Exhibit 2
AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER, dated as of October 12,
2000 (this "Amendment"), among iTurf Inc., a Delaware corporation ("iTurf"),
iTurf Breakfast Corp., a Delaware corporation and a wholly owned subsidiary of
iTurf ("Merger Sub"), and xXXxX*s Inc., a Delaware corporation ("xXXxX*s").
Capitalized terms used and not defined herein shall have the meanings ascribed
to them in the Merger Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, iTurf, Merger Sub and xXXxX*s have previously entered into that
certain Agreement and Plan of Merger, dated as of August 16, 2000 (the "Merger
Agreement"); and
WHEREAS, the parties desire to amend certain provisions of the Merger
Agreement as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby, the
parties hereby agree to amend the Merger Agreement as follows:
1. CERTIFICATE OF INCORPORATION. Section 1.04(a) of the Merger Agreement
shall be amended and restated in its entirety to read as follows:
(a) The Certificate of Incorporation of Merger Sub, as in effect
immediately prior to the Effective Time, in the form of EXHIBIT A attached
hereto, shall be the Certificate of Incorporation of the Surviving
Corporation following the Effective Time until thereafter amended as
provided by Delaware Law and such Certificate of Incorporation; PROVIDED,
HOWEVER, that Article I of the Certificate of Incorporation of the Surviving
Corporation shall be amended to read as follows: "FIRST: The name of the
corporation is xXXxX*s Group Inc."
2. SECOND RESTATED CERTIFICATE OF INCORPORATION OF ITURF. EXHIBIT C
(Second Restated Certificate of Incorporation) to the Merger Agreement shall be
amended and restated in its entirety to read as set forth on EXHIBIT C annexed
hereto.
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IN WITNESS WHEREOF, iTurf, Merger Sub and xXXxX*s have caused this Amendment
to be executed as of the date first written above by their respective officers
thereunto duly authorized.
iTurf Inc.
By: /s/ XXXXXXX X. XXXX
------------------------------------------
Xxxxxxx X. Xxxx
CHAIRMAN OF THE BOARD
AND CHIEF EXECUTIVE OFFICER
iTurf Breakfast Corp.
By: /s/ XXXXXXX X. XXXX
------------------------------------------
Xxxxxxx X. Xxxx
CHAIRMAN OF THE BOARD
AND CHIEF EXECUTIVE OFFICER
xXXxX*s Inc.
By: /s/ XXXX XXXXXXXXX
------------------------------------------
Xxxx Xxxxxxxxx
PRESIDENT
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EXHIBIT C
SECOND RESTATED CERTIFICATE OF INCORPORATION
ITURF INC.
iTurf Inc. (the "Corporation"), a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware, does
hereby amend and restate the Certificate of Incorporation of the Corporation,
which was originally filed on August 7, 1997, under the name xXXxX*s Interactive
Company, and amended and restated on April 6, 1999, under the name iTurf Inc.
FIRST. The name of the Corporation is:
xXXxX*s Corp.
SECOND. The address of the registered office of the Corporation in the
State of Delaware is Corporation Service Company, 0000 Xxxxxx Xxxx, Xxxx xx
Xxxxxxxxxx, Xxxxxx of Xxx Xxxxxx, Xxxxxxxx 00000. The name of its registered
agent at such address is Corporation Service Company.
THIRD. 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 of the State of Delaware as the same exists or may hereafter be amended
("Delaware Law").
FOURTH. Section 1. CAPITAL STOCK. (a) The total number of shares of stock
which the Corporation shall have authority to issue is 101,000,000, consisting
of 100,000,000 shares of Common Stock, par value $.01 per share (the "Common
Stock"), and 1,000,000 shares of Preferred Stock, par value $.01 per share (the
"Preferred Stock"). The Common Stock of the Corporation shall be divided into
two classes, consisting of Class A Common Stock and Class B Common Stock. The
Preferred Stock may be issued in one or more series having such designations as
may be fixed by the Board of Directors.
(b) The Board of Directors is expressly authorized to provide for the issue
of all or any shares of the Common Stock and the Preferred Stock, to determine
the number of shares of each class and to fix for each class of Common Stock and
for any series of Preferred Stock such voting powers, full or limited, or no
voting powers, and such designations, preferences and relative, participating,
optional or other special rights, and such qualifications, limitations or
restrictions thereof, as shall be stated and expressed in the resolution or
resolutions adopted by the Board of Directors or a duly authorized committee
thereof providing for the issue of such series and as may be permitted by
Delaware Law.
