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EXHIBIT 3.2
RESTATED CERTIFICATE OF INCORPORATION
OF
STRATOS LIGHTWAVE, INC.
(Originally incorporated on April 12, 2000)
ARTICLE I
The name of the corporation is Stratos Lightwave, Inc. (hereinafter
referred to as the "Corporation").
ARTICLE II
The address of the registered office of the Corporation in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, 19801, in the City of
Wilmington, County of New Castle. The name of the registered agent of the
Corporation at that address is The Corporation Trust Company.
ARTICLE III
A. PURPOSE. Subject to the provisions of Section D of this Article III,
the purpose of the Corporation is to engage in any lawful act or activity for
which a corporation may be organized under the Delaware General Corporation Law
(the "DGCL").
B. DEFINITIONS. For purposes of this Article III only, the following
terms shall have the following meanings:
"AFFILIATE" of a Person shall mean any Person that directly, or
indirectly through one or more intermediaries, controls, is controlled by, or is
under common control with, the specified Person. "CONTROL" for this purpose
shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Person, whether through
the ownership of voting securities, by contract, or otherwise.
"CORPORATE OPPORTUNITY" shall mean an investment or business
opportunity or prospective economic advantage in which the Corporation could,
but for the provisions of this Article III, have an interest or expectancy.
"CORPORATION" shall mean the Corporation and all corporations,
partnerships, joint ventures, associations and other entities in which the
Corporation beneficially owns (directly or indirectly) 50% or more of the
outstanding voting stock, voting power, partnership interests or similar voting
interests.
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"PARENT" shall mean Methode Electronics, Inc., a Delaware corporation,
and all corporations, partnerships, joint ventures, associations and other
entities (other than the Corporation, as defined above) in which Parent
beneficially owns (directly or indirectly) 50% or more of the outstanding voting
stock, voting power, partnership interests or similar voting interests.
"PERSON" shall mean an individual, corporation, partnership, limited
liability company, trust, unincorporated organization or other entity.
C. COMPETING ACTIVITIES. Except as otherwise expressly provided in a
written agreement between Parent and the Corporation, (i) Parent and its
officers, directors, agents, stockholders and Affiliates may engage or invest
in, independently or with others, any business activity of any type or
description, including without limitation those that might be the same as or
similar to the Corporation's business; (ii) neither the Corporation, nor any
other stockholder of the Corporation shall have any right in or to such business
activities or ventures or to receive or share in any income or proceeds derived
therefrom; and (iii) to the extent required by applicable law in order to
effectuate the purpose of this provision, the Corporation shall have no interest
or expectancy, and specifically renounces any interest or expectancy, in any
such business activities or ventures.
D. CORPORATE OPPORTUNITIES.
(i) If Parent (or, except as set forth below, any of its
officers, directors, agents, stockholders or Affiliates) acquires knowledge of a
potential transaction or matter which may be a Corporate Opportunity or
otherwise is then exploiting any Corporate Opportunity, the Corporation shall
have no interest in such Corporate Opportunity and no expectancy that such
Corporate Opportunity be offered to it, any such interest or expectancy being
hereby renounced, so that, as a result of such renunciation, such Person, (a)
shall have no duty to communicate or present such Corporate Opportunity to the
Corporation, shall have the right to hold any such Corporate Opportunity for its
(and its officers', directors', agents', stockholders' or Affiliates') own
account or to recommend, sell, assign or transfer such Corporate Opportunity to
Persons other than the Corporation, and (b) shall not breach any fiduciary duty
as a stockholder of the Corporation or otherwise by reason of the fact that such
Person pursues or acquires such Corporate Opportunity for itself, directs,
sells, assigns or transfers such Corporate Opportunity to another Person, or
does not communicate information regarding such Corporate Opportunity to the
Corporation.
(ii) Notwithstanding the provisions of Section D(i) of this
Article III, the Corporation does not renounce any interest or expectancy it may
have in any Corporate Opportunity that is offered to any person (a) who is an
officer of the Corporation and who is also a director but not an officer or
employee of Parent; (b) who is a director but not an officer of the Corporation
and who is also a director, officer or employee of Parent, if such opportunity
is expressly offered to such person in his or her capacity as a director of the
Corporation; or (c) who is an officer or employee of Parent and an officer of
the Corporation if such opportunity is
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expressly offered to such person in his or her capacity as an officer or
employee of the Corporation.
(iii) For purposes of this Article III only, a director of the
Corporation who is Chairman of the Board of Directors of the Corporation or of a
committee thereof shall not be deemed to be an officer of the Corporation by
reason of holding such position (without regard to whether such position is
deemed an office of the Corporation under the Bylaws of the Corporation), unless
such person is a full-time employee of the Corporation.
