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EXHIBIT 3.2
FORM OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
ALTAVISTA INTERNET SOFTWARE, INC.
* * * * * * * * *
AltaVista Internet Software, Inc., a Delaware corporation that filed
its original Certificate of Incorporation with the Secretary of State of
Delaware on June 28, 1996, does hereby amend and restate its Certificate of
Incorporation to read in its entirety as follows:
FIRST. The name of the Corporation is: ALTAVISTA INTERNET SOFTWARE,
INC.
SECOND. The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, in the City of Wilmington, New Castle
County, Delaware 19801. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD. The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware as the name exists or may hereafter be amended
("Delaware Law").
FOURTH.
Section 1. Capital Stock.
(a) The total number of shares of stock which the
Corporation shall have authority to issue is 105,000,000, consisting of
100,000,000 shares of Common Stock, par value $0.01 per share (the "Common
Stock"), and 5,000,000 shares of Preferred Stock, par value $0.01 per share (the
"Preferred Stock"). The Common Stock of the Corporation shall be all of one
class, and shall be divided into two initial series, consisting of Class A
Common Stock and Class B Common Stock. The Preferred Stock may be issued in one
or more series having such designations as may be fixed by the Board of
Directors.
(b) The Board of Directors is expressly authorized to
provide for the issue of all or any shares of the Common Stock and the Preferred
Stock, to determine the number of shares of each series and to fix for each
series of Common Stock and for any series of Preferred Stock 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 in the resolution or resolutions
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adopted by the Board of Directors or a duly authorized committee thereof
providing for the issue of such series and as may be permitted by Delaware Law.
(c) Subject to the rights of holders of 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 a majority of the Common Stock of the
Corporation irrespective of the provisions of Section 242(b)(2) of Delaware Law.
Section 2. Common Stock.
(a) Issuance and Consideration. Any unissued or treasury
shares of the Common Stock may be issued for such consideration as may be fixed
in accordance with applicable law from time to time by the Board of Directors.
(b) Dividends. Subject to the rights of holders of the
Preferred Stock, the holders of the Common Stock shall be entitled to receive,
when and as declared by the Board of Directors, out of the assets of the
Corporation which are by law available therefor, dividends payable either in
cash, in property, or in shares of stock and the holders of the Preferred Stock
shall not be entitled to participate in any such dividends (unless otherwise
provided by the Board of Directors in any resolution providing for the issue of
a series of Preferred Stock).
(c) Number of Shares. Of the 100,000,000 shares of Common
Stock of the Corporation, 50,000,000 shares are initially designated as shares
of Class A Common Stock and 50,000,000 shares are initially designated as shares
of Class B Common Stock. The number of shares designated as Class A Common Stock
or Class B Common Stock may be increased or decreased from time to time by a
resolution or resolutions adopted by the Board of Directors or any duly
authorized committee thereof (but not decreased below the number of such shares
then outstanding) and will be decreased in accordance with paragraph (d)(5)(E)
below, in each case without the consent of the holders of any outstanding shares
of Common Stock or Preferred Stock.
(d) Powers, Preferences, Etc. The following is a
statement of the powers, preferences, and relative participating, optional or
other special rights and qualifications, limitations and restrictions of the
Class A Common Stock and Class B Common Stock of the Corporation:
(1) Except as otherwise set forth below in this ARTICLE
FOURTH, the powers, preferences and relative participating, optional or
other special rights and qualifications, limitations or restrictions of
the Class A Common Stock and Class B Common Stock shall be identical in
all respects.
(2) Subject to the rights of the holders of Preferred
Stock, and subject to any other provisions of this Amended and Restated
Certificate of Incorporation, holders of Class A Common Stock and Class
B Common Stock shall be entitled to receive such dividends and other
distributions in cash, stock of any corporation (other than Common
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Stock of the Corporation) or property of the Corporation as may be
declared thereon by the Board of Directors from time to time out of
assets or funds of the Corporation legally available therefor and shall
share equally on a per share basis in all such dividends and other
distributions. In the case of dividends or other distributions payable
in Common Stock, including distributions pursuant to stock splits or
divisions of Common Stock of the Corporation, only shares of Class A
Common Stock shall be paid or distributed with respect to Class A
Common Stock and only shares of Class B Common Stock shall be paid or
distributed with respect to Class B Common Stock. The number of shares
of Class A Common Stock and Class B Common Stock so distributed shall
be equal in number on a per share basis. Neither the shares of Class A
Common Stock nor the shares of Class B Common Stock may be
reclassified, subdivided or combined unless such reclassification,
subdivision or combination occurs simultaneously and in the same
proportion for each class.
