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AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
INRANGE TECHNOLOGIES CORPORATION
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
* * * * * * *
The undersigned President and Chief Executive Officer of Inrange
Technologies Corporation does hereby certify as follows:
1. The name of the corporation (the "Corporation") is Inrange Technologies
Corporation.
2. The original Certificate of Incorporation of the Corporation was
filed with the Secretary of State of the State of Delaware on April 19,
1977 under the name Data/Switch Corporation.
3. In accordance with Sections 242 and 245 of the General Corporation
Law of the State of Delaware (the "DGCL"), this Amended and Restated
Certificate of Incorporation (a) has been duly proposed by resolutions
adopted and declared advisable by the Board of Directors of the
Corporation, (b) approved by the written consent of the sole
stockholder of the Corporation in accordance with Section 228 of the
DGCL and (c) duly executed by an officer of the Corporation in
accordance with Section 103 of the DGCL and, upon filing with the
Secretary of State in accordance with Section 103, shall supersede the
original Certificate of Incorporation, as amended and restated, and
shall, as it may thereafter be amended in accordance with its terms and
applicable law, be the Certificate of Incorporation of the Corporation.
4. Pursuant to Section 103(d) of the DGCL, this Amended and Restated
Certificate of Incorporation shall become effective upon filing with
the Secretary of State of the State of Delaware.
5. The text of the Certificate of Incorporation of the Corporation is
hereby amended and restated to read in its entirety as follows:
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ARTICLE I
The name of the corporation (the "Corporation") is Inrange Technologies
Corporation.
ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City
of Wilmington, County of New Castle, Delaware 19801. The name of the
Corporation's registered agent at such address is The Corporation Trust
Company.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized and incorporated under
the General Corporation Law of the State of Delaware (the "DGCL").
ARTICLE IV
(a) The total number of shares of stock that the Corporation shall have
authority to issue is four hundred and twenty million (420,000,000)
shares, consisting of (i) one hundred and fifty million (150,000,000)
shares of Class A Common Stock, par value $0.01 per share ("Class A
Common Stock"), (ii) two hundred and fifty million (250,000,000) shares
of Class B Common Stock, par value $0.01 per share ("Class B Common
Stock") and (iii) twenty million (20,000,000) shares of Preferred
Stock, par value $0.01 per share (the "Preferred Stock"). As used
herein, the term "Common Stock" means the Class A Common Stock and the
Class B Common Stock, or either of them.
(b) The following is a statement of the relative powers, preferences
and participating, optional or other special rights, and the
qualifications, limitations and restrictions of the Class A Common
Stock and the Class B Common Stock.
(i) Except as otherwise set forth in this Article IV, the relative
powers, preferences, and participating, optional or other special
rights, and the qualifications, limitations and restrictions of
the Class A Common Stock and the Class B Common Stock shall be
identical in all respects.
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(ii) Subject to any rights of holders of Preferred Stock and
subject to any other provisions of this Certificate of
Incorporation, the holders of Class A Common Stock and the holders
of Class B Common Stock shall be entitled to receive such
dividends and other distributions in cash, stock or property of
the Corporation as may be declared thereon by the Board of
Directors of the Corporation from time to time out of assets or
funds of the Corporation legally available therefor. If any
dividend or other distribution in cash or other property is paid
with respect to the Class A Common Stock or with respect to the
Class B Common Stock, a like dividend or other distribution in
cash or other property shall also be paid with respect to shares
of the other class of Common Stock, in an equal amount per share;
provided, however, that, in the case of dividends or other
distributions payable in Common Stock, including without
limitation, distributions pursuant to stock splits or divisions of
the Common Stock, only shares of Class A Common Stock shall be
paid with respect to the Class A Common Stock and only shares of
Class B Common Stock shall be paid with respect to the Class B
Common Stock. The shares of Class A Common Stock and Class B
Common Stock so paid shall be equal in number on a per share
basis. Neither the shares of Class A Common Stock nor the shares
of Class B Common Stock may be reclassified, subdivided or
combined unless such reclassification, subdivision or combination
occurs simultaneously and in proportion for each class.
