Attached files
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S-1/A - FORM S-1/A - Carbonite Inc | b86123a2sv1za.htm |
EX-3.2 - EX-3.2 - Carbonite Inc | b86123a2exv3w2.htm |
EX-23.2 - EX-23.2 - Carbonite Inc | b86123a2exv23w2.htm |
EX-1.1 - EX-1.1 - Carbonite Inc | b86123a2exv1w1.htm |
EX-10.1 - EX-10.1 - Carbonite Inc | b86123a2exv10w1.htm |
EX-10.2 - EX-10.2 - Carbonite Inc | b86123a2exv10w2.htm |
Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
CARBONITE, INC.
Pursuant to Sections 242 and 245 of the
General Corporation Law of the State of Delaware
General Corporation Law of the State of Delaware
Carbonite, Inc. (the Corporation), a corporation organized and existing under and by virtue
of the provisions of the General Corporation Law of the State of Delaware (the DGCL), does hereby
certify that:
FIRST: The name of the Corporation is Carbonite, Inc.
SECOND: The Certificate of Incorporation of the Corporation was filed with the Secretary of
State of the State of Delaware on February 10, 2005. The Certificate of Incorporation of the
Corporation as heretofore amended and restated is hereby amended and restated pursuant to Sections
228, 242, and 245 of the DGCL. All amendments to the Certificate of Incorporation reflected herein
have been duly adopted by the Board of Directors and stockholders of the Corporation in accordance
with the provisions of Sections 228, 242, and 245 of the DGCL. As required by Section 228 of the
DGCL, the Corporation has given written notice of the amendments reflected herein to all
stockholders who did not consent in writing to these amendments.
THIRD: The Certificate of Incorporation of the Corporation shall be amended and restated to
read in full as follows:
ARTICLE I - NAME
The name of the corporation is Carbonite, Inc. (the Corporation).
ARTICLE II - REGISTERED OFFICE AND AGENT
The address of the registered office of the Corporation in the State of Delaware is 1209
Orange Street, in the City of Wilmington, New Castle County, Delaware 19801. The name of its
registered agent at such address in The Corporation Trust Company.
ARTICLE III - PURPOSE AND POWERS
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 the State of Delaware (the DGCL).
ARTICLE IV - CAPITAL STOCK
The total number of shares of all classes of stock which the Corporation shall have authority
to issue is 66,000,000 shares, consisting of (i) 60,000,000 shares of common
stock, par value $0.01 per share (the Common Stock), and
(ii) 6,000,000 shares of
preferred stock, par value $0.01 per share (the Preferred Stock).
The rights, preferences, privileges and restrictions granted to and imposed on each class
of capital stock of the Corporation are as follows:
1. Common Stock.
1.1 General. The voting, dividend, and liquidation rights of the holders of Common
Stock are subject to and qualified by the rights of the holders of Preferred Stock of any series as
may be designated by the Board of Directors upon issuance of Preferred Stock of any series.
1.2 Voting. Each holder of Common Stock, as such, shall be entitled to one vote for
each share of Common Stock held of record by such holder on all
matters on which stockholders
generally are entitled to vote; provided, however, that, except as otherwise required by law, the
holders of Common Stock, as such, 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 of Preferred
Stock, to vote thereon pursuant to this Certificate of Incorporation or pursuant to the DGCL.
There shall be no cumulative voting.
1.3 Dividends. Dividends may be declared and paid on 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.
1.4 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. Preferred Stock. The Board of Directors is hereby empowered, without any action or
vote by the Corporations stockholders, to authorize by resolution or resolutions from time to time
the issuance of one or more classes or series of Preferred Stock and to fix the designations,
powers, preferences and relative participating, optional, or other rights, if any, and the
qualifications, limitations, or restrictions thereof, if any, with respect to each such class or
series of Preferred Stock and the number of shares constituting each such class or series, and to
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increase or decrease the number of shares of any such class or series to the extent permitted
by the DGCL. Any shares of Preferred Stock which may be redeemed, purchased, or acquired by the
Corporation may be reissued except as otherwise provided by the DGCL.