(c) The number of authorized shares of any class or classes of stock may be
increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of a majority of the Common Stock of the
Corporation irrespective of the provisions of Section 242(b)(2) of Delaware Law.
Section 2. COMMON STOCK. (a) Issuance and Consideration. Any unissued or
treasury shares of the Common Stock may be issued for such consideration as may
be fixed in accordance with applicable law from time to time by the Board of
Directors.
(b) Dividends. Subject to the rights of holders of the Preferred Stock, the
holders of the Common Stock shall be entitled to receive, when and as declared
by the Board of Directors, out of the assets of the Corporation which are by law
available therefor, dividends payable either in cash, in property, or in shares
of stock and the holders of the Preferred Stock shall not be entitled to
participate in any such dividends (unless otherwise provided by the Board of
Directors in any resolution providing for the issue of a series of Preferred
Stock).
(c) Number of Shares. Of the 100,000,000 shares of Common Stock of the
Corporation, 87,500,000 shares are initially designated as shares of Class A
Common Stock and 12,500,000 shares are initially designated as shares of
Class B Common Stock. Subject to the rights of the holders of
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Preferred Stock, the number of shares designated as Class A Common Stock or
Class B Common Stock may be increased or decreased from time to time by a
resolution or resolutions adopted by the Board of Directors or any duly
authorized committee thereof without the consent of the holders of any
outstanding shares of Common Stock or Preferred Stock.
(d) Powers, Preferences, Etc. The following is a statement of the powers,
preferences, and relative participating, optional or other special rights and
qualifications, limitations and restrictions of the Class A Common Stock and
Class B Common Stock of the Corporation:
(1) Except as otherwise set forth below in this ARTICLE FOURTH, the
powers, preferences and relative participating, optional or other special
rights and qualifications, limitations or restrictions of the Class A Common
Stock and Class B Common Stock shall be identical in all respects.
(2) Subject to the rights of the holders of Preferred Stock, and subject
to any other provisions of this Second Restated Certificate of Incorporation
(this "Restated Certificate of Incorporation"), holders of Class A Common
Stock and Class B Common Stock shall be entitled to receive such dividends
and other distributions in cash, stock of any corporation (other than Common
Stock of the Corporation) or property of the Corporation as may be declared
thereon by the Board of Directors from time to time out of assets or funds
of the Corporation legally available therefor and shall share equally on a
per share basis in all such dividends and other distributions. In the case
of dividends or other distributions payable in Common Stock, including
distributions pursuant to stock splits or divisions of Common Stock of the
Corporation, only shares of Class A Common Stock shall be paid or
distributed with respect to Class A Common Stock and only shares of Class B
Common Stock shall be paid or distributed with respect to Class B Common
Stock. The number of shares of Class A Common Stock and Class B Common Stock
so distributed shall be equal in number on a per share basis. Neither the
shares of Class A Common Stock nor the shares of Class B Common Stock may be
reclassified, subdivided or combined unless such reclassification,
subdivision or combination occurs simultaneously and in the same proportion
for each class.
(3) (A) At every meeting of the stockholders of the Corporation every
holder of Class A Common Stock shall be entitled to one vote in person or by
proxy for each share of Class A Common Stock standing in his or her name on
the transfer books of the Corporation, and every holder of Class B Common
Stock shall be entitled to six votes in person or by proxy for each share of
Class B Common Stock standing in his or her name on the transfer books of
the Corporation in connection with the election of directors and all other
matters submitted to a vote of stockholders; provided, however, that with
respect to any proposed conversion of the shares of Class B Common Stock
into shares of Class A Common Stock pursuant to paragraph (d)(5)(B), every
holder of a share of Common Stock, irrespective of class, shall have one
vote in person or by proxy for each share of Common Stock standing in his or
her name on the transfer books of the Corporation and provided, further,
however, that, upon any transfer of the Class B Common Stock, or any
Class A Common Stock into which Class B Common Stock may have been converted
at any time on or after the date of this Restated Certificate of
Incorporation, the Class B Common Stock, or Class A Common Stock, so
transferred shall have no voting rights, unless such transfer is first
approved by the affirmative vote of not less than a majority of the
outstanding shares of the Corporation entitled to vote thereon, in which
case the Class B Common Stock, or Class A Common Stock, so transferred shall
retain its voting rights granted hereunder. Except as may be otherwise
required by law or by this ARTICLE FOURTH, the holders of Class A Common
Stock and Class B Common Stock shall vote together as a single class,
subject to any voting rights which may be granted to holders of Preferred
Stock, on all matters submitted to a vote of the holders of Common Stock.
