EXHIBIT 3.01.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
HOMESTORE.COM, INC.
(ORIGINALLY INCORPORATED ON JULY 29, 1993
UNDER THE NAME INFOTOUCH CORPORATION)
ARTICLE I
The name of the Corporation is Homestore.com, Inc.
ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is 15 East North Street, City of Dover, County of Kent. The name of its
registered agent at such address is United Corporate Services, Inc.
ARTICLE III
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.
ARTICLE IV
(a) The Corporation is authorized to issue two classes of shares
which shall be designated as Common Stock, $0.001 par value per share, and
Preferred Stock, $0.001 par value per share. The total number of shares that the
Corporation is authorized to issue is 500,000,000 shares of Common Stock and
10,000,000 shares of Preferred Stock.
(b) The shares of Preferred Stock may be issued from time to time in
one or more series. The Board of Directors of the Corporation (the "BOARD OF
DIRECTORS") is expressly authorized to provide for the issue of all or any of
the remaining shares of the Preferred Stock in one or more series, to determine
the designation of each such series, to fix the number of shares and to
determine or alter for each such series, such voting powers, full or limited, or
no voting powers, and such designations, preferences, and relative,
participating, optional, or other rights and such qualifications, limitations,
or restrictions thereof, as shall be stated and expressed in the resolutions or
resolutions adopted by the Board of Directors providing for the issue of such
shares and as may be
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permitted by the General Corporation Law of the State of Delaware. Except as
otherwise expressly provided in any certificate of designation designating any
series of Preferred Stock pursuant to the foregoing provisions of this Article
IV, any new series of Preferred Stock may be designated, fixed and determined as
provided herein by the Board of Directors without approval of the holders of
Common Stock or the holders of Preferred Stock, or any series thereof, and any
such new series may have powers, preferences and rights, including, without
limitation, voting rights, dividend rights, liquidation rights, redemption
rights and conversion rights, senior to, junior to or pari passu with the rights
of the Common Stock, the Preferred Stock, or any future class or series of
Preferred Stock or Common Stock. The Board of Directors is also expressly
authorized to increase or decrease (but not below the number of shares of such
series then outstanding) the number of shares of any series subsequent to the
issue of shares of that series. In case the number of shares of any such series
shall be so decreased, the shares constituting such decrease shall resume the
status that they had prior to the adoption of the resolution originally fixing
the number of shares of such series.
ARTICLE V
There is hereby designated a series of Preferred Stock, designated
as Series A Preferred Stock, $0.001 par value per share (the "SERIES A
PREFERRED"). The authorized number of shares of Series A Preferred is one (1)
share. The relative rights, preferences, privileges, and restrictions granted to
or imposed upon the Series A Preferred are as follows:
(a) Dividends. In each calendar year, the holder of the Series A
Preferred shall be entitled to receive, when, as and if declared by the Board,
out of any funds and assets of the Corporation legally available therefor,
non-cumulative dividends in an amount equal to $0.08 per share (as appropriately
adjusted for stock splits, stock dividends, recapitalizations and the like),
prior and in preference to the payment of any dividend on the Common Stock in
such calendar year. Dividends on the Series A Preferred shall not be mandatory
or cumulative, and no rights or interest shall accrue to the holder of the
Series A Preferred by reason of the fact that the Corporation shall fail to
declare or pay dividends on the Series A Preferred in any calendar or fiscal
year of the Corporation. If, after dividends in the full preferential amounts
specified in this Section for the Series A Preferred have been paid or declared
and set apart in any calendar year of the Corporation, the holder of Series A
Preferred shall have no further rights to receive any further dividends that the
Board may declare or pay in that calendar year.
(b) Liquidation. In the event of any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, the Series A
Preferred shall be entitled to receive, prior and in preference to any payment
or distribution on any shares of Common Stock, an amount per share equal to
$1.00 per share of Series A Preferred. After payment of such amount, any further
amounts available for distribution shall be distributed among the holders of
Common Stock and the holder of Preferred Stock other than Series A Preferred, if
any, entitled to receive such distributions.
