<PAGE> 1
EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
REPEATER TECHNOLOGIES, INC.
Kenneth L. Kenitzer hereby certifies that:
ONE: The date of filing of the original Certificate of Incorporation of
this corporation with the Secretary of State of the State of Delaware was
February 11, 2000.
TWO: He is the duly elected and acting President of Repeater
Technologies, Inc., a Delaware corporation.
THREE: The Certificate of Incorporation of this corporation is hereby
amended and restated to read as follows:
I.
The name of this corporation is REPEATER TECHNOLOGIES, INC.
II.
The address of the registered office of the corporation in the State of
Delaware is 9 East Lockerman Street, 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 National Registered Agents, 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. The total number of shares of all classes of stock which the
corporation shall have authority to issue is ninety million (90,000,000) shares,
consisting of seventy million (70,000,000) shares of Common Stock (the "Common")
and twenty million (20,000,000) shares of Convertible Preferred Stock (the
"Preferred"). The Preferred shall have a par value of one-tenth of one cent
($.001) per share and the Common shall have a par value of one-tenth of one cent
($.001) per share.
B. The Preferred may be issued from time to time in one or more series.
Except as provided in this Article IV, the Board of Directors is hereby
authorized, within the limitations and restrictions stated in this Certificate
of Incorporation, to fix or alter the dividend rights, dividend rate, conversion
rights, voting rights, rights and terms of redemption (including sinking fund
provisions), the redemption price or prices, the liquidation preferences of any
wholly unissued series of Preferred other than the Series DD Preferred and
Series EE Preferred (as defined herein), and the number of shares constituting
any such series and the designation
1.
<PAGE> 2
thereof, or any of them; and to increase or decrease the number of shares of any
series subsequent to the issue 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 so decreased, 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. One million two hundred
twenty-eight thousand four hundred nine (1,228,409) of the authorized shares of
the Preferred are hereby designated "Series AA Preferred" (the "Series AA
Preferred"); five million eighty-one thousand six hundred sixty-eight
(5,081,668) of the authorized shares of the Preferred are hereby designated
"Series BB Preferred" (the "Series BB Preferred"); four million six hundred
thousand (4,600,000) of the authorized shares of the Preferred are hereby
designated "Series CC Preferred" (the "Series CC Preferred"); three million
three hundred thousand (3,300,000) of the authorized shares of the Preferred are
hereby designated "Series DD Preferred" (the "Series DD Preferred"); and one
million five hundred thousand (1,500,000) of the authorized shares of the
Preferred are hereby designated "Series EE Preferred" (the "Series EE
Preferred").
C. The relative rights, preferences, privileges and restrictions granted
to or imposed upon the corporation's Common, Series AA Preferred, Series BB
Preferred, Series CC Preferred, Series DD Preferred and Series EE Preferred are
as follows:
SECTION 1. GENERAL DEFINITIONS. For purposes of this Certificate of
Incorporation, the following definitions shall apply:
(a) "PREFERRED" shall refer collectively to the Series AA Preferred,
Series BB Preferred, Series CC Preferred, Series DD Preferred and Series EE
Preferred.
(b) "COMMON" shall mean all Common Stock.
(c) "BOARD" or "BOARD OF DIRECTORS" shall mean the Board of Directors of
the corporation.
SECTION 2. DIVIDEND RIGHTS OF PREFERRED. The holders of the Preferred
shall be entitled to receive pari passu, out of any funds legally available
therefor, dividends, when, if and as declared by the Board of Directors, at the
rate of $0.51 per annum on each outstanding share of Series AA Preferred
(appropriately adjusted for any combinations, consolidations, stock
distributions, stock dividends or similar events with respect to such shares
after the date hereof (a "Recapitalization")), $0.264 per annum on each
outstanding share of Series BB Preferred (appropriately adjusted for any
Recapitalization), $0.275 per annum on each outstanding share of Series CC
Preferred (appropriately adjusted for any Recapitalization), $0.55 per annum on
each outstanding share of Series DD Preferred (appropriately adjusted for any
Recapitalization), $0.80 per annum on each outstanding share of Series EE
Preferred (appropriately adjusted for any Recapitalization), payable in
preference and priority to any payment of any dividend on Common, when and as
declared by the Board of Directors. After payment of such dividends, any
additional dividends declared shall be distributed among all holders of
Preferred and all holders of Common in proportion to the number of shares of
Common which would be held by each such holder if all shares of Preferred were
converted into Common at the then effective Conversion Price (as defined in
Section 4(a) below). The right to such dividends on the
2.
<PAGE> 3
Preferred shall not be cumulative, and no right shall accrue to holders of
Preferred by reason of the fact that dividends on such shares are not declared
or paid in any prior year.
In the event that the corporation shall have declared but unpaid
dividends outstanding immediately prior to, and in the event of, a conversion of
Preferred (as provided in Section 4 hereof), the corporation shall, at the
option of the holder, pay in cash to the holder(s) of Preferred subject to
conversion the full amount of any such dividends or allow such dividends to be
converted into Common in accordance with, and pursuant to the terms specified
in, Section 4 hereof.
SECTION 3. LIQUIDATION PREFERENCE.