(3)(A) At every meeting of the stockholders of the
Corporation, every holder of Class A Common Stock shall be entitled to
one vote in person or by proxy for each share of Class A Common Stock
standing in his or her name on the transfer books of the Corporation,
and every holder of Class B Common Stock shall be entitled to three
votes in person or by proxy for each share of Class B Common Stock
standing in his or her name on the transfer books of the Corporation in
connection with the election of directors and all other matters
submitted to a vote of stockholders; provided, however, that with
respect to any proposed conversion of the shares of Class B Common
Stock into shares of Class A Common Stock pursuant to paragraph
(d)(5)(B), every holder of a share of Common Stock, irrespective of
class, shall have one vote in person or by proxy for each share of
Common Stock standing in his or her name on the transfer books of the
Corporation. Except as may be otherwise required by law or by this
ARTICLE FOURTH, the holders of Class A Common Stock and Class B Common
Stock shall vote together as a single class, subject to any voting
rights which may be granted to holders of Preferred Stock, on all
matters submitted to a vote of the holders of Common Stock.
(B) Every reference in this Amended and Restated Certificate
of Incorporation to a majority or other proportion of shares of Common
Stock, Class A Common Stock or Class B Common Stock, shall refer to
such majority or other proportion of the votes to which such shares of
Common Stock, Class A Common Stock or Class B Common Stock are
entitled.
(4)(A) In the event of any dissolution, liquidation or
winding up of the affairs of the Corporation, whether voluntary or
involuntary, after payment in full of the amounts required to be paid
to the holders of Preferred Stock, the remaining assets and funds of
the Corporation shall be distributed pro rata to the holders of Class A
Common Stock and Class B Common Stock. For the purposes of this
paragraph (d)(4), the voluntary sale, conveyance, lease, exchange or
transfer (for cash, shares of stock, securities or other consideration)
of all or substantially all of the assets of the Corporation or a
consolidation or merger of the Corporation with one or more other
corporations (whether or not the
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Corporation is the corporation surviving such consolidation or merger)
shall not be deemed to be a liquidation, dissolution or winding up,
voluntary or involuntary.
(B) In the event of any merger or consolidation of the Company
with or into another company in connection with which shares of Common
Stock are converted into or exchangeable for shares of stock, other
securities or property (including cash), all holders of Common Stock,
regardless of class or series, will be entitled to receive the same
kind and amount of shares of stock and other securities and property
(including cash).
(5)(A) Prior to the earliest to occur of the date on which
shares of Class B Common Stock are issued to stockholders of Digital
Equipment Corporation, a Massachusetts corporation, or its successors
("Digital") in a Tax-Free Spin-Off (as defined in paragraph (d)(5)(B))
and the date on which the number of shares of Class B Common Stock
outstanding is less than 60% of the aggregate number of shares of
Common Stock outstanding and a Tax-Free Spin-Off has not occurred, each
share of Class B Common Stock is convertible at the option of the
holder thereof into one share of Class A Common Stock. At the time of a
voluntary conversion, the holder of shares of Class B Common Stock
shall deliver to the office of the Corporation or any transfer agent
for the Class B Common Stock (i) the certificate or certificates
representing the shares of Class B Common Stock to be converted, duly
endorsed in blank or accompanied by proper instruments of transfer, and
(ii) written notice to the Corporation stating that such holder elects
to convert such share or shares and stating the name and address in
which each certificate for shares of Class A Common Stock issued upon
such conversion is to be issued. To the extent permitted by law and
subject to the taking of any necessary action or making any filing
contemplated by paragraph (d)(5)(E), such voluntary conversion shall be
deemed to have been effected at the close of business on the date when
such delivery is made to the Corporation or such transfer agent of the
shares to be converted, and the person exercising such voluntary
conversion shall be deemed to be the holder of record of the number of
shares of Class A Common Stock issuable upon such conversion at such
time. The Corporation shall promptly delivery certificates evidencing
the appropriate number of shares of Class A Common Stock to such
person.
