Restated Certificate Of Incorporation

EXHIBIT 3.2


RESTATED CERTIFICATE OF INCORPORATION OF
GETTHERE.COM, INC.
a Delaware corporation
(Originally incorporated on August 13, 1999)


__________________ hereby certifies that:


ONE: He is the duly elected and acting ___________________________, of GetThere.com, Inc. a Delaware corporation (this "Corporation").


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


ARTICLE I


The name of this 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 Two Hundred Ten Million (210,000,000) shares, two hundred million (200,000,000) shares of which shall be Common Stock (the "Common Stock"), with a par value of $0.0001 per share, and Ten Million Three (10,000,003) shares of which shall be Preferred Stock (the "Preferred Stock"), with a par value of $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
---------------------- Restated Certificate of Incorporation (the "Restated Certificate") may be issued from time to time in one or more series. The first series shall be designated Series D1 Preferred Stock ("Series D1 Preferred"), which series shall consist of one (1) share, the second series shall be designated Series D2 Preferred Stock ("Series D2 Preferred"), which series shall consist of one


(1) share, and the third series shall be designated Series D3 Preferred Stock ("Series D3 Preferred"), which series shall consist of one (1) share.


The Board of Directors of this 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 Restated 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 D1 Preferred, Series D2 Preferred and Series D3 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. Subject to the rights of series of
--------------------------- Preferred Stock that may from time to time come into existence, the holders of shares of Series D1 Preferred, Series D2 Preferred, Series D3 Preferred and Common Stock shall be entitled to receive dividends, out of any assets legally available therefor, payable when, as, and if declared by the Board. Such dividends shall not be cumulative, and no right shall accrue to holders of such shares of Preferred Stock or Common Stock by reason of the fact that dividends on such shares are not declared or paid in any year.


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 D1 Preferred, Series D2 Preferred and Series D3 Preferred in respect of Series D1 Preferred, Series D2 Preferred and Series D3 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 D1 Preferred, Series D2 Preferred and Series D3 Preferred.
---------------------------------------------------------------- The holders of the Series D1 Preferred, Series D2 Preferred and Series D3 Preferred shall be entitled to be paid out of the assets and surplus funds of this Corporation available for distribution to stockholders of this Corporation, prior and in preference to any distribution of any of the assets and surplus funds of this Corporation to the holders of the Common Stock, an amount per ahare equal to (i) $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, (ii) $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 and (vi) $12.50 (the "Original Series D3 Issue Price"), as


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adjusted for any Recapitalization, for each outstanding share of Series D3 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 D1 Preferred, Series D2 Preferred and Series D3 Preferred shall be insufficient to permit the payment to such holders of their full aforesaid liquidation preferences, then the entire assets and funds of this Corporation legally available for distribution to the holders of capital stock shall be distributed ratably among the holders of the Series D1 Preferred, Series D2 Preferred and Series D3 Preferred in proportion to the full preferential amounts each such holder is otherwise entitled to receive under this Section 3(a).


(b) Common Stock. If assets are remaining after payment of the full
------------ preferential amount with respect to the Series D1 Preferred, Series D2 Preferred and Series D3 Preferred and set forth in Section 3(a) above, then 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 this 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 this 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 this Corporation into another state), or (iii) the sale by this 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 this 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 this 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 this 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 this 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 this
------------------------------------ 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 D1 Preferred, Series D2 Preferred and Series D3 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;


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(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.


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


(a) Right to Convert. Each share of Series D1 Preferred, Series D2
---------------- Preferred and Series D3 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 this Corporation or any transfer agent for the Series D1 Preferred, Series D2 Preferred or Series D3 Preferred, into the number of fully paid and nonassessable shares of Common Stock which results from 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 (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 D1 Preferred, Series D2 Preferred and Series D3 Preferred shall be the Original Series D1 Issue Price, the Original Series D2 Issue Price and the Original Series D3 Issue Price, respectively; provided, however, that the Conversion Price per share of the Series D1 Preferred, Series D2 Preferred and Series D3 Preferred shall be subject to adjustment from time to time as provided in Section 4(d) hereof. Upon conversion pursuant to this section or Section 4(b) hereof, all declared and unpaid dividends on the Series D1 Preferred, Series D2 Preferred and Series D3 Preferred shall be paid in cash, to the extent legally permitted.


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


(i) 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, a California corporation and the predecessor to this Corporation ("GetThere California"), and the stockholders who are parties thereto dated as of September 14, 1999, as assumed by this Corporation and as amended through the date of this Amended Certificate (the "Amended and Restated Shareholders Agreement"), and, in the case of the Series D3 Preferred, of a Section 4(e)


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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 this 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 4(b)(ii) 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 determined by dividing the Original Series D2 Issue Price by the Conversion Price at the time in effect for such series of Preferred Stock immediately upon the earlier of (X) the date that the holder thereof ceases to hold at least 3,651,430 shares of Applicable Common Stock, or (Y) ...