Attached files
| file | filename |
|---|---|
| 8-K - BLUEFLY INC | k176021_8-k.htm |
| EX-99.1 - BLUEFLY INC | k176021_ex99-1.htm |
| EX-10.1 - BLUEFLY INC | k176021_ex10-1.htm |
Exhibit
3.1
AMENDED
AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
BLUEFLY,
INC.
_________________________
Bluefly,
Inc., a Delaware corporation (the “Corporation”), does hereby certify
that:
FIRST: The present
name of the Corporation is “Bluefly, Inc.” The name under which the Corporation
was originally incorporated was “Bluefly Merger Sub, Inc.” The date
of filing of the original Certificate of Incorporation of the Corporation with
the Secretary of State of the State of Delaware was October 31, 2000 (the
“Certificate of Incorporation”).
SECOND: This
Amended and Restated Certificate of Incorporation amends and restates in its
entirety the Certificate of Incorporation of the Corporation, as amended to
date. This Amended and Restated Certificate has been duly adopted and
approved by the Board of Directors of the Corporation by unanimous written
consent in lieu of a meeting thereof in accordance with the provisions of
Sections 141(f), 242 and 245 of the General Corporation Law of the State of
Delaware and by written consent of the holders of a majority of the outstanding
common stock, par value $0.01 per share, of the Corporation in accordance with
the provisions of Sections 228, 242 and 245 of the General Corporation Law of
the State of Delaware.
THIRD: This Amended
and Restated Certificate shall become effective immediately upon its filing with
the Secretary of State of the State of Delaware.
FOURTH: Upon the
filing with the Secretary of State of the State of Delaware of this Amended and
Restated Certificate of Incorporation, the Certificate of Incorporation of the
Corporation, as amended to date, shall be amended and restated in its entirety
to read as set forth on Exhibit A attached
hereto.
IN
WITNESS WHEREOF, the Corporation has caused this Amended and Restated
Certificate of Incorporation to be executed by a duly authorized officer this
25th day of February, 2010.
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BLUEFLY,
INC.
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By:
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/s/ Kara Jenny
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Name:
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Kara
Jenny
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Title:
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Chief
Financial Officer
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EXHIBIT
A
AMENDED
AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
BLUEFLY,
INC.
1.
Name. The
name of the corporation is BLUEFLY, INC. (the “Corporation”).
2.
Address; Registered Office
and Agent. The address of the Corporation’s registered office
is 2711 Centerville Road, Suite 400, City of Wilmington, County of New Castle,
State of Delaware; and its registered agent at such address is Corporation
Service Company.
3.
Purposes. 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.
4.
Number of
Shares.
4.1. The
total number of shares of stock that the Corporation shall have authority to
issue is: fifty-one million (51,000,000) of which fifty million (50,000,000)
shall be shares of Common Stock of the par value of $0.01
(“Common Stock”) and one million (1,000,000) shall be shares of
Preferred Stock of the par value of $0.01 each (“Preferred Stock”).
4.2. The
designation, relative rights, preferences and limitations of the shares of each
class are as follows:
4.2.1. The
shares of Preferred Stock may be issued from time to time in one or more series
having such number and such distinctive serial designations, as shall hereafter
be stated and expressed in the resolution or resolutions providing for the issue
of such shares of Preferred Stock from time to time adopted by the Board
pursuant to authority so to do which is hereby vested in the
Board. Each series of shares of Preferred Stock (a) may have such
voting powers, full or limited, or may be without voting powers; (b) may be
subject to redemption at such time or times and at such prices; (c) may be
entitled to receive dividends (which may be cumulative or non-cumulative) at
such rate or rates, on such conditions and at such times, and payable in
preference to, or in such relation to, the dividends payable on any other class
or classes or series of stock; (d) may have such rights upon the dissolution of,
or upon any distribution of the assets of, the Corporation; (e) may be made
convertible into or exchangeable for, shares of any other class or classes or of
any other series of the same or any other class or classes of shares of the
Corporation at such price or prices or at such rates of exchange and with such
adjustments; (f) may be entitled to the benefit of a sinking fund to be applied
to the purchase or redemption of shares of such series in such amount or
amounts; (g) may be entitled to the benefit of conditions and restrictions upon
the creation of indebtedness of the Corporation or any subsidiary, upon the
issue of any additional shares (including additional shares of such series or of
any other series) and upon the payment of dividends or the making of other
distributions on, and the purchase, redemption or other acquisition by the
Corporation or any subsidiary of, any outstanding shares of the Corporation and
(h) may have such other relative,
participating,
optional or other special rights, qualifications, limitations or restrictions
thereof; all as shall be stated in said resolution or resolutions providing for
the issue of such shares of Preferred Stock.