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(c) Redemption. Upon the earlier to occur of (i) termination of that
certain Operating Agreement dated November 26, 1996, as the same may be amended
from time to time (the "OPERATING AGREEMENT"), or (ii) the National Association
of Realtors ("NAR") ceases to own at least 149,778 shares of Common Stock of the
Corporation, or (iii) the existence and continuance of a material breach by the
NAR of that certain Joint Ownership Agreement, dated as of November 26, 1996,
among the NAR, NetSelect and NetSelect, L.L.C., or the Trademark License dated
as of November 26, 1996, by and between NAR and RealSelect, at any time
thereafter the Corporation may, at the option of the Board, redeem the Series A
Preferred. The redemption price for each share of Series A Preferred shall be
$1.00 per share. If the Corporation elects to redeem the Series A Preferred, it
shall give written notice (the "REDEMPTION NOTICE") to the holder of the Series
A Preferred, at the address last shown on the records of the Corporation for
such holder, notifying the holder of the redemption to be effected, the
redemption date (which may be selected by the Corporation in its discretion),
and the place at which payment may be obtained, and calling upon such holder to
surrender to the Corporation, in the manner and at the place designated, the
certificate or certificates representing the shares to be redeemed. On or before
the designated redemption date, each holder of Series A Preferred to be redeemed
shall surrender the certificate(s) representing such shares to be redeemed to
the Corporation, in the manner and at the place designated in the Redemption
Notice, and thereupon the redemption price for such shares shall be payable to
the order of the person whose name appears on such certificate(s) as the owner
thereof, and each surrendered certificate shall be canceled and retired. If the
Redemption Notice shall have been duly given, and if on the Redemption Date the
redemption price is either paid or made available for payment, then
notwithstanding that the certificates evidencing any of the shares of Series A
Preferred so called for redemption shall not have been surrendered, all
dividends with respect to such shares shall cease to accrue after the redemption
date, such shares shall not thereafter be transferred on the Corporation's books
and the rights of all of the holders of such shares with respect to such shares
shall terminate after the redemption date, except only the right of the holder
to receive the redemption price without interest upon surrender of their
certificate(s) therefor.
(d) Voting. Except as provided in this paragraph, the Series A
Preferred shall not be entitled to notice of any stockholders' meetings and
shall not be entitled to vote on any matters with respect to any question upon
which holders of Common Stock or Preferred Stock have the right to vote, except
as may be required by law (and, in any such case, the Series A Preferred shall
have one vote per share and shall vote together with the Common Stock as a
single class). The holder of Series A Preferred shall be entitled to elect one
(1) director of the Corporation. If there shall be any vacancy in the office of
a director elected by the holder of the Series A Preferred, then a director to
hold office for the unexpired term of such directorship may be elected by the
vote or written consent of the holder of the Series A Preferred. Subject to
Section 141(k) of the Delaware General Corporation Law, any director who shall
have been elected to the Board by the holders of Series A Preferred, or by any
directors elected by holders of the Series A Preferred as provided above, may be
removed during his or her term of office only for cause by, and only by, the
affirmative vote of shares representing a majority of the voting power of the
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outstanding shares of Series A Preferred. The provisions of this Article may not
be amended without the approval of the holder of the Series A Preferred.
(e) Automatic Conversion. Each share of Series A Preferred Stock
shall automatically be converted into one fully paid and nonassessable share of
Common Stock upon any sale, transfer, pledge, or other disposition of the share
of Series A Preferred to any person or entity other than the initial holder of
such share of Series A Preferred, or any successor by operation of law that
functions as a non-profit trade association for Realtors under Section 501(c)(6)
of Internal Revenue Code of 1986, as amended, that owns the REALTOR trademark,
or any wholly-owned affiliate of such holder as long as the holder continues to
own such affiliate.
ARTICLE VI
For the management of the business and for the conduct of the
affairs of the Corporation, and in further definition, limitation and regulation
of the powers of the Corporation, of its directors and of its stockholders or
any class thereof, as the case may be, it is further provided that:
(a) The conduct of the affairs of the Corporation shall be managed
under the direction of its Board of Directors. The number of directors shall be
fixed from time to time exclusively by resolution of the Board of Directors;
effective on the date that this Restated Certificate is filed with the Delaware
Secretary of State, and subject to the preceding provisions of this sentence,
the initial number of directors shall be eight (8).
