Certificate of Incorporation - Amazon.com Inc.
RESTATED CERTIFICATE OF INCORPORATION
OF
AMAZON.COM, INC.
Amazon.com, Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware, does hereby certify:
1. The original Certificate of Incorporation was filed with the
Secretary of State on May 28, 1996.
2. The following Restated Certificate of Incorporation was duly
adopted by the corporation's Board of Directors in accordance with the
provisions of Section 245 of the General Corporation Law of the State of
Delaware and only restates and integrates and does not further amend the
provisions of the corporation's Certificate of Incorporation as heretofore
amended and supplemented, and there is no discrepancy between those provisions
and the following:
ARTICLE 1. NAME
The name of this corporation is Amazon.com, Inc.
ARTICLE 2. REGISTERED OFFICE AND AGENT
The address of the initial registered office of this corporation is
1013 Centre Road, Wilmington, County of New Castle, State of Delaware 19805,
and the name of its initial registered agent at such address is Corporation
Service Company.
ARTICLE 3. PURPOSES
The purpose of this corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
ARTICLE 4. SHARES
The total authorized stock of this corporation shall consist of
25,000,000 shares of common stock having a par value of $.01 per share and
5,000,000 shares of preferred stock having a par value of $.01 per share.
Authority is hereby expressly granted to the Board of Directors to fix by
resolution or resolutions any of the designations and the powers, preferences
and rights, and the qualifications, limitations or restrictions which are
permitted by Delaware General Corporation Law in respect of any class or
classes of stock or any series of any class of stock of the corporation. This
corporation shall from time to time in accordance with the laws of the State of
Delaware increase the authorized amount of its Common Stock if at any time the
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number of shares of Common Stock remaining unissued and available for issuance
shall not be sufficient to permit the conversion of the Preferred Stock.
The Preferred Stock shall be divided into series, and 569,396 shares
of Preferred Stock are designated Series A Preferred Stock ("Series A Preferred
Stock"). The Series A Preferred Stock shall have the rights, preferences and
other terms as are set forth in this Article 4.
4.1. Dividends.
(a) The holders of the Series A Preferred Stock shall be
entitled to receive dividends, prior and in preference to any dividend on
Common Stock, at the rate of $1.00 per share of Series A Preferred Stock, per
annum (as adjusted for any stock dividends, combinations or splits with respect
to such shares), whenever funds are legally available and when and if declared
by the Board of Directors. The dividends shall be non-cumulative and
non-accruing.
(b) No dividends (other than those payable solely in
Common Stock) shall be paid on any Common Stock of the Corporation during any
fiscal year of the Corporation until dividends in the total amount set forth
above per share of Series A Preferred Stock per annum (as adjusted for any
stock dividends, combinations or splits with respect to such shares) shall have
been paid or declared and set apart during that fiscal year on the Series A
Preferred Stock, and no dividends shall be paid on any share of Common Stock
unless a dividend (including, for this purpose the amount of any dividends paid
pursuant to the provisions of Subsection 4.1(a)) is paid with respect to all
outstanding shares of Series A Preferred Stock in an amount for each such share
of Series A Preferred Stock equal to or greater than the aggregate amount of
such dividends for all shares of Common Stock into which each such share of
Series A Preferred Stock could then be converted.
4.2. Liquidation Preference.
(a) In the event of any liquidation, dissolution or
winding up of the Corporation, either voluntary or involuntary, the holders of
the Series A Preferred Stock shall be entitled to receive, prior and in
preference to any distribution of any of the assets or surplus funds of the
Corporation to the holders of Common Stock by reason of their ownership
thereof, the amount of $14.05 per share then held by them (as adjusted for any
stock dividends, combinations or splits with respect to such shares) plus all
declared but unpaid dividends on each such share. If, upon the occurrence of
such event, the assets and funds thus distributed among the holders of the
Series A Preferred Stock shall be insufficient to permit the payment to such
holders and the holders of any other class or series of preferred stock ranking
on a parity with or senior to the Series A Preferred Stock of the full
preferential amounts
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due to such holders, then the entire assets and funds of the Corporation
legally available for distribution shall be distributed ratably among the
holders of the Series A Preferred Stock and the holders of any other such class
or series of preferred stock in proportion to the preferential amount each such
holder is otherwise entitled to receive.
