AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
ELECTRONIC ARTS INC.
Electronic Arts Inc., a Delaware corporation, hereby certifies that:
1. The name of the corporation is Electronic Arts Inc. The date of filing
its original Certificate of Incorporation with the Secretary of State was May 8,
1991.
2. This Amended and Restated Certificate of Incorporation of the
corporation attached hereto as Exhibit "A", which is incorporated herein by this
reference, and which restates, integrates and further amends the provisions of
the Certificate of Incorporation of this corporation as heretofore amended or
supplemented, has been duly adopted by the corporation's Board of Directors and
a majority of the stockholders in accordance with Sections 242 and 245 of the
Delaware General Corporation Law.
IN WITNESS WHEREOF, said corporation has caused this Amended and Restated
Certificate of Incorporation to be signed by its duly authorized officer and the
foregoing facts stated herein are true and correct.
Dated: March 22, 2000 ELECTRONIC ARTS INC.
By: s/s .
---------------------------
Name: Ruth A. Kennedy
Title: Senior Vice President
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EXHIBIT "A"
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
ELECTRONIC ARTS INC.
ARTICLE I
The name of the corporation is Electronic Arts Inc. (the "Company").
ARTICLE II
The address of the registered office of the Company in the State of
Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle.
The name of its registered agent at that address is The Company Trust Company.
ARTICLE III
The purpose of the Company is to engage in any lawful act or activity for
which corporations may be organized under the General Corporation Law of
Delaware.
ARTICLE IV
The total number of shares of stock of all classes which the Company is
authorized to issue is 510,000,000 shares, consisting of 400,000,000 shares of
Class A Common Stock, par value $0.01 per share ("Class A Common Stock"),
100,000,000 shares of Class B Common Stock, par value $0.01 per share ("Class B
Common Stock"), and 10,000,000 shares of Preferred Stock, par value $0.01 per
share. Effective upon the filing of this Amended and Restated Certificate of
Incorporation, each share of Common Stock outstanding immediately prior thereto
shall thereupon automatically be re-classified as one share of Class A Common
Stock (and outstanding certificates that had theretofore represented shares of
Common Stock shall thereupon represent an equivalent number of shares of Class A
Common Stock despite the absence of any indication thereon to that effect).
The Board of Directors is authorized, subject to any limitations prescribed
by the law of the State of Delaware, to provide for the issuance of Preferred
Stock in one or more series, to establish from time to time the number of shares
to be included in each such series, to fix the designation, powers, preferences
and rights of the shares of each such series and any qualifications, limitations
or restrictions thereof, and to increase or decrease the shares of any such
series (but not below the number of shares of such series then outstanding).
ARTICLE V
The rights, preferences, privileges and restrictions granted to and imposed
on the Class A Common Stock and the Class B Common Stock are as follows:
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1. Definitions. For purposes of this Article V, the following definitions
apply:
1.1"All or Substantially All of the Assets" of either Group means a portion
of such assets that represents at least 80% of the then-current Fair Value of
the assets of such Group.
1.2 "Available Dividend Amount" shall mean for EA or EA.com, as the case
may be, on any day on which dividends are paid on shares of Class A Common Stock
or Class B Common Stock, respectively, the amount that would, immediately prior
to the payment of such dividends, be legally available for the payment of
dividends on shares of EA's or EA.com's common stock under Delaware law if (a)
EA and EA.com were each a single, separate Delaware corporation, (b) EA had
outstanding (i) a number of shares of common stock, par value $0.01 per share,
equal to the number of shares of Class A Common Stock that are then outstanding
and (ii) a number of shares of preferred stock, par value $0.01 per share, equal
to the number of shares of Preferred Stock that are then outstanding, (c) EA.com
had outstanding (i) a number of shares of common stock, par value $0.01 per
share, equal to the number of shares of Class B Common Stock that are then
outstanding plus the Number of Shares Issuable with Respect to EA's Retained
Interest in EA.com and (ii) no shares of preferred stock, and (d) EA owned a
number of shares of such common stock of EA.com equal to the Number of Shares
Issuable with Respect to EA's Retained Interest in EA.com.
1.3 "Board" shall mean the Board of Directors of the Company.
1.4 "Class A Common Stock" shall mean the Class A Common Stock, par value
$0.01 per share, of the Company. For purposes of this Article V the Class A
Common Stock is deemed to relate to EA.
1.5 "Class B Common Stock" shall mean the Class B Common Stock, par value
$0.01 per share, of the Company. For purposes of this Article V the Class B
Common Stock is deemed to relate to EA.com.
1.6 "Common Stock" shall mean the Class A Common Stock and the Class B
Common Stock of the Company.
1.7 "Company" shall mean this corporation.
1.8 "Disposition" shall mean a sale, transfer, assignment or other
disposition (whether by merger, consolidation, sale or otherwise) of All or
Substantially All of the Assets of a Group to one or more persons or entities,
in one transaction or a series of related transactions.
