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EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ENDWAVE CORPORATION
EDWARD A. KEIBLE, JR. and JULIANNE M. BIAGINI hereby certify that:
1. The original name of this corporation is Endgate Merger Corporation,
and the date of filing the original Certificate of Incorporation of this
corporation with the Secretary of State of the State of Delaware is April 7,
1995.
2. They are the duly elected and acting President and Secretary, respectively,
of EndWave Corporation, a Delaware corporation.
3. The Certificate of Incorporation of this corporation is hereby amended and
restated in its entirety to read as follows:
I.
The name of this corporation is EndWave Corporation.
II.
The address of the registered office of the corporation in the State of
Delaware is 1209 Orange Street, City of Wilmington, County of New Castle,
Delaware, and the name of the registered agent of the corporation in the State
of Delaware at such address is The Corporation Trust Company.
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.
IV.
A. 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 77,000,000 shares.
50,000,000 shares shall be Common Stock, each having a par value of one-tenth of
one cent ($.001). 27,000,000 shares shall be Preferred Stock, each having a par
value of one-tenth of one cent ($.001).
B. 426,250 of the authorized shares of Preferred Stock are hereby
designated "Series E-1 Preferred Stock" (the "Series E-1 Preferred"). 866,401 of
the authorized shares of Preferred Stock are hereby designated "Series E-2
Preferred Stock" (the "Series E-2 Preferred"). 1,008,353 of the authorized
shares of Preferred Stock are hereby designated "Series E-3 Preferred
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Stock" (the "Series E-3 Preferred"). 1,250,405 of the authorized shares of
Preferred Stock are hereby designated "Series E-4 Preferred Stock" (the "Series
E-4 Preferred"). 2,487,934 of the authorized shares of Preferred Stock are
hereby designated "Series E-5 Preferred Stock" (the "Series E-5 Preferred").
3,652,344 of the authorized shares of Preferred Stock are hereby designated
"Series E-6 Preferred Stock" (the "Series E-6 Preferred"). 2,549,246 of the
authorized shares of Preferred Stock are hereby designated "Series E-7 Preferred
Stock" (the "Series E-7 Preferred," and together with the Series E-1 Preferred,
Series E-2 Preferred, Series E-3 Preferred, Series E-4 Preferred, Series E-5
Preferred and Series E-6 Preferred, the "E-Series Preferred"). 13,963,063 of the
authorized shares of Preferred Stock are hereby designated "Series T-1 Preferred
Stock" (the "T- Series Preferred"). The T-Series Preferred shall be referred to
together with the E-Series Preferred as the "Preferred Stock."
C. The rights, preferences, privileges, restrictions and other matters
relating to the Preferred Stock are as follows:
1. DIVIDEND RIGHTS. The holders of Preferred Stock shall not be
entitled to receive dividends, except as declared, and at such rates per share,
as may be specified by the Board of Directors of the corporation. No dividends
shall be paid on any share of Common Stock unless a dividend is paid with
respect to all outstanding shares of Preferred Stock in an amount for each such
share of Preferred Stock equal to or greater than the aggregate amount of such
dividends for all shares of Common Stock into which each such share of Preferred
Stock could then be converted. No dividend shall be paid on or declared and set
apart for the shares of any series of Preferred Stock unless at the same time a
like proportionate dividend (ratably and proportional to the respective
liquidation preference for each such series of Preferred Stock as set forth in
Section 3(a) below) shall be paid on or declared or set apart for the shares of
all other series of Preferred Stock.
2. VOTING RIGHTS.
(A) GENERAL. Except as otherwise provided herein or as required
by law, the Preferred Stock shall be voted equally with the shares of the Common
Stock of this corporation and not as a separate class, at any annual or special
meeting of stockholders of this corporation and may act by written consent in
the same manner as the Common Stock, in either case upon the following basis:
each holder of shares of Preferred Stock shall be entitled to such number of
votes as shall be equal to the whole number of shares of Common Stock into which
such holder's aggregate number of shares of Preferred Stock are convertible
(pursuant to Section 4 hereof) immediately after the close of business on the
record date fixed for such meeting or the effective date of such written
consent.
