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EXHIBIT 3.3
RESTATED CERTIFICATE OF INCORPORATION
OF TIVA, INC.
Tvia, Inc., a corporation organized and existing under the laws of the
State of Delaware, hereby certifies as follows:
FIRST: The name of the corporation is Tvia, Inc.
SECOND: The original Certificate of Incorporation of the corporation
was filed with the Secretary of State of the State of Delaware on April 28, 2000
and the original name of the corporation was Tvia (Delaware), Inc. A Certificate
of Merger whereby Tvia, Inc., a California corporation, was merged with and into
the corporation and the name of the corporation was changed to Tvia, Inc., was
filed with the Secretary of State of the State of Delaware on _______, 2000.
THIRD: Pursuant to Sections 242 and 245 of the General Corporation
Law of the State of Delaware, this Restated Certificate of Incorporation
restates, integrates and further amends the provisions of the Certificate of
Incorporation of the corporation.
FOURTH: The Certificate of Incorporation of the corporation shall be
amended and restated to read in full as follows:
ARTICLE I
The name of the corporation is Tvia, Inc.
ARTICLE II
The address of the registered office of the corporation in the State
of Delaware is 1013 Centre Road, in the City of Wilmington, County of New
Castle. The name of its registered agent at such address is The Corporation
Services Company.
ARTICLE III
The nature of the business or purposes to be conducted or promoted is
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
ARTICLE IV
A. Classes of Stock. The total number of shares of all classes of
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classes of capital stock that the corporation shall have authority to issue is
one hundred thirty million (130,000,000), of which one hundred twenty five
million (125,000,000) shares of the par value of one thousandth of one cent
($.001) each shall be Common Stock (the "Common Stock") and five million
(5,000,000) shares of the par value of one thousandth of one cent ($.001) each
shall be Preferred Stock (the "Preferred Stock"). The number of authorized
shares of Common Stock
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or Preferred Stock may 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 then outstanding shares of Common Stock, without a vote of the
holders of the Preferred Stock, or of any series thereof, unless a vote of any
such Preferred Stock holders is required pursuant to the provisions established
by the Board of Directors of the corporation (the "Board of Directors") in the
resolution or resolutions providing for the issue of such Preferred Stock, and
if such holders of such Preferred Stock are so entitled to vote thereon, then,
except as may otherwise be set forth in this Restated Certificate of
Incorporation, the only stockholder approval required shall be the affirmative
vote of a majority of the combined voting power of the Common Stock and the
Preferred Stock so entitled to vote.
B. Preferred Stock. The Preferred Stock may be issued in any
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number of series, as determined by the Board of Directors. The Board of
Directors is expressly authorized to provide for the issue, in one or more
series, of all or any of the remaining shares of Preferred Stock and, in the
resolution or resolutions providing for such issue, to establish for each such
series the number of its shares, the voting powers, full or limited, of the
shares of such series, or that such shares shall have no voting powers, and the
designations, preferences and relative, participating, optional or other special
rights of the shares of such series, and the qualifications, limitations or
restrictions thereof. The Board of Directors is also expressly authorized
(unless forbidden in the resolution or resolutions providing for such issue) to
increase or decrease (but not below the number of shares of the series then
outstanding) the number of shares of any series subsequent to the issuance of
shares of that series. In case the number of shares of any such series shall be
so decreased, the shares constituting such decrease shall resume the status that
they had prior to the adoption of the resolution originally fixing the number of
shares of such series.
C. Common Stock.
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1. Relative Rights of Preferred Stock and Common Stock. All
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preferences, voting powers, relative, participating, optional or other special
rights and privileges, and qualifications, limitations, or restrictions of the
Common Stock are expressly made subject and subordinate to those that may be
fixed with respect to any shares of the Preferred Stock.
2. Voting Rights. Except as otherwise required by law or this
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Restated Certificate of Incorporation, each holder of Common Stock shall have
one vote in respect of each share of stock held by such holder of record on the
books of the corporation for the election of directors and on all matters
submitted to a vote of stockholders of the corporation.
3. Dividends. Subject to the preferential rights of the
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Preferred Stock, the holders of shares of Common Stock shall be entitled to
receive, when and if declared by the Board of Directors, out of the assets of
the corporation which are by law available therefor, dividends payable either in
cash, in property or in shares of capital stock.
