Certificate of Incorporation - GT Interactive Software Corp.
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
GT INTERACTIVE SOFTWARE CORP.
Pursuant to Section 245 of the
General Corporation Law
of the State of Delaware
GT Interactive Software Corp., a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), hereby certifies as
follows:
1. That the name of the Corporation is GT Interactive Software Corp.
2. That the Certificate of Incorporation of the Corporation was filed
in the office of the Secretary of State of the State of Delaware on the 1st day
of September, 1992 under the name of GT Software Corporation; that Certificates
of Amendment to the Certificate of Incorporation were filed in the Office of the
Secretary of State of the State of Delaware on the 1st day of April, 1993, on
the 29th day of November, 1993, on the 19th day of December, 1994, a restated
certificate of incorporation was filed on the 22nd day of February, 1995, and an
amended and restated certificate of incorporation was filed on the 31st day of
July, 1995.
3. That this Amended and Restated Certificate of Incorporation restates
and amends the restated Certificate of Incorporation of this Corporation.
4. That the text of the Certificate of Incorporation is hereby restated
and amended to read in its entirety as follows:
FIRST: The name of the Corporation is GT Interactive Software
Corp.
SECOND: The address of its registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of its registered agent at such
address is The Corporation Trust Company.
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THIRD: The nature of the business or purposes to be conducted
or promoted by the Corporation, is to engage in any lawful act or activity for
which corporations may be organized under the General Corporation Law of
Delaware ("GCL").
FOURTH: The total number of shares of all classes of stock
which the Corporation shall have authority to issue is 155,000,000 shares, of
which 150,000,000 shall be designated Common Stock, and 5,000,000 shall be
designated Preferred Stock, all of which shall be $.01 par value per share. Upon
the filing of this Amended and Restated Certificate of Incorporation, pursuant
to action duly taken by the Board of Directors and stockholders of the
Corporation, each previously outstanding share of the Corporation's Class A
Common Stock, par value $.01 per share, and Class B Common Stock, par value $.01
per share, shall automatically and without further action on the part of any
holder thereof, be converted into and become one share of the Corporation's
Common Stock, par value $.01 per share. Following such filing, no shares of such
Class A Common Stock or Class B Common Stock are authorized or outstanding.
(a) The Common Stock:
The holders of Common Stock shall be entitled to one vote for
each Share so held and shall be entitled to notice of any stockholders meeting
and to vote upon any such matters as provided in the by-laws of the Corporation
or as may be provided by law. Except for and subject to those rights expressly
granted to holders of Preferred Stock or, except as may be provided by the laws
of the State of Delaware, the holders of Common Stock shall have exclusively all
other rights of stockholders, including, without limitation, (i) the right to
receive dividends, when and as declared by the Board of Directors of the
Corporation, out of assets lawfully available therefor, and (ii) in the event of
any distribution of assets upon a liquidation or otherwise, the right to receive
all the assets and funds of the Corporation remaining after the payment to the
holders of the Preferred Stock, if any, of the specific amounts which they are
entitled to receive upon such distribution.
(b) The Preferred Stock:
The Board of Directors is hereby expressly authorized to
provide for, designate and issue, out of the authorized but unissued shares of
Preferred Stock, one or more series of Preferred Stock, subject to the terms and
conditions set forth herein. Before any shares of any such series are issued,
the Board of Directors shall fix, and hereby is expressly empowered to fix, by
resolution or resolutions, the following provisions of the shares of any such
series:
(i) the designation of such series, the number of shares to
constitute such series and the stated value thereof, if different from the par
value thereof;
(ii) whether the shares of such series shall have voting
rights or powers, in addition to any voting rights required by law, and, if so,
the terms of such voting rights or powers, which may be full or limited;
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(iii) the dividends, if any, payable on such series, whether
any such dividends shall be cumulative, and, if so, from what dates, the
conditions and dates upon which such dividends shall be payable, the preference
or relation which such dividends shall bear to the dividends payable on any
shares of stock or any other class or any other series of such class;
(iv) whether the shares of such series shall be subject to
redemption by the Corporation, and, if so, the times, prices and other
conditions of such redemption;
(v) the amount or amounts payable upon shares of such
series upon, and the rights of the holders of such series in, the voluntary or
involuntary liquidation, dissolution or winding up, or upon any distribution of
the assets, of the Corporation;
(vi) whether the shares of such series shall be subject to
the operation of a retirement or sinking fund and, if so, the extent to and
manner in which any such retirement or sinking fund shall be applied to the
purchase or redemption of the shares of such series for retirement or other
corporate purposes and the terms and provisions relative to the operation
thereof;
(vii) whether the shares of such series shall be convertible
into, or exchangeable for, shares of stock of any other class or any other
series of this class or any other securities and, if so, the price or prices or
the rate or rates of conversion or exchange and the method, if any, of adjusting
the same, and any other terms and condition or exchange;
(viii) the limitations and restrictions, if any, to be
effective while any shares of such series are outstanding upon the payment of
dividends or the making of other distributions on, and upon the purchase,
redemption or other acquisition by the Corporation of, the Common Stock or
shares of stock of any other class or any other series of such class;
(ix) the conditions or restrictions, if any, to be effective
while any shares of such series are outstanding upon the creation of
indebtedness of the Corporation or upon the issue of any additional stock,
including additional shares of such series or of any other series of this class
or of any other class; and
(x) any other powers, designations, preferences and
relative, participating, optional or other special rights, and any
qualifications, limitations or restrictions thereof.