(B) PREFERRED STOCK. So long as this corporation shall have any
shares of Preferred Stock outstanding, the corporation shall be required to
obtain the approval by vote or written consent of the holders of a majority of
the outstanding shares of Preferred Stock, voting together as a single class,
prior to effecting any amendment of this Certificate of Incorporation that (i)
increases or decreases the aggregate number of authorized shares of Preferred
Stock, (ii) increases or decreases the par value of the shares of Preferred
Stock or (iii) alters or changes the powers, preferences or special rights of
the shares of the Preferred Stock so as to affect them adversely. If any such
amendment would alter or change the powers, preferences or special
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rights of one or more series of Preferred Stock so as to affect them adversely
but would not so affect the entire class of Preferred Stock, then only the
shares of the series so affected by the amendment shall be considered "Preferred
Stock" for purposes of this Section 2(b).
(C) ELECTION OF DIRECTORS. The holders of the E-Series Preferred,
voting together as a single class, shall be entitled to elect two (2) members of
the Board of Directors at or pursuant to each meeting or action by written
consent of this corporation's stockholders for the election of directors, and to
remove from office such directors and to fill any vacancy caused by the
resignation, disqualification, death or removal of either such director. The
holders of the T-Series Preferred, voting together as a single class, shall be
entitled to elect two (2) members of the Board of Directors at or pursuant to
each meeting or action by written consent of this corporation's stockholders for
the election of directors, and to remove from office such directors and to fill
any vacancy caused by the resignation, disqualification, death or removal of
either such director. Any directors elected by the holders of the E-Series
Preferred may be removed only by the holders of such E-Series Preferred, and any
directors elected by the holders of the T-Series Preferred may be removed only
by the holders of such T-Series Preferred. Any directors not elected by the
holders of Preferred Stock, as set forth above, shall be elected by the holders
of Common Stock and Preferred Stock, voting together and not as separate
classes, with each share of Preferred Stock voting as provided in Section 2(a)
above.
(D) SUPERMAJORITY VOTE OF BOARD OF DIRECTORS. In addition to any
other vote or consent required herein or by law, so long as this corporation
shall have any shares of E-Series Preferred or T-Series Preferred outstanding,
the affirmative vote of no less than four (4) members of the Board of Directors
shall be necessary to effect or validate of any the following actions:
(I) Any agreement to sell, lease or otherwise dispose of all
or substantially all of the assets, property or business of this corporation, or
to merge or consolidate this corporation with any person, or permit any other
person to merge into it, or any other reorganization except for mergers,
consolidations, reorganizations, or any series of such transactions in which
this corporation is the surviving corporation and, after giving effect to the
merger, consolidation, reorganization, or series of such transactions the
holders of this corporation's outstanding capital stock immediately preceding
such merger own at least fifty percent (50%) of the outstanding capital stock of
the surviving corporation;
(II) Any voluntary dissolution or liquidation of this
corporation;
(III) Any redemption of, or payment of dividends with
respect to, equity securities of this corporation, other than a repurchase of
Common Stock pursuant to the exercise of any contractual or other legal rights
of first refusal or repurchase;
(IV) Any change in the business purpose of this corporation
to include the design, manufacture or sale of products intended for use in
applications located more than 100,000 feet above the surface of the earth; or
(V) Any change in the authorized number of directors
constituting the Board of Directors from five (5).
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3. LIQUIDATION RIGHTS.
