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Exhibit 3.1
FOURTH AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
LENDINGTREE, INC.
The undersigned, Douglas R. Lebda, certifies that he is Chief
Executive Officer of LendingTree, Inc., a corporation organized and existing
under the laws of the State of Delaware (hereinafter called the "Corporation"),
and does hereby certify as follows:
1. The current name of the Corporation is LendingTree, Inc.
2. The name under which the Corporation was originally incorporated was
Lewisburg Ventures, Inc. and the original Certificate of Incorporation of the
Corporation was filed with the Secretary of State of the State of Delaware on
June 7, 1996.
3. This Fourth Amended and Restated Certificate of Incorporation was
duly adopted by and in accordance with the provisions of Sections 228, 242 and
245 of the General Corporation Law of the State of Delaware as set forth in
Title 8 of the Delaware Code (the "GCL").
4. This Fourth Amended and Restated Certificate of Incorporation not
only restates and integrates, but also amends the provisions of the
Corporation's Certificate of Incorporation.
5. The text of the Fourth Amended and Restated Certificate of
Incorporation of the Corporation is hereby amended and restated to read in its
entirety as follows:
FIRST: The name of the Corporation is LendingTree, Inc. (the
"Corporation").
SECOND: The address of the registered office of the Corporation is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle, State of Delaware 19801. The name of its registered agent at that
address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of the State of Delaware (the "GCL").
FOURTH: (a) Authorized Capital Stock. The total number of shares of
stock which the Corporation shall have authority to issue is 110,000,000 shares
of capital stock, consisting of (i) 100,000,000 shares of common stock, par
value $0.01 per share (the "Common Stock") and (ii) 10,000,000 shares of
preferred stock, par value $0.01 per share (the "Preferred Stock").
(b) Common Stock. The powers, preferences and rights, and the
qualifications,
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limitations and restrictions, of each class of the Common Stock are as follows:
(1) No Cumulative Voting. The holders of shares of
Common Stock shall not have cumulative voting rights.
(2) Dividends; Stock Splits. Subject to the rights of
the holders of Preferred Stock, and subject to any other provisions of this
Fourth Amended and Restated Certificate of Incorporation, as it may be amended
from time to time, holders of shares of Common Stock shall be entitled to
receive such dividends and other distributions in cash, stock or property of the
Corporation when, as and if declared thereon by the Board of Directors from time
to time out of assets or funds of the Corporation legally available therefor.
(3) Liquidation, Dissolution, etc. In the event of any
liquidation, dissolution or winding up (either voluntary or involuntary) of the
Corporation, the holders of shares of Common Stock shall be entitled to receive
the assets and funds of the Corporation available for distribution after
payments to creditors and to the holders of any Preferred Stock of the
Corporation that may at the time be outstanding, in proportion to the number of
shares held by them, respectively.
(4) Merger, etc. In the event of a merger or
consolidation of the Corporation with or into another entity (whether or not the
Corporation is the surviving entity), the holders of each share of Common Stock
shall be entitled to receive the same per share consideration on a per share
basis.
(5) No Preemptive or Subscription Rights. No holder of
shares of Common Stock shall be entitled to preemptive or subscription rights.
(6) Power to Sell and Purchase Shares. Subject to the
requirements of applicable law, the Corporation shall have the power to issue
and sell all or any part of any shares of any class of stock herein or hereafter
authorized to such persons, and for such consideration, as the Board of
Directors shall from time to time, in its discretion, determine, whether or not
greater consideration could be received upon the issue or sale of the same
number of shares of another class, and as otherwise permitted by law. Subject to
the requirements of applicable law, the Corporation shall have the power to
purchase any shares of any class of stock herein or hereafter authorized from
such persons, and for such consideration, as the Board of Directors shall from
time to time, in its discretion, determine, whether or not less consideration
could be paid upon the purchase of the same number of shares of another class,
and as otherwise permitted by law.
