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AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
PFSWEB, INC.
(Pursuant to Section 245 of the General
Corporation Law of the State of Delaware)
PFSWEB, INC., a corporation organized and existing under the
General Corporation Law of the State of Delaware, does hereby certify as
follows:
1. The name of the corporation is PFSweb, Inc. (the
"Corporation").
2. The date of filing the original Certificate of
Incorporation of the Corporation with the Secretary of State of the State of
Delaware was June 28, 1999.
3. This Amended and Restated Certificate of Incorporation
amends and restates the provisions of the Certificate of Incorporation of the
Corporation, as amended, and was duly adopted by the written consent of the
sole stockholder of the Corporation entitled to vote thereon in accordance with
the provisions of Sections 228, 242 and 245 of the General Corporation Law of
the State of Delaware (the "GCL").
4. The Certificate of Incorporation of the Corporation, as
amended and restated hereby, shall, upon its filing with the Secretary of State
of the State of Delaware, read in its entirety as follows:
FIRST: The name of the corporation is PFSweb, Inc. (the
"Corporation").
SECOND: The registered office of the Corporation in the State
of Delaware is located at 1013 Centre Road, Wilmington, County of New Castle,
Delaware 19805. The name of the registered agent of the Corporation at such
address is Corporation Service Company.
THIRD: The purpose of the Corporation and the nature and
objects of the business to be transacted, promoted, and carried on are to
engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is 41,000,000 shares, divided into
two classes as follows: (i) 1,000,000 shares of Preferred Stock, par value
$1.00 per share ("Preferred Stock"); and (ii) 40,000,000 shares of Common
Stock, par value $.001 per share ("Common Stock").
Upon the filing of this Amended and Restated Certificate of
Incorporation, all previously issued and outstanding shares of common stock,
$.01 par value, of the Corporation shall be automatically converted into an
equal number of shares of Common Stock, par value $.001 per share, of the
Corporation.
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The designations and the powers, preferences, rights,
qualifications, limitations, and restrictions of the Preferred Stock and the
Common Stock of the Corporation are as follows:
A. Provisions Relating to the Preferred Stock.
1. The Preferred Stock may be issued from time to time in one
or more classes or series, the shares of each class or series to have such
designations and powers, preferences, and rights, and qualifications,
limitations, and restrictions thereof as are stated and expressed herein and in
the resolution or resolutions providing for the issuance of such class or
series adopted by the board of directors of the Corporation as hereafter
prescribed.
2. Authority is hereby expressly granted to and vested in the
board of directors of the Corporation to authorize the issuance of the
Preferred Stock from time to time in one or more classes or series, and with
respect to each such class or series of the Preferred Stock, to fix and state
by the resolution or resolutions from time to time adopted providing for the
issuance thereof the following:
(i) whether or not such class or series is to have voting
rights, full, special, or limited, or is to be without voting rights,
and whether or not such class or series is to be entitled to vote as a
separate class either alone or together with the holders of one or
more other classes or series of stock;
(ii) the number of shares to constitute such class or
series and the designations thereof;
(iii) the preferences, and relative, participating,
optional, or other special rights, if any, and the qualifications,
limitations, or restrictions thereof, if any, with respect to any such
class or series;
(iv) whether or not the shares of any such class or series
shall be redeemable at the option of the Corporation or the holders
thereof or upon the happening of any specified event, and, if
redeemable, the redemption price or prices (which may be payable in
the form of cash, notes, securities, or other property), and the time
or times at which, and the terms and conditions upon which, such
shares shall be redeemable and the manner of redemption;
(v) whether or not the shares of such class or series
shall be subject to the operation of retirement or sinking funds to be
applied to the purchase or redemption of such shares for retirement,
and, if such retirement or sinking fund or funds are to be
established, the annual amount thereof, and the terms and provisions
relative to the operation thereof;
(vi) the dividend rate, whether dividends are payable in
cash, stock of the Corporation, or other property, or a combination
thereof, the conditions upon which and the
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times when such dividends are payable, the preference to or the
relation to the payment of dividends payable on any other class or
classes or series of stock, whether such dividends shall be cumulative
or noncumulative, and if cumulative, the date or dates from which such
dividends shall accumulate;
(vii) the preferences, if any, and the amounts thereof
which the holders of any such class or series shall be entitled to
receive upon the voluntary and involuntary dissolution of, or upon any
distribution of the assets of, the Corporation;
(viii) whether or not the shares of any such class or
series, at the option of the Corporation or the holder thereof or upon
the happening of any specified event, shall be convertible into or
exchangeable for the shares of any other class or classes or of any
other series of the same or any other class or classes of stock,
securities, or other property of the Corporation and the conversion
price or prices or ratio or ratios or the rate or rates at which such
exchange may be made, with such adjustments, if any, as shall be
stated and expressed or provided for in such resolution or
resolutions; and
(ix) such other special rights and provisions with respect
to any such class or series as may to the board of directors of the
Corporation seem advisable.