4. Dissolution, Liquidation or Winding Up. In the event of any
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dissolution, liquidation or winding up of the affairs of the corporation, after
distribution in full of the preferential amounts, if any, to be distributed to
the holders of shares of the Preferred Stock, holders of Common Stock shall be
entitled, unless otherwise provided by law or this Restated
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Certificate of Incorporation, to receive all of the remaining assets of the
corporation of whatever kind available for distribution to stockholders ratably
in proportion to the number of shares of Common Stock held by them respectively.
ARTICLE V
In furtherance and not in limitation of the powers conferred by the
laws of the State of Delaware:
A. The Board of Directors is expressly authorized to adopt, amend or
repeal the by-laws of the corporation, provided, however, that the by-laws may
only be amended in accordance with the provisions thereof.
B. Elections of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
C. The books of the corporation may be kept at such place within or
without the State of Delaware as the by-laws of the corporation may provide or
as may be designated from time to time by the Board of Directors.
ARTICLE VI
A. Number of Directors. The authorized number of directors of the
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corporation shall be determined from time to time by resolution adopted by the
affirmative vote of a majority of the entire Board of Directors at any regular
or special meeting of such Board, within any limits prescribed in the by-laws of
the corporation.
B. Classes of Directors. The Board of Directors, other than those
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directors elected by the holders of any series of Preferred Stock as provided
for or fixed pursuant to the provisions of Article IV of this Restated
Certificate of Incorporation, shall be divided into three classes, designated
Class I, Class II and Class III, as nearly equal in number as possible, and the
term of office of directors of one class shall expire at each annual meeting of
stockholders, and in all cases as to each director until his or her successor
shall be elected and shall qualify or until his or her earlier resignation,
removal from office, death or incapacity. Additional directorships resulting
from an increase in number of directors shall be apportioned among the classes
as equally as possible. The initial term of office of directors of Class I shall
expire at the annual meeting of stockholders in 2001, the initial term of office
of directors of Class II shall expire at the annual meeting of stockholders in
2002, and the initial term of office of directors of Class III shall expire at
the annual meeting of stockholders in 2003. At each annual meeting of
stockholders the number of directors equal to the number of directors of the
class whose term expires at the time of such meeting (or, if less, the number of
directors properly nominated and qualified for election) shall be elected to
hold office until the third succeeding annual meeting of stockholders after
their election.
C. Vacancies. Except as otherwise provided for or fixed pursuant to
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the provisions of Article IV of this Restated Certificate of Incorporation
relating to the rights of the holders of any series of Preferred Stock to elect
additional directors, and subject to the provisions hereof, newly created
directorships resulting from any increase in the authorized number of
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directors, any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal, or other cause, may be filled only by
the affirmative vote of a majority of the remaining directors then in office,
even though less than a quorum of the Board of Directors. Any director elected
in accordance with the preceding sentence shall hold office for the remainder of
the full term of the class of directors in which the new directorship was
created or in which the vacancy occurred, and until such director's successor
shall have been duly elected and qualified or until his or her earlier
resignation, removal from office, death or incapacity. Subject to the provisions
of this Restated Certificate of Incorporation, no decrease in the number of
directors constituting the Board of Directors shall shorten the term of any
incumbent director.
ARTICLE VII
No action required or permitted to be taken at any annual or special
meeting of the stockholders may be taken without a meeting and the power of
stockholders to consent in writing, without a meeting, to the taking of any
action is specifically denied. Special meetings of the stockholders of the
corporation may be called only by the Chairman of the Board or the Chief
Executive Officer of the corporation or by a resolution adopted by the
affirmative vote of a majority of the Board of Directors.
ARTICLE VIII
A. Limitation on Liability. A director of the corporation shall not
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be personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability (1) for any
breach of the director's duty of loyalty to the corporation or its stockholders;
(2) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; (3) under Section 174 of the Delaware
General Corporation Law; or (4) for any transaction from which the director
derived an improper personal benefit.
If the Delaware General Corporation Law hereafter is amended to
further eliminate or limit the liability of directors, then the liability of a
director of the corporation, in addition to the limitation on personal liability
provided herein, shall be limited to the fullest extent permitted by the amended
Delaware General Corporation Law.
