<PAGE>
EXHIBIT 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
MICROTUNE, INC.
(Pursuant to Sections 242 and 245 of the
General Corporation Law of the State of Delaware)
--------------------------------------------------------------------------------
James A. Fontaine and Tamara G. Mattison each hereby certifies:
(1) They are the President and Secretary, respectively, of Microtune, Inc.,
a corporation organized and existing under the General Corporation Law of the
State of Delaware (the "General Corporation Law"); and
-----------------------
(2) The name of the Corporation is Microtune, Inc. Microtune, Inc. was
originally incorporated under the name Microtune Holding Company, Inc. and the
original Certificate of Incorporation was filed with the Secretary of State of
the State of Delaware on June 1, 2000.
(3) The text of the Certificate of Incorporation, as heretofore amended, is
hereby amended and restated in its entirety to read as follows:
FIRST: The name of the Corporation is Microtune, Inc. (the "Corporation")
-----------
SECOND: The address of the Corporation's registered office in the State of
Delaware is 1013 Centre Road, Wilmington, New Castle County, Delaware 19801.
The name of its registered agent at such office is The Corporation Service
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.
FOURTH: The Corporation is authorized to issue two classes of stock,
designated Common Stock, par value $0.001 per share ("Common Stock"), and
------------
Preferred Stock, par value $0.001 per share ("Preferred Stock"). The total
---------------
number of shares which the Corporation is authorized to issue is 118,998,513.
The number of shares of Common Stock which the Corporation is authorized to
issue is 100,000,000. The number of shares of Preferred Stock which the
Corporation is authorized to issue is 18,998,513 which shall be designated as
set forth below.
The designation of each class, the number of shares of each class, and the
par value, if any, of the shares of each class, or a statement that the shares
of any class are without par value, are as follows:
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION PAGE 1 of 15
<PAGE>
<TABLE>
<CAPTION>
Number of Series
Shares Class (If any) Par Value per Share
------------------ ------------------- ---------------------- -------------------------------
<S> <C> <C> <C>
100,000,000 Common -- $0.001
5,000,000 Preferred A $0.001
1,250,000 Preferred B $0.001
1,500,000 Preferred C $0.001
2,600,000 Preferred D $0.001
3,648,513 Preferred E $0.001
2,000,000 Preferred F $0.001
3,000,000 Preferred Undesignated $0.001
</TABLE>
The Corporation shall from time to time in accordance with the laws of the
State of Delaware increase the authorized amount of its Common Stock if at any
time the number of shares of Common Stock remaining unissued and available for
issuance shall not be sufficient to permit conversion of the Preferred Stock.
The Board of Directors of the Corporation (the "Board") is hereby
-----
authorized, subject to limitations prescribed by law and the provisions of this
Article FOURTH, to provide for the issuance of the shares of Preferred Stock in
one or more series, and by filing a certificate pursuant to the General
Corporation Law of the State of Delaware, to establish from time to time the
number of shares of each such series and the qualifications, limitations or
restrictions thereof.
The authority of the Board with respect to each series shall include, but
not be limited to, determination of the following:
(a) The number of shares constituting that series and the distinctive
designation of that series;
(b) The dividend rate on the shares of that series, whether dividends shall
be cumulative, and, if so, from which date or dates, and the relative rights of
priority, if any, of payment of dividends on shares of that series;
(c) Whether that series shall have voting rights in addition to the voting
rights provided by law, and, if so, the terms of such voting rights;
(d) Whether that series shall have conversion privileges, and, if so, the
terms and conditions of such privileges, including provision for adjustment of
the conversion rate in such events as the Board shall determine;
(e) Whether or not the shares of that series shall be redeemable, and, if
so, the terms and conditions of such redemption, including the date or dates
upon or after which they shall be redeemable, and the amount per share payable
in case of redemption, which amount may vary under different conditions and at
different redemption rates;
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION PAGE 2 of 15
<PAGE>
(f) Whether that series shall have a sinking fund for the redemption
or purchase of shares of that series, and, if so, the terms and amount of such
sinking fund;
(g) The rights of the shares of that series in the event of voluntary
or involuntary liquidation, dissolution or winding up of the Corporation, and
the relative rights of priority, if any, of payment of shares of that series;
and
(h) Any other relative rights, preferences and limitations of
that series.
