CERTIFICATE OF INCORPORATION
OF
ICG SERVICES, INC.
ARTICLE 1
The name of the corporation is ICG Services, Inc.
ARTICLE 2
The address of the corporation's registered office in
the State of Delaware is 1013 Centre Road, Wilmington, Delaware
19805 (New Castle County). The name of its registered agent at
such address is The Prentice-Hall Corporation System, Inc.
ARTICLE 3
The purposes for which the corporation is organized are
to engage in any business and in any lawful act or activity for
which corporations may be organized under the Delaware General
Corporation Law and to possess and employ all powers and
privileges now or hereafter granted or available under the laws
of the State of Delaware to such corporations.
ARTICLE 4
(a) AUTHORIZED SHARES. The aggregate number of shares
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which the corporation has authority to issue is 2,000. The
authorized shares consist of 1,000 shares of common stock with a
par value of $.01 per share, such class being designated "common
stock," and 1,000 shares of preferred stock with a par value of
$.01 per share, such class being designated "preferred stock."
(b) COMMON STOCK. The common stock shall have
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unlimited voting rights, subject to the voting rights of any
shares of preferred stock. The common stock shall be entitled to
receive the net assets of the corporation upon dissolution,
subject to the rights of any shares of preferred stock to receive
distributions upon dissolution. The affirmative vote of a
majority of all outstanding shares of the corporation's common
stock shall be required for the stockholders to act.
(c) PREFERRED STOCK. Shares of preferred stock may be
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issued from time to time in series, and the board of directors of
the corporation is hereby authorized, subject to the limitations
provided by law, to establish and designate one or more series of
the preferred stock, to fix the number of shares constituting
each series, and to fix the designations, powers, preferences and
relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, of each
series and the variations and the relative rights, preferences
and limitations as between series, and to increase and to
decrease the number of shares constituting each series. The
authority of the Board of Directors of the corporation with
respect to each series shall include, but shall not be limited
to, the authority to determine the following:
(i) The designation of such series.
(ii) The number of shares initially constituting such
series.
(iii) The increase, and the decrease to a number not
less than the number of the outstanding shares of such series, of
the number of shares constituting such series theretofore fixed.
(iv) The rate or rates, and the conditions upon and
the times at which dividends on the shares of such series shall
be paid, the preference or relation which such dividends shall
bear to the dividends payable on any other class or classes or on
any other series of stock of the corporation, and whether or not
such dividends shall be cumulative, and, if such dividends shall
be cumulative, the date or dates from and after which they shall
accumulate.
(v) Whether or not the shares of such series shall
be redeemable, and, if such shares shall be redeemable, the terms
and conditions of such redemption, including, but not limited to,
the date or dates upon or after which such shares shall be
redeemable and the amount per share which shall be payable upon
such redemption, which amount may vary under different conditions
and at different redemption dates.
(vi) The rights to which the holders of the shares
of such series shall be entitled upon the voluntary or
involuntary liquidation, dissolution or winding up of, or upon
any distribution of the assets of, the corporation, which rights
may be different in the case of a voluntary liquidation,
dissolution or winding up than in the case of such an involuntary
event.
(vii) Whether or not the shares of such series shall
have voting rights, in addition to the voting rights provided by
law, and, if such shares shall have such voting rights, the terms
and conditions thereof, including, but not limited to, the right
of the holders of such shares to vote as a separate class either
alone or with the holders of shares of one or more other series
of preferred stock and the right to have more than one vote per
share.
(viii) Whether or not a sinking fund or a purchase
fund shall be provided for the redemption or purchase of the
shares of such series, and, if such a sinking fund or purchase
fund shall be provided, the terms and conditions thereof.
(ix) Whether or not the shares of such series shall
be convertible into, or exchangeable for, shares of any other
class or classes or any other series of the same or any other
class or classes of stock of the corporation, and, if provision
be made for conversion or exchange, the terms and conditions of
conversion or exchange, including, but not limited to, any
provision for the adjustment of the conversion or exchange rate
or the conversion or exchange price.
(x) Any other relative rights, preferences and
limitations.
