Attached files
| file | filename |
|---|---|
| 10-Q - ARBINET Corp | v192640_10q.htm |
| EX-32 - ARBINET Corp | v192640_ex32.htm |
| EX-31.1 - ARBINET Corp | v192640_ex31-1.htm |
| EX-31.2 - ARBINET Corp | v192640_ex31-2.htm |
Exhibit
3.1
Delaware
The
First State
Page
1
I,
JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS FILED
FROM AND INCLUDING THE RESTATED CERTIFICATE OR A MERGER WITH A RESTATED
CERTIFICATE ATTACHED OF “ARBINET CORPORATION” AS RECEIVED AND FILED IN THIS
OFFICE.
THE
FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:
RESTATED
CERTIFICATE, FILED THE TWENTY-FIRST DAY OF DECEMBER, A.D. 2004, AT
7:30 O’CLOCK A.M.
CERTIFICATE
OF AMENDMENT, CHANGING ITS NAME FROM “ARBINET-THEXCHANGE , INC.” TO “ARBINET
CORPORATION”, FILED THE SIXTEENTH DAY OF JUNE, A.D. 2009, AT 12:30
O’CLOCK P.M.
CERTIFICATE
OF AMENDMENT, FILED THE ELEVENTH DAY OF JUNE, A.D. 2010, AT 1:21
O’CLOCK P.M.
AND
I DO HEREBY FURTHER CERTIFY THAT THE EFFECTIVE DATE OF THE AFORESAID CERTIFICATE
OF AMENDMENT IS THE ELEVENTH DAY OF JUNE, A.D. 2010, AT 5 O’CLOCK
P.M.
State
of Delaware
Secretary
of State
Division
of Corporations
Delivered
07:21 AM 12/21/2004
FILED
07:30 AM 12/21/2004
SRV
040924955 – 2683421 FILE
AMENDED
AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
ARBINET-THEXCHANGE,
INC.
Arbinet-thexchange,
Inc., a corporation organized and existing under the laws of the State of
Delaware (hereinafter referred to as the “Corporation”), hereby certifies as
follows:
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1.
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The
name of the Corporation is Arbinet-thexchange, Inc. The
Corporation filed its original certificate of incorporation with the
Secretary of State of the State of Delaware on November 14,
1996. The Corporation was originally incorporated under the
name SmartGroup Holdings, Inc.
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2.
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This
Amended and Restated Certificate of Incorporation amends the Corporation’s
Amended and Restated Certificate of Incorporation, to, among other
things: (i) eliminate all references to Series A-1 Preferred
Stock, Series B Cumulative Redeemable Senior Preferred Stock, Series B-1
Cumulative Redeemable Senior Preferred Stock, Series C Cumulative
Convertible Senior Preferred Stock, Series C-1 Cumulative Convertible
Senior Preferred Stock, Series D Convertible Preferred Stock, Series D-1
Convertible Preferred Stock, Series E Convertible Preferred Stock and
Series E-1 Convertible Preferred Stock; (ii) decrease the number of
authorized shares of the Corporation’s Common Stock (as defined below) and
decrease the number of authorized shares of the Corporation’s Preferred
Stock (as defined below); and (iii) provide that the Corporation will have
a staggered board of directors.
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3.
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This
Amended and Restated Certificate of Incorporation was duly adopted in
accordance with the provisions of Sections 242 and 245 of the General
Corporation Law of Delaware, the requisite written consent of the holders
of each class of stock entitled to vote thereon has been voted in favor of
this Amended and Restated Certificate of Incorporation and written notice
has been given as provided by Section 228 of the General Corporation Law
of Delaware. This Amended and Restated Certificate of
Incorporation restates, integrates and further amends the provisions of
the Corporation’s Amended and Restated Certificate of Incorporation, as
follows:
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FIRST: The
name of the Corporation is Arbinet-thexchange, Inc.
SECOND: 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. The name of its registered agent at such address is
The Corporation Trust Company.
THIRD: The
nature of the business or purposes 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 Delaware.
FOURTH: The
total number of shares of all classes of stock which the Corporation shall have
authority to issue is 65,000,000 shares, consisting of (i) 60,000,000 shares of
Common Stock, $0.001 par value per share (“Common Stock”), and (ii) 5,000,000
shares of Preferred Stock, $0.001 par value per share (“Preferred
Stock”).