(B) Each share of Class B Common Stock shall automatically
convert into one share of Class A Common Stock upon the transfer of
such shares if, after such transfer, such share is not beneficially
owned by Digital, unless such transfer is effected in connection with a
transfer of Class B Common Stock to stockholders of Digital as a
dividend intended to be on a tax-free basis under the Internal Revenue
Code of 1986, as amended from time to time (the "Code") (a "Tax-Free
Spin-Off"). For purposes of this paragraph (d)(5), the term
"beneficially owned" with respect to shares of Class B Common Stock
means ownership by a person who, directly or indirectly, through any
contract, arrangement, understanding, relationship or otherwise
controls the voting power (which includes the power to vote or to
direct the voting of) of such Class B Common Stock. In the event of a
Tax-Free Spin-Off, shares of Class B Common Stock shall automatically
convert into shares of Class A Common Stock on the fifth anniversary of
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the date on which shares of Class B Common Stock are first transferred
to stockholders of Digital in a Tax-Free Spin-Off unless, prior to such
Tax-Free Spin-Off, Digital delivers to the Corporation an opinion of
Digital's counsel (which counsel shall be reasonably satisfactory to
the Corporation) to the effect that such conversion would preclude
Digital from obtaining a favorable ruling from the Internal Revenue
Service that the distribution would be a Tax-Free Spin-Off under the
Code. If such an opinion is received, approval of such conversion shall
be submitted to a vote of the holders of the Common Stock as soon as
practicable after the fifth anniversary of the Tax-Free Spin-Off unless
Digital delivers to the Corporation an opinion of Digital's counsel
(which counsel shall be reasonably satisfactory to the Corporation)
prior to such anniversary to the effect that such vote would adversely
affect the status of the Tax-Free Spin-Off. At the meeting of
stockholders called for such purpose, every holder of Common Stock
shall be entitled to one vote in person or by proxy for each share of
Common Stock standing in his or her name on the transfer books of the
Corporation. Approval of such conversion shall require the approval of
a majority of the votes entitled to be cast by the holders of the Class
A Common Stock and Class B Common Stock present and voting, voting
together as a single class, and the holders of the Class B Common Stock
shall not be entitled to a separate class vote. Such conversion shall
be effective on the date on which such approval is given at a meeting
of stockholders called for such purpose.
Each share of Class B Common Stock shall automatically convert
into one share of Class A Common Stock on the date on which the number
of shares of Class B Common Stock outstanding is less than 60% of the
aggregate number of shares of Common Stock outstanding and a Tax-Free
Spin-Off has not occurred.
The Corporation shall at all times reserve and keep available,
free from preemptive rights, out of the aggregate of its authorized but
unissued Common Stock and its issued Common Stock held in its treasury
for the purpose of effecting any conversion of the Class B Common Stock
pursuant to this paragraph (d)(5)(B), the full number of shares of
Class A Common Stock then deliverable upon any such conversion of all
outstanding shares of Class B Common Stock.
The Corporation will provide notice of any automatic
conversion of shares of Class B Common Stock to holders of record of
the Common Stock not less than 30 nor more than 60 days prior to the
date fixed for such conversion; provided, however, that if the timing
or nature of the effectiveness of an automatic conversion makes it
impracticable to provide at least 30 days' notice, the Corporation
shall provide such notice as soon as practicable. Such notice shall be
provided by mailing notice of such conversion first class postage
prepaid, to each holder of record of the Common Stock, at such holder's
address as it appears on the transfer books of the Corporation;
provided, however, that no failure to give such notice nor any defect
therein shall affect the validity of the automatic conversion of any
shares of Class B Common Stock. Each such notice shall state, as
appropriate, the following:
(i) the automatic conversion date;
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(ii) the number of outstanding shares of Class B
Common Stock that are to be converted or have been converted
automatically;
(iii) the place or places where certificates for
such shares are to be surrendered for conversion; and
(iv) that no dividends will be declared on the
shares of Class B Common Stock converted after such conversion date.
Immediately upon such conversion, the rights of the holders of
shares of Class B Common Stock as such shall cease and such holders
shall be treated for all purposes as having become the record owners of
the shares of Class A Common Stock issuable upon such conversion;
provided, however, that such persons shall be entitled to receive when
paid any dividends declared on the Class B Common Stock as of a record
date preceding the time of such conversion and unpaid as of the time of
such conversion.
