurrence of
each adjustment or readjustment of the Conversion Prices pursuant to this
Section 3, the Corporation at its expense shall promptly compute such
adjustment or readjustment in accordance with the terms hereof and furnish
to each holder of Series Preferred Stock, a certificate setting forth such
adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based. The Corporation shall, upon the
written request at any time of any holder of Series Preferred Stock,
furnish or cause to be furnished to such holder a like certificate setting
forth (i) such adjustments and readjustments, (ii) the Conversion Prices at
the time in effect, and (iii) the number of shares of Common Stock and the
amount, if any, of other property which at the time would be received upon
the conversion of Series Preferred Stock.
k. Notices of Record Date. In the event that the Corporation
shall propose at any time:
(i) to declare any dividend or distribution upon its
Common Stock, whether in cash, property, stock or other securities, whether
or not a regular cash dividend and whether or not out of earnings or earned
surplus;
(ii) to offer for subscription pro rata to the holders
of any class or series of its stock any additional shares of stock of any
class or series or other rights;
(iii) to effect any reclassification or
recapitalization of its Common Stock outstanding involving a change in the
Common Stock; or
(iv) to merge or consolidate with or into any other
Corporation, or sell, lease or convey all or substantially all its property
or business, or to liquidate, dissolve or wind up;
then, in connection with each such event, the Corporation shall send to the
holders of the Preferred Stock;
a. at least ten days' prior written notice of the
date on which a record shall be taken for such
dividend, distribution or subscription rights (and
specifying the date on which the holders of Common
Stock shall be entitled thereto) or for determining
rights to vote in respect of the matter referred to in
(iii) and (iv) above; and
b. in the case of the matters referred to in (iii)
and (iv) above, at least 10 days' prior written notice
of the date when the same shall take place (and
specifying, if practicable, or estimating the date on
which the holders of Common Stock shall be entitled to
exchange their Common Stock for securities or other
property deliverable upon the occurrence of such
event).
Each such written notice shall be given by first-class mail, postage
prepaid, addressed to the holders of Series Preferred Stock at the address
for each such holder as shown on the books of the Corporation.
l. Common Stock Reserved. 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 Series Preferred Stock, such number of shares of Common Stock as
shall from time to time be sufficient to effect the conversion of all
outstanding shares of the Series 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 the
Series Preferred Stock, the Corporation shall 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 purpose.
m. Voting Rights.
(i) Except as otherwise provided herein or as required
by law, each share of Series Preferred Stock issued and outstanding shall
have the number of votes equal to the number of shares of Common Stock into
which such shares of Series Preferred Stock, as applicable, are convertible
as adjusted from time to time pursuant to Section 3 hereof. Except as
otherwise provided herein or as required by law, the Common Stock and the
Series Preferred Stock shall vote together as a single class. Fractional
votes by the holders of Series Preferred Stock shall not, however, be
permitted and any fractional voting rights resulting from the above formula
(after aggregating all shares into which shares of Series Preferred Stock
held by each holder could be converted) shall be rounded to the nearest
whole number.
(ii) The holders of Series D Preferred Stock, voting
together as a class, shall be entitled to elect five (5) directors of the
Corporation and to exercise any right of removal or replacement of such
directors; the holders of shares of Series A Preferred Stock, Series B
Preferred Stock and Series C Preferred Stock, voting together as a class,
shall be entitled to elect two (2) directors of the Corporation and to
exercise any right of removal or replacement of such directors; the holders
of shares of Series Preferred Stock and shares of Common Stock, voting
together as a class, shall be entitled to elect two (2) directors of the
Corporation and to exercise any right of removal or replacement of such
directors. All vacancies on the Board shall be filled only in accordance
with this section. This Section 3.m may be amended only by the affirmative
vote of eight (8) of the nine (9) members of the Board. This Section
3.m(ii) shall terminate upon the consummation of a Qualified IPO.
V.