(A) PREFERRED STOCK. Upon any liquidation, dissolution, or
winding up of this corporation (a "Liquidation"), whether voluntary or
involuntary, before any distribution or payment shall be made to the holders of
any Common Stock, the holders of Series E-1 Preferred, Series E-2 Preferred,
Series E-3 Preferred, Series E-4 Preferred, Series E-5 Preferred, Series E-6
Preferred, Series E-7 Preferred and T-Series Preferred shall each be entitled to
be paid out of the assets of this corporation an amount per share equal to the
sum of (i) $4.00, $7.00, $8.28, $11.44, $6.00, $6.004, $10.12 and $3.46 (as
adjusted for any stock dividends, combinations or splits with respect to such
shares), respectively, plus (ii) all declared but unpaid dividends on each such
share of Series E-1 Preferred, Series E-2 Preferred, Series E-3 Preferred,
Series E-4 Preferred, Series E-5 Preferred, Series E-6 Preferred, Series E-7
Preferred and T-Series Preferred then held by them. Each share of Preferred
Stock shall rank on a parity with each other share of Preferred Stock as to the
receipt of such liquidation preference in the amount specified above upon a
Liquidation, and no amount shall be paid to any holder of Preferred Stock
unless, at the same time, an amount in like proportion to the respective
liquidation preference of each other share of Preferred Stock shall be paid to
the holder thereof. If, upon a Liquidation, the assets of this corporation shall
be insufficient to make payment in full to all holders of Preferred Stock, then
such assets shall be distributed ratably among the holders of Preferred Stock at
the time outstanding in proportion to the preferential amount each holder is
otherwise entitled to receive.
(B) COMMON STOCK. After the payment of the full liquidation
preference of the Preferred Stock as set forth in Section 3(a) above, the
holders of the Common Stock shall receive prior and in preference to any further
distribution of any of the assets or surplus funds of this corporation to the
holders of Preferred Stock, the amount of $4.00 per share (as adjusted for any
stock dividends, combinations or splits with respect to such shares) for each
share of Common Stock then held by them.
(C) PREFERRED AND COMMON. After payment to the holders of
Preferred Stock of the amounts set forth in Section 3(a) and payment to the
holders of Common Stock of the amounts set forth in Section 3(b), the entire
remaining assets and funds of the corporation legally available for
distribution, if any, shall be distributed ratably among the holders of the
Common Stock and Preferred Stock on the basis of the number of shares of Common
Stock (i) held by each of them and (ii) issuable at the time of such liquidation
upon the conversion of the Preferred Stock held by each of them.
(D) DEEMED LIQUIDATION. The following events shall be considered
a liquidation under Section 3(a):
(I) any consolidation or merger of this corporation with or
into any other corporation or other entity or person, or any other corporate
reorganization, in which this corporation shall not be the continuing or
surviving entity of such consolidation, merger or reorganization or any
transaction or series of related transactions by this corporation in which in
excess of 50% of this corporation's voting power is transferred (excluding, in
any such case, this corporation's merger with TRW Milliwave Inc. and any
transaction or series of transactions in which a holder or holders of Preferred
Stock purchases additional shares of capital stock of this
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corporation giving such holder(s) ownership of a majority of the outstanding
voting securities of this corporation); or
(II) a sale, lease or other disposition of all or
substantially all of the assets of this corporation.
4. CONVERSION RIGHTS. The holders of shares of Preferred Stock shall
have the following rights with respect to the conversion of such shares into
shares of Common Stock:
(A) OPTIONAL CONVERSION. Subject to and in compliance with the
provisions of this Section 4, any shares of Preferred Stock may, at the option
of the holder, be converted at any time into fully-paid and nonassessable shares
of Common Stock. The number of shares of Common Stock to which a holder of
Series E-1 Preferred shall be entitled upon conversion shall be the product
obtained by multiplying the "Series E-1 Conversion Rate" then in effect
(determined as provided in Section 4(b)) by the number of shares of Series E-1
Preferred being converted. The number of shares of Common Stock to which a
holder of Series E-2 Preferred shall be entitled upon conversion shall be the
product obtained by multiplying the "Series E-2 Conversion Rate" then in effect
(determined as provided in Section 4(c)) by the number of shares of Series E-2
Preferred being converted. The number of shares of Common Stock to which a
holder of Series E-3 Preferred shall be entitled upon conversion shall be a
product obtained by multiplying the "Series E-3 Conversion Rate" then in effect
(determined as provided in Section 4(d)) by the number of shares of Series E-3
Preferred being converted. The number of shares of Common Stock to which a
holder of Series E-4 Preferred shall be entitled upon conversion shall be the
product obtained by multiplying the "Series E-4 Conversion Rate" then in effect
(determined as provided in Section 4(e)), by the number of shares of Series E-4
Preferred being converted. The number of shares of Common Stock to which a
holder of Series E-5 Preferred shall be entitled upon conversion shall be the
product obtained by multiplying the "Series E-5 Conversion Rate" then in effect
(determined as provided in Section 4(f)), by the number of shares of Series E-5
Preferred being converted. The number of shares of Common Stock to which a
holder of Series E-6 Preferred shall be entitled upon conversion shall be the
product obtained by multiplying the "Series E-6 Conversion Rate" then in effect
(determined as provided in Section 4(g)), by the number of shares of Series E-6
Preferred being converted. The number of shares of Common Stock to which a
holder of Series E-7 Preferred shall be entitled upon conversion shall be the
product obtained by multiplying the "Series E-7 Conversion Rate" then in effect
(determined as provided in Section 4(h)), by the number of shares of Series E-7
Preferred being converted. The number of shares of Common Stock to which a
holder of T-Series Preferred shall be entitled upon conversion shall be the
product obtained by multiplying the "T-Series Conversion Rate" then in effect
(determined as provided in Section 4(i)), by the number of shares of T-Series
Preferred being converted.
