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EXHIBIT 4.1  


 
 

CERTIFICATE OF INCORPORATION
  OF
  DOT HILL SYSTEMS CORP. (DELAWARE)    
  



    The undersigned, a natural person (the "Sole Incorporator"), for the purpose of organizing a corporation to
conduct the business and promote the purposes hereinafter stated, under the provisions and subject to the requirements of the laws of the State of Delaware hereby certifies that: 


I.  


    The name of this corporation is Dot Hill Systems Corp. (Delaware). 


II.  



    The address of the registered office of the corporation in the State of Delaware is 30 Old Rudnick Lane, Suite 100, City of Dover, County of Kent, and the name
of the registered agent of the corporation in the State of Delaware at such address is Lexis Document Services, Inc. 


III.  


    The purpose of this corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of the
State of Delaware. 


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 that the corporation is authorized to
issue is one hundred ten million (110,000,000) shares. One hundred million (100,000,000) shares shall be Common Stock, each having a par value of one-tenth of one cent ($.001). Ten million
(10,000,000) shares shall be Preferred Stock, each having a par value of one-tenth of one cent ($.001). 


    B.  The Preferred Stock may be issued from time to time in one or more series. The Board of Directors is hereby
authorized, by filing a certificate (a "Preferred Stock Designation") pursuant to the Delaware General Corporation Law
("DGCL"), to fix or alter from time to time the designation, powers, preferences and rights of the shares of each such series and the
qualifications, limitations or restrictions of any wholly unissued series of Preferred Stock, and to establish from time to time the number of shares constituting any such series or any of them; and
to increase or 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. 


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 that shall constitute the whole Board 



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of Directors shall be fixed exclusively by one or more resolutions adopted by the Board of Directors. 



    2.  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. Directors shall be assigned to each class in
accordance with a resolution or resolutions adopted by the Board of Directors. At the first annual meeting of stockholders following the adoption and filing of this Certificate of Incorporation, 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 the second annual meeting of stockholders following the
adoption and filing of this Certificate of Incorporation, 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 third annual meeting of stockholders following the adoption and filing of this Certificate of Incorporation, 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 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 serve until his successor is duly elected and qualified or until his death, resignation or removal. No
decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director. 



    3.  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, unless the Board of
Directors determines by resolution that any such vacancies or newly created directorships shall be filled by the stockholders, 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. 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 director's successor shall have been elected and qualified. 


    If
at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Delaware Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent (10%) of the total number of the shares at
the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen
by the directors then in offices as aforesaid, which election shall be governed by Section 211 of the DGCL. 


 B.  


    1.  Subject to paragraph (h) of Section 43 of the Bylaws, the Bylaws may be altered or amended or new
Bylaws adopted by the affirmative vote of at least a majority of the voting power of all of the then-outstanding shares of the voting stock of the corporation entitled to vote
("Voting Stock"). The Board of Directors shall also have the power to adopt, amend, or repeal Bylaws. 



    2.  The directors of the corporation need not be elected by written ballot unless the Bylaws so provide. 



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    3.  Following the effective date of the merger of this corporation with Dot Hill Systems Corp., a New York corporation,
no action shall be taken by the stockholders of this corporation except at an annual or special meeting of stockholders called in accordance with the Bylaws. 



    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 and officers for monetary damages shall be eliminated to the fullest extent under
applicable law. 


    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 which 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 Voting Stock required by law, this Certificate of
Incorporation or any Preferred Stock Designation, the affirmative vote of the holders of at least a majority of the voting power of all of the then-outstanding shares of Voting Stock,
voting together as a single class, shall be required to alter, amend or repeal this Certificate of Incorporation. 


VIII.  


    The name and the mailing address of the Sole Incorporator is as follows:



	Name:

Jason R. Conger	 	Mailing Address:

Cooley Godward LLP

4365 Executive Drive, Suite 1100

San Diego, CA 92121






    In Witness Whereof, this Certificate has been subscribed this 24th day of May, 2001 by the undersigned who affirms that
the statements made herein are true and correct. 



	

 	
 	

/s/ JASON R. CONGER   
 Jason R. Conger
 Sole Incorporator




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CERTIFICATE OF INCORPORATION OF DOT HILL SYSTEMS CORP. (DELAWARE)