1.9 "EA" shall mean (a) all of the businesses, assets and liabilities of
the Company and its subsidiaries, other than the businesses, assets and
liabilities of EA.com, and (b) a proportionate interest in EA.com (after giving
effect to any options, other securities or debt issued or incurred by the
Company and attributed to EA.com) equal to the Retained Interest Fraction;
provided, however, that: (i) the Company may transfer assets from one Group to
another Group in return for other assets or services rendered by that other
Group in the ordinary course of business or in accordance with policies
established by the Board from time to time, and (ii) if the Company transfers
cash, other assets or securities to holders of shares of Class B
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Common Stock as a dividend or other distribution on shares of the Class B Common
Stock (other than a dividend or distribution payable in shares of Class B Common
Stock), or as payment in a redemption required by Section 3 of this Article V,
then the Board shall transfer from EA.com to EA cash or other assets having a
Fair Value equal to the aggregate Fair Value of the cash, other assets or
securities so transferred to holders of the Class B Common Stock times the
Retained Interest Proportion with respect to EA.com as of the record date for
such dividend or distribution, or on the date of such redemption, as the case
may be.
1.10 "EA.com" means all of the businesses, assets and liabilities of EA.com
Inc., a Delaware corporation ("EA.com") and its subsidiaries, including (a) any
businesses, assets or liabilities of the Company or any of its subsidiaries that
the Company has, as of the Effective Date, transferred to EA.com, (b) any
businesses, assets or liabilities acquired or incurred by the Company or any of
its subsidiaries after the Effective Date that the Company transfers to EA.com
or that the Company otherwise transfers to EA.com in accordance with policies
established from time to time by the Board and (c) the rights and obligations of
EA.com under any inter-Group debt deemed to be owed to or by EA.com (as such
rights and obligations are defined in accordance with policies established from
time to time by the Board); provided, however, that the Company may transfer
assets from one Group to the other Group as provided in clauses (i) and (ii) in
Section 1.9 above.
1.11 "Effective Date" shall mean the date on which this Amended and
Restated Certificate of Incorporation becomes effective under Delaware law.
1.12 "Exempt Disposition" shall mean any of the following: (a) a
Disposition in connection with the liquidation, dissolution or winding-up of the
Company and the distribution of assets to stockholders, (b) a Disposition to any
person or entity controlled by the Company (as determined by the Board in its
sole discretion), (c) a dividend, out of EA.com's assets, to holders of Class B
Common Stock (and a transfer of a corresponding amount of EA.com's assets to EA
as required pursuant to clause (ii) of the proviso to the definition of EA
above), (d) a dividend, out of EA's assets, to holders of Class A Common Stock
and (e) any other Disposition, if (i) at the time of the Disposition there are
no shares of Class A Common Stock outstanding, (ii) at the time of the
Disposition there are no shares of Class B Common Stock outstanding, or (iii)
before the 30th Trading Day following the Disposition the Company has mailed a
notice stating that it is exercising its right to exchange all of the
outstanding shares of Class B Common Stock for newly issued shares of Class A
Common Stock as contemplated under Section 3.2 of this Article V.
1.13 "Fair Value" shall mean (a) in the case of cash, the amount thereof,
(b) in the case of capital stock that is Publicly Traded, the Market Value
thereof and (c) in the case of other assets or securities, the fair market value
thereof as determined in good faith by the Board in consultation with outside
valuation or appraisal experts selected by the Board in good faith (which
determination shall be conclusive and binding on all stockholders).
1.14 "Group" shall mean EA or EA.com.