(iii) (A) At each meeting of the stockholders of the Corporation,
each holder of Class A Common Stock shall be entitled to
five votes in person or by proxy for each share of Class A
Common Stock standing in his or her name on the transfer
books of the Corporation, and each holder of Class B Common
Stock shall be entitled to one vote in person or by proxy
for each share of Class B Common Stock standing in his or
her name on the transfer books of the Corporation, in
connection with the election of directors and all other
matters submitted to a vote of stockholders. Except as may
be otherwise required by law or by this Article IV, the
holders of Class A Common Stock and the holders of Class B
Common Stock shall vote together as a single class, subject
to any voting rights which may be granted to holders of
Preferred Stock, on all matters submitted to a vote of
stockholders of the Corporation.
(B) Except as otherwise provided by law, and subject to any
rights of holders of Preferred Stock, the provisions of
this Certificate of Incorporation shall not be modified,
revised, altered or amended, repealed or rescinded in whole
or in part, without the approval of a
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majority of the votes entitled to be cast by the holders of
the Class A Common Stock and the Class B Common Stock,
voting together as a single class; provided, however, that
with respect to any proposed amendment of this Certificate
of Incorporation which would alter or change the powers,
preferences or special rights of the shares of Class A
Common Stock or Class B Common Stock so as to affect them
adversely, the approval of a majority of the votes entitled
to be cast by the holders of the shares affected by the
proposed amendment, voting separately as a class, shall be
obtained in addition to the approval of a majority of the
votes entitled to be cast by the holders of the Class A
Common Stock and the Class B Common Stock voting together
as a single class as hereinbefore provided. Any increase in
the authorized number of shares of any class of stock of
the Corporation or the creation, authorization or issuance
of any securities convertible into, or warrants, options or
similar rights to purchase, acquire or receive, shares of
any class of stock of the Corporation shall be deemed not
to affect adversely the powers, preferences or special
rights of the shares of Class A Common Stock or the Class B
Common Stock.
(C) Each reference in this Certificate of Incorporation to
a majority or other proportion of shares of Common Stock,
Class A Common Stock or Class B Common Stock shall refer to
such majority or other proportion of the votes to which
such shares of Common Stock, Class A Common Stock or Class
B Common Stock, as applicable, are entitled.
(iv) In the event of any dissolution, liquidation or winding up of
the affairs of the Corporation, whether voluntary or involuntary,
after payment in full of any amounts required to be paid to the
holders of Preferred Stock, the remaining assets and funds of the
Corporation shall be distributed pro rata to the holders of Class
A Common Stock and the holders of Class B Common Stock (and, for
the avoidance of doubt, such distribution shall be irrespective of
the difference in voting rights between such classes of stock).
(v) (A) Prior to the date on which shares of Class A Common
Stock are transferred to the holders of shares of common
stock, par value $0.01 per share ("SPX Common Stock"), of
SPX Corporation, a Delaware corporation ("SPX"), in a
Tax-Free Spin-Off (as defined in paragraph (b)(v)(B)
below), each record holder of shares of Class A
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Common Stock may from time to time convert any or all of
such shares into an equal number of shares of Class B
Common Stock by surrendering the certificates for such
shares, accompanied by any required tax transfer stamps and
by a written notice by such record holder to the
Corporation stating that such record holder desires to
convert such shares of Class A Common Stock into the same
number of shares of Class B Common Stock and requesting
that the Corporation issue all of such shares of Class B
Common Stock to Persons named therein, setting forth the
number of shares of Class B Common Stock to be issued to
each such Person and the denominations in which the
certificates therefor are to be issued. To the extent
permitted by law, such voluntary conversion shall be deemed
to have been effected at the close of business on the date
of such surrender. Following a Tax-Free Spin-Off, shares of
Class A Common Stock shall no longer be convertible into
shares of Class B Common Stock. For purposes of this
Certificate of Incorporation, "Person" shall mean any
individual, firm, corporation, partnership or other entity.