(B) SERIES E-1 CONVERSION RATE. The conversion rate in effect at
any time for conversion of the Series E-1 Preferred (the "Series E-1 Conversion
Rate") shall be the quotient obtained by dividing $4.00 by the "Series E-1
Conversion Price," calculated as provided in Section 4(j).
(C) SERIES E-2 CONVERSION RATE. The conversion rate in effect at
any time for conversion of the Series E-2 Preferred (the "Series E-2 Conversion
Rate") shall be the
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quotient obtained by dividing $7.00 by the "Series E-2 Conversion Price,"
calculated as provided in Section 4(j).
(D) SERIES E-3 CONVERSION RATE. The conversion rate in effect at
any time for conversion of the Series E-3 Preferred (the "Series E-3 Conversion
Rate") shall be the quotient obtained by dividing $8.28 by the "Series E-3
Conversion Price," calculated as provided in Section 4(j).
(E) SERIES E-4 CONVERSION RATE. The conversion rate in effect at
any time for the conversion of the Series E-4 Preferred (the "Series E-4
Conversion Rate") shall be the quotient obtained by dividing $11.44 by the
"Series E-4 Conversion Price," calculated as provided in Section 4(j).
(F) SERIES E-5 CONVERSION RATE. The conversion rate in effect at
any time for the conversion of the Series E-5 Preferred (the "Series E-5
Conversion Rate") shall be the quotient obtained by dividing $6.00 by the
"Series E-5 Conversion Price," calculated as provided in Section 4(j).
(G) SERIES E-6 CONVERSION RATE. The conversion rate in effect at
any time for the conversion of the Series E-6 Preferred (the "Series E-6
Conversion Rate") shall be the quotient obtained by dividing $6.004 by the
"Series E-6 Conversion Price," calculated as provided in Section 4(j).
(H) SERIES E-7 CONVERSION RATE. The conversion rate in effect at
any time for the conversion of the Series E-7 Preferred (the "Series E-7
Conversion Rate") shall be the quotient obtained by dividing $10.12 by the
"Series E-7 Conversion Price" calculated as provided in Section 4(j).
(I) T-SERIES PREFERRED CONVERSION RATE. The conversion rate in
effect at any time for the conversion of the T-Series Preferred (the "T-Series
Preferred Conversion Rate") shall be the quotient obtained by dividing $3.46 by
the "T-Series Conversion Price" calculated as provided in Section 4(j).
