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EXHIBIT 3.5
RESTATED CERTIFICATE OF INCORPORATION
OF
VERIO INC.
Verio Inc., a corporation organized and existing under and by virtue of
the General Corporation Law of the State of Delaware (the "Corporation"),
DOES HEREBY CERTIFY:
1. That the name of the Corporation is Verio Inc. The Corporation was
originally incorporated under the same name; and the original Certificate of
Incorporation and the Restated Certificate of Incorporation of the Corporation
were filed with the Secretary of State of the State of Delaware on the 1st day
of March, 1996, and the 19th day of November, 1997, respectively.
2. That at a meeting of the Board of Directors of Verio Inc. duly held
on February 18, 1998, resolutions were duly adopted setting forth the proposed
amendment and restatement of the Restated Certificate of Incorporation of the
Corporation and declaring said amendment and restatement to be advisable. The
resolution setting forth the proposed amendment and restatement is as follows:
RESOLVED, that the Restated Certificate of Incorporation of
the Corporation be, and it hereby is, amended and restated in its
entirety to read as set forth in the attached Second Restated
Certificate of Incorporation.
3. That thereafter, the Directors and the stockholders of the
Corporation took action by executing a written consent in lieu of a meeting in
accordance with Section 108(c) and Section 228(a), respectively, of the General
Corporation Law of the State of Delaware.
4. That said amendment and restatement was duly adopted in accordance
with the provisions of Sections 242 and 245 of the General Corporation Law of
the State of Delaware. This Second Restated Certificate of Incorporation
restates and integrates and further amends the provisions of the Restated
Certificate of Incorporation of the Corporation.
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IN WITNESS WHEREOF, the Corporation has caused this Second Restated
Certificate of Incorporation to be signed by its duly authorized officer, this
26th day of May, 1998.
VERIO INC.
By: /s/ Justin L. Jaschke
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Justin L. Jaschke
Chief Executive Officer
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SECOND RESTATED CERTIFICATE OF INCORPORATION
OF
VERIO INC.
ARTICLE ONE
The name of the Corporation is Verio Inc.
ARTICLE TWO
The address of the registered office of the Corporation in the State of
Delaware is:
Corporation Service Company
1013 Service Road
Wilmington, Delaware 19805
County of New Castle
The name of the Corporation's registered agent at such address is the
Corporation Service Company.
ARTICLE THREE
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 the State of Delaware.
ARTICLE FOUR
1. CAPITAL STOCK
The total number of shares of all classes of stock that the Corporation
is authorized to issue is one hundred thirty-seven million five hundred thousand
(137,500,000) shares, consisting of one hundred twenty-five million
(125,000,000) shares of Common Stock, par value ($.001) per share, and twelve
million five hundred thousand (12,500,000) shares of Preferred Stock, par value
($.001) per share.
Any of the shares of Preferred Stock may be issued from time to time in
one or more series. Subject to the limitations and restrictions set forth in
this Article Four, the Board of Directors or a Committee of the Board of
Directors, to the extent permitted by law and the bylaws of the Corporation or a
resolution of the Board of Directors, by resolution or resolutions, is
authorized to create or provide for any such series, and to fix the
designations, preferences and relative, participating, optional or other special
rights, and qualifications, limitations or
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restrictions thereof, including, without limitation, the authority to fix or
alter the dividend rights, dividend rates, conversion rights, exchange rights,
voting rights, rights and terms of redemption (including sinking and purchase
fund provisions), the redemption price or prices, the dissolution preferences
and the rights in respect to any distribution of assets of any wholly unissued
series of Preferred Stock and the number of shares constituting any such series,
and the designation thereof, or any of them and to increase or decrease the
number of shares of any series so created, 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.
There shall be no limitation or restriction on any variation between
any of the different series of Preferred Stock as to the designations,
preferences and relative, participating, optional or other special rights, and
the qualifications, limitations or restrictions thereof; and the several series
of Preferred Stock may, except as otherwise expressly provided herein, vary in
any and all respects as fixed and determined by the resolution or resolutions of
the Board of Directors or by Committee of the Board of Directors, providing for
the issuance of the various series; provided, however, that all shares of any
one series of Preferred Stock shall have the same designation, preferences and
relative, participating, optional or other special rights and qualifications,
limitations and restrictions.
Except as otherwise required by law, or as otherwise fixed by
resolution or resolutions of the Board of Directors with respect to one or more
series of Preferred Stock, the entire voting power and all voting rights shall
be vested exclusively in the Common Stock, and each stockholder of the
Corporation who at the time possesses voting power for any purpose shall be
entitled to one vote for each share of such stock standing in his name on the
books of the Corporation.
2. BOARD OF DIRECTORS
(a) Number, Qualifications and Term of Office.
(i) Except as otherwise provided herein or the General
Corporation Law of the State of Delaware, the business and affairs of
the Corporation shall be managed by or under the direction of a board
of directors consisting of one or more members.
(ii) Directors need not be stockholders of the Corporation.
(iii) The number of directors shall be fixed from time to
time, within the limits specified in the Bylaws, by a Bylaw or
amendment thereof duly adopted by the vote of a majority of the shares
entitled to vote represented at a duly held meeting at which a quorum
is present, or by the board of directors.