(B) Every reference in this Restated Certificate of Incorporation to a
majority or other proportion of shares of Common Stock, Class A Common Stock
or Class B Common Stock, shall
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refer to such majority or other proportion of the votes to which such shares
of Common Stock, Class A Common Stock or Class B Common Stock are entitled.
(4) In the event of any dissolution, liquidation or winding up of the
affairs of the Corporation, whether voluntary or involuntary, after payment
in full of the amounts required to be paid to the holders of Preferred
Stock, the remaining assets and funds of the Corporation shall be
distributed pro rata to the holders of Class A Common Stock and Class B
Common Stock. For the purposes of this paragraph (d)(4), the voluntary sale,
conveyance, lease, exchange or transfer (for cash, shares of stock,
securities or other consideration) of all or substantially all of the assets
of the Corporation or a consolidation or merger of the Corporation with one
or more other corporations (whether or not the Corporation is the
corporation surviving such consolidation or merger) shall not be deemed to
be a liquidation, dissolution or winding up, voluntary or involuntary.
(5) (A) Prior to the date on which shares of Class B Common Stock are
issued to stockholders of xXXxX*s Inc. or its successors ("xXXxX*s") in a
Tax-Free Spin-Off (as defined in paragraph (d)(5)(B)), each share of
Class B Common Stock is convertible at the option of the holder thereof into
one share of Class A Common Stock. At the time of a voluntary conversion,
the holder of shares of Class B Common Stock shall deliver to the office of
the Corporation or any transfer agent for the Class B Common Stock (i) the
certificate or certificates representing the shares of Class B Common Stock
to be converted, duly endorsed in blank or accompanied by proper instruments
of transfer, and (ii) written notice to the Corporation stating that such
holder elects to convert such share or shares and stating the name and
address in which each certificate for shares of Class A Common Stock issued
upon such conversion is to be issued. To the extent permitted by law and
subject to the taking of any necessary action, such voluntary conversion
shall be deemed to have been effected at the close of business on the date
when such delivery is made to the Corporation or such transfer agent of the
shares to be converted, and the person exercising such voluntary conversion
shall be deemed to be the holder of record of the number of shares of
Class A Common Stock issuable upon such conversion at such time. The
Corporation shall promptly deliver certificates evidencing the appropriate
number of shares of Class A Common Stock to such person.
(B) Each share of Class B Common Stock shall automatically convert into
one share of Class A Common Stock upon the transfer of such share if, after
such transfer, such share is not beneficially owned by xXXxX*s or any of its
subsidiaries (except a "Strategic Partner," as defined below), unless such
transfer is effected in connection with a transfer of Class B Common Stock
to stockholders of xXXxX*s as a dividend intended to be on a tax-free basis
under the Internal Revenue Code of 1986, as amended from time to time (the
"Code") (a "Tax-Free Spin-Off"). For purposes of this paragraph (d)(5) and
ARTICLES SEVENTH and NINTH, (i) the term "beneficially owned" with respect
to shares of Class B Common Stock means ownership by a person who, directly
or indirectly, through any contract, arrangement, understanding,
relationship or otherwise controls the voting power (which includes the
power to vote or to direct the voting of) of such Class B Common Stock, and
(ii) the term "Strategic Partner" means any entity, or group of affiliated
entities, acquiring Class B Common Stock constituting, in the aggregate, at
least 10% of the outstanding common stock and which, in the good faith
judgment of the Board of Directors of the Corporation by the affirmative
vote of a majority of directors who are not directors, officers of the
beneficial owners of five percent or more of the outstanding voting
securities of xXXxX*s is considered to constitute a strategic alliance in
the best interests of the Corporation and its stockholders. In the event of
a Tax-Free Spin-Off, shares of Class B Common Stock shall automatically
convert into shares of Class A Common Stock on the fifth anniversary of the
date on which shares of Class B Common Stock are first transferred to
stockholders of xXXxX*s in a Tax-Free Spin-Off unless, prior to such
Tax-Free Spin-Off, xXXxX*s delivers to the Corporation an opinion of xXXxX*s
counsel (which counsel shall be reasonably satisfactory to the
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Corporation) to the effect that such conversion would preclude xXXxX*s from
obtaining a favorable ruling from the Internal Revenue Service that the
distribution would be a Tax-Free Spin-Off under the Code. If such an opinion
is received, approval of such conversion shall be submitted to a vote of the
holders of the Common Stock as soon as practicable after the fifth
anniversary of the Tax-Free Spin-Off unless xXXxX*s delivers to the
Corporation an opinion of xXXxX*s counsel (which counsel shall be reasonably
satisfactory to the Corporation) prior to such anniversary to the effect
that such vote would adversely affect the status of the Tax-Free Spin-Off.