(a) In the event of any liquidation, dissolution or winding up of the
corporation, either voluntary or involuntary, and until all preferential amounts
owed to them under this Section 3(a) have been paid, the holders of the
Preferred shall be entitled to receive pari passu, prior and in preference to
any distribution of any asset or property of the corporation to the holders of
Common by reason of their ownership thereof, an amount per share equal to $5.10
(Five Dollars and Ten Cents), $2.64 (Two Dollars and Sixty-Four Cents), $2.75
(Two Dollars and Seventy-Five Cents), $5.50 (Five Dollars and Fifty Cents) and
$8.00 (Eight Dollars) for each share of Series AA Preferred, Series BB
Preferred, Series CC Preferred, Series DD Preferred and Series EE Preferred then
held by them, respectively, plus an amount equal to all declared but unpaid
dividends on the Series AA Preferred, Series BB Preferred, Series CC Preferred,
Series DD Preferred and Series EE Preferred as of the liquidation date (each as
adjusted for stock splits, combinations and similar events with respect to the
Series AA Preferred, Series BB Preferred, Series CC Preferred, Series DD
Preferred or Series EE Preferred). If upon the occurrence of such an event, the
assets and funds thus distributed among the holders of the Preferred shall be
insufficient to permit the payment to such holders of the full aforesaid
preferential amount, then all of the assets and funds of the corporation legally
available for distribution shall be distributed among the holders of the
Preferred in proportion to the liquidation preference of the shares of Preferred
then held by them.
(b) After the payment of the full liquidation preference of the
Preferred as set forth in Section 3(a) above, the entire remaining assets of the
corporation legally available for distribution, if any, shall be distributed
ratably to the holders of the Common, Series CC Preferred, Series DD Preferred
and Series EE Preferred (on an as-if-converted to Common basis).
(c) For purposes of this Section 3, a liquidation, dissolution or
winding up of the corporation shall be deemed to be occasioned by, and to
include, the corporation's sale of all or substantially all of its assets or the
acquisition of the corporation by another entity by means of merger or
consolidation (other than a consolidation or merger in which the holders of
voting securities of the corporation immediately before the consolidation or
merger own (immediately after the consolidation or merger) voting securities of
the surviving or acquiring corporation, or of a parent party of such surviving
or acquiring corporation, possessing more than fifty percent (50%) of the voting
power of the surviving or acquiring corporation or parent party) resulting in
the exchange of the outstanding shares of the corporation for securities or
consideration issued, or caused to be issued, by the acquiring corporation or
its subsidiary or its parent.
3.
<PAGE> 4
SECTION 4. CONVERSION. THE HOLDERS OF THE PREFERRED SHALL HAVE
CONVERSION RIGHTS AS FOLLOWS (THE "CONVERSION RIGHTS"):
(a) RIGHT TO CONVERT. Each share of Preferred shall be convertible, at
the option of the holder thereof, at any time into such number of fully paid and
nonassessable shares of Common as is determined by dividing, with respect to the
Series AA Preferred, $5.10, with respect to the Series BB Preferred, $2.64, with
respect to the Series CC Preferred, $2.75, with respect to the Series DD
Preferred, $5.50, and with respect to the Series EE Preferred, $8.00, by each
series' respective Conversion Price in effect as of the time of conversion. The
conversion price for the Series AA Preferred (the "Series AA Conversion Price")
shall initially be $4.26, the conversion price for the Series BB Preferred (the
"Series BB Conversion Price") shall initially be $2.64, the conversion price for
the Series CC Preferred (the "Series CC Conversion Price") shall initially be
$2.75 the conversion price for the Series DD Preferred (the "Series DD
Conversion Price") shall initially be $5.50 and the Conversion Price for the
Series EE Preferred ("the Series EE Conversion Price") shall initially be $8.00
(collectively with the Series AA Conversion Price, Series BB Conversion Price,
Series CC Conversion Price, the Series DD Conversion Price, and the Series EE
Conversion Price, the "Conversion Prices"). Such initial Conversion Prices shall
be subject to adjustment as hereinafter provided.
(b) AUTOMATIC CONVERSION. Each share of Series AA Preferred, Series BB
Preferred, Series CC Preferred, Series DD Preferred and Series EE Preferred
shall automatically be converted into shares of Common at the then effective
conversion rate and taking into account declared but unpaid dividends, upon the
affirmative vote of the holders of (i) a majority of the shares of the Series AA
Preferred (with respect to the conversion of the Series AA Preferred), (ii) a
majority of the shares of the Series BB Preferred (with respect to the
conversion of the Series BB Preferred), (iii) at least 66-2/3% of the shares of
the Series CC Preferred (with respect to the conversion of the Series CC
Preferred), (iv) a majority of the authorized shares of the Series DD Preferred
(with respect to the conversion of the Series DD Preferred), or (v) a majority
of the authorized shares of the Series EE Preferred (with respect to the
conversion of the Series EE Preferred) or immediately upon the closing of a firm
commitment underwritten public offering of shares of Common pursuant to an
effective registration statement under the Securities Act of 1933, as amended,
covering the offer and sale of Common of the corporation for the account of the
corporation to the public for an aggregate offering price of not less than
$10,000,000 (before deduction for underwriter commissions and expenses relating
to the issuance) and at a public offering price per share of at least $6.50 (as
adjusted for any Recapitalization) (a "Qualified Public Offering").
(c) MECHANICS OF CONVERSION. Before any holder of Preferred shall be
entitled to convert the same into full shares of Common, he shall surrender the
certificate or certificates therefor, duly endorsed, at the office of the
corporation or of any transfer agent for the Preferred, and shall give written
notice to the corporation at such office that he elects to convert the same.