(c) Preferred Stock. The Board of Directors is hereby
expressly authorized to provide for the issuance of all or any shares of the
Preferred Stock in one or more classes or series, and to fix for each such class
or series such voting powers, full or limited, or no voting powers, and such
designations, preferences and relative, participating, optional or other special
rights and such qualifications, limitations or restrictions thereof, as shall be
stated and expressed
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in the resolution or resolutions adopted by the Board of Directors providing for
the issuance of such class or series, including, without limitation, the
authority to provide that any such class or series may be (i) subject to
redemption at such time or times and at such price or prices; (ii) entitled to
receive dividends (which may be cumulative or non-cumulative) at such rates, on
such conditions, and at such times, and payable in preference to, or in such
relation to, the dividends payable on any other class or classes or any other
series; (iii) entitled to such rights upon the dissolution of, or upon any
distribution of the assets of, the Corporation; or (iv) convertible into, or
exchangeable for, shares of any other class or classes of stock, or of any other
series of the same or any other class or classes of stock, of the Corporation at
such price or prices or at such rates of exchange and with such adjustments; all
as may be stated in such resolution or resolutions.
FIFTH: The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
(c) The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors.
(d) The number of directors of the Corporation shall be as
from time to time fixed by the Board of Directors, and such number shall never
be less than three nor more than THIRTEEN. Election of directors need not be by
written ballot unless the By-Laws so provide.
(e) The directors shall be divided into three classes,
designated Class I, Class II and Class III. Each class shall consist, as nearly
as may be possible, of one-third of the total number of directors constituting
the entire Board of Directors. The initial division of the Board of Directors
into classes shall be made by the decision of the affirmative vote of a majority
of the entire Board of Directors. The term of the initial Class I directors
shall terminate on the date of the 2001 annual meeting; the term of the initial
Class II directors shall terminate on the date of the 2002 annual meeting; and
the term of the initial Class III directors shall terminate on the date of the
2003 annual meeting. At each succeeding annual meeting of stockholders beginning
in 2001, successors to the class of directors whose term expires at that annual
meeting shall be elected for a three-year term. If the number of directors is
changed, any increase or decrease shall be apportioned among the classes so as
to maintain the number of directors in each class as nearly equal as possible,
and any additional director of any class elected to fill a vacancy resulting
from an in crease in such class shall hold office for a term that shall coincide
with the remaining term of that class, but in no case will a decrease in the
number of directors shorten the term of any incumbent director.
(f) A director shall hold office until the annual meeting for
the year in which his or her term expires and until his or her successor shall
be elected and shall qualify, subject, however, to prior death, resignation,
retirement, disqualification or removal from office.
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(g) Subject to the terms of any one or more classes or series
of Preferred Stock, any vacancy on the Board of Directors that results from an
increase in the number of directors may be filled by a majority of the Board of
Directors then in office, provided that a quorum is present, and any other
vacancy occurring on the Board of Directors may be filled by a majority of the
Board of Directors then in office, even if less than a quorum, or by a sole
remaining director. Any director of any class elected to fill a vacancy
resulting from an increase in the number of directors of such class shall hold
office for a term that shall coincide with the remaining term of that class. Any
director elected to fill a vacancy not resulting from an increase in the number
of directors shall have the same remaining term as that of his predecessor.
Subject to the rights, if any, of the holders of shares of Preferred Stock then
outstanding, any or all of the directors of the Corporation may be removed from
office at any time, but only for cause and only by the affirmative vote of the
holders of at least a majority of the voting power of the Corporation's then
outstanding capital stock entitled to vote generally in the election of
directors. Notwithstanding the foregoing, whenever the holders of any one or
more classes or series of Preferred Stock issued by the Corporation shall have
the right, voting separately by class or series, to elect directors at an annual
or special meeting of stockholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
terms of this Fourth Amended and Restated Certificate of Incorporation
applicable thereto, and such directors so elected shall not be divided into
classes pursuant to this Article FIFTH unless expressly provided by such terms.