At the meeting of stockholders called for such purpose, every holder of
Common Stock shall be entitled to one vote in person or by proxy for each
share of Common Stock standing in his or her name on the transfer books of
the Corporation. Approval of such conversion shall require the approval of a
majority of the votes entitled to be cast by the holders of the Class A
Common Stock and Class B Common Stock present and voting, voting together as
a single class, and the holders of the Class B Common Stock shall not be
entitled to a separate class vote. Such conversion shall be effective on the
date on which such approval is given at a meeting of stockholders called for
such purpose.
Each share of Class B Common Stock beneficially owned by any person
shall automatically convert into one share of Class A Common Stock if a
Tax-Free Spin-Off has not occurred and the number of shares of Class B
Common Stock beneficially owned by such person is or becomes less than
10 percent of the aggregate number of shares of Class A Common Stock and
Class B Common Stock then outstanding.
The Corporation shall at all times reserve and keep available, free from
preemptive rights, out of the aggregate of its authorized but unissued
Common Stock and its issued Common Stock held in its treasury for the
purpose of effecting any conversion of the Class B Common Stock pursuant to
this paragraph (d)(5), the full number of shares of Class A Common Stock
then deliverable upon any such conversion of all outstanding shares of
Class B Common Stock.
The Corporation will provide notice of any automatic conversion of
shares of Class B Common Stock to holders of record of the Common Stock not
less than 30 nor more than 60 days prior to the date fixed for such
conversion; provided, however, that if the timing or nature of the
effectiveness of an automatic conversion makes it impracticable to provide
at least 30 days' notice, the Corporation shall provide such notice as soon
as practicable. Such notice shall be provided by mailing notice of such
conversion first class postage prepaid, to each holder of record of the
Common Stock, at such holder's address as it appears on the transfer books
of the Corporation; provided, however, that no failure to give such notice
nor any defect therein shall affect the validity of the automatic conversion
of any shares of Class B Common Stock. Each such notice shall state, as
appropriate, the following:
(i) the automatic conversion date;
(ii) the number of outstanding shares of Class B Common Stock that are
to be converted automatically;
(iii) the place or places where certificates for such shares are to be
surrendered for conversion; and
(iv) that no dividends will be declared on the shares of Class B Common
Stock converted after such conversion date.
Immediately upon such conversion, the rights of the holders of shares of
Class B Common Stock as such shall cease and such holders shall be treated
for all purposes as having become the record owners of the shares of
Class A Common Stock issuable upon such conversion; provided, however, that
such persons shall be entitled to receive when paid any dividends declared
on the
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Class B Common Stock as of a record date preceding the time of such
conversion and unpaid as of the time of such conversion.
As promptly as practicable after the time of conversion, upon the
delivery to the Corporation of certificates formerly representing shares of
Class B Common Stock, the Corporation shall deliver or cause to be
delivered, to or upon the written order of the record holder of the
surrendered certificates formerly representing shares of Class B Common
Stock, a certificate or certificates representing the number of fully paid
and nonassessable shares of Class A Common Stock into which the shares of
Class B Common Stock formerly represented by such certificates have been
converted in accordance with the provisions of this paragraph (d)(5).
(C) The Corporation will pay any and all documentary, stamp or similar
issue or transfer taxes payable in respect of the issue or delivery of
shares of one class of Common Stock on the conversion of shares of the other
class of Common Stock pursuant to this paragraph (d)(5); provided, however,
that the Corporation shall not be required to pay any tax which may be
payable in respect of any registration of transfer involved in the issue or
delivery of shares of one class of Common Stock in a name other than that of
the registered holder of the other class of Common Stock converted, and no
such issue or delivery shall be made unless and until the person requesting
such issue has paid to the Corporation the amount of any such tax or has
established, to the satisfaction of the Corporation, that such tax has been
paid.