The
following is a statement of the designations and the powers, privileges and
rights, and the qualifications, limitations or restrictions thereof in respect
of each class of capital stock of the Corporation.
A COMMON
STOCK.
1. General. The voting, dividend and
liquidation rights of the holders of the Common Stock are subject to and
qualified by the rights of the holders of the Preferred Stock of any series as
may be designated by the Board of Directors upon any issuance of the Preferred
Stock of any series.
2. Voting. The holders of the Common
Stock shall have voting rights at all meetings of stockholders, each such holder
being entitled to one vote for each share thereof held by such holder;
provided, however, that, except as otherwise required by
law, holders of Common Stock shall not be entitled to vote on any amendment to
this Certificate of Incorporation (which, as used herein, shall mean the
certificate of incorporation of the Corporation, as amended from time to time,
including the terms of any certificate of designation of any series of Preferred
Stock) that relates solely to the terms of one or more outstanding series of
Preferred Stock if the holders of such affected series are entitled, either
separately or together as a class with the holders of one or more other such
series, to vote thereon pursuant to this Certificate of
Incorporation. There shall be no cumulative
voting.
The
number of authorized shares of Common Stock may be increased or decreased (but
not below the number of shares thereof then outstanding) by the affirmative vote
of the holders of a majority of the stock of the Corporation entitled to vote,
irrespective of the provisions of Section 242(b)(2) of the General Corporation
Law of Delaware.
3. Dividends. Dividends may be declared
and paid on the Common Stock from funds lawfully available therefor as and when
determined by the Board of Directors and subject to any preferential dividend or
other rights of any then outstanding Preferred Stock.
4. Liquidation. Upon the dissolution or
liquidation of the Corporation, whether voluntary or involuntary, holders of
Common Stock will be entitled to receive all assets of the Corporation available
for distribution to its stockholders, subject to any preferential or other
rights of any then outstanding Preferred Stock.
-2-
B PREFERRED
STOCK.
Preferred
Stock may be issued from time to time in one or more series, each of such series
to have such terms as stated or expressed herein and in the resolution or
resolutions providing for the issue of such series adopted by the Board of
Directors of the Corporation as hereinafter provided. Any shares of
Preferred Stock which may be redeemed, purchased or acquired by the Corporation
may be reissued except as otherwise provided by law. Different series
of Preferred Stock shall not be construed to constitute different classes of
shares for the purposes of voting by classes unless expressly
provided.
Authority
is hereby expressly granted to the Board of Directors from time to time to issue
the Preferred Stock in one or more series, and in connection with the creation
of any such series, by resolution or resolutions providing for the issuance of
the shares thereof, to determine and fix the number of shares of such series and
such voting powers, full or limited, or no voting powers, and such designations,
preferences and relative participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, including without
limitation thereof, dividend rights, conversion rights, redemption privileges
and liquidation preferences, as shall be stated and expressed in such
resolutions, all to the full extent now or hereafter permitted by the General
Corporation Law of Delaware. Without limiting the generality of the
foregoing, the resolutions providing for issuance of any series of Preferred
Stock may provide that such series shall be superior or rank equally or be
junior to the Preferred Stock of any other series to the extent permitted by
law.
The
number of authorized shares of Preferred Stock may be increased or decreased
(but not below the number of shares then outstanding) by the affirmative vote of
the holders of a majority of the stock of the Corporation entitled to vote,
irrespective of the provisions of Section 242(b)(2) of the General Corporation
Law of Delaware.
FIFTH: Except
as otherwise provided herein, 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 this
Certificate of Incorporation, and all rights conferred upon stockholders herein
are granted subject to this reservation.