Shares of any series of Preferred Stock established pursuant to the
preceding three paragraphs which have been redeemed (whether through the
operation of a sinking fund or otherwise) or purchased by the Corporation, or
which, if convertible or exchangeable, have been converted into shares of stock
or exchanged for property or indebtedness of the Corporation, shall have the
status of authorized and unissued shares of Preferred Stock and may be reissued
as a part of the series for which they were originally a part or may be
reclassified and reissued as part of a new series of Preferred Stock to be
created by resolution or resolutions of the Board or as part of any other series
of Preferred Stock, all subject to the conditions or restrictions on issuance
set forth in the resolution or resolutions adopted by the Board providing for
the establishment of any series of Preferred Stock and to any filing required by
law.
The relative rights, preferences, privileges and restrictions granted to or
imposed upon the respective classes of Common Stock, Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock and Series F Preferred Stock (the Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred
Stock, Series E Preferred Stock and Series F Preferred Stock being sometimes
referred to herein collectively as the "Preferred Stock") or the holders thereof
---------------
are as follows:
1. Dividends.
---------
The holders of the outstanding Preferred Stock shall be entitled to
receive, when and as declared by the Board, out of funds legally available
therefor, dividends at the per annum rate of $0.2064 per share of Series A
Preferred Stock, $0.32 per share of Series B Preferred Stock, $0.48 per share of
Series C Preferred Stock, $0.96 per share of Series D Preferred Stock, $1.36 per
share of Series E Preferred Stock and $0.96 per share of Series F Preferred
Stock, payable in preference and priority to any payment of any dividend on
Common Stock of the Corporation. Such dividends shall not be cumulative, and no
right to such dividends shall accrue to holders of Preferred Stock unless
declared by the Board. No dividends or other distributions shall be made with
respect to the Common Stock in any fiscal year, other than dividends payable
solely in Common Stock, until a dividend in the amount of at least $0.2064 per
share of Series A Preferred Stock, $0.32 per share of Series B Preferred Stock,
$0.48 per share of Series C Preferred Stock, $0.96 per share of Series D
Preferred Stock, $1.36 per share of Series E Preferred Stock and $0.96 per share
of Series F Preferred Stock has been paid to or declared and set apart upon all
shares of Preferred Stock during that fiscal year. After the holders of the
Preferred Stock have received their dividend preference as set forth above, any
dividends declared by the Board out of funds legally available therefor shall be
shared equally among all outstanding shares on an as-converted basis.
For purposes of this Section 1, unless the context otherwise requires, a
"distribution" shall mean the transfer of cash or other property without
consideration whether by way of dividend or otherwise,
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION PAGE 3 of 15
<PAGE>
payable other than in Common Stock, or the purchase or redemption of shares of
the Corporation (other than repurchases of Common Stock issued to or held by
employees, officers, directors or consultants of the Corporation or its
subsidiaries upon termination of their employment or services pursuant to
agreements providing for the right of said repurchase) for cash or property.
2. Liquidation Preference.
----------------------
In the event of any liquidation, dissolution, or winding up of the
Corporation, either voluntary or involuntary, distributions to the stockholders
of the Corporation shall be made in the following manner:
(a) The holders of the Preferred Stock shall be entitled to receive, prior
and in preference to any distribution of any of the assets or surplus funds of
the Corporation to the holders of the Common Stock by reason of their ownership
of such stock, the amount of $2.58 per share of Series A Preferred Stock, $4.00
per share of Series B Preferred Stock, $6.00 per share of Series C Preferred
Stock, $12.00 per share of Series D Preferred Stock, $20.56 per share of Series
E Preferred Stock and $12.00 per share of Series F Preferred then held by them
(adjusted for any subdivisions, combinations, consolidations or stock
distributions or stock dividends with respect to such shares effected after the
date this Certificate of Incorporation was filed with the Secretary of State of
the State of Delaware) plus an amount equal to all declared but unpaid dividends
on the Preferred Stock. If the assets and funds thus distributed among the
holders of the Preferred Stock shall be insufficient to permit the payment to
such holders of the full aforesaid preferential amount, then the entire assets
and funds of the Corporation legally available for distribution shall be
distributed ratably among the holders of the Preferred Stock in proportion to
the full aforesaid preferential amounts to which each such holder is entitled.