1.15 "Market Value" of a share of any class or series of capital stock on
any Trading Day means the average of the high and low reported sales prices of a
share of such class or series on such Trading Day or, in case no such reported
sale takes place on such Trading Day,
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the average of the reported closing bid and asked prices of a share of such
class or series on such Trading Day, in either case as reported on the New York
Stock Exchange ("NYSE") Composite Tape or, if the shares of such class or series
are not listed or admitted to trading on the NYSE on such Trading Day, on the
principal national securities exchange on which the shares of such class or
series are listed or admitted to trading or, if not listed or admitted to
trading on any national securities exchange on such Trading Day, on the Nasdaq
National Market ("Nasdaq NM") or, if the shares of such class or series are not
listed or admitted to trading on any national securities exchange or quoted on
the Nasdaq NM on such Trading Day, the average of the closing bid and asked
prices of a share of such class or series in the over-the-counter market on such
Trading Day as furnished by any NYSE member firm selected from time to time by
the Company or, if such closing bid and asked prices are not made available by
any such NYSE member firm on such Trading Day, the Fair Value of a share of such
class or series; provided, that, for purposes of determining the average Market
Value of a share of any class or series of capital stock for any period, (a) the
"Market Value" of a share of any class or series of capital stock on any day
prior to any "ex-dividend" date or any similar date occurring during such period
for any dividend or distribution (other than any dividend or distribution
contemplated by clause (b)(ii) of this sentence) paid or to be paid with respect
to such capital stock shall be reduced by the Fair Value of the per share amount
of such dividend or distribution and (b) the "Market Value" of a share of any
class or series of capital stock on any day prior to (i) the effective date of
any subdivision (by stock split or otherwise) or combination (by reverse stock
split or otherwise) of outstanding shares of such class or series of capital
stock occurring during such period or (ii) any "ex-dividend" date or any similar
date occurring during such period for any dividend or distribution with respect
to such capital stock to be made in shares of such class or series of capital
stock or convertible securities that are convertible, exchangeable or
exercisable for such class or series of capital stock shall be appropriately
adjusted, as determined by the Board, to reflect such subdivision, combination,
dividend or distribution; and provided further, if (a) the Company repurchases
outstanding shares of Class B Common Stock (other than by virtue of a pro rata
distribution on all outstanding shares of Class B Common Stock) and the Board
attributes that repurchase (and the consideration therefor) to EA.com and (b)
the Company determines to transfer to EA cash or other assets of EA.com in order
to avoid a change in the Retained Interest Fraction, the "Market Value" of a
share of Class B Common Stock used to compute the corresponding reduction in the
Number of Shares Issuable with Respect to EA's Retained Interest in EA.com will
equal the Fair Value of the consideration paid per share of Class B Common Stock
so repurchased; and provided further, if the Company redeems a portion of the
outstanding shares of Class B Common Stock (and the Company transfers to EA cash
or other assets of EA.com in the manner required by clause (ii) of the proviso
to the definition of EA above), the "Market Value" of a share Class B Common
Stock used to compute the corresponding reduction in the Number of Shares
Issuable with Respect to EA's Retained Interest in EA.com will equal the Fair
Value of the consideration paid per share of Class B Common Stock so redeemed.
1.16 "Net Proceeds" of a Disposition of a Group means the positive amount,
if any, remaining from the gross proceeds of such Disposition after any payment
of, or reasonable provision (as determined in good faith by the Board at the
time of the Disposition, which determination will be conclusive and binding on
all stockholders) for, (a) any taxes payable by the Company or any subsidiary in
respect of such Disposition or which would have been payable but for the
utilization of tax benefits attributable to the Group not the subject of the
Disposition,
<PAGE>
(b) any taxes payable by the Company in respect of any resulting dividend or
redemption, (c) any transaction costs, including, without limitation, any legal,
investment banking and accounting fees and expenses and (d) any liabilities
(contingent or otherwise) of, attributed to or related to, such Group,
including, without limitation, any liabilities for deferred taxes or any
indemnity or guarantee obligations which are outstanding or incurred in
connection with the Disposition or otherwise, any liabilities for future
purchase price adjustments and any obligations with respect to outstanding
securities (other than Common Stock) attributed to such Group as determined in
good faith by the Board.
1.17 "Number of Shares Issuable with Respect to EA's Retained Interest"
shall mean, with respect to EA.com, initially the number the Board designates
(prior to the time the Company first issues shares of the Class B Common Stock)
as the number of shares of Class B Common Stock that could be issued by the
Company for the account of EA in respect of its retained interest in EA.com, as
authorized by Article IV; provided, however, that such number as in effect from
time to time shall automatically be adjusted as required by Section 6 of this
Article V.
1.18 "Outstanding Interest Fraction" shall mean, (i) with respect to EA, at
any time of determination, 1 and (ii) with respect to EA.com, at any time of
determination, a fraction the numerator of which shall be the number of shares
of the series of Class B Common Stock outstanding on such date and the
denominator of which shall be the sum of the number of shares of Class B Common
Stock outstanding on such date and the Number of Shares Issuable with Respect to
EA's Retained Interest in EA.com.
1.19 "Publicly Traded" with respect to any security means (a) registered
under Section 12 of the Securities Exchange Act of 1934, as amended (or any
successor provision of law), and (b) listed for trading on the NYSE (or any
other national securities exchange registered under Section 7 of the Securities
Exchange Act of 1934, as amended (or any successor provision of law)) or listed
on the Nasdaq NM (or any successor market system).
1.20 "Qualified Public Offering" shall mean the closing of a firm
commitment underwritten public offering pursuant to an effective registration
statement filed under the Securities Act of 1933, as amended, covering the offer
and sale of the Class B Common Stock.
1.21 "Retained Interest Proportion" shall mean with respect to EA.com, at
any time of determination, a fraction the numerator of which shall be the Number
of Shares Issuable with Respect to EA's Retained Interest in EA.com and the
denominator of which shall be the number of shares of the Class B Common Stock
outstanding on such date.