SIXTH: In
furtherance and not in limitation of the powers conferred upon it by the laws of
the State of Delaware, and subject to the terms of any series of Preferred
Stock, the Board of Directors shall have the power to adopt, amend, alter or
repeal the Corporation’s By-laws. The affirmative vote of a majority
of the directors present at any regular or special meeting of the Board of
Directors at which a quorum is present shall be required to adopt, amend, alter
or repeal the Corporation’s By-laws. The Corporation’s By-laws also
may be adopted, amended, altered or repealed by the affirmative vote of the
holders of at least seventy-five percent (75%) of the votes which all the
stockholders would be entitled to cast in any annual election of directors or
class of directors, in addition to any other vote required by this Certificate
of Incorporation. Notwithstanding any other provisions of law, this
Certificate of Incorporation or the By-laws of the Corporation, and
notwithstanding the fact that a lesser percentage may be specified by law, the
affirmative vote of the holders of at least seventy-five percent (75%) of the
votes which all the stockholders would be entitled to cast in any annual
election of directors or class of directors shall be required to amend or
repeal, or to adopt any provision inconsistent with, this Article
SIXTH.
-3-
SEVENTH: Except
to the extent that the General Corporation Law of Delaware prohibits the
elimination or limitation of liability of directors for breaches of fiduciary
duty, no director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for any breach of fiduciary
duty as a director, notwithstanding any provision of law imposing such
liability. No amendment to or repeal of this provision shall apply to
or have any effect on the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment or repeal.
EIGHTH: The
Corporation shall provide indemnification as follows:
1. Actions,
Suits and Proceedings Other than by or in the Right of the
Corporation. The
Corporation shall indemnify each person who was or is a party or threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Corporation) by reason of the fact that he
or she 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, partner, employee 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 or on behalf of Indemnitee in connection with such
action, suit or proceeding and any appeal therefrom, if Indemnitee acted in good
faith and in a manner which Indemnitee reasonably believed to be in, or not
opposed to, the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction or upon a plea of
nolo contendere or its equivalent, shall not, of
itself, create a presumption that Indemnitee did not act in good faith and in a
manner which Indemnitee reasonably believed to be in, or not opposed to, the
best interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his or her conduct was
unlawful.
2. Actions or
Suits by or in the Right of the Corporation. The Corporation shall
indemnify any Indemnitee who was or is a party to or threatened to be made a
party to any threatened, pending or completed action or suit by or in the right
of the Corporation to procure a judgment in its favor by reason of the fact that
Indemnitee 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, partner, employee or trustee of, or in a
similar capacity with, another corporation, partnership, joint venture, trust or
other enterprise (including any employee benefit plan), or by reason of any
action alleged to have been taken or omitted in such capacity, against all
expenses (including attorneys’ fees) and, to the extent permitted by law,
amounts paid in settlement actually and reasonably incurred by or on behalf of
Indemnitee in connection with such action, suit or proceeding and any appeal
therefrom, if Indemnitee acted in good faith and in a manner which Indemnitee
reasonably believed to be in, or not opposed to, the best interests of the
Corporation, except that no indemnification shall be made under this Section 2
in respect of any claim, issue or matter as to which Indemnitee shall have been
adjudged to be liable to the Corporation, unless, and only to the extent, that
the Court of Chancery of Delaware shall determine upon application that, despite
the adjudication of such liability but in view of all the circumstances of the
case, Indemnitee is fairly and reasonably entitled to indemnity for such
expenses (including attorneys’ fees) which the Court of Chancery of Delaware
shall deem proper.
-4-
3. Indemnification
for Expenses of Successful Party. Notwithstanding any other
provisions of this Article, to the extent that an Indemnitee has been
successful, on the merits or otherwise, in defense of any action, suit or
proceeding referred to in Sections 1 and 2 of this Article EIGHTH, or in defense
of any claim, issue or matter therein, or on appeal from any such action, suit
or proceeding, Indemnitee shall be indemnified against all expenses (including
attorneys’ fees) actually and reasonably incurred by or on behalf of Indemnitee
in connection therewith. Without limiting the foregoing, if any
action, suit or proceeding is disposed of, on the merits or otherwise (including
a disposition without prejudice), without (i) the disposition being adverse to
Indemnitee, (ii) an adjudication that Indemnitee was liable to the Corporation,
(iii) a plea of guilty or nolo contendere by Indemnitee, (iv) an adjudication
that Indemnitee did not act in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Corporation, and (v) with
respect to any criminal proceeding, an adjudication that Indemnitee had
reasonable cause to believe his conduct was unlawful, Indemnitee shall be
considered for the purposes hereof to have been wholly successful with respect
thereto.