As promptly as practicable after the time of conversion, upon
the delivery to the Corporation of certificates formerly representing
shares of Class B Common Stock, the Corporation shall deliver or cause
to be delivered, to or upon the written order of the record holder of
the surrendered certificates formerly representing shares of Class B
Common Stock, a certificate or certificates representing the number of
fully paid and nonassessable shares of Class A Common Stock into which
the shares of Class B Common Stock formerly represented by such
certificates have been converted in accordance with the provisions of
this paragraph (d)(5)(B).
(C) Subject to the provisions of this paragraph (d)(5)(C),
from and after the date on which shares of Class B Common Stock are
transferred to the stockholders of Digital in a Tax-Free Spin-Off, (i)
each share of Class A Common Stock shall be convertible at the option
of the holder thereof into one share of Class B Common Stock on the
date on which any person (other than Digital or any of its consolidated
subsidiaries) or any group of persons (other than a group composed of
Digital and/or one or more of its consolidated subsidiaries) agreeing
to act together for the purpose of acquiring, holding, voting or
disposing of shares of Class B Common Stock, shall make an offer, which
the Board of Directors determines in its sole discretion to be "bona
fide", to holders of Class B Common Stock to purchase 5% or more of the
issued and outstanding shares of such Class B Common Stock for cash or
a combination of cash and other securities or property and (ii) each
share of Class B Common Stock shall be convertible at the option of the
holder thereof into one share of Class A Common Stock on the date on
which any person (other than Digital or any of its consolidated
subsidiaries) or any group of persons (other than a group composed of
Digital and/or one or more of its consolidated subsidiaries) agreeing
to act together for the purpose of acquiring, holding, voting or
disposing of shares of Class A Common Stock, shall make an offer, which
the Board of Directors determines in its sole discretion to be "bona
fide", to holders of Class A Common Stock to purchase 5% or more of the
issued and outstanding shares of Class A Common Stock for cash or a
combination of cash and other securities or property. The Corporation
will
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provide notice in writing to all holders of Common Stock of any offer
referred to in the foregoing clauses (i) and (ii). Such notice shall be
provided by mailing notice of such offer, first class postage prepaid,
to each holder of the series of Common Stock then entitled to be
converted, at such holder's address as it appears on the transfer books
of the Corporation. The Common Stock shall be convertible under this
paragraph (d)(5)(C) as long as such offer shall remain in effect and
shall not be terminated, rescinded or completed, as determined by the
Board of Directors in its sole discretion. Notwithstanding the
foregoing, each share of Common Stock converted into a share of the
other series of Common Stock pursuant to this paragraph (d)(5)(C) and
not purchased pursuant to such offer prior to the termination,
rescission or completion thereof, as determined by the Board of
Directors in its sole discretion, shall automatically be reconverted
into a share of Common Stock of the series from which it was converted
pursuant to this paragraph (d)(5)(C) upon the earliest to occur of the
termination, rescission or completion of such offer, as so determined
by the Board of Directors.
Any conversion pursuant to this paragraph (d)(5)(C) may be
effected at the office of the Corporation or any transfer agent for the
Common Stock and at such other place or places, if any, as the Board of
Directors may designate. Upon conversion pursuant to this paragraph
(d)(5)(C), the Corporation shall make no payment or adjustment on
account of dividends accrued or in arrears on Common Stock surrendered
for conversion or on account of any dividends on Common Stock issuable
on such conversion. Before any holder of Common Stock shall be entitled
to convert the same into any other series of stock pursuant to this
paragraph (d)(5)(C), such holder shall surrender the certificate or
certificates for such Common Stock at the office of said transfer agent
(or other place as provided above). Such certificate(s), if the
Corporation shall so request, shall be duly endorsed to the Corporation
or in blank or accompanied by proper instruments of transfer to the
Corporation or in blank (such endorsements or instruments of transfer
to be in form satisfactory to the Corporation). Such certificate(s)
shall be accompanied by a written notice to the Corporation at said
office stating that such holder elects to convert all or a specified
number of Common Stock represented by such certificate(s) in accordance
with this paragraph (d)(5)(C) and stating the name(s) in which such
holder desires the certificate(s) representing the stock to be issued.