Such notice shall also state whether the holder elects, pursuant to Section 2
hereof, to receive declared but unpaid dividends on the Preferred proposed to be
converted in cash, or to convert such dividends into shares of Common at their
fair market value as determined by the Board. The corporation shall, as soon as
practicable thereafter, issue and deliver at such office to such holder of
Preferred, a certificate or certificates for the number of shares of Common to
which he shall be entitled as aforesaid and a check payable to the holder in the
amount of any cash
4.
<PAGE> 5
amounts payable as the result of a conversion into a fractional share of Common,
and any declared but unpaid dividends on the converted Preferred which the
holder elected to receive in cash. Such conversion shall be deemed to have been
made immediately prior to the close of business on the date of such surrender of
the shares of Preferred to be converted, and the person or persons entitled to
receive the shares of Common issuable upon such conversion shall be treated for
all purposes as the record holder or holders of such shares of Common on such
date. If the conversion is in connection with an underwritten public offering of
securities registered pursuant to the Securities Act of 1933, as amended, the
conversion shall be conditioned upon the closing of such public offering, and
the person(s) entitled to receive the Common issuable upon such conversion of
the Preferred shall not be deemed to have converted such Preferred until
immediately prior to such closing.
(d) ADJUSTMENTS TO SERIES AA, SERIES BB, SERIES CC, SERIES DD AND SERIES
EE CONVERSION PRICE FOR DILUTING ISSUES.
(1) SPECIAL DEFINITIONS. For purposes of this Section 4(d), the
following definitions shall apply:
(a) "OPTIONS" shall mean rights, options, or warrants to
subscribe for, purchase or otherwise acquire either Common or Convertible
Securities.
(b) "ORIGINAL ISSUE DATE" shall mean, with respect to a
series of Preferred, the date on which a share of Series AA Preferred, Series BB
Preferred, Series CC Preferred, Series DD Preferred and Series EE Preferred was
first issued, which, in the case of the Series DD Preferred or Series EE
Preferred, shall be deemed to be the date on which a security convertible into
Series DD Preferred or Series EE Preferred was issued, respectively.
(c) "CONVERTIBLE SECURITIES" shall mean any evidences of
indebtedness, shares (other than Series AA Preferred, Series BB Preferred,
Series CC Preferred, Series DD Preferred, or Series EE Preferred) or other
securities convertible into or exchangeable for Common.
(d) "ADDITIONAL SHARES OF COMMON" shall mean all shares of
Common issued (or, pursuant to Section 4(d)(3), deemed to be issued) by the
corporation after the Original Issue Date, other than shares of Series EE
Preferred and securities convertible into Series EE Preferred and other shares
of Common issued or issuable:
(i) upon conversion of shares of Series AA Preferred,
Series BB Preferred, Series CC Preferred, Series DD Preferred and Series EE
Preferred;
(ii) to officers, directors or employees of, or
consultants to, the corporation pursuant to stock option or stock purchase plans
approved by the Board of Directors;
(iii) as a dividend or distribution on any of the
Series AA Preferred, Series BB Preferred, Series CC Preferred, Series DD
Preferred or Series EE Preferred;
(iv) for which adjustment of the Conversion Price is
made pursuant to Section 4(e)(1);
5.
<PAGE> 6
(v) in connection with warrants issued as part of any
debt or lease financing transaction approved by the Board of Directors of the
corporation;
(vi) in connection with the exercise of warrants; or
(vii) by way of dividend or other distribution on
shares excluded from the definition of Additional Shares of Common by the
foregoing clauses (i), (ii), (iii), (iv), (v), (vi) or this clause (vii).
(2) NO ADJUSTMENT OF CONVERSION PRICE. No adjustment in the
Series AA Conversion Price, Series BB Conversion Price, Series CC Conversion
Price or Series DD Conversion Price of a particular share of Series AA
Preferred, Series BB Preferred, Series CC Preferred, Series DD Preferred or
Series EE Preferred, respectively, shall be made in respect of the issuance of
Additional Shares of Common unless the consideration per share for an Additional
Share of Common issued or deemed to be issued by the corporation is less than
the Series AA Conversion Price, Series BB Conversion Price, Series CC Conversion
Price, Series DD Conversion Price or Series EE Preferred, as the case may be, in
effect on the date of, and immediately prior to such issue, for such share of
Series AA Preferred, Series BB Preferred, Series CC Preferred, Series DD
Preferred or Series EE Preferred.
(3) DEEMED ISSUE OF ADDITIONAL SHARES OF COMMON. In the event the
corporation at any time or from time to time after the Original Issue Date shall
issue any Options or Convertible Securities or shall fix a record date for the
determination of holders of any class of securities then entitled to receive any
such Options or Convertible Securities, then the maximum number of Additional
Shares of Common (as set forth in the instrument relating thereto without regard
to any provisions contained therein designed to protect against dilution)
issuable upon the exercise of such Options or, in the case of Convertible
Securities and Options therefor, the conversion or exchange of such Convertible
Securities, shall be deemed to be Additional Shares of Common issued as of the
time of such issue or, in case such a record date shall have been fixed, as of
the close of business on such record date, provided that Additional Shares of
Common shall not be deemed to have been issued unless the consideration per
share (determined pursuant to Section 4(d)(5) hereof) of such Additional Shares
of Common would be less than the Series AA Conversion Price, Series BB
Conversion Price, Series CC Conversion Price, Series DD Conversion Price or
Series EE Conversion Price, as the case may be, in effect on the date of and
immediately prior to such issue, or such record date, as the case may be, and
provided further that in any such case in which Additional Shares of Common are
deemed to be issued:
(a) no further adjustments in the Series AA Conversion
Price, Series BB Conversion Price, Series CC Conversion Price, Series DD
Conversion Price or Series EE Preferred shall be made upon the subsequent issue
of Convertible Securities or shares of Common upon the exercise of such Options
or conversion or exchange of such Convertible Securities;
(b) if such Options or Convertible Securities by their
terms provide, with the passage of time or otherwise, for any increase in the
consideration payable to the corporation, or decrease in the number of shares of
Common issuable, upon the exercise,
6.
