Certificate Of Incorporation

EXHIBIT 3.1


AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
GETTHERE.COM, INC.
a Delaware corporation


(Originally incorporated on August 13, 1999)


Matthew John Ackerman hereby certifies that:


ONE: He is the duly elected and acting Vice President of Finance, Operations, and Services of GetThere.com, Inc. a Delaware corporation (this "Corporation").


TWO: The Corporation's Certificate of Incorporation is hereby amended and restated to read as follows:


ARTICLE I


The name of the Corporation is GetThere.com, Inc.


ARTICLE II


The address of the registered office of this corporation in the State of Delaware is 15 E. North Street, in the city of Dover, County of Kent. The name of its registered agent at such address is Incorporating Services, Ltd.


ARTICLE III


The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.


ARTICLE IV


A. This Corporation is authorized to issue two classes of stock to be designated, respectively, "Common Stock" and "Preferred Stock." The total number of shares which the Corporation is authorized to issue is Seventy-Seven Million Eighty-Seven Thousand Nine Hundred Forty-Six (77,087,946) shares, Fifty Million (50,000,000) shares of which shall be Common Stock (the "Common Stock"), par value $0.0001 per share, and Twenty-Seven Million Eighty-Seven Thousand Nine Hundred Forty-Six (27,087,946) shares of which shall be Preferred Stock (the "Preferred Stock"), par value $0.0001 per share.


B. A description of the respective classes and series of stock and a statement of the designations, preferences, voting powers, relative, participating, optional or other special rights and privileges, and the qualifications, limitations and restrictions of the Preferred Stock and Common Stock are as follows:


1. Designation and Amount. The Preferred Stock authorized
---------------------- by this Amended and Restated Certificate of Incorporation (the "Amended Certificate") may be issued from time to time in one or more series. The first series shall be designated Series A Preferred Stock (the "Series A Preferred"), which series shall consist of Four Million (4,000,000) shares, the second series shall be designated Series B Preferred Stock (the "Series B Preferred"), which series shall consist of Four Million Five Hundred Thousand (4,500,000) shares, the third series shall be designated Series C Preferred Stock (the "Series C Preferred"), which series shall consist of Eleven Million Two Hundred Thirty-Six Thousand Eight Hundred Twenty-One (11,236,821) shares, the fourth series shall be designated Series D1 Preferred Stock ("Series D1 Preferred"), which series shall consist of one (1) share, the fifth series shall be designated Series D2 Preferred Stock ("Series D2 Preferred"), which series shall consist of one (1) share, the sixth series shall be designated Series D3 Preferred Stock ("Series D3 Preferred"), which series shall consist of one (1) share and the seventh series shall be designated Series E Preferred Stock (the "Series E Preferred"), which series shall consist of Seven Million Three Hundred Fifty-One Thousand One Hundred Twenty-Two (7,351,122) shares.


The Board of Directors of the Corporation (the "Board of Directors") is hereby authorized to fix or alter the rights, preferences, privileges and restrictions granted to or imposed upon additional series of Preferred Stock, and the number of shares constituting any such series and the designation thereof, or any of them. Subject to compliance with applicable protective voting rights which have been or may be granted to Preferred Stock or series thereof in Certificates of Determination or in this Amended Certificate ("Protective Provisions"), but notwithstanding any other rights of any series of Preferred Stock, the rights, privileges, preferences and restrictions of any such additional series may be subordinate to, pari passu with (including,
---------- without limitation, inclusion in provisions with respect to liquidation and acquisition preferences, redemption and/or approval of matters by vote or written consent), or senior to any of those of any present or future class or series of Preferred Stock or Common Stock. Subject to compliance with applicable Protective Provisions, the Board is also authorized to increase or decrease the number of shares of any series (other than Series A Preferred, Series B Preferred, Series C Preferred, Series D1 Preferred, Series D2 Preferred, Series D3 Preferred and Series E Preferred), prior or subsequent to the issue of that series (but not below the number of shares of such series then outstanding). In case the number of shares of any series shall be so decreased, the shares constituting such decrease shall resume the status which they had prior to the adoption of the resolution originally fixing the number of shares of such series.


