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Exhibit 3.3
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
LEXAR MEDIA, INC.
ARTICLE I
The name of the corporation is Lexar Media, Inc.
ARTICLE II
The address of the registered office of the corporation in the State of
Delaware is 15 East North Street, City of Dover, County of Kent. The name of
its registered agent at that address is Incorporating Services, Ltd.
ARTICLE III
The purpose of the corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of the
State of Delaware. This corporation shall have perpetual existence.
ARTICLE IV
The total number of shares of all classes of stock which the corporation
has authority to issue is 210,000,000 shares, consisting of two classes:
200,000,000 shares of Common Stock, par value $0.0001 per share, and 10,000,000
shares of Preferred Stock, par value $0.0001 per share.
The voting, dividend and liquidation rights of the holders of the Common
Stock are subject to and qualified by the rights of the holders of the Preferred
Stock of any series as may be designated by the Board of Directors upon any
issuance of the Preferred Stock of any series. The holders of the Common Stock
shall have no preemptive rights to subscribe for any shares of any class of
stock of this corporation whether now or hereafter authorized. The holders of
the Common Stock are entitled to one vote for each share of Common Stock held at
all meetings of stockholders. There shall be no cumulative voting. Dividends
may be declared and paid on the Common Stock from funds lawfully available
therefor as and when determined by the Board of Directors and subject to any
preferential dividend rights of any then outstanding Preferred Stock. Upon the
dissolution or liquidation of the corporation, whether voluntary or involuntary,
the holders of Common Stock will be entitled to receive all assets of the
corporation available for distribution to its stockholders, subject to any
preferential rights of any then outstanding Preferred Stock.
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The Board of Directors is authorized, subject to any limitations prescribed
by the law of the State of Delaware, to provide for the issuance of the shares
of Preferred Stock in one or more series and, by filing a Certificate of
Designation pursuant to the applicable law of the State of Delaware, to
establish from time to time the number of shares to be included in each such
series, to fix the designation, powers, preferences and rights of the shares of
each such series and any qualifications, limitations or restrictions thereof,
and to increase or decrease the number of shares of any such series, but not
below the number of shares of such series then outstanding. The number of
authorized shares of Preferred Stock may also be increased or decreased, but not
below the number of shares thereof then outstanding, by the affirmative vote of
the holders of a majority of the capital stock of the corporation entitled to
vote, unless a vote of any other holders is required pursuant to the Certificate
of Designation establishing a series of Preferred Stock. Any shares of
Preferred Stock that may be redeemed, purchased or acquired by the corporation
may be reissued except as otherwise provided by applicable law or the
Certificate of Designation establishing such series of Preferred Stock. The
different series of Preferred Stock that may be issued hereunder shall not be
construed to constitute different classes of shares for the purposes of voting
by classes unless expressly provided in the Certificate of Designation providing
for the issue of such series of Preferred Stock.
Except as otherwise expressly provided in any Certificate of Designation
designating any series of Preferred Stock pursuant to the foregoing provisions
of this Article IV, any new series of Preferred Stock may be designated, fixed
and determined as provided herein by the Board of Directors without approval of
the holders of Common Stock or the holders of Preferred Stock, or any series
thereof, and any such new series may have powers, preferences and rights,
including, without limitation, voting rights, dividend rights, liquidation
rights, redemption rights and conversion rights, senior to, junior to or pari
passu with the rights of the Common Stock, the Preferred Stock or any future
class or series of Preferred Stock or Common Stock.
ARTICLE V
In furtherance of and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to adopt, amend or repeal the
Bylaws of this corporation, subject to the right of the stockholders entitled to
vote with respect thereto, in accordance with the provisions of such Bylaws, to
alter and repeal the Bylaws adopted or amended by the Board of Directors.
Notwithstanding any other provisions of law, this Certificate of Incorporation
or the Bylaws, each as amended, and notwithstanding the fact that a lesser
percentage may be specified by law, this Certificate of Incorporation or the
Bylaws, the affirmative vote of the holders of at least sixty six and two-thirds
percent (66 2/3%) of the outstanding voting stock then entitled to vote at an
election of directors, voting together as a single class, shall be required to
alter, change, amend, repeal or adopt any provision inconsistent with this
Article V.
ARTICLE VI
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:
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(a) The conduct of the affairs of the corporation shall be managed under
the direction of the Board of Directors. The number of directors shall be fixed
from time to time exclusively by resolution of the Board of Directors in the
manner provided in the Bylaws of the corporation.
(b) Notwithstanding the foregoing provision of this Article VI, each
director shall hold office until such director's successor is elected and
qualified, or until such director's earlier death, resignation or removal. No
decrease in the authorized number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
(c) Subject to the rights of the holders of any series of Preferred Stock,
any vacancy occurring in the Board of Directors for any cause, and any newly
created directorship resulting from any increase in the authorized number of
directors, shall, unless the Board of Directors determines by resolution that
any such vacancies or newly created directorship shall be filled by the
stockholders, be filled only by the affirmative vote of a majority of the
directors then in office, although less than a quorum, or by a sole remaining
director, and not by the stockholders. A director elected to fill a vacancy
shall be elected for the unexpired term of his predecessor in office, and a
director chosen to fill a position resulting from an increase in the number of
directors shall hold office until the next election of the class for which such
director shall have been chosen, subject to the election and qualification of
his successor and to his earlier death, resignation or removal.