<PAGE> 7
conversion or exchange thereof, the Series AA Conversion Price, Series BB
Conversion Price, Series CC Conversion Price, Series DD Conversion Price or
Series EE Preferred computed upon the original issue thereof (or upon the
occurrence of a record date with respect thereto), and any subsequent
adjustments based thereon, shall, upon any such increase or decrease becoming
effective, be recomputed to reflect such increase or decrease insofar as it
affects such Options or the rights of conversion or exchange under such
Convertible Securities (provided, however, that no such adjustment of the Series
AA Conversion Price, Series BB Conversion Price, Series CC Conversion Price,
Series DD Conversion Price or Series EE Conversion Price shall affect Common
previously issued upon conversion of the Preferred);
(c) upon the expiration of any such Options or any rights
of conversion or exchange under such Convertible Securities which shall not have
been exercised, the Series AA Conversion Price, Series BB Conversion Price,
Series CC Conversion Price, Series DD Conversion Price or Series EE Conversion
Price computed upon the original issue thereof (or upon the occurrence of a
record date with respect thereto), and any subsequent adjustments based thereon,
shall, upon such expiration, be recomputed as if:
(i) in the case of Convertible Securities or Options
for Common the only Additional Shares of Common issued were the shares of
Common, if any, actually issued upon the exercise of such Options or the
conversion or exchange of such Convertible Securities and the consideration
received therefor was the consideration actually received by the corporation for
the issue of all such Options, whether or not exercised, plus the consideration
actually received by the corporation upon such exercise, or for the issue of all
such Convertible Securities which were actually converted or exchanged, plus the
additional consideration, if any, actually received by the corporation upon such
conversion or exchange, and
(ii) in the case of Options for Convertible
Securities, only the Convertible Securities, if any, actually issued upon the
exercise thereof were issued at the time of issue of such Options and the
consideration received by the corporation for the Additional Shares of Common
deemed to have been then issued was the consideration actually received by the
corporation for the issue of all such Options, whether or not exercised, plus
the consideration deemed to have been received by the corporation (determined
pursuant to Section 4(d)(5)) upon the issue of the Convertible Securities with
respect to which such Options were actually exercised;
(d) no readjustment pursuant to clauses (b) or (c) above
shall have the effect of increasing the Series AA Conversion Price, Series BB
Conversion Price, Series CC Conversion Price, Series DD Conversion Price or
Series EE Preferred Conversion Price to an amount which exceeds the lower of (i)
such Conversion Price, as the case may be, on the original adjustment date, or
(ii) such Conversion Price, as the case may be, that would have resulted from
any issuance of Additional Shares of Common between the original adjustment date
and such readjustment date;
(e) in the case of any Options which expire by their terms
not more than 30 days after the date of issue thereof, no adjustment of the
Series AA Conversion Priced, Series BB Conversion Price, Series CC Conversion
Price, Series DD Conversion Price, or Series
7.
<PAGE> 8
EE Conversion Price shall be made, except as to shares of Preferred converted in
such period, until the expiration or exercise of all such Options, whereupon
such adjustment shall be made in the same manner provided in clause (c) above;
and
(f) if any such record date shall have been fixed and such
Options or Convertible Securities are not issued on the date fixed thereof, the
adjustment previously made in the Series AA Conversion Price, Series BB
Conversion Price, Series CC Conversion Price, Series DD Conversion Price or
Series EE Conversion Price which became effective on such record date shall be
canceled as of the close of business on such record date, and shall instead be
made on the actual date of issuance, if any.
(4) ADJUSTMENT OF CONVERSION PRICE UPON ISSUANCE OF ADDITIONAL
SHARES OF COMMON. In the event the corporation shall issue Additional Shares of
Common (including Additional Shares of Common deemed to be issued pursuant to
Section 4(d)(3)) without consideration or for a consideration per share less
than the Series AA Conversion Price, Series BB Conversion Price, Series CC
Conversion Price, Series DD Conversion Price or Series EE Conversion Price in
effect on the date of and immediately prior to such issue, then and in such
event, such Series AA Conversion Price, Series BB Conversion Price, Series CC
Conversion Price, Series DD Conversion Price or Series EE Conversion Price, as
the case may be, shall be reduced, concurrently with such issue, to a price
(calculated to the nearest cent) determined by multiplying such Series AA
Conversion Price, Series BB Conversion Price, Series CC Conversion Price, Series
DD Conversion Price or Series EE Conversion Price, as the case may be, by a
fraction, the numerator of which shall be the number of shares of Common
outstanding immediately prior to such issuance (including for this purpose the
number of shares of Common issuable upon conversion of the shares of Preferred
outstanding immediately prior to such issue) plus the number of shares of Common
which the aggregate consideration received by the corporation for the total
number of Additional Shares of Common so issued would purchase at such Series AA
Conversion Price, Series BB Conversion Price, Series CC Conversion Price, Series
DD Conversion Price or Series EE Conversion Price, as the case may be, and the
denominator of which shall be the number of shares of Common outstanding
immediately prior to such issuance (including for this purpose the number of
shares of Common issuable upon conversion of the shares of Preferred outstanding
immediately prior to such issue) plus the number of such Additional Shares of
Common so issued.