Such written notice shall also state the name(s) of the person(s)
making the offer entitling such holder to convert such Common Stock.
The Corporation will, as soon as practicable after deposit of the
certificate(s) for the series of Common Stock to be converted,
accompanied by the written notice and the statements prescribed above,
issue and deliver at the office of said transfer agent (or other place
as provided above) to the person for whose account such Common Stock
was so surrendered, or to such person's nominee or nominees, a
certificate or certificates for the number of shares of such other
series of Common Stock to which such holder shall be entitled as
aforesaid.
Any certificate of Common Stock issued in connection with a
conversion pursuant to this paragraph (d)(5)(C) shall bear a legend
substantially to the effect of the last sentence of the first
subparagraph of this paragraph (d)(5)(C) until such certificate shall
be transferred to the person(s) making the offer entitling a holder of
Common Stock to
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convert such Common Stock pursuant to this paragraph (d)(5)(C), or the
nominee or nominees of such person(s).
Any conversion pursuant to this paragraph (d)(5)(C) shall be
deemed to have been made as of the date of surrender of the Common
Stock to be converted; and the person or persons entitled to receive
the Common Stock issuable upon conversion shall be treated for all
purposes as the record holder or holders of such Common Stock on such
date.
(D) The Corporation will pay any and all documentary, stamp or
similar issue or transfer taxes payable in respect of the issue or
delivery of shares of one series of Common Stock on the conversion of
shares of the other series of Common Stock pursuant to this paragraph
(d)(5); provided, however, that the Corporation shall not be required
to pay any tax which may be payable in respect of any registration of
transfer involved in the issue or delivery of shares of one series of
Common Stock in a name other than that of the registered holder of the
other series of Common Stock converted, and no such issue or delivery
shall be made unless and until the person requesting such issue has
paid to the Corporation the amount of any such tax or has established,
to the satisfaction of the Corporation, that such tax has been paid.
(E) Concurrently with any conversion of one series of Common
Stock into the other series of Common Stock effected pursuant to
paragraphs (d)(5)(A) and (B) above and, in the case of a conversion
pursuant to paragraph (d)(5)(C) above, concurrently with the purchase
of shares so converted, each share of a series of Common Stock that is
converted (i) shall be retired and canceled and shall not be reissued
and (ii) shall proportionally decrease the number of shares of Common
Stock of such series designated hereby. The Secretary of the
Corporation shall be, and hereby is, authorized and directed to file
with the Secretary of State of the State of Delaware one or more
Certificates of Decrease of Designated Shares to record any such
decrease in designated shares of Common Stock. No undesignated shares
of Common Stock shall be designated shares of Class B Common Stock
following an automatic conversion of shares of Class B Common Stock
pursuant to paragraph (d)(5)(B) above.
(F) Immediately upon the effectiveness of this Amended and
Restated Certificate of Incorporation each share of common stock of the
Corporation, par value $0.01 per share, that is issued and outstanding
immediately prior to such effectiveness, shall be changed into and
reclassified as 1,000 shares of Class B Common Stock.
Section 3. Preferred Stock.
(a) Series and Limits of Variations between Series. Any
unissued or treasury shares of the Preferred Stock may be issued from time to
time in one or more series for such consideration as may be fixed from time to
time by the Board of Directors and each share of a series shall be identical in
all respects with the other shares of such series, except that, if the dividends
thereon are cumulative, the date from which they shall be cumulative may differ.
