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EXHIBIT 3.2
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
KABIRA TECHNOLOGIES, INC.
Kabira Technologies, Inc., a corporation organized and existing under
the laws of the State of Delaware, does hereby certify:
1. The name of the corporation is Kabira Technologies, Inc.
Kabira Technologies, Inc. was originally incorporated under the same name, and
the original Certificate of Incorporation was filed with the Secretary of State
of the State of Delaware on March 27, 2000.
2. Pursuant to Sections 242 and 228 of the General Corporation
Law of the State of Delaware, the amendments and restatement herein set forth
have been duly approved by the Board of Directors and stockholders of Kabira
Technologies, Inc.
3. Pursuant to Section 245 of the General Corporation Law of the
State of Delaware, this Amended and Restated Certificate of Incorporation
restates and integrates and amends the provisions of the Certificate of
Incorporation of this corporation.
4. The text of the Restated Certificate of Incorporation as is
hereby restated and amended to read in its entirety as follows:
FIRST
The name of the Corporation is Kabira Technologies, Inc. (the
"Corporation").
SECOND
The address of the Corporation's registered office in the State
of Delaware is 1209 Orange Street, Wilmington, County of New Castle, Delaware
19801. The name of its registered agent at such address is The Corporation Trust
Company.
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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
A. The total number of shares which the Corporation shall have
authority to issue is 160,000,000 shares of capital stock.
B. Of such authorized shares, one hundred fifty million
(150,000,000) shares shall be designated "Common Stock", and have a par value of
$.001.
C. Of such authorized shares, ten million (10,000,000) shares
shall be designated "Preferred Stock", and have a par value of $.001. The
Preferred Stock may be issued from time to time in one or more series. The Board
of Directors of the Corporation is authorized to determine or alter the powers,
preferences and rights and the qualifications, limitations or restrictions
granted to or imposed upon any wholly unissued series of Preferred Stock, and
within the limitations or restrictions stated in any resolution or resolutions
of the Board of Directors originally fixing the number of shares constituting
any series, to increase or decrease (but not below the number of shares of any
such series then outstanding) the number of shares of any such series subsequent
to the issuance of shares of that series, to determine the designation of any
series, and to fix the number of shares of any series. In case the number of
shares of any series shall be so decreased, 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
Elections of directors need not be by written ballot unless a
stockholder demands election by written ballot at the meeting and before voting
begins.
SEVENTH
The number of directors which constitute the whole Board of
Directors of the Corporation shall be designated in the Bylaws of the
Corporation.
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EIGHTH
In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, 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 as it 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.
Neither any amendment nor repeal of this Article, nor the
adoption of any provision of this 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 that, but for this Article, would accrue or arise, prior to such
amendment, repeal or adoption of an inconsistent provision.
TENTH
Section 1. At each annual meeting of stockholders, directors of
the Corporation shall be elected to hold office until the expiration of the term
for which they are elected, and until their successors have been duly elected
and qualified; except that if any such election shall be not so held, such
election shall take place at stockholders' meeting called and held in accordance
with the Delaware General Corporation Law. The directors of the Corporation
shall be divided into three classes as nearly equal in size as is practicable,
hereby designed Class I, Class II and Class III. The term of office of the
initial Class I directors shall expire at the next succeeding annual meeting of
stockholders, the term of office of the initial Class II directors shall expire
at the second succeeding annual meeting of stockholders and the term of office
of the initial Class III directors shall expire at the third succeeding annual
meeting of the stockholders. For the purposes hereof, the initial Class I, Class
II and Class III directors shall be those directors so designated by the
incorporator. At each annual meeting of stockholders, directors to replace those
of a Class whose terms expire at such annual meeting shall be elected to hold
office until the third succeeding annual meeting and until their respective
successors shall have been duly elected and qualified. If the number of
directors is hereafter changed, any newly created directorships or decrease in
directorships shall be so apportioned among the classes as to make all classes
as nearly equal in number as if practicable.
Section 2. The number of directors which constitute the whole
Board of Directors of the Corporation shall be designated in the Bylaws of the
Corporation.
Section 3. Vacancies occurring on the Board of Directors for any
reason may be filled by vote of a majority of the remaining members of the Board
of Directors, although less than a quorum, at any meeting of the Board of
Directors. A person so elected by the Board of Directors to
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fill a vacancy shall hold office until the next succeeding annual meeting of
stockholders of the Corporation and until his or her successor shall have been
duly elected and qualified.
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 statutes) 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.
TWELFTH
The stockholders of the Corporation may not take action by
written consent in lieu of a meeting but must take any actions at a duly called
annual or special meeting.
THIRTEENTH
Notwithstanding any other provisions of this 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 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 TENTH, TWELFTH or
THIRTEENTH or any provision thereof, unless such amendment shall be approved by
a majority of the directors of the Corporation not affiliated or associated with
any person or entity holding (or which has announced an intention to obtain) 20%
or more of the voting power of the Corporation's outstanding capital stock.
FOURTEENTH
The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
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IN WITNESS WHEREOF, Kabira Technologies, Inc., has caused this
Amended and Restated Certificate of Incorporation to be executed by Paul Sutton,
its President and Chief Executive Officer, attested by Rodger Weismann, its
Chief Financial Officer and Secretary, this ___th day of May, 2000.
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Paul Sutton
President and Chief Executive Officer
ATTEST
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Rodger Weismann
Chief Financial Officer and Secretary
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