(b) After payment has been made to the holders of the
Series A Preferred Stock and the holders of any other class or series of
preferred stock of the full amounts to which they shall be entitled as provided
in Section 4.2(a), the entire remaining assets and funds of the Corporation
legally available for distribution, if any, shall be distributed among the
holders of Common Stock in proportion to the shares of Common Stock then held
by each.
(c) A consolidation or merger of the Corporation with or
into any other corporation or corporations, or a sale of all or substantially
all of the assets of the Corporation, shall not be deemed to be a liquidation,
dissolution or winding up within the meaning of this Section 4.2, but shall be
subject to the provisions of Section 4.5 hereof.
4.3. Voting Rights.
Except with respect to the election of directors of the
Corporation, the holder of each share of Series A Preferred Stock shall be
entitled to the number of votes equal to the number of shares of Common Stock
into which such share of Series A Preferred Stock could be converted and shall
have voting rights and powers equal to the voting rights and powers of the
Common Stock (except as otherwise expressly provided herein or as required by
law), voting together as a single class, and shall be entitled to notice of any
stockholders' meeting in accordance with the By-laws of the Corporation.
Fractional votes shall not, however, be permitted and any fractional voting
rights resulting from the above formula (after aggregating all shares into
which shares of Series A Preferred Stock held by each holder could be
converted) shall be rounded to the nearest whole number (with one-half being
rounded upward).
4.4. Conversion Rights. The holders of the Series A Preferred Stock
shall have the conversion rights as follows:
(a) Right to Convert: Each share of the Series A
Preferred Stock shall be convertible, at the option of the holder thereof, at
any time after the date of issuance of such share, at the office of the
Corporation or any transfer agent for such shares, into one fully paid and
nonassessable share of Common Stock (the "Series A Conversion Rate"), subject
to adjustment as hereinafter provided.
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(b) Automatic Conversion.
1. Initial Public Offering. Each share of
Series A Preferred Stock shall automatically be converted into shares of Common
Stock at the then-effective Series A Conversion Rate immediately upon the
closing of the sale of the Corporation's Common Stock in a firm commitment,
underwritten public offering registered under the Securities Act of 1933, as
amended (other than a registration relating solely to a transaction under Rule
145 under such Act (or any successor thereto) or to an employee benefit plan of
the Corporation), (i) at a public offering price (prior to underwriter
commissions and expenses) equal to or exceeding $20.00 per share of Common
Stock (as adjusted for any stock dividends, combinations or splits with respect
to such shares), and (ii) the aggregate proceeds to the Corporation (before
deduction for underwriter commissions and expenses relating to the issuance,
including without limitation fees of the Corporation's counsel) of which equal
or exceed $7,500,000.
2. Stockholder Vote. Each share of Series A
Preferred Stock shall automatically be converted into shares of Common Stock at
the then-effective Series A Conversion Rate upon the affirmative vote or
written consent of holders of not less than two-thirds of the shares of Series
A Preferred Stock outstanding at such time.
(c) Mechanics of Conversion. Before any holder of Series
A Preferred Stock shall be entitled to convert the same into shares of Common
Stock, such holder shall surrender the certificate or certificates therefor,
duly endorsed, at the office of the Corporation or of any transfer agent for
such stock, and shall give written notice to the Corporation at such office
that such holder elects to convert the same and shall state therein the name or
names in which such holder wishes the certificate or certificates for shares of
Common Stock to be issued. The Corporation shall, as soon as practicable
thereafter, issue and deliver at such office to such holder of Series A
Preferred Stock, a certificate or certificates for the number of shares of
Common Stock to which such holder shall be entitled as aforesaid. Such
conversion shall be deemed to have been made immediately prior to the close of
business on the date of surrender of the shares of Series A Preferred Stock to
be converted, and the person or persons entitled to receive the shares of
Common Stock issuable upon such conversion shall be treated for all purposes as
the record holder or holders of such shares of Common Stock on such date.