4. Notification
and Defense of Claim. As a condition precedent to
an Indemnitee’s right to be indemnified, such Indemnitee must notify the
Corporation in writing as soon as practicable of any action, suit, proceeding or
investigation involving such Indemnitee for which indemnity will or could be
sought. With respect to any action, suit, proceeding or investigation
of which the Corporation is so notified, the Corporation will be entitled to
participate therein at its own expense and/or to assume the defense thereof at
its own expense, with legal counsel reasonably acceptable to
Indemnitee. After notice from the Corporation to Indemnitee of its
election so to assume such defense, the Corporation shall not be liable to
Indemnitee for any legal or other expenses subsequently incurred by Indemnitee
in connection with such action, suit, proceeding or investigation, other than as
provided below in this Section 4. Indemnitee shall have the right to
employ his or her own counsel in connection with such action, suit, proceeding
or investigation, but the fees and expenses of such counsel incurred after
notice from the Corporation of its assumption of the defense thereof shall be at
the expense of Indemnitee unless (i) the employment of counsel by Indemnitee has
been authorized by the Corporation, (ii) counsel to Indemnitee shall have
reasonably concluded that there may be a conflict of interest or position on any
significant issue between the Corporation and Indemnitee in the conduct of the
defense of such action, suit, proceeding or investigation or (iii) the
Corporation shall not in fact have employed counsel to assume the defense of
such action, suit, proceeding or investigation, in each of which cases the fees
and expenses of counsel for Indemnitee shall be at the expense of the
Corporation, except as otherwise expressly provided by this
Article. The Corporation shall not be entitled, without the consent
of Indemnitee, to assume the defense of any claim brought by or in the right of
the Corporation or as to which counsel for Indemnitee shall have reasonably made
the conclusion provided for in clause (ii) above. The Corporation
shall not be required to indemnify Indemnitee under this Article EIGHTH for any
amounts paid in settlement of any action, suit, proceeding or investigation
effected without its written consent. The Corporation shall not
settle any action, suit, proceeding or investigation in any manner which would
impose any penalty or limitation on Indemnitee without Indemnitee’s written
consent. Neither the Corporation nor Indemnitee will unreasonably
withhold or delay its consent to any proposed settlement.
-5-
5. Advance of
Expenses. Subject to the provisions
of Section 6 of this Article EIGHTH, in the event that the Corporation does not
assume the defense pursuant to Section 4 of this Article EIGHTH of any action,
suit, proceeding or investigation of which the Corporation receives notice under
this Article, any expenses (including attorneys’ fees) incurred by or on behalf
of Indemnitee in defending an action, suit, proceeding or investigation or any
appeal therefrom shall be paid by the Corporation in advance of the final
disposition of such matter; provided, however, that the payment of such
expenses incurred by or on behalf of Indemnitee in advance of the final
disposition of such matter shall be made only upon receipt of an undertaking by
or on behalf of Indemnitee to repay all amounts so advanced in the event that it
shall ultimately be determined that Indemnitee is not entitled to be indemnified
by the Corporation as authorized in this Article; and further provided that no
such advancement of expenses shall be made under this Article EIGHTH if it is
determined (in the manner described in Section 6) that (i) Indemnitee did not
act in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Corporation, or (ii) with respect to any
criminal action or proceeding, Indemnitee had reasonable cause to believe his
conduct was unlawful. Such undertaking shall be accepted without
reference to the financial ability of Indemnitee to make such
repayment.
6. Procedure
for Indemnification. In order to obtain
indemnification or advancement of expenses pursuant to Section 1, 2, 3 or 5 of
this Article EIGHTH, an Indemnitee shall submit to the Corporation a written
request. Any such advancement of expenses shall be made promptly, and
in any event within 30 days after receipt by the Corporation of the written
request of Indemnitee, unless the Corporation determines within such 30-day
period that Indemnitee did not meet the applicable standard of conduct set forth
in Section 1, 2 or 5 of this Article EIGHTH, as the case may be. Any
such indemnification, unless ordered by a court, shall be made with respect to
requests under Section 1 or 2 only as authorized in the specific case upon a
determination by the Corporation that the indemnification of Indemnitee is
proper because Indemnitee has met the applicable standard of conduct set forth
in Section 1 or 2, as the case may be. Such determination shall be
made in each instance (a) by a majority vote of the directors of the Corporation
consisting of persons who are not at that time parties to the action, suit or
proceeding in question (“disinterested directors”), whether or not a quorum, (b)
by a committee of disinterested directors designated by majority vote of
disinterested directors, whether or not a quorum, (c) if there are no
disinterested directors, or if the disinterested directors so direct, by
independent legal counsel (who may, to the extent permitted by law, be regular
legal counsel to the Corporation) in a written opinion, or (d) by the
stockholders of the Corporation.
