EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
USA INTERACTIVE INC.
I, the undersigned, for the purpose of incorporating and
organizing a corporation under the General Corporation Law of the State of
Delaware, do hereby execute this Certificate of Incorporation and do hereby
certify as follows:
Article I
The name of the Corporation is USA Interactive Inc. (the
"Corporation")
Article II
The address of the Corporation's registered office in the
State of Delaware is 1209 Orange Street, City of Wilmington, County of New
Castle 19801. The name of its registered agent at such address is The
Corporation Trust Company.
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
(1,000,000,000) shares of $.01 par value Common Stock (the "Common Stock"), six
hundred million (600,000,000) shares of $.01 par value Class B Common Stock (the
"Class B Common Stock"), and one hundred fifty million (150,000,000) shares of
$.01 par value Preferred Stock (the "Preferred Stock"). The number of authorized
shares of any class or classes of stock 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 stock of the corporation
entitled to vote, irrespective of Del. Code Ann. tit. 8, Section 242(b)(2).
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 fifteen 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.
(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
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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.
D. Preferred Stock
The Board of Directors shall, by resolution, fix the powers,
designations, preferences, rights and qualifications, limitations and
restrictions of any class or series of the Preferred Stock which shall not have
been fixed by the Certificate of Incorporation.
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 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.
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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. A director may be removed, at any time, either with or without cause,
by the affirmative vote of holders of a majority of the voting power of shares
of stock then entitled to vote with respect to the election of such director.
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Article XIII
CONDUCT OF CERTAIN AFFAIRS OF THE CORPORATION
A. In anticipation of the possibility that the Corporation and
USA Networks (as defined below) may engage in the same or similar activities or
lines of business and have an interest in the same areas of corporate
opportunities, and in recognition of the benefits to be derived by the
Corporation through its continued contractual, corporate and business relations
with USA Networks (including possible service of officers and directors of USA
Networks as officers and directors of the Corporation), the provisions of this
Article XIII are set forth to regulate and define the conduct of certain affairs
of the Corporation as they may involve USA Networks and its officers and
directors, and the powers, rights, duties and liabilities of the Corporation and
its officers, directors and stockholders in connection therewith.
B. USA Networks shall have no duty to refrain from engaging in
the same or similar activities or lines of business as the Corporation, and
neither USA Networks nor any officer, director or employee thereof (except as
provided in Section C below) shall be liable to the Corporation or its
stockholders for breach of any fiduciary duty by reason of any such activities
of USA Networks. In the event that USA Networks acquires knowledge of a
potential transaction or matter which may be a corporate opportunity for both
USA Networks and the Corporation, USA Networks shall have no duty to communicate
or offer such corporate opportunity to the Corporation and shall not be liable
to the Corporation or its stockholders for breach of any fiduciary duty as a
stockholder of the Corporation by reason of the fact that USA Networks pursues
or acquires such corporate opportunity for itself, directs such corporate
opportunity to another person, or does not communicate information regarding
such corporate opportunity to the Corporation. Nothing in this Article XIII
shall amend or modify in any respect any written contractual agreement between
USA Networks and the Corporation.
C. In the event that a director or officer of the Corporation
who is also a director, officer or employee of USA Networks acquires knowledge
of a potential transaction or matter which may be a corporate opportunity for
both the Corporation and USA Networks, such director or officer of the
Corporation shall have fully satisfied and fulfilled the fiduciary duty of such
director or officer to the Corporation and its stockholders with respect to such
corporate opportunity, if such director or officer acts in a manner consistent
with the following policy.
(1) A corporate opportunity offered to any person who is an
officer (or an officer and a director) of the Corporation and who is also a
director but not an officer or employee of USA Networks, shall belong to the
Corporation.
(2) A corporate opportunity offered to any person who is a
director but not an officer of the Corporation, and who is also a director,
officer or employee of USA Networks shall belong to the Corporation if such
opportunity is expressly offered to such person in his or her capacity as a
director of the Corporation, and otherwise shall belong to USA Networks; and
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(3) A corporate opportunity offered to any person who is an
officer or employee of USA Networks and an officer of the Corporation shall
belong to the Corporation if such opportunity is expressly offered to such
person in his or her capacity as an officer or employee of the Corporation, and
otherwise shall belong to USA Networks.
D. Any person purchasing or otherwise acquiring any interest
in shares of the capital stock of the Corporation shall be deemed to have notice
of and to have consented to the provisions of this Article XIII.
E. For purposes of this Article XIII only;
(1) A director of the Corporation who is Chairman of the Board
of Directors of the Corporation or of a committee thereof shall not be deemed to
be an officer of the Corporation by reason of holding such position (without
regard to whether such position is deemed an office of the Corporation under the
Bylaws of the Corporation), unless such person is a full-time employee of the
Corporation; and
(2) The term "Corporation" shall mean the Corporation and all
corporations, partnerships, joint ventures, associations and other entities in
which the Corporation beneficially owns (directly or indirectly) 50% or more of
the outstanding voting stock, voting power, partnership interests or similar
voting interests. The term "USA Networks" shall mean USA Networks, Inc., a
Delaware corporation, USANi LLC, a Delaware limited liability company, and all
corporations, partnerships, joint ventures, associations and other entities
(other than the Corporation, as defined in accordance with this paragraph) in
which USA Networks beneficially owns (directly or indirectly) 50% or more of the
outstanding voting stock, voting power, partnership interests or similar voting
interests (other than the Corporation and its subsidiaries).
F. Anything in this Certificate of Incorporation to the
contrary notwithstanding, (1) the foregoing provisions of this Article XIII
shall expire on the date that USA Networks ceases to beneficially own Common
Stock representing at least 20% of the total voting power of all classes of
outstanding capital stock of the Corporation entitled to vote in the election of
directors and no person who is a director or officer of the Corporation is also
a director or officer of USA Networks; and (2) in addition to any vote of the
stockholders required by law, until the time that USA Networks ceases to
beneficially own Common Stock representing at least 20% of the total voting
power of all classes of outstanding capital stock of the Corporation entitled to
vote in the election of directors, the affirmative vote of the holders of more
than 80% of the total voting power of all such classes of outstanding capital
stock of the Corporation shall be required to alter, amend or repeal in a manner
adverse to the interests of USA Networks, or adopt any provision adverse to the
interests of USA Networks and inconsistent with, any provision of this Article
XIII. Neither the alteration, amendment or repeal of this Article XIII nor the
adoption of any provision of this Certificate of Incorporation inconsistent with
this Article XIII shall eliminate or reduce the effect of this Article XIII in
respect of any matter occurring, or any cause of action, suit or claim that, but
for this Article XIII, would accrue or arise, prior to such alteration,
amendment, repeal or adoption.
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The name and address of the incorporator is Adam Shapiro,
Esq., c/o Wachtell, Lipton, Rosen & Katz, 51 West 52nd Street, New York, New
York 10019.
IN WITNESS WHEREOF, I, the undersigned, being the incorporator
hereinbefore named, do hereby further certify that the facts hereinabove stated
are truly set forth and, accordingly, I have hereunto set my hand this 8th day
of February, 1999.
/s/ Adam Shapiro
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Adam Shapiro
Incorporator
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