EXHIBIT 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
EXPEDIA, INC.
Expedia, Inc. (hereinafter called the "CORPORATION"), a corporation
organized and existing under and by virtue of the General Corporation Law of the
State of Delaware, does hereby certify:
1. The name of the corporation is: Expedia, Inc. The original
Certificate of Incorporation was filed with the Secretary of State of the State
of Delaware on April 18, 2005.
2. This Amended and Restated Certificate of Incorporation has been
duly adopted by the Board of Directors of the Corporation and by its sole
stockholder in accordance with the applicable provisions of Sections 228, 242
and 245 of the General Corporation Law of the State of Delaware.
3. This Amended and Restated Certificate of Incorporation restates and
integrates and amends the provisions of the Certificate of Incorporation of the
Corporation in its entirety.
The text of the Certificate of Incorporation of the Corporation is
hereby amended and restated to read in its entirety as follows:
ARTICLE I
The name of the Corporation is Expedia, Inc.
ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is 160 Greentree Drive, Suite 101, Dover, Delaware 19904. The name of
the registered agent at such address is National Registered Agents, Inc.
ARTICLE 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.
ARTICLE IV
The Corporation shall have the authority to issue one billion six
hundred million (1,600,000,000) shares of $0.001 par value Common Stock, four
hundred million (400,000,000) shares of $0.001 par value Class B Common Stock,
and one hundred million (100,000,000) shares of $0.001 par value Preferred
Stock.
A statement of the designations of each class and the powers,
preferences and rights, and qualifications, limitations or restrictions thereof
is as follows:
A. COMMON STOCK
(1) The holders of the Common Stock shall be entitled to receive,
share for share with the holders of shares of Class B Common Stock, such
dividends if, as and when declared from time to time by the Board of Directors.
(2) In the event of the voluntary or involuntary liquidation,
dissolution, distribution of assets or winding-up of the Corporation, the
holders of the Common Stock shall be entitled to receive, share for share with
the holders of shares of Class B Common Stock, all the assets of the Corporation
of whatever kind available for distribution to Stockholders, after the rights of
the holders of the Preferred Stock have been satisfied.
(3) Each holder of Common Stock shall be entitled to vote one vote for
each share of Common Stock held as of the applicable date on any matter that is
submitted to a vote or to the consent of the Stockholders of the Corporation.
Except as otherwise provided herein or by the General Corporation Law of the
State of Delaware, the holders of Common Stock and the holders of Class B Common
Stock shall at all times vote on all matters (including the election of
directors) together as one class.
B. CLASS B COMMON STOCK
(1) The holders of the Class B Common Stock shall be entitled to
receive, share for share with the holders of shares of Common Stock, such
dividends if, as and when declared from time to time by the Board of Directors.
(2) In the event of the voluntary or involuntary liquidation,
dissolution, distribution of assets or winding-up of the Corporation, the
holders of the Class B Common Stock shall be entitled to receive, share for
share with the holders of shares of Common Stock, all the assets of the
Corporation of whatever kind available for distribution to Stockholders, after
the rights of the holders of the Preferred Stock have been satisfied.
(3) Each holder of Class B Common Stock shall be entitled to vote ten
votes for each share of Class B Common Stock held as of the applicable date on
any matter that is submitted to a vote or to the consent of the Stockholders of
the Corporation. Except as otherwise provided herein or by the General
Corporation Law of the State of Delaware, the holders of Common Stock and the
holders of Class B Common Stock shall at all times vote on all matters
(including the election of directors) together as one class.
C. OTHER MATTERS AFFECTING SHAREHOLDERS OF COMMON STOCK AND CLASS B
COMMON STOCK
(1) In no event shall any stock dividends or stock splits or
combinations of stock be declared or made on Common Stock or Class B Common
Stock unless the shares of Common Stock and Class B Common Stock at the time
outstanding are treated equally and identically, except that such dividends or
stock splits or combinations shall be made in respect of shares of Common Stock
and Class B Common Stock in the form of shares of Common Stock or Class B Common
Stock, respectively.
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(2) Shares of Class B Common Stock shall be convertible into shares of
the Common Stock of the Corporation at the option of the holder thereof at any
time on a share for share basis. Such conversion ratio shall in all events be
equitably preserved in the event of any recapitalization of the Corporation by
means of a stock dividend on, or a stock split or combination of, outstanding
Common Stock or Class B Common Stock, or in the event of any merger,
consolidation or other reorganization of the Corporation with another
corporation.