(J) CONVERSION PRICE. The conversion price for the Series E-1
Preferred shall initially be $4.00 (the "Series E-1 Conversion Price"). The
conversion price for the Series E-2 Preferred shall initially be $7.00 (the
"Series E-2 Conversion Price"). The conversion price for the Series E-3
Preferred shall initially be $8.28 (the "Series E-3 Conversion Price"). The
conversion price for the Series E-4 Preferred shall initially be $11.44 (the
"Series E-4 Conversion Price"). The conversion price for the Series E-5
Preferred shall initially be $6.00 (the "Series E-5 Conversion Price"). The
conversion price for the Series E-6 Preferred shall initially be $6.004 (the
"Series E-6 Conversion Price"). The conversion price for the Series E-7
Preferred shall initially be $10.12 (the "Series E-7 Conversion Price"). The
conversion price for the T-Series Preferred shall initially be $3.46 (the
"T-Series Conversion Price"). Such initial Series E-1 Conversion Price, Series
E-2 Conversion Price, Series E-3 Conversion Price, Series E-4 Conversion Price,
Series E-5 Conversion Price, Series E-6 Conversion Price, Series E-7 Conversion
Price and T-Series Conversion Price (the "Conversion Prices") shall be adjusted
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from time to time in accordance with this Section 4. All references to the
Conversion Prices herein shall mean the Conversion Prices as so adjusted.
(K) MECHANICS OF CONVERSION. Each holder of Preferred Stock who
desires to convert the same into shares of Common Stock pursuant to this Section
4 shall surrender the certificate or certificates therefor, duly endorsed, at
the office of this corporation or any transfer agent for such stock, and shall
give written notice to this corporation at such office that such holder elects
to convert the same. Such notice shall state the series and number of shares of
Preferred Stock being converted. Thereupon, this corporation shall promptly
issue and deliver at such office to such holder a certificate or certificates
for the number of shares of Common Stock to which such holder is entitled. Such
conversion shall be deemed to have been made at the close of business on the
date of such surrender of the certificates representing the shares of Preferred
Stock to be converted, and the person entitled to receive the shares of Common
Stock issuable upon such conversion shall be treated for all purposes as the
record holder of such shares of Common Stock on such date.
(L) ADJUSTMENT FOR STOCK SPLITS AND COMBINATIONS. If this
corporation shall at any time or from time to time after the date that the first
share of T-Series Preferred is issued (the "T-Series Original Issue Date")
effect a subdivision of the outstanding Common Stock, the Conversion Prices in
effect immediately before that subdivision shall be proportionately decreased.
Conversely, if this corporation shall at any time or from time to time after the
T-Series Original Issue Date combine the outstanding shares of Common Stock into
a smaller number of shares, the Conversion Prices in effect immediately before
the combination shall be proportionately increased. Any adjustment under this
Section 4(l) shall become effective at the close of business on the date the
subdivision or combination becomes effective.
(M) ADJUSTMENT FOR COMMON STOCK DIVIDENDS AND DISTRIBUTIONS. If
this corporation at any time or from time to time after the T-Series Original
Issue Date makes, or fixes a record date for the designation of holders of
Common Stock entitled to receive, a dividend or other distribution payable in
additional shares of Common Stock, in each such event the Conversion Prices that
are then in effect shall each be decreased as of the time of such issuance or,
in the event such record date is fixed, as of the close of business on such
record date, by multiplying the respective Conversion Prices then in effect by a
fraction (i) the numerator of which is the total number of shares of Common
Stock issued and outstanding immediately prior to the time of such issuance or
the close of business on such record date, and (ii) the denominator of which is
the total number of shares of Common Stock issued and outstanding immediately
prior to the time of such issuance or the close of business on such record date
plus the number of shares of Common Stock issuable in payment of such dividend
or distribution; PROVIDED, HOWEVER, that if such record date is fixed and such
dividend is not fully paid or if such distribution is not fully made on the date
fixed therefor, the Conversion Prices shall be recomputed accordingly as of the
close of business on such record date and thereafter the Conversion Prices shall
be adjusted pursuant to this Section 4(m) to reflect the actual payment of such
dividend or distribution.