1.22 "Retained Interest Fraction" shall mean with respect to EA.com, at any
time of determination, a fraction the numerator of which shall be the Number of
Shares Issuable with Respect to EA's Retained Interest in EA.com and the
denominator of which shall be the sum of the number of shares of the Class B
Common Stock outstanding on such date and the Number of Shares Issuable with
Respect to EA's Retained Interest in EA.com.
1.23 "Trading Day" shall mean each weekday on which the relevant security
(or, if there are two relevant securities, each relevant security) is traded on
the principal national
<PAGE>
securities exchange on which it is listed or admitted to trading or on the
Nasdaq NM or, if such security is not listed or admitted to trading on a
national securities exchange or quoted on the Nasdaq NM, traded in the principal
over-the-counter market in which it trades.
2. Dividend Rights.
2.1 Dividends Payable at Discretion of Board. Subject to any preferences
and relative, participating, optional or other special rights of any outstanding
class or series of preferred stock of the Company and any qualifications or
restrictions on any class of Common Stock created thereby, dividends may be
declared and paid upon any class of Common Stock, upon the terms with respect to
each such class, and subject to the limitations provided for below in this
Section 2, as the Board may determine.
2.2 Limitations. Dividends on any class of Common Stock may be declared and
paid only out of the lesser of (i) the funds of the Company legally available
therefor and (ii) in the case of the Class A Common Stock, the Available
Dividend Amount for EA, and, in the case of Class B Common Stock, the Available
Dividend Amount for EA.com.
2.3 Discrimination in Dividends Between Classes of Common Stock. The Board,
subject to the provisions of Section 2.1, may at any time declare and pay
dividends exclusively on a single class of Common Stock, or on both classes of
Common Stock, in equal or unequal amounts, notwithstanding the relative amounts
of the Available Dividend Amount with respect to EA or EA.com, the amount of
dividends previously declared on any class, the respective voting or liquidation
rights of any class or any other factor.
2.4 Share Distributions. Except as permitted by Section 3, the Board may
declare and pay dividends or distributions of shares of any class of Common
Stock (or securities convertible into or exchangeable or exercisable for shares
of any class of Common Stock) on shares of a class of Common Stock or on shares
of a class or series of preferred stock of the Company only as follows: (i)
dividends or distributions of shares of a class of Common Stock (or securities
convertible into or exchangeable or exercisable for shares of a class of Common
Stock) on shares of the same class of Common Stock or on shares of preferred
stock convertible into the same class of Common Stock; and (ii) dividends or
distributions of shares of Class B Common Stock (or securities convertible into
or exchangeable or exercisable for shares of Class B Common Stock) on shares of
Class A Common Stock or on shares of preferred stock convertible into Class A
Common Stock, but only if the sum of (1) the number of shares of Class B Common
Stock to be so issued (or the number of such shares which would be issuable upon
conversion, exchange or exercise of any securities to be so issued) and (2) the
number of shares of Class B Common Stock which are issuable upon conversion,
exchange or exercise of any securities then outstanding that are held by EA is
less than or equal to the Number of Shares Issuable with Respect to EA's
Retained Interest in EA.com at such time, and provided that in such event the
Number of Shares Issuable with Respect to EA's Retained Interest in EA.com shall
be decreased by the number of shares of Class B Common Stock so issued. For
purposes of this Section 2.4, any outstanding securities that are convertible
into or exchangeable or exercisable for any other securities which are
themselves convertible into or exchangeable or exercisable for Class B Common
Stock (or other securities that are so convertible, exchangeable or exercisable)
shall be deemed to have been converted, exchanged or exercised in full for such
securities.
<PAGE>
3. Mandatory Dividend, Redemption or Exchange on Disposition of All or
Substantially All of the Assets; Exchange of Class B Common Stock for Class A
Common Stock or for Stock of a Subsidiary at the Company's Option; Optional
Redemption of Class B Common Stock.
3.1 Mandatory Dividend, Redemption or Exchange.
3.1.1 In the event of a Disposition of All or Substantially All of the
Assets of EA.com (other than an Exempt Disposition), the Company shall, on or
prior to the 85th Trading Day after the consummation of such Disposition,
either: (x) declare and pay a dividend to holders of the Class B Common Stock
(in cash, securities (other than Common Stock) or other property, or a
combination thereof), subject to the limitations on dividends set forth under
Section 2 of this Article V, in an amount having a Fair Value equal to the
product of the Outstanding Interest Fraction with respect to such EA.com and the
Fair Value of the Net Proceeds of such Disposition; (y) redeem from holders of
the Class B Common Stock, for cash, securities (other than Common Stock) or
other property (or a combination thereof) in an amount equal to the product of
the Outstanding Interest Fraction with respect to EA.com and the Fair Value of
the Net Proceeds of such Disposition, all of the outstanding shares of the Class
B Common Stock (or, if EA.com continues after such Disposition to own any
material assets other than the proceeds of such Disposition, a number of shares
of Class B Common Stock (rounded, if necessary, to the nearest whole number)
having an aggregate average Market Value, during the 20 consecutive Trading Day
period beginning on (and including) the 16th Trading Day immediately following
the date on which the Disposition is consummated, equal to such Fair Value); or
(z) issue, in exchange for all of the outstanding shares of the Class B Common
Stock, a number of shares of the Class A Common Stock (rounded, if necessary, to
the nearest whole number) having an aggregate value equal to 115% of the
aggregate value of all of the outstanding shares of the Class B Common Stock
(where in each case value is based on the average Market Value of a share of the
relevant series of Common Stock during the 20 consecutive Trading Day period
beginning on (and including) the 16th Trading Day immediately following the date
on which the Disposition is consummated).