(iv) Anything in this Restated Certificate of Incorporation to
the contrary notwithstanding, (a) the initial clause of Section A, and Sections
B, C, D and E, of this Article III shall no longer be in effect or operative,
and can be eliminated from this Restated Certificate of Incorporation, at such
time as Parent ceases to beneficially own Common Stock representing at least 20%
of the total voting power of all classes of outstanding capital stock of the
Corporation entitled to vote in the election of directors and no person who is a
director or officer of the Corporation is also a director or officer of Parent;
and (b) in addition to any vote of the stockholders required by law, until such
time as Parent ceases to beneficially own Common Stock representing at least 20%
of the total voting power of all classes of outstanding capital stock of the
Corporation entitled to vote in the election of directors, the affirmative vote
of the holders of more than 80% of the total voting power of all such classes of
outstanding capital stock of the Corporation shall be required to alter, amend
or repeal in a manner adverse to the interests of Parent, or adopt any provision
adverse to the interests of Parent and inconsistent with, any provision of this
Article III. Neither the alteration, amendment or repeal of this Article III nor
the adoption of any provision of this Restated Certificate of Incorporation
inconsistent with this Article III shall eliminate or reduce the effect of this
Article III in respect of any matter occurring, or any cause of action, suit or
claim that, but for this Article III, would accrue or arise prior to such
alteration, amendment, repeal or adoption.
E. NOTICE TO HOLDERS. Any Person purchasing or otherwise acquiring any
interest in shares of the capital stock of the Corporation shall be deemed to
have notice of and to have consented to the provisions of this Article III.
ARTICLE IV
A. The total number of shares of all classes of stock which the
Corporation shall have authority to issue is two hundred and five million
(205,000,000), consisting of two hundred million (200,000,000) shares of Common
Stock, par value one cent ($.01) per share (the "Common Stock") and five million
(5,000,000) shares of Preferred Stock, par value one cent ($.01) per share (the
"Preferred Stock").
B. The board of directors is authorized, subject to any limitations
prescribed by law, to provide for the issuance of shares of Preferred Stock in
series, and by filing a certificate pursuant to the applicable law of the State
of Delaware (such certificate being hereinafter referred to as a "Preferred
Stock Designation"), to establish from time to time the number of shares to be
included in each such series, and to fix the designation, powers, preferences,
and rights of the
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shares of each such series and any qualifications, limitations or restrictions
thereof. The number of authorized shares of 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 Common Stock, without a
vote of the holders of the Preferred Stock, or of any series thereof, unless a
vote of any such holders is required pursuant to the terms of any Preferred
Stock Designation.
C. Each outstanding share of Common Stock shall entitle the holder
thereof to one vote on each matter properly submitted to the stockholders of the
Corporation for their vote; PROVIDED, HOWEVER, that, except as otherwise
required by law, holders of Common Stock shall not be entitled to vote on any
amendment to this Restated Certificate of Incorporation (including any
Certificate of Designations relating to any series of Preferred Stock) that
relates solely to the terms of one or more outstanding series of Preferred Stock
if the holders of such affected series are entitled, either separately or
together as a class with the holders of one or more other such series, to vote
thereon pursuant to this Restated Certificate of Incorporation (including any
Certificate of Designations relating to any series of Preferred Stock).
ARTICLE V
The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
A. The business and affairs of the Corporation shall be
managed by or under the direction of the board of directors. In
addition to the powers and authority expressly conferred upon them by
statute or by this Restated Certificate of Incorporation or the by-laws
of the Corporation, the directors are hereby empowered to exercise all
such powers and do all such acts and things as may be exercised or done
by the Corporation.
B. The directors of the Corporation need not be elected by
written ballot unless the by-laws so provide.
C. Effective at such time as Methode Electronics, Inc., a
Delaware corporation, ceases to be the beneficial owner of an
aggregate of at least a majority of the then outstanding shares of
Common Stock (the "Trigger Date"), any action required or permitted to
be taken by the stockholders of the Corporation must be effected at a
duly called annual or special meeting of stockholders of the
Corporation and may not be effected by any consent in writing by such
stockholders. Prior to the Trigger Date, unless otherwise provided by
law, any action which may otherwise be taken at any meeting of the
stockholders may be taken without a meeting and without prior notice,
if a written consent describing such actions is signed by the holders
of outstanding shares having not less than the minimum number of votes
which would be necessary to authorize or take such action at a meeting
at which all shares entitled to vote thereon were present and voted.
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D. Special meetings of stockholders of the Corporation may be
called only by the Chairman of the Board or the President or by the
board of directors acting pursuant to a resolution adopted by a
majority of the Whole Board. For purposes of this Certificate of
Incorporation, the term "Whole Board" shall mean the total number of
authorized directors whether or not there exist any vacancies in
previously authorized directorships.
