Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
GLOBIX CORPORATION
-----------------------------------------------
Pursuant to Sections 303 and 245 of the General
Corporation Law of the State of Delaware
-----------------------------------------------
The undersigned, Peter Herzig, certifies that he is the Chief
Executive Officer of Globix Corporation, a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), and does hereby
further certify as follows:
(a) The name of the Corporation is Globix Corporation.
(b) The name under which the Corporation was originally incorporated
was Bell Technology Group Ltd. and the original Certificate of
Incorporation of the Corporation was filed with the Secretary of State of
the State of Delaware on September 29, 1995.
(c) This Amended and Restated Certificate of Incorporation was duly
adopted by in accordance with the provisions of Section 303 of the General
Corporation Law of the State of Delaware and the order dated March 1, 2002
of the United States District Court for the District of Delaware and with a
confirmation date of April 8, 2002.
(d) The text of the Amended and Restated Certificate of Incorporation
of the Corporation as amended hereby is restated to read in its entirety,
as follows:
FIRST, the name of the corporation is GLOBIX CORPORATION, (hereinafter the
"Company").
SECOND, the address of the Company's registered office in the State of
Delaware is c/o United Corporate Services, Inc., 15 East North Street, in the
City of Dover, County of Kent, State of Delaware 19901 and the name of the
registered agent at said address is United Corporate Services, Inc.
THIRD, the purpose of the Company is to engage in any lawful act or
activity for which corporations may be organized under the DGCL.
FOURTH, the Company shall have the authority to issue five hundred million
(500,000,000) shares of common stock having a par value of $.01 per share. The
Company shall also have the authority to issue five million (5,000,000) shares
of preferred stock having a par value of $.01 per share (the "Preferred
Shares"). The board of directors of the Company (the "Board"), shall have the
right to authorize, by resolution of the Board adopted in accordance with the
By-laws of the Company, the issuance of the Preferred Shares and, in connection
therewith, to (a) cause such shares to be issued in series; (b) fix the annual
rate of dividends payable with respect to the Preferred Shares or series
thereof; (c) fix the amount payable upon redemption of the Preferred Shares; (d)
fix the amount payable upon liquidation or dissolution of the Company; (e) fix
provisions as to voting rights; and (f) fix such other rights, powers and
preferences as the Board shall determine.
FIFTH, no director shall be personally liable to the Company or any of its
stockholders for monetary damages for breach of fiduciary duty as a director,
except to the extent such exemption from liability or limitation thereof is not
permitted under the DGCL as the same exists or may hereafter be amended. If the
DGCL is amended hereafter to authorize the further elimination or limitation of
the liability of directors, then the liability of a director of the Company
shall be eliminated or limited to the fullest extent authorized by the DGCL, as
so amended. Any repeal or modification of this Article FIFTH shall not adversely
affect any right or protection of a director of the Company existing at the time
of such repeal or modification with respect to acts or omissions occurring prior
to such repeal or modification.
SIXTH, the Company shall indemnify its directors and officers to the
fullest extent authorized or permitted by law, as now or hereafter in effect,
and such right to indemnification shall continue as to a person who has ceased
to be a director or officer of the Company and shall inure to the benefit of his
or her heirs, executors and personal and legal representatives; provided,
--------
however, that, except for proceedings to enforce rights to indemnification, the
- -------
Company shall not be obligated to indemnify any director or officer (or his or
her heirs, executors or personal or legal representatives) in connection with a
proceeding (or part thereof) initiated by such person unless such proceeding (or
part thereof) was authorized or consented to by the Board of Directors. The
right to indemnification conferred by this Article SIXTH shall include the right
to be paid by the Company the expenses incurred in defending or otherwise
participating in any proceeding in advance of its final disposition.
The Company may, to the extent authorized from time to time by the
Board of Directors, provide rights to indemnification and to the advancement of
expenses to employees and agents of the Company similar to those conferred in
this Article SIXTH to directors and officers of the Company.
The rights to indemnification and to the advance of expenses conferred
in this Article SIXTH shall not be exclusive of any other right which any person
may have or hereafter acquire under this Amended and Restated Certificate of
Incorporation, the By-Laws of the Company, any statute, agreement, vote of
stockholders or disinterested directors or otherwise.
Any repeal or modification of this Article SIXTH shall not adversely
affect any rights to indemnification and to the advancement of expenses of a
director or officer of the Company existing at the time of such repeal or
modification with respect to any acts or omissions occurring prior to such
repeal or modification.
2
SEVENTH, any action required or permitted to be taken by the stockholders
of the Company must be effected at a duly called annual or special meeting of
stockholders of the Company, except as otherwise provided in the By-Laws of the
Company.
EIGHTH, pursuant to Section 1123(a)(6) of Chapter 11 of Title 11 of the
U.S. Code the Company will not issue non-voting equity securities.
NINTH, in furtherance and not in limitation of the powers conferred upon it
by the laws of the State of Delaware, the Board of Directors shall have the
power to adopt, amend, alter or repeal the Company's By-Laws. The affirmative
vote of at least a majority of the entire Board of Directors shall be required
to adopt, amend, alter or repeal the Company's By-Laws. The Company's By-Laws
also may be adopted, amended, altered or repealed by the affirmative vote of the
holders of at least eighty percent (80%) of the voting power of the shares
entitled to vote at an election of directors.
TENTH, the Company reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation in the manner now or
hereafter prescribed by law, and all rights and powers conferred herein on
stockholders, directors and officers are subject to this reserved power.
IN WITNESS WHEREOF, the undersigned sets his name to this Amended and
Restated Certificate of Incorporation and affirms that the statements made
herein are true under the penalties of perjury, this 19th day of April, 2002.
By: /s/ Peter Herzig
--------------------------------
Name: Peter Herzig
Title: Chief Executive Officer
3