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EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
PRICELINE.COM INCORPORATED
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Pursuant to Sections 228, 242 and 245 of
the Delaware General Corporation Law
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Priceline.com Incorporated, a corporation organized and existing under
the laws of the State of Delaware (the "Corporation"), hereby certifies as
follows:
(1) The name of the Corporation is priceline.com Incorporated.
(2) The date of filing of the Corporation's original
certificate of incorporation with the Secretary of State is July 30,
1998.
(3) This Amended and Restated Certificate of Incorporation was
duly adopted by the Board of Directors of the Corporation and adopted
by the holders of a majority of the issued and outstanding shares of
capital stock of the Corporation, in accordance with Sections 228,242
and 245 of the Delaware General Corporation Law.
(4) The Corporation's Certificate of Incorporation, as
heretofore amended, is hereby restated, integrated and amended to read
in its entirety as follows:
FIRST: The name of the Corporation is priceline.com Incorporated
(hereinafter, the "Corporation").
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1013 Centre Road, in the City of Wilmington, County of New
Castle. The name of the Corporation's registered agent at that address is
Corporation Service Company.
FOURTH: The total number of shares of stock which the Corporation
shall have authority to issue is 1,000,000,000 shares of common stock, each
having a par value of one penny ($0.008), and 150,000,000 shares of preferred
stock, each having a par value of one penny ($0.01).
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The Board of Directors of the Corporation is expressly authorized to
provide for the issuance of all or any shares of the preferred stock in one or
more classes or series, and to fix for each such class or series such voting
powers, full or limited, or no voting powers, and such distinctive 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 adopted by the Board of Directors of
the Corporation providing for the issuance of such class or series and as may be
permitted by the DGCL, including, without limitation, the authority to provide
that any such class or series may be (i) subject to redemption at such time or
times and at such price or prices; (ii) entitled to receive dividends (which may
be cumulative or non-cumulative) at such rates, on such conditions, and at such
times, and payable in preference to, or in such relation to, the dividends
payable on any other class or classes or any other series; (iii) entitled to
such rights upon the dissolution of, or upon any distribution of the assets of,
the Corporation; (iv) convertible into, or exchangeable for, shares of any other
class or classes of stock of the Corporation at such price or prices or at such
rates of exchange and with such adjustments; and/or (v) entitled to voting
rights, including extraordinary or limited voting rights; all as may be stated
in such resolution or resolutions.
FIFTH: The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
(1) The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors of the
Corporation.
(2) The directors of the Corporation shall have concurrent
power with the stockholders of the Corporation to make, alter, amend,
change, add to or repeal the By-Laws of the Corporation.
(3) The number of directors of the Corporation shall be as from
time to time fixed by, or in the manner provided in, the By-Laws of the
Corporation. Election of directors of the Corporation need not be by
written ballot unless the By-Laws of the Corporation so provide.
(4) No director of the Corporation shall be personally liable
to the Corporation or any of 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 a knowing violation of law, (iii)
pursuant to Section 174 of the DGCL or (iv) for any transaction from
which the director derived an improper personal benefit. Any repeal or
modification of this Article FIFTH shall not adversely affect any right
or protection of a director of the Corporation existing at the time of
such repeal or
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modification with respect to acts or omissions occurring prior to such
repeal or modification.
(5) In addition to the powers and authority hereinbefore or by
statute expressly conferred upon them, the directors of the Corporation
are hereby empowered to exercise all such powers and do all such acts
and things as may be exercised or done by the Corporation, subject,
nevertheless, to the provisions of the DGCL, this Amended and Restated
Certificate of Incorporation, and any By-Laws adopted by the
stockholders of the Corporation; provided, however, that no By-Laws
hereafter adopted by the stockholders shall invalidate any prior act of
the directors of the Corporation which would have been valid if such
By-Laws had not been adopted.
(6) Any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly called
annual or special meeting of the stockholders of the Corporation, and
the stockholders of the Corporation may not act by written consent.
(7) Unless otherwise required by law, special meetings of the
stockholders of the Corporation, for any purpose or purposes, may be
called by either (i) the Chairman of the Board of Directors of the
Corporation, if there be one, (ii) the Vice Chairman of the Board of
Directors of the Corporation, if there be one, (iii) the Chief
Executive Officer of the Corporation or (iv) the Board of Directors of
the Corporation, and the stockholders of the Corporation may not call a
special meeting of the stockholders of the Corporation.
SIXTH: Meetings of the stockholders of the Corporation may be held
within or without the State of Delaware, as the By-Laws of the Corporation may
provide. The books of the Corporation may be kept (subject to any provision
contained in the DGCL) outside the State of Delaware at such place or places as
may be designated from time to time by the Board of Directors of the Corporation
or in the By-Laws of the Corporation.
SEVENTH: The Corporation shall indemnify its directors and officers to
the fullest extent authorized or permitted by law, as now or hereafter in
effect, and such right to indemnification shall continue as to a person who has
ceased to be a director or officer of the Corporation and shall inure to the
benefit of his or her heirs, executors and personal and legal representatives;
PROVIDED, HOWEVER, that, except for proceedings to enforce rights to
indemnification, the Corporation shall not be obligated to indemnify any
director or officer (or his or her heirs, executors or personal or legal
representatives) in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented
to by the Board of Directors of the Corporation. The right to indemnification
conferred by this Article SEVENTH shall include the right to be paid by the
Corporation the expenses incurred in defending or otherwise participating in any
proceeding in advance of its final disposition.
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The Corporation may, to the extent authorized from time to time by the
Board of Directors of the Corporation, provide rights to indemnification and to
the advancement of expenses to employees and agents of the Corporation similar
to those conferred in this Article SEVENTH to directors and officers of the
Corporation.
The rights to indemnification and to the advancement of expenses
conferred in this Article SEVENTH shall not be exclusive of any other right
which any person may have or hereafter acquire under this Amended and Restated
Certificate of Incorporation, the By-Laws of the Corporation, any statute,
agreement, vote of the stockholders of the Corporation or disinterested
directors of the Corporation or otherwise.
Any repeal or modification of this Article SEVENTH shall not adversely
affect any rights to indemnification and to the advancement of expenses of a
director or officer of the Corporation existing at the time of such repeal or
modification with respect to any acts or omissions occurring prior to such
repeal or modification.
EIGHTH: 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 stockholders of the Corporation herein are granted subject
to this reservation.
IN WITNESS WHEREOF, the Corporation has caused this Amended and
Restated Certificate of Incorporation to be signed by the Secretary of the
Corporation this 31st day of March, 1999.
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/s/ Melissa M. Taub
Secretary
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