3. The shares of each class or series of the Preferred Stock
may vary from the shares of any other class or series thereof in any or all of
the foregoing respects. The board of directors of the Corporation may increase
the number of shares of Preferred Stock designated for any existing class or
series by a resolution adding to such class or series authorized and unissued
shares of the Preferred Stock not designated for any other class or series. The
board of directors of the Corporation may decrease the number of shares of the
Preferred Stock designated for any existing class or series by a resolution,
subtracting from such series unissued shares of the Preferred Stock designated
for such class or series, and the shares so subtracted shall become authorized,
unissued, and undesignated shares of the Preferred Stock.
B. Provisions Relating to the Common Stock.
1. Each holder of Common Stock shall be entitled to one vote
for each share of Common Stock standing in such holder's name on the records of
the Corporation on each matter submitted to a vote of the stockholders.
2. Subject to the rights of the holders of the Preferred
Stock, the holders of the Common Stock shall be entitled to receive when, as,
and if declared by the board of directors of the Corporation, out of funds
legally available therefor, dividends payable in cash, stock or otherwise.
3. Upon any liquidation, dissolution, or winding up of the
Corporation, whether voluntary or involuntary, and after the holders of the
Preferred Stock and the holders of any bonds, debentures, or other obligations
of the Corporation shall have been paid in full the amounts to which they shall
be entitled (if any), or a sum sufficient for such payment in full shall have
been set aside, the
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remaining net assets of the Corporation shall be distributed pro rata to the
holders of the Common Stock in accordance with their respective rights and
interests, to the exclusion of the holders of the Preferred Stock and any
bonds, debentures, or other obligations of the Corporation.
C. General.
1. Subject to the foregoing provisions of this Certificate of
Incorporation, the Corporation may issue shares of its Preferred Stock and
Common Stock from time to time for such consideration (in any form, but not
less in value than the par value thereof) as may be fixed by the board of
directors of the Corporation, which is expressly authorized to fix the same in
its absolute and uncontrolled discretion subject to the foregoing conditions.
Shares so issued for which the consideration shall have been paid or delivered
to the Corporation shall be deemed fully paid stock and shall not be liable to
any further call or assessment thereon, and the holders of such shares shall
not be liable for any further payments in respect of such shares.
2. The Corporation shall have authority to create and issue
rights and options entitling their holders to purchase or otherwise acquire
shares of the Corporation's capital stock of any class or series or other
securities of the Corporation, and such rights and options shall be evidenced
by instrument(s) approved by the board of directors of the Corporation or any
committee thereof. The board of directors of the Corporation or any committee
thereof shall be empowered to set the exercise price, duration, times for
exercise, and other terms of such options or rights; provided, however, that
the consideration to be received (which may be in any form) for any shares of
capital stock subject thereto shall have a value not less than the par value
thereof.