The powers, designations, preferences and relative, participating,
optional or other special rights of each series of Preferred Stock, and the
qualifications, limitations or restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding. The Board of
Directors is hereby expressly authorized from time to time to increase (but not
above the total number of authorized shares of Preferred Stock) or decrease (but
not below the number of shares thereof then outstanding) the number of shares of
stock of any series of Preferred Stock designated to any one or more series of
Preferred Stock.
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Series A Convertible Preferred Stock:
Pursuant to the terms of the Amended and Restated Certificate of
Incorporation as in effect immediately prior to the filing of this Amended and
Restated Certificate of Incorporation, the 525 shares of Series A Convertible
Preferred Stock outstanding immediately prior to such filing have been
automatically converted into 2,520,000 shares of Common Stock upon filing
hereof, which filing occurred coincident with the consummation of the first sale
of shares of Common Stock by the Corporation in an underwritten public offering.
Following such filing, no shares of such Series A Preferred Stock are authorized
or outstanding.
FIFTH: The Board of Directors is expressly authorized to
adopt, amend or repeal the bylaws of the Corporation in the manner now or
hereafter prescribed by statute.
SIXTH: (a) The business and affairs of the Corporation shall
be managed by or under the direction of the Board of Directors except as
otherwise provided herein or required by law.
(b) Election of Directors need not be by written ballot
unless the by-laws of the Corporation shall so provide.
(c) The number of Directors of the Corporation shall
not be less than four nor more than twelve (plus such number of Directors, if
any, who may be elected by the holders of any series of preferred stock), and
subject to such limits shall be fixed by resolution duly adopted from time to
time by the Board of Directors. The Directors, other than those who may be
elected by the holders of any series of preferred stock, shall be classified,
with respect to the term for which they severally hold office, into three
classes, as nearly equal in number as possible. One class of Directors shall be
initially elected for a term expiring at the annual meeting of stockholders to
be held in 1996, another class shall be initially elected for a term expiring at
the annual meeting of stockholders to be held in 1997, and another class shall
be initially elected for a term expiring at the annual meeting of stockholders
to be held in 1998. Members of each class shall hold office until their
successors are duly elected and qualified or until their earlier resignation or
removal. At each succeeding annual meeting of the stockholders of the
Corporation, the successors of the class of Directors whose term expires at that
meeting shall be elected by a plurality vote of all votes cast at such meeting
to hold office for a term expiring at the annual meeting of stockholders held in
the third year following the year of their election. The persons serving as
Directors in classes whose terms expire in 1996, 1997 and 1998 shall be
determined by resolution of the Board of Directors.
Notwithstanding the foregoing, whenever pursuant to the provisions of
Article Fourth of this Amended and Restated Certificate of Incorporation, the
holders of any one or more series of preferred stock shall have the right,
voting separately as a series or together with holders of other such series, to
elect directors at an annual or special meeting of stockholders, the election,
term of office, filling of vacancies and other features of such
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directorships shall be governed by the terms of this Amended and Restated
Certificate of Incorporation and any certificate of designations applicable
thereto, and such directors so elected shall not be divided into classes
pursuant to this Article Sixth unless so provided by such terms.