(d) Subject to the rights of the holders of any series of Preferred Stock,
the directors of the corporation may be removed by the affirmative vote of the
holders of at least sixty six and two-thirds percent (66 2/3%) of the shares of
the capital stock of the corporation issued and outstanding and entitled to vote
generally in the election of directors cast at a meeting of the stockholders
called for that purpose.
(e) 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 of this corporation pursuant to an
effective registration statement under the Securities Act of 1933, as amended,
covering the offer and sale of Common Stock to the public (the "Initial Public
Offering"), the directors shall be divided, with respect to the time for which
they severally hold office, into three classes designated as Class I, Class II
and Class III, respectively. The directors shall be assigned to each class in
accordance with a resolution or resolutions adopted by the Board of Directors,
with the number of directors in each class to be divided as equally as
reasonably possible. No one class shall have more than one director more than
any other class. The term of office of the Class I Directors shall expire at
the first annual meeting of stockholders following the closing of the Initial
Public Offering, the term of office of the Class II Directors shall expire at
the second annual meeting of stockholders following the closing of the Initial
Public Offering, and the term of office of the Class III Directors shall expire
at the third annual meeting of stockholders following the closing of the Initial
Public Offering. At each annual meeting of stockholders commencing with the
first annual meeting of stockholders following the closing of the Initial Public
Offering, directors elected to succeed those directors of the class whose terms
then expire shall be elected for a term of office to expire at the third
succeeding annual meeting of stockholders after their election. Prior to the
closing of the Initial Public Offering, or in the event the corporation is
prohibited from dividing its board of directors in the manner described above
through the operation of Section 2115 of the California General
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Corporation Law following the record date of the first annual meeting of
stockholders following the closing of the Initial Public Offering, each director
shall hold office until the next annual meeting of stockholders and until such
director's successor is elected and qualified, or until such director's earlier
death, resignation or removal. In the event of any increase or decrease in the
authorized number of directors, (i) each director then serving as such shall
nevertheless continue as a director of the class of which he is a member and
(ii) the newly created or eliminated directorships resulting from such increase
or decrease shall be apportioned by the Board of Directors among the three
classes of directors so as to ensure that no one class has more than one
director more than any other class. To the extent possible, consistent with the
foregoing rule, any newly created directorships shall be added to those classes
whose terms of office are to expire at the latest dates following such
allocation, and any newly eliminated directorships shall be subtracted from
those classes whose terms of office are to expire at the earliest dates
following such allocation, unless otherwise provided from time to time by
resolution adopted by the Board of Directors.
(f) Unless and except to the extent that the Bylaws of this corporation
shall so require, the election of directors need not be by written ballot.
(g) 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 of the corporation, and no action shall be taken by the stockholders by
written consent in lieu of a meeting.
(h) The advance notice of stockholder nominations for the election of
directors of the corporation and of other business to be brought by stockholders
before any meeting of stockholders of the corporation shall be given in the
manner provided in the Bylaws of the corporation. Any business transacted at
special meetings of stockholders shall be confined to the purpose or purposes
stated in the notice of such meeting.
(i) Notwithstanding any other provisions of law, this Certificate of
Incorporation or the Bylaws, each as amended, and notwithstanding the fact that
a lesser percentage may be specified by applicable law, this Certificate of
Incorporation or the Bylaws, the affirmative vote of the holders of at least
sixty six and two-thirds percent (66 2/3%) of the outstanding voting stock then
entitled to vote at an election of directors, voting together as a single class,
shall be required to alter, change, amend, repeal or adopt any provision
inconsistent with this Article VI.
ARTICLE VII
To the fullest extent permitted by law, no director of the corporation
shall be personally liable to the corporation or its stockholders for monetary
damages for any breach of fiduciary duty as a director, notwithstanding any
provision of law imposing such liability. Without limiting the effect of the
preceding sentence, if the Delaware General Corporation Law is hereafter amended
to authorize the further elimination or limitation of the liability of a
director, then the liability of a director of the corporation shall be
eliminated or limited to the fullest extent permitted by the Delaware General
Corporation Law as so amended. No amendment to or repeal of this provision, nor
the adoption of any provision of this Certificate of Incorporation inconsistent
with this Article VII, shall apply to or have any effect on the liability or
alleged
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liability of any director of the corporation for or with respect to any acts or
omissions of such director occurring prior to such amendment or repeal.
ARTICLE VIII
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 this Certificate of Incorporation, and all
rights conferred upon stockholders herein are granted subject to this
reservation.
ARTICLE IX
The books of this corporation may, subject to any stationary requirements,
be kept outside the State of Delaware as may be designated by the Board of
Directors or by the Bylaws of this corporation.
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