(b) After payment has been made to the holders of the Preferred Stock of
the full amounts to which they shall be entitled as set forth in Section 2(a)
above, then the entire remaining assets and funds of the Corporation legally
available for distribution, if any, shall be distributed ratably among the
holders of the Common Stock in a manner such that the amount distributed to each
holder of Common Stock shall equal the amount obtained by multiplying the entire
remaining assets and funds of the Corporation legally available for distribution
hereunder by a fraction, the numerator of which shall be the number of shares of
Common Stock then held by such holder, and the denominator of which shall be the
total number of shares of Common Stock then outstanding.
(c) For purposes of this Section 2, a merger or consolidation of the
Corporation with or into any other corporation or corporations, or a merger of
any other corporation or corporations into the Corporation, unless the
stockholders of the Corporation immediately following such transaction directly
or indirectly own greater than fifty percent (50%) of the total voting power of
the surviving or acquiring corporation or corporations, or a sale of all or
substantially all of the assets of the Corporation, shall be treated as a
liquidation, dissolution or winding up of the Corporation.
(d) Notwithstanding Sections 2(a) and 2(b) hereof, the Corporation may at
any time, out of funds legally available therefor, repurchase shares of Common
Stock of the Corporation issued to or held by employees, officers, directors or
consultants of the Corporation or its subsidiaries upon termination of their
employment or services, pursuant to any agreement providing for such right of
repurchase.
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION PAGE 4 of 15
<PAGE>
3. Conversion.
----------
The holders of the Preferred Stock shall have conversion rights as follows
(the "Conversion Rights"):
-----------------
(a) Right to Convert. Each share of Preferred Stock shall be convertible,
----------------
at the option of the holder thereof, at any time after the date of issuance of
such share, at the office of the Corporation or any transfer agent for the
Preferred Stock, into such number of fully paid and nonassessable shares of
Common Stock as is determined by dividing $2.58 (with respect to the Series A
Preferred Stock), $4.00 (with respect to the Series B Preferred Stock), $6.00
(with respect to the Series C Preferred Stock), $12.00 (with respect to the
Series D Preferred Stock), $16.95 (with respect to the Series E Preferred Stock)
and $12.00 (with respect to the Series F Preferred Stock) by the Conversion
Price, determined as hereinafter provided, in effect at the time of conversion.
The price at which shares of Common Stock shall be deliverable upon conversion
of shares of Preferred Stock shall initially be $1.29 per share of Common Stock
(with respect to the Series A Preferred Stock), $2.00 per share of Common Stock
(with respect to the Series B Preferred Stock), $3.00 per share of Common Stock
(with respect to the Series C Preferred Stock), $6.00 per share of Common Stock
(with respect to the Series D Preferred Stock), $8.475 per share of Common Stock
(with respect to the Series E Preferred Stock) and $12.00 per share of Common
Stock (with respect to the Series F Preferred Stock). The term "Conversion
----------
Price" as used herein shall refer to the respective Conversion Price of each
-----
series of Preferred Stock. Such initial Conversion Prices shall be subject to
adjustment as hereinafter provided.
Upon conversion, all declared and unpaid dividends on the Preferred
Stock shall be paid either in cash or in shares of Common Stock of the
Corporation, at the election of the Corporation, wherein the shares of Common
Stock shall be valued at the fair market value at the time of such conversion,
as determined by the Board.