(B) Prior to a Tax-Free Spin-Off, each share of Class A
Common Stock shall automatically convert into one share of
Class B Common Stock upon the transfer of such share if,
after such transfer, such share is not Beneficially Owned
(as defined below) by SPX or an Affiliate of SPX. Shares of
Class A Common Stock shall not convert into shares of Class
B Common Stock (1) in any transfer effected in connection
with a distribution of Class A Common Stock as a spin-off
or split-off to holders of SPX Common Stock intended to be
effected on a tax-free basis under the Internal Revenue
Code of 1986, as amended from time to time (a "Tax-Free
Spin-Off"), or (2) in any transfer after a Tax-Free Spin
Off. For purposes of this paragraph (b)(v)(B), a Tax-Free
Spin-Off shall be deemed to have occurred at the time
shares are first transferred to holders of SPX Common Stock
following receipt of an affidavit described in paragraph
(b)(v)(D)(3) below. For purposes of this Certificate of
Incorporation, "Beneficial Owner," "Beneficially Own,"
"Beneficial Ownership" and words of similar import shall
have the meaning ascribed to such term in Rule 13d-3 under
the Securities Exchange Act of 1934, as in effect on June
1, 2000.
Immediately upon the conversion of shares of Class A
Common Stock into shares of Class B Common Stock, the
rights of
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the holders of shares of Class A Common Stock as such shall
cease and such holders shall be treated for all purposes as
having become the record owners of the shares of Class B
Common Stock into which such shares of Class A Common Stock
shall have been converted; provided, however, that such
Persons shall be entitled to receive when paid all
dividends, if any, which shall have been declared on the
Class A Common Stock as of a record date preceding the time
of such conversion and which shall be unpaid as of the time
of such conversion, but the provisions contained in
paragraph (b)(v)(F) below shall likewise apply to such
dividends.
(C) Prior to a Tax-Free Spin-Off, holders of shares of
Class A Common Stock may (1) sell or otherwise dispose of
or transfer any or all of such shares held by them,
respectively, only in connection with a transfer which
meets the qualifications of paragraph (b)(v)(D) below, and
under no other circumstances, or (2) convert any or all of
such shares into shares of Class B Common Stock as provided
in paragraph (b)(v)(A) above. Prior to a Tax-Free Spin-Off,
no one other than those Persons in whose names shares of
Class A Common Stock shall have become registered on the
original stock ledger of the Corporation by reason of their
record ownership of shares of common stock of the
Corporation which, pursuant to paragraph (b)(viii) below,
shall have been reclassified into shares of Class A Common
Stock, or transferees or successive transferees who receive
shares of Class A Common Stock in connection with a
transfer which meets the qualifications set forth in
paragraph (b)(v)(D) below, shall by virtue of the
acquisition of a certificate for shares of Class A Common
Stock have the status of an owner or holder of shares of
Class A Common Stock or be recognized as such by the
Corporation or be otherwise entitled to enjoy for his or
her own benefit the special rights and powers of a holder
of shares of Class A Common Stock.
Holders of shares of Class A Common Stock may at any
and all times transfer to any Person the shares of Class B
Common Stock issuable upon conversion of such shares of
Class A Common Stock, subject to compliance with applicable
laws.
(D) Prior to a Tax-Free Spin-Off, shares of Class A Common
Stock shall be transferred on the books of the Corporation
and a new
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certificate therefor issued, upon presentation at the
office of the Secretary of the Corporation (or at such
additional place or places as may from time to time be
designated by the Secretary of the Corporation) of the
certificate for such shares, in proper form for transfer
and accompanied by all requisite stock transfer tax stamps,
only if such certificate when so presented shall also be
accompanied by any one of the following:
1 an affidavit from SPX stating that such
certificate is being presented to effect a transfer
by SPX of such shares to an Affiliate (as defined
below) of SPX; or
2 an affidavit from SPX stating that such
certificate is being presented to effect a transfer
by any Affiliate of SPX of such shares to SPX or
another Affiliate of SPX; or
3 an affidavit from SPX stating that such
certificate is being presented to effect a transfer
by SPX of such shares to the holders of SPX Common
Stock in connection with a Tax-Free Spin-Off.
