Attached files
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S-1/A - FORM S-1/A - BROADSOFT, INC. | w77389a3sv1za.htm |
EX-3.3 - EX-3.3 - BROADSOFT, INC. | w77389a3exv3w3.htm |
EX-1.1 - EX-1.1 - BROADSOFT, INC. | w77389a3exv1w1.htm |
EX-3.4 - EX-3.4 - BROADSOFT, INC. | w77389a3exv3w4.htm |
EX-3.6 - EX-3.6 - BROADSOFT, INC. | w77389a3exv3w6.htm |
EX-4.1 - EX-4.1 - BROADSOFT, INC. | w77389a3exv4w1.htm |
EX-10.7 - EX-10.6 - BROADSOFT, INC. | w77389a3exv10w7.htm |
EX-23.1 - EX-23.1 - BROADSOFT, INC. | w77389a3exv23w1.htm |
EX-10.6 - EX-10.6 - BROADSOFT, INC. | w77389a3exv10w6.htm |
EX-10.5 - EX-10.5 - BROADSOFT, INC. | w77389a3exv10w5.htm |
EX-10.20 - EX-10.20 - BROADSOFT, INC. | w77389a3exv10w20.htm |
Exhibit 3.5
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
BROADSOFT, INC.
CERTIFICATE OF INCORPORATION
OF
BROADSOFT, INC.
Pursuant to Section 242 and Section 245 of the General Corporation Law of the State of
Delaware, BroadSoft, Inc. has adopted this Amended and Restated Certificate of Incorporation
restating, integrating and further amending its Certificate of Incorporation (originally filed
November 17, 1998, this corporation being known at that time as iKNOW, INC.), which Amended and
Restated Certificate of Incorporation has been duly proposed by the directors and adopted by the
stockholders of this corporation (by written consent pursuant to Section 228 of said General
Corporation Law) in accordance with the provisions of said Section 242 and Section 245.
I.
The name of this corporation is BroadSoft, Inc.
II.
The address of the registered office of the corporation in the State of Delaware is 2711
Centerville Road, Suite 400, City of Wilmington, County of New Castle, and the name of the
registered agent of the corporation in the State of Delaware at such address is the Corporation
Service Company.
III.
The purpose of this corporation is to engage in any lawful act or activity for which a
corporation may be organized under the Delaware General Corporation Law (DGCL).
IV.
A. This corporation is authorized to issue two classes of stock to be designated,
respectively, Common Stock and Preferred Stock. The total number of shares which the
corporation is authorized to issue is one hundred five million (105,000,000) shares. One hundred
million (100,000,000) shares shall be Common Stock, each having a par value of one cent ($0.01).
Five million (5,000,000) shares shall be Preferred Stock, each having a par value of one cent
($0.01).
B. The Preferred Stock may be issued from time to time in one or more series. The Board of
Directors is hereby expressly authorized to provide for the issue of all or any of the shares of
the Preferred Stock in one or more series, and to fix the number of shares and to determine or
alter for each such series, such voting powers, if any, and such designation, preferences, and
relative, participating, optional, or other rights and such qualifications, limitations, or
restrictions thereof, as shall be stated and expressed in the resolution or resolutions adopted by
the Board of Directors providing for the issuance of such shares and as may be permitted by the
DGCL. The Board of Directors is also expressly authorized to increase or
1.
decrease the number of shares of any series subsequent to the issuance of shares of that
series, but not below the number of shares of such series then outstanding. In case the number of
shares of any series shall be decreased in accordance with the foregoing sentence, the shares
constituting such decrease shall resume the status that they had prior to the adoption of the
resolution originally fixing the number of shares of such series.
C. Each outstanding share of Common Stock shall entitle the holder thereof to one vote on each
matter properly submitted to the stockholders of the corporation for their vote; 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 (including any certificate of designation filed
with respect to 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 by law or pursuant to this Certificate of Incorporation (including any certificate of
designation filed with respect to any series of Preferred Stock).
V.
For the management of the business and for the conduct of the affairs of the corporation, and
in further definition, limitation and regulation of the powers of the corporation, of its directors
and of its stockholders or any class thereof, as the case may be, it is further provided that:
A.
1. 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 constituting the Board of Directors
shall be fixed from time to time, exclusively by resolutions adopted by a majority of the
authorized number of directors constituting the Board of Directors.
