CERTIFICATE OF INCORPORATION
of
STYLECLICK, INC.
The undersigned incorporator, in order to form a corporation under the
General Corporation Law of the State of Delaware (the "General Corporation
Law"), certifies as follows:
ARTICLE I.
NAME
The name of the corporation is Styleclick, Inc.
ARTICLE II.
ADDRESS; REGISTERED OFFICE AND AGENT
The address of the Corporation's registered office is 9 East Loockerman
Street, Suite 214, City of Dover, County of Kent, State of Delaware. The name of
its registered agent at such address is National Corporate Research, Ltd.
ARTICLE III. NAME AND ADDRESS OF INCORPORATOR The name and mailing address of
the incorporator are: Cheryl L. Vinall, 1285 Avenue of the Americas, New York,
New York 10019-6064.
<PAGE>
ARTICLE IV.
PURPOSES
Subject to the provisions of Article VI hereof, the purpose of the
Corporation is to engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law.
ARTICLE V.
CAPITAL STOCK
The Corporation is authorized to issue three classes of stock to be
designated "Class A Common Stock," "Class B Common Stock" (the Class A Common
Stock and Class B Common Stock hereinafter being sometimes referred to
collectively as the "Common Stock"), and "Preferred Stock," all of which shall
have a par value of $0.01 per share. The total number of shares that the
Corporation is authorized to issue is: 287.5 million (287,500,000) shares, of
which 150 million (150,000,000) shall be shares of Class A Common Stock, 112.5
million (112,500,000) shall be shares of Class B Common Stock, and 25 million
(25,000,000) shall be shares of Preferred Stock.
A. COMMON STOCK.
The rights, preferences, restrictions and other matters relating to the
Common Stock are as follows:
2
<PAGE>
1. DIVIDENDS. The holders of the Class A Common Stock and the
Class B Common Stock shall be entitled to receive, on a share-for-share basis,
such dividends if, as and when declared from time to time by the Board of
Directors of the Corporation.
2. LIQUIDATION. In the event of the voluntary or involuntary
liquidation, dissolution, distribution of assets or winding-up of the
Corporation, the holders of the Class A Common Stock and the Class B Common
Stock shall be entitled to receive, on a share-for-share basis, all of the
assets of the Corporation of whatever kind available for distribution to
stockholders.
3. VOTING RIGHTS. Except as otherwise provided herein or
required by applicable law, (i) each holder of Class A Common Stock shall be
entitled to one (1) vote for each share of Class A Common Stock held as of the
applicable record date on any matter that is submitted to a vote or for the
consent of the stockholders of the Corporation, and (ii) each holder of Class B
Common Stock shall be entitled to ten (10) votes for each share of Class B
Common Stock held as of the applicable record date on any matter that is
submitted to a vote or for the consent of the stockholders of the Corporation.
Holders of Common Stock shall be entitled to receive notice of any stockholders'
meeting in accordance with the Bylaws of the Corporation. Except as otherwise
required by applicable law, the Class A Common Stock and the Class B Common
Stock shall vote together as a single class on all matters submitted to a vote
3
<PAGE>
or for the consent of the stockholders of the Corporation. Holders of Common
Stock shall not be entitled to cumulate their votes for the election of
directors or any other matter submitted to a vote of the stockholders.
4. CONVERSION. (a) Each share of Class B Common Stock shall be
convertible into one fully paid and non-assessable share of Class A Common Stock
at the option of the holder thereof at any time.
(b) Each share of Class B Common Stock shall automatically be
converted into one fully paid and non-assessable share of Class A Common Stock
upon any sale, conveyance, foreclosure upon, assignment or other transfer or
disposition (a "Transfer") of such share, whether or not for value, by the
holder thereof, other than any Transfer by such holder to USA Networks, Inc., a
Delaware corporation ("USA Networks"), or any of its Affiliates (as defined
below).
(c) The one-to-one conversion ratio for the conversion of the
Class B Common Stock into Class A Common Stock in accordance with Sections 4(a)
and 4(b) above shall in all events be equitably preserved in the event of any
merger, consolidation or other reorganization of the Corporation.
(d) The Corporation shall at all times reserve and keep
available, and free from any preemptive rights, out of its authorized but
unissued shares of Class A Common Stock, solely for the purpose of effecting
conversions of shares of Class B Common Stock, such number of its shares of
Class A Common Stock
4
<PAGE>
as shall from time to time be sufficient to effect the conversion of all
outstanding shares of Class B Common Stock.
(e) Any conversion of shares of Class B Common Stock into
shares of Class A Common Stock shall be deemed to have been effected at the
close of business on the date when such the shares to be converted are delivered
to the Corporation or the transfer agent of the shares to be converted.