3. Changes in Number of Authorized Shares. The number of authorized shares of Common
Stock or Preferred Stock may be increased or decreased (but not below the number of shares of the
applicable class or series then outstanding) by the affirmative vote of the holders of not less a
majority of the total voting power of all outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of Directors, voting together as a single class,
irrespective of the provisions of Section 242(b)(2) of the DGCL.
ARTICLE V - LIMITATION OF LIABILITY
Except to the extent that the DGCL 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 Article V 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. If the DGCL is amended to permit further elimination or limitation of
personal liability of directors, the liability of a Director of the Corporation shall be eliminated
or limited to the fullest extent permitted by the DGCL.
ARTICLE VI - INDEMNIFICATION
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 is threatened to be made or
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 such person 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, trustee, general partner, managing member, fiduciary, board of directors
committee member, employee, or agent of, or in a similar capacity with, another corporation,
limited liability company, partnership, joint venture, trust, employee benefit plan, or other
enterprise (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), liabilities, losses, judgments, fines, excise taxes and penalties arising under
the Employee Retirement Income Security Act of 1974, as amended, 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
that 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 that
Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Corporation,
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and, with respect to any criminal action or proceeding, had reasonable cause to believe that
his or her conduct was unlawful. Notwithstanding anything to the contrary in this Article VI, and
except as set forth in Section 7 below, the Corporation shall not indemnify Indemnitee seeking
indemnification in connection with a proceeding (or part thereof) initiated by the Indemnitee
unless the initiation thereof was approved by the Board of Directors of the Corporation.
2. Actions or Suits by or in the Right of the Corporation. The Corporation shall
indemnify any Indemnitee who was or is a party or is 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, trustee, general partner, managing member,
fiduciary, board of directors committee member, employee, or agent of, or in a similar capacity
with, another corporation, limited liability company, partnership, joint venture, trust, employee
benefit plan or other enterprise, or by reason of any action alleged to have been taken or omitted
in such capacity, against all expenses (including attorneys fees) 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 that Indemnitee reasonably believed to
be in, or not opposed to, the best interests of the Corporation, except that no indemnification
shall be made 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 the State of Delaware or the court in which such action or suit was brought 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 State of Delaware or such other
court shall deem proper.
3. Indemnification for Expenses of Successful Party. Notwithstanding the other
provisions of this Article VI, to the extent that an Indemnitee has been successful, on the merits
or otherwise, in defense of any action, suit, investigation, or proceeding referred to in Section 1 and 2 of this
Article VI, or in defense of any claim, issue, or matter
therein, or on appeal from any such action, suit, investigation, 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.
4. Notification and Defense of Claim. As a condition precedent to an Indemnitees
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 expense 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
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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 VI. 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 VI 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 Indemnitees written consent. Neither the
Corporation nor Indemnitee will unreasonably withhold or delay its consent to any proposed
settlement.
5. Advance of Expenses. Subject to the provisions of Section 6 of this Article VI, in
the event of any threatened or pending action, suit, proceeding, or investigation of which the
Corporation received notice under this Article VI and with regard to which the Corporation does not
assume the defense pursuant to Section 4 of this Article VI, any expenses (including attorneys
fees) incurred by or on behalf of Indemnitee in defending a civil or criminal 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 VI. Such undertaking may be accepted without
reference to the financial ability of such person 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 VI, an Indemnitee shall submit to the
Corporation a written request, including in such request such documentation and information as is
reasonably available to Indemnitee and is reasonably necessary to determine whether and to what
extent Indemnitee is entitled to indemnification or advancement of expenses. Within thirty (30)
days of receipt by the Corporation of such written request for indemnification, the Corporation
shall advance to Indemnitee all expenses (including attorneys fees) actually and reasonably
incurred by or on behalf Indemnitee in connection with the relevant action, suit, proceeding, or
investigation, as set forth in such written request. As soon as practicable (but in any event not
later than sixty (60) days) after final disposition of the relevant action, suit, proceeding, or
investigation, a determination with respect to Indemnitees entitlement to indemnification shall be
made in the specific case: (i) if a Change of Control shall not have occurred, (A) by a majority
vote of the Disinterested Directors, even though less than a quorum of the Board of Directors, (B) by
a committee of Disinterested Directors designated by
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majority vote of the Disinterested Directors, even though less than a quorum of the Board of
Directors, (C) if there are no such Disinterested Directors or, if such Disinterested Directors so
direct, by Independent Counsel in a written opinion to the Board of Directors, a copy of which
shall be delivered to Indemnitee; or (ii) if a Change of Control shall have occurred, by
Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to
Indemnitee.
