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EXHIBIT 3.3
FORM OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
OMNISKY CORPORATION
(Pursuant to Sections 242 and 245 of the
General Corporation Law of the State of Delaware)
Patrick S. McVeigh and Scott M. Wornow each hereby certifies:
(1) They are the Chief Executive Officer and Secretary, respectively, of
OmniSky Corporation, a corporation organized and existing under the General
Corporation Law of the State of Delaware (the "General Corporation Law");
(2) The original Certificate of Incorporation of this corporation,
originally filed on May 7, 1999, is hereby amended and restated in its entirety
to read as follows:
First: The name of this corporation is OmniSky Corporation (the
"Corporation").
Second: The address of the Corporation's registered office in the State of
Delaware is 1209 Orange Street in the City of Wilmington, County of
New Castle, Delaware 19801. The name of its registered agent at such
address is The Corporation Trust Company.
Third: 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 Delaware.
Fourth: The Corporation is authorized to issue two classes of stock to be
designated respectively Common Stock and Preferred Stock. The total
number of shares of all classes of stock which the Corporation has
authority to issue is Two Hundred Ten Million (210,000,000)
consisting of Two Hundred Million (200,000,000) shares of Common
Stock, $0.001 par value (the "Common Stock"), and Ten Million
(10,000,000) shares of Preferred Stock, $0.001 par value (the
"Preferred Stock").
The Preferred Stock may be issued from time to time in one or more
series. The Board of Directors is hereby authorized subject to
limitations prescribed by law, to fix by resolution or resolutions
the designations, powers, preferences and rights, and the
qualifications, limitations or restrictions thereof, of each such
series of Preferred Stock, including without limitation authority to
fix by resolution or resolutions, the dividend rights, dividend
rate, conversion rights, voting rights, rights and terms of
redemption (including sinking fund provisions), redemption price or
prices, and liquidation
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preferences of any wholly unissued series of Preferred Stock, and
the number of shares constituting any such series and the
designation thereof, or any of the foregoing.
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 issue of shares of such series
then outstanding, subject to the powers, preferences and rights, and
the qualifications, limitations and restrictions thereof stated in
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.
Fifth: The Corporation is to have perpetual existence.
Sixth: The election 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 whole Board of
Directors of the Corporation shall be designated in the Bylaws of
the Corporation.
Eighth: In furtherance and not in limitation of the powers conferred by the
laws of the State of Delaware, the Board of Directors is expressly
authorized to adopt, alter, amend or repeal the Bylaws of the
Corporation.
Ninth: To the fullest extent permitted by the Delaware General Corporation
Law as the same exists or 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.
The Corporation shall 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.
Neither any amendment nor repeal of this Article, nor the adoption
of any provision of this Amended and 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, suit or claim
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that, but for this Article, would accrue or arise, prior to such
amendment, repeal or adoption of an inconsistent provision.
Tenth: At the election of directors of the Corporation, each holder of
stock of any class or series shall be entitled to one vote for each
share held. No stockholder will be permitted to cumulate votes at
any election of directors.
The number of directors which constitute the whole Board of
Directors of the Corporation shall be fixed exclusively by one or
more resolutions adopted from time to time by the Board of
Directors. The Board of 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
date hereof, 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 date hereof, 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 date hereof, 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.
Vacancies created by newly created directorships, created in
accordance with the Bylaws of this Corporation, may be filled by the
vote of a majority, although less than a quorum, of the directors
then in office, or by a sole remaining director.
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 laws of the
State of Delaware) 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.
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.
Twelfth: Advance notice of new business and stockholder nominations for the
election of directors shall be given in the manner and to the extent
provided in the Bylaws of the Corporation.
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Thirteenth: Notwithstanding any other provisions of this Amended and 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 Amended and 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 NINTH, TENTH, ELEVENTH 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.
Fourteenth: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Amended and Restated
Certificate of Incorporation, in the manner now or hereafter
prescribed by the laws of the State of Delaware, and all rights
conferred herein are granted subject to this reservation.
(3) This Amended and Restated Certificate of Incorporation has been duly
adopted by the Board of Directors of this Corporation in accordance with
Sections 242 and 245 of the General Corporation Law.
(4) This Amended and Restated Certificate of Incorporation has been duly
approved, in accordance with Section 242 of the General Corporation Law, by vote
of the holders of a majority of the outstanding stock entitled to vote thereon.
IN WITNESS WHEREOF, the undersigned have executed this Amended and
Restated Certificate of Incorporation on this ____ day of _________, 2000.
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Patrick S. McVeigh
Chief Executive Officer
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Scott M. Wornow
Secretary
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