(f) If any shares of Class B Common Stock are converted
pursuant to this Section 4, the shares so converted shall be canceled and shall
not be subject to reissue by the Corporation. From time to time, this
Certificate of Incorporation shall be appropriately revised to reflect the
corresponding reduction in the Corporation's authorized capital stock. The
secretary of the Corporation shall be, and hereby is, authorized and directed to
file with the Secretary of State of the State of Delaware one or more
certificates to record any such decrease in the number of authorized shares of
Class B Common Stock.
(g) As used in this Certificate of Incorporation, the
following terms shall have the following meanings:
(1) "Affiliate" shall mean any Person controlling,
controlled by or under common control with such Person. For the purposes of this
definition of "Affiliate," "control," when used with respect to any specified
Person, shall mean the power to direct or cause the direction of the management
and policies of
5
<PAGE>
such Person, directly or indirectly, whether through ownership of voting
securities or partnership or other ownership interests, by contract or
otherwise; and the terms "controlling" and "controlled" shall have correlative
meanings. For purposes of this definition of "Affiliate."
(2) "PERSON" shall mean any individual, corporation,
partnership, firm, group (as such term is used in Section 13(d)(3) of the
Exchange Act of 1934, as amended), joint venture, association, trust, limited
liability company, unincorporated organization, estate, trust or other entity.
5. STOCK DIVIDENDS OR STOCK SPLITS OR COMBINATIONS. In no
event shall any stock dividends or stock splits or combinations of stock be
declared or made in Class A Common Stock or Class B Common Stock unless all
shares of Class A Common Stock and Class B Common Stock then outstanding are
treated equally and identically.
B. PREFERRED STOCK.
The Board of Directors is authorized, subject to limitations prescribed
by Delaware law, to determine the terms and conditions of the Preferred Stock,
including whether the shares of Preferred Stock will be issued in one or more
series, the number of shares to be included in each series and the powers,
designations, preferences and rights of the shares. The Board of Directors is
also authorized to designate any qualifications, limitations or restrictions on
the shares without any further
6
<PAGE>
vote or action by the stockholders. In case any shares of Preferred Stock shall
be redeemed or converted pursuant to the terms thereof, the shares so converted
or redeemed shall be canceled and shall not be issuable by the Corporation. From
time to time this Certificate of Incorporation shall be appropriately revised to
reflect the corresponding reduction in the Corporation's authorized capital
stock.
ARTICLE VI.
CONDUCT OF CERTAIN AFFAIRS OF THE CORPORATION
A. DEFINITIONS. As used in this Article VI, the following terms shall
have the following meanings:
1. "CORPORATE OPPORTUNITY" shall mean an investment or
business opportunity or prospective economic advantage in which the Corporation
could, but for the provisions of this Article VI, have an interest or
expectancy.
2. "PARENT" shall mean USA Networks and its Affiliates.
3. "SUBSIDIARY" shall mean any corporation, partnership, joint
venture or other legal entity of which such Person (either directly or through
or together with any other Subsidiary of such Person), owns, directly or
indirectly, 50% or more of the stock or other equity interests the holders of
which are generally entitled to vote for the election of the board of directors
or similar governing body of such corporation, partnership, joint venture or
other legal entity.
7
<PAGE>
B. COMPETING ACTIVITIES. Except as otherwise expressly provided in an
agreement between the Corporation and any stockholder or among the Corporation
and any two or more stockholders, (i) the stockholders of the Corporation,
including, without limitation, Parent and its officers directors, agents,
stockholders, members, partners and Affiliates, may engage or invest in,
independently or with others, any business activity of any type or description,
including without limitation those that might be the same as or similar to the
Corporation's business or the business of any Subsidiary of the Corporation;
(ii) neither the Corporation, any Subsidiary of the Corporation nor any
stockholder of the Corporation shall have any right in or to such business
activities or ventures or to receive or share in any income or proceeds derived
therefrom; and (iii) to the extent required by applicable law in order to
effectuate the purpose of this provision, the Corporation shall have no interest
or expectancy, and specifically renounces any interest or expectancy, in any
such business activities or ventures.
C. CORPORATE OPPORTUNITIES.
1. If Parent (or, as set forth below, any of its officers,
directors, agents, stockholders, members, partners or Affiliates) acquires
knowledge of a potential transaction or matter which may be a Corporate
Opportunity or otherwise is then exploiting any Corporate Opportunity, the
Corporation shall have no interest in such Corporate Opportunity and no
expectancy that such Corporate Opportunity be
8
<PAGE>
offered to the Corporation, any such interest or expectancy being hereby
renounced, so that, as a result of such renunciation, and for the avoidance of
doubt, such Person (i) shall have no duty to communicate or present such
Corporate Opportunity to the Corporation, (ii) shall have the right to hold any
such Corporate Opportunity for its (and/or its officers', directors', agents',
stockholders', members', partners' or Affiliates') own account or to recommend,
sell, assign or transfer such Corporate Opportunity to Persons other than the
Corporation or any Subsidiary of the Corporation, and (iii) shall not breach any
fiduciary duty to the Corporation, in such Person's capacity as a stockholder of
the Corporation or otherwise, by reason of the fact that such Person pursues or
acquires such Corporate Opportunity for itself, directs, sells, assigns or
transfers such Corporate Opportunity to another Person, or does not communicate
information regarding such Corporate Opportunity to the Corporation.