4.2.2. Except
as otherwise provided by law, elsewhere in this Certificate or by the resolution
or resolutions providing for the issue of any series of shares of Preferred
Stock, the holders of outstanding shares of Common Stock shall exclusively
possess voting power for the election of directors and for all other purposes,
each holder of record of shares of Common Stock being entitled to one vote for
each share of Common Stock standing in its, his or her name on the books of the
Corporation. Except as otherwise provided elsewhere in this
Certificate or by the resolution or resolutions providing for the issue of any
series of shares of Preferred Stock, the holders of shares of Common Stock shall
be entitled, to the exclusion of the holders of shares of Preferred Stock of any
and all series, to receive such dividends as from time to time may be declared
by the Board. Except as otherwise provided elsewhere in this
Certificate or by the resolution or resolutions providing for the issue of any
series of shares of Preferred Stock, in the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
after payment shall have been made to the holders of shares of Preferred Stock
of the full amount to which they shall be entitled as provided elsewhere in this
Certificate or pursuant to the resolution or resolutions providing for the issue
of any series of shares of Preferred Stock, the holders of shares of Common
Stock shall be entitled, to the exclusion of the holders of shares of Preferred
Stock of any and all series, to share, ratably according to the number of shares
of Common Stock held by them, in all remaining assets of the Corporation
available for distribution to its stockholders.
4.2.3. Subject
to the provisions of this Certificate of Incorporation and except as otherwise
provided by law, the stock of the Corporation, regardless of class, may be
issued for such consideration and for such corporate purposes as the Board may
from time to time determine.
5.
Election of
Directors. Members of the Board of Directors of the
Corporation (the “Board”) may be elected either by written ballot or by voice
vote.
6.
Limitation of
Liability. No director of the Corporation shall be personally
liable to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, provided that this provision shall not eliminate
or limit the liability of a director (a) for any breach of such person’s duty of
loyalty to the Corporation or its stockholders, (b) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (c) under section 174 of the General Corporation Law or (d) for any
transaction from which the director derived any improper personal
benefits.
Any
repeal or modification of the foregoing provision shall not adversely affect any
right or protection of a director of the Corporation existing at the time of
such repeal or modification.
7.
Indemnification.
7.1. To
the extent not prohibited by law, the Corporation shall indemnify any person who
is or was made, or threatened to be made, a party to any threatened, pending
or
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completed
action, suit or proceeding (a “Proceeding”), whether civil, criminal,
administrative or investigative, including, without limitation, an action by or
in the right of the Corporation to procure a judgment in its favor, by reason of
the fact that such person, or a person of whom such person is the legal
representative, is or was a director or officer of the Corporation, or, at the
request of the Corporation, is or was serving as a director or officer of any
other corporation or in a capacity with comparable authority or responsibilities
for any partnership, joint venture, trust, employee benefit plan or other
enterprise (an “Other Entity”), against any judgments, fines, penalties, excise
taxes, amounts paid in settlement and costs, charges and expenses (including
attorneys’ fees, disbursements and other charges). Persons who are
not directors or officers of the Corporation (or otherwise entitled to
indemnification pursuant to the preceding sentence) may be similarly indemnified
in respect of service to the Corporation or to an Other Entity at the request of
the Corporation to the extent the Board at any time specifies that such persons
are entitled to the benefits of this Section 7.
7.2. The
Corporation shall, from time to time, reimburse or advance to any director or
officer or other person entitled to indemnification hereunder the funds
necessary for payment of expenses, including attorneys’ fees and disbursements,
incurred in connection with any Proceeding, in advance of the final disposition
of such Proceeding; provided, however, that, if required by the General
Corporation Law, such expenses incurred by or on behalf of any director or
officer or other person may be paid in advance of the final disposition of a
Proceeding only upon receipt by the Corporation of an undertaking, by or on
behalf of such director or officer (or other person indemnified hereunder), to
repay any such amount so advanced if it shall ultimately be determined by final
judicial decision from which there is no further right of appeal that such
director, officer or other person is not entitled to be indemnified for such
expenses.
7.3. The
rights to indemnification and reimbursement or advancement of expenses provided
by, or granted pursuant to, this Section 7 shall not be deemed exclusive of any
other rights to which a person seeking indemnification or reimbursement or
advancement of expenses may have or hereafter be entitled under any statute,
this Certificate of Incorporation, the By-laws of the Corporation (the
“By-laws”), any agreement, any vote of stockholders or disinterested directors
or otherwise, both as to action in his or her official capacity and as to action
in another capacity while holding such office.
7.4. The
rights to indemnification and reimbursement or advancement of expenses provided
by, or granted pursuant to, this Section 7 shall continue as to a person who has
ceased to be a director or officer (or other person indemnified hereunder) and
shall inure to the benefit of the executors, administrators, legatees and
distributees of such person.
