1
EXHIBIT 3.2
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
EGROUPS, INC.
The undersigned, Michael Klein and Margaret Nibbi, certify that:
1. They are the duly elected President and Secretary, respectively, of
eGroups, Inc., a Delaware corporation.
2. The corporation was originally incorporated in Delaware, and the
original certificate of incorporation (the "Original Certificate") was filed
with the Secretary of State of Delaware on June 5, 1998.
3. Pursuant to Sections 228, 242 and 245 of the Delaware General
Corporation Law, this Amended and Restated Certificate of Incorporation amends
and restates the provisions of the Original Certificate.
4. The Certificate of Incorporation of this corporation is hereby
amended and restated to read in full as follows:
ARTICLE I
The name of this corporation is "eGroups, Inc."
ARTICLE II
The address of the corporation's registered office in the State of
Delaware is 15 East North Street, in the city of Dover, county of Kent, 19909.
The name of its registered agent at such address is Incorporating Services, Ltd.
ARTICLE III
The purpose of the corporation is to engage in any lawful act or
activity for which a corporation may be organized under the Delaware General
Corporation Law.
ARTICLE IV
A. CLASSES OF STOCK
The corporation is authorized to issue two classes of stock, to be
designated as "Preferred Stock," $0.001 par value, and "Common Stock," $0.001
par value, respectively. The total number of shares that the corporation is
authorized to issue is 160,000,000 shares. The number of shares of Preferred
Stock authorized is 10,000,000 shares, and the number of shares of Common Stock
authorized is 150,000,000 shares.
2
B. RIGHTS AND RESTRICTIONS OF COMMON STOCK
(a) The Common Stock is not redeemable.
(b) The holder of each share of Common Stock shall have the right to one
vote and shall be entitled to notice of any stockholders' meeting in accordance
with the Amended and Restated Bylaws of the corporation, and shall be entitled
to vote upon such matters and in such manner as provided by law.
C. RIGHTS, PREFERENCES AND RESTRICTIONS OF PREFERRED STOCK
The Preferred Stock may be issued from time to time in one or more
series pursuant to a resolution or resolutions providing for such issue duly
adopted by the corporation's Board of Directors (authority to do so being hereby
expressly vested in the Board of Directors). The Board of Directors is further
authorized to determine or alter the rights, preferences, privileges and
restrictions granted to or imposed upon any wholly unissued series of Preferred
Stock and the designation of any such series of Preferred Stock. The Board of
Directors, within the limits and restrictions stated in any resolution or
resolutions of the Board of Directors originally fixing the number of shares
constituting any series, may increase or decrease (but not below the number of
shares in any such series then outstanding) the number of shares of any series
subsequent to the issue of shares of that series.
D. AUTHORITY OF BOARD OF DIRECTORS WITH RESPECT TO STOCK MATTERS
The authority of the Board of Directors with respect to each class or
series of stock shall include, without limitation of the foregoing, the right to
determine and fix:
(a) the distinctive designation of such class or series and the number
of shares to constitute such class or series;
(b) the rate at which dividends on the shares of such class or series
shall be declared and paid, or set aside for payment, whether dividends at the
rate so determined shall be cumulative or accruing, and whether the shares of
such class or series shall be entitled to any participating or other dividends
in addition to dividends at the rate so determined, and if so, on what terms;
(c) the right or obligation, if any, of the corporation to redeem shares
of the particular class or series of Preferred Stock and, if redeemable, the
price, terms and manner of such redemption;
(d) the special and relative rights and preferences, if any, and the
amount or amounts per share, which the shares of any such class or series of
Preferred Stock shall be entitled to receive upon any voluntary or involuntary
liquidation, dissolution or winding up of the corporation;
-2-
3
(e) the terms and conditions, if any, upon which shares of such class or
series shall be convertible or not, or exchangeable for, shares of capital stock
of any other class or series, including the price or prices or the rate or rates
of conversion or exchange and the terms of adjustment, if any;
(f) the obligation, if any, of the corporation to retire, redeem or
purchase shares of such class or series pursuant to a sinking fund or fund of a
similar nature or otherwise, and the terms and conditions of such obligation;
(g) voting rights, if any, on the issuance of additional shares of such
class or series or any shares of any other class or series of Preferred Stock;
(h) limitations, if any, on the issuance of additional shares of such
class or series or any shares of any other class or series of Preferred Stock;
and
(i) such other preferences, powers, qualifications, special or relative
rights and privileges thereof as the Board of Directors of the corporation,
acting in accordance with this Amended and Restated Certificate of
Incorporation, may deem advisable and are not inconsistent with law and the
provisions of this Amended and Restated Certificate of Incorporation.