For the purposes of this Section 6, the following terms shall be defined as follows:
Change of Control means any one of the follow circumstances occurring after the date
of filing of this Certificate of Incorporation with the Secretary of State of the State of
Delaware: (i) there shall have occurred an event required to be reported with respect to the
Corporation in response to Item 6(e) of Schedule 14A of Regulation 14A (or in response to any
similar item or any similar schedule or form) under the Exchange Act, regardless of whether the
Corporation is then subject to such reporting requirement; (ii) any person or group (as such
terms are used in Section 13(d) and 14(d) of the Exchange Act) shall have become, without prior
approval of the Corporations Board of Directors by approval of at least two-thirds of the
Continuing Directors, the beneficial owner (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of outstanding capital stock of the Corporation representing fifteen
percent (15%) or more of the combined voting power of the Corporations then outstanding capital
stock (provided that, for the purpose of this Section 13(a)(ii), the term person shall exclude
(x) the Corporation, (y) any trustee or other fiduciary holding stock of the Corporation under an
employee benefit plan of the Corporation, and (z) any corporation owned, directly or indirectly, by
the stockholders of the Corporation in substantially the same proportions as their ownership of
stock of the Corporation); (iii) there occurs a merger or consolidation of the Corporation with any
other entity, other than a merger or consolidation which would result in the voting capital stock
of the Corporation outstanding immediately prior to such merger or consolidation continuing to
represent (either by remaining outstanding or by being converted into voting securities of the
surviving entity) more than fifty-one percent (51%) of the combined voting power of the voting
securities of the surviving entity outstanding immediately after such merger or consolidation and
with the power to elect at least a majority of the board of directors or other governing body of
such surviving entity; (iv) all or substantially all of the assets of the Corporation are sold or
disposed of in a transaction or series of related transactions; (v) the approval of the
stockholders of the Corporation of a complete liquidation of the Corporation; or (vi) the
Continuing Directors cease for any reason to constitute at least a majority of the members of the
Board of Directors.
Continuing Director means (i) each member of the Board of Directors on the date of
filing of this Certificate of Incorporation with the Secretary of State of the State of Delaware or
(ii) any new Director whose election or nomination for election by the Corporations stockholders
was approved by a vote of at least two-thirds of the Directors then still in office who were
Directors on the date of filing of this Certificate of Incorporation with the Secretary of State of
the State of Delaware or whose election or nomination was approved.
Disinterested Director means a member of the Board of Directors who is not and was
not a party to the action, suit, proceeding, or investigation in respect of which indemnification
is sought by Indemnitee.
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Exchange Act means the Securities Exchange Act of 1934, as amended.
Independent Counsel means a law firm, or a member of a law firm, that is experienced
in matters of corporation law and neither presently is, nor in the past five years has been,
retained to represent: (i) the Corporation or Indemnitee in any matter material to either such
party (other than with respect to matters concerning Indemnitee or other indemnitees under any
indemnification agreement with the Corporation), or (ii) any other party to the action, suit,
proceeding, or investigation giving rise to a claim for indemnification hereunder. Notwithstanding
the foregoing, the term Independent Counsel shall not include any person who, under the
applicable standards of professional conduct then prevailing, would have a conflict of interest in
representing either the Corporation or Indemnitee in an action to determine Indemnitees rights to
indemnification.
