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EXHIBIT 3.1
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. An Amended
and Restated Certificate of Incorporation of the Company was filed with the
Secretary of State of the State of Delaware on June 22, 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 corporation is Loudcloud, Inc.
ARTICLE II
The address of the registered office of the Company in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, County of
New Castle, zip code 19801. The name of its registered agent at such address is
The Corporation Trust Company.
ARTICLE III
The purpose of the Company is to engage in any lawful act or activity for
which a corporation may be organized under the Delaware Corporation Law as the
same exists or may hereafter be amended.
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ARTICLE IV
The Company is authorized to issue two classes of stock to be designated
"Common Stock" and "Preferred Stock." The aggregate number of shares that the
Company shall have authority to issue is 205,000,000 divided into 150,000,000
shares of Common Stock, par value $0.001 per share, and 55,000,000 shares of
Preferred Stock, par value $0.001 per share. The Preferred Stock shall be
issued in three series, which shall be designated "Series A Preferred Stock,"
"Series B Preferred Stock" and "Series C Preferred Stock." The Series A
Preferred Stock shall consist of 13,760,583 shares. The Series B Preferred Stock
shall consist of 24,993,344 shares. The Series C Preferred Stock shall consist
of 14,700,000 shares.
The shares of Preferred Stock may be issued from time to time in one or more
series. The Board of Directors is authorized, subject to limitations prescribed
by law and the provisions of this Article IV, to provide for the issuance of the
shares of Preferred Stock in series and, by filing a certificate pursuant to the
applicable law of the State of Delaware, to establish from time to time the
number of shares to be included in each such series, and to fix the designation,
powers, preferences and rights of the shares of each such series and the
qualifications, limitations or restrictions thereof.
Subject to the provisions set forth in Section 6 of this Article IV, the
authority of the Board of Directors with respect to each series shall include,
but not be limited to, determination of the following: (a) The number of shares
constituting that series and the distinctive designation of that series; (b) The
dividend rate on the shares of that series, whether dividends shall be
cumulative, and, if so, from which date or dates, and the relative rights of
priority, if any, of payment of dividends on shares of that series; (c) Whether
that series shall have voting rights, in addition to the voting rights provided
by law, and, if so, the terms of such voting rights; (d) Whether that series
shall have conversion privileges, and, if so, the terms and conditions of such
conversion, including provisions for adjustment of the conversion rate in such
events as the Board of Directors shall determine; (e) Whether or not the shares
of that series shall be redeemable and, if so, the terms and conditions of such
redemption, including the date or dates upon or after which they shall be
redeemable, and the amount per share payable in case of redemption, which amount
may vary under different conditions and at different redemption dates; (f)
Whether that series shall have a sinking fund for the redemption or purchase of
shares of that series and, if so, the terms and amount of such sinking fund; (g)
The rights of the shares of that series in the event of voluntary or involuntary
liquidation, dissolution or winding up of the Company and the relative rights of
priority, if any, of payment of shares of that series; and (h) Any other
relative or participating rights, preferences and limitations of that series.
The rights, preferences, privileges and restrictions granted to and imposed
upon the series of Preferred Stock are as follows:
1. Definitions. For purposes of this Article, the following definitions
shall apply:
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(a) "Convertible Securities" shall mean any evidences of indebtedness,
shares or other securities (other than shares of Preferred Stock) convertible
into or exchangeable for Common Stock.
(b) "Liquidation Preference" shall mean $0.16327 per share for the
Series A Preferred Stock, $0.84056 per share for the Series B Preferred Stock
and $8.52983 per share for the Series C Preferred Stock (each as appropriately
adjusted for any subsequent stock splits, stock dividends, reclassifications and
the like).
(c) "Options" shall mean rights, options or warrants to subscribe for,
purchase or otherwise acquire Common Stock or Convertible Securities.
(d) "Original Issue Date" shall mean, for the Series A Preferred Stock,
the Series B Preferred Stock and the Series C Preferred Stock, the date upon
which the first share of such series of Preferred Stock is first issued.