(D) Concurrently with any conversion of Class B Common Stock into
Class A Common Stock effected pursuant to paragraph (d)(5)(A) and
(B) above, each share of Class B Common Stock that is converted (i) shall be
retired and canceled and shall not be reissued and (ii) shall proportionally
decrease the number of shares of Class B Common Stock designated hereby. 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 of Decrease of Designated Shares to record any such
decrease in designated shares of Common Stock. No undesignated shares of
Common Stock shall be designated shares of Class B Common Stock following an
automatic conversion of shares of Class B Common Stock pursuant to
paragraph (d)(5)(B) above.
Section 3. PREFERRED STOCK. (a) Series and Limits of Variations between
Series. Any unissued or treasury shares of the Preferred Stock may be issued
from time to time in one or more series for such consideration as may be fixed
from time to time by the Board of Directors and each share of a series shall be
identical in all respects with the other shares of such series, except that, if
the dividends thereon are cumulative, the date from which they shall be
cumulative may differ. Before any shares of Preferred Stock of any particular
series shall be issued, a certificate shall be filed with the Secretary of State
of Delaware setting forth the designation, rights, privileges, restrictions, and
conditions to be attached to the Preferred Stock of such series and such other
matters as may be required, and the Board of Directors shall fix and determine,
and is hereby expressly empowered to fix and determine, in the manner provided
by law, the particulars of the shares of such series (so far as not inconsistent
with the provisions of this ARTICLE FOURTH applicable to all series of Preferred
Stock), including, but not limited to, the following:
(1) the distinctive designation of such series and the number of shares
which shall constitute such series, which number may be increased (except
where otherwise provided by the Board of Directors in creating such series)
or decreased (but not below the number of shares thereof then outstanding)
from time to time by like action of the Board of Directors;
(2) the annual rate of dividends payable on shares of such series, the
conditions upon which such dividends shall be payable and the date from
which dividends shall be cumulative in the event the Board of Directors
determines that dividends shall be cumulative;
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(3) whether such series shall have voting rights, in addition to the
voting rights provided by law and, if so, the terms of such voting rights;
(4) whether such series shall have conversion privileges and, if so, the
terms and conditions of such conversion, including, but not limited to,
provision for adjustment of the conversion rate upon such events and in such
manner as the Board of Directors shall determine;
(5) whether or not the shares of such series shall be redeemable and, if
so, the terms and conditions of such redemption, including the date or dates
upon or after which they shall be redeemable, and the amount per share
payable in case of redemption, which amount may vary under different
conditions and at different redemption dates;
(6) whether such series shall have a sinking fund for the redemption or
purchase of shares of that series and, if so, the terms and amount of such
sinking fund;
(7) the rights of the shares of such series in the event of voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, and
the relative rights of priority, if any, of payment of shares of that
series; and
(8) any other relative rights, preferences and limitations of such
series.
Section 4. NO PREEMPTIVE RIGHTS. Except as otherwise set forth above in
this ARTICLE FOURTH, no holder of shares of this Corporation of any class shall
be entitled, as such, as a matter of right, to subscribe for or purchase shares
of any class now or hereafter authorized, or to purchase or subscribe for
securities convertible into or exchangeable for shares of the Corporation or to
which there shall be attached or appertain any warrants or rights entitling the
holders thereof to purchase or subscribe for shares.
FIFTH. Section 1. AMENDMENT OF BYLAWS BY DIRECTORS. In furtherance and
not in limitation of the powers conferred by statute, the Board of Directors is
expressly authorized to make, repeal, alter, amend and rescind the bylaws of the
Corporation.
Section 2. AMENDMENT OF BYLAWS BY THE STOCKHOLDERS. The bylaws shall not
be made, repealed, altered, amended or rescinded by the stockholders of the
Corporation except by the vote of not less than 75 percent of the outstanding
shares of the Corporation entitled to vote thereon. Any amendment to the
Certificate of Incorporation which shall contravene any bylaw in existence on
the record date of the stockholders meeting at which such amendment is to be
voted upon by the stockholders shall require the vote of not less than
75 percent of the outstanding shares entitled to vote thereon.