2. Dividends and Distributions.
---------------------------


(a) Subject to the rights of series of Preferred Stock that may from time to time come into existence and the provisions for adjustment hereinafter set forth, each holder of shares of Series A Preferred, each holder of shares of Series B Preferred, each holder of shares of Series C Preferred and each holder of Series E Preferred shall be entitled to receive, when, as and if declared by the Board out of funds legally available for such purpose, an annual cash dividend in the amount of $0.079331 per share of Series A Preferred, $0.1162 per share of Series B Preferred, $0.35875 per share of Series C Preferred and $0.875 per share of Series E Preferred (as adjusted to reflect any stock split, stock dividend, combination, recapitalization and the like (collectively, a "Recapitalization") with respect to such series of Preferred Stock), prior and in preference to any declaration or payment of any dividend (payable


other than in Common Stock) on the Common Stock, Series D1 Preferred, Series D2 Preferred or Series D3 Preferred of the Corporation. Such dividends shall not be cumulative, and no right shall accrue to holders of such shares of Preferred Stock by reason of the fact that dividends on such shares are not declared or paid in any year.


(b) Notwithstanding Section 2(a) hereof, the Corporation may at any time, out of funds legally available therefor, repurchase shares of Common Stock of the Corporation (i) issued to or held by employees, directors or consultants of the Corporation or its subsidiaries upon termination of their employment or services, pursuant to any agreement providing for such right of repurchase, or (ii) issued to or held by any person subject to the Corporation's right of first refusal to purchase such shares where the purchase is pursuant to the exercise of such right of first refusal, in either case whether or not dividends on the Preferred Stock shall have been declared and paid or funds set aside therefor. The holders of Series A Preferred, Series B Preferred, Series C Preferred, Series D1 Preferred, Series D2 Preferred, Series D3 Preferred and Series E Preferred expressly waive their rights, if any, as they relate to the repurchase of shares upon termination of employment or pursuant to a right of first refusal.


3. Liquidation Rights. Subject to the rights of series of
------------------ Preferred Stock that may from time to time come into existence, in the event of any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, distributions shall be made to the holders of Series A Preferred, Series B Preferred, Series C Preferred, Series D1 Preferred, Series D2 Preferred, Series D3 Preferred and Series E Preferred in respect of such Series A Preferred, Series B Preferred, Series C Preferred, Series D1 Preferred, Series D2 Preferred, Series D3 Preferred and Series E Preferred before any amount shall be paid to the holders of Common Stock in respect of such Common Stock, in the following manner:


(a) Series A Preferred, Series B Preferred, Series C
------------------------------------------------ Preferred, Series D1 Preferred, Series D2 Preferred, Series D3 Preferred and ----------------------------------------------------------------------------- Series E Preferred. The holders of the Series A Preferred, Series B Preferred, ------------------ Series C Preferred, Series D1 Preferred, Series D2 Preferred, Series D3 Preferred and Series E Preferred shall be entitled to be paid out of the assets and surplus funds of the Corporation available for distribution to stockholders of the Corporation, prior and in preference to any distribution of any of the assets and surplus funds of the Corporation to the holders of the Common Stock, an amount per share equal to (i) $1.1333 (the "Original Series A Issue Price"), as adjusted for any Recapitalization, for each outstanding share of Series A Preferred plus all declared and unpaid dividends, if any, on such share, (ii) $1.66 (the "Original Series B Issue Price"), as adjusted for any Recapitalization, for each outstanding share of Series B Preferred plus all declared and unpaid dividends, if any, on such share, (iii) $5.125 (the "Original Series C Issue Price"), as adjusted for any Recapitalization, for each outstanding share of Series C Preferred plus all declared and unpaid dividends, if any, on such share, (iv) $10.00 (the "Original Series D1 Issue Price"), as adjusted for any Recapitalization, for each outstanding share of Series D1 Preferred plus all declared and unpaid dividends, if any, on such share, (v) $10.00 (the "Original Series D2 Issue Price"), as adjusted for any Recapitalization, for each outstanding share of Series D2 Preferred plus all declared and unpaid dividends, if any, on such share, (vi) $12.50 (the "Original Series D3 Issue Price"), as adjusted for any Recapitalization, for each outstanding share of Series D3 Preferred plus all declared and unpaid dividends, if any, on such share and (vii) $12.50