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:
1. The management of the business and the conduct of the affairs
of the Corporation shall be vested in its Board. The number of directors
which shall constitute the whole Board shall be nine (9). The affirmative
vote of at least six (6) of the nine (9) directors shall be necessary for
effecting or validating the following actions, and such actions shall not
constitute the valid and binding actions of the Board or the Corporation
unless so approved:
a. Any action of the Board, or failure to act, that would
cause, or could reasonably be expected to result in, a major shift (a
"Major Shift") in the Corporation's "basic business plan." The
Corporation's "basic business plan" is to be a virtual community in which
the paramount priority is getting people to interact and/or communicate
with each other. This may include selling subscriptions, advertising and
merchandising in furtherance of this paramount priority. It is also
expected that there will be other priorities in support of the virtual
community. Any two (2) directors acting together may reasonably determine
that a proposed Board action, or failure to act, would constitute a Major
Shift and, therefore, that such action, or failure to act, shall be subject
to the super-majority Board approval requirements set forth in this Section
1; provided, however, that a "Major Shift" shall not include the issuance
by the Corporation of equity or debt securities (unless such action is
intended, or could reasonably be expected, to result in a Major Shift) or
the removal or termination of a director or officer of the Corporation.
b. Any transaction between the Corporation and any officer
or director of the Corporation or holder of greater than 10% of the Fully
Diluted Capital Stock or any affiliate or immediate family member of the
foregoing.
c. Any issuance, reservation or authorization of capital
stock or other securities by the Corporation that would, if approved in
accordance with the provision hereof, result in a change in the number of
shares of Fully Diluted Capital Stock (excluding the issuance of Series E
Preferred Stock upon the exercise of outstanding warrants and the pro rata
issuance of stock dividends that do not dilute any stockholder's equity
interest in the Corporation).
This Section 1 may be amended only by the affirmative vote of eight
(8) of the nine (9) members of the Board. The super-majority voting
provisions contained in this Section 1 shall terminate upon the closing of
a Qualified IPO.
2. The Board may from time to time make, amend, supplement or
repeal the Bylaws in the manner set forth therein.
3. The directors of the Corporation need not be elected by
written ballot unless the Bylaws of the Corporation so provide.
4. Advance notice of stockholder nominations for the election of
directors and of business to be brought by stockholders before any meeting
of the stockholders of the Corporation shall be given in the manner
provided in the Bylaws of the Corporation.
VI.
A director of the Corporation shall, to the full extent not prohibited
by the Delaware General Corporation Law now existing or as hereafter
amended, not be liable to the Corporation or its stockholders for monetary
damages for breach of his fiduciary duty as a director.
VII.
The Corporation is to have perpetual existence.
VIII.
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Second Amended and Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and
all rights conferred upon the stockholders herein are granted subject to
this right.
* * * * *
1. This Second Amended and Restated Certificate of Incorporation
has been duly approved by the Board.
2. This Second Amended and Restated Certificate of Incorporation
has been duly adopted in accordance with the provisions of Sections 228,
242, and 245 of the General Corporation Law of the State of Delaware by the
Board and the stockholders of the Corporation. The total number of
outstanding shares entitled to vote or act by written consent was two
million two hundred seventy-six thousand five hundred ninety-seven
(2,276,597) shares of common stock, par value $0.001 per share, of the
Corporation, one million one hundred sixty-five thousand nine hundred
ninety (1,165,990) shares of Series A Preferred Stock, one million one
hundred fifty-one thousand four hundred fifty (1,151,450) shares of Series
B Preferred Stock, five hundred eighty-two thousand five hundred (582,500)
shares of Series C Preferred Stock and fifty-one (51) shares of Series D
Preferred Stock. [A majority of the outstanding shares of common stock, par
value $0.001 per share, of the Corporation, a majority of the outstanding
shares of Series A Preferred Stock, a majority of the outstanding shares of
Series B Preferred Stock, a majority of the outstanding shares of Series C
Preferred Stock and a majority of the outstanding shares of Series D
Preferred Stock approved this Second Amended and Restated Certificate of
Incorporation by written consent in accordance with Section 228 of the
General Corporation Law of the State of Delaware and written notice of such
was given by the Corporation in accordance with said Section 228.]
IN WITNESS WHEREOF, theglobe.com, inc. has caused this Second Amended
and Restated Certificate of Incorporation to be signed by its Co-Chief
Executive Officers and Co-Presidents in New York, New York this __ day of
July, 1998.
THEGLOBE.COM, INC.
By
---------------------------------
Todd V. Krizelman,
Co-Chief Executive Officer
and Co-President
ATTEST:
By
-------------------------------
Stephan J. Paternot,
Co-Chief Executive Officer,
Co-President and Secretary