(5) DETERMINATION OF CONSIDERATION. For purposes of this Section
4(d), the consideration received by the corporation for the issue of any
Additional Shares of Common shall be computed as follows:
8.
<PAGE> 9
(a) CASH AND PROPERTY. Such consideration shall:
(i) insofar as it consists of cash, be computed at the
aggregate amount of cash paid therefor, prior to deducting any discounts,
commissions or other expenses allowed, paid or incurred by the corporation but
excluding any amounts paid or payable for accrued interest or accrued dividends;
(ii) insofar as it consists of property other than
cash, be computed at the fair value thereof at the time of such issue, as
determined in good faith by the Board of Directors; and
(iii) in the event Additional Shares of Common are
issued together with other shares or securities or other assets of the
corporation for consideration which covers both, be the proportion of such
consideration so received, computed as provided in clauses (i) and (ii) above,
as determined in good faith by the Board of Directors.
(b) OPTIONS AND CONVERTIBLE SECURITIES. The consideration
per share received by the corporation for Additional Shares of Common deemed to
have been issued pursuant to Section 4(d)(3), relating to Options and
Convertible Securities, shall be determined by dividing:
(i) the total amount, if any, received or receivable
by the corporation as consideration for the issue of such Options or Convertible
Securities, plus the minimum aggregate amount of additional consideration (as
set forth in the instruments relating thereto, without regard to any provision
contained therein designed to protect against dilution) payable to the
corporation upon the exercise of such Options or the conversion or exchange of
such Convertible Securities, or in the case of Options for Convertible
Securities, the exercise of such Options for Convertible Securities and the
conversion or exchange of such Convertible Securities by
(ii) the maximum number of shares of Common (as set
forth in the instruments relating thereto, without regard to any provision
contained therein designed to protect against dilution) issuable upon the
exercise of such Options or the conversion or exchange of such Convertible
Securities.
(e) CONVERSION PRICE ADJUSTMENTS OF PREFERRED. The Series
AA Conversion Price, Series BB Conversion Price, Series CC Conversion Price,
Series DD Conversion Price and Series EE Conversion Price shall be subject to
adjustment from time to time as follows:
(1) ADJUSTMENTS FOR COMBINATIONS OR SUBDIVISIONS OF COMMON. In
the event the corporation at any time or from time to time after the Original
Issue Date shall declare or pay any dividend on the Common payable in Common or
in any right to acquire Common, or shall effect a subdivision of the outstanding
shares of Common into a greater number of shares of Common (by stock split,
reclassification or otherwise), or in the event the outstanding shares of Common
shall be combined or consolidated, by reclassification or otherwise, into a
lesser number of shares of Common, then the Conversion Prices of the Preferred
in effect immediately prior to such event shall, concurrently with the
effectiveness of such event, be proportionately decreased or increased, as
appropriate.
9.
<PAGE> 10
(2) OTHER DISTRIBUTIONS. In the event the corporation shall at
any time or from time to time after the Original Issue Date make or issue, or
fix a record date for the determination of holders of Common entitled to
receive, a dividend or other distribution payable in securities of the
corporation or any of it subsidiaries other than Additional Shares of Common,
then in each such event provision shall be made so that the holders of Preferred
shall receive, upon the conversion thereof, the securities of the corporation
which they would have received had their stock been converted into Common on the
date of such event.
(3) ADJUSTMENTS. After the Original Issuance Date, in case of any
reorganization or any reclassification of the capital stock of the corporation,
or, subject to Section 3(c) above, which shall control in the circumstances
specified therein, any consolidation or merger of the corporation with or into
another corporation or corporations, or the conveyance of all or substantially
all of the assets of the corporation to another corporation, each share of
Preferred shall thereafter be convertible into the number of shares of stock or
other securities or property (including cash) to which a holder of the number of
shares of Common deliverable upon conversion of such share of Preferred would
have been entitled upon the record date of (or date of, if no record date is
fixed) such reorganization, reclassification, consolidation, merger or
conveyance; and, in any case, appropriate adjustment (as determined by the Board
of Directors) shall be made in the application of the provisions herein set
forth with respect to the rights and interests thereafter of the holders of such
Preferred, to the end that the provisions set forth herein shall thereafter be
applicable, as nearly as equivalent as is practicable, in relation to any shares
of stock or the securities or property (including cash) thereafter deliverable
upon the conversion of the shares of such Preferred.
(f) NO IMPAIRMENT. The corporation will not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the corporation, but will at
all times in good faith assist in the carrying out of all the provisions of this
Section 4 and in the taking of all such action as may be necessary or
appropriate in order to protect the Conversion Rights of the holders of the
Preferred against impairment.