For purposes of this Certificate of Incorporation,
"Affiliate" shall have the meaning ascribed to it in Rule
405 under the Securities Exchange Act of 1934, as in effect
on June 1, 2000.
(E) Prior to the occurrence of a Tax-Free Spin-Off, each
certificate for shares of Class A Common Stock shall bear a
legend on the face thereof reading as follows:
"The shares of Class A Common Stock represented by
this certificate may not be transferred to any person or
entity in connection with a transfer that does not meet the
qualifications set forth in paragraph (b)(v)(D) of Article
IV of this Certificate of Incorporation of this corporation
and no person who receives such shares in connection with a
transfer which does not meet the qualifications prescribed
by paragraph (b)(v)(D) of said Article IV is entitled to
own or to be registered as the record holder of such shares
of Class A Common Stock, but the record holder of this
certificate may at any time convert such shares of Class A
Common Stock into the same number of shares of Class B
Common Stock. Each holder
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of this certificate, by accepting the same, accepts
and agrees to all of the foregoing."
Upon and after the transfer of shares in a
Tax-Free Spin-Off, shares of Class A Common Stock
shall no longer bear the legend set forth above in
this paragraph (b)(v)(E).
(F) Upon any conversion of shares of Class A Common
Stock into shares of Class B Common Stock pursuant to
the provisions of this paragraph (b)(v), any dividend
which may have been declared on the shares of Class A
Common Stock so converted and for which the record
date or payment date shall be subsequent to such
conversion, shall be deemed to have been declared,
and shall be payable, with respect to the shares of
Class B Common Stock into which such shares of Class
A Common Stock shall have been so converted, provided
that any such dividend which was declared to be
payable in shares of Class A Common Stock shall
instead be deemed to have been declared, and shall be
payable, in shares of Class B Common Stock.
(G) The Corporation shall not reissue or resell any
shares of Class A Common Stock which shall have been
converted into shares of Class B Common Stock
pursuant to or as permitted by the provisions of this
paragraph (b)(v), or any shares of Class A Common
Stock which shall have been acquired by the
Corporation in any other manner. The Corporation
shall, from time to time, take such appropriate
action as may be necessary to retire such shares and
to reduce the authorized amount of Class A Common
Stock accordingly.
The Corporation shall at all times reserve
and keep available, out of its authorized but
unissued Common Stock, such number of shares of Class
B Common Stock as would become issuable upon the
conversion of all shares of Class A Common Stock then
outstanding.
(H) The Corporation shall not be required to pay any
documentary, stamp or similar issue or transfer taxes
payable in respect of the issue or delivery of shares
of Class B Common Stock on the conversion of shares
of Class A Common Stock pursuant to
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this paragraph (b)(v), and no such issue or delivery
shall be made unless and until the Person requesting
such issue has paid to the Corporation the amount of
any such tax or has established, to the satisfaction
of the Corporation, that such tax has been paid.
(vi) All rights to vote and all power (including, without
limitation, thereto, the right to elect directors) shall be vested
exclusively in the holders of Common Stock, voting together as a
single class, except as expressly provided in this Certificate of
Incorporation, in a Preferred Stock Designation (as defined below)
or as otherwise expressly required by applicable law.
(vii) No stockholder shall be entitled to exercise any right of
cumulative voting.