(d) Adjustments to Conversion Prices for Combinations or
Subdivisions of Common Stock. In the event that this Corporation at any time
or from time to time after the date of filing of this Restated Certificate of
Incorporation shall declare or pay any dividend on the Common Stock payable in
Common Stock or in any right to acquire Common Stock, or shall effect a
subdivision of the outstanding
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shares of Common Stock into a greater number of shares of Common Stock (by
stock split, reclassification or otherwise than by payment of a dividend in
Common Stock or in any right to acquire Common Stock), or in the event the
outstanding shares of Common Stock shall be combined or consolidated, by
reclassification or otherwise, into a lesser number of shares of Common Stock,
then the Series A Conversion Rate in effect immediately prior to such event
shall, concurrently with the effectiveness of such event, be proportionately
and equitably decreased or increased, as appropriate.
(e) No Impairment. The Corporation will not, by
amendment of its Certificate of Incorporation or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed hereunder by the
Corporation.
(f) Certificates as to Adjustments. Upon the occurrence
of each adjustment or readjustment of the Series A Conversion Rate pursuant to
this Section 4.4, the Corporation at its expense shall promptly compute such
adjustment or readjustment in accordance with the terms hereof and prepare and
furnish to each holder of Series A Preferred Stock, as the case may be, a
certificate setting forth such adjustment or readjustment and showing in detail
the facts upon which such adjustment or readjustment is based. The Corporation
shall, upon the written request at any time of any holder of Series A Preferred
Stock, furnish or cause to be furnished to such holder a like certificate
setting forth (i) such adjustments and readjustments, (ii) the applicable
Series A Conversion Rate at the time in effect, and (iii) the number of shares
of Common Stock and the amount, if any, of other property which at the time
would be received upon the conversion of such Series A Preferred Stock.
(g) Reservation of Stock Issuable Upon Conversion. The
Corporation shall at all times reserve and keep available out of its authorized
but unissued shares of Common Stock, solely for the purpose of effecting the
conversion of the shares of the Series A Preferred Stock, such number of its
shares of Common Stock as shall from time to time be sufficient to effect the
conversion of all outstanding shares of the Series A Preferred Stock; and if at
any time the number of authorized but unissued shares of Common Stock shall not
be sufficient to effect the conversion of all then outstanding shares of the
Series A Preferred Stock, the Corporation will take such corporate action as
may, in the opinion of its counsel, be necessary to increase its authorized but
unissued shares of Common Stock to such number of shares as shall be sufficient
for such purpose, including, without limitation, engaging in best efforts to
obtain the requisite stockholder approval of any necessary amendment to this
Restated Certificate of Incorporation.
(h) Fractional Shares. No fractional shares shall be
issued upon the conversion of any share or shares of Series A Preferred Stock.
All shares of Common
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Stock (including fractions thereof) issuable upon conversion of more than one
share of Series A Preferred Stock by a holder thereof shall be aggregated for
purposes of determining whether the conversion would result in the issuance of
any fractional share. If, after the aforementioned aggregation, the conversion
would result in the issuance of a fraction of a share of Common Stock, the
Corporation shall, in lieu of issuing any fractional share, pay the holder
otherwise entitled to such fraction a sum in cash equal to the fair market
value of such fraction on the date of conversion (as determined in good faith
by the Board of Directors of the Corporation).
(i) Adjustments. Except under the circumstances set
forth in Section 4.5 below (in which case this subsection (i) shall not apply),
in case of any reorganization or any reclassification of the capital stock of
the Corporation, any consolidation or merger of the Corporation with or into
another corporation or corporations, or the conveyance of all or substantially
all of the assets of the Corporation to another corporation, each share of
Series A Preferred Stock shall thereafter be convertible into the number of
shares of stock or other securities or property (including cash) to which a
holder of the number of shares of Common Stock deliverable upon conversion of
such share of Series A Preferred Stock would have been entitled upon the record
date of (or date of, if no record date is fixed) such reorganization,
reclassification, consolidation, merger or conveyance, and, in any case,
appropriate adjustment (as determined by the Board of Directors) shall be made
in the application of the provisions herein set forth with respect to the
rights and interests thereafter of the holders of the Series A Preferred Stock,
to the end that the provisions set forth herein shall thereafter be applicable,
as nearly as equivalent as is practicable, in relation to any shares of stock
or the securities or property (including cash) thereafter deliverable upon the
conversion of the shares of such Series A Preferred Stock.