(g) CERTIFICATES AS TO ADJUSTMENTS. Upon the occurrence of each
adjustment or readjustment of the Series AA Conversion Price, Series BB
Conversion Price, Series CC Conversion Price, Series DD Conversion Price or
Series EE Conversion Price pursuant to this Section 4, the corporation at its
expense shall promptly compute such adjustment or readjustment in accordance
with the terms hereof and furnish to each holder of Preferred a certificate
setting forth such adjustment or readjustment and showing in detail the facts
upon which such adjustment or readjustment is based. The corporation shall, upon
the written request at any time of any holder of Preferred, furnish or cause to
be furnished to such holder a like certificate setting forth (i) such
adjustments and readjustments, (ii) the applicable Conversion Price at the time
in effect and (iii) the number of shares of Common and the amount, if any, of
other property which at the time would be received upon the conversion of
Preferred.
(h) NOTICES OF RECORD DATE. In the event that the corporation shall
propose at any time:
10.
<PAGE> 11
(1) to declare any Common dividend or distribution, whether in
cash, property, stock or other securities, whether or not a regular cash
dividend and whether or not out of earnings or earned surplus;
(2) to offer for subscription pro rata to the holders of any
class or series of its stock any additional shares of stock of any class or
series or other rights;
(3) to effect any reclassification or recapitalization of
outstanding shares of its Common which involve a change in the Common; or
(4) to merge or consolidate with or into any other corporation,
or sell, lease or convey all or substantially all its property or business, or
to liquidate, dissolve or wind up; then, in connection with each such event, the
corporation shall send to the holders of the Preferred:
(a) at least 20 days' prior written notice of the record
date for such dividend, distribution or subscription rights (and specifying the
date on which the holders of shares of Common shall be entitled thereto) or for
determining rights to vote in respect of the matters referred to in subsections
4(h)(iii) and (iv) above; and
(b) in the case of the matters referred to in subsections
4(h)(iii) and (iv) above, at least 20 days' prior written notice of the date
when the same shall take place (and specifying the date on which the holders of
shares of Common shall be entitled to exchange their shares of Common for
securities or other property deliverable upon the occurrence of such event).
Each such written notice shall be given by first class mail, postage
prepaid, addressed to the holders of Preferred at the address for each such
holder as shown on the books of the corporation.
(i) ISSUE TAXES. The corporation shall pay any and all issue and other
taxes, excluding federal, state or local income taxes, that may be payable in
respect of any issue or delivery of shares of Common on conversion of shares of
Preferred pursuant hereto; provided, however, that the corporation shall not be
obligated to pay any transfer taxes resulting from any transfer requested by any
holder in connection with any such conversion.
(j) RESERVATION OF STOCK ISSUABLE UPON CONVERSION. The corporation shall
at all times reserve and keep available out of its authorized but unissued
shares of Common, solely for the purpose of effecting the conversion of the
shares of the Preferred, such number of its shares of Common as shall from time
to time be sufficient to effect the conversion of all outstanding shares of the
Preferred, and if at any time the number of authorized but unissued shares of
Common shall not be sufficient to effect the conversion of all then outstanding
shares of the Preferred, the corporation will take such corporate action as may,
in the opinion of its counsel, be necessary to increase its authorized but
unissued shares of Common to such number of shares as shall be sufficient for
such purpose, including, without limitation, engaging in best efforts to obtain
the requisite stockholder approval of any necessary amendment to this
Certificate of Incorporation.
11.
<PAGE> 12
(k) FRACTIONAL SHARES. No fractional share shall be issued upon the
conversion of any share or shares of the Preferred. All shares of Common
(including fractions thereof) issuable upon conversion of more than one share of
Series AA Preferred, Series BB Preferred, Series CC Preferred, Series DD
Preferred or Series EE Preferred by a holder thereof shall be aggregated for
purposes of determining whether the conversion would result in the issuance of
any fractional share. If, after the aforementioned aggregation, the conversion
would result in the issuance of a fraction of a share of Common, the corporation
shall, in lieu of issuing any fractional share, pay the holder otherwise
entitled to such fraction a sum in cash equal to the fair market value of such
fraction on the date of conversion (as determined in good faith by the Board of
Directors of the corporation).
(l) NOTICES. Any notice required by the provisions of this Section 4 to
be given to the holders of shares of Preferred shall be deemed given if
deposited in the United States mail, postage prepaid, and addressed to each
holder of record at its address appearing on the books of the corporation.
SECTION 5.VOTING RIGHTS AND DIRECTORS.
(a) VOTE OTHER THAN FOR DIRECTORS. Except as otherwise required by law
and as provided in section (b) below with respect to the election of directors,
the holders of Preferred and the holders of Common shall be entitled to notice
of any stockholders' meetings and to vote as a single class upon any matter
submitted to the stockholders for a vote, as follows:
(1) the holders of Preferred shall have one vote for each full
share of Common into which their respective shares of Preferred would be
convertible on the record date for the vote; and
(2) the holders of Common have one vote per share of Common.
