Attached files
file | filename |
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S-1/A - FORM S-1/A - FUSION-IO, INC. | f58285a3sv1za.htm |
EX-3.2 - EX-3.2 - FUSION-IO, INC. | f58285a3exv3w2.htm |
EX-4.1 - EX-4.1 - FUSION-IO, INC. | f58285a3exv4w1.htm |
EX-1.1 - EX-1.1 - FUSION-IO, INC. | f58285a3exv1w1.htm |
EX-5.1 - EX-5.1 - FUSION-IO, INC. | f58285a3exv5w1.htm |
EX-10.6 - EX-10.6 - FUSION-IO, INC. | f58285a3exv10w6.htm |
EX-23.1 - EXHIBIT 23.1 - FUSION-IO, INC. | f58285a3exv23w1.htm |
EX-10.5 - EX-10.5 - FUSION-IO, INC. | f58285a3exv10w5.htm |
EX-10.19 - EX-10.19 - FUSION-IO, INC. | f58285a3exv10w19.htm |
EX-10.1A - EX-10.1A - FUSION-IO, INC. | f58285a3exv10w1a.htm |
EX-10.1B - EX-10.1B - FUSION-IO, INC. | f58285a3exv10w1b.htm |
Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
FUSION-IO, INC.
a Delaware Corporation
Fusion-io, Inc., a Corporation organized and existing under the laws of the State of Delaware
(the Corporation), hereby certifies as follows:
A. The Corporation was originally formed on December 23, 2005, as a Nevada Corporation under
the name Canvas Technologies, Inc. and converted to a Delaware Corporation on June 22, 2010,
under the name Fusion-io, Inc.
B. This Amended and Restated Certificate of Incorporation was duly adopted in accordance with
Sections 242 and 245 of the General Corporation Law of the State of Delaware (the DGCL), and
restates, integrates and further amends the provisions of the Corporations Certificate of
Incorporation, and has been duly approved by the written consent of the stockholders of the
Corporation in accordance with Section 228 of the DGCL.
C. The text of the Certificate of Incorporation of this Corporation is hereby amended and
restated to read in its entirety as follows:
ARTICLE I
The name of the Corporation is Fusion-io, Inc.
ARTICLE II
The address of the Corporations registered office in the State of Delaware is 2711
Centerville Road, Suite 400, City of Wilmington, County of New Castle, Delaware 19808. The name of
its registered agent at such address is Corporation Service Company.
ARTICLE III
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 Corporation s may be organized under the DGCL.
ARTICLE IV
4.1 Authorized Capital Stock. The total number of shares of all classes of capital
stock that the Corporation is authorized to issue is 510,000,000 shares, consisting of 500,000,000
shares of Common Stock, par value $0.0002 per share (the Common Stock), and 10,000,000
shares of Preferred Stock, par value $0.0002 per share (the Preferred Stock).
4.2 Increase or Decrease in Authorized Capital Stock. The number of authorized shares
of Preferred Stock or 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 in voting
power of the stock of the Corporation entitled to vote generally in the election of directors,
irrespective of the provisions of Section 242(b)(2) of the DGCL (or any successor provision
thereto), voting together as a single class, without a separate vote of the holders of the class or
classes the number of authorized shares of which are being increased or decreased, unless a vote by
any holders of one or more series of Preferred Stock is required by the express terms of any series
of Preferred Stock as provided for or fixed pursuant to the provisions of Section 4.4 of this
Article IV.
4.3 Common Stock.
(a) The holders of shares of Common Stock shall be entitled to one vote for each such share on
each matter properly submitted to the stockholders on which the holders of shares of Common Stock
are entitled to vote. Except as otherwise required by law or this certificate of incorporation
(this Certificate of Incorporation which term, 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 designations of any series of Preferred Stock), and subject to the rights of the
holders of Preferred Stock, at any annual or special meeting of the stockholders the holders of
shares of Common Stock shall have the right to vote for the election of directors and on all other
matters properly submitted to a vote of the stockholders; 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 that relates solely to the terms, number of shares, powers,
designations, preferences, or relative participating, optional or other special rights (including,
without limitation, voting rights), or to qualifications, limitations or restrictions thereon, of
one or more outstanding series of Preferred Stock if the holders of such affected series are
entitled, either separately or together with the holders of one more other such series, to vote
thereon pursuant to this Certificate of Incorporation (including, without limitation, by any
certificate of designations relating to any series of Preferred Stock) or pursuant to the DGCL.