(b) Automatic Conversion. Each share of Preferred Stock shall
--------------------
automatically be converted into shares of Common Stock at the then effective
Conversion Price upon either (i) the closing of a firm commitment underwritten
public offering pursuant to an effective registration statement under the
Securities Act of 1933, as amended, covering the offer and sale of Common Stock
for the account of the Corporation to the public with gross proceeds to the
Corporation (prior to underwriter commissions and offering expenses) of not less
than $10 million ($20 million with respect to the Series D Preferred Stock,
Series E Preferred Stock and Series F Preferred Stock) and at a per share price
of at least $4.50 ($9.00 with respect to the Series D Preferred Stock and Series
E Preferred Stock and $12.00 with respect to the Series F Preferred Stock)
(adjusted for any subdivisions, combinations, consolidation, or stock
distributions or stock dividends with respect to such shares effected after the
date this Certificate of Incorporation was filed with the Secretary of State of
the State of Delaware), or (ii) the receipt by the Corporation of the
affirmative vote at a duly noticed stockholders meeting or pursuant to a duly
solicited written consent of the holders of more than fifty percent (50%) of the
then outstanding shares of Preferred Stock in favor of the conversion of all of
the shares of Preferred Stock. In the event of the automatic conversion of the
Preferred Stock upon a public offering as set forth in subsection (i) hereof,
the person(s) entitled to receive the Common Stock issuable upon such conversion
of Preferred Stock shall not be deemed to have converted such Preferred Stock
until immediately prior to the closing of such sale of securities.
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION PAGE 5 of 15
<PAGE>
(c) Mechanics of Conversion. No fractional shares of Common Stock shall be
-----------------------
issued upon conversion of Preferred Stock. In lieu of any fractional shares to
which the holder would otherwise be entitled, the Corporation shall (after
aggregating all shares into which shares of Preferred Stock held by each holder
could be converted) pay cash equal to such fraction multiplied by the then-
effective Conversion Price. Before any holder of Preferred Stock shall be
entitled to convert the same into full shares of Common Stock and to receive
certificates therefor, he shall surrender the certificate or certificates
therefor, duly endorsed, at the office of the Corporation or of any transfer
agent for the Preferred Stock, and shall give written notice to the Corporation
at such office that he elects to convert the same; provided, however, that in
the event of an automatic conversion pursuant to Section 3(b), the outstanding
shares of Preferred Stock shall be converted automatically without any further
action by the holders of such shares and whether or not the certificates
representing such shares are surrendered to the Corporation or its transfer
agent; and provided, further, that the Corporation shall not be obligated to
issue certificates evidencing the shares of Common Stock issuable upon such
automatic conversion unless the certificates evidencing such shares of Preferred
Stock are either delivered to the Corporation or its transfer agent as provided
above, or the holder notifies the Corporation or its transfer agent that such
certificates have been lost, stolen or destroyed and executes an agreement
satisfactory to the Corporation to indemnify the Corporation from any loss
incurred by it in connection with such certificates. The Corporation shall, as
soon as practicable after such delivery, or such agreement and indemnification
in the case of a lost certificate, issue and deliver at such office to such
holder of Preferred Stock, a certificate or certificates for the number of
shares of Common Stock to which he shall be entitled as aforesaid and a check
payable to the holder in the amount of any cash amounts payable as the result of
a conversion into fractional shares of Common Stock. 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 Stock to be converted, or in the
case of automatic conversion immediately prior to the closing of the offering or
on the effective date of such written consent, and the person or persons
entitled to receive the shares of Common Stock issuable upon such conversion
shall be treated for all purposes as the record holder or holders of such shares
of Common Stock on such date.
(d) Adjustments to Conversion Prices of the Preferred Stock.
-------------------------------------------------------
(i) Special Definitions. For purposes of this Section 3(d), the
-------------------
following definitions shall apply:
(1) "Options" shall mean rights, options or warrants to subscribe
-------
for, purchase or otherwise acquire either Common Stock or Convertible
Securities.
(2) "Convertible Securities" shall mean any evidences of
----------------------
indebtedness, shares or other securities convertible into or exchangeable for
Common Stock.