Before any shares of Preferred Stock of any particular series shall be issued, a
certificate shall be filed with the Secretary of State of Delaware setting forth
the designation, rights, privileges,
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restrictions, and conditions to be attached to the Preferred Stock of such
series and such other matters as may be required, and the Board of Directors
shall fix and determine, and is hereby expressly empowered to fix and determine,
in the manner provided by law, the particulars of the shares of such series (so
far as not inconsistent with the provisions of this ARTICLE FOURTH applicable to
all series of Preferred Stock), including, but not limited to, the following:
(1) the distinctive designation of such series and the
number of shares which shall constitute such series, which number may
be increased (except where otherwise provided by the Board of Directors
in creating such series) or decreased (but not below the number of
shares thereof then outstanding) from time to time by like action of
the Board of Directors;
(2) the annual rate of dividends payable on shares of
such series (or the manner of determining the same), the conditions
upon which such dividends shall be payable and the date from which
dividends shall be cumulative in the event the Board of Directors
determines that dividends shall be cumulative;
(3) whether such series shall have voting rights, in
addition to the voting rights provided by law and, if so, the terms of
such voting rights;
(4) whether such series shall have conversion privileges
and, if so, the terms and conditions of such conversion, including, but
not limited to, provision for adjustment of the conversion rate upon
such events and in such manner as the Board of Directors shall
determine;
(5) whether or not the shares of such series shall be
redeemable or exchangeable for other securities and, if so, the terms
and conditions of such redemption or exchange, including the date or
dates upon or after which they shall be redeemable or exchangeable, and
the amount per share payable in case of redemption, which amount may
vary under different conditions and at different redemption rates;
(6) whether such series shall have a sinking fund for the
redemption or purchase of shares of that series and, if so, the terms
and amount of such sinking fund;
(7) the rights of the shares of such series in the event
of voluntary or involuntary liquidation, dissolution or winding up of
the Corporation, and the relative rights of priority, if any, of
payment of shares of that series; and
(8) any other relative rights, preferences and
limitations of such series.
Section 4. No Preemptive Rights. Except as otherwise set forth above in
this ARTICLE FOURTH, no holder of shares of this Corporation of any class shall
be entitled, as such, as a matter of right, to subscribe for or purchase shares
of any class now or hereafter authorized, or to purchase or subscribe for
securities convertible into or exchangeable for shares of the Corporation or to
which there shall be attached or appertain any warrants or rights entitling the
holders thereof to purchase or subscribe for shares.
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FIFTH. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, repeal, alter,
amend and rescind the bylaws of the Corporation.
SIXTH.
Section 1. Election by Holders of Preferred Stock. During any period
when the holders of any Preferred Stock or any one or more series thereof,
voting as a class, shall be entitled to elect a specified number of directors,
by reason of dividend arrearages or other provisions giving them the right to do
so, then and during such time as such right continues (i) the then otherwise
authorized number of directors shall be increased by such specified number of
directors, and the holders of such Preferred Stock or such series thereof,
voting as a class, shall be entitled to elect the additional directors so
provided for, pursuant to the provisions of such Preferred Stock or series; (ii)
each such additional director shall serve for such term, and have such voting
powers, as shall be stated in the provisions pertaining to such Preferred Stock
or series; and (iii) whenever the holders of any such Preferred Stock or series
thereof are divested of such rights to elect a specified number of directors,
voting as a class, pursuant to the provisions of such Preferred Stock or series,
the terms of office of all directors elected by the holders of such Preferred
Stock or series, voting as a class pursuant to such provisions or elected to
fill any vacancies resulting from the death, resignation or removal of directors
so elected by the holders of such Preferred Stock or series, shall forthwith
terminate and the authorized number of directors shall be reduced accordingly.
Section 2. Ballots. Elections of directors at an annual or special
meeting of stockholders need not be by written ballot unless the bylaws of the
Corporation shall provide otherwise.
Section 3. Initial Directors. Immediately upon the effectiveness of
this Amended and Restated Certificate of Incorporation, the directors of the
Corporation shall be_______________________________________________________.
each such person to hold office in accordance with the bylaws of the
Corporation.
Section 4. Elimination of Certain Personal Liability of Directors. A
director of this Corporation shall not be personally liable to the Corporation
or its stockholders for monetary damages for breach of any fiduciary duty as a
director to the fullest extent permitted by Delaware Law.
SEVENTH. The Board of Directors of the Corporation, when evaluating any
offer of another party to (1) make a tender or exchange offer for any equity
security of the Corporation, (2) merge or consolidate the Corporation with
another corporation, or (3) purchase or otherwise acquire all or substantially
all of the properties and assets of the Corporation, shall in connection with
the exercise of its judgment in determining what is in the best interests of the
Corporation and its stockholders, give due consideration to all relevant
factors, including without limitation the social and economic effects on the
employees, customers, suppliers and other constituents of the Corporation and
its subsidiaries and on the communities in which the Corporation and its
subsidiaries operate or are located.