FIFTH: No contract or transaction between the Corporation and
one or more of its directors, officers, or stockholders or between the
Corporation and any person (as used herein "person" means any other
corporation, partnership, association, firm, trust, joint venture, political
subdivision, or instrumentality) or other organization in which one or more of
its directors, officers, or stockholders are directors, officers, or
stockholders, or have a financial interest, shall be void or voidable solely
for this reason, or solely because the director or officer is present at or
participates in the meeting of the board or committee which authorizes the
contract or transaction, or solely because his, her or their votes are counted
for such purpose, if: (i) the material facts as to his or her relationship or
interest and as to the contract or transaction are disclosed or are known to
the board of directors or the committee, and the board of directors or
committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts as to
his or her relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved, or ratified by the board
of directors, a committee thereof (to the extent permitted by applicable law),
or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the board of directors or
of a committee which authorizes the contract or transaction.
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SIXTH: 1. To the extent not prohibited by law, the
Corporation shall indemnify any person who is or was made, or threatened to be
made, a party to any threatened, pending or completed action, suit or
proceeding (a "Proceeding"), whether civil, criminal, administrative or
investigative, including, without limitation, an action by or in the right of
the Corporation to procure a judgment in its favor, by reason of the fact that
such person, or a person of whom such person is the legal representative, is or
was a director or officer of the Corporation, or is or was serving in any
capacity at the request of the Corporation for any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
(an "Other Entity"), against judgments, fines, penalties, excise taxes, amounts
paid in settlement and costs, charges and expenses (including attorneys' fees
and disbursements). Persons who are not directors or officers of the
Corporation may be similarly indemnified in respect of service to the
Corporation or to an Other Entity at the request of the Corporation to the
extent the Board of Directors at any time specifies that such persons are
entitled to the benefits of this Article.
1. The Corporation shall, from time to time, reimburse or
advance to any director or officer or other person entitled to indemnification
hereunder the funds necessary for payment of expenses, including attorneys'
fees and disbursements, incurred in connection with any Proceeding, in advance
of the final disposition of such Proceeding; provided, however, that, if
required by the GCL, such expenses incurred by or on behalf of any director or
officer or other person may be paid in advance of the final disposition of a
Proceeding only upon receipt by the Corporation of an undertaking, by or on
behalf of such director or officer (or other person indemnified hereunder), to
repay any such amount so advanced, if it shall ultimately be determined by
final judicial decision from which there is no further right of appeal that
such director, officer or other person is not entitled to be indemnified for
such expenses.
2. The rights to indemnification, and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Article shall
not be deemed exclusive of any other rights to which a person seeking
indemnification or reimbursement or advancement of expenses may have or
hereafter be entitled under any statute, this Amended and Restated Certificate
of Incorporation, the By-laws of the Corporation, any agreement, any vote of
stockholders or disinterested directors or otherwise, both as to action in his
or her official capacity and as to action in another capacity while holding
such office.
3. The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Article shall
continue as to a person who has ceased to be a director or officer (or other
person indemnified hereunder) and shall inure to the benefit of the executors,
administrators, legatees and distributees of such person.
4. The Corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of an Other Entity,
against any liability asserted against such person and incurred by such person
in any such capacity, or arising out of such person's status as such, whether
or not the Corporation would have the
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power to indemnify such person against such liability under the provisions of
this Article, the By-laws or under Section 145 of the GCL or any other
provision of law.
5. The provisions of this Article shall be a contract between
the Corporation, on the one hand, and each director and officer who serves in
such capacity at any time while this Article is in effect and any other person
indemnified hereunder, on the other hand, pursuant to which the Corporation and
each such director, officer, or other person intend to be legally bound. No
repeal or modification of this Article shall affect any rights or obligations
with respect to any state of facts then or theretofore existing or thereafter
arising or any proceeding theretofore or thereafter brought or threatened based
in whole or in part upon any such state of facts.