(h) In addition to the powers and authority hereinbefore or by
statute expressly conferred upon them, the directors are hereby empowered to
exercise all such powers and do all such acts and things as may be exercised or
done by the Corporation, subject, nevertheless, to the provisions of the GCL,
this Fourth Amended and Restated Certificate of Incorporation, and any By-Laws
adopted by the stockholders; provided, however, that no By-Laws hereafter
adopted by the stockholders shall invalidate any prior act of the directors
which would have been valid if such By-Laws had not been adopted.
SIXTH: No director shall be personally liable to the Corporation or any
of its stockholders for monetary damages for breach of fiduciary duty as a
director, except to the extent such exemption from liability or limitation
thereof is not permitted under the GCL as the same exists or may hereafter be
amended. If the GCL is amended hereafter to authorize the further elimination or
limitation of the liability of directors, then the liability of a director of
the Corporation shall be eliminated or limited to the fullest extent authorized
by the GCL, as so amended. Any repeal or modification of this Article SIXTH by
the stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification with respect to acts or omissions occurring prior to such repeal
or modification.
SEVENTH: The Corporation shall indemnify its directors and officers to
the fullest extent authorized or permitted by law, as now or hereafter in
effect, and such right to indemnification shall continue as to a person who has
ceased to be a director or officer of the Corporation and shall inure to the
benefit of his or her heirs, executors and personal and legal representatives;
provided, however, that, except for proceedings to enforce rights to
indemnification, the
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Corporation shall not be obligated to indemnify any director or officer (or his
or her heirs, executors or personal or legal representatives) in connection with
a proceeding (or part thereof) initiated by such person unless such proceeding
(or part thereof) was authorized or consented to by the Board of Directors. The
right to indemnification conferred by this Article SEVENTH shall include the
right to be paid by the Corporation the expenses incurred in defending or
otherwise participating in any proceeding in advance of its final disposition.
The Corporation may, to the extent authorized from time to
time by the Board of Directors, provide rights to indemnification and to the
advancement of expenses to employees and agents of the Corporation similar to
those conferred in this Article SEVENTH to directors and officers of the
Corporation.
The rights to indemnification and to the advance of expenses
conferred in this Article SEVENTH shall not be exclusive of any other right
which any person may have or hereafter acquire under this Fourth Amended and
Restated Certificate of Incorporation, the ByLaws of the Corporation, any
statute, agreement, vote of stockholders or disinterested directors or
otherwise.
Any repeal or modification of this Article SEVENTH by the
stockholders of the Corporation shall not adversely affect any rights to
indemnification and to the advancement of expenses of a director or officer of
the Corporation existing at the time of such repeal or modification with
respect to any acts or omissions occurring prior to such repeal or modification.
EIGHTH: (a) In addition to any affirmative vote required by law or this
Fourth Amended and Restated Certificate of Incorporation or the By-Laws of the
Corporation, and except as otherwise expressly provided in Section B of this
Article EIGHTH, a Business Combination (as hereinafter defined) shall require
the affirmative vote of not less than eighty percent (80%) of the votes entitled
to be cast by the holders of all the then outstanding shares of Voting Stock (as
hereinafter defined), voting together as a single-class, excluding Voting Stock
beneficially owned by any Interested Stockholder (as hereinafter defined). Such
affirmative vote shall be required notwithstanding the fact that no vote may be
required, or that a lesser percentage or separate class vote may be specified,
by law or in any agreement with any national securities exchange or otherwise.
(b) The provisions of Section (a) of this Article EIGHTH shall
not be applicable to any particular Business Combination, and such Business
Combination shall require only such affirmative vote, if any, as is required by
law or by any other provision of this Fourth Amended and Restated Certificate of
Incorporation or the By-Laws of the Corporation, or any agreement with any
national securities exchange, if all of the conditions specified in either of
the following Paragraphs (1) or (2) are met or, in the case of a Business
Combination not involving the payment of consideration to the holders of the
Corporation's outstanding Capital Stock (as hereinafter defined), if the
condition specified in the following Paragraph (1) is met:
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(1) The Business Combination shall have been approved
by a majority (whether such approval is made prior to or subsequent to the
acquisition of beneficial ownership of the Voting Stock that caused the
Interested Stockholder to become an Interested Stockholder) of the Continuing
Directors (as hereinafter defined).