7. Remedies. The right to
indemnification or advancement of expenses as granted by this Article shall be
enforceable by Indemnitee in any court of competent
jurisdiction. Neither the failure of the Corporation to have made a
determination prior to the commencement of such action that indemnification is
proper in the circumstances because Indemnitee has met the applicable standard
of conduct, nor an actual determination by the Corporation pursuant to Section 6
of this Article EIGHTH that Indemnitee has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that
Indemnitee has not met the applicable standard of
conduct. Indemnitee’s expenses (including attorneys’ fees) reasonably
incurred in connection with successfully establishing Indemnitee’s right to
indemnification, in whole or in part, in any such proceeding shall also be
indemnified by the Corporation.
-6-
8. Limitations. Notwithstanding anything to
the contrary in this Article, except as set forth in Section 7 of this Article
EIGHTH, the Corporation shall not indemnify an Indemnitee pursuant to this
Article EIGHTH in connection with a proceeding (or part thereof) initiated by
such Indemnitee unless the initiation thereof was approved by the Board of
Directors of the Corporation. Notwithstanding anything to the
contrary in this Article, the Corporation shall not indemnify an Indemnitee to
the extent such Indemnitee is reimbursed from the proceeds of insurance, and in
the event the Corporation makes any indemnification payments to an Indemnitee
and such Indemnitee is subsequently reimbursed from the proceeds of insurance,
such Indemnitee shall promptly refund indemnification payments to the
Corporation to the extent of such insurance reimbursement; provided, however, that nothing contained in this Section
8 shall be construed to require any Indemnitee to seek reimbursement under any
insurance policy.
9. Subsequent
Amendment. No
amendment, termination or repeal of this Article or of the relevant provisions
of the General Corporation Law of Delaware or any other applicable laws shall
affect or diminish in any way the rights of any Indemnitee to indemnification
under the provisions hereof with respect to any action, suit, proceeding or
investigation arising out of or relating to any actions, transactions or facts
occurring prior to the final adoption of such amendment, termination or
repeal.
10. Other
Rights. The
indemnification and advancement of expenses provided by this Article shall not
be deemed exclusive of any other rights to which an Indemnitee seeking
indemnification or advancement of expenses may be entitled under any law (common
or statutory), agreement or vote of stockholders or disinterested directors or
otherwise, both as to action in Indemnitee’s official capacity and as to action
in any other capacity while holding office for the Corporation, and shall
continue as to an Indemnitee who has ceased to be a director or officer, and
shall inure to the benefit of the estate, heirs, executors and administrators of
Indemnitee. Nothing contained in this Article shall be deemed to
prohibit, and the Corporation is specifically authorized to enter into,
agreements with officers and directors providing indemnification rights and
procedures different from those set forth in this Article. In
addition, 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.
11. Partial
Indemnification. If an Indemnitee is
entitled under any provision of this Article to indemnification by the
Corporation for some or a portion of the expenses (including attorneys’ fees),
judgments, fines or amounts paid in settlement actually and reasonably incurred
by or on behalf of Indemnitee in connection with any action, suit, proceeding or
investigation and any appeal therefrom but not, however, for the total amount
thereof, the Corporation shall nevertheless indemnify Indemnitee for the portion
of such expenses (including attorneys’ fees), judgments, fines or amounts paid
in settlement to which Indemnitee is entitled.
-7-
12. Insurance. The Corporation may
purchase and maintain insurance, at its expense, to protect itself and any
director, officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise (including any employee
benefit plan) against any expense, liability or loss incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation
would have the power to indemnify such person against such expense, liability or
loss under the General Corporation Law of Delaware.