3.1.2 At any time within one year after completing any dividend or partial
redemption pursuant to (x) or (y) of the preceding sentence, the Company may
issue, in exchange for all of the remaining outstanding shares of the Class B
Common Stock, a number of shares of the Class A Common Stock (rounded, if
necessary, to the nearest whole number) having an aggregate value equal to 115%
of the aggregate value of all of the outstanding shares of the Class B Common
Stock (where in each case value is based on the average Market Value of a share
of the relevant series of Common Stock during the 20 consecutive Trading Day
period ending on (and including) the 5th Trading Day immediately preceding the
date on which the Company mails the notice of exchange to holders of the
relevant series).
3.1.3 For purposes of this Section 3, if a Disposition is consummated in a
series of related transactions, such Disposition shall not be deemed to have
been completed until consummation of the last of such transactions.
<PAGE>
3.2 Exchange of Stock of a Subsidiary for Class B Common Stock at Company's
Option. At any time after a Qualified Public Offering at which all of the assets
and liabilities of EA.com (and no other assets or liabilities of the Company or
any subsidiary thereof) are held directly or indirectly by one or more wholly
owned subsidiaries of the Company (the "EA.com Subsidiaries"), the Board may,
provided that there are funds of the Company legally available therefor, declare
that all of the outstanding shares of the Class B Common Stock shall be
exchanged, as of the exchange date described below, for the number of fully paid
and nonassessable shares of common stock of each of such EA.com Subsidiaries as
is equal to the product of the Outstanding Interest Fraction with respect to
EA.com (determined as of the exchange date) and the number of shares of common
stock of each such EA.com Subsidiary as will be outstanding immediately
following such exchange. Such shares of common stock of such EA.com Subsidiaries
(i) may be delivered directly or indirectly through the delivery of shares of
one or more of such EA.com Subsidiaries that own directly or indirectly all of
the other shares that are deliverable pursuant to the preceding sentence, and
(ii) shall be listed for trading on a national securities exchange or the Nasdaq
NM if the Class B Common Stock exchanged therefor is (at such time) so listed.
If the Number of Shares Issuable with Respect to EA's Retained Interest in
EA.com is greater than zero (so that less than all of the shares of common stock
of the EA.com Subsidiaries are being delivered to the holders of Class B Common
Stock), the Company may retain the remaining shares of common stock of the
EA.com Subsidiaries or distribute those shares as a dividend on Class A Common
Stock.
3.3 Exchange of Class A Common Stock for Class B Common Stock at Company's
Option. The Company may, at any time after the first anniversary of a Qualified
Public Offering, issue, in exchange for all of the outstanding shares of Class B
Common Stock, a number of shares of Class A Common Stock (rounded, if necessary,
to the nearest whole number) having an aggregate value equal to 115% of the
aggregate value of all of the outstanding shares of Class B Common Stock (where
in each case value is based on the average Market Value of a share of the
relevant class of Common Stock during the 20 consecutive Trading Day period
ending on (and including) the 5th Trading Day immediately preceding the date on
which the Company mails the notice of exchange to holders of the Class B Common
Stock).
