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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION OF
GLOBALDIGITALCOMMERCE.COM, INC.
(AS AMENDED)
This document reflects the Certificate of Incorporation of
GlobalDigitalCommerce.com, Inc., as amended through September 30, 2000.
FIRST: The name of the Corporation is GlobalDigitalCommerce.com, Inc.
----- (hereinafter sometimes referred to as the "Corporation").
SECOND: The address of the registered office of the Corporation in
------ the State of Delaware is Corporation Trust Center, 1209 Orange
Street, Wilmington, New Castle County, Delaware, 19801, and the
name of the registered agent therein and in charge thereof, upon
whom process against the Corporation may be served is The
Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act
----- or activity for which a corporation may be organized under the
General Corporation Law of Delaware.
FOURTH:
------
A. Classes of Stock. The Corporation is authorized to issue two classes of
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shares to be designated respectively "Preferred Stock" and "Common Stock." The
total number of shares of Common Stock authorized is eighty million
(80,000,000), each with the par value of $0.001 per share, and the total number
of shares of Preferred Stock authorized is ten million (10,000,000), each with
the par value of $0.001 per share.
B. Preferred Stock. The Preferred Stock may be issued in from time to time
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in one or more series. The Board of Directors of this corporation is authorized
to fix or alter the rights, preferences, privileges and restrictions granted to
or imposed upon wholly unissued series of Preferred Stock, and the number of
shares constituting any such series and the designation thereof, or any of them.
The Board of Directors is also authorized to increase or decrease the number of
shares of any series of Preferred Stock prior or subsequent to the issue of that
series, but not below the number of shares of such series then outstanding. In
case the number of shares of any series shall be so decreased, the shares
constituting such decrease shall resume the status that they had prior to the
adoption of the resolution originally fixing the number of shares of such
series.
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:
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A. The business and affairs of the Corporation shall be managed by
or under the direction of the Board of Directors. In addition to
the powers and authority expressly conferred upon them by statute
or by this Certificate of Incorporation or the Bylaws of the
Corporation, the directors are hereby empowered to exercise all
such powers and do all such acts and things as may be exercised
or done by the Corporation.
B. The directors of the Corporation need not be elected by written
ballot unless the Bylaws so provide.
C. On and after the closing date of the first sale of the
Corporation's Common Stock pursuant to a firmly underwritten
registered public offering (the "IPO"), 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
stockholders of the Corporation and may not be effected by any
consent in writing by such stockholders. Prior to such sale,
unless otherwise provided by law, any action which may otherwise
be taken at any meeting of the stockholders may be taken without
a meeting and without prior notice, if a written consent
describing such actions is signed by the holders of outstanding
shares having not less than the minimum number of votes which
would be necessary to authorize or take such action at a meeting
at which all shares entitled to vote thereon were present and
voted.
D. Special meetings of stockholders of the Corporation may be called
only (1) by the Board of Directors pursuant to a resolution
adopted by a majority of the total number of authorized directors
(whether or not there exist any vacancies in previously
authorized directorships at the time any such resolution is
presented to the Board for adoption) or (2) by the holders of not
less than ten percent (10%) of all of the shares entitled to cast
votes at the meeting.
SIXTH:
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A. The number of directors shall be fixed from time to time
exclusively by the Board of Directors pursuant to a resolution
adopted by a majority of the total number of authorized directors
(whether or not there exist any vacancies in previously
authorized directorships at the time any such resolution is
presented to the Board for adoption). The directors shall be
divided into three classes with the term of office of the first
class to expire at the annual meeting of the stockholders held in
1998; the term of office of the second class to expire at the
meeting of the stockholders held in 1999; the term of office of
the third class to expire at the annual meeting of the
stockholders held in 2000; and thereafter for each such term to
expire at each third succeeding annual meeting of stockholders
after such
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election. Subject to the rights of the holders of any series of
Preferred Stock then outstanding, a vacancy resulting from the
removal of a director by the stockholders as providing in Article
SIXTH, Section C below may be filled at a special meeting of the
stockholders held for that purpose.
B. Newly created directorships resulting from any increase in the
authorized number of directors or any vacancies in the Board of
Directors resulting from death, resignation or other cause (other
than removal from office by a vote of the stockholders) may be
filled only by a majority vote of the directors then in office,
though less than a quorum, and directors so chosen shall hold
office for a term expiring at the next annual meeting of
stockholders at which the term of office to which they have been
elected expires, and until their respective successors are
elected, except in the case of the death, resignation, or removal
of any director. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any
incumbent director.
C. Any directors, or the entire Board of Directors, may be removed
from office at any time, with or without cause, but only by the
affirmative vote of the holders of at least a majority of the
voting power of all of the then outstanding shares of capital
stock of the Corporation entitled to vote generally in the
election of directors, voting together as a single class.
Vacancies in the Board of Directors resulting from such removal
may be filled by a majority of the directors then in office,
though less than a quorum, or by the stockholders as provided in
Article SIXTH, Section A above. Directors so chosen shall hold
office for a term expiring at the next annual meeting of
stockholders at which the term of office to which they have been
elected expires, and until their respective successors are
elected, except in the case of the death, resignation, or removal
of any director.
SEVENTH: The Board of Directors is expressly empowered to adopt, amend or
------- repeal Bylaws of the Corporation. Any adoption, amendment or
repeal of Bylaws of the Corporation by the Board of Directors
shall require the approval of a majority of the total number of
authorized directors (whether or not there exist any vacancies in
previously authorized directorships at the time any resolution
providing for adoption, amendment or repeal is presented to the
Board). The stockholders shall also have power to adopt, amend or
repeal the Bylaws of the Corporation. Any adoption, amendment or
repeal of Bylaws of the Corporation by the stockholders shall
require, in addition to any vote of the holders of any class or
series of stock of the Corporation required by law or by this
Certificate of Incorporation, the affirmative vote of the holders
of at least sixty-six and two-thirds percent (66-2/3%) of the
voting power of all of the then outstanding shares of the capital
stock of the Corporation entitled to vote generally in the
election of directors, voting together as a single class.
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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 involved intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware
General Corporation Law, or (iv) for any transaction from which
the director derived an improper personal benefit.
If the Delaware General Corporation Law is hereafter amended to
authorize the further elimination or limitation of the liability
of a director, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent
permitted by the Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing provisions of this
Article EIGHTH by the stockholders of the Corporation shall not
adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification.
NINTH: The Corporation reserves the right to amend or repeal any
----- provision contained in this Certificate of Incorporation in the
manner prescribed by the laws of the State of Delaware and all
rights conferred upon stockholders are granted subject to this
reservation; provided, however, that, notwithstanding any other
-------- -------
provision of this Certificate of Incorporation or any provision
of law which might otherwise permit a lesser vote or no vote, but
in addition to any vote of the holders of any class or series of
the stock of this Corporation required by law or by this
Certificate of Incorporation, the affirmative vote of the holders
of at least 66-2/3% of the voting power of all of the then
outstanding shares of the capital stock of the Corporation
entitled to vote generally in the election of directors, voting
together as a single class, shall be required to amend or repeal
this Article NINTH, Article FIFTH, Article SIXTH, Article SEVENTH
or Article EIGHTH.
TENTH: The incorporator of the corporation is Douglas J. Rein, whose
----- mailing address is 4365 Executive Drive, Suite 1600, San Diego,
CA 92121-2189.
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