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EXHIBIT 3.2
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
E-TEK DYNAMICS, INC.
E-Tek Dynamics, Inc., a corporation organized and existing under the
laws of the State of Delaware, in accordance with the provisions of Section 103
thereof, and pursuant to Section 242 thereof, hereby certifies as follows:
1. The name of this corporation is "E-Tek Dynamics, Inc." (the
"Corporation"). The date of filing of its original Certificate of Incorporation
with the Secretary of State was August 13, 1998.
2. This Amended and Restated Certificate of Incorporation has been duly
approved by the Board of Directors and the stockholders of the corporation in
accordance with Section 245 of the General Corporation Law of Delaware.
3. The text of the Certificate of Incorporation is amended and restated
to read as herein set forth in full:
FIRST
The name of this corporation is "E-Tek Dynamics, Inc." (the
"Corporation").
SECOND
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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 Delaware.
THIRD
The address of the Corporation's registered office in the State of
Delaware is 1013 Centre Road, Wilmington, County of New Castle, Delaware 19805.
The name of its registered agent at such address is Corporation Service Company.
FOURTH
A. The total number of shares which the Corporation shall have authority
to issue is Three Hundred and Twenty Five Million (325,000,000) shares of
capital stock.
B. Of such authorized shares, Three Hundred Million (300,000,000) shares
shall be designated "Common Stock," par value $0.001 per share.
C. Of such authorized shares, Twenty Five Million (25,000,000) shares
shall be designated "Preferred Stock," par value $0.01 per share. The Preferred
Stock may be issued from time to time and in one or more series. The Board of
Directors of the Corporation is authorized to determine or alter the powers,
preferences and rights, and the qualifications, limitations and restrictions
granted to or imposed upon any wholly unissued series of Preferred Stock, and
within the limitations or restrictions stated in any resolution or resolutions
of the Board of Directors originally fixing the number of shares constituting
any series of Preferred Stock, to increase or decrease (but not below the number
of shares of any such series of Preferred Stock then outstanding) the number of
shares of any such series of Preferred Stock, and to fix the number of shares of
any series of Preferred Stock. In the event that the number of shares of any
series of Preferred Stock shall be so decreased, the shares constituting such
decrease shall resume the status which such shares had prior to the adoption of
the resolution originally fixing the number of shares of such series of
Preferred Stock subject to the requirements of applicable law.
FIFTH
The Corporation is to have perpetual existence.
SIXTH
Elections of directors need not be by written ballot unless the Bylaws
of the Corporation shall so provide.
SEVENTH
The number of directors which constitute the entire Board of Directors
of the Corporation shall be designated in the Bylaws of the Corporation.
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EIGHTH
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.
NINTH
(a) To the fullest extent permitted by the Delaware General Corporation
Law as the same exists or as it may hereafter be amended, no director of the
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director.
(b) 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 he, his testator or intestate is or was a director, officer or employee of
the Corporation or any predecessor of the Corporation or serves or served at any
other enterprise as a director, officer or employee at the request of the
Corporation or any predecessor to the Corporation.
(c) Neither any amendment nor repeal of this Article, nor the adoption
of any provision of this Restated Certificate of Incorporation inconsistent with
this Article, shall eliminate or reduce the effect of this Article in respect of
any matter occurring, or any cause of action, proceeding, suit or claim accruing
or arising, or that, but for this Article, would accrue or arise, prior to such
amendment, repeal or adoption of an inconsistent provision.
TENTH
Section 1. 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; except that if any such election shall be not so held, such election
shall take place at stockholders' meeting called and held in accordance with the
Delaware General Corporation Law. The directors of the Corporation shall be
divided into three classes as nearly equal in size as is practicable, hereby
designed 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 the stockholders. For the purposes hereof, the initial Class I, Class
II and Class III directors shall be those directors so designated by the
incorporator. At each annual meeting after the first annual meeting of
stockholders, 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 practicable.
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Section 2. 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 any 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.
ELEVENTH
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 contained in the statutes) outside of 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.
TWELFTH
The stockholders of the Corporation may not take any action by written
consent in lieu of a meeting, and must take any actions at a duly called annual
or special meeting of stockholders and the power of stockholders to consent in
writing without a meeting is specifically denied.
THIRTEENTH
Notwithstanding any other provisions of this Restated 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 Restated Certificate of Incorporation, the
affirmative vote of the holders of at least two-thirds (2/3) 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 TENTH or TWELFTH
hereof, or this Article THIRTEENTH, or any provision thereof or hereof, unless
such amendment shall be approved by a majority of the directors of the
Corporation not affiliated or associated with any person or entity holding (or
which has announced an intention to obtain) twenty percent (20%) or more of the
voting power of the Corporation's outstanding capital stock.
FOURTEENTH
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 upon stockholders
herein are granted subject to this reservation.
IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated
Certificate of Incorporation to be executed for and on behalf of the Corporation
and in its name by Michael J. Fitzpatrick, its President and Chief Executive
Officer, as attested by Sanjay Subhedar, its Secretary.
E-TEK DYNAMICS, INC.
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/s/ Michael J. Fitzpatrick
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Michael J. Fitzpatrick
President and Chief Executive Officer
ATTEST:
E-TEK DYNAMICS, INC.
/s/ Sanjay Subhedar
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Sanjay Subhedar, Secretary
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