(e) "Original Issue Price" shall mean $0.16327 per share for the Series
A Preferred Stock, $0.84056 per share for the Series B Preferred Stock and
$8.52983 per share for the Series C Preferred Stock (each as appropriately
adjusted for any subsequent stock splits, stock dividends, reclassifications and
the like).
(f) "Preferred Stock" shall mean the Series A Preferred Stock, the
Series B Preferred Stock and the Series C Preferred Stock.
2. Dividends.
(a) Dividend Preference. The holders of outstanding shares of Preferred
Stock shall be entitled to receive dividends, out of any assets at the time
legally available therefor, prior and in preference to any declaration or
payment of any dividend (payable other than in Common Stock of this Company) on
the Common Stock of the Company at the rate of $0.010 per share per annum on
each outstanding share of Series A Preferred Stock, $0.067 per share per annum
on each outstanding share of Series B Preferred Stock and $0.682 per share per
annum on each outstanding share of Series C Preferred Stock (each as
appropriately adjusted for any subsequent stock splits, stock dividends,
reclassifications and the like) and an amount equal to that paid on the
outstanding shares of Common Stock of this Company (as determined on an as-
converted basis for the Preferred Stock), when, as and if declared by the Board
of Directors of the Company (the "Board of Directors"); provided, however, that
the Board of Directors is under no obligation to pay dividends to such holders,
and such dividends, if any, shall be noncumulative. No rights shall accrue to
the holders of the Preferred Stock if dividends are not declared in any prior
year. Such dividends may be payable quarterly or otherwise as the Board of
Directors may from time to time determine. If and to the extent that after
payment of the dividends provided for in the first sentence of this paragraph,
the Board of Directors shall declare and set aside for payment any other and
further amount of cash or property as a distribution (other than a distribution
pursuant to Section 3 hereof), such distribution shall be made with equal
priority to the Common Stock and the Preferred Stock, with each share of
Preferred Stock being treated for such purpose as if it had been converted into
Common Stock at the then effective Conversion Rate (as defined in Section 4(a)).
For such
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purpose, all shares of Preferred Stock held by each holder of Preferred Stock
shall be aggregated, and any resulting fractional share of Common Stock shall be
disregarded.
(b) Priority of Dividends. The Company shall make no Distribution (as
defined below) to the holders of shares of Common Stock in any fiscal year
unless and until dividends at the rate set forth in subsection (a) above shall
have been paid upon all shares of Preferred Stock.
(c) Distribution. As used in this section, "Distribution" means the
transfer of cash or property without consideration, whether by way of dividend
or otherwise (except a dividend in shares of Common Stock) or the purchase of
shares of the Company (other than purchases at cost in connection with the
repurchase of shares of Common Stock issued to or held by employees,
consultants, officers or directors upon termination of their employment or
services pursuant to agreements providing for the right of said repurchase) for
cash or property.
3. Liquidation Rights. In the event of any liquidation, dissolution, or
winding up of the Company (or the deemed occurrence of such event pursuant to
subsection 3(d) below) (a "Liquidation Event"), either voluntary or involuntary,
distributions to the stockholders of the Company shall be made in the following
manner:
(a) Amount of Liquidation Preference. The holders of the Preferred
Stock shall be entitled to receive, prior and in preference to any distribution
of any of the assets or surplus funds of the Company to the holders of the
Common Stock by reason of their ownership of such stock, the Liquidation
Preference specified for each share of Preferred Stock then held by them
adjusted for any combinations, consolidations, or stock distributions or stock
dividends with respect to such shares and, in addition, an amount equal to all
declared but unpaid dividends on the Preferred Stock.
If the assets and funds thus available for distribution among the holders
of the Preferred Stock shall be insufficient to permit the payment to such
holders of their full aforesaid preferential amount, then the entire amount of
the assets and funds of the Company legally available for distribution shall be
distributed ratably among the holders of the Preferred Stock in proportion to
the aggregate Liquidation Preference for the shares of such Preferred Stock
owned by each such holder.