7.5. The
Corporation shall have power to purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation as a director, officer,
employee or agent of an Other Entity, against any liability asserted against
such person and incurred by such person in any such capacity, or arising out of
such person’s status as such, whether or not the Corporation would have the
power to indemnify such person against such liability under the provisions of
this Section 7, the By-laws or under section 145 of the General Corporation Law
or any other provision of law.
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7.6. The
provisions of this Section 7 shall be a contract between the Corporation, on the
one hand, and each director and officer who serves in such capacity at any time
while this Section 7 is in effect and any other person entitled to
indemnification hereunder, on the other hand, pursuant to which the Corporation
and each such director, officer, or other person intend to be, and shall be,
legally bound. No repeal or modification of this Section 7 shall
affect any rights or obligations with respect to any state of facts then or
theretofore existing or thereafter arising or any proceeding theretofore or
thereafter brought or threatened based in whole or in part upon any such state
of facts.
7.7. The
rights to indemnification and reimbursement or advancement of expenses provided
by, or granted pursuant to, this Section 7 shall be enforceable by any person
entitled to such indemnification or reimbursement or advancement of expenses in
any court of competent jurisdiction. The burden of proving that such
indemnification or reimbursement or advancement of expenses is not appropriate
shall be on the Corporation. Neither the failure of the Corporation
(including its Board, its independent legal counsel and its stockholders) to
have made a determination prior to the commencement of such action that such
indemnification or reimbursement or advancement of expenses is proper in the
circumstances nor an actual determination by the Corporation (including its
Board, its independent legal counsel and its stockholders) that such person is
not entitled to such indemnification or reimbursement or advancement of expenses
shall constitute a defense to the action or create a presumption that such
person is not so entitled. Such a person shall also be indemnified
for any expenses incurred in connection with successfully establishing his or
her right to such indemnification or reimbursement or advancement of expenses,
in whole or in part, in any such proceeding.
7.8. Any
director or officer of the Corporation serving in any capacity with (a) another
corporation of which a majority of the shares entitled to vote in the election
of its directors is held, directly or indirectly, by the Corporation or (b) any
employee benefit plan of the Corporation or any corporation referred to in
clause (a) shall be deemed to be doing so at the request of the
Corporation.
7.9. Any
person entitled to be indemnified or to reimbursement or advancement of expenses
as a matter of right pursuant to this Section 7 may elect to have the right to
indemnification or reimbursement or advancement of expenses interpreted on the
basis of the applicable law in effect at the time of the occurrence of the event
or events giving rise to the applicable Proceeding, to the extent permitted by
law, or on the basis of the applicable law in effect at the time such
indemnification or reimbursement or advancement of expenses is
sought. Such election shall be made by a notice in writing to the
Corporation, at the time indemnification or reimbursement or advancement of
expenses is sought; provided, however, that if no such notice is given, the
right to indemnification or reimbursement or advancement of expenses shall be
determined by the law in effect at the time indemnification or reimbursement or
advancement of expenses is sought.
8.
Adoption, Amendment and/or
Repeal of By-Laws. Subject to such vote of
stockholders as may be required by this Certificate of Incorporation, the Board
may from time to time adopt, amend or repeal the By-laws of the Corporation;
provided, however, that any By-laws adopted or amended by the Board may be
amended or repealed, and any By-laws may be adopted, by the stockholders of the
Corporation by such vote as may be required by this
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Certificate
of Incorporation plus the vote of the holders of a majority of the shares of
stock of the Corporation entitled to vote in the election of directors of the
Corporation.
9.
Documents. A
copy of any document referred to herein will be furnished to any stockholder of
record upon written request to the Corporation’s secretary.
10. Classification of Board of
Directors. Immediately subsequent to the effective date of this Amended
and Restated Certificate of Incorporation, the Board shall be divided into three
classes, designated Class 1, Class 2 and Class 3, as nearly equal in number as
the then total number of directors constituting the whole Board permits, with
the term of office of one class expiring each year. The term of the directors of
Class 1 shall expire at the first election of directors after the effective date
of this Amended and Restated Certificate of Incorporation, the term of the
directors of Class 2 shall expire at the second election of directors after the
effective date of this Amended and Restated Certificate of Incorporation and the
term of the directors of Class 3 shall expire at the third election of directors
after the effective date of this Amended and Restated Certificate of
Incorporation. Subject to the foregoing, at each annual meeting of stockholders,
the successors to the class of directors whose term shall then expire shall be
elected to hold office for a term expiring at the third succeeding annual
meeting and each director so elected shall hold office until his successor is
elected and qualified, or until his earlier death, resignation or removal. The
Board of Directors is hereby authorized to assign members of the Board already
in office to serve on such classes as the Board sees fit effective as of
immediately subsequent to the effective time of this Amended and Restated
Certificate of Incorporation. If the number of directors is changed, any
increase or decrease in the number of directors shall be apportioned among the
three classes so as to make all classes as nearly equal in number as possible,
and the Board shall decide which class shall contain an unequal number of
directors.
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