13. Savings
Clause. If this
Article or any portion hereof shall be invalidated on any ground by any court of
competent jurisdiction, then the Corporation shall nevertheless indemnify each
Indemnitee as to any expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement in connection with any action, suit, proceeding or
investigation, whether civil, criminal or administrative, including an action by
or in the right of the Corporation, to the fullest extent permitted by any
applicable portion of this Article that shall not have been invalidated and to
the fullest extent permitted by applicable law.
14. Definitions. Terms used herein and
defined in Section 145(h) and Section 145(i) of the General Corporation Law of
Delaware shall have the respective meanings assigned to such terms in such
Section 145(h) and Section 145(i).
NINTH: This
Article is inserted for the management of the business and for the conduct of
the affairs of the Corporation.
1. General
Powers. The
business and affairs of the Corporation shall be managed by or under the
direction of the Board of Directors.
2. Number of
Directors; Election of Directors. Subject to the rights of
holders of any series of Preferred Stock to elect directors, the number of
directors of the Corporation shall be established by the Board of
Directors. Election of directors need not be by written ballot,
except as and to the extent provided in the By-laws of the
Corporation.
3. Classes of
Directors. Subject to the rights of
holders of any series of Preferred Stock to elect directors, the Board of
Directors shall be and is divided into three classes: Class I, Class
II and Class III. No one class shall have more than one director more
than any other class. In the event of any increase or decrease in the
authorized number of directors, (a) each director then serving as such shall
nevertheless continue as a director of the class of which he or she is a member
until the expiration of his or her current term, subject to his or her earlier
death, resignation or removal and (b) the newly created or eliminated
directorship(s) resulting from such increase or decrease shall be apportioned
equally among the three classes in accordance with Section 3 of this Article
NINTH.
-8-
4. Terms of
Office. Subject
to the rights of holders of any series of Preferred Stock to elect directors,
each director shall serve for a term ending on the date of the third annual
meeting following the annual meeting at which such director was elected;
provided, that each director initially appointed to Class I shall serve for a
term expiring at the Corporation’s annual meeting of stockholders held in 2005;
each director initially appointed to Class II shall serve for a term expiring at
the Corporation’s annual meeting of stockholders held in 2006; and each director
initially appointed to Class III shall serve for a term expiring at the
Corporation’s annual meeting of stockholders held in 2007; provided further,
that the term of each director shall continue until the election and
qualification of his successor and be subject to his earlier death, resignation
or removal.
5. Quorum. The greater of (a) a
majority of the directors at any time in office and (b) one-third of the number
of directors fixed pursuant to Section 2 of this Article NINTH shall constitute
a quorum. If at any meeting of the Board of Directors there shall be
less than such a quorum, a majority of the directors present may adjourn the
meeting from time to time without further notice other than announcement at the
meeting, until a quorum shall be present.
6. Action at
Meeting. Every
act or decision done or made by a majority of the directors present at a meeting
duly held at which a quorum is present shall be regarded as the act of the Board
of Directors unless a greater number is required by law or by this Certificate
of Incorporation.
7. Removal. Subject to the rights of
holders of any series of Preferred Stock, directors of the Corporation may be
removed only for cause and only by the affirmative vote of the holders of at
least seventy-five percent (75%) of the votes which all the stockholders would
be entitled to cast in any annual election of directors or class of
directors.
8. Vacancies. Subject to the rights of
holders of any series of Preferred Stock, any vacancy or newly created
directorships on the Board of Directors, however occurring, shall be filled only
by vote of a majority of the directors then in office, although less than a
quorum, or by a sole remaining director and shall not be filled by the
stockholders. A director elected to fill a vacancy shall hold office
until the next election of the class for which such director shall have been
chosen, subject to the election and qualification of a successor and until such
director’s earlier death, resignation or removal.
9. Stockholder
Nominations and Introduction of Business, Etc. Advance notice of
stockholder nominations for election of directors and other business to be
brought by stockholders before a meeting of stockholders shall be given in the
manner provided by the By-laws of the Corporation.
10. Amendments
to Article. Notwithstanding any other
provisions of law, this Certificate of Incorporation or the By-laws of the
Corporation, and notwithstanding the fact that a lesser percentage may be
specified by law, the affirmative vote of the holders of at least seventy-five
percent (75%) of the votes which all the stockholders would be entitled to cast
in any annual election of directors or class of directors shall be required to
amend or repeal, or to adopt any provision inconsistent with, this Article
NINTH.