3.4 General Dividend, Exchange and Redemption Provisions.
3.4.1 If the Company completes a Disposition of All or Substantially All of
the Assets of EA.com (other than an Exempt Disposition), the Company shall, not
more than 10 Trading Days after the consummation of such Disposition, issue a
press release specifying (w) the Net Proceeds of such Disposition, (x) the
number of shares of the Class B Common Stock then outstanding, (y) the number of
shares of Class B Common Stock issuable upon conversion, exchange or exercise of
any convertible or exchangeable securities, options or warrants and the
conversion, exchange or exercise prices thereof and (z) the Number of Shares
Issuable with Respect to EA's Retained Interest in EA.com. The Company shall,
not more than 40 Trading Days after such consummation, announce by press release
which of the actions specified in Section 3.1.1 of this Article V it has
determined to take, and upon making that announcement, that determination will
be irrevocable. In addition, the Company shall, not more than 40 Trading Days
after such consummation and not less than 10 Trading Days before the applicable
payment date, redemption date or exchange date, send a notice by first-class
mail, postage prepaid, to
<PAGE>
holders of the relevant class of Common Stock at their addresses as they appear
on the transfer books of the Company, specifying:
(1) if the Company has determined to pay a special dividend, (A) the
record date for such dividend, (B) the payment date of such dividend (which
cannot be more than 85 Trading Days after such consummation) and (C) the
aggregate amount and type of property to be paid in such dividend (and the
approximate per share amount thereof);
(2) if the Company has determined to undertake a redemption, (A) the
date of redemption (which cannot be more than 85 Trading Days after such
consummation), (B) the aggregate amount and type of property to be paid as a
redemption price (and the approximate per share amount thereof), (C) if less
than all shares of the Class B Common Stock are to be redeemed, the number of
shares to be redeemed and (D) the place or places where certificates for shares
of Class B Common Stock, properly endorsed or assigned for transfer (unless the
Company waives such requirement), should be surrendered in return for delivery
of the cash, securities or other property to be paid by the Company in such
redemption; and
(3) if the Company has determined to undertake an exchange, (A) the
date of exchange (which cannot be more than 85 Trading Days after such
consummation), (B) the number of shares of Class A Common Stock to be issued in
exchange for each outstanding share of Class B Common Stock and (C) the place or
places where certificates for shares of Class B Common Stock, properly endorsed
or assigned for transfer (unless the Company waives such requirement), should be
surrendered in return for delivery of the Class A Common Stock to be issued by
the Company in such exchange.
3.4.2 If the Company is redeeming less than all of the outstanding shares
of the Class B Common Stock pursuant to Section 3.1.1 of this Article V, the
Company shall redeem such shares pro rata or by lot or by such other method as
the Board determines to be equitable.
3.4.3 If the Company has determined to complete any exchange described in
Section 3.2 or 3.3 of this Article V, the Company shall, not less than 10
Trading Days and not more than 30 Trading Days before the exchange date, send a
notice by first-class mail, postage prepaid, to holders of the relevant class of
Common Stock at their addresses as they appear on the transfer books of the
Company, specifying (x) the exchange date and the other terms of the exchange
and (y) the place or places where certificates for shares of such class of
Common Stock, properly endorsed or assigned for transfer (unless the Company
waives such requirement), should be surrendered for delivery of the stock to be
issued or delivered by the Company in such exchange.
3.4.4 Neither the failure to mail any notice required by this Section 3.4
to any particular holder nor any defect therein would affect the sufficiency
thereof with respect to any other holder or the validity of any dividend,
redemption or exchange contemplated hereby.
3.4.5 No holder of shares of a class of Common Stock being exchanged or
redeemed shall be entitled to receive any cash, securities or other property to
be distributed in such exchange or redemption until such holder surrenders
certificates for such shares, properly
<PAGE>
endorsed or assigned for transfer, at such place as the Company shall specify
(unless the Company waives such requirement). As soon as practicable after the
Company's receipt of certificates for such shares, the Company shall deliver to
the person for whose account such shares were so surrendered, or to the nominee
or nominees of such person, the cash, securities or other property to which such
person shall be entitled, together with any fractional payment referred to
below, in each case without interest. If less than all of the shares of Common
Stock represented by any one certificate is exchanged or redeemed, the Company
shall also issue and deliver a new certificate for the shares of such Common
Stock not exchanged or redeemed.
3.4.6 The Company shall not be required to issue or deliver fractional
shares of any capital stock or any other fractional securities to any holder of
Common Stock upon any exchange, redemption, dividend or other distribution
described above. If more than one share of Common Stock shall be held at the
same time by the same holder, the Company may aggregate the number of shares of
any capital stock that would be issuable or any other securities that would be
distributable to such holder upon any such exchange, redemption, dividend or
other distribution. If there are fractional shares of any capital stock or any
other fractional securities remaining to be issued or distributed to any holder,
the Company shall, if such fractional shares or securities are not issued or
distributed to such holder, pay cash in respect of such fractional shares or
securities in an amount equal to the Fair Value thereof (without interest).
3.4.7 From and after the date of closing any exchange or redemption
contemplated by this Section 3, all rights of a holder of shares of Common Stock
being exchanged or redeemed shall cease except for the right, upon surrender of
the certificates theretofore representing such shares, to receive the cash,
securities or other property for which such shares were exchanged or redeemed,
together with any fractional payment as provided above, in each case without
interest (and, if such holder was a holder of record as of the close of business
on the record date for a dividend not yet paid, the right to receive such
dividend). A holder of shares of Common Stock being exchanged shall not be
entitled to receive any dividend or other distribution with respect to shares of
the other class of Common Stock until after certificates theretofore
representing the shares being exchanged are surrendered as contemplated above.