SIXTH. Section 1. CLASSIFIED BOARD. Effective immediately upon the
issuance of more than 1,000 shares of Common Stock of the Corporation, the Board
of Directors (exclusive of directors to be elected by the holders of any one or
more series of Preferred Stock voting separately as a class or classes) shall be
divided into three classes, Class A, Class B, and Class C. The number of
directors in each class shall be the whole number contained in the quotient
arrived at by dividing the authorized number of directors by three, and if a
fraction is also contained in such quotient, then if such fraction is one-third,
the extra director shall be a member of Class A and if the fraction is two
thirds, one of the extra directors shall be a member of Class A and the other
shall be a member of Class B. Each director shall serve for a term ending on the
date of the third annual meeting following the annual meeting at which such
director was elected; provided, however, that the directors first elected to
Class A shall serve for a term ending on the date of the annual meeting next
following the end of the calendar year 1999, the directors first elected to
Class B shall serve for a term ending on the date of the annual meeting next
following the end of the calendar year 2000, and the directors first elected to
Class C shall serve for a term ending on the date of the annual meeting next
following the end of the calendar year 2001. Notwithstanding the foregoing
formula provisions, in the event that, as a result of any change in the
authorized number of directors, the number of directors in any class would
differ
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from the number allocated to that class under the formula provided in this
ARTICLE SIXTH immediately prior to such change, the following rules shall
govern:
(a) each director then serving as such shall nevertheless continue as a
director of the class of which such director is a member until the
expiration of his current term, or his prior death, resignation or removal;
(b) at each subsequent election of directors, even if the number of
directors in the class whose term of office then expires is less than the
number then allocated to that class under said formula, the number of
directors then elected for membership in that class shall not be greater
than the number of directors in that class whose term of office then
expires, unless and to the extent that the aggregate number of directors
then elected plus the number of directors in all classes then duly
continuing in office does not exceed the then authorized number of directors
of the Corporation;
(c) at each subsequent election of directors, if the number of directors
in the class whose term of office then expires exceeds the number then
allocated to that class under said formula, the Board of Directors shall
designate one or more of the directorships then being elected as directors
of another class or classes in which the number of directors then serving is
less than the number then allocated to such other class or classes under
said formula;
(d) in the event of the death, resignation or removal of any director
who is a member of a class in which the number of directors serving
immediately preceding the creation of such vacancy exceeded the number then
allocated to that class under said formula, the Board of Directors shall
designate the vacancy thus created as a vacancy in another class in which
the number of directors then serving is less than the number then allocated
to such other class under said formula;
(e) in the event of any increase in the authorized number of directors,
the newly created directorships resulting from such increase shall be
apportioned by the Board of Directors to such class or classes as shall, so
far as possible, bring the composition of each of the classes into
conformity with the formula in this ARTICLE SIXTH, as it applies to the
number of directors authorized immediately following such increase; and
(f) designation of directorships or vacancies into other classes and
apportionments of newly created directorships to classes by the Board of
Directors under the foregoing items (c), (d) and (e) shall, so far as
possible, be effected so that the class whose term of office is due to
expire next following such designation or apportionment shall contain the
full number of directors then allocated to said class under said formula.
Notwithstanding any of the foregoing provisions of this ARTICLE SIXTH, each
director shall serve until his successor is elected and qualified or until his
death, resignation or removal.
Section 2. ELECTION BY HOLDERS OF PREFERRED STOCK. During any period when
the holders of any Preferred Stock or any one or more series thereof, voting as
a class, shall be entitled to elect a specified number of directors, by reason
of dividend arrearages or other provisions giving them the right to do so, then
and during such time as such right continues (i) the then otherwise authorized
number of directors shall be increased by such specified number of directors,
and the holders of such Preferred Stock or such series thereof, voting as a
class, shall be entitled to elect the additional directors so provided for,
pursuant to the provisions of such Preferred Stock or series; (ii) each such
additional director shall serve for such term, and have such voting powers, as
shall be stated in the provisions pertaining to such Preferred Stock or series;
and (iii) whenever the holders of any such Preferred Stock or series thereof are
divested of such rights to elect a specified number of directors, voting as a
class, pursuant to the provisions of such Preferred Stock or series, the terms
of office of all directors elected by the holders of such Preferred Stock or
series, voting as a class pursuant to such provisions or elected to fill any
vacancies resulting from the death, resignation or removal of directors
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so elected by the holders of such Preferred Stock or series, shall forthwith
terminate and the authorized number of directors shall be reduced accordingly.
Section 3. BALLOTS. Elections of directors at an annual or special meeting
of stockholders need not be by written ballot unless the bylaws of the
Corporation shall provide otherwise.