6. The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Article shall
be enforceable by any person entitled to such indemnification or reimbursement
or advancement of expenses in any court of competent jurisdiction. The burden
of proving that such indemnification or reimbursement or advancement of
expenses is not appropriate shall be on the Corporation. Neither the failure of
the Corporation (including its Board of Directors, its independent legal
counsel and its stockholders) to have made a determination prior to the
commencement of such action that such indemnification or reimbursement or
advancement of expenses is proper in the circumstances nor an actual
determination by the Corporation (including its Board of Directors, its
independent legal counsel and its stockholders) that such person is not
entitled to such indemnification or reimbursement or advancement of expenses
shall constitute a defense to the action or create a presumption that such
person is not so entitled. Such a person shall also be indemnified for any
expenses incurred in connection with successfully establishing his or her right
to such indemnification or reimbursement or advancement of expenses, in whole
or in part, in any such proceeding.
7. Any director or officer of the Corporation serving in any
capacity for (a) another corporation of which a majority of the shares entitled
to vote in the election of its directors is held, directly or indirectly, by
the Corporation or (b) any employee benefit plan of the Corporation or any
corporation referred to in clause (a) shall be deemed to be doing so at the
request of the Corporation.
8. Any person entitled to be indemnified or to reimbursement
or advancement of expenses as a matter of right pursuant to this Article may
elect to have the right to indemnification or reimbursement or advancement of
expenses interpreted on the basis of the applicable law in effect at the time
of the occurrence of the event or events giving rise to the applicable
Proceeding, to the extent permitted by law, or on the basis of the applicable
law in effect at the time such indemnification or reimbursement or advancement
of expenses is sought. Such election shall be made, by a notice in writing to
the Corporation, at the time indemnification or reimbursement or advancement of
expenses is sought; provided, however, that if no such notice is given, the
right to indemnification or reimbursement or advancement of expenses shall be
determined by the law in effect at the time indemnification or reimbursement or
advancement of expenses is sought.
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SEVENTH: All the powers of the Corporation, insofar as the
same may be lawfully vested by this Amended and Restated Certificate of
Incorporation in the board of directors, are hereby conferred upon the board of
directors. In furtherance and not in limitation of that power, the board of
directors shall have the power, upon the affirmative vote of a majority of the
Classified Directors (as hereinafter defined) at a meeting lawfully convened,
to make, adopt, alter, amend, and repeal from time to time the Bylaws of the
Corporation and to make from time to time new Bylaws of the Corporation,
subject to the right of the stockholders entitled to vote thereon to adopt,
alter, amend, and repeal Bylaws made by the board of directors or to make new
Bylaws; provided, however, that the stockholders of the Corporation shall be
entitled to adopt, alter, amend, or repeal Bylaws made by the board of
directors or to make new Bylaws solely upon the affirmative vote of the holders
of at least seventy five percent (75%) of the outstanding shares of each class
of capital stock of the Corporation then entitled to vote thereon.
EIGHTH: Except for the provisions of Article SIXTH and NINTH
herein, 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 law and all rights conferred on officers, directors,
and stockholders herein are granted subject to this reservation.
NINTH: 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
knowing violation of law, (iii) under Section 174 of the GCL, or (iv) for any
transaction from which the director derived an improper personal benefit. Any
repeal or amendment of this Article NINTH by the stockholders of the
Corporation shall be prospective only, and shall not adversely affect any
limitation on the personal liability of a director of the Corporation arising
from an act or omission occurring prior to the time of such repeal or
amendment. In addition to the circumstances in which a director of the
Corporation is not personally liable as set forth in the foregoing provisions
of this Article NINTH, a director shall not be liable to the Corporation or its
stockholders to such further extent as permitted by any law hereafter enacted,
including without limitation any subsequent amendment to the GCL.