(3) Upon the conversion of Class B Common Stock into shares of Common
Stock, said shares of Class B Common Stock shall be retired and shall not be
subject to reissue.
(4) Notwithstanding anything to the contrary in this Certificate of
Incorporation, the holders of Common Stock, acting as a single class, shall be
entitled to elect twenty-five percent (25%) of the total number of directors,
and in the event that twenty-five percent (25%) of the total number of directors
shall result in a fraction of a director, then the holders of the Common Stock,
acting as a single class, shall be entitled to elect the next higher whole
number of directors.
D. PREFERRED STOCK
The Board of Directors shall, by resolution, designate the powers,
preferences, rights and qualifications, limitations and restrictions of the
Preferred Stock. Pursuant to subsection 242(b) of the Delaware General
Corporation Law, the number of authorized shares of Preferred Stock or any class
or series thereof may 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 voting power of the Corporation entitled to vote irrespective of
such subsection.
ARTICLE V
The Board of Directors of the Corporation is expressly authorized to
make, alter or repeal By-Laws of the Corporation, but the Stockholders may make
additional By-Laws and may alter or repeal any By-Law whether adopted by them or
otherwise.
ARTICLE VI
Elections of directors need not be by written ballot except and to the
extent provided in the By-Laws of the Corporation.
ARTICLE VII
The Corporation is to have perpetual existence.
ARTICLE VIII
Each person who is or was or had agreed to become a director or
officer of the Corporation, or each such person who is or was serving or who had
agreed to serve at the request of the Board of Directors or an officer of the
Corporation as an employee or agent of the Corporation or as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise (including the heirs, executors, administrators or
estate of such person), shall be indemnified by the Corporation, in accordance
with the By-Laws of the Corporation, to the full extent permitted from time to
time by the General Corporation Law of the State of Delaware as the
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same exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than said law permitted the Corporation to
provide prior to such amendment) or any other applicable laws as presently or
hereinafter in effect. Without limiting the generality or the effect of the
foregoing, the Corporation may enter into one or more agreements with any person
that provide for indemnification greater or different than that provided in this
Article VIII. Any amendment or repeal of this Article VIII shall not adversely
affect any right or protection existing hereunder immediately prior to such
amendment or repeal.
ARTICLE IX
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the General Corporation Law of the
State of Delaware, or (iv) for any transaction from which the director derived
an improper personal benefit. Any amendment or repeal of this Article IX shall
not adversely affect any right or protection of a director of the Corporation
existing immediately prior to such amendment or repeal. The liability of a
director shall be further eliminated or limited to the full extent permitted by
Delaware law, as it may hereafter be amended.
ARTICLE X
Meetings of stockholders may be held within or without the State of
Delaware, as determined by the Board of Directors. The books of the Corporation
may be kept (subject to any provision contained in the Delaware General
Corporation Law) outside the State of Delaware at such place or places as may be
designated from time to time by the Board of Directors or in the By-Laws of the
Corporation.
ARTICLE XI
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 the Delaware General Corporation Law, and all rights
conferred upon stockholders herein are granted subject to this reservation
except that under no circumstances may such amendment be adopted except as
prescribed by Article IV, above, and provided further that the rights of the
Class B Common Stock may not be amended, altered, changed or repealed without
the approval of the holders of the requisite number of said shares of Class B
Common Stock.
ARTICLE XII
The number of directors of the Corporation shall be such number as
shall be determined from time to time by resolution of the Board of Directors.
The Chairman of the Board of Directors of the Corporation may only be
removed without cause by the affirmative vote of at least 80% of the entire
Board of Directors. The provisions of this paragraph may not be amended,
altered, changed or repealed, or any provision inconsistent therewith adopted,
without the approval of at least (i) 80% of the entire Board of
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Directors and (ii) 80% of the voting power of the Corporation's outstanding
voting securities, voting together as a single class. This paragraph shall be of
no force and effect following such time as the Chairman of the Board of
Directors as of August 9, 2005 ceases to be Chairman of the Board of Directors
pursuant to the terms of this paragraph and the Stockholders Agreement dated as
of August 9, 2005 between Liberty Media Corporation and Barry Diller (the
"Stockholders Agreement"). This paragraph shall only apply with respect to a
removal of the Chairman of the Board of Directors without Cause as such term is
defined in the Stockholders Agreement.