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ARTICLE 5
The names and mailing addresses of the persons who are
to serve as the directors of the corporation until their
successors are elected and qualified or their earlier resignation
or removal are:
Name Mailing Address
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J. Shelby Bryan 9605 East Maroon Circle, Suite 100
Englewood, CO 80112
James D. Grenfell 9605 East Maroon Circle, Suite 100
Englewood, CO 80112
David W. Garrison 2 North Second Street, Plaza A
San Jose, CA 95113
Sheldon S. Ohringer 9605 East Maroon Circle, Suite 100
Englewood, CO 80112
H. Don Teague 9605 East Maroon Circle, Suite 100
Englewood, CO 80112
The number of directors of the corporation shall be
fixed from time to time in the manner provided in the bylaws and
may be increased or decreased from time to time in the manner
provided in the bylaws. Election of directors need not be by
written ballot except and to the extent provided in the bylaws of
the corporation.
The affirmative vote of a majority of all directors
constituting the board of directors shall be required for the
board of directors to act.
ARTICLE 6
The board of directors of the corporation is expressly
authorized to make, alter or repeal the bylaws of the
corporation, but such authorization shall not divest the
stockholders of the power, nor limit their power, to adopt, amend
or repeal bylaws.
ARTICLE 7
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, except as to
liability (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) for violations of Section 174 of
the Delaware General Corporation Law or (iv) for any transaction
from which the director derived any improper personal benefit.
If the Delaware General Corporation Law hereafter is amended to
eliminate or limit further the liability of a director, then, in
addition to the elimination and limitation of liability provided
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by the preceding sentence, the liability of each director shall
be eliminated or limited to the fullest extent provided or
permitted by the amended Delaware General Corporation Law. Any
repeal or modification of this Article 7 shall not adversely
affect any right or protection of a director under this Article 7
as in effect immediately prior to such repeal or modification
with respect to any liability that would have accrued, but for
this Article 7, prior to such repeal or modification.
ARTICLE 8
The corporation shall have authority, to the fullest
extent now or hereafter permitted by the Delaware General
Corporation Law, or by any other applicable law, to enter into
any contract or transaction with one or more of its directors or
officers, or with any corporation, partnership, joint venture,
trust, association or other entity in which one or more of its
directors or officers are directors or officers or have a
financial interest, notwithstanding such relationships and
notwithstanding the fact that the director or officer is present
at or participates in the meeting of the board of directors or
committee thereof which authorizes the contract or transaction.
ARTICLE 9
The corporation shall indemnify, to the fullest extend
permitted by applicable law in effect from time to time, any
person, and the estate and personal representative of any such
person, against all liability and expense (including attorneys'
fees) incurred by reason of the fact that he is or was a director
or officer of the corporation or, while serving as a director or
officer of the corporation, he is or was serving at the request
of the corporation as a director, officer, partner, trustee,
employee, fiduciary, or agent of, or in any similar managerial or
fiduciary position of, another domestic or foreign corporation or
other individual or entity or of an employee benefit plan. The
corporation shall also indemnify any person who is serving or has
served the corporation as director, officer, employee, fiduciary,
or agent, and that person's estate and personal representative,
to the extent and in the manner provided in any bylaw, resolution
of the shareholders or directors, contract or otherwise, so long
as such provision is legally permissible. Expenses (including
attorneys' fees) incurred in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be
paid by the corporation in advance of the final disposition of
such action, suit or proceeding as authorized by the board of
directors in the specific case upon receipt of an undertaking by
or on behalf of the director, officer, employee or agent to repay
such amount unless it shall ultimately be determined that he is
entitled to be indemnified by the corporation as authorized in
this Article or otherwise. The indemnification provided by this
Article shall not be deemed exclusive of any other rights to
which those seeking indemnification may be entitled under these
Articles or any agreement or vote of stockholders or
disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while
holding such office, and shall continue as to a person, officer,
employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
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ARTICLE 10
Whenever a compromise or arrangement is proposed
between this corporation and its creditors or any class of them
and/or between this corporation and its stockholders or any class
of them, any court of equitable jurisdiction within the State of
Delaware may, on the application in a summary way of this
corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this
corporation under the provisions of Section 291 of Title 8 of the
Delaware Code or on the application of trustees in dissolution or
of any receiver or receivers appointed for this corporation under
the provisions of Section 279 of Title 8 of the Delaware Code
order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this corporation, as
the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in
value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this corporation, as the
case may be, agree to any compromise or arrangement and to any
reorganization of this corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and
the said reorganization shall, if sanctioned by the court to
which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders
or class of stockholders, of this corporation, as the case may
be, and also on this corporation.
Executed January 23, 1998.
/s/ Robert Mintz
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Robert Mintz
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