(2) All of the following conditions shall have been
met:
(A) The aggregate amount of cash and the
Fair Market Value (as hereinafter defined), as of the date of the consummation
of the Business Combinations, of consideration other than cash to be received
per share by holders of Common Stock in such Business Combination shall be at
least equal to the highest amount determined under clauses (i), (ii), (iii) and
(iv) below:
(i)(if applicable) the highest per
share price (including any brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by or on behalf of the Interested Stockholder for any share
of Common Stock in connection with the acquisition by the Interested Stockholder
of beneficial ownership of shares of Common Stock (x) within the two-year period
immediately prior to the first public announcement of the proposed Business
Combination (the "Announcement Date") or (y) in the transaction in which it
became an Interested Stockholder, whichever is higher, in either case as
adjusted for any subsequent stock split, stock dividend, subdivision or
reclassification with respect to Common Stock;
(ii) the Fair Market Value per
share of Common Stock on the Announcement Date or on the date on which the
Interested Stockholder became an Interested Stockholder (the "Determination
Date"), whichever is higher, as adjusted for any subsequent stock split, stock
dividend, subdivision or reclassification with respect to Common Stock;
(iii) (if applicable) the price per
share equal to the Fair Market Value per share of Common Stock determined
pursuant to the immediately preceding clause (ii), multiplied by the ratio of
(x) the highest per share price (including any brokerage commissions, transfer
taxes and soliciting dealers' fees) paid by or on behalf of the Interested
Stockholder for any share of Common Stock in connection with the acquisition by
the Interested Stockholder of beneficial ownership of shares of Common Stock
within the two-year period immediately prior to the Announcement Date, as
adjusted for any subsequent stock split, stock dividend, subdivision or
reclassification with respect to Common Stock to (y) the Fair Market Value per
share of Common Stock on the first day in such two-year period on which the
Interested Stockholder acquired beneficial ownership of any share of Common
Stock, as adjusted for any subsequent stock split, stock dividend, subdivision
or reclassification with respect to Common Stock; and
(iv) the Corporation's net income
per share of Common Stock for the four full consecutive fiscal quarters
immediately preceding the Announcement Date, multiplied by the higher of the
then price/earnings multiple (if any) of such Interested Stockholder
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or the highest price/earnings multiple of the Corporation within the two-year
period immediately preceding the Announcement Date (such price/earnings
multiples being determined as customarily computed and reported in the financial
community).
(B) The aggregate amount of cash and the Fair Market
Value, as of the date of the consummation of the Business Combination, of
consideration other than cash to be received per share by holders of shares of
any class or series of outstanding Capital Stock, other than Common Stock, shall
be at least equal to the highest amount determined under clauses (i), (ii),
(iii) and (iv) below:
(i) (if applicable) the highest per
share price (including any brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by or on behalf of the Interested Stockholder for any share
of such class or series of Capital Stock in connection with the acquisition by
the Interested Stockholder of beneficial ownership of shares of such class or
series of Capital Stock (x) within the two-year period immediately prior to the
Announcement Date or (y) in the transaction in which it became an Interested
Stockholder, whichever is higher, in either case as adjusted for any subsequent
stock split, stock dividend, subdivision or reclassification with respect to
such class or series of Capital Stock;
(ii) the Fair Market Value per share
of such class or series of Capital Stock on the Announcement Date or on the
Determination Date, whichever is higher, as adjusted for any subsequent stock
split, stock dividend, subdivision or reclassification with respect to such
class or series of Capital Stock;
(iii) (if applicable) the price per
share equal to the Fair Market Value per share of such class or series of
Capital Stock determined pursuant to the immediately preceding clause (ii),
multiplied by the ratio of (x) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees) paid by or
on behalf of the Interested Stockholder for any share of such class or series of
Capital Stock in connection with the acquisition by the Interested Stockholder
of beneficial ownership of shares of such class or series of Capital Stock
within the two-year period immediately prior to the Announcement Date, as
adjusted for any subsequent stock split, stock dividend, subdivision or
reclassification with respect to such class or series of Capital Stock to (y)
the Fair Market Value per share of such class or series of Capital Stock on the
first day in such two-year period on which the Interested Stockholder acquired
beneficial ownership of any share of such class or series of Capital Stock, as
adjusted for any subsequent stock split, stock dividend, subdivision or
reclassification with respect to such class or series of Capital Stock; and
(iv) (if applicable) the highest
preferential amount per share to which the holders of shares of such class or
series of Capital Stock would be entitled in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation regardless of whether the Business Combination to be consummated
constitutes such an event.