(N) ADJUSTMENTS FOR OTHER DIVIDENDS AND DISTRIBUTIONS. If this
corporation at any time or from time to time after the T-Series Original Issue
Date makes, or fixes a record date for the designation of holders of Common
Stock entitled to receive, a
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dividend or other distribution payable (i) in securities of this corporation
other than shares of Common Stock, or (ii) other property of this corporation,
in each such event provision shall be made so that the holders of Preferred
Stock shall receive upon conversion thereof, in addition to the number of shares
of Common Stock receivable thereupon, the amount of other securities or other
property of this corporation which they would have received had their Preferred
Stock been converted into Common Stock on the date of such event and had they
thereafter, during the period from the date of such event to and including the
conversion date, retained such securities receivable by them as aforesaid during
such period, subject to all other adjustments called for during such period
under this Section 4 with respect to the rights of the holders of Preferred
Stock or with respect to such other securities or other property by their terms.
(O) ADJUSTMENT FOR RECLASSIFICATION, EXCHANGE AND SUBSTITUTION.
If at any time or from time to time after the T-Series Original Issue Date, the
Common Stock issuable upon the conversion of Preferred Stock is changed into the
same or a different number of shares of any class or classes of stock, whether
by recapitalization, reclassification or otherwise (other than a subdivision or
combination of shares or stock dividend or a reorganization, merger,
consolidation or sale of assets provided for elsewhere in this Section 4 or in
Section 3(d)), in any such event each holder of Preferred Stock shall have the
right thereafter to convert such stock into the kind and amount of stock and
other securities and property receivable upon such recapitalization,
reclassification or other change for the maximum number of shares of Common
Stock into which such shares of Preferred Stock could have been converted
immediately prior to such recapitalization, reclassification or change, all
subject to further adjustment as provided herein or with respect to such other
securities or property by the terms thereof.
(P) RECAPITALIZATIONS. If at any time or from time to time after
the T-Series Original Issue Date, there is a capital reorganization of the
Common Stock (other than a recapitalization, subdivision, combination,
reclassification, exchange or substitution of shares provided for elsewhere in
this Section 4 or in Section 3(d)), as a part of such capital reorganization,
provision shall be made so that the holders of the Preferred Stock shall
thereafter be entitled to receive upon conversion of such Preferred Stock the
number of shares of stock or other securities or property to which a holder of
the number of shares of Common Stock deliverable upon conversion of such
Preferred Stock would have been entitled on such capital reorganization, subject
to adjustment in respect of such stock or securities by the terms thereof. In
any such case, appropriate adjustment shall be made in the application of the
provisions of this Section 4 with respect to the rights of the holders of
Preferred Stock after the capital reorganization to the end that the provisions
of this Section 4 (including adjustment of the Conversion Prices then in effect
and the number of shares issuable upon conversion of the Preferred Stock) shall
be applicable after that event and be as nearly equivalent as practicable.
(Q) SALE OF SHARES BELOW SERIES E-3 CONVERSION PRICE, SERIES E-4
CONVERSION PRICE, SERIES E-5 CONVERSION PRICE, SERIES E-6 CONVERSION PRICE,
SERIES E-7 CONVERSION PRICE OR T-SERIES CONVERSION PRICE.
