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Exhibit 3.2
RESTATED
CERTIFICATE OF INCORPORATION
OF
INTEGRATED TELECOM EXPRESS, INC.
Integrated Telecom Express, Inc. (the "CORPORATION"), a corporation
organized and existing under the laws of the State of Delaware, hereby certifies
as follows:
1. The name of the Corporation is Integrated Telecom Express,
Inc. The original Certificate of Incorporation of the Corporation was filed with
the Secretary of State of the State of Delaware on April 30, 1999.
2. Pursuant to Sections 242 and 245 of the General Corporation
Law of the State of Delaware, this Restated Certificate of Incorporation
restates and integrates and further amends the provisions of the Corporation's
Certificate of Incorporation.
3. The terms and provisions of this Restated Certificate of
Incorporation have been duly approved by written consent of the required number
of shares of outstanding stock of the Corporation pursuant to Subsection 228(a)
of the General Corporation Law of the State and written notice pursuant to
Subsection 228(d) of the General Corporation Law of the State has been given to
those stockholders whose written consent has not been obtained.
4. The text of the Restated Certificate of Incorporation reads in
its entirety as follows:
FIRST. The name of the Corporation is Integrated Telecom Express,
Inc.
SECOND. The address of the Corporation's registered office in the
State of Delaware is Corporation Trust Center, 1209 Orange St., Wilmington,
County of New Castle, Delaware 19801. The name of its registered agent at such
address is The Corporation Trust 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 of Delaware.
FOURTH. This Corporation is authorized to issue two classes of shares
to be designated, respectively, Common Stock ("COMMON") and Preferred Stock
("PREFERRED"). The total number of shares of Common this Corporation shall have
authority to issue is ___________ with a par value of $0.001 per share. The
total number of shares of Preferred this Corporation shall have authority to
issue is 5,000,000 with a par value of $0.001 per share.
The Board of Directors is authorized, subject to limitations prescribed
by law, to provide for the issuance of the shares of Preferred in series and, by
filing a certificate pursuant to the applicable law of the State of Delaware, to
establish from time to time the number of shares to be included in such series,
and to fix the designation, powers, preferences and rights of the shares of each
such series and the qualifications, limitations or restrictions thereof.
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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 conversion, including provision for
adjustment of the conversion rate in such events as the Board of Directors 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 dates;
(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; and
(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.
FIFTH.
A. The management of the business and the conduct of the
affairs of the Corporation shall be vested in the Board of Directors. Prior to
the closing of the first sale of Common Stock of the Corporation pursuant to a
registration statement declared effective by the Securities and Exchange
Corporation under the Securities Act of 1933, as amended, the number of
directors which shall constitute the whole Board of Directors shall be fixed in
the manner designated in the Bylaws of the Corporation.
B. At any time following the closing of the first
sale of Common Stock of the Corporation pursuant to a registration statement
declared effective by the Securities and Exchange Corporation under the
Securities Act of 1933, as amended, the number of directors which constitute
the whole Board of Directors of the Corporation shall be fixed exclusively by
one or more resolutions adopted from time to time by the Board of Directors.
The Board of Directors shall be divided into three classes designated as
Class I, Class II, and Class III, respectively. Directors shall be assigned
to each class in accordance with a resolution or resolutions adopted by the
Board of Directors. At the first annual meeting of stockholders following the
date hereof, the term of office
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of the Class I directors shall expire and Class I directors shall be elected
for a full term of three years. At the second annual meeting of stockholders
following the date hereof, the term of office of the Class II directors shall
expire and Class II directors shall be elected for a full term of three
years. At the third annual meeting of stockholders following the date hereof,
the term of office of the Class III directors shall expire and Class III
directors shall be elected for a full term of three years. At each succeeding
annual meeting of stockholders, directors shall be elected for a full term of
three years to succeed the directors of the class whose terms expire at such
annual meeting.
C. 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.
D. Elections of directors need not be by written ballot
except and to the extent provided in the Bylaws of the corporation.
E. Vacancies created by newly created directorships,
created in accordance with the Bylaws of this Corporation, may be filled by the
vote of a majority, although less than a quorum, of the directors then in
office, or by a sole remaining director
SIXTH.
A. To the fullest extent permitted by the Delaware
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 of fiduciary duty as a
director.
B. The Corporation may 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,
officer, employee or agent of the Corporation or any predecessor of the
Corporation or serves or served at any other enterprise as a director, officer,
employee or agent at the request of the Corporation or any predecessor to the
Corporation.
C. Neither any amendment nor repeal of this Article
SIXTH, nor the adoption of any provision of this Corporation's Certificate of
Incorporation inconsistent with this Article SIXTH, shall eliminate or reduce
the effect of this Article SIXTH, in respect of any matter occurring, or any
action or proceeding accruing or arising or that, but for this Article SIXTH,
would accrue or arise, prior to such amendment, repeal or adoption of an
inconsistent provision.
SEVENTH. The Corporation is to have perpetual existence.
EIGHTH.
A. 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
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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.
B. At any time following the closing of the first sale
of Common Stock of the Corporation pursuant to a registration statement declared
effective by the Securities and Exchange Corporation under the Securities Act of
1933, as amended, stockholders of the Corporation may not take any action by
written consent in lieu of a meeting and any action contemplated by stockholders
after such time must be taken at a duly called annual or special meeting of
stockholders.
C. Advance notice of new business and stockholder
nominations for the election of directors shall be given in the manner and to
the extent provided in the Bylaws of the Corporation.
NINTH. Any director or the entire board of directors may be
removed, with cause, by the holders of a majority of the shares then entitled to
vote at an election of directors.
TENTH. At any time following the closing of the first sale
of Common Stock of the Corporation pursuant to a registration statement declared
effective by the Securities and Exchange Commission under the Securities Act of
1933, as amended, stockholders of the Corporation may not take any action by
written consent in lieu of a meeting and any action contemplated by stockholders
after such time must be taken at a duly called annual or special meeting of
stockholders.
ELEVENTH. Except as may be otherwise provided in the
Certificate of Incorporation, each stockholder shall be entitled to one vote for
each share of capital stock held by such stockholder and stockholders shall not
be entitled to cumulate their votes in the election of directors or with respect
to any matter submitted to a vote of the stockholders.
TWELFTH. 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, this Certificate has been signed this __ day of
______, 2000.
INTEGRATED TELECOM EXPRESS, INC.
/s/ Richard H. Forte
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Richard H. Forte, Chief Executive Officer
ATTEST:
/s/ Peter J. Courture
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Peter J. Courture, Secretary
