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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
FIBERNET HOLDCO, INC.
ARTICLE I
The name of the corporation (herein called the "Corporation")
is FiberNet Holdco, Inc.
ARTICLE II
The address of the registered office of the Corporation in the
State of Delaware is 9 East Loockerman Street, City of Dover, County of Kent
19901. The name of the registered agent of the Corporation at such address is
National Registered Agents, Inc.
ARTICLE III
The purpose of the Corporation 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 ("Delaware General Corporation Law").
ARTICLE IV
(a) The total number of shares of all classes of stock which
the Corporation shall have authority to issue is 170,000,000 shares, of which
150,000,000 shall be designated common stock, $.001 par value ("Common Stock")
and 20,000,000 shall be designated preferred stock, $.001 par value ("Preferred
Stock").
(b) The Preferred Stock may be issued from time to time in one
or more series. The Board of Directors is hereby authorized, within the
limitations and restrictions stated in this Certificate of Incorporation, to
determine or alter the rights, preferences, privileges and restrictions granted
to or imposed upon any wholly unissued series of Preferred Stock and the number
of shares constituting any such series and the designation thereof, or any of
them.
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ARTICLE V
The name and mailing address of the incorporator is as
follows:
Name Mailing Address
---- ---------------
Nyisha Shakur Mintz Levin Cohn Ferris Glovsky and
Popeo, P.C.
666 Third Avenue, 25th Floor
New York, New York 10017
ARTICLE VI
The number of directors of the Corporation shall be fixed from
time to time in the manner provided in the By-laws of the Corporation (the
"By-laws"). The election of directors of the Corporation need not be by ballot
unless the By-laws so require.
ARTICLE VII
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 (a) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (b) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (c) under Section 174 of the Delaware General
Corporation Law, or (d) for any transaction from which the director derived any
improper personal benefit. If the Delaware General Corporation Law is amended
after the date of incorporation of the Corporation to authorize corporate action
further eliminating or limiting the personal liability of directors, 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 paragraph 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.
ARTICLE VIII
The Corporation shall indemnify its officers, directors,
employees and agents to the extent permitted by the General Corporation Law of
Delaware.
ARTICLE IX
(a) The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-laws of the Corporation.
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(b) From time to time any of the provisions of this
Certificate of Incorporation may be altered, amended or repealed, and other
provisions authorized by the laws of the State of Delaware at the time in force
may be added or inserted, in the manner and at the time prescribed by said laws,
and all rights at any time conferred upon the stockholders of the Corporation by
this Certificate of Incorporation are granted subject to the provisions of this
paragraph (b).
ARTICLE X
Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
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 the Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the Corporation under the
provisions of Section 291 of the Delaware General Corporation Law or on the
application of trustees in dissolution or of any receiver or receivers appointed
for the Corporation under the provisions of Section 279 of the Delaware General
Corporation Law order a meeting of the creditors or class of creditors, and/or
of the stockholders or class of stockholders of the 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 the
Corporation, as the case may be, agree on any compromise or arrangement and to
any reorganization of the Corporation as a 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 the Corporation, as the case may be,
and also on the Corporation.
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IN WITNESS WHEREOF, I, the undersigned, being the sole
incorporator named herein, for the purpose of forming a corporation pursuant to
the General Corporation Law of the State of Delaware, DO HEREBY CERTIFY, under
penalties of perjury, that this is my act and deed and that the facts stated
herein are truly set forth and, accordingly, I have hereunto set my hand as of
May 17, 2000.
/s/ Nyisha Shakur
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Nyisha Shakur
Sole Incorporator
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