(b) Distribution after Payment of Liquidation Preference. After payment
has been made to the holders of the Preferred Stock of the full preferential
amount set forth in Section 3(a) above, the entire remaining assets and funds of
the Company legally available for distribution, if any, shall be distributed
ratably among the holders of Common Stock in a manner such that the amount
distributed to each holder of Common Stock shall equal the amount obtained by
multiplying the entire assets and funds of the Company legally available for
distribution pursuant to this Section 3(b) by a fraction, the numerator of which
shall be the sum of the number of shares of Common Stock then held by the
holder, and the denominator of which shall be the sum of the total number of
shares of Common Stock then outstanding.
(c) Shares not Treated as Both Preferred Stock and Common Stock in any
Distribution. Shares of Preferred Stock shall not be entitled to be converted
into shares of Common Stock in order to participate in any distribution, or
series of distributions, as shares of
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Common Stock, without first foregoing participation in the distribution, or
series of distributions, as shares of Preferred Stock pursuant to paragraph (a)
above.
(d) Deemed Liquidation. For purposes of this Section 3, a liquidation,
dissolution or winding up of the Company shall be deemed to be occasioned by, or
to include (unless (i) the holders of at least two-thirds (2/3) of the Preferred
Stock then outstanding shall determine otherwise and (ii) the holders of at
least twenty percent (20%) of the total number of shares of Series C Preferred
Stock then outstanding (excluding shares of Series C Preferred Stock held by
holders of Series A Preferred Stock or Series B Preferred Stock) shall determine
otherwise), (A) the acquisition of the Company by another entity by means of any
transaction or series of related transactions (including, without limitation,
any reorganization, merger or consolidation) that results in the transfer of
fifty percent (50%) or more of the outstanding voting power of the Company; or
(B) a sale of all or substantially all of the assets of the Company.
(e) Non-Cash Distribution. Whenever the distribution provided for in
this Section 3 shall be payable in securities or property other than cash, the
value of such distribution shall be the fair market value of such securities or
other property as determined in good faith by the Board of Directors. Any
securities shall be valued as follows:
(i) Securities not subject to investment letter or other similar
restrictions on free marketability covered by (ii) below:
(A) If traded on a securities exchange or through the
Nasdaq National Market, the value shall be deemed to be the average of the
closing prices of the securities on such quotation system over the thirty (30)
day period ending three (3) days prior to the closing;
(B) If actively traded over-the-counter, the value shall be
deemed to be the average of the closing bid or sale prices (whichever is
applicable) over the thirty (30) day period ending three (3) days prior to the
closing; and
(C) If there is no active public market, the value shall be
the fair market value thereof, as mutually determined by the Board of Directors
and the holders of at least two-thirds (2/3) of the voting power of all then
outstanding shares of Preferred Stock.
(ii) The method of valuation of securities subject to investment
letter or other restrictions on free marketability (other than restrictions
arising solely by virtue of a stockholder's status as an affiliate or former
affiliate) shall be to make an appropriate discount from the market value
determined as above in (i)(A), (B) or (C) to reflect the approximate fair market
value thereof, as mutually determined by the Board of Directors and the holders
of at least two-thirds (2/3) of the voting power of all then outstanding shares
of such Preferred Stock.
4. Conversion. The holders of the Preferred Stock shall have conversion
rights as follows (the "Conversion Rights"):
(a) Right to Convert. Each share of Preferred Stock shall be
convertible, at the option of the holder thereof, at any time at the office of
the Company or any transfer agent for the Preferred Stock, into that number of
fully-paid and nonassessable shares of Common Stock that is equal to the
Original Issue Price divided by the appropriate Conversion Price. The initial
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Conversion Price per share of Series A Preferred Stock shall be $0.16327 and
shall be subject to adjustment as provided herein. The initial Conversion Price
per share of the Series B Preferred Stock shall be $0.84056 and shall be subject
to adjustment as provided herein. The initial Conversion Price per share of the
Series C Preferred Stock shall be $8.52983 and shall be subject to adjustment as
provided herein. The number of shares of Common Stock into which each share of a
series of Preferred Stock may be converted is hereinafter referred to as the
"Conversion Rate" for each such series. Upon any decrease or increase in the
Conversion Price or the Conversion Rate for a series, as described in this
Section 4, the corresponding Conversion Rate or Conversion Price for such
series, as the case may be, shall be appropriately increased or decreased.