B. Indemnification. Each person who is or is made a party or is
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threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer
of the corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged action
in an official capacity as a director, officer, employee or agent or in any
other capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the corporation to provide broader
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indemnification rights than said law permitted the corporation to provide prior
to such amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of his or her heirs, executors and administrators; provided,
however, that, except as provided in the second paragraph hereof, the
corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only if
such proceeding (or part thereof) was authorized by the Board of Directors of
the corporation. The right to indemnification conferred in this section shall be
a contract right and shall include the right to be paid by the corporation for
any expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that, if the Delaware General Corporation Law
requires, the payment of such expenses incurred by a director or officer in his
or her capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of a proceeding, shall be made only upon delivery to
the corporation of an undertaking, by or on behalf of such director or officer,
to repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this section or
otherwise. The corporation may, by action of its Board of Directors, provide
indemnification to employees and agents of the corporation with the same scope
and effect as the foregoing indemnification of directors and officers.
If a claim under the first paragraph of this section is not paid in
full by the corporation within thirty (30) days after a written claim has been
received by the corporation, the claimant may at any time thereafter bring suit
against the corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the corporation) that the
claimant has not met the standards of conduct which make it permissible under
the Delaware General Corporation Law for the corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall be
on the corporation. Neither the failure of the corporation (including its Board
of Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in this
section shall not be exclusive of any other right which any person may have or
hereafter acquire under any statute, provision of the Restated Certificate of
Incorporation, by-law, agreement, vote of stockholders or disinterested
directors or otherwise.
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C. Insurance. The corporation may maintain insurance, at its
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expense, to protect itself and any director, officer, employee or agent of the
corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not the
corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
D. Repeal and Modification. Any repeal or modification of the
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foregoing provisions of this Article VIII shall not adversely affect any right
or protection of any director, officer, employee or agent of the corporation
existing at the time of such repeal or modification. To the fullest extent
permitted by applicable law, the Corporation is authorized to provide
indemnification of (and advancement of expenses to) agents of the Corporation
(and any other persons to which Delaware law permits the Corporation to provide
indemnification) through bylaw provisions, agreements with such agents or other
persons, vote of stockholders or disinterested directors or otherwise, in excess
of the indemnification and advancement otherwise permitted by Section 145 of the
Delaware General Corporation Law, subject only to limits created by applicable
Delaware law (statutory or non-statutory), with respect to actions for breach of
duty to the Corporation, its stockholders, and others.
ARTICLE IX
The Board of Directors is expressly empowered to adopt, amend or repeal the
by-laws of the corporation; provided, however, that any adoption, amendment or
repeal of the by-laws of the corporation by the Board of Directors shall require
the approval of at least sixty-six and two-thirds percent (66-2/3%) of the total
number of authorized directors (whether or not there exist any vacancies in
previously authorized directorships at the time any resolution providing for
adoption, amendment or repeal is presented to the Board of Directors). The
stockholders shall also have the power to adopt, amend or repeal the by-laws of
the corporation, provided, however, that in addition to any vote of the holders
of any class or series of stock of the corporation required by law or by this
Restated Certificate of Incorporation, 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 stock of the corporation entitled to vote
generally in the election of directors, voting together as a single class, shall
be required for such adoption, amendment or repeal by the stockholders of any
provisions of the by-laws of the corporation.
ARTICLE X
Notwithstanding any other provision of this Restated Certificate of
Incorporation, 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 stock of the corporation entitled to vote generally in the
election of directors, voting together as a single class, shall be required to
amend in any respect or repeal this Article X, or Articles VI, VII, VIII and IX.
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FIFTH: This Restated Certificate of Incorporation was duly adopted by
the Board of Directors of the corporation.
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SIXTH: This Restated Certificate of Incorporation was duly adopted by
the stockholders in accordance with the provisions of Sections 242 and 245 of
the General Corporation Law of the State of Delaware. Written consent of the
stockholders has been given with respect to this Restated Certificate of
Incorporation in accordance with Section 228 of the General Corporation Law of
the State of Delaware, and written notice has been given as provided in Section
228.
IN WITNESS WHEREOF, Tvia, Inc. has caused this certificate to be signed by
its President and Secretary this ___ day of _______, 2000.
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Jack Guedj, President
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Michael Hoberg, Secretary