(3) "Additional Shares of Common" shall mean all shares of Common
---------------------------
Stock issued (or, pursuant to Section 3(d)(iii), deemed to be issued) by the
Corporation after the Original Issue Date, other than shares of Common Stock
issued or issuable:
(A) upon conversion of shares of Series A Preferred Stock;
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock or Series F Preferred Stock;
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION PAGE 6 of 15
<PAGE>
(B) upon exercise of the warrants to purchase up to an
aggregate of 2,212,342 shares of Common Stock (subject to adjustment) dated as
of December 31, 1999, as the same may be amended from time to time;
(C) upon exercise of warrants to be issued to a supplier of
the Corporation to purchase shares of Common Stock on a net exercise basis;
provided, however, that in no event shall more than 400,000 shares (subject to
adjustment for any subdivision, combinations, consolidations or stock
distributions or stock dividends with respect to the Common Stock) of Common
Stock be actually issued pursuant to these warrants;
(D) to officers, directors or employees of, or consultants to,
the Corporation pursuant to a stock grant, option plan or purchase plan or other
employee stock incentive program or agreement approved by the Board;
(E) as a dividend or distribution on Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock or Series F Preferred Stock;
(F) in a transaction described in Section 3(e); or
(G) by way of dividend or other distribution on shares of
Common Stock excluded from the definition of Additional Shares of Common by the
foregoing clauses (A), (B), (C), (D), (E), (F) or this clause (G).
(4) "Original Issue Date" shall mean the date of the filing of
-------------------
this Certificate of Incorporation with the Secretary of State of the State of
Delaware.
(ii) No Adjustment of Conversion Price. No adjustment in the Conversion
---------------------------------
Price shall be made in respect of the issuance of Additional Shares of Common
pursuant to this Section 3(d) unless the consideration per share for an
Additional Share of Common issued or deemed to be issued by the Corporation is
less than the Conversion Price in effect on the date of, and immediately prior
to, such issue.
(iii) Deemed Issue of Additional Shares of Common.
-------------------------------------------
(1) Options and Convertible Securities. 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 entitled to receive any such
Options or Convertible Securities, then the maximum number of shares (as set
forth in the instrument relating thereto without regard to any provisions
contained therein for a subsequent adjustment of such number) of Common Stock
issuable upon the exercise of such Options or, in the case of Convertible
Securities and Options therefor, the exercise of such Options and 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 3(d)(v) hereof) of
such Additional Shares of Common would be less than the Conversion Price in
effect on the date of and
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION PAGE 7 of 15
<PAGE>
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) except as provided in Section 3(d)(iii)(B), no further
adjustment in the Conversion Price will be made upon the subsequent issue of
Convertible Securities or shares of Common Stock 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 change in the
consideration payable to the Corporation, or change in the number of shares of
Common Stock issuable, upon the exercise, conversion or exchange thereof (other
than under or by reason of provisions designed to protect against dilution), the
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 any such increase or decrease becoming effective, be
recalculated to reflect such increase or decrease insofar as it affects such
Options or the rights of conversion or exchange under such Convertible
Securities; and
(C) no readjustment pursuant to clause (B) above shall have
the effect of increasing the Conversion Price to an amount which exceeds the
lower of (1) the Conversion Price on the original adjustment date or (2) the
Conversion Price that would have resulted from any issuance of Additional Shares
of Common between the original adjustment date and such readjustment date.
(iv) Weighted-Average Adjustment of Conversion Price of Preferred
------------------------------------------------------------
Stock Upon Issuance of Additional Shares of Common. In the event the Corporation
--------------------------------------------------
shall, at any time after the Original Issue Date, issue Additional Shares of
Common (including Additional Shares of Common deemed to be issued pursuant to
Section 3(d)(iii)) without consideration or for a consideration per share less
than the Conversion Price of the Series B Preferred Stock, Series C Preferred
Stock, the Series D Preferred Stock, the Series E Preferred Stock or the Series
F Preferred Stock in effect on the date of and immediately prior to such issue
(such issuance price being referred to herein as the "Dilution Price"), then and
--------------
in each such event the Conversion Price of each of the Series B Preferred Stock,
the Series C Preferred Stock, the Series D Preferred Stock, the Series E
Preferred Stock or the Series F Preferred Stock, as the case may be, shall be
reduced to a price (calculated to the nearest cent) determined by multiplying
each such Conversion Price by a fraction, the numerator of which shall be the
number of shares of Common Stock issuable upon conversion of all outstanding
shares of the corresponding series of Preferred Stock, immediately prior to such
issue plus the number of shares of Common Stock which the aggregate
consideration received by the Corporation for the total number of Additional
Shares of Common so issued (including Additional Shares of Common deemed to be
issued pursuant to Section 3(d)(iii)) would purchase at such Conversion Price;
and the denominator of which shall be the number of shares of Common Stock
issuable upon conversion of all outstanding shares of the corresponding series
of Preferred Stock, immediately prior to such issue plus the number of such
Additional Shares of Common so issued (including Additional Shares of Common
deemed to be issued pursuant to Section 3(d)(iii)).