(the "Original Series E Issue Price"), as adjusted for any Recapitalization, for each outstanding share of Series E Preferred plus all declared and unpaid dividends, if any, on such share. If, upon the occurrence of a liquidation, dissolution or winding up, the assets and funds thus distributed among the holders of the Series A Preferred, Series B Preferred, Series C Preferred, Series D1 Preferred, Series D2 Preferred, Series D3 Preferred and Series E Preferred shall be insufficient to permit the payment to such holders of their full aforesaid liquidation preferences, then the entire assets and funds of the Corporation legally available for distribution to the holders of capital stock shall be distributed ratably among the holders of the Series A Preferred, Series B Preferred, Series C Preferred, Series D1 Preferred, Series D2 Preferred, Series D3 Preferred and Series E Preferred in proportion to the full preferential amounts each such holder is otherwise entitled to receive under this Section 3(a).


(b) Common Stock, Series A Preferred and Series B
---------------------------------------------- Preferred. If assets are remaining after payment of the full preferential amount with respect to the Series A Preferred, Series B Preferred, Series C Preferred, Series D1 Preferred, Series D2 Preferred, Series D3 Preferred and Series E Preferred and set forth in Section 3(a) above, then the holders of the Series A Preferred, Series B Preferred and Common Stock shall be entitled to share ratably in all such remaining assets and surplus funds in proportion to the number of shares of Common Stock held by each such holder (treating all shares of Series A Preferred and Series B Preferred as if converted into Common Stock) until, with respect to the holders of the Series A Preferred and Series B Preferred, such holders shall have received an aggregate of $4.5332 per share and $4.98 per share, respectively (including amounts paid pursuant to Section 3(a) above); thereafter, subject to the rights of series of Preferred Stock that may from time to time come into existence, if assets or surplus funds remain in this Corporation, the holders of the Common Stock of this Corporation shall receive all of the remaining assets or surplus funds of this Corporation in proportion to the number of shares of Common Stock held by each.


(c) Events Deemed a Liquidation. For purposes of this
--------------------------- Section 3, a liquidation, dissolution or winding up of the Corporation shall be deemed to be occasioned by and to include (i) the consolidation or merger of the Corporation with or into any other corporation, (ii) a transaction in which outstanding shares of the Corporation are exchanged for securities or other consideration issued, or caused to be issued, by an acquiring corporation or its subsidiary (other than a transaction consummated for the sole purpose of reincorporating the Corporation into another state), or (iii) the sale by the Corporation of all or substantially all of its assets (or any series of related transactions resulting in the sale or other transfer of all or substantially all of its assets), unless, in each case, (A) the stockholders of the Corporation
------ immediately prior to any such transaction (or series of related transactions) are holders of a majority of the voting equity securities of the surviving or acquiring corporation immediately thereafter and (B) each of the stockholders of the Corporation immediately prior to any such transaction (or series of related transactions) holds the same pro rata share of such majority of the voting equity securities of the surviving or acquiring corporation as each hold of the Corporation immediately prior to such transaction (or series of related transactions). For purposes of the calculations in the previous sentence, equity securities which any stockholder or the Corporation owned immediately prior to such transaction as a stockholder of another party to the transaction shall be disregarded.