4.5. Merger, Consolidation.
(a) At any time, in the event of:
1. a consolidation or merger of the Corporation
with or into any other corporation, or any other entity or person in which the
stockholders of the Corporation hold in the aggregate less than one-half of the
outstanding voting securities of the surviving entity after the merger,
2. any corporate reorganization in which the
stockholders of the Corporation hold in the aggregate less than one-half of the
outstanding voting securities of the surviving entity after the merger,
3. a sale of all or substantially all of the
assets of the Corporation, or
<PAGE> 7
4. a reorganization of the Corporation as
defined in Section 368(a)(1)(B) of the Internal Revenue Code of 1986 or in
which more than fifty percent (50%) of the outstanding stock of the Corporation
is exchanged (calculated on an as-converted to Common Stock basis), the holders
of the Series A Preferred Stock, the holders of any other class or series of
preferred stock hereafter created and issued and the holders of Common Stock
shall be paid in cash or in securities received from the acquiring corporation
or in a combination thereof, at the closing of any such transaction, amounts
per share equal to the amounts per share which would be payable to such holders
pursuant to Section 4.2 if all consideration received by the Corporation and
its stockholders in connection with such event were being available distributed
in a liquidation of the Corporation; provided, however, that if upon the
occurrence of such event, the assets and funds thus available for distribution
among the holders of the Series A Preferred Stock and the holders of any other
class or series of preferred stock ranking on a parity with or senior to the
Series A Preferred Stock shall be insufficient to permit the payment to such
holders of the full preferential amounts due to them pursuant to Section 4.2
above, then the entire assets and funds of the Corporation legally available
for distribution shall be distributed ratably among the holders of the Series A
Preferred Stock and the holders of any other such class or series of preferred
stock in proportion to the preferential amount each such holder is otherwise
entitled to receive.
(b) Any securities to be delivered to stockholders
pursuant to Section 4.5(a) above shall be valued as follows:
(i) Securities not subject to investment letter
or other similar restrictions on free marketability:
1. If traded on a securities exchange,
the value shall be deemed to be the average of the security's closing prices on
such exchange over the 30-day period ending three (3) days prior to the
closing;
2. If actively traded over-the-counter,
the value shall be deemed to be the average of the midpoints of the closing bid
and ask prices over the 30-day period ending three (3) days prior to the
closing, and
3. If there is no active public market,
the value shall be the fair market value thereof, as mutually determined by the
Corporation and the holders of not less than a majority of the outstanding
Series A Preferred Stock; and
(ii) The method of valuation of securities subject
to investment letter or other restrictions on free marketability shall be to
make an appropriate discount from the market value determined as above in
(i)(1), (2) or (3) to reflect the approximate fair market value thereof, as
mutually determined by the
<PAGE> 8
Corporation and the holders of not less than a majority of the outstanding
Series A Preferred Stock.
(iii) In the event of any dispute between the
Corporation and the holders of Series A Preferred Stock regarding valuation
issues as provided in this Section 4.5(b), such dispute shall be submitted to
binding arbitration in accordance with the currently prevailing commercial
arbitration rules of the American Arbitration Association. The decisions and
awards rendered in such proceedings shall be final and conclusive and may be
entered in any court having jurisdiction thereof.
(c) The Corporation shall give each holder of record of
Series A Preferred Stock written notice of such impending transaction not later
than fifteen (15) days prior to the stockholders' meeting called to approve
such transaction or twenty fifteen (15) days prior to the closing of such
transaction, whichever is earlier, and shall also notify such holders in
writing of the final approval of such transaction. The first of said notices
shall describe the material terms and conditions of the contemplated
transaction as well as the terms and conditions of this Section 4.5, and the
Corporation shall thereafter give such holders prompt notice of any material
changes.
