Certificate of Incorporation - Rackspace.com Inc.
CERTIFICATE OF INCORPORATION
OF
RACKSPACE.COM, INC.
ARTICLE I
The name of this Corporation shall be "Rackspace.com, Inc."
(hereinafter referred to as the "CORPORATION").
ARTICLE II
The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, City of Wilmington, County of New
Castle, State of Delaware. The name of the registered agent at that address is
The Corporation Trust Company.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the Delaware General
Corporation Law.
ARTICLE IV
The Corporation's capital stock shall be comprised as follows:
A. AUTHORIZED SHARES. The aggregate number of shares that the
Corporation shall have the authority to issue is Two Hundred Million
(200,000,000) shares. Of such authorized shares, One Hundred Seventy Million
(170,000,000) shares shall be Common Stock, par value $0.001 per share, and
Thirty Million (30,000,000) shares shall be Preferred Stock, par value $0.001
per share.
B. COMMON STOCK. Each share of Common Stock shall have one vote on each
matter submitted to a vote of the stockholders of the Corporation. Subject to
the provisions of applicable law and the rights of the holders of the
outstanding shares of Preferred Stock, if any, the holders of shares of Common
Stock shall be entitled to receive, when and as declared by the Board of
Directors of the Corporation, out of the assets of the Corporation legally
available therefor, dividends or other distributions, whether payable in cash,
property or securities of the Corporation. The holders of shares of Common Stock
shall be entitled to receive, in proportion to the number of shares of Common
Stock held, the net assets of the Corporation upon
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dissolution after any preferential amounts required to be paid or distributed to
holders of outstanding shares of Preferred Stock, if any, are so paid or
distributed.
C. PREFERRED STOCK.
1. SERIES. The Preferred Stock may be issued from time to time
by the Board of Directors as shares of one or more series. The description of
shares of each additional series of Preferred Stock, including any designations,
preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends, qualifications, and terms and conditions of
redemption shall be as set forth in resolutions adopted by the Board of
Directors.
2. RIGHTS AND PREFERENCES. The Board of Directors is expressly
authorized, at any time, by adopting resolutions providing for the issuance of,
or providing for a change in the number of, shares of any particular series of
Preferred Stock and, if and to the extent from time to time required by law, by
filing certificates of amendment or designation which are effective without
stockholder action, to increase or decrease the number of shares included in
each series of Preferred Stock, but not below the number of shares then issued,
and to set in any one or more respects the designations, preferences, conversion
or other rights, voting powers, restrictions, limitations as to dividends,
qualifications, or terms and conditions of redemption relating to the shares of
each such series. The authority of the Board of Directors with respect to each
series of Preferred Stock shall include, but not be limited to, setting or
changing the following:
(a) the dividend rate, if any, on shares of such
series, the times of payment and the date from which dividends shall be
accumulated, if dividends are to be cumulative;
(b) whether the shares of such series shall be
redeemable and, if so, the redemption price and the terms and conditions of such
redemption;
(c) the obligation, if any, of the Corporation to
redeem shares of such series pursuant to a sinking fund;
(d) whether shares of such series shall be
convertible into, or exchangeable for, shares of stock of any other class of
classes and, if so, the terms and conditions of such conversion or exchange,
including the price or prices or the rate or rates of conversion or exchange and
the terms of adjustment, if any;
(e) whether the shares of such series shall have
voting rights, in addition to the voting rights provided by law, and, if so, the
extent of such voting rights;
(f) the rights of the shares of such series in the
event of voluntary or involuntary liquidation, dissolution or winding-up of the
Corporation; and
(g) any other relative rights, powers, preferences,
qualifications, limitations or restrictions thereof relating to such series.
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ARTICLE V
The name and address of the incorporator of the Corporation is:
Quincy J. Lee
Rackspace, Ltd.
112 East Pecan Street, Suite 600
San Antonio, Texas 78205
ARTICLE VI
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 (a) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (b) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (c) under Section 174 of the Delaware General
Corporation Law or (d) 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 VII
The Corporation may indemnify to the fullest extent permitted
by law, any person made or threatened to be made a party to an action or
proceeding, whether criminal, civil, administrative or investigative, by reason
of the fact that such person is or was a director, officer or employee of the
Corporation or any predecessor of the Corporation or serves or served at any
other corporation or enterprise as a director, officer or employee at the
request of the Corporation or any predecessor to the Corporation.