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EIGHTH. The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Amended and Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred on stockholders herein are granted subject to this reservation;
provided that with respect to any proposed amendment, alternation or change to
this Amended and Restated Certificate of Incorporation, or repeal of any
provision of this Amended and Restated Certificate of Incorporation, which would
amend, alter or change the powers, preferences or special rights of the shares
of Class A Common Stock or Class B Common Stock so as to affect them adversely,
the affirmative vote of a majority of the outstanding shares affected by the
proposed amendment, voting as a separate class, shall be required.
NINTH.
Section 1. In anticipation that the Corporation will cease to be a
wholly owned subsidiary of Digital, but that Digital will remain a stockholder
of the Corporation, and in anticipation that the Corporation and Digital 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 (i)
the benefits to be derived by the Corporation throughout its continued
contractual, corporate and business relations with Digital (including service of
officers and directors of Digital as officers and directors of the Corporation)
and (ii) the difficulties attendant to any director, who desires and endeavors
fully to satisfy such director's fiduciary duties, in determining the full scope
of such duties in any particular situation, the provisions of this ARTICLE NINTH
are set forth to regulate, define and guide the conduct of certain affairs of
the Corporation as they may involve Digital and its officers and directors, and
the powers, rights, duties and liabilities of the Corporation of its officers,
directors and stockholders in connection therewith.
Section 2. Except as Digital may otherwise agree in writing,
(a) Digital shall not have a duty to refrain from
engaging directly or indirectly in the same or similar business
activities or lines of business as the Corporation, and
(b) neither Digital nor any officer of director thereof
shall be liable to the Corporation or its stockholders for breach of
any fiduciary duty by reason of any such activities of Digital or of
such person's participation therein.
In the event that Digital acquires knowledge of a potential transaction or
matter that may be a corporate opportunity for both Digital and the Corporation,
Digital (and its officers and directors) 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 or controlling person of a stockholder by reason
of the fact that Digital pursues or acquires such corporate opportunity for
itself, directs such corporate opportunity to another person or entity, or does
not communicate information regarding, or offer, such corporate opportunity to
the Corporation.
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Section 3. In the event that a director, officer or employee of the
Corporation who is also a director, officer or employee of Digital acquires
knowledge of a potential transaction or matter that may be a corporate
opportunity for the Corporation and Digital (whether such potential transaction
or matter is proposed by a third-party or is conceived of by such director,
officer or employee of the Corporation), such director, officer or employee
shall be entitled to offer such corporate opportunity to the Corporation or
Digital as such director, officer or employee deems appropriate under the
circumstances in his or her sole discretion, and no such director, officer or
employee shall be liable to the Corporation or its stockholders for breach of
any fiduciary duty or duty of loyalty or failure to act in (or not opposed to)
the best interests of the Corporation or the derivation of any improper personal
benefit by reason of the fact that (i) such director, officer or employee
offered such corporate opportunity to Digital (rather than the Corporation) or
did not communicate information regarding such corporate opportunity to the
Corporation or (ii) Digital pursues or acquires such corporate opportunity for
itself or directs such corporate opportunity to another person or does not
communicate information regarding such corporate opportunity to the Corporation.
Section 4. Any person or entity purchasing or otherwise acquiring any
interest in any shares of capital stock of the Corporation shall be deemed to
have notice of and to have consented to the provisions of this ARTICLE NINTH.
Section 5. For purposes of this ARTICLE NINTH and ARTICLE TENTH only,
(i) 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) fifty percent or more of
the outstanding voting stock, voting power or similar voting interests, and (ii)
the term "Digital" shall mean Digital and all corporations, partnerships, joint
ventures, associations and other entities (other than the Corporation, defined
in accordance with clause (i) of this Section 5) in which Digital beneficially
owns (directly or indirectly) fifty percent or more of the outstanding voting
stock, voting power or similar voting interests.
Section 6. Notwithstanding anything in this Amended and Restated
Certificate of Incorporation to the contrary, the foregoing provisions of this
ARTICLE NINTH shall expire on the date that Digital ceases to own beneficially
Common Stock representing at least 20% of the number of outstanding shares of
Common Stock of the Corporation and no person who is a director or officer of
the Corporation is also a director or officer of Digital. Neither the
alteration, amendment, change or repeal of any provision of this ARTICLE NINTH
nor the adoption of any provision of this Amended and Restated Certificate of
Incorporation inconsistent with any provision of this ARTICLE NINTH shall
eliminate or reduce the effect of this ARTICLE NINTH in respect of any matter
occurring, or any cause of action, suit or claim that, but for this ARTICLE
NINTH, would accrue or arise, prior to such alteration, amendment, repeal or
adoption.
