EXHIBIT 3.5
RESTATED CERTIFICATE OF INCORPORATION
OF
EXTREME NETWORKS, INC.
(Pursuant to Sections 242 and 245 of the General Corporation Law of the
State of Delaware)
Extreme Networks, Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware on January 7, 1999, (the
"Corporation") certifies as follows:
1. The Corporation's Restated Certificate of Incorporation was duly adopted
by the Board of Directors and sole stockholder by written consent in accordance
with Sections 242 and 245 of the General Corporation Law.
2. The Corporation's Certificate of Incorporation is restated to read in
full as follows:
FIRST: The name of the Corporation is Extreme Networks, Inc.
-----
SECOND: The address of the registered office of the Corporation in the
------ State of Delaware is Incorporating Services, Ltd., 15 East North
Street, in the City of Dover, County of Kent. The name of the
registered agent at that address is Incorporating Services, Ltd.
THIRD: The purpose of the Corporation is to engage in any lawful act or
----- activity for which a corporation may be organized under the
General Corporation Law of Delaware.
FOURTH:
------
A. The Corporation is authorized to issue a total of 152,000,000
shares of stock in two classes designated respectively "Preferred
Stock" and "Common Stock". The total number of shares of all
series of Preferred Stock that the Corporation shall have the
authority to issue is 2,000,000 and the total number of shares of
Common Stock that the Corporation shall have the authority to
issue is 150,000,000. All of the authorized shares shall have a
par value of $0.001.
The shares of Preferred Stock may be divided into such number of
series as the Board of Directors may determine. The Board of
Directors is authorized to determine and alter the rights,
preferences, privileges and restrictions granted to and imposed
upon the Preferred Stock or any series thereof with respect to any
wholly unissued series of Preferred Stock, and to fix the number
of shares of any such series of Preferred Stock. The Board of
Directors, within the limits and restrictions stated in any
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resolution or resolutions of the Board of Directors originally
fixing the number of shares constituting any series, may increase
or decrease (but not below the number of shares of such series
then outstanding) the number of shares of any series subsequent to
the issue of shares of that series.
FIFTH: The following provisions are inserted for the management of
----- the business and the conduct of the affairs of the Corporation,
and for further definition, limitation and regulation of the
powers of the Corporation and of its directors and stockholders:
A. The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors. In addition to the
powers and authority expressly conferred upon them by statute or
by this Certificate of Incorporation or the Bylaws of the
Corporation, the directors are hereby empowered to exercise all
such powers and do all such acts and things as may be exercised or
done by the Corporation.
B. The directors of the Corporation need not be elected by written
ballot unless the Bylaws so provide.
C. On and after the closing date of the first sale of the
Corporation's Common Stock pursuant to a firmly underwritten
registered public offering (the "IPO"), any action required or
permitted to be taken by the stockholders of the Corporation must
be effected at a duly called annual or special meeting of
stockholders of the Corporation and may not be effected by any
consent in writing by such stockholders. Prior to such sale,
unless otherwise provided by law, any action which may otherwise
be taken at any meeting of the stockholders may be taken without a
meeting and without prior notice, if a written consent describing
such actions is signed by the holders of outstanding shares having
not less than the minimum number of votes which would be necessary
to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted.
D. Special meetings of stockholders of the Corporation may be called
only by the Board of Directors pursuant to a resolution adopted by
a majority of the total number of authorized directors (whether or
not there exist any vacancies in previously authorized
directorships at the time any such resolution is presented to the
Board for adoption).
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SIXTH:
-----
A. The number of directors shall initially be set at five (5) and,
thereafter, shall be fixed from time to time exclusively by the
Board of Directors pursuant to a resolution adopted by a majority
of the total number of authorized directors (whether or not there
exist any vacancies in previously authorized directorships at the
time any such resolution is presented to the Board for adoption).