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION PAGE 8 of 15
<PAGE>
(v) Determination of Consideration. For purposes of this
------------------------------
Section 3(d), the consideration received by the Corporation for the issue of any
Additional Shares of Common shall be computed as follows:
(1) Cash and Property: Such consideration shall:
-----------------
(A) insofar as it consists of cash, be computed at the
aggregate amount of cash received by the Corporation;
(B) insofar as it consists of property other than cash,
be computed at the fair value thereof at the time of such issue, as determined
by Board in the good faith exercise of its reasonable business judgment; and
(C) 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 (A) and (B) above, as determined in
good faith by the Board.
(2) 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 3(d)(iii)(1), relating to Options and
Convertible Securities, shall be determined by dividing
(A) 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 for a subsequent adjustment of such consideration) 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
(B) the maximum number of shares of Common Stock (as
set forth in the instruments relating thereto, without regard to any provision
contained therein for a subsequent adjustment of such number) issuable upon the
exercise of such Options or the conversion or exchange of such Convertible
Securities.
(e) Adjustments to Conversion Prices of the Preferred Stock.
-------------------------------------------------------
(i) Adjustments for Subdivisions, Stock Dividends, Combinations or
--------------------------------------------------------------
Consolidations of Common Stock. In the event the Corporation effects a
------------------------------
subdivision or combination of its outstanding shares of Common Stock into a
greater or smaller number of shares without a proportionate and corresponding
subdivision or combination of its outstanding shares of any series of Preferred
Stock, then and in each such event the Conversion Price with respect to such
series of Preferred Stock shall be proportionally decreased or increased,
respectively.
(ii) Adjustments for Other Dividends and Distributions. In the event
-------------------------------------------------
the Corporation at any time or from time to time makes, or fixes a record date
for the determination of
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION PAGE 9 of 15
<PAGE>
holders of Common Stock entitled to receive, any distribution payable in
securities, evidences of indebtedness, assets or other property of the
Corporation other than shares of Common Stock and other than as otherwise
adjusted in this Section 3 or in Section 1 in connection with a dividend, then
and in each such event provision shall be made so that the holders of Preferred
Stock shall receive upon conversion thereof, in addition to the number of shares
of Common Stock receivable thereupon, the amount of property, evidences of
indebtedness, assets or number of securities of the Corporation which they would
have received had their shares of Preferred Stock been converted into Common
Stock on the date of such event and had they thereafter, during the period from
the date of such event to and including the date of conversion, retained such
securities receivable by them as aforesaid during such period, subject to all
other adjustments called for during such period under this Section 3 with
respect to the rights of the holders of the Preferred Stock.
(iii) Adjustments for Reclassification, Exchange and Substitution. If the
-----------------------------------------------------------
Common Stock issuable upon conversion of the Preferred Stock shall be changed
into the same or a different number of shares of any other class or classes of
stock or other securities or property, whether by capital reorganization,
reclassification or otherwise, the Conversion Price then in effect shall,
concurrently with the effectiveness of such reorganization or reclassification,
be proportionately adjusted such that the Preferred Stock shall be convertible
into, in lieu of the number of shares of Common Stock which the holders would
otherwise have been entitled to receive, a number of shares of such other class
or classes of stock or other securities or property equivalent to the number of
shares of Common Stock that would have been subject to receipt by the holders
upon conversion of the Preferred Stock immediately before that change and, in
any such case, appropriate adjustment (as determined by the Board) shall be made
in the application of the provisions herein set forth with respect to the rights
and interest thereafter of the holders of the Preferred Stock, to the end that
the provisions set forth herein (including provisions with respect to change in
and other adjustments of the Conversion Price) shall thereafter be applicable,
as nearly as reasonably may be, in relation to any shares of stock or other
property thereafter deliverable upon the conversion of the Preferred Stock.