(b) VOTING FOR DIRECTORS. The members of the Board of Directors shall be
elected as follows: (i) holders of the Series AA Preferred shall be entitled to
elect one member of the Board of Directors at or pursuant to each meeting or
consent of the corporation's stockholders for the election of directors, and to
remove from office such director and to fill any vacancy caused by the
resignation, death or removal of such director; (ii) holders of the Series BB
Preferred shall be entitled to elect two members of the Board of Directors at or
pursuant to each meeting or consent of the corporation's stockholders for the
election of directors, and to remove from office such directors and to fill any
vacancy caused by the resignation, death or removal of such directors; (iii)
holders of the Series CC Preferred shall be entitled to elect one member of the
Board of Directors at or pursuant to each meeting or consent of the
corporation's stockholders for the election of directors, and to remove from
office such director and to fill any vacancy caused by the resignation, death or
removal of such director, (iv) holders of the Common shall be entitled to elect
two members of the Board of Directors at or pursuant to each meeting or consent
of the corporation's stockholders for the election of directors, and to remove
from office such directors and to fill any vacancy caused by the resignation,
death or removal of such directors; and (iv) holders of the Common, Series AA
Preferred, Series BB Preferred, Series CC Preferred, Series DD Preferred and
Series EE Preferred, voting together, shall be entitled to elect the balance of
directors, if any, at or pursuant to each meeting or consent of the
12.
<PAGE> 13
corporation's stockholders for the election of directors, and to remove from
office such directors and to fill any vacancy caused by the resignation, death
or removal of such directors.
SECTION 6. COVENANTS.
(a) In addition to any other rights provided by law, (i) so long as an
aggregate of at least 1,187,500 shares of Series AA Preferred and Series BB
Preferred remain outstanding (appropriately adjusted for any Recapitalization)
the corporation shall not, without first obtaining the affirmative vote or
written consent of the holders of not less than a majority of such outstanding
shares of Series AA Preferred and Series BB Preferred, voting together as a
class, (ii) so long as an aggregate of at least 1,500,000 shares of Series CC
Preferred remain outstanding (appropriately adjusted for any Recapitalization),
the corporation shall not, without first obtaining the affirmative vote or
written consent of the holders of not less than 55% of such outstanding shares
of Series CC Preferred, (iii) so long as an aggregate of at least 900,000 shares
of Series DD Preferred remain outstanding (appropriately adjusted for any
Recapitalization), the corporation shall not, without first obtaining the
affirmative vote or written consent of the holders of not less than 50% of such
outstanding shares of Series DD Preferred and (iv) so long as an aggregate of at
least 250,000 shares of Series EE Preferred remain outstanding (appropriately
adjusted for any Recapitalization), the corporation shall not, without first
obtaining the affirmative vote or written consent of the holders of not less
than 50% of such outstanding shares of Series EE Preferred:
(1) Any amendment, alteration, or repeal of any provision of the
Certificate of Incorporation or the Bylaws of the corporation (including any
filing of a Certificate of Designation), that affects adversely the voting
powers, preferences, or other special rights or privileges, qualifications,
limitations, or restrictions of the Preferred;
(2) Any increase or decrease (other than by redemption or
conversion) in the authorized number of shares of Common or Preferred;
(3) Any authorization or any designation, whether by
reclassification or otherwise, of any new class or series of stock or any other
securities convertible into equity securities of the corporation ranking on a
parity with or senior to the Preferred in right of redemption, liquidation
preference, voting or dividends or any increase in the authorized or designated
number of any such new class or series;
(4) Any redemption, repurchase, payment of dividends or other
distributions with respect to Common or Preferred (except for acquisitions of
Common by the corporation pursuant to agreements which permit the company to
repurchase such shares upon termination of services to the corporation or in
exercise of the corporation's right of first refusal upon a proposed transfer);
(5) Any action that results in the payment or declaration of a
dividend on any shares of Common or Preferred; or
(6) Any voluntary dissolution or liquidation of (or so deemed
pursuant to Section 3(c) above) the corporation.
13.
<PAGE> 14
SECTION 7. STATUS OF CONVERTED STOCK. In the event any shares of
Preferred shall be converted pursuant to Section 4 hereof, the shares so
converted shall be canceled and shall not be issuable by the corporation.
SECTION 8. RESIDUAL RIGHTS. All rights accruing to the outstanding
shares of the corporation not expressly provided for to the contrary herein
shall be vested in the Common.
SECTION 9. CONSENT FOR CERTAIN REPURCHASES OF COMMON DEEMED TO BE
DISTRIBUTIONS. Each holder of Preferred shall be deemed to have consented, for
purposes of Section 502, 503 and 506 of the California Corporations Code, to
distributions made by the corporation in connection with the repurchase of
shares of Common issued to or held by employees or consultants upon termination
of their employment or services or pursuant to agreements providing for the
right of said repurchase between the corporation and such persons.
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. 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 exclusively
by one or more resolutions adopted by the Board of Directors.
B. Subject to the rights of the holders of any series of Preferred Stock
to elect additional directors under specified circumstances, following the
closing of the initial public offering pursuant to an effective registration
statement under the Securities Act of 1933, as amended (the "1993 Act"),
covering the offer and sale of Common Stock to the public (the "Initial Public
Offering"), 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 closing
of the Initial Public Offering, 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 the Initial Public
Offering, 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 the Initial Public Offering, 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.
During such time or times that the corporation is subject to Section 2115(b) of
the California General Corporation Law ("CGCL"), this paragraph B of this
Article V shall become effective and be applicable only when the corporation is
a "listed" corporation within the meaning of Section 301.5 of the CGCL.
14.
<PAGE> 15
C. In the event that the corporation is unable to have a classified
board under applicable law, Section 301.5 of the CGCL, paragraph B of this
Article V shall not apply and all directors shall be elected at each annual
meeting of stockholders to hold office until the next annual meeting.
