Certificate of Incorporation - Internet Capital Group Inc.
RESTATED CERTIFICATE OF INCORPORATION
OF
INTERNET CAPITAL GROUP, INC.
Internet Capital Group, Inc., a corporation incorporated on
February 2, 1999 under the name ICG Capital Group, Inc. and existing under and
by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), does hereby certify:
FIRST: That at a meeting of the Board of Directors held on
________, 1999, a resolution was duly adopted setting forth a
proposed Restatement of the Certificate of Incorporation of
the
Corporation, declaring said Restatement to be advisable
and calling for consideration of said proposed Restatement by
the stockholders of the Corporation. The resolution setting
forth the Restatement is as follows:
RESOLVED, that the Certificate of Incorporation of
the Corporation be restated and integrated and also
further amended to read as set forth in Exhibit A
---------
attached hereto.
SECOND: That thereafter, pursuant to the resolution of the
Board of Directors, the proposed Restatement of the
Certificate of Incorporation was approved by written consent
of the stockholders dated July ___, 1999.
THIRD: That said Restatement was duly adopted in accordance
with t
he provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Restated
Certificate of Incorporation to be executed by Walter W.
Buckley, III, its President and Chief Executive Officer, as of
July ___, 1999.
INTERNET CAPITAL GROUP, INC.
By:
-------------------------------------
Walter W. Buckley, III
President and Chief Executive Officer
<PAGE>
Exhibit A
---------
RESTATED CERTIFICATE OF INCORPORATION
OF
INTERNET CAPITAL GROUP, INC.
1. Name. The name of the Corporation is Internet Capital Group, Inc.
----
2. Registered Office and Agent. The address of the Corporation's registered
---------------------------
office in the State of Delaware is 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of the Corporation's registered agent
at such address is The Corpo
ration Trust.
3. Purpose. The purposes for which the Corporation is formed are to engage in
-------
any lawful act or activity for which corporations may be organized under the
General Corporation Law of the State of Delaware ("DGCL") and to possess and
exercise all of the powers and privileges granted by such law and any other law
of Delaware.
4. Authorized Capital. The aggregate number of shares of stock which the
------------------
Corporation shall have authority to issue is 310,000,000 shares, divided into
two classes consisting of 10,000,000 shares of Preferred Stock, par value $.01
per share ("Preferred Stock"), and 300,000,000 shares of Common Stock, par value
$.001 per share ("Common Stock").
The following is a statement of the designations, preferences,
qualifications, limitations, restrictions and the special or relative rights
granted to or imposed upon the shares of each such class.
A. PREFERRED STOCK.
---------------
(a) The Board of D
irectors is authorized to provide for the issuance
of shares of Preferred Stock in one or more series and, by filing a
certificate pursuant to the applicable provisions of the DGCL (a "Preferred
Stock Certificate of Designation"), to establish from time to time the
number of shares to be included in each such series, with such
designations, preferences and relative, participating, optional or other
special rights and qualifications, limitations or restrictions thereof as
are stated and expressed in the resolution or resolutions providing for the
issue thereof adopted by the Board of Directors (as such resolutions may be
amended by a resolution or resolutions subsequently adopted by the Board of
Directors), and as are not stated and expressed in this Restated
Certificate of Incorporation including, but not limited to, determination
of any of the following:
(i) the distinctive designation of the series, whether by
numb
er, letter or title, and the number of shares which will
constitute the series, which number may be increased or decreased (but
not below the number of shares then outstanding and except where
otherwise provided in the applicable Preferred Stock Certificate of
Designation) from time to time by action of the Board of Directors;
<PAGE>
(ii) the dividend rate and the times of payment of dividends,
if any, on the shares of the series, whether such dividends will be
cumulative, and if so, from what date or dates, and the relation which
such dividends, if any, shall bear to the dividends payable on any
other class or classes of stock;
(iii) the price or prices at which, and the terms and conditions
on which, the shares of the series may be redeemed at the option of
the Corporation;
(iv) whether or not the shares of the series will be entitled
to the benefit of a retirement or sinking fund to be applied to the
purchase or redemption of such shares and, if so enti
tled, the amount
of such fund and the terms and provisions relative to the operation
thereof;
(v) whether or not the shares of the series will be
convertible into, or exchangeable for, any other shares of stock of
the Corporation or other securities, and if so convertible or
exchangeable, the conversion price or prices, or the rates of
exchange, and any adjustments thereof, at which such conversion or
exchange may be made, and any other terms and conditions of such
conversion or exchange;
(vi) the rights of the shares of the series in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
affairs of the Corporation;
(vii) whether or not the shares of the series will have priority
over or be on a parity with or be junior to the shares of any other
series or class in any respect or will be entitled to the b
enefit of
limitations restricting the issuance of shares of any other series or
class having priority over or being on a parity with the shares of
such series in any respect, or restricting the payment of dividends on
or the making of other distributions in respect of shares of any other
series or class ranking junior to the shares of the series as to
dividends or assets, or restricting the purchase or redemption of the
shares of any such junior series or class, and the terms of any such
restriction;
(viii) whether the series will have voting rights, in addition to
any voting rights provided by law, and, if so, the terms of such
voting rights; and
(ix) any other preferences, qualifications, privileges, options
and other relative or special rights and limitations of that series.