7. Remedies. The right to indemnification or advancement of expenses as granted by
this Article VI shall be enforceable by Indemnitee in any court of competent jurisdiction. Unless
otherwise required by law, the burden of proving that Indemnitee is not entitled to indemnification
or advancement of expenses under this Article VI shall be on the Corporation. 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 VI
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.
Indemnitees expenses (including attorneys fees) incurred in connection with successfully
establishing his right to indemnification, in whole or any part, in any such proceeding shall also
be indemnified by the Corporation.
8. Subsequent Amendment. No amendment, termination or repeal of this Article VI or of
the relevant provisions of the DGCL 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.
9. Other Rights. The indemnification and advancement of expenses provided by this
Article VI 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
Indemnitees 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 VI 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 VI. 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 VI.
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10. Partial Indemnification. If an Indemnitee is entitled under any provision of this
Article VI 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 the Indemnitee for the portion of such expenses (including attorneys fees),
judgments, fines, or amounts paid in settlement to which the Indemnitee is entitled.
11. Insurance. The Corporation may purchase and maintain insurance, at its expense,
to protect itself and any director, officer, trustee, general partner, managing member, fiduciary,
board of directors committee member, employee, or agent of the Corporation or another corporation,
limited liability company, partnership, joint venture, trust, employee benefit plan, or other
enterprise (including any employee benefit plan) against any expense, liability, or loss incurred
by him or her in any such capacity, or arising out of his or her status as such, whether or not the
Corporation would have the power to indemnify such person against such expense, liability, or loss
under the DGCL.
12. Merger or Consolidation. If the Corporation is merged into or consolidated with
another corporation and the Corporation is not the surviving corporation, the surviving corporation
shall assume the obligations of the Corporation under this Article VI with respect to any action,
suit, proceeding, or investigation arising out of or relating to any actions, transactions, or
facts occurring prior to the date of such merger or consolidation.
13. Savings Clause. If this Article VI 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 VI 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 DGCL shall have the respective meanings assigned to such terms in such Section 145(h) and
Section 145(i).
15. Subsequent Legislation. If the DGCL is amended after adoption of this Article VI
to expand further the indemnification permitted to Indemnitees, then the Corporation shall
indemnify such persons to the fullest extent permitted by the DGCL, as so amended.
ARTICLE VII - FORUM SELECTION
The Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i)
any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting
a claim of breach of fiduciary duty owed by a Director, officer, or other employee of the
Corporation to the Corporation or to the Corporations stockholders, (iii) any action asserting
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a claim arising pursuant to any provision of the DGCL, this Certificate of Incorporation, or the
Corporations By-Laws, or (iv) any action asserting a claim governed by the internal affairs
doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of capital
stock of the Corporation shall be deemed to have notice of and have consented to the provisions of
this Article VII.
ARTICLE VIII - BOARD OF DIRECTORS; STOCKHOLDERS
This Article VIII 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 a Board of Directors.
2. Number; Election and Qualification. Subject to the rights of holders of any class
or series of Preferred Stock to elect persons to the Board of Directors, the number of Directors
shall be established by the Board of Directors; provided, however that the Board of Directors shall
have at least one member. Election of persons to the Board of Directors need not be by written
ballot.
3. Class of Directors. Subject to the rights of holders of any class or series of
Preferred Stock to elect persons to the Board of Directors, the Board of Directors shall be and is
divided into three classes: Class I, Class II, and Class III. Each class shall consist, as nearly
as possible, of one-third of the total number of members of the Board of Directors. The allocation
of Directors among classes shall be determined by resolution of the Board of Directors.