4.6. Amendment. Any term relating to the Series A Preferred Stock
may be amended and the observance of any term relating to the Series A
Preferred Stock may be waived (either generally or in a particular instance and
either retroactively or prospectively) only with the vote or written consent of
holders of at least a majority of the shares of the Series A Preferred Stock
then outstanding and the Corporation. Any amendment or waiver so effected
shall be binding upon the Corporation and any holder of shares of the Series A
Preferred Stock.
4.7. Restrictions and Limitations. As long as any shares of Series
A Preferred Stock shall be issued and outstanding, the Corporation shall not,
without first obtaining the approval (by vote or consent as provided by law) of
the holders of not less than a majority of the total number of shares of the
Series A Preferred Stock then outstanding:
(a) amend or repeal any provision of, or add any
provision to, the Company's Restated Certificate of Incorporation or Bylaws if
such action would alter or change the preferences, rights, privileges or powers
of, or the restrictions provided for the benefit of, the Series A Preferred
Stock;
(b) authorize, create or issue shares of any class or
series of stock having any preference or priority superior to any such
preference or priority of the Series A Preferred Stock;
<PAGE> 9
(c) enter into any transaction or series of related
transactions, as a result of which majority voting control of the Company shall
have passed to another person or entity (or group of related persons or
entities);
(d) increase or decrease (other than for decreases
resulting from conversion of the Series A Preferred Stock) the number of
authorized shares of Series A Preferred Stock; or
(e) amend this Subsection 4.7.
4.8. No Reissuance of Preferred Stock. No share or shares of
Series A Preferred Stock acquired by the Corporation by reason of redemption,
purchase, conversion or otherwise shall be reissued, and all such shares shall
be canceled, retired and eliminated from the shares which the Corporation shall
be authorized to issue.
ARTICLE 5. DIRECTORS
The number of Directors of this corporation shall be determined in the
manner provided by the Bylaws and may be increased or decreased from time to
time in the manner provided therein. Written ballots are not required in the
election of Directors.
ARTICLE 6. BYLAWS
The Board of Directors shall have the power to adopt, amend or repeal
the Bylaws of this corporation; provided, however, the Board of Directors may
not repeal or amend any bylaw that the stockholders have expressly provided may
not be amended or repealed by the Board of Directors. The stockholders shall
also have the power to adopt, amend or repeal the Bylaws of this corporation.
ARTICLE 7. PREEMPTIVE RIGHTS
Preemptive rights shall not exist with respect to shares of stock or
securities convertible into shares of stock of this corporation.
ARTICLE 8. CUMULATIVE VOTING
The right to cumulate votes in the election of Directors shall not
exist with respect to shares of stock of this corporation.
ARTICLE 9. AMENDMENTS TO CERTIFICATE OF INCORPORATION
This corporation reserves the right to amend or repeal, by the
affirmative vote of the holders of a majority of the outstanding shares
entitled to vote, any of the
<PAGE> 10
provisions contained in this Certificate of Incorporation. The rights of the
stockholders of this corporation are granted subject to this reservation.
ARTICLE 10. LIMITATION OF DIRECTOR LIABILITY
To the full extent that the Delaware General Corporation Law, as it
exists on the date hereof or may hereafter be amended, permits the limitation
or elimination of the liability of directors, a director of this corporation
shall not be liable to this corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director. Any amendment to or repeal
of this Article 11 shall not adversely affect any right or protection of a
director of this corporation for or with respect to any acts or omissions of
such director occurring prior to such amendment or repeal.
ARTICLE 11. ACTION BY STOCKHOLDERS WITHOUT A MEETING
Only action properly brought before the stockholders by or at the
direction of the Board of Directors may be taken without a meeting, without
prior notice and without a vote, if a written consent setting forth the action
so taken is signed by the holders of outstanding shares of capital stock
entitled to be voted with respect to the subject matter thereof having not less
than the minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon were
present and voted.