-9-
TENTH: Stockholders
of the Corporation may not take any action by written consent in lieu of a
meeting. Notwithstanding any other provisions of law, this
Certificate of Incorporation or the By-laws of the Corporation, and
notwithstanding the fact that a lesser percentage may be specified by law, the
affirmative vote of the holders of at least seventy-five percent (75%) of the
votes which all the stockholders would be entitled to cast in any annual
election of directors or class of directors shall be required to amend or
repeal, or to adopt any provision inconsistent with, this Article
TENTH.
ELEVENTH: Special
meetings of stockholders for any purpose or purposes may be called at any time
by the Board of Directors, the Chairman of the Board, the Chief Executive
Officer or the President, but such special meetings may not be called by any
other person or persons. Business transacted at any special meeting
of stockholders shall be limited to matters relating to the purpose or purposes
stated in the notice of meeting. Notwithstanding any other provision
of law, this Certificate of Incorporation or the By-laws of the Corporation, and
notwithstanding the fact that a lesser percentage may be specified by law, the
affirmative vote of the holders of at least seventy-five percent (75%) of the
votes which all the stockholders would be entitled to cast in any annual
election of directors or class of directors shall be required to amend or
repeal, or to adopt any provision inconsistent with, this Article
ELEVENTH.
* * * *
*
-10-
IN
WITNESS WHEREOF, the undersigned, being an authorized officer of the
Corporation, does hereby execute this Amended and Restated Certificate of
Incorporation this 21st day of December, 2004.
| ARBINET-THEXCHANGE, INC. | |||
|
|
By:
|
/s/ J. Curt Hockemeier | |
| Name: J. Curt Hockemeier | |||
| Title: President and Chief Executive Officer | |||
State
of Delaware
Secretary
of State
Division
of Corporations
Delivered
12:38 PM 06/16/2009
FILED
12:30 PM 06/16/2009
SRV
090620501 - 2683421 FILE
CERTIFICATE
OF AMENDMENT
OF
AMENDED
AND RESTATED CERTIFICATE OF INCORPORATION
OF
ARBINET-THEXCHANGE,
INC.
Arbinet-thexchange,
Inc. (the “Corporation”), a
corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware, does hereby certify:
FIRST: That
the Board of Directors of the Corporation has duly adopted resolutions (i)
authorizing the Corporation to execute and file with the Secretary of State of
the State of Delaware this Certificate of Amendment to change the name of the
Corporation and (ii) declaring this Certificate of Amendment to be advisable and
recommended for approval by the stockholders of the Corporation.
SECOND: That
this Certificate of Amendment was duly adopted in accordance with the provisions
of Section 242 of the General Corporation Law of the State of Delaware by the
Board of Directors and stockholders of the Corporation.
THIRD: That
upon the effectiveness of this Certificate of Amendment (the “Effective Time”),
Article FIRST of the Amended and Restated Certificate of Incorporation is hereby
amended and restated as follows:
“FIRST: The
name of the corporation is Arbinet Corporation.”
FOURTH: That
the Effective Time of this Certificate of Amendment shall be upon filing with
the Secretary of State of the State of Delaware.
[signature
page follows]
IN
WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment on
this 16th day of June, 2009.
| ARBINET-THEXCHANGE, INC. | |||
|
|
By:
|
/s/ Shawn F. O’Donnell | |
| Shawn F. O’Donnell | |||
| Chief Executive Officer and President | |||
State
of Delaware
Secretary
of State
Division
of Corporations
Delivered
01:24 PM 06/11/2010
FILED
01:21 PM 06/11/2010
SRV
100649930 - 2683421 FILE
CERTIFICATE
OF AMENDMENT
OF
RESTATED
CERTIFICATE OF INCORPORATION
OF
ARBINET
CORPORATION
It is
hereby certified that:
1. The
name of the corporation (hereinafter called the “Corporation”) is Arbinet
Corporation.
2. The
date of filing of the Certificate of Incorporation of the Corporation with the
Secretary of State of the State of Delaware was November 14, 1996 under the name
SmartGroup Holdings, Inc. Thereafter an Amendment to the Certificate
of Incorporation was filed on March 13, 1997 to change the name of the
Corporation to Arbinet Holdings, Inc. A Restated Certificate of
Incorporation was filed with the Secretary of State of the State of Delaware on
July 12, 2000 to change the name of the Corporation to Arbinet thexchange, Inc.