(b) Dividends. Holders of Preferred Stock shall be entitled to
---------
receive, when and as declared by the Board of Directors, out of funds
legally available for the payment thereof, dividends at the rates fixed by
the board of directors for the respective series, and no more, before any
dividends shall be declared and paid, or set apart for payment, on Common
Stock with respect to the same dividend period.
(c) Preference on Liquidation. In the event of the voluntary or
-------------------------
involuntary liquidation, dissolution or winding up of the Corporation,
holders of each series of
2
<PAGE>
Preferred Stock will be entitled to receive the amount fixed for such
series plus, in the case of any series on which dividends will have been
determined by the board of directors to be cumulative, an amount equal to
all dividends accumulated and unpaid thereon to the date of final
distribution whether or not earned or declared before any distribution
shall be paid, or set aside for payment, to holders of Common Stock. If the
assets of the Corporation are not sufficient to pay such amounts in full,
holders of all shares of Preferred Stock will participate in the
distribution of assets ratably in proportion to the full amounts to which
they are entitled or in such order or priority, if any, as will have been
fixed in the resolution or resolutions providing for the issue of the
series of Preferred Stock. Neither the merger nor consolidation of the
Corporation into or with any other corporation, nor a sale, transfer or
lease of all or part of its assets, will be deemed a liquidation,
dissolution or winding up of the corporation within the meaning of this
paragraph except to the extent specifically provided for herein.
(d) Redemption. The Corporation, at the option of the Board of
----------
Directors, may redeem all or part of the shares of any series of Preferred
Stock on the terms and conditions fixed in the applicable Preferred Stock
Certificate of Designation for such series.
(e) Voting Rights. Except as otherwise required by law, as otherwise
-------------
provided herein or as otherwise determined by the Board of Directors in the
applicable Preferred Stock Certificate of Designation as to the shares
of
any series of Preferred Stock prior to the issuance of any such shares, the
holders of Preferred Stock shall have no voting rights and shall not be
entitled to any notice of meeting of stockholders.
B. COMMON STOCK.
------------
The Common Stock shall be subject to the express terms of any
series of Preferred Stock.
(a) Dividends. Subject to any other provisions of this Restated
---------
Certificate of Incorporation, and to the rights of holders of preferred
stock, if any, holders of Common Stock shall be entitled to receive ratably
on a per share basis such dividends and other distributions in cash, stock
or property of the Corporation as may be declared by the Board of Directors
from time to time out of the assets or funds of the Corporation legally
available therefor.
(b) Distribution of Assets. Subject to the express terms of any series
----------------------
of Preferr
ed Stock, in the event of the voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, holders of
Common Stock shall be entitled to receive all of the remaining assets of
the Corporation available for distribution to its stockholders.
(c) Voting Rights. Except as may be provided in this Restated
-------------
Certificate of Incorporation or in an applicable Preferred Stock
Certificate of Designation, the holders of Common Stock shall have the
exclusive right to vote for the election of Directors and for
3
<PAGE>
all other purposes as provided by law. No stockholder of the Corporation
shall be entitled to exercise any right of cumulative voting.
5. No Preemptive Rights. No stockholder of the Corporation shall have any
--------------------
preemptive or preferential right, nor be entitled to such as a matter of right,
to subscribe for or purchase any part of any new or additional issue of stock of
the Corporation of any class or series, whether issued for money or for
consideration other than money, or of any issue of securities convertible into
stock of the Corporation.
6. Ownership. The Corporation shall be entitled to treat the person in whose
---------
name any share of its stock is registered as the owner thereof for all purposes
and s
hall not be bound to recognize any equitable or other claim to, or interest
in, such share on the part of any other person, whether or not the Corporation
shall have notice thereof, except as expressly provided by applicable law.
7. Board of Directors; Corporate Powers. The following provisions are inserted
------------------------------------
for the management of the business and for the conduct of the affairs of the
Corporation by the Board of Directors and for the purpose of creating, defining,
limiting and regulating the powers of the Corporation and its Directors and
stockholders generally:
A. The number of Directors constituting the Board of Directors shall
be as set forth in or pursuant to the By-laws of the Corporation, but shall
not be less than five (5) nor more than nine (9). The Board of Directors,
other than those who may be elected by the holders of any series of
preferred stock, if any, shall be divided into three classes, designated
Classes I,
II and III, which shall be as nearly equal in number as
possible. Directors of Class I shall be elected to hold office for a term
expiring at the annual meeting of stockholders to be held in 2000.