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The provisions of this Paragraph 2 shall be required to be met
with respect to every class or series of outstanding Capital Stock, whether or
not the Interested Stockholder has previously acquired beneficial ownership of
any shares of a particular class or series of Capital Stock.
(C) The consideration to be received by
holders of a particular class or series of outstanding Capital Stock shall be in
cash or in the same form as previously has been paid by or on behalf of the
Interested Stockholder in connection with its direct or indirect acquisition of
beneficial ownership of shares of such class or series of Capital Stock. If the
consideration so paid for shares of any class or series of Capital Stock varied
as to form, the form of consideration for such class or series of Capital Stock
shall be either cash or the form used to acquire beneficial ownership of the
largest number of shares of such class or series of Capital Stock previously
acquired by the Interested Stockholder.
(D) After the Determination Date and prior
to the consummation of such Business Combination: (i) except as approved by a
majority of the Continuing Directors, there shall have been no failure to
declare and pay at the regular date therefor any full quarterly dividends
(whether or not cumulative) payable in accordance with the terms of any
outstanding Capital Stock; (ii) there shall have been no reduction in the annual
rate of dividends paid on the Common Stock (except as necessary to reflect any
stock split, stock dividend or subdivision of the Common Stock), except as
approved by a majority of the Continuing Directors; (iii) there shall have been
an increase in the annual rate of dividends paid on the Common Stock as
necessary to reflect any reclassification (including any reverse stock split),
recapitalization, reorganization or any similar transaction that has the effect
of reducing the number of outstanding shares of Common Stock, unless the failure
so to increase such annual rate is approved by a majority of the Continuing
Directors; and (iv) such Interested Stockholder shall not have become the
beneficial owner of any additional shares of Capital Stock except as part of the
transaction that results in such Interested Stockholder becoming an Interested
Stockholder and except in a transaction that, after giving effect thereto, would
not result in any increase in the Interested Stockholder's percentage beneficial
ownership of any class or series of Capital Stock.
(E) After the Determination Date, such
Interested Stockholder shall not have received the benefit, directly or
indirectly (except proportionately as a stockholder of the Corporation), of any
loans, advances, guarantees, pledges or other financial assistance or any tax
credits or other tax advantages provided by the Corporation, whether in
anticipation of or in connection with such Business Combination or otherwise.
(F) A proxy or information statement
describing the proposed Business Combination and complying with the requirements
of the Securities Exchange Act of 1934 and the rules and regulations thereunder
(the "Act") (or any subsequent provisions replacing such Act, rules or
regulations) shall be mailed to all stockholders of the Corporation at least 30
days prior to the consummation of such Business Combination (whether or not such
proxy or information statement is required to be mailed pursuant to such Act or
subsequent provisions).
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The proxy or information statement shall contain on the first page thereof, in a
prominent place, any statement as to the advisability (or inadvisability) of the
Business Combination that the Continuing Directors, or any of them, may choose
to make and, if deemed advisable by a majority of the Continuing Directors, the
opinion of an investment banking firm selected by a majority of the Continuing
Directors as to the fairness (or not) of the terms of the Business Combination
from a financial point of view to the holders of the outstanding shares of
Capital Stock other than the Interested Stockholder and its Affiliates or
Associates (as hereinafter defined), such investment banking firm to be paid a
reasonable fee for its services by the Corporation.