(b) Subject to the rights of the holders of Preferred Stock, the holders of shares of Common
Stock shall be entitled to receive such dividends and other distributions (payable in cash,
property or capital stock of the Corporation ) when, as and if declared thereon by the Board of
Directors from time to time out of any assets or funds of the Corporation legally available
therefor and shall share equally on a per share basis in such dividends and distributions.
(c) In the event of any voluntary or involuntary liquidation, dissolution or winding-up of the
Corporation , after payment or provision for payment of the debts and other liabilities of the
Corporation , and subject to the rights of the holders of Preferred Stock in respect thereof, the
holders of shares of Common Stock shall be entitled to receive all the remaining assets of the
Corporation available for distribution to its stockholders, ratably in proportion to the number of
shares of Common Stock held by them.
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4.4 Preferred Stock.
(a) The Preferred Stock may be issued from time to time in one or more series pursuant to a
resolution or resolutions providing for such issue duly adopted by the Board of Directors
(authority to do so being hereby expressly vested in the Board of Directors). The Board of
Directors is further authorized, subject to limitations prescribed by law, to fix by resolution or
resolutions and to set forth in a certification of designations filed pursuant to the DGCL the
powers, designations, preferences and relative, participation, optional or other rights, if any,
and the qualifications, limitations or restrictions thereof, if any, of any wholly unissued series
of Preferred Stock, including without limitation authority to fix by resolution or resolutions that
dividend rights, dividend rate, conversion rights, voting rights, rights and terms of redemption
(including sinking fund provisions), redemption price or prices, and liquidation preferences of any
such series, and the number of shares constituting any such series and the designation thereof, or
any of the foregoing.
(b) The Board of Directors is further authorized to increase (but not above the total number
of authorized shares of the class) or decrease (but not below the number of shares of any such
series then outstanding) the number of shares of any series, the number of which was fixed by it,
subsequent to the issuance of shares of such series then outstanding, subject to the powers,
preferences and rights, and the qualifications, limitations and restrictions thereof stated in the
Certificate of Incorporation or the resolution of the Board of Directors originally fixing the
number of shares of such series. If the number of shares of any series is so decreased, then the
shares constituting such decrease shall resume the status which they had prior to the adoption of
the resolution originally fixing the number of shares of such series.
ARTICLE V
5.1 General Powers. The business and affairs of the Corporation shall be managed by
or under the direction of the Board of Directors.
5.2 Number of Directors; Election; Term.
(a) Subject to the rights of holders of any series of Preferred Stock with respect to the
election of directors, the number of directors that constitutes the entire Board of Directors of
the Corporation shall be fixed solely by resolution of the Board of Directors.
(b) Subject to the rights of holders of any series of Preferred Stock with respect to the
election of directors, effective upon the closing date (the Effective Date) of the initial sale
of shares of common stock in the Corporations initial public offering pursuant to an effective
registration statement filed under the Securities Act of 1933, as amended, the directors of the
Corporation shall be divided into three classes as nearly equal in size as is practicable, hereby
designated Class I, Class II and Class III. The initial assignment of members of the Board of
Directors to each such class shall be made by the Board of Directors. The term of office of the
initial Class I directors shall expire at the first regularly-scheduled annual meeting of the
stockholders following the Effective Date, the term of office of the initial Class II directors
shall expire at the second annual meeting of the stockholders following the Effective Date and the
term of office of the initial Class III directors shall expire at the third annual meeting of the
stockholders following the
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Effective Date. At each annual meeting of stockholders, commencing with the first
regularly-scheduled annual meeting of stockholders following the Effective Date, each of the
successors elected to replace the directors of a Class whose term shall have expired at such annual
meeting shall be elected to hold office until the third annual meeting next succeeding his or her
election and until his or her respective successor shall have been duly elected and qualified.
Subject to the rights of holders of any series of Preferred Stock with respect to the election of
directors, if the number of directors that constitutes the Board of Directors is changed, any newly
created directorships or decrease in directorships shall be so apportioned by the Board of
Directors among the classes as to make all classes as nearly equal in number as is practicable,
provided that no decrease in the number of directors constituting the Board of Directors shall
shorten the term of any incumbent director.
(c) Notwithstanding the foregoing provisions of this Section 5.2, and subject to the rights of
holders of any series of Preferred Stock with respect to the election of directors, each director
shall serve until his or her successor is duly elected and qualified or until his or her earlier
death, resignation, or removal.
(d) Elections of directors need not be by written ballot unless the Bylaws of the Corporation
shall so provide.
5.3 Removal. Subject to the rights of holders of any series of Preferred Stock with
respect to the election of directors, a director may be removed from office by the stockholders of
the Corporation only for cause.