Directors of Class II shall be elected to hold office for a term expiring
at the annual meeting of stockholders to be held in 2001 and Directors of
Class III shall be elected to hold office for a term expiring at the annual
meeting of stockholders to be held in 2002. At each succeeding annual
meeting of stockholders following such initial classification and election,
the respective successors of each class shall be elected for three-year
terms.
B. The holders of a majority of the then outstanding stock of the
Corporation entitled to vote generally in the election of Directors may
remove any Director or the entire Board of Directors, but only for cause.
C. Vacancies in the Board of Directors resulting from death,
resignation, retir
ement, disqualification, removal from office or other
cause and newly created Directorships resulting from any increase in the
authorized number of Directors shall be filled in the manner provided in
the By-laws of the Corporation.
D. Advance notice of nominations for the election of Directors shall
be given in the manner and to the extent provided in the By-laws of the
Corporation.
E. The election of Directors need not be by written ballot.
4
<PAGE>
F. All corporate powers and authority of the Corporation (except as at
the time otherwise provided by law, by this Restated Certificate of
Incorporation or by the By-laws) shall be vested in and exercised by the
Board of Directors.
8. No Action By Stockholders In Lieu of a Meeting. Effective as of the time
----------------------------------------------
the Common Stock shall be registered pursuant to the provisions of the
Securities Exchange Act of 1934, as amended, 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
ability of the stockholders to consent in writing to the taking of an
y action is
specifically denied.
9. Rights. The Board of Directors is hereby authorized to create and issue,
------
whether or not in connection with the issuance and sale of any of its stock or
other securities or property, rights entitling the holders thereof to purchase
from the Corporation shares of stock or other securities of the Corporation or
any other corporation. The times at which and the terms upon which such rights
are to be issued shall be determined by the Board of Directors and set forth in
the contracts or instruments that evidence such rights. The authority of the
Board of Directors with respect to such rights shall include, but not be limited
to, determination of the following:
A. The initial purchase price per share or other unit of the stock or
other securities or property to be purchased upon exercise of such rights.
B. Provisions relating to the times at which and the circumstances
under which such rights may be exercised or sold or otherwise
transferred,
either together with or separately from, any other stock or securities of
the Corporation.
C. Provisions which adjust the number or exercise price of such
rights, or amount or nature of the stock or other securities or property
receivable upon exercise of such rights, in the event of a combination,
split or recapitalization of any stock of the Corporation, a change in
ownership of the Corporation's stock or other securities or a
reorganization, merger, consolidation, sale of assets or other occurrence
relating to the Corporation or any stock of the Corporation, and provisions
restricting the ability of the Corporation to enter into any such
transaction absent an assumption by the other party or parties thereof of
the obligations of the Corporation under such rights.
D. Provisions which deny the holder of a specified percentage of the
outstanding stock or other securities of the Corporation the right to
ex
ercise such rights and/or cause the rights held by such holder to become
void.
E. Provisions which permit the Corporation to redeem such rights.
F. The appointment of a rights agent with respect to such rights.
10. By-laws. In furtherance and not in limitation of the powers conferred by
-------
law, the Board of Directors of the Corporation is authorized, without the assent
or vote of the stockholders, to adopt, amend or repeal the By-laws of the
Corporation, except as otherwise specifically provided
5
<PAGE>
therein or in this Restated Certificate of Incorporation, subject to the power
of the stockholders of the Corporation to amend or repeal any By-laws adopted by
the Board of Directors upon the affirmative vote of the holders of not less than
66 2/3% of the then outstanding stock of the Corporation entitled to vote
generally in the election of Directors.
11. Limitation on Liability. The Directors of the Corporation shall be entitled
-----------------------
to the benefits of all limitations on the liability of Directors generally that
are now or hereafter become available under the DGCL. Without limiting the
generality of the foregoing, to the fullest extent permitted by the DGCL, as it
exists on the date hereof or as it may hereafter be amended, no d
irector of the
Corporation shall 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 DGCL, or (iv) for any transaction from which the director
derived an improper personal benefit. If the DGCL is amended after the filing of
this Restated Certificate of Incorporation 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 DGCL, as so amended. Any repeal or modification of this
Section 11 or any adoption of any provision of this Restated Certificate of
Incorporation inconsistent with this Section 11 shall be prospect
ive only, and
shall not affect, to the detriment of any director, any limitation on the
personal liability of a director of the Corporation existing at the time of such
repeal, modification or adoption.
12. Amendment. The Corporation reserves the right to amend or repeal any
---------
provision contained in this Restated Certificate of Incorporation in the manner
now or hereafter prescribed by the DGCL, and all rights herein conferred upon
stockholders or Directors (in the present form of this Restated Certificate of
Incorporation or as hereinafter amended) are granted subject to this
reservation; provided, however, that Sections 4, 7, 8, 9, 10 and 12 of this
Restated Certificate of Incorporation shall not be amended, altered or repealed
without the affirmative vote of the holders of not less than 66 2/3% of the then
outstanding stock of the Corporation entitled to vote generally in the election
of Directors.
6