(G) Such Interested Stockholder shall not
have made any major change in the Corporation's business or equity capital
structure without the approval of a majority of the Continuing Directors.
(c) The following definitions shall apply with respect to this
Article EIGHTH:
(1) The term "Business Combination" shall mean:
(A) any merger or consolidation of the
Corporation or any Subsidiary (as hereinafter defined) with (i) any Interested
Stockholder or (ii) any other company (whether or not itself an Interested
Stockholder) which is or after such merger or consolidation would be an
Affiliate or Associate of an Interested Stockholder; or
(B) any sale, lease, exchange, mortgage,
pledge, transfer or other disposition or security arrangement, investment, loan,
advance, guarantee, agreement to purchase, agreement to pay, extension of
credit, joint venture participation or other arrangement (in one transaction or
a series of transactions) with or for the benefit of any Interested Stockholder
or any Affiliate or Associate of any Interested Stockholder involving any
assets, securities or commitments of the Corporation, any Subsidiary or any
Interested Stockholder or any Affiliate or Associate of any Interested
Stockholder having an aggregate Fair Market Value and/or involving aggregate
commitments of $10,000,000 or more or constituting more than 5 percent of the
book value of the total assets (in the case of transactions involving assets or
commitments other than capital stock) or 5 percent of the stockholders' equity
(in the case of transactions in capital stock) of the entity in question (the
"Substantial Part"), as reflected in the most recent fiscal year-end
consolidated balance sheet of such entity existing at the time the stockholders
of the Corporation would be required to approve or authorize the Business
Combination involving the assets, securities and/or commitments constituting any
Substantial Part; or
(C) the adoption of any plan or proposal for
the liquidation or dissolution of the Corporation which is voted for or
consented to by any Interested Stockholder; or
(D) any reclassification of securities
(including any reverse stock split), or recapitalization of the Corporation, or
any merger or consolidation of the Corporation
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with any of its Subsidiaries or any other transaction (whether or not with or
otherwise involving an Interested Stockholder) that has the effect, directly or
indirectly, of increasing the proportionate share of any class or series of
Capital Stock, or any securities convertible into Capital Stock or into equity
securities of any Subsidiary, that is beneficially owned by any Interested
Stockholder or any Affiliate or Associate of any Interested Stockholder; or
(E) any agreement, contract or other
arrangement providing for any one or more of the actions specified in the
foregoing clauses (a) to (d).
(2) The term "Capital Stock" shall mean all capital
stock of the Corporation authorized to be issued from time to time under Article
FOURTH of this Fourth Amended and Restated Certificate of Incorporation, and the
term "Voting Stock" shall mean all Capital Stock which by its terms may be voted
on all matters submitted to stockholders of the Corporation generally.
(3) The term "person" shall mean any individual,
firm, company or other entity and shall include any group comprised of any
person and any other person with whom such person or any Affiliate or Associate
of such person has any agreement, arrangement or understanding, directly or
indirectly, for the purpose of acquiring, holding, voting or disposing of
Capital Stock.
(4) The term "Interested Stockholder" shall mean any
person (other than the Corporation or any Subsidiary and other than any
profit-sharing, employee stock ownership or other employee benefit plan of the
Corporation or any Subsidiary or any trustee of or fiduciary with respect to any
such plan when acting in such capacity) who (A) is the beneficial owner of
Voting Stock representing ten percent (10%) or more of the votes entitled to be
cast by the holders of all then outstanding shares of Voting Stock; or (B) is an
Affiliate or Associate of the Corporation and at any time within the two-year
period immediately prior to the date in question was the beneficial owner of
Voting Stock representing ten percent (10%) or more of the votes entitled to be
cast by the holders of all then outstanding shares of Voting Stock.