(b) No Impairment. Except as permitted by applicable law and as provided in
-------------
Section 5, the Corporation will not, by amendment of its Restated Certificate 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 3 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 Stock against impairment.
(c) Certificate as to Adjustments. Upon the occurrence of each adjustment
-----------------------------
or readjustment of the Conversion Price pursuant to this Section 3, 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 Stock 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 Stock, furnish or cause to be furnished to such holder a like
certificate setting forth (i) such adjustments and readjustments, (ii) the
Conversion Price at the time in effect, and (iii) the number of shares of Common
Stock and the amount, if any, of other property which at the time would be
received upon the conversion of Preferred Stock.
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION PAGE 10 of 15
<PAGE>
(d) Notices of Record Date. In the event that this Corporation shall
----------------------
propose at any time:
(i) to declare any dividend or distribution upon its Common
Stock, 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;
(ii) 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;
(iii) to effect any reclassification or recapitalization of its
Common Stock outstanding involving a change in the Common Stock; or
(iv) 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 Stock:
(1) at least 20 days' prior written notice of the date on
which a record shall be taken for such dividend, distribution or subscription
rights (and specifying the date on which the holders of Common Stock shall be
entitled thereto) or for determining rights to vote in respect of the matters
referred to in (iii) and (iv) above; and
(2) in the case of the matters referred to in (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 Common Stock shall
be entitled to exchange their Common Stock for securities or other property
deliverable upon the occurrence of such event).
Each such written notice shall be delivered personally or by messenger or
given by express or first class mail, postage prepaid, addressed to the holders
of Preferred Stock at the address for each such holder as shown on the books of
the Corporation.
4. Voting Rights.
-------------
Except as otherwise required by law or by Section 5 hereof, the holder of
each share of Common Stock issued and outstanding shall have one vote with
respect to such share and the holder of each share of Preferred Stock shall be
entitled with respect to such share to a number of votes equal to the number of
shares of Common Stock into which such share of Preferred Stock could be
converted at the record date for determination of the stockholders entitled to
vote on such matters, or, if no such record date is established, at the date
such vote is taken or any written consent of stockholders is solicited, such
votes to be counted together with all other shares of stock of the Corporation
having general voting power and not separately as a class. Holders of Common
Stock and Preferred Stock shall be entitled to notice of any stockholders'
meeting in accordance with the Bylaws of the Corporation. Fractional votes by
the holders of Preferred Stock shall not, however, be permitted and any
fractional voting rights shall (after aggregating all shares into which shares
of Preferred Stock held by each holder could be converted) be rounded to the
nearest whole number.
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION PAGE 11 of 15
<PAGE>
The holders of the outstanding shares of any class or series shall be
entitled to vote as a class or series upon a proposed amendment if the amendment
would increase or decrease the aggregate number of authorized shares of such
class or series, increase or decrease the par value of the shares of such class
or series, or adversely affect, alter or change the powers, preferences, or
special rights of the shares of such class or series. If any proposed amendment
would alter or change the powers, preferences or special rights of one or more
class or series so as to affect them adversely, but shall not so affect the
entire class or series or shall affect one series differently than the other
series, then only the shares of the class or series so affected by the amendment
shall be considered a separate class or series for the purposes of this
paragraph.