5.4 Vacancies and Newly Created Directorships. Subject to the rights of holders of any
series of Preferred Stock with respect to the election of directors, and except as otherwise
provided in the DGCL, vacancies occurring on the Board of Directors for any reason and newly
created directorships resulting from an increase in the authorized number of directors may be
filled only by vote of a majority of the remaining members of the Board of Directors, although less
than a quorum, or by a sole remaining director, at any meeting of the Board of Directors. A person
so elected by the Board of Directors to fill a vacancy or newly created directorship shall hold
office until the next election of the class for which such director shall have been assigned by the
Board of Directors and until his or her successor shall be duly elected and qualified.
ARTICLE VI
In furtherance and not in limitation of the powers conferred by statute, the Board of
Directors of the Corporation is expressly authorized to adopt, amend or repeal the Bylaws of the
Corporation.
ARTICLE VII
7.1 No Action by Written Consent of Stockholders. Except as otherwise expressly
provided by the terms of any series of Preferred Stock permitting the holders of such series of
Preferred Stock to act by written consent, any action required or permitted to be taken by
stockholders of the Corporation must be effected at a duly called annual or special meeting of the
stockholders and may not be effected by written consent in lieu of a meeting.
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7.2 Special Meetings. Except as otherwise expressly provided by the terms of any
series of Preferred Stock permitting the holders of such series of Preferred Stock to call a
special meeting of the holders of such series, special meetings of stockholders of the Corporation
may be called only by the Board of Directors, the chairperson of the Board of Directors, the chief
executive officer or the president (in the absence of a chief executive officer), and the ability
of the stockholders to call a special meeting is hereby specifically denied. The Board of
Directors may cancel, postpone or reschedule any previously scheduled special meeting at any time,
before or after the notice for such meeting has been sent to the stockholders.
7.3 Advance Notice. 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.
ARTICLE VIII
8.1 Limitation of Personal Liability. To the fullest extent permitted by the DGCL, as
it presently exists or may hereafter be amended from time to time, 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. 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 or limited to the fullest extent permitted by the
DGCL, as so amended.
8.2 Indemnification.
The Corporation shall indemnify, to the fullest extent permitted by applicable law, any
director or officer of the Corporation who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (a Proceeding) by reason of the fact that he or she is or was a
director, officer, employee or agent of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another Corporation, partnership, joint
venture, trust or other enterprise, including service with respect to employee benefit plans,
against expenses (including attorneys fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with any such Proceeding. The
Corporation shall be required to indemnify a person in connection with a Proceeding initiated by
such person only if the Proceeding was authorized by the Board.
The Corporation shall have the power to indemnify, to the extent permitted by the DGCL, as it
presently exists or may hereafter be amended from time to time, any employee or agent of the
Corporation who was or is a party or is threatened to be made a party to any Proceeding by reason
of the fact that he or she is or was a director, officer, employee or agent of the Corporation or
is or was serving at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, against expenses (including attorneys fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person in connection with
any such Proceeding.
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Any repeal or amendment of this Article VIII by the stockholders of the Corporation or by
changes in law, or the adoption of any other provision of this Certificate of Incorporation
inconsistent with this Article VIII will, unless otherwise required by law, be prospective only
(except to the extent such amendment or change in law permits the Corporation to further limit or
eliminate the liability of directors) and shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or amendment or adoption of such
inconsistent provision with respect to acts or omissions occurring prior to such repeal or
amendment or adoption of such inconsistent provision.
ARTICLE IX
The Corporation reserves the right to amend, alter, change or repeal any provision contained
in this Certificate of Incorporation (including any rights, preferences or other designations of
Preferred Stock), in the manner now or hereafter prescribed by this Certificate of Incorporation
and the DGCL; and all rights, preferences and privileges herein conferred upon stockholders by and
pursuant to this Certificate of Incorporation in its present form or as hereafter amended are
granted subject to the right reserved in this Article IX. Notwithstanding any other provision of
this Certificate of Incorporation, and in addition to any other vote that may be required by law or
the terms of any series of Preferred Stock, the affirmative vote of the holders of at least 662/3% of
the voting power of all then outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors, voting together as a single class, shall be required
to amend, alter or repeal, or adopt any provision as part of this Certificate of Incorporation
inconsistent with the purpose and intent of, Article V, Article VI, Article VII or this Article IX
(including, without limitation, any such Article as renumbered as a result of any amendment,
alteration, change, repeal or adoption of any other Article).
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IN WITNESS WHEREOF, Fusion-io, Inc. has caused this Amended and Restated Certificate of
Incorporation to be signed by a duly authorized officer of the Corporation on this ___ day of
________, 2011.
By: | ||||
David Flynn | ||||
Chief Executive Officer | ||||
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