(b) Automatic Conversion. Each share of Preferred Stock shall
automatically be converted into shares of Common Stock at the then effective
Conversion Rate for such share immediately upon the earlier of (i) the
consummation of a public offering of Common Stock registered under the
Securities Act of 1933, as amended, which is either the subject of a firm
underwriting commitment or an on-line offering pursuant to the Dutch-auction
process, provided that the aggregate gross proceeds to the Company are not less
than $40,000,000 (before deducting underwriting discounts or commissions) (a
"Qualifying Public Offering") or (ii) the date upon which the Company obtains
the consent of the holders of two-thirds (2/3) of the then outstanding shares of
Preferred Stock, voting together as a single class on an as-converted basis;
provided, however, that in connection with the transactions contemplated by
Sections 6(b)(iii) and 6(b)(iv), the Company obtains the consent of the holders
of at least twenty percent (20%) of the total number of shares of Series C
Preferred Stock then outstanding (excluding shares of Series C Preferred Stock
held by holders of Series A Preferred Stock or Series B Preferred Stock).
(c) Mechanics of Conversion. No fractional shares of Common Stock shall
be issued upon conversion of Preferred Stock. In lieu of any fractional shares
to which the holder would otherwise be entitled, the Company shall pay cash
equal to such fraction multiplied by the then fair market value of such
fractional shares as determined by the Board of Directors of the Company. Before
any holder of Preferred Stock shall be entitled to convert the same into full
shares of Common Stock, and to receive certificates therefor, he shall surrender
the certificate or certificates therefor, duly endorsed, at the office of the
Company or of any transfer agent for the Preferred Stock, and shall give written
notice to the Company at such office that he elects to convert the same;
provided, however, that in the event of an automatic conversion pursuant to
paragraph 4(b) above, the outstanding shares of Preferred Stock shall be
converted automatically without any further action by the holders of such shares
and whether or not the certificates representing such shares are surrendered to
the Company or its transfer agent; provided, further, that the Company shall not
be obligated to issue certificates evidencing the shares of Common Stock
issuable upon such automatic conversion unless either the certificates
evidencing such shares of Preferred Stock are delivered to the Company or its
transfer agent as provided above, or the holder notifies the Company or its
transfer agent that such certificates have been lost, stolen or destroyed and
executes an agreement satisfactory to the Company to indemnify the Company from
any loss incurred by it in connection with such certificates.
The Company shall, as soon as practicable after such delivery, or after such
agreement and indemnification, issue and deliver at such office to such holder
of Preferred Stock, a certificate or certificates for the number of shares of
Common Stock to which he shall be entitled as aforesaid and a check payable to
the holder in the amount of any cash amounts payable as the result of a
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conversion into fractional shares of Common Stock, plus any declared and unpaid
dividends on the converted Preferred Stock. Such conversion shall be deemed to
have been made immediately prior to the close of business on the date of such
surrender of the shares of Preferred Stock to be converted, and the person or
persons entitled to receive the shares of Common Stock issuable upon such
conversion shall be treated for all purposes as the record holder or holders of
such shares of Common Stock on such date; provided, however, that if the
conversion is in connection with public offering or a Liquidation Event, the
conversion may, at the option of any holder tendering Preferred Stock for
conversion, be conditioned upon the closing of the sale of securities pursuant
to such public offering or Liquidation Event, in which event the person(s)
entitled to receive the Common Stock issuable upon such conversion of the
Preferred Stock shall not be deemed to have converted such Preferred Stock until
immediately prior to the closing or consummation of the public offering or
Liquidation Event.
(d) Adjustments to Conversion Prices. The Conversion Prices of the
Preferred Stock shall be subject to adjustment from time to time as follows:
(i) Adjustments for Subdivisions or Combinations of Common
Stock. In the event the outstanding shares of Common Stock shall be subdivided
(by stock split, stock dividend, or otherwise) into a greater number of shares
of Common Stock, the Conversion Prices in effect immediately prior to such
subdivision shall, concurrently with the effectiveness of such subdivision, be
proportionately decreased. In the event the outstanding shares of Common Stock
shall be combined (by reclassification, reverse stock split or otherwise) into a
lesser number of shares of Common Stock, the Conversion Prices in effect
immediately prior to such combination shall, concurrently with the effectiveness
of such combination, be proportionately increased.
