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Exhibit 3.3
RESTATED
CERTIFICATE OF INCORPORATION OF
EQUINIX, INC.
a Delaware corporation
(Pursuant to Sections 242 and 245
of the Delaware General Corporation Law)
Equinix, Inc., a corporation organized and existing under the General
Corporation Law of the State of Delaware (the "General Corporation Law"),
originally incorporated on June 22, 1998, under the name Quark Communications,
Inc.
DOES HEREBY CERTIFY:
FIRST: That the name of this corporation is Equinix, Inc.
SECOND: That the Board of Directors duly adopted resolutions
proposing to amend and restate the Amended and Restated Certificate of
Incorporation of this corporation, declaring said amendment and restatement to
be advisable and in the best interests of this corporation and its stockholders,
and authorizing the appropriate officers of this corporation to solicit the
consent of the stockholders therefor, which resolution setting forth the
proposed amendment and restatement is as follows:
"RESOLVED, that the Restated Certificate of Incorporation of this
corporation, as amended, be amended and restated in its entirety as follows:
ARTICLE I
The name of the corporation is Equinix, Inc. (the "Corporation").
ARTICLE II
The address of the registered office of this corporation in the State
of Delaware is 15 E. North St., P.O. Box 899, in the City of Dover, County of
Kent. The name of its registered agent at such address is Incorporating
Services, Ltd.
ARTICLE III
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 Delaware.
ARTICLE IV
The Corporation is authorized to issue two classes of stock to be
designated common stock ("Common Stock") and preferred stock ("Preferred
Stock"). The number of
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shares of Common Stock authorized to be issued is Three Hundred Million
(300,000,000), par value $.0001 per share, and the number of shares of Preferred
Stock authorized to be issued is Ten Million (10,000,000), par value $0.001 per
share.
The Preferred Stock may be issued from time to time in one or more
series, without further stockholder approval. The Board of Directors is hereby
authorized, in the resolution or resolutions adopted by the Board of Directors
providing for the issue of any wholly unissued series of Preferred Stock, within
the limitations and restrictions stated in this Restated Certificate of
Incorporation (the "Restated Certificate"), to fix or alter the dividend rights,
dividend rate, conversion rights, voting rights, rights and terms of redemption
(including sinking fund provisions), the redemption price or prices, and the
liquidation preferences 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
subsequent to the issue of shares 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 that they had prior to the adoption of the resolution originally
fixing the number of shares of such series.
ARTICLE V
Except as otherwise provided in this Restated Certificate, in
furtherance and not in limitation of the powers conferred by statute, the Board
of Directors is expressly authorized to make, repeal, alter, amend and rescind
any or all of the Bylaws of the Corporation.
ARTICLE VI
The number of directors of the Corporation shall be fixed from time to
time by a bylaw or amendment thereof duly adopted by the Board of Directors or
by the stockholders.
ARTICLE VII
Elections of directors need not be by written ballot unless the Bylaws
of the Corporation shall so provide.
ARTICLE VIII
Except as otherwise provided in this Restated Certificate, any action
required or permitted to be taken by the stockholders of the Corporation must be
effected at an annual or special meeting of the stockholders of the Corporation,
and may not be effected by any consent in writing of such stockholders.
ARTICLE IX
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,
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(ii) for acts or omissions not in good faith or which involve 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 any improper personal benefit. If the Delaware General
Corporation Law is amended after approval by the stockholders of this Article 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 provisions of this Article
IX 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, or
increase the liability of any director of this Corporation with respect to any
acts or omissions of such director occurring prior to, such repeal or
modification.
ARTICLE X
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 Restated Certificate, the
affirmative vote of the holders of 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, shall
be required to amend or repeal the provisions of ARTICLE I, ARTICLE II, and
ARTICLE III of this Restated Certificate. 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 Restated Certificate, the affirmative vote of the holders of at least
seventy-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, shall
be required to amend or repeal any provision of this Restated Certificate not
specified in the preceding sentence.
* * * *
THIRD: The foregoing Restated Certificate of Incorporation has been
duly adopted by the Corporation's Board of Directors and stockholders in
accordance with the applicable provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware.
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IN WITNESS WHEREOF, the undersigned has signed this Certificate this
___ day of ____________, 2000.
________________________________________
Peter F. Van Camp
Chief Executive Officer