(5) A person shall be a "beneficial owner" of any
Capital Stock (A) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; (B) which such person or any of its
Affiliates or Associates has, directly or indirectly, (i) the right to acquire
(whether such right is exercisable immediately or subject only to the passage of
time), pursuant to any agreement, arrangement or understanding or upon the
exercise of conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement, arrangement or
understanding; or (C) which are beneficially owned, directly or indirectly, by
any other person with which such person or any of its Affiliates or Associates
has any agreement, arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of Capital Stock. For the purposes of
determining whether a person is an Interested Stockholder pursuant to Paragraph
4 of this Section (c), the number of shares of Capital Stock deemed to be
outstanding shall include shares deemed beneficially owned by such person
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through application of this Paragraph 5 of Section (c), but shall not include
any other shares of Capital Stock that may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of conversion rights,
warrants or options, or otherwise.
(6) The terms "Affiliate" and "Associate" shall have
the respective meanings ascribed to such terms in Rule 12b-2 under the Act as in
effect on the date that this Article EIGHTH is approved by the Board (the term
"registrant" in said Rule 12b-2 meaning in this case the Corporation).
(7) The term "Subsidiary" means any company of which
a majority of any class of equity security is beneficially owned by the
Corporation; provided, however, that for the purposes of the definition of
Interested Stockholder set forth in Paragraph 4 of this Section (c), the term
"Subsidiary" shall mean only a company of which a majority of each class of
equity security is beneficially owned by the Corporation.
(8) The term "Continuing Director" means any member
of the Board of Directors of the Corporation (the "Board of Directors"), while
such person is a member of the Board of Directors, who is not an Affiliate or
Associate or representative of the Interested Stockholder and was a member of
the Board of Directors prior to the time that the Interested Stockholder became
an Interested Stockholder, and any successor of a Continuing Director while such
successor is a member of the Board of Directors, who is not an Affiliate or
Associate or representative of the Interested Stockholder and is recommended or
elected to succeed the Continuing Director by a majority of Continuing
Directors.
(9) The term "Fair Market Value" means (A) in the
case of cash, the amount of such cash; (B) in the case of stock, the highest
closing sale price during the 30-day period immediately preceding the date in
question of a share of such stock on the Composite Tape for New York Stock
Exchange-Listed Stocks, or, if such stock is not quoted on the Composite Tape,
on the New York Stock Exchange, or, if such stock is not listed on such
Exchange, on the principal United States securities exchange registered under
the Act on which such stock is listed, or, if such stock is not listed on any
such exchange, the highest closing bid quotation with respect to a share of such
stock during the 30-day period preceding the date in question on the National
Association of Securities Dealers, Inc. Automated Quotations System or any
similar system then in use, or if no such quotations are available, the fair
market value on the date in question of a share of such stock as determined by a
majority of the Continuing Directors in good faith; and (C) in the case of
property other than cash or stock, the fair market value of such property on the
date in question as determined in good faith by a majority of the Continuing
Directors.
(10) In the event of any Business Combination in
which the Corporation survives, the phrase "consideration other than cash to be
received" as used in Paragraphs 2(A) and 2(B) of Section (b) of this Article
EIGHTH shall include the shares of Common Stock and/or the shares of any other
class or series of Capital Stock retained by the holders of such shares.
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(d) A majority of the Continuing Directors shall have the
power and duty to determine for the purposes of this Article EIGHTH, on the
basis of information known to them after reasonable inquiry, (1) whether a
person is an Interested Stockholder, (2) the number of shares of Capital Stock
or other securities beneficially owned by any person, (3) whether a person is an
Affiliate or Associate of another, (4) whether the assets that are the subject
of any Business Combination have, or the consideration to be received for the
issuance or transfer of securities by the Corporation or any Subsidiary in any
Business Combination has, an aggregate Fair Market Value of $10,000,000 or more,
and (5) whether the assets or securities that are the subject of any Business
Combination constitute a Substantial Part. Any such determination made in good
faith shall be binding and conclusive on all parties.