5. Covenants.
---------
In addition to any other rights provided by law, so long as any Preferred
Stock shall be outstanding, 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 Preferred Stock, voting together as a
single class on an as converted to Common Stock basis:
(a) repurchase or redeem any Preferred Stock;
(b) repurchase any Common Stock for a price in excess of $25,000 in
any twelve month period; provided, however, the Corporation may repurchase
Common Stock from directors, officers, employees and consultants of the
Corporation without approval of the Preferred Stock under this Section 5;
(c) declare or pay dividends on or make any distribution on account of
Common Stock;
(d) permit any subsidiary of the Corporation to sell common or
preferred stock, except to the Corporation;
(e) increase or decrease the authorized number of shares of Preferred
Stock;
(f) except for designations of rights and preferences of the
undesignated Preferred Stock, amend or repeal any provision of, or add any
provision to, the Restated Certificate if such action would materially and
adversely alter or change the preferences, rights, privileges or powers of, or
the restrictions provided for the benefit of, any Preferred Stock;
(g) authorize a liquidation, dissolution, recapitalization or
reorganization of the Corporation, or a sale or transfer of all or substantially
all of the assets of the Corporation or a merger or consolidation of the
Corporation if, as a result of such merger or consolidation, the stockholders of
the Corporation shall own less than 50% of the voting securities of the
surviving corporation; or
(h) issue any additional class or series of preferred stock with
rights, privileges and preferences superior to those of the Series E Preferred
Stock or the Series F Preferred Stock; or
(i) enter into any transaction with any Affiliate (as hereafter
defined) of the Corporation, excluding (i) reasonable and customary directors'
fees, indemnification and similar
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION PAGE 12 of 15
<PAGE>
arrangements and payments thereunder, (ii) any issuance of securities, or other
payments, awards or grants in cash, securities or otherwise pursuant to, or the
funding of, employment arrangements, stock options and stock ownership, or
similar plans approved by the Board, (iii) loans or advances to employees of the
Corporation or any of its subsidiaries in the ordinary course of business or
less than $50,000 in value (to the extent approved by the Board), (vi)
transactions by the Corporation or any of its subsidiaries with any suppliers,
vendors, customers or other purchasers or sellers of goods and services to the
Corporation or any of its subsidiaries in the ordinary course of business
consistent with past practice, and (v) transactions pursuant to any agreement as
in effect on the date hereof. For purposes hereof, the term "Affiliate" shall
mean any individual, corporation, partnership, limited liability company, joint
venture, trust or other entity who, directly or indirectly, controls, is
controlled by or is under common control with the Corporation.
FIFTH: In furtherance and not in limitation of the powers conferred by
statute, the Board is expressly authorized to make, alter, amend or repeal the
Bylaws of the Corporation.
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: The exact number of directors shall be determined in accordance
with the Bylaws of the Corporation.
EIGHT: Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
NINTH: 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 provisions contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board or in the Bylaws of the Corporation.
TENTH: To the fullest extent permitted by the General Corporation Law as
the same exists or as may hereafter be amended, a director of the Corporation
shall not be personally liable to the Corporation or its stockholders for
monetary damages for breach 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 or officer 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 TENTH, nor the adoption of
any provision of this Certificate of Incorporation inconsistent with this
Article TENTH, shall eliminate or reduce the effect of this Article TENTH, in
respect of any matter occurring, or any cause of action, suit, claim or
proceeding that, but for this Article TENTH, would accrue or arise, prior to
such amendment, repeal or adoption of an inconsistent provision.
ELEVENTH: The Corporation reserves the right to amend, alter, change or
repeal any provisions contained in this Amended and Restated Certificate of
Incorporation, in the manner now or
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION PAGE 13 of 15
<PAGE>
hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
(3) This Amended and Restated Certificate of Incorporation has been duly
adopted by the Board 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 (1) the holders of a majority of the outstanding Common Stock and Preferred
Stock (voting together as one class on an as converted to Common Stock basis)
entitled to vote thereon and (b) the holders of a majority of the outstanding
Preferred Stock (voting together as one class on an as converted to Common Stock
basis) entitled to vote thereon.
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION PAGE 14 of 15
<PAGE>
We, THE UNDERSIGNED, being the President and Secretary, respectively, of
the Corporation, hereby declare and certify, under penalties of perjury, that
this is my act and deed and the facts herein stated are true, and accordingly
have hereunto set my hand this 14th day of June, 2000.
/S/ James A. Fontaine
---------------------
James A. Fontaine
President
/S/ Tamara G. Mattison
----------------------
Tamara G. Mattison
Secretary
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION PAGE 15 of 15