(b) Notwithstanding the other provisions of this Article VI, each
director shall hold office until such director's successor is elected and
qualified, or until such director's earlier death, resignation or removal. No
decrease in the authorized number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
(c) Subject to the rights of the holders of any series of Preferred
Stock, any vacancy occurring in the Board of Directors for any cause, and any
newly created directorship resulting from any increase in the authorized number
of directors, shall, unless (i) the Board of Directors determines by resolution
that any such vacancies or newly created directorships shall be filled by the
stockholders, or (ii) as otherwise provided by law, be filled only by the
affirmative vote of a majority of the directors then in office, although less
than a quorum, or by a sole remaining director, and not by the stockholders. Any
director elected in accordance with the preceding sentence shall hold office for
the remainder of the full term of the director for which the vacancy was created
or occurred.
(d) Subject to the rights of the holders of any series of Preferred
Stock, a director may be removed only for cause by, and only by, the holders of
a majority of the shares then entitled to vote at an election of directors.
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(e) Subject to the rights of the holders of any series of Preferred
Stock to elect additional directors under specified circumstances, the directors
shall be divided, with respect to the time for which they severally hold office,
into three classes designated as Class I, Class II and Class III, respectively.
Directors shall be assigned to each class in accordance with a resolution or
resolutions adopted by the Board of Directors, with the number of directors in
each class to be divided as equally as reasonably possible. The term of office
of the Class I directors shall expire at the Corporation's first annual meeting
of stockholders following the closing of the Corporation's initial public
offering pursuant to an effective registration statement under the Securities
Act of 1933, as amended, covering the offer and sale of Common Stock to the
public (the "INITIAL PUBLIC OFFERING"), the term of office of the Class II
directors shall expire at the Corporation's second annual meeting of
stockholders following the closing of the Initial Public Offering, and the term
of office of the Class III directors shall expire at the Corporation's third
annual meeting of stockholders following the closing of the Initial Public
Offering. At each annual meeting of stockholders commencing with the first
annual meeting of stockholders following the closing of the Initial Public
Offering, directors elected to succeed those directors of the class 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.
(f) Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
(g) No action shall be taken by the stockholders of the Corporation
except at an annual or special meeting of stockholders called in accordance with
the Bylaws of the Corporation, and no action shall be taken by the stockholders
by written consent.
(h) Advance notice of stockholder nominations for the election of
directors of the Corporation and of business to be brought by stockholders
before any meeting of stockholders of the Corporation shall be given in the
manner provided in the Bylaws of the Corporation. Business transacted at special
meetings of stockholders shall be confined to the purpose or purposes stated in
the notice of meeting.
ARTICLE VII
The Board of Directors of the Corporation is authorized and
empowered from time to time in its discretion to make, alter, amend or repeal
Bylaws of the Corporation.
ARTICLE VIII
The Corporation shall, to the fullest extent permitted by the
provisions of Section 145 of the General Corporation Law of the State of
Delaware, as the same may be amended and supplemented, indemnify any and all
persons whom it shall have power to indemnify under said section from and
against any and all expenses, liabilities, or other matters referred to in or
covered by said section, and the indemnification provided for herein shall not
be deemed exclusive of any other rights to which those indemnified may be
entitled under any Bylaw, agreement, vote of stockholders or disinterested
directors or
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otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of the heirs, executors, and administrators of such person.
ARTICLE IX
To the fullest extent permitted by law, no director of the
Corporation shall be personally liable for monetary damages for breach of
fiduciary duty as a director. Without limiting the effect of the preceding
sentence, if the Delaware General Corporation Law is hereafter amended to
authorize the further elimination or limitation of the liability of a director,
then the liability of a director of the corporation shall be eliminated or
limited to the fullest extent permitted by the Delaware General Corporation Law,
as so amended. Neither any amendment nor repeal of this Article VIII, nor the
adoption of any provision of this Certificate of Incorporation inconsistent with
this Article VIII, shall eliminate, reduce or otherwise adversely affect any
limitation on the personal liability of a director of the Corporation existing
at the time of such amendment, repeal or adoption of such an inconsistent
provision.
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