Upon the closing of the IPO, the directors shall be divided into
three classes with the term of office of the first class (Class I)
to expire at the first annual meeting of the stockholders
following the IPO; the term of office of the second class (Class
II) to expire at the second annual meeting of stockholders held
following the IPO; the term of office of the third class (Class
III) to expire at the third annual meeting of stockholders; and
thereafter for each such term to expire at each third succeeding
annual meeting of stockholders after such election. Subject to the
rights of the holders of any series of Preferred Stock then
outstanding, a vacancy resulting from the removal of a director by
the stockholders as provided in Section 3 below may be filled at a
special meeting of the stockholders held for that purpose. All
directors shall hold office until the expiration of the term for
which elected, and until their respective successors are elected,
except in the case of the death, resignation, or removal of any
director.
B. Subject to the rights of the holders of any series of Preferred
Stock then outstanding, newly created directorships resulting from
any increase in the authorized number of directors or any
vacancies in the Board of Directors resulting from death,
resignation or other cause (other than removal from office by a
vote of the stockholders) may be filled only by a majority vote of
the directors then in office, though less than a quorum, and
directors so chosen shall hold office for a term expiring at the
next annual meeting of stockholders at which the term of office of
the class to which they have been elected expires, and until their
respective successors are elected, except in the case of the
death, resignation, or removal of any director. No decrease in the
number of directors constituting the Board of Directors shall
shorten the term of any incumbent director.
C. Subject to the rights of the holders of any series of Preferred
Stock then outstanding, any directors, or the entire Board of
Directors, may be removed from office at any time, with or without
cause, but only by the affirmative vote of the holders of at least
a majority of the voting power of all of the then outstanding
shares of capital stock of the Corporation entitled to vote
generally in the election of directors, voting together as a
single class. Vacancies in the Board of Directors resulting from
such removal may be filled by a majority of the directors then in
office, though less than a quorum, or by the stockholders as
provided in Section 1 above. Directors so chosen shall hold office
for a term expiring at the next annual
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meeting of stockholders at which the term of office of the class
to which they have been elected expires, and until their
respective successors are elected, except in the case of the
death, resignation, or removal of any director.
SEVENTH: The Board of Directors is expressly empowered to adopt,
------- amend or repeal Bylaws of the Corporation. Any adoption, amendment
or repeal of Bylaws of the Corporation by the Board of Directors
shall require the approval of a majority of the total number of
authorized directors (whether or not there exist any vacancies in
previously authorized directorships at the time any resolution
providing for adoption, amendment or repeal is presented to the
Board). The stockholders shall also have power to adopt, amend or
repeal the Bylaws of the Corporation. Any adoption, amendment or
repeal of Bylaws of the Corporation by the stockholders shall
require, in addition to any vote of the holders of any class or
series of stock of the Corporation required by law or by this
Certificate of Incorporation, the affirmative vote of the holders
of at least sixty-six and two-thirds percent (66-2/3%) of the
voting power of all of the then outstanding shares of the capital
stock of the Corporation entitled to vote generally in the
election of directors, voting together as a single class.
EIGHTH: A director of the Corporation shall not be personally liable to
------ the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director, except for 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 involved intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the
director derived an improper personal benefit.
If the Delaware General Corporation Law is hereafter amended to
authorize the further elimination or limitation of the liability
of a director, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by
the Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing provisions of this
Article EIGHTH by the stockholders of the Corporation shall not
adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification.
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NINTH: The Corporation reserves the right to amend or repeal any
----- provision contained in this Certificate of Incorporation in the
manner prescribed by the laws of the State of Delaware and all
rights conferred upon stockholders are granted subject to this
reservation; provided, however, that, notwithstanding any other
-------- -------
provision of this Certificate of Incorporation or any provision of
law which might otherwise permit a lesser vote or no vote, but in
addition to any vote of the holders of any class or series of the
stock of this Corporation required by law or by this Certificate
of Incorporation, the affirmative vote of the holders of at least
66-2/3% of the voting power of all of the then outstanding shares
of the capital stock of the Corporation entitled to vote generally
in the election of directors, voting together as a single class,
shall be required to amend or repeal this Article NINTH, Article
FIFTH, Article SIXTH, Article SEVENTH or Article EIGHTH.
IN WITNESS WHEREOF, the Corporation has caused this Restated Certificate to
be signed by a duly authorized officer on this 16th day of February, 2000.
EXTREME NETWORKS, INC.
By: /s/ Gordon Stitt
---------------------------------------
Gordon Stitt, Chief Executive Officer
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