ARTICLE VI
A. Subject to the rights of the holders of any series of Preferred
Stock to elect additional directors under specified circumstances, the number of
directors shall be fixed from time to time exclusively by the board of directors
pursuant to a resolution adopted by a majority of the Whole Board. The
directors, other than those who may be elected by the holders of any series of
Preferred Stock under specified circumstances, shall be divided into three
classes, with the term of office of the first class (Class I) to expire at the
Corporation's first annual meeting of stockholders, the term of office of the
second class (Class II) to expire at the Corporation's second annual meeting of
stockholders and the term of office of the third class (Class III) to expire at
the Corporation's third annual meeting of stockholders. At each annual meeting
of stockholders, directors elected to succeed those directors whose terms expire
shall be elected for a term of office to expire at the third succeeding annual
meeting of stockholders after their election.
B. Subject to the rights of the holders of any series of Preferred
Stock then outstanding, newly created directorships resulting from any increase
in the authorized number of directors or any vacancies in the board of directors
resulting from death, resignation, retirement, disqualification, removal from
office or other cause shall, unless otherwise provided by law or by resolution
of the board of directors, be filled only by a majority vote of the directors
then in office, though less than a quorum, and directors so chosen shall hold
office for a term expiring at the annual meeting of stockholders at which the
term of office of the class to which they have been chosen expires. No decrease
in the authorized number of directors shall shorten the term of any incumbent
director.
C. 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
by-laws of the Corporation.
D. Subject to the rights of the holders of any series of Preferred
Stock then outstanding, (i) prior to the Trigger Date, any directors, or the
entire board of directors, may be removed from office at any time, with or
without cause, by the affirmative vote of the holders of at least a majority of
all of the then-outstanding shares of capital stock of the Corporation entitled
to vote generally in the election of directors, voting together as a single
class, and (ii) on and after the Trigger Date, any directors, or the entire
board of directors, may be removed from office at any time, but only for cause
and only by the affirmative vote of the holders of at least eighty percent (80%)
of all of the then-outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors, voting together as a
single class.
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ARTICLE VII
The board of directors is expressly empowered to adopt, amend or repeal
by-laws of the Corporation. Any adoption, amendment or repeal of the by-laws of
the Corporation by the board of directors shall require the approval of a
majority of the Whole Board. The stockholders shall also have 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 eighty percent (80%) of the
voting power of all of the then-outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required to adopt, amend or repeal any
provision of the by-laws of the Corporation.
ARTICLE VIII
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the DGCL, or (iv) for any
transaction from which the director derived an improper personal benefit. If the
DGCL is amended to authorize corporate action further eliminating or limiting
the personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted by
the DGCL, as so amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
All references in this Article VIII to a director shall also be deemed
to refer to any such director acting in his or her capacity as a Continuing
Director and pursuant to Article IX hereof.
ARTICLE IX
The board of directors is expressly authorized to cause the Corporation
to issue rights pursuant to Section 157 of the DGCL and, in that connection, to
enter into any agreements necessary or convenient for such issuance. Any such
agreement may include provisions limiting, in certain circumstances, the ability
of the board of directors of the Corporation to redeem the securities issued
pursuant thereto or to take other action thereunder or in connection therewith
unless there is a specified number or percentage of Continuing Directors then in
office. Pursuant to Section 141(a) of the DGCL, the Continuing Directors shall
have the power and authority to make all decisions and determinations, and
exercise or perform such other acts, that any such agreement provides that such
Continuing Directors shall make, exercise or perform. For purposes of this
Article IX and any such agreement, the term, "Continuing Directors," shall mean
(1) those directors who were members of the board of directors of the
Corporation at the time the
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Corporation entered into such agreement and any director who subsequently
becomes a member of the board of directors, if such director's nomination for
election to the board of directors is recommended or approved by the majority
vote of the Continuing Directors then in office or (2) such members of the board
of directors designated in, or in the manner provided in, such agreement as
Continuing Directors.
ARTICLE X
The Corporation reserves the right to amend or repeal any provision
contained in this Restated Certificate of Incorporation in the manner prescribed
by the laws of the State of Delaware and all rights conferred upon stockholders
are granted subject to this reservation; provided, however, that,
notwithstanding any other provision of this Restated Certificate of
Incorporation or any provision of law that might otherwise permit a lesser vote
or no vote, but in addition to any vote of the holders of any class or series of
the stock of this corporation required by law or by this Restated Certificate of
Incorporation, the affirmative vote of the holders of at least eighty percent
(80%) of the voting power of all of the then-outstanding shares of the capital
stock of the Corporation entitled to vote generally in the election of
Directors, voting together as a single class, shall be required to amend or
repeal this Article X, Sections C or D of Article V, Article VI, Article VII,
Article VIII or Article IX.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation which
restates and integrates and further amends the provisions of the Certificate of
Incorporation of this Corporation, and which has been duly adopted in accordance
with Sections 242 and 245 of the Delaware General Corporation Law, has been
executed by its duly authorized officer this ___ day of June, 2000.
STRATOS LIGHTWAVE, INC.
By:___________________________
Name: ________________________
Title: _________________________
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