Section 4. ELIMINATION OF CERTAIN PERSONAL LIABILITY OF DIRECTORS. A
director of this Corporation shall not be personally liable to the Corporation
or its stockholders for monetary damages for breach of any fiduciary duty as a
director to the fullest extent permitted by Delaware Law.
SEVENTH. Section 1. MEETINGS. Unless otherwise prescribed by law or this
Restated Certificate of Incorporation, special meetings of stockholders may be
held at any time on call of the Chairman of the Board of Directors, a Vice
Chairman of the Board of Directors, the President or, at the request in writing
of a majority of the Board of Directors, any officer.
Section 2. ACTION BY WRITTEN CONSENT. Any corporate action required to be
taken at any annual or special meeting of stockholders of the Corporation, or
any corporate action that may be taken at any annual or special meeting of the
stockholders, may be taken without a meeting, without prior notice and without a
vote, if a consent or consents in writing, setting forth the corporate action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted and shall be delivered to the Corporation by delivery to its
registered office in Delaware (either by hand or by certified or registered
mail, return receipt requested), its principal place of business, or an officer
or agent of the Corporation having custody of the book in which proceedings of
meetings of stockholders are recorded; provided, however, that on and after the
date on which none of xXxxX*s, any of its subsidiaries, any Strategic Partner or
Xxxxxxx X. Xxxx beneficially owns in the aggregate 50 percent or more of the
total voting power of all classes of outstanding Common Stock, any corporate
action required to be taken at any annual or special meeting of the
stockholders, or any corporate action which may be taken at any annual or
special meeting of the stockholders, may be taken only at a duly called annual
or special meeting of stockholders and may not be taken by written consent of
the stockholders in lieu of such meeting. So long as stockholders are entitled
to consent to corporate action in writing without a meeting in accordance with
this ARTICLE SEVENTH, every written consent shall bear the date of signature of
each stockholder who signs the consent and no written consent shall be effective
to take the corporate action referred to therein unless, within sixty (60) days
of the date the earliest dated consent is delivered to the Corporation, a
written consent or consents signed by a sufficient number of holders to take
action are delivered to the Corporation in the manner prescribed in this ARTICLE
SEVENTH.
EIGHTH. Section 1. AMENDMENT OF CERTAIN ARTICLES. The provisions set
forth in this ARTICLE EIGHTH and in ARTICLES FIFTH, SIXTH, Section 1, SEVENTH
and NINTH may not be amended, altered, changed, or repealed in any respect
unless such amendment, alteration, change or repealing is approved by the
affirmative vote of not less than 75 percent of the outstanding shares of the
Corporation entitled to vote thereon; provided that with respect to any proposed
amendment, alteration or change to this Restated Certificate of Incorporation,
or repealing of any provision of this Restated Certificate of Incorporation,
which would amend, alter or change the powers, preferences or special rights of
the shares of Class A Common Stock or Class B Common Stock so as to affect them
adversely, the affirmative vote of not less than 75 percent of the outstanding
shares affected by the proposed amendment, voting as a separate class, shall be
required in addition to the vote otherwise required pursuant to this ARTICLE
EIGHTH.
Section 2. AMENDMENTS GENERALLY. Subject to the provisions of Section 1 of
this ARTICLE EIGHTH, the Corporation reserves the right to amend, alter, change
or repeal any provision contained in this Restated Certificate of Incorporation,
in the manner now or hereafter prescribed by statute, and all rights conferred
on stockholders herein are granted subject to this reservation.
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NINTH Section 1. In anticipation that the Corporation will cease to be a
wholly owned subsidiary of xXXxX*s, but that xXXxX*s will remain a stockholder
of the Corporation, and in anticipation that the Corporation and xXXxX*s may
engage in the same or similar activities or lines of business and have an
interest in the same areas of corporate opportunities, and in recognition of
(i) the benefits to be derived by the Corporation through its continued
contractual, corporate and business relations with xXXxX*s (including service of
officers and directors of xXXxX*s as officers and directors of the Corporation)
and (ii) the difficulties attendant to any director, who desires and endeavors
fully to satisfy such director's fiduciary duties, in determining the full scope
of such duties in any particular situation, the provisions of this ARTICLE NINTH
are set forth to regulate, define and guide the conduct of certain affairs of
the Corporation as they may involve xXXxX*s and its officers and directors, and
the powers, rights, duties and liabilities of the Corporation and its officers,
directors and stockholders in connection therewith.