(I) If at any time or from time to time after the T-Series
Original Issue Date, this corporation issues or sells, or is deemed by the
express provisions of this subsection (q) to have issued or sold, Additional
Shares of Common Stock (as hereinafter
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defined), other than as a dividend or other distribution on any class of stock
as provided in Section 4(m) above, and other than a subdivision or combination
of shares of Common Stock as provided in Section 4(l) above, for an Effective
Price (as hereinafter defined) less than the then effective Series E-3
Conversion Price, Series E-4 Conversion Price, Series E-5 Conversion Price,
Series E-6 Conversion Price, Series E-7 Conversion Price or T-Series Conversion
Price, then and in each such case the then existing Series E-3 Conversion Price,
Series E-4 Conversion Price, Series E-5 Conversion Price, Series E-6 Conversion
Price, Series E-7 Conversion Price or T-Series Conversion Price, as the case may
be, shall be reduced, as of the opening of business on the date of such issue or
sale, to a price determined by multiplying the Series E-3 Conversion Price,
Series E-4 Conversion Price, Series E-5 Conversion Price, Series E-6 Conversion
Price, Series E-7 Conversion Price or T-Series Conversion Price, as the case may
be, by a fraction (i) the numerator of which shall be (A) the number of shares
of Common Stock deemed outstanding (as defined below) immediately prior to such
issue or sale, plus (B) the number of shares of Common Stock which the aggregate
consideration received (as defined in subsection (q)(ii)) by this corporation
for the total number of Additional Shares of Common Stock so issued would
purchase at such Series E-3 Conversion Price, Series E-4 Conversion Price,
Series E-5 Conversion Price, Series E-6 Conversion Price, Series E-7 Conversion
Price or T-Series Conversion Price, as the case may be, and (ii) the denominator
of which shall be the number of shares of Common Stock deemed outstanding (as
defined below) immediately prior to such issue or sale plus the total number of
Additional Shares of Common Stock so issued. For the purposes of the preceding
sentence, the number of shares of Common Stock deemed to be outstanding as of a
given date shall be the sum of (A) the number of shares of Common Stock actually
outstanding, (B) the number of shares of Common Stock into which the then
outstanding shares of Preferred Stock could be converted if fully converted on
the day immediately preceding the given date, and (C) the number of shares of
Common Stock (including shares of Common Stock issuable upon conversion of
convertible securities) issuable upon the exercise of options, warrants or other
Common Stock or Preferred Stock purchase rights outstanding on the day
immediately preceding the given date.
(II) For the purpose of making any adjustment required under
this Section 4(q), the consideration received by this corporation for any issue
or sale of securities shall (A) to the extent it consists of cash, be computed
at the net amount of cash received by this corporation after deduction of any
underwriting or similar commissions, compensation or concessions paid or allowed
by this corporation in connection with such issue or sale but without deduction
of any expenses payable by this corporation, (B) to the extent it consists of
property other than cash, be computed at the fair value of that property as
determined in good faith by the Board of Directors, and (C) if Additional Shares
of Common Stock, Convertible Securities (as hereinafter defined) or rights or
options to purchase either Additional Shares of Common Stock or Convertible
Securities are issued or sold together with other stock or securities or other
assets of this corporation for a consideration which covers both, be computed as
the portion of the consideration so received that may be reasonably determined
in good faith by the Board of Directors to be allocable to such Additional
Shares of Common Stock, Convertible Securities or rights or options.
(III) For the purpose of the adjustment required under this
Section 4(q), if this corporation issues or sells any rights or options for the
purchase of, or stock or other securities convertible into or exchangeable for,
Additional Shares of Common Stock
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(such convertible stock or securities being herein referred to as "Convertible
Securities") and if the Effective Price of such Additional Shares of Common
Stock is less than the Series E-3 Conversion Price, Series E-4 Conversion Price,
Series E-5 Conversion Price, Series E-6 Conversion Price, Series E-7 Conversion
Price or T-Series Conversion Price, in each case this corporation shall be
deemed to have issued at the time of the issuance of such rights or options or
Convertible Securities the maximum number of Additional Shares of Common Stock
issuable upon exercise or conversion thereof and to have received as
consideration for the issuance of such shares an amount equal to the total
amount of the consideration, if any, received by this corporation for the
issuance of such rights or options or Convertible Securities, plus, in the case
of such rights or options, the minimum amounts of consideration, if any, payable
to this corporation upon the exercise of such rights or options, plus, in the
case of Convertible Securities, the minimum amounts of consideration, if any,
payable to this corporation (other than by cancellation of liabilities or