2. Board of Directors
Subject to the rights of the holders of any series of Preferred Stock to elect additional
directors under specified circumstances, the directors shall be divided into three classes
designated as Class I, Class II and Class III, respectively. The Board of Directors is authorized
to assign members of the Board of Directors already in office to such classes at the time the
classification becomes effective. At the first annual meeting of stockholders following the
initial classification of the Board of Directors, the term of office of the Class I directors shall
expire and Class I directors shall be elected for a full term of three years. At the second annual
meeting of stockholders following such initial classification, the term of office of the Class II
directors shall expire and Class II directors shall be elected for a full term of three years. At
the third annual meeting of stockholders following such initial classification, the term of office
of the Class III directors shall expire and Class III directors shall be elected for a full term of
three years. At each succeeding annual meeting of stockholders, directors shall be elected for a
full term of three years to succeed the directors of the class whose terms expire at such annual
meeting.
Notwithstanding the foregoing provisions of this section, each director shall hold office
until such directors successor is duly elected and qualified or until such directors earlier
death,
2.
resignation or removal. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
3. Removal of Directors
a. Subject to the rights of any series of Preferred Stock to elect additional directors under
specified circumstances, neither the Board of Directors nor any individual director may be removed
without cause.
b. Subject to any limitation imposed by law, any individual director or directors may be
removed with cause by the affirmative vote of the holders of at least sixty-six and two-thirds
percent (66-2/3%) of the voting power of all then-outstanding shares of capital stock of
the corporation entitled to vote generally in the election of directors.
4. Vacancies
a. Subject to the rights of the holders of any series of Preferred Stock, any vacancies on the
Board of Directors resulting from death, resignation, disqualification, removal or other causes and
any newly created directorships resulting from any increase in the number of directors, shall,
except as otherwise provided by law, be filled only by the affirmative vote of a majority of the
directors then in office, even though less than a quorum of the Board of Directors, and not by the
stockholders, unless the Board of Directors determines by resolution that any such vacancies or
newly created directorships shall be filled by the stockholders. Any director elected in
accordance with the preceding sentence shall hold office for the remainder of the full term of the
director for which the vacancy was created or occurred and until such directors successor shall
have been elected and qualified.
B.
1. Bylaw Amendments. The Board of Directors is expressly empowered to adopt, amend
or repeal the Bylaws of the corporation. Any adoption, amendment or repeal of the Bylaws
of the corporation by the Board of Directors shall require the approval of a majority of the
authorized number of directors. The stockholders shall also have power to adopt, amend or
repeal the Bylaws of the corporation; provided, however, that, in addition to any vote of the
holders of any class or series of stock of the corporation required by law or by this Certificate
of Incorporation, such action by stockholders shall require the affirmative vote of the holders of
at least sixty-six and two-thirds percent (66-2/3%) of the voting power of all of the
then-outstanding shares of the capital stock of the corporation entitled to vote generally in the
election of directors, voting together as a single class.
2. The directors of the corporation need not be elected by written ballot unless the Bylaws so
provide.
3. No action shall be taken by the stockholders of the corporation except at an annual or
special meeting of stockholders called in accordance with the Bylaws, and no action shall be taken
by the stockholders by written consent or electronic transmission.
3.
4. Advance notice of stockholder nominations for the election of directors and of business to
be brought by stockholders before any meeting of the stockholders of the corporation shall be given
in the manner provided in the Bylaws of the corporation.
VI.
A. The liability of the directors for monetary damages shall be eliminated to the fullest
extent under applicable law. If the DGCL is amended 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 to the fullest extent permitted by the DGCL, as so amended.
B. Any repeal or modification of this Article VI shall be prospective and shall not affect the
rights under this Article VI in effect at the time of the alleged occurrence of any act or omission
to act giving rise to liability or indemnification.
VII.
A. 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, except as provided in paragraph B. of this Article VII, and all rights conferred upon the
stockholders herein are granted subject to this reservation.
B. Notwithstanding any other provisions of this Certificate of Incorporation or any provision
of law that might otherwise permit a lesser vote or no vote, but in addition to any affirmative
vote of the holders of any particular class or series of the corporation required by law or by this
Certificate of Incorporation or any certificate of designation filed with respect to a series of
Preferred Stock, the affirmative vote of the holders of at least sixty-six and two-thirds percent
(66-2/3%) of the voting power of all of the then-outstanding shares of capital stock of the
corporation entitled to vote generally in the election of directors, voting together as a single
class, shall be required to alter, amend or repeal Articles V, VI and VII.
4.
In Witness Whereof, BroadSoft, Inc. has caused this certificate to be signed by Mary
Ellen Seravalli, its Vice President, General Counsel and Secretary, this day of
, 2010.
Mary Ellen Seravalli Vice President, General Counsel and Secretary |
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