AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
CELEBRATEEXPRESS.COM, INC.
I.
NAME
The name of this Corporation (hereinafter called the "Corporation") is
CELEBRATEEXPRESS.COM, INC.
II.
AUTHORIZED SHARES
2.1 This Corporation is authorized to issue 65,000,000 shares of stock in
the aggregate. Such shares shall be divided into two classes as follows:
(a) 60,000,000 shares of common stock ("Common Stock").
(b) 5,000,000 shares of preferred stock ("Preferred Stock"). Holders
of Common Stock are entitled to one vote per share on any matter on which
holders of Common Stock are entitled to vote. On dissolution of the
Corporation, after any preferential amount with respect to the Preferred Stock
has been paid or set aside, the holders of Common Stock and the holders of any
series of Preferred Stock entitled to participate further in the distribution of
assets are entitled to receive the net assets of the Corporation.
2.2 The Board of Directors is authorized, subject to limitations
prescribed by the Washington Business Corporation Act (the "Act") and by the
provisions of this Article II, to provide for the issuance of shares of
Preferred Stock in series, to establish from time to time the number of shares
to be included in each series and to determine the designations, relative
rights, preferences and limitations of the shares of each series. The authority
of the Board of Directors with respect to each series includes determination of
the following:
2.2.1 The number of shares in and the distinguishing designation
of that series;
2.2.2 Whether shares of that series shall have full, special,
conditional, limited or no voting rights, except to the extent otherwise
provided by the Act;
2.2.3 Whether shares of that series shall be convertible and the
terms and conditions of the conversion, including provision for adjustment
of the conversion rate in circumstances determined by the Board of
Directors;
2.2.4 Whether shares of that series shall be redeemable and the
terms and conditions of redemption, including the date or dates upon or
after which they shall be redeemable and the amount per share payable in
case of redemption, which amount may vary under different conditions or at
different redemption dates;
2.2.5 The dividend rate, if any, on shares of that series, the
manner of calculating any dividends and the preference of any dividends;
2.2.6 The rights of shares of that series in the event of
voluntary or involuntary dissolution of the Corporation and the rights of
priority of that series relative to the Common Stock and any other series
of Preferred Stock on the distribution of assets on dissolution; and
2.2.7 Any other rights, preferences and limitations of that series
that are permitted by the Act.
Within any limits stated in these Articles or in the resolution of the
Board of Directors establishing a series, the Board of Directors, after the
issuance of shares of a series, may amend the resolution establishing the series
to decrease (but not below the number of shares of such series then outstanding)
the number of shares of that series, and the number of shares constituting the
decrease shall thereafter constitute authorized but undesignated shares, and the
Board of Directors may amend the rights and preferences of the shares of any
series that has been established but is wholly unissued.
The authority herein granted to the Board of Directors to determine the
relative rights and preferences of the Preferred Stock shall be limited to
unissued shares, and no power shall exist to alter or change the rights and
preferences of any shares that have been issued.
2.3 The Board of Directors shall have the authority to issue shares of the
capital stock of this Corporation and the certificates therefor subject to such
transfer restrictions and other limitations as it may deem necessary to promote
compliance with applicable federal and state securities laws, and to regulate
the transfer thereof in such manner as may be calculated to promote such
compliance or to further any other reasonable purpose.
2.4 At any time when the Corporation is subject to the reporting
requirements of Section 13 or Section 15(d) of the Securities Exchange Act of
1934, as amended, special meetings of the shareholders for any purpose or
purposes may be called only by the Board of Directors or the Chairman of the
Board (if one be appointed) or the Chief Executive Officer.
III.
DIRECTORS
3.1 The number of directors of the Corporation and the manner in which
such directors are to be elected shall be as set forth in the Bylaws.
3.2 Subject to the rights of the holders of any series of Preferred Stock
to elect additional directors under specified circumstances, the directors shall
be divided into three classes designated as Class I, Class II and Class III,
respectively. Directors shall be assigned to each class in accordance with a
resolution or resolutions adopted by the Board of Directors. At the first
annual meeting of shareholders following the adoption and filing of these
Articles of Incorporation, the term of office of the Class I directors shall
expire and Class I directors shall be elected for a full term of three years.
At the second annual meeting of shareholders following the
2.
adoption and filing of these Amended and Restated Articles of Incorporation, the
term of office of the Class II directors shall expire and Class II directors
shall be elected for a full term of three years. At the third annual meeting of
shareholders following the adoption and filing of these Amended and Restated
Articles of Incorporation, the term of office of the Class III directors shall
expire and Class III directors shall be elected for a full term of three years.
At each succeeding annual meeting of shareholders, directors shall be elected
for a full term of three years to succeed the directors of the class whose terms
expire at such annual meeting.