Upon such surrender, the Company shall pay to the holder the amount of any
dividends or other distributions (without interest) which theretofore became
payable with respect to a record date occurring after the exchange, but which
were not paid by reason of the foregoing, with respect to the number of whole
shares of the other class of Common Stock represented by the certificate or
certificates issued upon such surrender. From and after the date set for any
exchange, the Company shall, however, be entitled to treat the certificates for
shares of a series of Common Stock being exchanged that were not yet surrendered
for exchange as evidencing the ownership of the number of whole shares of the
other class of Common Stock for which the shares of such Common Stock should
have been exchanged, notwithstanding the failure to surrender such certificates.
3.4.8 The Company shall pay any and all documentary, stamp or similar issue
or transfer taxes that might be payable in respect of the issue or delivery of
any shares of capital stock and/or other securities on any exchange or
redemption contemplated by this Section 3; provided, however, that the Company
shall not be required to pay any tax that might be payable in respect of any
transfer involved in the issue or delivery of any shares of capital stock
<PAGE>
and/or other securities in a name other than that in which the shares so
exchanged or redeemed were registered, and no such issue or delivery will be
made unless and until the person requesting such issue pays to the Company the
amount of any such tax, or establishes to the satisfaction of the Company that
such tax has been paid.
3.4.9 The Company may, subject to applicable law, establish such other
rules, requirements and procedures to facilitate any dividend, redemption or
exchange contemplated by this Section 3 as the Board may determine to be
appropriate under the circumstances.
4. Voting Rights.
4.1 General. Subject to section 4.2, at every meeting of stockholders, the
holders of Class A Common Stock and the holders of Class B Common Stock shall
vote together as a single class on all matters as to which common stockholders
generally are entitled to vote, unless a separate vote is required by applicable
law. On all such matters for which no separate vote is required, (a) holders of
Class A Common Stock shall be entitled to one vote per share of Class A Common
Stock held and (b) holders of Class B Common Stock shall be entitled (i) at any
time prior to a Qualified Public Offering, to a number of votes per share of
Class B Common Stock held (calculated to the nearest five decimal places) equal
to the Market Value of a share of Class B Common Stock on the date the Company
first issues shares of Class B Common Stock divided by the average Market Value
of a share of Class A Common Stock during the 20 consecutive Trading Day period
ending on (and including) the 5th Trading Day before such date, and (ii) at any
time after a Qualified Public Offering, to a number of votes per share of Class
B Common Stock held (calculated to the nearest five decimal places) equal to the
initial public offering price of Class B Common Stock in the Qualified Public
Offering divided by the average Market Value of a share of Class A Common Stock
during the 20 consecutive Trading Day period ending on (and including) the 5th
Trading Day before the date of such Qualified Public Offering.
4.2 Class B Protective Provisions. So long as any shares of Class B Common
Stock remain outstanding, the Company shall not, without the approval of a
majority of the Class B Common Stock then outstanding, voting separately as a
class: (i) amend its Certificate of Incorporation in any manner that would alter
or change the rights, preferences, privileges or restrictions of the Class B
Common Stock so as to materially adversely affect the Class B Common Stock, or
(ii) increase or decrease (other than by redemption, conversion or exchange) the
total number of authorized shares of Class B Common Stock.
5. Liquidation Rights. In the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the Company, holders of Class A Common
Stock and holders of Class B Common Stock shall be entitled to receive in
respect of shares of Class A Common Stock and shares of Class B Common Stock
their proportionate interests in the net assets of the Company, if any,
remaining for distribution to stockholders (after payment of or provision for
all liabilities, including contingent liabilities of the Company). Each share of
each class of Common Stock will be entitled to a share of net liquidation
proceeds in proportion to the respective liquidation units per share of such
class. Each share of Class A Common Stock shall have one liquidation unit and
each share of Class B Common Stock shall have a number of liquidation
<PAGE>
units (including a fraction of one liquidation unit) equal to the quotient
(rounded to the nearest five decimal places) of the Market Value of a share of
Class B Common Stock on the date the Company first issues shares of Class B
Common Stock divided by the average Market Value of a share of Class A Common
Stock during the 20 consecutive Trading Day period ending on (and including) the
5th Trading Day before such date. Neither the merger nor consolidation of the
Company with any other entity, nor a sale, transfer or lease of all or any part
of the assets of the Company, would, alone, be deemed a liquidation, dissolution
or winding-up for purposes of this Section 5. If the Company shall in any manner
subdivide (by stock split, reclassification or otherwise) or combine (by reverse
stock split, reclassification or otherwise) the outstanding shares of Class A
Common Stock or Class B Common Stock, or declare a dividend in shares of either
class to holders of such class, the per share liquidation units of either class
shall be appropriately adjusted as determined by the Board, so as to avoid
dilution (in the aggregate) of the relative liquidation rights of the shares of
any class of Common Stock.