During any period when the holders of any series of preferred stock
have the right to elect additional directors as provided for or fixed pursuant
to the provisions of Article Fourth hereof, then upon commencement and for the
duration of the period during which such right continues: (i) the then otherwise
total authorized number of Directors of the Corporation shall automatically be
increased by such specified number of Directors, and the holders of such
preferred stock shall be entitled to elect the additional Directors so provided
for or fixed pursuant to said provisions, and (ii) each such additional Director
shall serve until such Director's successor shall have been duly elected and
qualified, or until such Director's right to hold such office terminates
pursuant to said provisions, whichever occurs earlier, subject to such
Director's earlier death, disqualification, resignation or removal. Except as
otherwise provided by the Board in the resolution or resolutions establishing
such series, whenever the holders of any series of preferred stock having such
right to elect additional Directors are divested of such right pursuant to the
provisions of such stock, the terms of office of all such additional Directors
elected by the holders of such stock, or elected to fill any vacancies resulting
from the death, resignation, disqualification or removal of such additional
Directors, shall forthwith terminate and the total and authorized number of
Directors of the Corporation shall be reduced accordingly.
(d) Subject to the rights, if any, of the holders of
any series of preferred stock to elect Directors and to remove any Director whom
such holders have the right to elect, and notwithstanding the provisions of this
Article Sixth providing for the classification of the Board of Directors, any
Director or the entire Board of Directors (including persons elected by
Directors to fill vacancies in the Board of Directors) may be removed, with or
without cause, by the holders of a majority of the shares then entitled to vote
at an election of Directors.
SEVENTH: (a) The corporation shall to the fullest extent
permitted by Delaware law, as in effect from time to time (but, in the case of
any amendment of the GCL, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said law permitted
the Corporation to provide prior to such amendment), indemnify each person who
is or was a director or officer of the Corporation or of any of its wholly-owned
subsidiaries who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, or was or is
involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), by reason of the
fact that he or she is or was a director, officer, employee or agent of the
Corporation or of any of its subsidiaries, or is or was at any time serving, at
the request of the Corporation, any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise in any capacity,
against all expense, liability and loss (including, but not limited to,
attorneys' fees, judgments, fines, excise taxes or penalties with respect to any
employee benefit plan or
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otherwise, and amounts paid or to be paid in settlement) incurred or suffered by
such director or officer in connection with such proceeding; provided, however,
that, except as provided in Paragraph (e) of this Article Seventh, the
Corporation shall not be obligated to indemnify any person under this Article
Seventh in connection with a proceeding (or part thereof) if such proceeding (or
part thereof) was not authorized by the Board of Directors of the Corporation
and was initiated by such person against (i) the Corporation or any of its
subsidiaries, (ii) any person who is or was a director, officer, employee or
agent of the Corporation or any of its subsidiaries and/or (iii) any person or
entity which is or was controlled, controlled by, or under common control with
the Corporation or has or had business relations with the Corporation or any of
its subsidiaries.
(b) The right to indemnification conferred in this
Article Seventh shall be a contract right, shall continue as to a person who has
ceased to be a director or officer of the Corporation or of any of its
wholly-owned subsidiaries and shall inure to the benefit of his or her heirs,
executors and administrators, and shall include the right to be paid by the
Corporation the expenses incurred in connection with the defense or
investigation of any such proceeding in advance of its final disposition;
provided, however, that if and to the extent that Delaware law so requires, the
payment of such expense in advance of the final disposition of a proceeding
shall be made only upon delivery to the Corporation of an undertaking, by or on
behalf of such director or officer or former director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer or former director or officer is not entitled to be indemnified by the
Corporation.
(c) The Corporation's obligation to indemnify and to
pay expenses in advance of the final disposition of a proceeding under this
Article Seventh shall arise, and all rights and protections granted to directors
and officers under this Article Seventh shall vest, at the time of the
occurrence of the transaction or event to which any proceeding relates, or at
the time that the action or conduct to which any proceeding relates was first
taken or engaged in (or omitted to be taken or engaged in), regardless of when
any proceeding is first threatened, commenced or completed.