(viii) Immediately upon the effectiveness of this Certificate of
Incorporation, without the further action of the Corporation or
the stockholders of the Corporation, each share of common stock of
the Corporation, par value $0.01 per share, issued and outstanding
immediately prior to such effectiveness shall be changed into and
reclassified as 75,633.333 shares of Class A Common Stock (the
"Reclassification"). Promptly after such effectiveness, each
record holder of a certificate that, immediately prior to such
effectiveness, represented common stock of the Corporation, par
value $0.01 per share, shall be entitled to receive in exchange
for such certificate, upon surrender of such certificate to the
Corporation, a certificate for the number of shares of Class A
Common Stock into which the shares of common stock represented by
such certificate are reclassified in the Reclassification. Until
surrendered and exchanged in accordance therewith, each
certificate that, immediately prior to such effectiveness,
represented common stock of the Corporation, par value $0.01 per
share, shall represent the number of shares of Class A Common
Stock into which the shares of common stock of the Corporation,
par value $0.01 per share, represented by such certificate are
reclassified in the Reclassification.
(c) The Preferred Stock may be issued from time to time in one or more
classes or series. The Board of Directors is hereby authorized to
provide for the issuance of shares of Preferred Stock in a class or
series and, by filing a certificate pursuant to the applicable law of
the State of Delaware (a "Preferred Stock Designation"), to establish
from time to time the number of shares to be included in each such
class or series, and to fix the designation, rights, powers,
preferences and rights of the shares of each such class or series and
the qualifications, limitations and
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restrictions thereof. The authority of the Board of Directors with
respect to each class or series shall include, but not be limited to,
determination of the following:
(i) The designation of the class or series, which may be by
distinguishing number, letter or title.
(ii) The number of shares of the class or series, which number the
Board of Directors may thereafter (except where otherwise provided
in the Preferred Stock Designation) increase or decrease (but not
below the number of shares thereof then outstanding).
(iii) Whether dividends, if any, shall be cumulative or
noncumulative and the dividend rate of the class or series.
(iv) The dates on which dividends, if any, shall be payable.
(v) The redemption rights and price or prices, if any, for shares
of the class or series.
(vi) The terms and amount of any sinking fund provided for the
purchase or redemption of shares of the class or series.
(vii) The amounts payable on, and the preferences, if any, of,
shares of the class or series in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs
of the Corporation.
(viii) Whether the shares of the class or series shall be
convertible into shares of any other class or series, or any other
security, of the Corporation or any other corporation, and, if so,
the specification of such other class or series of such other
security, the conversion price or prices or rate or rates, any
adjustments thereof, the date or dates at which such shares shall
be convertible and all other terms and conditions upon which such
conversion may be made.
(ix) Restrictions on the issuance of shares of the same class or
series or of any other class or series.
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(x) The voting rights, if any, of the holders of shares of the
class or series.
(d) The Corporation shall be entitled to treat the person in whose name
any share of its stock is registered as the owner thereof for all
purposes and shall not be bound to recognize any equitable or other
claim to, or interest in, such share on the part of any other person,
whether or not the Corporation shall have notice thereof, except as
expressly provided by applicable law.
(e) No stockholder of the Corporation shall have any preemptive or
preferential right, nor be entitled as such as a matter of right, to
subscribe for or purchase any part of any new or additional issue of
stock of the Corporation of any class or series, whether now or
hereafter authorized, and whether issued for money or for consideration
other than money, or of any issue of securities convertible into stock
of the Corporation.
(f) No stockholder of the Corporation shall have any right to have the
shares of Common Stock held by such holder redeemed by the Corporation.
ARTICLE V
(a) In furtherance of, and not in limitation of, the powers conferred
by law, the Board of Directors is expressly authorized and empowered:
(i) to adopt, amend or repeal the Bylaws of the Corporation;
provided, however, that the Bylaws adopted by the Board of
Directors under the powers hereby conferred may be amended or
repealed by the Board of Directors or by the stockholders having
voting power with respect thereto; and provided further that, in
the case of amendments by stockholders, effective as of the date
(the "Trigger Date") on which SPX and its Affiliates cease to be
the Beneficial Owners of an aggregate of at least a majority of
the aggregate voting power of the then outstanding shares of
Voting Stock (as defined below), the affirmative vote of the
holders of at least 80% of the voting power of the then
outstanding Voting Stock, voting together as a single class, shall
be required to alter, amend or repeal any provision of the Bylaws
or adopt any provision of the Bylaws inconsistent with any other
provision of the Bylaws; and
(ii) from time to time to determine whether and to what extent,
and at what times and places, and under what conditions and
regulations, the accounts
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and books of the Corporation, or any of them, shall be open to
inspection of stockholders; and, except as so determined or as
expressly provided in this Certificate of Incorporation or in any
Preferred Stock Designation, no stockholder shall have any right
to inspect any account, book or document of the Corporation other
than such rights as may be conferred by applicable law.