(e) Nothing contained in this Article EIGHTH shall be
construed to relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
(f) The fact that any Business Combination complies with the
provisions of Section (b) of this Article EIGHTH shall not be construed to
impose any fiduciary duty, obligation or responsibility on the Board of
Directors, or any member thereof, to approve such Business Combination or
recommend its adoption or approval to the shareholders of the Corporation, nor
shall such compliance limit, prohibit or otherwise restrict in any manner the
Board of Directors, or any member thereof, with respect to evaluations of or
actions and responses taken with respect to such Business Combination.
(g) Notwithstanding any other provisions of this Fourth
Amended and Restated Certificate of Incorporation or the By-Laws of the
Corporation (and notwithstanding the fact that a lesser percentage or separate
class vote may be specified by law, this Fourth Amended and Restated Certificate
of Incorporation or the By-Laws of the Corporation), the affirmative vote of the
holders of not less than eighty percent (80%) of the votes entitled to be cast
by the holders of all the then outstanding shares of Voting Stock, voting
together as a single class, excluding Voting Stock beneficially owned by any
Interested Stockholder, shall be required to amend or repeal, or adopt any
provisions inconsistent with, this Article EIGHTH; provided, however, that this
Section G shall not apply to, and such eighty percent (80%) vote shall not be
required for, any amendment, repeal or adoption unanimously recommended by the
Board of Directors if all of such directors are persons who would be eligible to
serve as Continuing Directors within the meaning of Section (c), Paragraph 8 of
this Article EIGHTH.
NINTH: Unless otherwise required by law, special meetings of
stockholders, for any purpose or purposes may be called by either (i) the
Chairman of the Board of Directors, if there be one, (ii) the Chief Executive
Officer, or (iii) the Board of Directors. The ability of the stockholders to
call a special meeting is hereby specifically denied.
TENTH: Any action required or permitted to be taken by the stockholders
of the Corporation must be effected at a duly called annual or special meeting
of stockholders of the Corporation, and the ability of the stockholders to
consent in writing to the taking of any action is
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hereby specifically denied.
ELEVENTH: Meetings of stockholders may be held within or without the
State of Delaware, as the By-Laws may provide. The books of the Corporation may
be kept (subject to any provision contained in the GCL) 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.
TWELFTH: In furtherance and not in limitation of the powers conferred
upon it by the laws of the State of Delaware, the Board of Directors shall have
the power to adopt, amend, alter or repeal the Corporation's By-Laws. The
affirmative vote of at least a majority of the entire Board of Directors shall
be required to adopt, amend, alter or repeal the Corporation's By-Laws. The
Corporation's By-Laws also may be adopted, amended, altered or repealed by the
affirmative vote of the holders of at least eighty percent (80%) of the voting
power of the shares entitled to vote at an election of directors.
THIRTEENTH: The Corporation reserves the right to amend, alter, change
or repeal any provision contained in this Fourth Amended and Restated
Certificate of Incorporation in the manner now or hereafter prescribed in this
Fourth Amended and Restated Certificate of Incorporation, the Corporation's
By-Laws or the GCL, and all rights herein conferred upon stockholders are
granted subject to such reservation; provided, however, that, notwithstanding
any other provision of this Fourth Amended and Restated Certificate of
Incorporation (and in addition to any other vote that may be required by law),
the affirmative vote of the holders of at least eighty percent (80%) of the
voting power of the shares entitled to vote at an election of directors shall be
required to amend, alter, change or repeal, or to adopt any provision as part of
this Fourth Amended and Restated Certificate of Incorporation inconsistent with
the purpose and intent of Articles FIFTH, EIGHTH, NINTH, TENTH and TWELFTH of
this Fourth Amended and Restated Certificate of Incorporation or this Article
THIRTEENTH.
* * * * * * *
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IN WITNESS WHEREOF, the Corporation has caused this Fourth
Amended and Restated Certificate of Incorporation to be executed as of this __
day of February, 2000 in its name and on its behalf by its Chief Executive
Officer, pursuant to Section 103 of the General Corporation Law of the State of
Delaware.
LENDINGTREE, INC.
By: _____________________________
Name: Douglas R. Lebda
Title: Chief Executive Officer