ARTICLE VIII
The management of the business and the conduct of the affairs
of the Corporation shall be vested in its Board of Directors. The number of
directors which shall constitute the whole Board of Directors shall be fixed by,
or in the manner provided in, the Bylaws of the Corporation.
ARTICLE IX
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
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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.
ARTICLE X
Election of directors at an annual or special meeting of
stockholders need not be by written ballot unless the Bylaws of the Corporation
shall so provide.
ARTICLE XI
A. At each annual meeting of stockholders, directors of the
Corporation shall be elected to hold office until the expiration of the term for
which they are elected, and until their successors have been duly elected and
qualified. At the first annual meeting of stockholders following the closing of
the initial public offering (the "FIRST PUBLIC COMPANY ANNUAL MEETING") of the
Corporation's capital stock pursuant to an effective registration statement
filed under the Securities Act of 1933, as amended (the "INITIAL PUBLIC
OFFERING"), the directors of the Corporation shall be divided into three classes
as nearly equal in size as is practicable, hereby designated as Class I, Class
II and Class III. The term of office of the initial Class I directors shall
expire at the next succeeding annual meeting of stockholders, the term of office
of the initial Class II directors shall expire at the second succeeding annual
meeting of stockholders and the term of office of the initial Class III
directors shall expire at the third succeeding annual meeting of stockholders.
For the purposes hereof, the initial Class I, Class II and Class III directors
shall be those directors designated and elected at the First Public Company
Annual Meeting. At each annual meeting after the First Public Company Annual
Meeting, directors to replace those of a Class whose terms expire at such annual
meeting shall be elected to hold office until the third succeeding annual
meeting and until their respective successors shall have been duly elected and
qualified. If the number of directors is hereafter changed, any newly created
directorships or decrease in directorships shall be so apportioned among the
classes as to make all classes as nearly equal in number as is practicable.
B. Vacancies occurring on the Board of Directors for any
reason may be filled by vote of a majority of the remaining members of the Board
of Directors, although less than a quorum, at a meeting of the Board of
Directors. A person so elected by the Board of Directors to fill a vacancy shall
hold office until the next succeeding annual meeting of stockholders of the
Corporation and until his or her successor shall have been duly elected and
qualified.
C. After the Initial Public Offering, prior to the natural
expiration of his term of office and subject to applicable laws, no
duly-appointed director may be removed unless cause is shown and then only by
affirmative vote of two thirds (2/3rds) of the shares entitled to vote thereon,
voting together as a single class.
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ARTICLE XII
In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to make, alter, amend
or repeal the Bylaws of the Corporation.
ARTICLE XIII
Effective upon the closing of the Initial Public Offering,
stockholders of the Corporation may not take action by written consent in lieu
of a meeting but must take any actions at a duly called annual or special
meeting. A special meeting of stockholders may be called only by the Chairman of
the Board of Directors, the Corporation's Chief Executive Officer or by a
majority of the Board of Directors.
ARTICLE XIV
Notwithstanding any other provisions 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 affirmative vote of the holders of the
capital stock required by law or this Certificate of Incorporation, the
affirmative vote of the holders of at least two thirds (2/3rds) of the combined
voting power of all of the then-outstanding shares of the Corporation entitled
to vote shall be required to alter, amend or repeal ARTICLES VI, VII, XI or XIII
or this ARTICLE XIV, or any provisions thereof.
ARTICLE XIV
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.
* * * * * *
THE UNDERSIGNED, BEING THE SOLE INCORPORATOR NAMED HEREIN, FOR THE
PURPOSE OF FORMING THE CORPORATION TO DO BUSINESS BOTH WITHIN AND WITHOUT THE
STATE OF DELAWARE AND PURSUANT TO THE GENERAL CORPORATION LAW OF THE STATE OF
DELAWARE, DOES MAKE AND FILE THIS CERTIFICATE OF INCORPORATION OF RACKSPACE.COM,
INC. HEREBY DECLARING AND CERTIFYING THAT THE FACTS HEREIN STATED ARE TRUE, AND
ACCORDINGLY HAS HEREUNTO SET HIS HAND THIS 7TH DAY OF MARCH, 2000.
/s/ Quincy J. Lee
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Quincy J. Lee
Sole Incorporator