2. Notwithstanding the provisions of clause (c)(1) of this
Article VI the Corporation does not renounce any interest or expectancy it may
have in any Corporate Opportunity that is offered to any person who is an
officer of the Corporation and who is also a director, but not an officer or
employee, of Parent if such opportunity is expressly offered to such person in
his or her capacity as an officer of the Corporation.
3. For purposes of this Article VI only, (i) a director of the
Corporation who is Chairman of the Board of Directors of the Corporation or of a
9
<PAGE>
committee thereof shall not be deemed to be an officer of the Corporation by
reason of holding such position (without regard to whether such position is
deemed an office of the corporation under the Bylaws of the Corporation), unless
such person is a full-time employee of the Corporation; and (ii) the term
"Corporation" shall mean the Corporation and all corporations, partnerships,
joint ventures, associations and other entities in which the Corporation
beneficially owns (directly or indirectly) 50% or more of the outstanding voting
stock, voting power, partnership interests or similar voting interests.
4. Anything in this Certificate of Incorporation to the
contrary notwithstanding, (i) clause C of this Article VI shall expire on the
date that Parent ceases to beneficially own Common Stock representing at least
20% of the total voting power of all classes of outstanding capital stock of the
Corporation entitled to vote in the election of directors and no person who is a
director or officer of the Corporation is also a director or officer of Parent;
and (ii) in addition to any vote of the stockholders required by law, until the
time that Parent ceases to beneficially own Common Stock representing at least
20% of the total voting power of all classes of outstanding capital stock of the
Corporation entitled to vote in the election of directors, the affirmative vote
of the holders of more than 80% of the total voting power of all such classes of
outstanding capital stock of the Corporation shall be required to alter, amend
or repeal in a manner adverse to the interests of Parent or adopt an provision
adverse to the
10
<PAGE>
interests of Parent and inconsistent with, any provision of this Article VI.
Neither the alteration, amendment or repeal of this Article VI nor the adoption
of any provision of this Certificate of Incorporation inconsistent with this
Article VI shall eliminate or reduce the effect of this Article VI in respect of
any matter occurring, or any cause of action, suit or claim that, but for this
Article VI, would accrue or arise prior to such alteration, amendment, repeal or
adoption.
D. NOTICE TO HOLDERS. Any person purchasing or otherwise acquiring any
interest in shares of the capital stock of the Corporation shall be deemed to
have notice of and to have consented to the provision s of this Article VI.
ARTICLE VII.
ELECTION OF DIRECTORS
Election of directors need not be by written ballot except and to the
extent provided in the Bylaws of the Corporation.
ARTICLE VIII.
BYLAWS
Except as set forth in the Bylaws of the Corporation, the Board of
Directors is expressly authorized to adopt, amend or repeal the Bylaws of the
Corporation, and the stockholders may adopt additional Bylaws and may alter or
repeal any Bylaw whether adopted by them or otherwise.
11
<PAGE>
ARTICLE IX.
INDEMNIFICATION
Each person who is or was or had agreed to become a director or officer
of the Corporation, or each such person who is or was serving or who had agreed
to serve at the request of the Board of Directors or an officer of the
Corporation as an employee or agent of the Corporation or as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise (including the heirs, executors, administrators or
estate of such person), shall be indemnified by the Corporation, in accordance
with the Bylaws of the Corporation, to the full extent permitted by the General
Corporation Law as the same exists or may hereafter be amended (but, in the case
of any such amendment, 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) or any other applicable laws
as presently or hereinafter in effect. Without limiting the generality or the
effect of the foregoing, the Corporation may enter into one or more agreements
with any person that provide for indemnification greater or different than that
provided in this Article IX. Any amendment or repeal of this Article IX shall
not adversely affect any right or protection existing hereunder immediately
prior to such amendment or repeal.
12
<PAGE>
ARTICLE X.
LIMITATION OF LIABILITY
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 General Corporation Law or (iv)
for any transaction from which the director derived any improper personal
benefit. Any amendment or repeal of this Article X shall not adversely affect
any right or protection of a director of the Corporation existing immediately
prior to such amendment or repeal. The liability of a director shall be further
eliminated or limited to the full extent permitted by Delaware law, as it may
hereafter be amended.
ARTICLE XI.
AMENDMENT
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation in the manner now
or hereafter prescribed by the General Corporation Law, and all rights conferred
upon stockholders herein are granted subject to this reservation.
13
<PAGE>
WITNESS the signature of this Certificate of Incorporation this 22nd
day of March, 2000.
/s/ Cheryl L. Vinall
-------------------------------
Cheryl L. Vinall
14