ARTICLE XIII
A. COMPETITION AND CORPORATE OPPORTUNITIES
To the extent provided in the following sentence, the Corporation
renounces any interest or expectancy of the Corporation or any of its Affiliated
Companies in, or in being offered an opportunity to participate in, any Dual
Opportunity about which a Dual Role Person acquires knowledge. A Dual Role
Person shall have no duty to communicate or offer to the Corporation or any of
its Affiliated Companies any Dual Opportunity that such Dual Role Person has
communicated or offered to IAC, shall not be prohibited from communicating or
offering any Dual Opportunity to IAC, and shall not be liable to the Corporation
or its stockholders for breach of any fiduciary duty as a stockholder, director
or officer of the Corporation, as the case may be, resulting from (i) the
failure to communicate or offer to the Corporation or any of its Affiliated
Companies any Dual Opportunity that such Dual Role Person has communicated or
offered to IAC or (ii) the communication or offer to IAC of any Dual
Opportunity, so long as (x) the Dual Opportunity does not become known to the
Dual Role Person in his or her capacity as a director or officer of the
Corporation, and (y) the Dual Opportunity is not presented by the Dual Role
Person to any party other than IAC and the Dual Role Person does not pursue the
Dual Opportunity individually.
B. CERTAIN MATTERS DEEMED NOT CORPORATE OPPORTUNITIES
In addition to and notwithstanding the foregoing provisions of this
Article XIII, the Corporation renounces any interest or expectancy of the
Corporation or any of its Affiliated Companies in, or in being offered an
opportunity to participate in, any business opportunity that the Corporation is
not financially able or contractually permitted or legally able to undertake.
Moreover, nothing in this Article XIII shall amend or modify in any respect any
written contractual agreement between IAC on the one hand and the Corporation or
any of its Affiliated Companies on the other hand.
C. CERTAIN DEFINITIONS
For purposes of this Article XIII:
"Affiliate" means with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under common control with
such Person. For purposes of the foregoing definition, the term "controls," "is
controlled by," or "is under common control with" means the power to direct or
cause the direction of the management and policies of a Person, whether through
the ownership of voting securities, by contract or otherwise.
"Affiliated Company" means (i) with respect to the Corporation, any
Person controlled by the Corporation and (ii) with respect to IAC, any Person
controlled by IAC.
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"Dual Opportunity" means any potential transaction or matter which may
be a corporate opportunity for both IAC/InterActiveCorp or its Affiliated
Companies ("IAC"), on the one hand, and the Corporation or any of its Affiliated
Companies, on the other hand.
"Dual Role Person" means any individual who is an officer or director
of both the Corporation and IAC.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
D. TERMINATION
The provisions of this Article XIII shall have no further force or
effect at such time as (i) the Corporation and IAC are no longer Affiliates and
(ii) none of the directors and/or officers of IAC serve as directors and/or
officers of the Corporation and its Affiliated Companies; provided, however,
that any such termination shall not terminate the effect of such provisions with
respect to any agreement, arrangement or other understanding between the
Corporation or an Affiliated Company thereof on the one hand, and IAC, on the
other hand, that was entered into before such time or any transaction entered
into in the performance of such agreement, arrangement or other understanding,
whether entered into before or after such time.
E. DEEMED NOTICE
Any person or entity purchasing or otherwise acquiring or obtaining
any interest in any capital stock of the Corporation shall be deemed to have
notice and to have consented to the provisions of this Article XIII.
F. SEVERABILITY
The invalidity or unenforceability of any particular provision, or
part of any provision, of this Article XIII shall not affect the other
provisions or parts hereof, and this Article XIII shall be construed in all
respects as if such invalid or unenforceable provisions or parts were omitted.
* * * * * *
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IN WITNESS WHEREOF, Expedia, Inc. has caused this Amended and Restated
Certificate of Incorporation to be duly executed and acknowledged by its duly
authorized officer this 8th day of August, 2005.
EXPEDIA, INC.
By: /S/ Keenan M. Conder
-----------------------------
Name: Keenan M. Conder
Title: Senior Vice President
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