EXHIBIT 3.2
FORM OF
FIRST AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
CHEAP TICKETS, INC.
I. Name
The name of the Corporation is Cheap Tickets, Inc. (hereinafter sometimes
referred to as the "Corporation").
II. Registered Office and Agent
The address of its registered office of the Corporation in the State of
Delaware is 1209 Orange Street, in the City of Wilmington, 19801, County of New
Castle. The name of its registered agent at such address is The Corporation
Trust Corporation.
III. Purpose
The nature of the business of the Corporation and the objects or purposes
to be transacted, promoted or carried on by it are as follows: To engage in any
lawful act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
IV. Shares
The total number of shares of all classes of capital stock which the
corporation shall have authority to issue is 80,000,000 shares, of which
10,000,000 shares shall be shares of Preferred Stock with a par value of $.01
per share, and 70,000,000 shares shall be shares of Common Stock with a par
value of $0.001 per share.
A. Preferred Stock. Any of the shares of Preferred Stock authorized by
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this Certificate of Incorporation may be issued from time to time in one or more
series. Subject to the limitations and restrictions in this Article IV set
forth and the Certificate of Designation filed with the Secretary of State of
Delaware, the Board of Directors by resolution or resolutions, is authorized to
create or provide for any such series, and to fix the designations, preferences
and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, including, without
limitation, the authority to fix or alter the dividend rights, dividend rates,
conversion rights, exchange rights, voting rights, rights and terms of
redemption (including sinking and purchase fund provisions), the redemption
price or prices, the dissolution preferences and the rights in respect to any
distribution of assets of any wholly unissued series of Preferred Stock and 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 so
created, subsequent to the issue 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 which they had prior to the adoption of the resolution originally
fixing the number of shares of such series.
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There shall be no limitation or restriction on any variation between any of
the different series of Preferred Stock as to the designations, preferences and
relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof; and the several series of
Preferred Stock may, except as hereinafter otherwise expressly provided, vary in
any and all respects as fixed and determined by the Board of Directors,
providing for the issuance of the various series; provided, however, that all
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shares of any one series of Preferred Stock shall have the same designation,
preferences and relative, participating, optional or other special rights and
qualifications, limitations and restrictions.
Except as otherwise required by law, or as otherwise fixed by resolution or
resolutions of the Board of Directors with respect to one or more series of
Preferred Stock, the entire voting power and all voting rights shall be vested
exclusively in the Common Stock, and each stockholder of the Corporation who at
the time possesses voting power for any purpose shall be entitled to one vote
for each share of such stock standing in his name on the books of the
Corporation. The Corporation shall exercise its power to issue Preferred Stock
with the view of avoiding the issuance of fractional shares. No stockholder
shall have the right to split the whole shares into fractions.
B. Common Stock.
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The Corporation shall have the power from time to time to issue two or
more classes of stock with the preferences, voting powers, restrictions and
qualifications thereof fixed in the resolutions authorizing the issue thereof.
The Board of Directors shall have the authority to divide any or all of the
classes into a series and fix and determine the relative rights, preferences,
voting powers, restrictions and qualifications of the shares of any series
established. The corporation shall exercise its power to issue stock with the
view of avoiding the issuance of fractional shares. No stockholder shall have
the right to split whole shares into fractions or to split fractions.
1. Dividends. The holders of shares of Common Stock shall be
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entitled to receive such dividends as from time to time may be declared by the
Board of Directors of the Corporation, subject to the provisions of Subdivision
A of this Article IV with respect to rights of holders of the Preferred Stock
2. Liquidation. Upon any liquidation, dissolution or winding up of
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the Corporation whether voluntary or involuntary, after payment in full of the
amounts to be paid to holders of Preferred Stock pursuant to Subdivision A of
this Article IV, the holders of Common Stock shall share ratably based upon the
number of shares of Common Stock held by them in all of the remaining assets of
the Corporation available for distribution to its stockholders.
3. Voting Rights. Except as otherwise required by law and subject to
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the provisions set forth in this Article IV, the holders of Common Stock issued
and outstanding shall be entitled to one vote for each share thereof held.
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V. Incorporator
The name and mailing address of the sole incorporator is as follows:
Michael J. Hartley
1440 Kapiolani Boulevard, Suite 800
Honolulu, Hawaii 96814
VI. Board of Directors
The Board of Directors is expressly authorized to make, alter,
or repeal the Bylaws of the Corporation.
VII. Election of Directors
Elections of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
VIII. Creditors
Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof, or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this Corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as the case may be,
and also on this Corporation.
IX. Stockholder Action
Stockholders of the Corporation may take action by written consent in
lieu of a meeting so long as the affirmative vote of the holders of at least
two-thirds (2/3) of the Combined Voting power of all of the then outstanding
shares of the Corporation entitled to vote shall be entitled to approve such
action.
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X. Amendments
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation. In addition to any affirmative
vote of the holders of the capital stock required by law or this Certificate of
Incorporation the affirmative vote of the holders of at least two-thirds (2/3)
of the Combined Voting power of all of the then outstanding shares of the
Corporation entitled to vote shall be entitled to alter, amend or repeal
Articles IX and X or any provision thereof.
XI. Director Liability
To the fullest extent permitted by Delaware statutory or decisional
law, as amended or interpreted, no director of this Corporation shall be
personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director. This Article XI does not affect the
availability of equitable remedies for breach of fiduciary duties.
I, the undersigned, being the Secretary of the Company, do hereunto set my
hands this _____ day of January, 1999.
__________________________________
______________________, Secretary
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