Section 7. The provisions of this ARTICLE NINTH are in addition to the
provisions of ARTICLE TENTH.
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TENTH.
Section 1. No contract, agreement, arrangement or transaction (or any
amendment, modification or termination thereof) between the Corporation and
Digital or any Related Entity (as defined below) or between the Corporation and
one or more of the directors or officers of the Corporation, Digital or any
Related Entity, shall be void or voidable solely for the reason that Digital, a
Related Entity or any one or more of the officers or directors of the
Corporation, Digital or any Related Entity are parties thereto, or solely
because any such directors or officers are present at or participate in the
meeting of the Board of Directors or committee thereof which authorizes the
contract, agreement, arrangement, transaction, amendment, modification or
termination or solely because his or their votes are counted for such purpose,
but any such contract, agreement, arrangement or transaction (or any amendment,
modification or termination thereof) shall be governed by the provisions of this
Amended and Restated Certificate of Incorporation, the Corporation's Bylaws,
Delaware Law and other applicable law. For purposes of this ARTICLE TENTH, (i)
the term "Related Entities" means one or more corporations, partnerships, joint
ventures, associations or other organizations in which one or more of the
directors of the Corporation have a direct or indirect financial interest and
(ii) the terms the "Corporation" and "Digital" have the meanings set forth in
ARTICLE NINTH, Section 5.
Section 2. Directors of the Corporation who are also directors or
officers of Digital or of any Related Entity may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
that authorizes or approves any such contract, agreement, arrangement or
transaction (or amendment, modification or termination thereof). Outstanding
shares of Common Stock owned by Digital and any Related Entities may be counted
in determining the presence of a quorum at a meeting of stockholders that
authorizes or approves any such contract, agreement, arrangement or transaction
(or amendment, modification or termination thereof).
Section 3. Neither Digital nor any officer or director thereof or of
any Related Entity shall be liable to the Corporation or its stockholders for
breach of any fiduciary duty or duty of loyalty or failure to act in (or not
opposed to) the best interests of the Corporation or the derivation of any
improper personal benefit by reason of the fact that Digital or an officer of
director thereof or of such Related Entity in good faith takes any action or
exercises any rights or gives or withholds any consent in connection with any
agreement or contract between Digital or such Related Entity and the
Corporation. No vote cast or other action taken by any person who is an officer,
director or other representative of Digital or such Related Entity, which vote
is cast or action is taken by such person in his or her capacity as a director
of this Corporation, shall constitute an action of or the exercise of a right by
or a consent of Digital or such Related Entity for the purpose of any such
agreement or contract.
Section 4. Any person or entity purchasing or otherwise acquiring any
interest in any shares of capital stock of the Corporation shall be deemed to
have notice of and to have consented to the provisions of this ARTICLE TENTH.
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Section 5. For purposes of this ARTICLE TENTH, any contract, agreement,
arrangement or transaction with any corporation, partnership, joint venture,
association or other entity in which the Corporation beneficially owns (directly
or indirectly) fifty percent or more of the outstanding voting stock, voting
power or similar voting interests, or with any officer or director thereto,
shall be deemed to be a contract, agreement, arrangement or transaction with the
Corporation.
Section 6. Neither the alteration, amendment, change or repeal of any
provision of this ARTICLE TENTH nor the adoption of any provision inconsistent
with any provision of this ARTICLE TENTH shall eliminate or reduce the effect of
this ARTICLE TENTH in respect of any matter occurring, or any cause of action,
suit or claim that, but for this ARTICLE TENTH, would accrue or arise, prior to
such alteration, amendment, change, repeal or adoption.
Section 7. The provisions of this ARTICLE TENTH are in addition to the
provisions of ARTICLE NINTH.
IN WITNESS WHEREOF, this Amended and Restated Certificate of
Incorporation has been duly adopted by the written consent of the sole
stockholder of the Corporation in accordance with the provisions of Sections
228, 242 and 245 of the General Corporation Law of the State of Delaware, and
has been executed this ___ day of ______________, 1996.
ALTAVISTA INTERNET SOFTWARE, INC.
By:__________________________________
Name:
Title:
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