6. Adjustments to Number of Shares Issuable with Respect to EA's Retained
Interest in EA.com. The Number of Shares Issuable with Respect to EA's Retained
Interest in EA.com, as in effect from time to time, shall, automatically without
action by the Board or any other person, be: (a) adjusted in proportion to any
changes in the number of outstanding shares of Class B Common Stock caused by
subdivisions (by stock split, reclassification or otherwise) or combinations (by
reverse stock split, reclassification or otherwise) of shares of Class B Common
Stock or by dividends or other distributions of shares of Class B Common Stock
on shares of Class B Common Stock (and, in each such case, rounded, if
necessary, to the nearest whole number); (b) decreased by (i) if the Company
issues any shares of Class B Common Stock and the Board attributes that issuance
(and the proceeds thereof) to EA, the number of shares of Class B Stock so
issued, and (ii) if the Board transfers to EA any cash or other assets of EA.com
in connection with a redemption of shares of Class B Common Stock (as required
pursuant to clause (ii) of the proviso to the definition of EA) or in return for
a decrease in the Number of Shares Issuable with Respect to EA's Retained
Interest in EA.com, the number (rounded, if necessary, to the nearest whole
number) equal to (x) the aggregate Fair Value of such cash or other assets
divided by (y) the Market Value of one share of Class B Common Stock as of the
date of such transfer; and (c) increased by (i) if the Company repurchases any
shares of Class B Common Stock and the Board attributes that repurchase (and the
consideration therefor) to EA, the number of shares of Class B Common Stock so
repurchased and (ii) if the Board transfers to EA.com any cash or other assets
of EA in return for an increase in the Number of Shares Issuable with Respect to
EA's Retained Interest in EA.com, the number (rounded, if necessary, to the
nearest whole number) equal to (x) the Fair Value of such cash or other assets
divided by (y) the Market Value of one share of Class B Common Stock as of the
date of such transfer. Neither the Company nor the Board shall take any action
that would, as a result of any of the foregoing adjustments, reduce the Number
of Shares Issuable with Respect to EA's Retained Interest in EA.com to below
zero. Subject to the preceding sentence, the Board may attribute the issuance of
any shares of Class B Common Stock (and the proceeds therefrom) or the
repurchase of Class B Common Stock (and the consideration therefor) to EA or to
EA.com, as the Board determines in its sole discretion; provided, however, that
the Board must attribute to EA the issuance of any shares of Class B Common
Stock that are issued (1) as a dividend or other distribution on, or as
consideration for the repurchase of, shares of Class A Common Stock or (2) as
consideration to acquire any assets or satisfy any liabilities attributed to EA.
<PAGE>
7. Determinations by the Board. Subject to applicable law, any
determinations made by the Board in good faith under this Amended and Restated
Certificate of Incorporation or in any certificate of designation filed pursuant
hereto, including without limitation any such determinations with respect to the
businesses, assets and liabilities of either Group, transactions between the
Groups or the rights of holders of any class of Common Stock or Preferred Stock
made pursuant to or in the furtherance hereof or thereof, shall be final and
binding on all stockholders of the Company. A record of all formal
determinations of the Board made as contemplated hereby shall be filed with the
records of the actions of the Board.
ARTICLE VI
The stockholders of the Company shall have the power to adopt, amend or
repeal the Bylaws. The Board of Directors of the Company shall also have the
power to adopt, amend or repeal Bylaws of the Company, except insofar as Bylaws
adopted by the stockholders shall otherwise provide.
ARTICLE VII
Election of Directors need not be by written ballot unless a stockholder
demands election by written ballot at a stockholder meeting and before voting
begins, or unless the Bylaws of the Company shall so provide.
ARTICLE VIII
A Director of the Company shall not be personally liable to the Company 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 Company 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 Delaware General Corporation Law or (iv) for
any transactions 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 Company shall be eliminated or limited to the
fullest extent permitted by the Delaware General Corporation Law, as so amended.
Neither any amendment nor repeal of this Article VIII, nor the adoption of
any provision of this Certificate of Incorporation inconsistent with this
Article VIII, shall eliminate, reduce or otherwise adversely affect any
limitation on the personal liability of a director of the Company existing at
the time of such amendment, repeal or adoption of an inconsistent provision.
ARTICLE IX
Any action required or permitted to be taken by the stockholders of the
Company must be taken at a duly called annual or special meeting of such holders
and may not be taken by consent in writing by such holders, except that until
such time as there has been a Qualified Public Offering matters subject solely
to a vote of the holders of the Class B Common Stock may be taken by consent in
writing by such holders. Except as otherwise provided for herein or required
<PAGE>
by law, special meetings of stockholders of the Company for any purpose or
purposes may be called only by the Chairman of the Board of Directors pursuant
to a resolution stating the purpose or purposes thereof, and stockholders shall
not have any power to call a special meeting.