(ii) Adjustments for Other Distributions. In the event the
Company at any time or from time to time makes or fixes a record date for the
determination of holders of Common Stock entitled to receive any distribution
payable in securities of the Company other than shares of Common Stock and other
than as otherwise adjusted in this Section 4, then and in each such event
provision shall be made so that the holders of Preferred Stock shall receive
upon such distribution the amount of securities of the Company which they would
have received had their Preferred Stock then converted into Common Stock on the
date of such event and had they thereafter, during the period from the date of
such event to and including the date of conversion, retained such securities
receivable by them as aforesaid during such period, subject to all other
adjustments called for during such period under this Section 4 with respect to
the rights of the holders of the Preferred Stock.
(iii) Adjustments for Reclassification, Exchange and Substitution.
If the Common Stock issuable upon conversion of the Preferred Stock shall be
changed into the same or a different number of shares of any other class or
classes of stock, whether by capital reorganization, reclassification or
otherwise (other than a subdivision or combination of shares provided for
above), the Conversion Prices then in effect shall, concurrently with the
effectiveness of such reorganization or reclassification, be proportionately
adjusted such that the Preferred Stock shall be convertible into, in lieu of the
number of shares of Common Stock which the holders would otherwise have been
entitled to receive, a number of shares of such other class or classes of stock
equivalent to the number of shares of Common Stock that would have been subject
to receipt by the holders upon conversion of the Preferred Stock immediately
before that change.
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(e) No Impairment. The Company will not, by amendment of its
Certificate of Incorporation or through any reorganization, recapitalization,
transfer of assets, merger, consolidation, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed hereunder by the
Company but will at all times in good faith assist in the carrying out of all
the provisions of this Section 4 and in the taking of all such action as may be
necessary or appropriate in order to protect the Conversion Rights of the
holders of the Preferred Stock against impairment.
(f) Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment of any Conversion Price pursuant to this Section 4,
the Company at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to each holder of
Preferred Stock a certificate setting forth such adjustment or readjustment and
showing in detail the facts upon which such adjustment or readjustment is based.
The Company shall, upon the written request at any time of any holder of
Preferred Stock, furnish or cause to be furnished to such holder a like
certificate setting forth (i) such adjustments and readjustments, (ii) the
Conversion Prices at the time in effect, and (iii) the number of shares of
Common Stock and the amount, if any, of other property which at the time would
be received upon the conversion of Preferred Stock.
(g) Notices of Record Date. In the event that the Company shall propose
at any time:
(i) to declare any dividend or distribution upon its Common
Stock, whether in cash, property, stock or other securities, whether or not a
regular cash dividend and whether or not out of earnings or earned surplus;
(ii) to offer for subscription pro rata to the holders of any
class or series of its stock any additional shares of stock of any class or
series or any other securities or property, or to receive any other rights;
(iii) to effect any reclassification or recapitalization of its
Common Stock outstanding involving a change in the Common Stock; or
(iv) effect any Liquidation Event;
then, in connection with each such event, this Company shall send to the holders
of the Preferred Stock at least 20 days' prior written notice of the earlier of
(A) the date on which a record shall be taken for such dividend, distribution or
subscription rights (and specifying the date on which the holders of Common
Stock shall be entitled thereto) or for determining rights to vote in respect of
the matters referred to in (iii) and (iv) above or (B) the closing date of such
event; provided, however, the holders of two-thirds of the then outstanding
shares of Preferred Stock and the holders of at least twenty percent (20%) of
the total number of shares of Series C Preferred Stock then outstanding
(excluding shares of Series C Preferred Stock held by holders of Series A
Preferred Stock or Series B Preferred Stock) may waive the notice period
required above. With regard to the matters referenced in (iii) and (iv) above,
such written notice shall describe the material terms and conditions of the
proposed transaction.
Each such written notice shall be given as provided in Section 7 below.