(iv) The directors shall be divided into three classes,
designated Class I, Class II and Class III, as nearly equal in number
as the then total number of directors permits,
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serving staggered terms so that the initial terms of each such class
will expire, respectively, at the first, second and third succeeding
annual meetings of the stockholders held following the initial public
offering of the Corporation's Common Stock. At each such succeeding
annual meeting of stockholders, directors elected to succeed those
directors whose terms are expiring at such meeting shall be elected for
a term of office to expire at the third succeeding annual meeting of
stockholders following such election. If the number of directors is
changed, any increase or decrease shall be apportioned among the
classes so as to maintain the number of directors in each class as
nearly equal as possible, and any additional directors of any class
elected to fill a vacancy resulting from an increase in such class
shall hold office for a term that shall coincide with the remaining
term of that class, but in no case will a decrease in the number of
directors shorten the term of any incumbent director. Notwithstanding
the foregoing, whenever the holders of any one or more classes or
series of preferred stock issued by the Corporation shall have the
right, voting separately by class or series, to elect directors at an
annual or special meeting of stockholders, the election, term of
office, filling of vacancies and other features of such directorships
shall be governed by the terms of this Certificate of Incorporation or
the Bylaws applicable thereto, and such directors so elected shall not
be divided into classes pursuant to this Section 2 unless expressly
provided by such terms.
(v) Any amendment, change or repeal of this Section 2, or any
other amendment to this Certificate of Incorporation that will have the
effect of permitting circumvention of or modifying this Section 2,
shall require the favorable vote, at a stockholders' meeting, of the
holders of at least eighty percent (80%) of the then-outstanding shares
of stock of the Corporation entitled to vote.
(vi) Except as provided in paragraph (b) below, the directors
shall be elected by a plurality vote of the shares represented in
person or by proxy at the stockholders annual meeting in each year and
entitled to vote on the election of directors. Elected directors shall
hold office until the next annual meeting for the years in which their
terms expire and until their successors shall be duly elected and
qualified. If, for any cause, the board of directors shall not have
been elected at an annual meeting, they may be elected as soon
thereafter as convenient at a special meeting of the stockholders
called for that purpose in the manner provided in this Certificate of
Incorporation or the Bylaws.
(b) Vacancies. Except as otherwise provided by the Certificate of
Incorporation or any amendments thereto, vacancies and newly created
directorships resulting from any increase in the number of authorized directors
may be filled by a majority of the directors then in office, although less than
a quorum, or by a sole remaining director, and each director so elected shall
hold office for the unexpired portion of the term of the director whose place
shall be vacant, and until his successor shall have been duly elected and
qualified. A vacancy in the board of directors shall be deemed to exist under
this paragraph (b) in the case of the death, removal or resignation of any
director, or if the stockholders fail at any meeting of stockholders at which
directors are to be elected to elect the number of directors then constituting
the whole board.
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(c) Resignation. Any director may resign by delivering his written
resignation to the Corporation at its principal office, addressed to the
president or secretary. Such resignation shall be effective upon receipt unless
it is specified to be effective at some other time or upon the happening of some
other event. When one or more directors shall resign from the board, effective
at a future date, a majority of the directors then in office, including those
who have so resigned, shall have power to fill such vacancy or vacancies, the
vote thereon to take effect when such resignation or resignations shall become
effective, and each director so chosen shall hold office for the unexpired
portion of the term of the director whose place shall be vacated and until his
successor shall have been duly elected and qualified.
ARTICLE FIVE
The Corporation is to have perpetual existence.
ARTICLE SIX
In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors of the Corporation is expressly authorized to
make, alter or repeal the Bylaws of the Corporation.
ARTICLE SEVEN
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws of the Corporation may provide. The books of the
Corporation may be kept outside the State of Delaware at such place or places as
may be designated from time to time by the Board of Directors or in the Bylaws
of the Corporation. Elections of directors need not be by written ballot unless
the Bylaws of the Corporation shall so provide.
ARTICLE EIGHT
The Corporation shall indemnify, to the fullest extent permitted by
Section 145 of the General Corporation Law of Delaware, as amended from time to
time, all officers and directors of the Corporation whom it may indemnify
pursuant thereto. The personal liability of a director of the Corporation to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director shall be limited to the fullest extent permitted by the
General Corporation Law of the State of Delaware, as it now exists or may
hereafter be amended. The Corporation may indemnify, to the fullest extent
permitted by Section 145 of the General Corporation Law of Delaware, as amended
from time to time, any or all employees or agents of the Corporation whom it may
indemnify pursuant thereto. Any repeal or modification of this Article by the
stockholders of the Corporation shall not adversely affect any right or
protection of an officer or director of the Corporation existing at the time of
such repeal or modification.
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ARTICLE NINE
The Corporation expressly elects to be governed by Section 203 of the
General Corporation Law of the State of Delaware.
ARTICLE TEN
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed herein and by the laws of the State of Delaware, and all
rights conferred upon stockholders herein are granted subject to this
reservation, provided, that any amendment, alteration, change or repeal of any
provision of this Certificate of Incorporation that will have the effect of
permitting circumvention of or modifying Article Four, Section 2 and Article
Eleven, shall require the favorable vote, at a stockholders' meeting, of the
holders of at least 80% of the then-outstanding shares of stock of the
Corporation entitled to vote.
ARTICLE ELEVEN
Notwithstanding anything in this Certificate of Incorporation to the
contrary, any action required or permitted to be taken by a vote of the
stockholders of the Corporation may not be taken by written consent.
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IN WITNESS WHEREOF, Verio Inc. has caused this Restated Certificate of
Incorporation to be signed by Justin L. Jaschke, its Chief Executive Officer,
this 26th day of May, 1998.
By: /s/ Justin L. Jaschke
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Chief Executive Officer
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