(d) Valuation of Securities and Property. In the event
------------------------------------ the Corporation proposes to distribute assets other than cash in connection with any liquidation, dissolution or winding up of the Corporation (or any other event deemed a liquidation, dissolution or winding up pursuant to Section 3(c)), the value of the assets to be distributed to the holders of shares of Series A Preferred, Series B Preferred, Series C Preferred, Series D1 Preferred, Series D2 Preferred, Series D3 Preferred and Series E Preferred shall be determined in good faith by the Board. Any securities not subject to investment letter or similar restrictions on free marketability shall be valued as follows:


(i) If traded on a securities exchange or through the Nasdaq National Market system, the value shall be deemed to the average of the security's closing prices on such exchange or system over the thirty (30) day period ending three (3) days prior to the distribution;


(ii) If actively traded over-the-counter, the value shall be deemed to be the average of the closing bid prices over the thirty (30) day period ending three (3) days prior to the distribution; and


(iii) If there is no active public market, the value shall be the fair market value thereof as determined in good faith by the Board.


The method of valuation of securities subject to investment letter or other restrictions on free marketability shall be adjusted to make an appropriate discount from the market value determined as above in clauses (i), (ii) or (iii) to reflect the fair market value thereof as determined in good faith by the Board. The holders of at least 50% of the outstanding Series A Preferred, Series B Preferred, Series C Preferred or Series E Preferred shall have the right to challenge any determination by the Board of fair market value pursuant to this Section 3(d), in which case the determination of fair market value shall be made by an independent appraiser selected jointly by the Board and the challenging parties, the cost of such appraisal to be borne by the Corporation.


4. Redemption Rights. Subject to the rights of series of
----------------- Preferred Stock that may from time to time come into existence, the holders of Series A Preferred, Series B Preferred, Series C Preferred and Series E Preferred, have redemption rights as follows:


(a) Holder's Redemption Rights.
--------------------------


(i) Upon the receipt by the Corporation of a written request (a "Redemption Notice") at any time prior to sixty (60) days before the sixth anniversary of April 23, 1996 (the "Original Issue Date") from the holders of at least seventy percent (70%) of the then-outstanding shares of Series A Preferred, Series B Preferred, Series C Preferred and Series E Preferred (voting together as a single class) that all of such holders' shares of Preferred Stock be redeemed, the Corporation shall redeem (unless prevented by law) all of the shares of Series A Preferred, Series B Preferred, Series C Preferred and Series E Preferred then held by each holder of Series A Preferred, Series B Preferred, Series C Preferred and


Series E Preferred (a "Preferred Holder") in the manner and on the dates referenced in Section 4(a)(iii) below.


(ii) The price to be paid for each share of Series A Preferred redeemed pursuant to this Section 4 shall be $1.1333 per share (as adjusted for any Recapitalization) plus an amount equal to all declared and unpaid dividends on such share (the "Series A Redemption Price"). The price to be paid for each share of Series B Preferred redeemed pursuant to this Section 4 shall be $1.66 per share (as adjusted for any Recapitalization) plus an amount equal to all declared and unpaid dividends on such share (the "Series B Redemption Price"). The price to be paid for each share of Series C Preferred redeemed pursuant to this Section 4 shall be $5.125 per share (as adjusted for any Recapitalization) plus an amount equal to all declared and unpaid dividends on such share (the "Series C Redemption Price"). The price to be paid for each share of Series E Preferred redeemed pursuant to this Section 4 shall be $12.50 per share (as adjusted for any Recapitalization) plus an amount equal to all declared and unpaid dividends on such share (the "Series E Redemption Price").