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(h) Reservation of Stock Issuable Upon Conversion. The Company shall at
all times reserve and keep available out of its authorized but unissued shares
of Common Stock solely for the purpose of effecting the conversion of the shares
of the Preferred Stock, such number of its shares of Common Stock as shall from
time to time be sufficient to effect the conversion of all then outstanding
shares of the Preferred Stock; and if at any time the number of authorized but
unissued shares of Common Stock shall not be sufficient to effect the conversion
of all then outstanding shares of the Preferred Stock, the Company will take
such corporate action as may, in the opinion of its counsel, be necessary to
increase its authorized but unissued shares of Common Stock to such number of
shares as shall be sufficient for such purpose, including without limitation
using its best efforts to obtain the requisite stockholder approval for any
necessary amendment to these articles.
5. Voting. The holders of Preferred Stock and the holders of Common Stock
shall vote as a single class except as otherwise provided herein in Section 5(c)
and Section 6(b).
(a) Preferred Stock. Each holder of shares of Preferred Stock shall be
entitled to the number of votes equal to the number of shares of Common Stock
into which such shares of Preferred Stock held by such holder of Preferred Stock
could then be converted. The holders of shares of the Preferred Stock shall be
entitled to vote on all matters on which the Common Stock shall be entitled to
vote. The holders of the Preferred Stock shall be entitled to notice of any
stockholders' meeting in accordance with the Bylaws of the Company. Fractional
votes shall not, however, be permitted and any fractional voting rights
resulting from the above formula (after aggregating all shares into which shares
of Preferred Stock held by each holder could be converted), shall be rounded to
the nearest whole number (with one-half being rounded upward).
(b) Common Stock. Each holder of shares of Common Stock shall be
entitled to one vote for each share thereof held.
(c) Election of Directors. The holders of Common Stock shall be
entitled to elect one (1) director of the Company at each annual or special
election of directors. The holders of Series A Preferred Stock shall be entitled
to elect one (1) director of the Company at each annual or special election of
directors. The holders of Series B Preferred Stock shall be entitled to elect
one (1) director of the Company at each annual or special election of directors.
The holders of Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock and Common Stock (voting together as a single class and not as
separate series, and on an as-converted basis) shall be entitled to elect any
remaining directors of this corporation at each annual or special election of
directors. In the case of any vacancy (other than a vacancy caused by removal)
in the office of a director occurring among the directors elected by the holders
of a class or series of stock pursuant to this Section 5(c), the remaining
directors so elected by that class or series may by affirmative vote of a
majority thereof (or the remaining director so elected if there be but one, or
if there are no such directors remaining, by the affirmative vote of the holders
of a majority of the shares of that class or series), elect a successor or
successors to hold office for the unexpired term of the director or directors
whose place or places shall be vacant. Any director who shall have been elected
by the holders of a class or series of stock or by any directors so elected as
provided in the immediately preceding sentence hereof may be removed during the
aforesaid term of office, either with or without cause, by, and only by, the
affirmative vote of the holders of the shares of the class or series of stock
entitled to elect such director or directors, given either at a special meeting
of such stockholders duly called for that purpose or pursuant to a written
consent of stockholders, and any
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vacancy thereby created may be filled by the holders of that class or series of
stock represented at the meeting or pursuant to unanimous written consent.
6. Amendments and Changes.
(a) No Series Voting. Other than as provided herein or by law, there
shall be no voting by a series of Preferred Stock as a separate class.
(b) Approval by Class. As long as 5,000,000 shares (subject to
appropriate adjustment for stock splits, stock dividends, combination,
recapitalizations and the like) of the Preferred Stock shall be issued and
outstanding, the Company shall not, without first obtaining the approval (by
vote or written consent as provided by law) of the holders of two-thirds (2/3)
of the total number of shares of the Preferred Stock then outstanding:
(i) amend or repeal any provision of, or add any provision to,
the Company's Amended and Restated Certificate of Incorporation or Bylaws if
such action would alter or change in an adverse manner the preferences, rights,
privileges, or powers of, or the restrictions provided for the benefit of, the
Preferred Stock;
(ii) authorize, create or issue shares of any class or series of
stock having any preferences, rights or privileges superior to any series of
Preferred Stock;
(iii) sell, convey, or otherwise dispose of all or substantially
all of its property or business or merge into or consolidate with any other
corporation (other than a wholly-owned subsidiary corporation) or effect any
transaction or series of related transactions in which more than fifty percent
(50%) of the voting power of the Company is disposed of;
(iv) sell, convey or otherwise dispose of or encumber all or
substantially all of its property, business, or assets;
(v) effect any reclassification or recapitalization of any
outstanding shares of any class of series of the Company's capital stock;
(vi) declare any dividend or distribution upon the Common Stock;
(vii) repurchase any shares of Common Stock, other than
repurchases at cost of shares issued to or held by employees, consultants,
officers or directors upon termination of their employment or services pursuant
to agreements providing for said right of repurchase; or
(viii) amend this Section 6(b).