On December 21, 2004 a Restated Certificate of Incorporation was filed with the
Secretary of State of the State of Delaware. On June 16, 2009 an
Amendment to the Restated Certificate of Incorporation was filed to change in
the name of the Corporation to Arbinet Corporation.
3. The
Restated Certificate filed on December 21, 2004, as amended, is hereby further
amended as follows:
FIRST: That
the Board of Directors of the Corporation has duly adopted resolutions (i)
authorizing the Corporation to execute and file with the Secretary of State of
the State of Delaware this Certificate of Amendment to (a) combine each four (4)
shares of the Corporation’s Common Stock, $0.001 par value per share (“Common Stock”), issued and
outstanding or held in the treasury of the Corporation into one (1) share of
Common Stock (the “Reverse
Stock Split”) and (b) decrease the number of authorized shares of Common
Stock on a basis proportional to the Reverse Stock Split ratio, and (ii)
declaring this Certificate of Amendment to be advisable and recommended for
approval by the stockholders of the Corporation.
SECOND: That
this Certificate of Amendment was duly adopted in accordance with the provisions
of Section 242 of the General Corporation Law of Delaware by the Board of
Directors and stockholders of the Corporation.
THIRD: That
upon the effectiveness of this Certificate of Amendment (the “Effective Time”), the first
paragraph of Article FOURTH of the Restated Certificate of Incorporation is
hereby amended and restated as follows:
“FOURTH: The
total number of shares of all classes of stock which the Corporation shall have
authority to issue is 20,000,000 shares, consisting of (i) 15,000,000 shares of
Common Stock, $0.001 par value per share (“Common Stock”) and (ii) 5,000,000
shares of Preferred Stock, $0.001 par value per share (“Preferred
Stock”).”
FOURTH: That
at the Effective Time, Section A “COMMON STOCK” of Article FOURTH of the
Restated Certificate of Incorporation is hereby amended by appending the
following Section 5, which shall read in its entirety substantially as
follows:
“5. Reverse Stock
Split. Upon effectiveness of a Certificate of Amendment to the
Restated Certificate of Incorporation, as amended, (the “Effective Time”) filed
with the Secretary of State of the State of Delaware, each four (4) shares of
Common Stock issued and outstanding or held in the treasury of the Corporation
at such time shall be combined into one (1) share of Common Stock (the “Reverse
Stock Split”). No fractional share shall be issued upon the Reverse
Stock Split. All shares of Common Stock (including fractions thereof)
issuable upon the Reverse Stock Split to a given holder shall be aggregated for
purposes of determining whether the Reverse Stock Split would result in the
issuance of any fractional share. If, after the aforementioned
aggregation, the Reverse Stock Split would result in the issuance of a fraction
of a share of Common Stock, the Corporation shall, in lieu of issuing any such
fractional share, pay the holder otherwise entitled to such fraction a sum in
cash equal to the fraction multiplied by the fair market value per share of the
Common Stock as determined in a reasonable manner by the Board of
Directors. Each certificate representing shares of Common Stock
outstanding immediately prior to the Effective Time shall automatically, and
without the necessity of presenting the same for exchange, represent after the
Effective Time, only the applicable number of shares of Common Stock or cash in
lieu thereof, as provided in the Reverse Stock Split. Upon surrender
by a holder of a certificate or certificates for Common Stock, duly endorsed, at
the office of the Corporation, the Corporation shall, as soon as practicable
thereafter, issue and deliver to such holder, or to the nominee or assignee of
such holder, a new certificate or certificates for the number of shares of
Common Stock that such holder shall be entitled to following the Reverse Stock
Split.”
FIFTH: That
pursuant to Section 103(d) of the General Corporation Law of Delaware, the
Effective Time of this Certificate of Amendment shall be June 11, 2010, at 5:00
p.m. Eastern Daylight Time.”
[signature
page follows]
IN
WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment on
this 11th day of June, 2010.
| ARBINET CORPORATION | |||
|
|
By:
|
/s/ Shawn F. O’Donnell | |
| Shawn F. O’Donnell | |||
| Chief Executive Officer and President | |||