(b) The Corporation may in its Bylaws confer powers upon the Board of
Directors in addition to the foregoing and in addition to the powers
and authorities expressly conferred upon the Board of Directors by
applicable law. Notwithstanding anything contained in this Certificate
of Incorporation to the contrary, the affirmative vote of the holders
of at least 80% of the voting power of the then outstanding Voting
Stock, voting together as a single class, shall be required to amend,
repeal or adopt any provision inconsistent with paragraph (a)(i) of
this Article V. For the purposes of this Certificate of Incorporation,
"Voting Stock" shall mean the outstanding shares of stock of the
Corporation entitled to vote generally in the election of directors.
ARTICLE VI
(a) Subject to any rights of the holders of Preferred Stock or any
other class or series of stock as set forth in this Certificate of
Incorporation to elect additional directors under specific
circumstances:
(i) Any corporate action required or permitted to be taken at any
annual or special meeting of stockholders may be taken without a
meeting, without prior notice and without a vote, if a consent or
consents in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to
vote thereon were present and voted, and shall be delivered to the
Corporation (either by hand or by certified or registered mail,
return receipt requested) at its registered office in the State of
Delaware or its principal place of business, or to an officer or
agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded; provided,
however, that, effective as of the Trigger Date, any corporate
action required or permitted to be taken at any annual or special
meeting of stockholders may be taken only at a duly called annual
or special meeting of stockholders and may not be taken by written
consent in lieu of such a meeting.
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(ii) Special meetings of the stockholders of the Corporation may
be called only by the Board of Directors pursuant to a resolution
adopted by a majority of the total number of directors which the
Corporation would have if there were no vacancies on the Board or
by the Chairman of the Board; provided, that, prior to the Trigger
Date, special meetings of the stockholders of the Corporation
shall also be called at the request of the holders of a majority
of the voting power of the then outstanding Voting Stock. Except
as expressly provided in the immediately preceding sentence, any
power of stockholders to call a special meeting is specifically
denied.
(b) No business other than that stated in the notice shall be
transacted at any special meeting of stockholders.
(c) Advanced notice of the proposal of business by stockholders shall
be given in the manner provided in the Bylaws of the Corporation, as
amended and in effect from time to time.
(d) Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of at least 80% of
the voting power of the then outstanding Voting Stock, voting together
as a single class, shall be required to amend, repeal or adopt any
provision inconsistent with this Article VI.
ARTICLE VII
(a) Subject to the rights of the holders of any class or series of
Preferred Stock to elect additional directors under specified
circumstances, the number of directors of the Corporation shall be
fixed from time to time by a resolution adopted by the Board of
Directors.
(b) The directors, other than those who may be elected by the holders
of any class or series of Preferred Stock, shall be divided into three
classes, as nearly equal in number as possible. One class of directors
shall be initially elected for a term expiring at the annual meeting of
stockholders to be held in 2001, another class shall be initially
elected for a term expiring at the annual meeting of stockholders to be
held in 2002, and another class shall be initially elected for a term
expiring at the annual meeting of stockholders to be held in 2003. At
each succeeding annual meeting of the stockholders of the Corporation,
the successors of the class of directors whose term expires at that
meeting shall be elected by a plurality vote of all votes cast at such
meeting to hold office for a term expiring at
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the annual meeting of stockholders held in the third year following the
year of their election. If the number of directors is changed, any
increase or decrease shall be apportioned among the classes so as to
maintain the number of directors in each class as nearly equal as
possible.