D. No stockholder entitled to vote at an election for directors may
cumulate votes to which such stockholder is entitled, unless, at the time of
such election, the corporation (i) is subject to Section 2115(b) of the CGCL and
(ii) is not or ceases to be a "listed" corporation under Section 301.5 of the
CGCL. During this time, every stockholder entitled to vote at an election for
directors may cumulate such stockholder's votes and give one candidate a number
of votes equal to the number of directors to be elected multiplied by the number
of votes to which such stockholder's shares are otherwise entitled, or
distribute the stockholder's votes on the same principle among as many
candidates as such stockholder thinks fit. No stockholder, however, shall be
entitled to so cumulate such stockholder's votes unless (i) the names of such
candidate or candidates have been placed in nomination prior to the voting and
(ii) the stockholder has given notice at the meeting, prior to the voting, of
such stockholder's intention to cumulate such stockholder's votes. If any
stockholder has given proper notice to cumulate votes, all stockholders may
cumulate their votes for any candidates who have been properly placed in
nomination. Under cumulative voting, the candidates receiving the highest number
of votes, up to the number of directors to be elected, are elected.
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.
E. REMOVAL OF DIRECTORS
SECTION 1. During such time or times that the corporation is subject to
Section 2115(b) of the CGCL, the Board of Directors or any individual director
may be removed from office at any time without cause by the affirmative vote of
the holders of at least a majority of the outstanding shares entitled to vote on
such removal; provided, however, that unless the entire Board is removed, no
individual director may be removed when the votes cast against such director's
removal, or not consenting in writing to such removal, would be sufficient to
elect that director if voted cumulatively at an election which the same total
number of votes were cast (or, if such action is taken by written consent, all
shares entitled to vote were voted) and the entire number of directors
authorized at the time of such director's most recent election were then being
elected.
SECTION 2. At any time or times that the corporation is not subject to
Section 2115(b) of the CGCL and subject to any limitations imposed by law,
Section 1 shall no longer apply and removal shall be as provided in Section
141(k) of the DGCL.
F. VACANCIES
SECTION 1. 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
15.
<PAGE> 16
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.
SECTION 2. 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.
SECTION 3. At any time or times that the corporation is subject to
Section 2115(b) of the CGCL, if, after the filling of any vacancy by the
directors then in office who have been elected by stockholders shall constitute
less than a majority of the directors then in office, then
(a) Any holder or holders of an aggregate of five percent (5%) or more
of the total number of shares at the time outstanding having the right to vote
for those directors may call a special meeting of stockholders; or
(b) The Superior Court of the proper county shall, upon application of
such stockholder or stockholders, summarily order a special meeting of
stockholders, to be held to elect the entire board, all in accordance with
Section 305(c) of the CGCL. The term of office of any director shall terminate
upon that election of a successor.
G. 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
sixty-six and two-thirds percent (66-2/3%) of the voting power of all of the
then-outstanding shares of the voting stock of the corporation entitled to vote.
The Board of Directors shall also have the power to adopt, amend, or repeal
Bylaws.
SECTION 1. The directors of the corporation need not be elected by
written ballot unless the Bylaws so provide.
SECTION 2. 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 or by written consent of stockholders in accordance
with the Bylaws prior to the closing of the Initial Public Offering and
following the closing of the Initial Public Offering no action shall be taken by
the stockholders by written consent.
SECTION 3. 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.
16.
<PAGE> 17
VI.
A. The liability of the directors for monetary damages shall be
eliminated to the fullest extent under applicable law.
B. This corporation is authorized to provide indemnification of agents
(as defined in Section 317 of the CGCL) for breach of duty to the corporation
and its stockholders through bylaw provisions or through agreements with the
agents, or through stockholder resolutions, or otherwise, in excess of the
indemnification otherwise permitted by Section 317 of the CGCL, subject, at any
time or times the corporation is subject to Section 2115(b), to the limits on
such excess indemnification set forth in Section 204 of the CGCL.
C. 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 sixty-six and two-thirds percent (66-2/3%) of the voting
power of all of the then-outstanding shares of the voting stock, voting together
as a single class, shall be required to alter, amend or repeal Articles V, VI,
and VII.
* * * *
FOUR: This Amended and Restated Certificate of Incorporation has been
duly approved by the Board of Directors of this corporation.
FIVE: This Amended and Restated Certificate of Incorporation has been
duly adopted in accordance with the provisions of Sections 228, 242 and 245 of
the General Corporation Law of the State of Delaware by the Board of Directors
and the stockholders of the corporation. A majority of the outstanding shares of
Common and Preferred, voting as a single class on an as-converted basis, a
majority of the outstanding shares of Series AA Preferred and Series BB
Preferred, voting together as a class, fifty-five percent (55%) of the
outstanding shares of Series CC Preferred and fifty percent (50%) of the
outstanding shares of Series DD Preferred approved this Amended and Restated
Certificate of Incorporation by written consent in accordance with Section 228
of the General Corporation Law of the State of Delaware and written notice of
such was given by the corporation in accordance with said Section 228.
17.
<PAGE> 18
IN WITNESS WHEREOF, REPEATER TECHNOLOGIES, INC. has caused this Amended
and Restated Certificate of Incorporation to be signed by its President this
10th day of July, 2000.
REPEATER TECHNOLOGIES, INC.
By: /s/ Kenneth L. Kenitzer
-------------------------
Kenneth L. Kenitzer
President
18.