(iii) Once the redemption rights of the Preferred Holders under this Section 4(a) have been exercised in accordance with the terms of Section 4(a)(i), then the Corporation shall redeem and each Preferred Holder shall sell to the Corporation (A) 25% of the Series A Preferred, Series B Preferred, Series C Preferred and/or Series E Preferred held by the Preferred Holder on the sixth anniversary date of the Original Issue Date; (B) 33 1/3% of the remaining Series A Preferred, Series B Preferred, Series C Preferred and/or Series E Preferred held by the Preferred Holder on the seventh anniversary date of the Original Issue Date; (C) 50% of the remaining Series A Preferred, Series B Preferred, Series C Preferred and/or Series E Preferred held by the Preferred Holder on the eighth anniversary date of the Original Issue Date; and (D) 100% of the remaining Series A Preferred, Series B Preferred, Series C Preferred and/or Series E Preferred held by the Preferred Holder on the ninth anniversary date of the Original Issue Date (each such anniversary date, a "Designated Redemption Date"). From and after each Designated Redemption Date with respect to which the redemption rights under this Section 4(a) have been exercised (unless default shall be made by the Corporation in the payment of the Redemption Price as herein provided, in which event such rights shall be or become exercisable until such default is cured), all rights of the holders of the Series A Preferred, Series B Preferred, Series C Preferred and Series E Preferred to be redeemed on such Designated Redemption Date pursuant to this Section 4(a) shall cease with respect to such shares except the right to receive payment in full of the Redemption Price for such shares upon surrender of certificates representing such shares and such shares shall not thereafter be transferable on the books of the Corporation or be deemed outstanding for any purpose. Shares of the Series A Preferred, Series B Preferred, Series C Preferred and Series E Preferred redeemed by the Corporation pursuant to this Section 4(a) shall be deemed retired and may not under any circumstances thereafter be reissued or otherwise disposed of by the Corporation.


(iv) At any time on or after any Designated Redemption Date, the Preferred Holders shall be entitled to receive payment of the Redemption Price therefore upon actual delivery to the Corporation or its agents of the certificates representing the shares to be redeemed. If upon any Designated Redemption Date the assets of the Corporation available for redemption shall be insufficient to pay all Preferred Holders the full


amounts to which they shall be entitled pursuant to this Section 4(a), the Corporation shall use those funds as it shall have legally available to redeem the maximum possible number of shares of Series A Preferred, Series B Preferred, Series C Preferred and Series E Preferred among the holders of such shares to be redeemed in proportion to the full redemption amounts each such holder would otherwise be entitled to receive under this Section 4(a), and the remainder of the shares of the Series A Preferred, Series B Preferred, Series C Preferred and Series E Preferred required to be redeemed shall remain outstanding and entitled to the rights, preferences and privileges provided herein, and shall be redeemed on the earliest practicable date next following the day on which the Corporation shall first have funds legally available for the redemption of such shares.


5. Conversion. Subject to the rights of series of
---------- Preferred Stock that may from time to time come into existence, the holders of the Series A Preferred, Series B Preferred, Series C Preferred, Series D1 Preferred, Series D2 Preferred, Series D3 Preferred and Series E Preferred have conversion rights as follows (the "Conversion Rights"):


