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EXHIBIT 3.2
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
X10 WIRELESS TECHNOLOGY, INC.
Alex E. Peder and Wade A. Pfeiffer hereby certify and acknowledge that:
ONE: They are the duly elected and acting President and Secretary,
respectively, of X10 Wireless Technology, Inc., a corporation organized and
existing under the laws of the State of Delaware.
TWO: The name of the corporation is X10 Wireless Technology, Inc. The
name under which the corporation was originally incorporated is X10.com, Inc.
The date of filing the original Certificate of Incorporation of this corporation
with the Secretary of State was July 29, 1999.
THREE: The Amended and Restated Certificate of Incorporation is hereby
amended and restated in its entirety to read as follows:
ARTICLE I
The name of this corporation is X10 WIRELESS TECHNOLOGY, INC. (the
"Corporation").
ARTICLE II
The name of the registered agent and the address of the registered office
of the Corporation in the State of Delaware are:
The Corporation Trust Company
1209 Orange Street
Wilmington, Delaware 19801
County of New Castle
ARTICLE III
The purpose of this Corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
the State of Delaware (the "DGCL").
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ARTICLE IV
4.1 This Corporation is authorized to issue two classes of stock to be
designated, respectively, "Common Stock" and "Preferred Stock." The total
number of shares which the Corporation is authorized to issue is One Hundred
Thirty Million (130,000,000) shares. One Hundred Million (100,000,000) shares
shall be Common Stock, each having a par value of one-tenth of one cent ($.001).
Thirty Million (30,000,000) shares shall be Preferred Stock, each having a par
value of one-tenth of one cent ($.001).
4.2 The Preferred Stock may be issued from time to time in one or more
series. The Board of Directors is hereby expressly authorized to provide for the
issue of all of any of the remaining shares of the Preferred Stock in one or
more series, and to fix the number of shares and to determine or alter for each
such series, such voting powers, full or limited, or no voting powers, and such
designation, preferences, and relative, participating, optional, or other rights
and such qualifications, limitations, or restrictions thereof, as shall be
stated and expressed in the resolution or resolutions adopted by the Board of
Directors providing for the issuance of such shares and as may be permitted by
the DGCL. The Board of Directors is also expressly authorized to increase or
decrease the number of shares of any series subsequent to the issuance of shares
of that series, but not below the number of shares of such series then
outstanding. In case the number of shares of any series shall be decreased in
accordance with the foregoing sentence, 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.
ARTICLE V
For the management of the business and for the conduct of the affairs of
the Corporation, and in further definition, limitation and regulation of the
powers of the Corporation, of its directors and of its stockholders or any class
thereof, as the case may be, it is further provided that:
5.1 The management of the business and the conduct of the affairs of the
Corporation shall be vested in its Board of Directors. The number of directors
that shall constitute the whole Board of Directors shall be fixed exclusively by
one or more resolutions adopted by the affirmative vote of a majority of the
Board of Directors.
5.2 Subject to the rights of the holders of any series of Preferred Stock
to elect additional directors under specified circumstances, following the
closing of the initial public offering pursuant to an effective registration
statement under the Securities Act of 1933, as amended (the "1933 Act"),
covering the offer and sale of Common Stock to the public (the "Initial Public
Offering"), the directors shall be divided into three classes designated as
Class I, Class II and Class III, respectively. At the first annual meeting of
stockholders following the closing of the Initial Public Offering, the term of
office 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 closing of the Initial Public Offering, 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 closing of the Initial Public Offering, the term
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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.
Notwithstanding subsections 5.1 and 5.2, each director shall serve until
his successor is duly elected and qualified or until his death, resignation or
removal. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
5.3 Subject to the rights of the holders of any series of Preferred Stock,
following the closing of the Initial Public Offering:
a. neither the Board of Directors nor any individual director may be
removed without cause; and
b. subject to any limitation imposed by law, any individual director
or directors may be removed with cause by the holders of a majority of the
voting power of the Corporation entitled to vote at an election of directors.
5.4
a. Subject to the rights of the holders of any series of Preferred
Stock, any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other causes and any newly created
directorships resulting from any increase in the number of directors, shall,
unless the Board of Directors determines by resolution that any such vacancies
or newly created directorships shall be filled by the stockholders, except as
otherwise provided by law, be filled only by the affirmative vote of a majority
of the directors then in office, even though less than a quorum of the Board of
Directors, and not by the stockholders. Any director elected in accordance with
the preceding sentence shall hold office for the remainder of the full term of
the director for which the vacancy was created or occurred and until such
director's successor shall have been elected and qualified.
b. If at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole board (as constituted immediately prior to any such increase), the
Delaware Court of Chancery may, upon application of any stockholder or
stockholders holding at least ten percent (10%) of the total number of the
shares at the time outstanding having the right to vote for such directors,
summarily order an election to be held to fill any such vacancies or newly
created directorships, or to replace the directors chosen by the directors then
in offices as aforesaid, which election shall be governed by Section 211 of the
DGCL.
5.5 Subject to paragraph (h) of Section 43 and Section 45 of the Bylaws,
the Bylaws may be altered or amended or new Bylaws adopted by the affirmative
vote 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 voting stock of the Corporation
entitled to vote. The Board of Directors shall also have the power to adopt,
amend, or repeal Bylaws.
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5.6 The directors of the Corporation need not be elected by written ballot
unless the Bylaws so provide.
5.7 No action shall be taken by the stockholders of the Corporation except
at an annual or special meeting of stockholders called in accordance with the
Bylaws or by written consent of stockholders in accordance with the Bylaws prior
to the closing of the Initial Public Offering and, following the closing of the
Initial Public Offering, no action shall be taken by the stockholders by written
consent.
5.8 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
Bylaws of the Corporation.
ARTICLE VI
6.1 The liability of the directors for monetary damages shall be
eliminated to the fullest extent under applicable law. 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.
6.2 Any repeal or modification of this Article VI shall be prospective and
shall not affect the rights under this Article VI in effect at the time of the
alleged occurrence of any act or omission to act giving rise to liability or
indemnification.
ARTICLE VII
7.1 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, except as provided in paragraph 7.2 of this
Article VII, and all rights conferred upon the stockholders herein are granted
subject to this reservation.
7.2 Notwithstanding any other provisions of this 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 any
particular class or series of the Voting Stock required by law, this Certificate
of Incorporation or any Preferred Stock Designation, 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 voting stock, voting together
as a single class, shall be required to alter, amend or repeal Articles V, VI,
and VII.
FOUR: This Amended and Restated Certificate of Incorporation has been duly
approved by the Board of Directors of this Corporation.
FIVE: This Amended and Restated Certificate of Incorporation has been duly
adopted at special meetings of the Board of Directors and the stockholders of
the Corporation in accordance with the provisions of Sections 141, 211, 242 and
245 of the DGCL. The holders of a majority
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of the outstanding shares of Common Stock approved this Amended and Restated
Certificate of Incorporation.
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IN WITNESS WHEREOF, Alex E. Peder and Wade A. Pfeiffer, acting as President
and Secretary, respectively, hereby acknowledge and affirm that they have signed
this Amended and Restated Certificate of Incorporation in Seattle, Washington,
that such act and deed is on behalf of X10 Wireless Technology, Inc. and that
the statements made herein are true and correct this ____ day of _________,
2000.
X10 WIRELESS TECHNOLOGY, INC.
_____________________________________
ALEX E. PEDER, its President
ATTEST:
_____________________________________
WADE A. PFEIFFER, its Secretary
6.