4. Tenure. Subject to the rights of holders of any class or series of Preferred Stock
to elect persons to the Board of Directors, each Director shall serve for a term ending on the date
of the third annual meeting of stockholders following the meeting of stockholders at which such
Director was elected; provided that each Director initially assigned to Class I shall serve for a
term expiring at the Corporations first annual meeting of stockholders held after the
effectiveness of this Amended and Restated Certificate of Incorporation, each Director initially
assigned to Class II shall serve for a term expiring at the Corporations second annual meeting of
stockholders held after the effectiveness of this Amended and Restated Certificate of
Incorporation, and each Director initially assigned to Class III shall serve for a term expiring at
the Corporations third annual meeting of stockholders held after the effectiveness of this Amended
and Restated Certificate of Incorporation; provided further, that the term of each Director shall
continue until the election and qualification of such Directors successor and be subject to such
Directors earlier death, resignation, or removal.
5. Removal. Subject to the rights of holders of any class or series of Preferred
Stock to elect persons to the Board of Directors, members of the Board of Directors may be removed
only for cause and only by the affirmative vote of the holders of not less than seventy-five
percent (75%) of the total voting power of all outstanding capital stock of the Corporation then
entitled to vote generally in the election of persons to the Board of Directors, voting together as
a single class.
6. Vacancies. Subject to the rights of holders of any class or series of Preferred
Stock to elect persons to the Board of Directors, any vacancy on the Board of Directors, however
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occurring, including a vacancy resulting from an enlargement of the Board, may be filled by vote of
a majority of the Directors then in office, although less than a quorum, or by a sole remaining
Director. A person elected to fill a vacancy on the Board of Directors shall be elected for the
unexpired term of such persons predecessor in office, and a person appointed to fill a position
resulting from an increase in the size of the Board of Directors shall hold office until next
annual meeting of stockholders where the class of Directors to which such person is assigned by the
Board of Directors is to be elected by stockholders and until the election and qualification of
such persons successor and be subject to such persons earlier death, resignation, or removal.
7. By-Laws. In furtherance and not in limitation of the powers conferred upon it by
the DGCL, and subject to the rights of holders of any class or series of Preferred Stock, the
By-Laws of the Corporation may be altered, amended, or repealed or new by-laws may be adopted only
by (i) the affirmative vote of a majority of the Directors present at any regular or special
meeting of the Board of Directors where a quorum is present or (ii) by the affirmative vote of the
holders of not less than seventy-five percent (75%) of the total voting power of all outstanding
shares of capital stock of the Corporation entitled to vote generally in the election of Directors,
voting together as a single class.
8. No Stockholder Action by Written Consent. Subject to the rights of holders of any
class or series of Preferred Stock, any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly called annual or special meeting of
stockholders of the Corporation and may not be effected by any consent in writing by such
stockholders.
9. Stockholder Nominations and Introduction of Business. 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. Special Meetings of Stockholders. Special meetings of stockholders may be called
at any time only by the Board of Directors, Chairperson of the Board, or the Chief Executive
Officer or the President of the Corporation, and may not be called by any other person or persons.
The Board of Directors may postpone or reschedule any previously scheduled special meeting of
stockholders. 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.
ARTICLE IX - AMENDMENTS
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 permitted by the DGCL and all
rights and powers conferred upon stockholders, Directors, and officers herein are granted subject
to this reservation.
Notwithstanding anything contained in this Certificate of Incorporation or in the
Corporations By-Laws to the contrary, and notwithstanding the fact that a lesser percentage may be
specified by the DGCL, the provisions set forth in Articles IV(2), V, VI, VII, VIII, and this
Article IX may not be repealed or amended in any respect, and no other provisions may be adopted,
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amended, or repealed which would have the effect of modifying or permitting the circumvention of
the provisions set forth in Articles IV(2), V, VI, VII, VIII, and this Article IX, unless such
action is approved by the affirmative vote of the holders of not less than seventy-five percent
(75%) of the total voting power of all outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of Directors, voting together as a single class.
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IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated Certificate of
Incorporation to be signed by its duly authorized officers on this ____ day of _______________,
2011.
CARBONITE, INC. |
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By: | ||||
Name: | David Friend | |||
Its: Chief Executive Officer and President | ||||
By: | ||||
Name: | Danielle Sheer | |||
Its: General Counsel and Secretary | ||||