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EXHIBIT 3.2
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
LOUDCLOUD, INC.
Loudcloud, Inc., a corporation organized and existing under the laws of the
State of Delaware (the "Company") hereby certifies as follows:
A. The Company was originally incorporated under the name of VCellar,
Inc. and the original Certificate of Incorporation of the Company was filed with
the Secretary of State of the State of Delaware on September 9, 1999.
B. Pursuant to Sections 242 and 245 of the General Corporation Law of the
State of Delaware, this Amended and Restated Certificate of Incorporation
restates and amends the provisions of the Amended and Restated Certificate of
Incorporation of the Company.
C. This Amended and Restated Certificate of Incorporation has been duly
adopted in accordance with Sections 242 and 245 of the General Corporation Law
of the State of Delaware by the Board of Directors.
D. The Certificate of Incorporation of the Company is hereby amended and
restated to read as follows:
ARTICLE I
The name of the Company is Loudcloud, Inc.
ARTICLE II
The nature of the business or purpose to be conducted or promoted by 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.
ARTICLE III
The Company shall have authority to issue shares as follows:
400,000,000 shares of Common Stock, par value $0.001 per share. Each share
of Common Stock shall entitle the holder thereof to one (1) vote on each matter
submitted to a vote at a meeting of shareholders.
15,000,000 shares of Preferred Stock, par value $0.001 per share, which may
be issued from time to time in one or more series pursuant to a resolution or
resolutions providing for such issue duly adopted by the Board of Directors
(authority to do so being hereby expressly vested in the Board). The Board of
Directors is further authorized, subject to limitations prescribed by law, to
fix
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by resolution or resolutions the designations, powers, preferences and rights,
and the qualifications, limitations or restrictions thereof, of any wholly
unissued series of Preferred Stock, including without limitation authority to
fix by resolution or resolutions the dividend rights, dividend rate, conversion
rights, voting rights, rights and terms of redemption (including sinking fund
provisions), redemption price or prices, and liquidation preferences of any such
series, and the number of shares constituting any such series and the
designation thereof, or any of the foregoing.
The Board of Directors is further authorized to increase (but not above the
total number of authorized shares of the class) or decrease (but not below the
number of shares of any such series then outstanding) the number of shares of
any series, the number of which was fixed by it, subsequent to the issuance of
shares of such series then outstanding, subject to the powers, preferences and
rights, and the qualifications, limitations and restrictions thereof stated in
the Certificate of Incorporation or the resolution of the Board of Directors
originally fixing the number of shares of such series. If the number of shares
of any series is so decreased, then 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.
ARTICLE IV
The number of directors that constitutes the entire Board of Directors of
the corporation shall be determined in the manner set forth in the Bylaws of the
corporation. At each annual meeting of stockholders, directors of the
corporation shall be elected to hold office until the expiration of the term for
which they are elected and until their successors have been duly elected and
qualified; except that if any such election shall not be so held, such election
shall take place at a stockholders' meeting called and held in accordance with
the General Corporation Law of the State of Delaware.
The directors of the corporation shall be divided into three classes as
nearly equal in size as is practicable, hereby designated Class I, Class II and
Class III. The term of office of the initial Class I directors shall expire at
the first regularly-scheduled annual meeting of the stockholders following the
effective date of this corporation's initial public offering (the "Effective
Date"), the term of office of the initial Class II directors shall expire at the
second annual meeting of the stockholders following the Effective Date and the
term of office of the initial Class III directors shall expire at the third
annual meeting of the stockholders following the Effective Date. At each annual
meeting of stockholders, commencing with the first regularly-scheduled annual
meeting of stockholders following the Effective Date, each of the successors
elected to replace the directors of a Class whose term shall have expired at
such annual meeting shall be elected to hold office until the third annual
meeting next succeeding his or her election and until his or her respective
successor shall have been duly elected and qualified.
Notwithstanding the foregoing provisions of this Article, each director
shall serve until his or her successor is duly elected and qualified or until
his or her death, resignation, or removal. If the number of directors is
hereafter changed, any newly created directorships or decrease in directorships
shall be so apportioned among the classes as to make all classes as nearly equal
in number as is practicable, provided that no decrease in the number of
directors constituting the Board of Directors shall shorten the term of any
incumbent director.
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Any director may be removed from office by the stockholders of the
corporation only for cause. Vacancies occurring on the Board of Directors for
any reason and newly created directorships resulting from an increase in the
authorized number of directors may be filled only by vote of a majority of the
remaining members of the Board of Directors, although less than a quorum, at any
meeting of the Board of Directors. A person so elected by the Board of
Directors to fill a vacancy or newly created directorship shall hold office
until the next election of the Class for which such director shall have been
chosen and until his or her successor shall have been duly elected and
qualified.
ARTICLE V
The address of the corporation's registered office in the State of Delaware
is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle, zip code 19801. The name of its registered agent at such
address is The Corporation Trust Company.
ARTICLE VI
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to make, alter, amend or repeal
the Bylaws of the corporation. Exclusive authority to amend the Bylaws to
change the manner in which the authorized number of directors is determined
shall reside in the Board of Directors.
ARTICLE VII
The election of directors need not be by written ballot unless the Bylaws
of the corporation shall so provide.
ARTICLE VIII
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the corporation may be kept
(subject to any provision contained in the statutes) 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.
ARTICLE IX
No action shall be taken by the stockholders of the Company except at an
annual or special meeting of the stockholders called in accordance with the
Bylaws and no action shall be taken by the stockholders by written consent.
ARTICLE X
To the fullest extent permitted by the Delaware General Corporation Law or
any other applicable law as now in effect or as it may hereafter be amended, a
director of the corporation shall not be personally liable to the corporation or
its stockholders and shall otherwise be indemnified by the corporation for
monetary damages for any action taken, or any failure to take any action, as a
director.
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The corporation shall indemnify to the fullest extent permitted by law any
person made or threatened to be made a party to an action or proceeding, whether
criminal, civil, administrative or investigative, by reason of the fact that he
or she or his or her testator or intestate is or was a director or officer of
the corporation or any predecessor of the corporation or serves or served at any
other enterprise as a director, officer, employee or agent at the request of the
corporation or any predecessor to the corporation.
Neither any amendment nor repeal of this Article X, nor the adoption of any
provision of this corporation's Certificate of Incorporation inconsistent with
this Article X, shall eliminate or reduce the effect of this Article X in
respect of any matter occurring, or any cause of action, suit or claim accruing
or arising or that, but for this Article X, would accrue or arise, prior to such
amendment, repeal or adoption of an inconsistent provision.
ARTICLE XI
Except as provided in Article X above, 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 by statute, and all
rights conferred upon stockholders herein are granted subject to this
reservation.
ARTICLE XII
Stockholders shall not be entitled to cumulative voting rights for the
election of directors.
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IN WITNESS WHEREOF, Loudcloud, Inc. has caused this Amended and Restated
Certificate of Incorporation to be signed by the President and Chief Executive
Officer of the Company on this ______ day of ______ 2000.
By: _______________________________
Benjamin A. Horowitz
President and Chief Executive Officer
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