Notwithstanding the foregoing provisions of this section, each
director shall serve until his successor is duly elected and qualified or until
his death, resignation or removal. Neither the Board of Directors nor any
individual director may be removed without cause. Subject to any limitation
imposed by law, any individual director or directors may be removed with cause
by the holders of a majority of the voting power of the corporation entitled to
vote at an election of directors. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
3.3 In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors shall have the power to make, adopt, amend or
repeal the Bylaws, or adopt new Bylaws for this Corporation, by a resolution
adopted by a majority of the directors.
3.4 Vacancies in the Board of Directors may be filled by a majority of
the remaining directors, though less than a quorum, or by a sole remaining
director. The shareholders may elect a director at any time to fill any
vacancy not filled by the directors.
IV.
SHAREHOLDER RIGHTS
4.1 No shareholder of this Corporation shall have, solely by reason of
being a shareholder, any preemptive or preferential right or subscription right
to any stock of this Corporation or to any obligations convertible into stock of
this Corporation, or to any warrant or option for the purchase thereof, except
to the extent provided by resolution or resolutions of the Board of Directors
establishing a series of Preferred Stock or by written agreement with this
Corporation.
4.2 In any election for directors of the Corporation, a holder of shares
of any class or series of stock then entitled to vote has the right to vote in
person or by proxy the number of shares of stock held thereby for as many
persons as there are directors to be elected. No cumulative voting for
directors shall be permitted.
4.3 The approval of any plan of merger, plan of share exchange, sale,
lease, exchange or other disposition of all, or substantially all, of the
Corporation's property otherwise than in the usual and regular course of
business, or proposal to dissolve, shall require the affirmative vote of the
holders of not less than a majority of all outstanding shares of capital stock
of the Corporation entitled to vote generally in the election of directors of
the Corporation. At any time when the corporation is subject to the reporting
requirements of Section 13 or Section 15(d) of the Securities Exchange Act of
1934, as amended, pursuant to the authority granted under RCW
3.
23B.10.030, RCW 23B.11.030, RCW 23B.12.020, and RCW 23B.14.020, the vote of
shareholders of this Corporation required in order to approve amendments to the
Articles of Incorporation, a plan of merger or share exchange, the sale, lease,
exchange, or other disposition of all or substantially all of the property of
the Corporation not in the usual and regular course of business, or dissolution
of the Corporation shall be a majority of all of the votes entitled to be cast
by each voting group, regardless of whether or not the corporation is a "public
company," as that term is defined in Section 23B.01.400 of the Act.
V.
INDEMNIFICATION AND LIABILITY OF OFFICERS AND DIRECTORS
5.1 The Corporation may indemnify, in the manner and to the full extent
permitted by law, any person (or the estate of any person) who was or is a party
to, or is threatened to be made a party to any threatened, pending or complete
action, suit or proceeding, whether or not by or in the right of the
Corporation, and whether civil, criminal, administrative, investigative or
otherwise, by reason of the fact that such person is or was a director or
officer of the Corporation, or is or was serving at the request of the
Corporation as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise. The Corporation may, to the full extent
permitted by law, purchase and maintain insurance on behalf of any such person
against any liability which may be asserted against such person. To the full
extent permitted by law, the indemnification provided herein shall include
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement, and, in the manner provided by law, any such expenses may be paid by
the corporation in advance of the final disposition of such action, suit or
proceeding. The indemnification provided herein shall not be deemed to limit
the right of the Corporation to indemnify any other person for any such expenses
to the full extent permitted by law, nor shall it be deemed exclusive of any
other rights to which any person seeking indemnification from the Corporation
may be entitled under any agreement, vote of shareholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office.
5.2 No director of the Corporation shall be personally liable to the
Corporation or its shareholders for monetary damages for his conduct as a
director, except for (i) acts or omissions that involve intentional misconduct
or a knowing violation of law by the director, (ii) approval of distributions or
loans in violation of RCW 23B.08.310, or (iii) any transaction from which the
director will personally receive a benefit in money, property or services to
which the director is not legally entitled. If the Act is hereafter amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the Act, as so
amended. Any amendment to or repeal of this Article shall not adversely affect
any right or protection of a director of the Corporation for or with respect to
any acts or omissions of such director occurring prior to such amendment or
repeal.
4.
VI.
OTHER MATTERS
6.1 Except as otherwise provided in these Articles, as amended from time
to time, the Corporation reserves the right to amend, alter, change or repeal
any provisions contained in these Articles in any manner now or hereafter
prescribed or permitted by statute.
6.2 The Corporation shall have authority to correct clerical errors in any
documents filed with the Secretary of State of Washington, including these
Articles or any amendments hereto, without the necessity of special shareholder
approval of such corrections.
Dated:
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CelebrateExpress.com, Inc.
By:
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Its:
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5.