ARTICLE V
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
upon the stockholders herein are granted subject to this right.
ARTICLE VI
The corporation is to have perpertual existence.
ARTICLE VII
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to make, alter, amend or repeal
the Bylaws of the corporation.
ARTICLE VIII
1. Limitation on Directors' Liability. To the fullest extent permitted
by the Delaware General Corporation Law as the same exists or as may hereafter
be amended, 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.
-3-
4
2. Indemnification. The corporation may indemnify to the fullest extent
permitted by law any person made or threatened to be made a party to an action
or proceeding, whether criminal, civil, administrative or investigative, by
reason of the fact that such person or his or her testator or intestate is or
was a director, officer or employee of the corporation, or any predecessor of
the corporation, or serves or served at any other enterprise as a director,
officer or employee at the request of the corporation or any predecessor to the
corporation.
3. Amendments. Neither any amendment nor repeal of this Article VIII.
nor the adoption of any provision of the corporation's Amended and Restated
Certificate of Incorporation inconsistent with this Article VIII, shall
eliminate or reduce the effect of this Article VIII in respect of any matter
occurring, or any action or proceeding accruing or arising or that, but for this
Article VIII, would accrue or arise, prior to such amendment, repeal, or
adoption of an inconsistent position.
ARTICLE IX
In the event any shares of Preferred Stock shall be redeemed or
converted, the shares so converted or redeemed shall not revert to the status of
authorized but unissued shares, but instead shall be canceled and shall not be
re-issuable by the corporation.
ARTICLE X
Holders of stock of any class or series of the corporation shall not be
entitled to cumulate their votes for the election of directors or any other
matter submitted to a vote of the stockholders, unless such cumulative voting is
required pursuant to the Delaware General Corporation Law, in which event each
such holder shall be entitled to as many votes as shall equal the number of
votes which (except for this provision as to cumulative voting) such holder
would be entitled to cast for the election of directors with respect to such
holder's shares of stock multiplied by the number of directors to be elected by
such holder, and the holder may cast all of such votes for a single director or
may distribute them among the number of directors to be voted for, or for any
two or more of them as such holder may see fit, so long as the name of the
candidate for director shall have been placed in nomination prior to the voting
and the stockholder, or any other holder of the same class or series of stock,
has given notice at the meeting prior to the voting of the intention to cumulate
votes.
1. Number of Directors. The number of directors which constitutes the
whole Board of Directors of the corporation shall be designated in the Amended
and Restated Bylaws of the corporation. Each director shall serve until the next
annual meeting of the stockholders or until his successor is duly elected.
2. Election of Directors. Elections of directors need not be by written
ballot unless the Amended and Restated Bylaws of the corporation shall so
provide.
ARTICLE XI
-4-
5
No action shall be taken by the stockholders of the corporation except
at an annual or special meeting of the stockholders called in accordance with
the Amended and Restated Bylaws and no action shall be taken by the stockholders
by written consent. The affirmative vote of sixty-six and two-thirds percent (66
2/3%) of the then outstanding voting securities of the corporation, voting
together as a single class, shall be required for the amendment, repeal or
modification of the provisions of Article X or Article XI of this Amended and
Restated Certificate of Incorporation.
ARTICLE XII
Any meeting of stockholders may be held within or without the State of
Delaware, as the Amended and Restated Bylaws may provide. The books of the
corporation may be kept (subject to any provision contained in the statutes)
outside of 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 Amended and Restated
Bylaws of the corporation.
-5-
6
We further declare under penalty of perjury under the laws of the State
of Delaware that the matters set forth in this certificate are true and correct
of our own knowledge.
Executed at San Francisco, California this ______ day of __________,
2000.
-----------------------------------
Michael B. Klein
Chief Executive Officer
-----------------------------------
Margaret E. Nibbi
Secretary