Section 2. The Corporation and xXXxX*s may agree upon a method for
allocating business opportunities between them. Subject to and except as
provided in any such agreement:
(a) xXXxX*s shall not have a duty to refrain from engaging directly or
indirectly in the same or similar business activities or lines of business
as the Corporation;
(b) neither xXXxX*s nor any officer or director thereof shall be liable
to the Corporation or its stockholders for breach of any fiduciary duty by
reason of any such activities of xXXxX*s or of such person's participation
therein;
(c) in the event that xXXxX*s acquires knowledge of a potential
transaction or matter that may be a corporate opportunity for both xXXxX*s
and the Corporation, xXXxX*s shall have no duty to communicate or offer such
corporate opportunity to the Corporation and shall not be liable to the
Corporation or its stockholders for breach of any fiduciary duty as a
stockholder of the Corporation or controlling person of a stockholder by
reason of the fact that xXXxX*s pursues or acquires such corporate
opportunity for itself, directs such corporate opportunity to another person
or entity, or does not communicate information regarding, or offer, such
corporate opportunity to the Corporation.
Section 3. Subject to any agreement pursuant to Section 2 of this ARTICLE
NINTH, in the event that a director, officer or employee of the Corporation who
is also a director, officer or employee of xXXxX*s acquires knowledge of a
potential transaction or matter that may be a corporate opportunity for the
Corporation and xXXxX*s (whether such potential transaction or matter is
proposed by a third party or is conceived of by such director, officer or
employee of the Corporation), such director, officer or employee shall be
entitled to offer such corporate opportunity to the Corporation or xXXxX*s as
such director, officer or employee deems appropriate under the circumstances in
his sole discretion, and no such director, officer or employee shall be liable
to the Corporation or its stockholders for breach of any fiduciary duty or duty
of loyalty or failure to act in (or not opposed to) the best interests of the
Corporation or the derivation of any improper personal benefit by reason of the
fact that (i) such director, officer or employee offered such corporate
opportunity to xXXxX*s (rather than the Corporation) or did not communicate
information regarding such corporate opportunity to the Corporation or
(ii) xXXxX*s pursues or acquires such corporate opportunity for itself or
directs such corporate opportunity to another person or does not communicate
information regarding such corporate opportunity to the Corporation.
Section 4. Any person or entity purchasing or otherwise acquiring any
interest in any shares of capital stock of the Corporation shall be deemed to
have notice of and to have consented to the provisions of this ARTICLE NINTH and
the contractual provisions provided for in this ARTICLE NINTH.
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Section 5. For purposes of this ARTICLE NINTH only, (i) 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 percent or more of the outstanding
voting stock, voting power or similar voting interests, and (ii) the term
"xXXxX*s" shall mean xXXxX*s and all corporations, partnerships, joint ventures,
associations and other entities (other than the Corporation, defined in
accordance with clause (i) of this Section 5) in which xXXxX*s beneficially owns
(directly or indirectly) 50 percent or more of the outstanding voting stock,
voting power or similar voting interests.
Section 6. Notwithstanding anything in this Certificate of Incorporation to
the contrary, the foregoing provisions of this ARTICLE NINTH shall expire on the
date that xXXxX*s ceases to own beneficially Common Stock representing at least
10 percent of the aggregate number of outstanding shares of Class A Common Stock
and Class B Common Stock of the Corporation and no person who is a director or
officer of the Corporation is also a director or officer of xXXxX*s. Neither the
alteration, amendment, change or repeal of any provision of this ARTICLE NINTH
nor the adoption of any provision of this Restated Certificate of Incorporation
inconsistent with any provision of this ARTICLE NINTH shall eliminate or reduce
the effect of this ARTICLE NINTH in respect of any matter occurring, or any
cause of action, suit or claim that, but for this ARTICLE NINTH, would accrue or
arise, prior to such alteration, amendment, repeal or adoption.
Section 7. The provisions of this ARTICLE NINTH are in addition to the
provisions of ARTICLE SIXTH, Section 5.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation, having been
duly adopted by the stockholders of the Corporation in accordance with the
provisions of Sections 242 and 245 of the General Corporation Law of the State
of Delaware, has been executed this day of , 2000.
iTurf Inc.
By:
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Name: Xxxx X. Xxxxxxx
Title: Secretary
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