(c) A director shall hold office until the annual meeting of the year
in which his or her term expires and until his or her successor shall
be elected and shall qualify, subject, however, to prior death,
resignation or removal from office.
(d) Subject to the rights of the holders of any class or series of
Preferred Stock to elect additional directors under specified
circumstances, any director may be removed from office only for cause
upon the affirmative vote of holders of at least 80% of the voting
power of the then outstanding Voting Stock, voting as a single class. A
director may not be removed by the stockholders at a meeting unless the
notice of the meeting states that the purpose, or one of the purposes,
of the meeting is removal of the director.
(e) Except as otherwise provided for in a Preferred Stock Designation,
newly created directorships resulting from any increase in the number
of directors and any vacancies on the Board of Directors resulting from
death, resignation, disqualification, removal or other cause shall be
filled by the affirmative vote of a majority of the directors then in
office, even if less than a quorum, or by a sole remaining director, or
by stockholders if such vacancy was caused by the removal of a director
by the action of stockholders. 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 the vacancy occurred and until such director's successor
shall have been duly elected and qualified. No decrease in the number
of directors constituting the Board of Directors shall shorten the term
of any incumbent director.
(f) Advance notice of stockholder nominations for the election of
directors shall be given in the manner provided in the Bylaws of the
Corporation, as amended and in effect from time to time.
(g) Unless and except to the extent that the Bylaws of the Corporation
shall so require, the election of directors of the Corporation need not
be by written ballot.
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(h) Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of the holders of
at least 80% of the voting power of the then outstanding Voting Stock,
voting together as a single class, shall be required to amend, repeal
or adopt any provision inconsistent with this Article VII.
ARTICLE VIII
(a) Each person who is or was or has agreed to become a director or
officer of the Corporation, or each such person who is or was serving
or who has agreed to serve at the request of the Board of Directors or
an officer of the Corporation as an employee or agent of the
Corporation or as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans (including the
heirs, executors, administrators or estate of such person), shall be
indemnified by the Corporation, in accordance with the Bylaws of the
Corporation, to the fullest extent permitted from time to time by the
DGCL 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 indemnification rights than said law
permitted prior to such amendment) or any other applicable laws as
presently or hereafter in effect.
(b) Without limiting the generality or the effect of the foregoing, the
Corporation may enter into one or more agreements with any person that
provide for indemnification greater than or different from that
provided in this Article VIII.
ARTICLE IX
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; provided, however, that the foregoing
shall not eliminate or limit the liability of a director (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
hereafter amended to permit further elimination or limitation of 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.
ARTICLE X
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Except as may be expressly provided in this Certificate of
Incorporation, the Corporation reserves the right at any time and from
time to time to amend, alter, change or repeal any provision contained
in this Certificate of Incorporation or a Preferred Stock Designation,
and any other provisions authorized by the laws of the State of
Delaware at the time in force may be added or inserted, in the manner
now or hereafter prescribed herein or by applicable law, and all
rights, preferences and privileges of whatsoever nature conferred upon
stockholders, directors or any other persons whomsoever by and pursuant
to this Certificate of Incorporation in its present form or as
hereafter amended are granted subject to the right reserved in this
Article X; provided, however, that any amendment or repeal of Article
VIII or Article IX of this Certificate of Incorporation shall not
adversely affect any right or protection existing hereunder in respect
of any act or omission occurring prior to such amendment or repeal; and
provided further that no Preferred Stock Designation shall be amended
after the issuance of any shares of the series of Preferred Stock
created thereby, except in accordance with the terms of such Preferred
Stock Designation and the requirements of applicable law.
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IN WITNESS WHEREOF, the Corporation has caused this Amended and
Restated Certificate of Incorporation to be signed by Gregory R. Grodhaus, its
President and Chief Executive Officer, this 28th day of June, 2000.
INRANGE TECHNOLOGIES CORPORATION
By: /s/ Gregory R. Grodhaus
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Name: Gregory R. Grodhaus
Title:President and Chief Executive Officer
17