TENTH: 1. The number of directors constituting the board of
directors shall be fixed by the board of directors of the Corporation, provided
that such number shall be no fewer than three and no more than ten (plus such
number of directors as may be elected from time to time pursuant to the terms
of any series of Preferred Stock that may be issued and outstanding from time
to time). The directors of the Corporation (exclusive of directors who are
elected pursuant to the terms of, and serve as representatives of the holders
of, any series of Preferred Stock) shall be referred to herein as "Classified
Directors" and shall be divided into three classes, with the first class
referred to herein as "Class I," the second class as "Class II," and the third
class as "Class III." Each class shall consist as nearly as possible of
one-third (1/3) of the total number of directors making up the entire board of
directors. The term of office of the initial Class I directors shall expire at
the 2000 annual meeting of stockholders, the term of office of the initial
Class II directors shall expire at the 2001 annual meeting of stockholders, and
the term of office of the initial Class III directors shall expire at the 2002
annual meeting of stockholders, with each director to hold office until his
successor shall have been duly
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elected and qualified. At each annual meeting of stockholders, directors
elected to succeed those directors whose terms then expire shall be elected for
a term of office to expire at the third succeeding annual meeting of
stockholders after their election, with each director to hold office until his
successor shall have been duly elected and qualified.
1. 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 series or by class (excluding
holders of Common Stock), to elect directors, the election, term of office,
filling of vacancies, and other features of such directorships shall be
governed by the terms of this Amended and Restated Certificate of Incorporation
(including any amendment to this Amended and Restated Certificate of
Incorporation that designates a series of Preferred Stock), and such directors
so elected by the holders of Preferred Stock shall not be divided into classes
pursuant to this Article TENTH unless expressly provided by such terms.
2. Any or all Classified Directors may be removed only with
cause, at any annual or special meeting of stockholders, upon the affirmative
vote of the holders of a majority of the outstanding shares of each class of
capital stock of the Corporation then entitled to vote in person or by proxy at
an election of such Classified Directors, provided that notice of the intention
to act upon such matter shall have been given in the notice calling such
meeting. Unless otherwise provided by the terms of the certificate of
incorporation (including any amendment thereto that designates a series of
preferred stock) any vacancies occurring in the board of directors caused by an
increase in the number of Classified Directors, or the death, resignation,
retirement, disqualification, removal or other termination from office of any
Classified Director may be filled by the vote of a majority of the Classified
Directors then in office, though less than a quorum, or by the affirmative
vote, at any annual meeting or any special meeting of the stockholders called
for the purpose of filing such directorship, of the holders of a majority of
the outstanding shares of each class of capital stock then entitled to vote in
person or by proxy at an election of such directors. Each successor director so
chosen shall hold office until the next election of the class for which such
director shall have been chosen and until his respective successor shall have
been duly elected and qualified.
3. Election of directors, whether Classified Directors or
otherwise, need not be by written ballot.
ELEVENTH: The Corporation expressly elects to be governed by
Section 203 of the GCL.
TWELFTH: Special meetings of stockholders of the Corporation
may be called by the board of directors pursuant to a resolution adopted by a
majority of the Classified Directors then serving or by the Chairman of the
board of directors.
THIRTEENTH: Notwithstanding any other provisions of this
Amended and Restated Certificate of Incorporation or any provision of law which
might otherwise permit a lesser vote or no vote, the affirmative vote of the
holders of at least seventy five percent (75%) of the outstanding shares of
each class of capital stock of the Corporation then entitled to vote thereon
shall be required to
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amend, alter, or repeal any one or more of Articles of this Amended and
Restated Certificate of Incorporation.
IN WITNESS WHEREOF, the Corporation has caused this Amended
and Restated Certificate of Incorporation to be executed and attested as of the
____ day of November, 1999.
PFSWEB, INC.
By:
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Thomas J. Madden, Vice President
ATTEST:
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Harvey H. Achatz, Secretary
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