(c) Approval by Series C Holders. In addition to the requirements of
Section 6(b)the Company shall not, without first obtaining the approval (by vote
or written consent as provided by law) of the holders of at least twenty percent
(20%) of the total number of shares of Series C Preferred Stock then outstanding
(excluding shares of Series C Preferred Stock held by holders of Series A
Preferred Stock or Series B Preferred Stock):
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(i) take any of the actions described in Section 6(b)(iii) or
Section 6(b)(iv); or
(ii) amend this Section 6(c).
7. Notices. Any notice, demand, offer, request or other communication
required or permitted to be given by the Company to the holders of Preferred
Stock pursuant to this Article IV shall be in writing and shall be deemed
effectively given the earlier of (i) when received, (ii) when delivered
personally, (iii) one (1) business day after being delivered by facsimile (with
receipt of appropriate confirmation), (iv) one (1) business day after being
deposited with an overnight courier service or (v) four (4) days after being
deposited in the U.S. mail, First Class with postage prepaid, and addressed to
each holder of record at such holder's address appearing on the books of the
Company.
8. Status of Converted Stock. In case any shares of Preferred Stock shall
be converted pursuant to Section 4 hereof, the shares so converted shall resume
the status of authorized but undesignated and unissued shares of Preferred
Stock.
ARTICLE V
In furtherance and not in limitation of the powers conferred by statute, the
Board of Directors, subject to the provisions of this Amended and Restated
Certificate of Incorporation, is expressly authorized to make, alter, amend or
repeal the Bylaws of the Company.
ARTICLE VI
The number of directors which constitute the whole Board of Directors of the
Company shall be determined in the manner specified in the Bylaws of the
Company.
ARTICLE VII
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Company 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 Company.
ARTICLE VIII
To the fullest extent permitted by the Delaware General Corporation Law, or
any other applicable law, as the same exists or may hereafter be amended, a
director of the Company shall not be personally liable to the Company or its
stockholders for monetary damages for any action taken, or any failure to take
any action, as a director.
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The Company shall indemnify to the fullest extent permitted by the Delaware
General Corporation Law, or any other applicable law, as the same exists or may
hereafter be amended, any person made or threatened to be made a party to an
action or proceeding, whether criminal, civil, administrative or investigate, by
reason of the fact that he or she or his testator or intestate is or was a
director or officer of the Company or any predecessor of the Company or serves
or served any other enterprise as a director, officer, employee or agent at the
request of the Company or any predecessor to the Company.
Neither any amendment nor repeal of this Article, nor the adoption of any
provision of this Certificate of Incorporation inconsistent with this Article,
shall eliminate or reduce the effect of this Article in respect of any matter
occurring, or any cause of action, suit or claim accruing or arising or that,
but for this Article, would accrue or arise, prior to such amendment, repeal or
adoption of an inconsistent provision.
ARTICLE IX
Advance notice of new business and stockholder nominations for the election
of directors shall be given in the manner and to the extent provided in the
Bylaws of the Company.
ARTICLE X
Elections of directors need not be by written ballot unless the Bylaws of
the Company shall so provide.
ARTICLE XI
Except as provided in Section 6 of Article IV and Article VIII above, 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 statute, and all rights conferred upon stockholders herein are
granted subject to this reservation.
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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 29th day of August, 2000.
By: /s/ BENJAMIN A HOROWITZ
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Benjamin A. Horowitz
President and Chief Executive Officer
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