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EXHIBIT 5
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CALDERA SYSTEMS, INC.
It is hereby certified that:
FIRST: The name of the corporation (hereinafter called the
"Corporation") is Caldera Systems, Inc.
SECOND: The Corporation filed its original Certificate of Incorporation
with the Delaware Secretary of State on March 6, 2000, under the name Caldera
Systems, Inc. The Certificate of Incorporation was amended and restated on March
20, 2000.
THIRD: The Board of Directors duly adopted resolutions proposed to amend
and restate the Certificate of Incorporation of the Corporation, declaring said
amendment and restatement to be advisable and in the best interests of the
Corporation and its stockholders, and authorizing the appropriate officers of
the Corporation to solicit the consent of the stockholders of the issued and
outstanding Common Stock, $0.001 par value, all in accordance with the
applicable provisions of Sections 242 and 245 of the General Corporation Law of
the State of Delaware.
FOURTH: The Certificate of Incorporation of the corporation shall be
amended and restated to read in full as follows:
ARTICLE I
"The name of this corporation is Caldera Operating, Inc. (the
"Corporation").
ARTICLE II
The address of the registered office of the Corporation in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, City of Wilmington,
City of New Castle, State of Delaware, and the name of the registered agent at
such address is The Corporation Trust Company.
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ARTICLE III
The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the Delaware General
Corporation Law.
ARTICLE IV
The Corporation is authorized to issue one class of stock to be designed
"Common Stock." The total number of shares of Common Stock which the Corporation
is authorized to issue is one hundred (100) shares, $0.001 par value.
ARTICLE V
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, (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 VI 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
VI 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 VI
The Corporation may, to the fullest extent permitted by Section 145 of
the General Corporation Law of Delaware, as amended from time to time, indemnify
each person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he is or
was, or has agreed to become, a director or officer of the Corporation, or is or
was serving, or has agreed to serve, at the request of the Corporation, as a
director, officer or trustee of, or in a similar capacity with, another
corporation, partnership, joint venture, trust or other enterprise (including
any employee benefit plan) (all such persons being referred to hereafter as an
"Indemnitee"), or by reason of any action alleged to have been taken or omitted
in such capacity, against all expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him or
on his behalf in connection with such action, suit or proceeding and any appeal
therefrom.
Indemnification may include payment by the Corporation of expenses in
defending an action or proceeding in advance of the final disposition of such
action or proceeding upon receipt
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of an undertaking by the Indemnitee to repay such payment if it is ultimately
determined that such person is not entitled to indemnification under this
Article VI, which undertaking may be accepted without reference to the financial
ability of such person to make such repayment.
The Corporation shall not indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person unless the initiation thereof was approved by the Board of Directors
of the Corporation.
The indemnification rights provided in this Article VI (i) shall not be
deemed exclusive of any other rights to which Indemnitees may be entitled under
any law, agreement or vote of stockholders or disinterested directors or
otherwise, and (ii) shall inure to the benefit of the heirs, executors and
administrators of such persons. The Corporation may, to the extent authorized
from time to time by its Board of Directors, grant indemnification rights to
other employees or agents of the Corporation or other persons serving the
Corporation and such rights may be equivalent to, or greater or less than, those
set forth in this Article VI.
ARTICLE VII
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 on stockholders herein
are granted subject to this reservation.
ARTICLE VIII
Election of directors need not be by written ballot unless the Bylaws of
the Corporation shall so provide.
ARTICLE IX
The number of directors which shall constitute the whole Board of
Directors shall be fixed from time to time by, or in the manner provided in, the
Bylaws or in an amendment thereof duly adopted by the Board of Directors or by
the stockholders.
ARTICLE X
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.
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ARTICLE XI
Except as otherwise provided in this Certificate of Incorporation, 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."
* * *
FIFTH: The foregoing Second Amended and Restated Certificate of
Incorporation has been duly adopted by this 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 Amended and Restated
Certificate of Incorporation as of the ____ day of August 2000.
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Alan J. Hansen
Chief Financial Officer
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