ARTICLE 12. SPECIAL MEETINGS OF STOCKHOLDERS
The Chairman of the Board of Directors, the Chief Executive Officer,
the President or the Board of Directors may call special meetings of the
stockholders for any purpose. A special meeting of the stockholders shall be
held if the holders of not less than thirty percent (30%) of all the votes
entitled to be cast on any issue proposed to be considered at such special
meeting have dated, signed and delivered to the Secretary one or more written
demands for such meeting, describing the purpose or purposes for which it is to
be held.
ARTICLE 13. BUSINESS COMBINATIONS WITH INTERESTED STOCKHOLDERS
This corporation expressly elects not to be governed by section 203(a)
of Title 8 of the Delaware General Corporation Law.
<PAGE> 11
IN WITNESS WHEREOF, this corporation has caused this Restated
Certificate of Incorporation to be signed by its duly authorized officer this
9th day of July, 1996.
AMAZON.COM, INC.
By //s// Jeffrey P. Bezos
----------------------------------
Jeffrey P. Bezos, Chief Executive
Officer
<PAGE> 12
CERTIFICATE OF AMENDMENT
TO
RESTATED CERTIFICATE OF INCORPORATION
OF
AMAZON.COM, INC.
Amazon.com., Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "Company"), does hereby
certify as follows:
1. A resolution setting forth the following amendment to the
Company's Restated Certificate of Incorporation and declaring the advisability
of such amendment was duly adopted by the Company's Board of Directors by
unanimous written consent of its members and filed with the minutes of the
Board in accordance with the applicable provisions of Section 242 of the
General Corporation Law of the State of Delaware:
The second paragraph of Article 4 of the Company's Restated
Certificate of Incorporation is amended to read in its entirety as follows:
"The Preferred Stock shall be divided into series, and 571,896
shares of Preferred Stock are designated Series A Preferred Stock
("Series A Preferred Stock"). The Series A Preferred Stock shall have
the rights, preferences and other terms as are set forth in this
Article 4."
2. In lieu of a meeting of the stockholders, written consent has
been given for the adoption of said amendment in accordance with the applicable
provisions of Section 228 and Section 242 of the General Corporation Law of the
State of Delaware, and written notice of the taking of such corporate action
has been given as provided in said Section 228.
IN WITNESS WHEREOF, the Company has caused this Certificate to be
signed by its duly authorized officer on this 24th day of January, 1997.
AMAZON.COM, INC.
By: //s// Jeffrey P. Bezos
-------------------------------
Name: Jeffrey P. Bezos
-----------------------------
Title: President
----------------------------
<PAGE> 13
CERTIFICATE OF AMENDMENT
TO
RESTATED CERTIFICATE OF INCORPORATION
OF
AMAZON.COM, INC.
Amazon.com., Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "Company"), does hereby
certify as follows:
1. A resolution setting forth the following amendment to the
Company's Restated Certificate of Incorporation and declaring the advisability
of such amendment was duly adopted by the Company's Board of Directors by
unanimous written consent of its members and filed with the minutes of the
Board in accordance with the applicable provisions of Section 242 of the
General Corporation Law of the State of Delaware:
The second paragraph of Article 4 of the Company's Restated
Certificate of Incorporation is amended to read in its entirety as follows:
"The Preferred Stock shall be divided into series, and 579,396
shares of Preferred Stock are designated Series A Preferred Stock
("Series A Preferred Stock"). The Series A Preferred Stock shall have
the rights, preferences and other terms as are set forth in this
Article 4."
2. In lieu of a meeting of the stockholders, written consent has
been given for the adoption of said amendment in accordance with the applicable
provisions of Section 228 and Section 242 of the General Corporation Law of the
State of Delaware, and written notice of the taking of such corporate action
has been given as provided in said Section 228.
IN WITNESS WHEREOF, the Company has caused this Certificate to be
signed by its duly authorized officer on this 19th day of February, 1997.
AMAZON.COM, INC.
By: //s// Jeffrey P. Bezos
-------------------------------
Name: Jeffrey P. Bezos
-----------------------------
Title: President
----------------------------