(d) Notwithstanding any other provision of this
Amended and Restated Certificate of Incorporation or the by-laws of the
Corporation, no action by the Corporation, either by amendment to or repeal of
this Article Seventh or the by-laws of the Corporation or otherwise shall
diminish or adversely affect any right or protection granted under this Article
Seventh to any director or officer or former director or officer of the
Corporation or of any of its wholly-owned subsidiaries which shall have become
vested as aforesaid prior to the date that any such amendment, repeal or other
corporate action is taken.
(e) If a claim for indemnification and/or for payment
of expenses in advance of the final disposition of a proceeding arising under
this Article Seventh is not paid in full by the Corporation within thirty days
after a written claim has been received by the Corporation, the claimant may at
any time thereafter bring suit against the
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Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim.
(f) The right to indemnification and the payment of
expenses incurred in connection with the defense or investigation of a
proceeding in advance of its final disposition conferred in this Article Seventh
shall not be exclusive of any other right which any person may have or hereafter
acquire under any statute, provision of this Amended and Restated Certificated
of Incorporation, by-laws of the Corporation, insurance policy, agreement, vote
of stockholders or disinterested directors or otherwise.
(g) In addition to the persons specified in
subsection (a) of this Article Seventh, the Corporation may also indemnify all
other persons to the fullest extent permitted by Delaware law.
EIGHTH: 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, 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) under Section 174 of the GCL, or (iv) for any
transaction from which the director derived any improper personal benefit. If
the GCL is amended after the date hereof to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of a director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the Delaware GCL, as so amended. No amendment to or repeal
of this Article Eighth shall apply to or have any effect on the liability or
alleged liability of any Director of the Corporation for or with respect to any
acts or omissions of such director occurring prior to such amendment.
5. This Amended and Restated Certificate of Incorporation was declared
advisable by the Board of Directors of the Corporation and was duly adopted by
the Board of Directors in accordance with the provisions of Section 245 of the
GCL and it was duly adopted by a majority of the stockholders entitled to vote
thereon in accordance with the provisions of Section 228 of the GCL and written
notice was given to the stockholders in accordance with the provisions of
subsection (d) of such section of the GCL.
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IN WITNESS WHEREOF, the Corporation has caused this Amended and
Restated Certificate of Incorporation to be signed by its President on this 19th
day of December, 1995.
GT INTERACTIVE SOFTWARE CORP.
/s/ Ronald Chaimowitz
-------------------------------------
Ronald Chaimowitz
President and Chief Executive Officer
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CERTIFICATE OF AMENDMENT
OF THE
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
GT INTERACTIVE SOFTWARE CORP.
Pursuant to Section 242
of the General Corporation Law
of the State of Delaware
GT Interactive Software Corp. (the "Corporation"), a corporation
organized and existing under the Delaware General Corporation Law (the "DGCL"),
DOES HEREBY CERTIFY THAT:
FIRST: The name of the Corporation is GT Interactive Software
Corp.
SECOND: The Certificate of Incorporation of the Corporation
was filed in the office of the Secretary of State of the State of Delaware on
September 1, 1992 under the name of GT Software Corporation. Certificates of
Amendment to the Certificate of Incorporation were filed in the Office of the
Secretary of State of the State of Delaware on April 1, 1993, November 29, 1993
and December 19, 1994. A Restated Certificate of Incorporation was filed on
February 22, 1995 and Amended and Restated Certificates of Incorporation were
filed on July 31, 1995 and December 19, 1995.
THIRD: The first sentence of Article Sixth, Paragraph (c) of
the Amended and Restated Certificate of Incorporation of the Corporation is
hereby amended and restated so that, as amended and restated, it shall read as
follows:
"The number of Directors of the Corporation
shall not be less than four nor more than
fifteen (plus such number of Directors, if any,
who may be elected by the holders of any series
of preferred stock), and subject to such limits
shall be fixed by resolution duly adopted from
time to time by the Board of Directors."
FOURTH: The foregoing amendment to the Corporation's Amended
and Restated Certificate of Incorporation has been duly adopted in accordance
with the provisions of Section 242 of the DGCL.
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IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
executed this 16th day of July, 1998.
GT INTERACTIVE SOFTWARE CORP.
By: /s/ Ronald Chaimowitz
----------------------------------------
Name: Ronald Chaimowitz
Title: Chairman of the Board of Directors and
Chief Executive Officer