(a) Right to Convert. Each share of Series A
---------------- Preferred, Series B Preferred, Series C Preferred, Series D1 Preferred, Series D2 Preferred, Series D3 Preferred and Series E Preferred shall initially be convertible, at the option of the holder thereof, at any time after the date of issuance of such share, at the office of the Corporation or any transfer agent for the Series A Preferred, Series B Preferred, Series C Preferred, Series D1 Preferred, Series D2 Preferred, Series D3 Preferred or Series E Preferred, into the number of fully paid and nonassessable shares of Common Stock which results from dividing the Original Series A Issue Price, the Original Series B Issue Price, the Original Series C Issue Price, the Original Series D1 Issue Price, the Original Series D2 Issue Price, the Original Series D3 Issue Price or the Original Series E Issue Price, as the case may be, by the Conversion Price (determined as hereinafter provided) per share in effect for such series of Preferred Stock at the time of conversion. The initial Conversion Price per share of the Series A Preferred, Series B Preferred, Series C Preferred, Series D1 Preferred, Series D2 Preferred, Series D3 Preferred and Series E Preferred shall be the Original Series A Issue Price, the Original Series B Issue Price, the Original Series C Issue Price, the Original Series D1 Issue Price, the Original Series D2 Issue Price, the Original Series D3 Issue Price and the Original Series E Issue Price, respectively; provided, however, that the Conversion Price per share of the Series A Preferred, Series B Preferred, Series C Preferred, Series D1 Preferred, Series D2 Preferred, Series D3 Preferred and Series E Preferred shall be subject to adjustment from time to time as provided in Section 5(d) hereof. Upon conversion pursuant to this section or Section 5(b) hereof, all declared and unpaid dividends on the Series A Preferred, Series B Preferred, Series C Preferred, Series D1 Preferred, Series D2 Preferred, Series D3 Preferred and Series E Preferred shall be paid in cash, to the extent legally permitted.


(b) Automatic Conversion.
--------------------


(i) Each share of Series A Preferred, Series B Preferred, Series C Preferred and Series E Preferred shall automatically be converted into such number of fully paid and nonassessable shares of Common Stock as is determined by dividing the Original Series A Issue Price, the Original Series B Issue Price, the Original Series C Issue Price or the Original Series E Issue Price, as the case may be, by the Conversion Price at the time


in effect for such series of Preferred Stock immediately upon the earlier of (i) the Corporation's offer and sale of its securities in a firm commitment underwritten public offering pursuant to an effective registration statement on Form S-1 (or any successor to such form) under the Securities Act of 1933, as amended, the public offering price of which is not less than $6.50 per share (as adjusted to reflect any Recapitalization) and the aggregate gross proceeds to the Company of which are not less than $15,000,000, or (ii) the date specified by written consent or agreement of the holders of at least seventy-five percent (75%) of the then outstanding shares of Series A Preferred, Series B Preferred, Series C Preferred and Series E Preferred, voting together as a class and not as separate series and on an as-converted basis.


(ii) Each share of Series D1 Preferred, Series D2 Preferred and Series D3 Preferred shall automatically be converted into such number of fully paid and nonassessable shares of Common Stock as is determined by dividing the Original Series D1 Issue Price, the Original Series D2 Issue Price or the Original Series D3 Issue Price, as the case may be, by the Conversion Price at the time in effect for such series of Preferred Stock immediately upon the occurrence, in the case of the Series D1 Preferred and Series D2 Preferred, of a Section 12(e) Termination Event, as such term is defined in Section 12(e) of that certain Amended and Restated Shareholders Agreement by and among GetThere.com, a California corporation and the predecessor to the Corporation ("GetThere California") and the stockholders who are parties thereto dated as of September 14, 1999, as assumed by the Corporation and as amended through the date of this Amended and Restated Certificate of Incorporation (the "Amended and Restated Shareholders Agreement"), and, in the case of the Series D3 Preferred, of a Section 4(e) Termination Event, as such term is defined in the Standstill and Bring Along Agreement by and among GetThere California and the stockholders who are parties thereto dated as of September 14, 1999, as assumed by the Corporation and as amended through the date of this Amended Certificate. In addition, the Series D1 Preferred shall automatically be converted into such number of fully paid and nonassessable shares of Common Stock as is determined by dividing the Original Series D1 Issue Price by the Conversion Price at the time in effect for such series of Preferred Stock immediately upon the earlier of (A) the date that the holder thereof ceases to hold at least 2,434,287 shares of Applicable Common Stock (as defined in subsection 5(b)(iii) below), or (B) the date that the holder thereof transfers the Series D1 Preferred, except to a Related Party of the holder (as defined in subsection 5(b)(iii) below). In addition, the Series D2 Preferred shall automatically be converted into such number of fully paid and nonassessable shares of Common Stock as is ...