obligations evidenced by such Convertible Securities) upon the conversion
thereof; PROVIDED that if in the case of Convertible Securities the minimum
amounts of such consideration cannot be ascertained, but are a function of
antidilution or similar protective clauses, this corporation shall be deemed to
have received the minimum amounts of consideration without reference to such
clauses; PROVIDED FURTHER that if the minimum amount of consideration payable to
this corporation upon the exercise or conversion of rights, options or
Convertible Securities is reduced over time or on the occurrence or
non-occurrence of specified events other than by reason of antidilution
adjustments, the Effective Price shall be recalculated using the figure to which
such minimum amount of consideration is reduced; PROVIDED FURTHER that if the
minimum amount of consideration payable to this corporation upon the exercise or
conversion of such rights, options or Convertible Securities is subsequently
increased, the Effective Price shall be again recalculated using the increased
minimum amount of consideration payable to this corporation upon the exercise or
conversion of such rights, options or Convertible Securities. No further
adjustment of the Series E-3 Conversion Price, Series E-4 Conversion Price,
Series E-5 Conversion Price, Series E-6 Conversion Price, Series E-7 Conversion
Price or T-Series Conversion Price, as adjusted upon the issuance of such
rights, options or Convertible Securities, shall be made as a result of the
actual issuance of Additional Shares of Common Stock on the exercise of any such
rights or options or the conversion of any such Convertible Securities. If any
such rights or options or the conversion privilege represented by any such
Convertible Securities shall expire without having been exercised, the Series
E-3 Conversion Price, Series E-4 Conversion Price, Series E-5 Conversion Price,
Series E-6 Conversion Price, Series E-7 Conversion Price or T-Series Conversion
Price, as the case may be, as adjusted upon the issuance of such rights, options
or Convertible Securities shall be readjusted to the Series E-3 Conversion
Price, Series E-4 Conversion Price, Series E-5 Conversion Price, Series E-6
Conversion Price, Series E-7 Conversion Price or T-Series Conversion Price, as
the case may be, which would have been in effect had an adjustment been made on
the basis that the only Additional Shares of Common Stock so issued were the
Additional Shares of Common Stock, if any, actually issued or sold on the
exercise of such rights or options or rights of conversion of such Convertible
Securities, and such Additional Shares of Common Stock, if any, were issued or
sold for the consideration actually received by this corporation upon such
exercise, plus the consideration, if any, actually received by this corporation
for the granting of all such rights or options, whether or not exercised, plus
the consideration received for issuing or selling the Convertible Securities
actually converted, plus the consideration, if any, actually received by this
corporation (other than by cancellation of liabilities or obligations evidenced
by such Convertible
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Securities) on the conversion of such Convertible Securities, provided that such
readjustment shall not apply to prior conversions of Series E-3 Preferred,
Series E-4 Preferred, Series E-5 Preferred, Series E-6 Preferred, Series E-7
Conversion Price or T-Series Conversion Price, as the case may be.
(IV) "Additional Shares of Common Stock" shall mean all
shares of Common Stock issued by this corporation or deemed to be issued
pursuant to this Section 4(q), whether or not subsequently reacquired or retired
by this corporation other than (1) shares of Common Stock issued upon conversion
of Preferred Stock; (2) shares of Common Stock and/or options, warrants or other
Common Stock purchase rights and the Common Stock issued pursuant to such
options, warrants or other rights (as adjusted for any stock dividends,
combinations, splits, recapitalizations and the like) issued or to be issued to
employees, officers or directors of, or consultants or advisors to this
corporation or any subsidiary pursuant to stock purchase or stock option plans
or other arrangements that are approved by the Board of Directors of the
corporation; and (3) shares of Common Stock issued pursuant to the exercise of
options, warrants or convertible securities outstanding as of the T-Series
Original Issue Date. The "Effective Price" of Additional Shares of Common Stock
shall mean the quotient determined by dividing the total number of Additional
Shares of Common Stock issued or sold, or deemed to have been issued or sold by
this corporation under this Section 4(q), into the aggregate consideration
received, or deemed to have been received by this corporation for such issue
under this Section 4(q), for such Additional Shares of Common Stock.
(R) ACCOUNTANTS' CERTIFICATE OF ADJUSTMENT. In each case of an
adjustment or readjustment of the Series E-1 Conversion Price, Series E-2
Conversion Price, Series E-3 Conversion Price, Series E-4 Conversion Price,
Series E-5 Conversion Price, Series E-6 Conversion Price, Series E-7 Conversion
Price or T-Series Conversion Price or the type or amount of securities or other
property issuable upon conversion of any series of Preferred Stock, this
corporation, at its expense, shall compute such adjustment or readjustment in
accordance with the provisions hereof and prepare a certificate showing such
adjustment or readjustment and shall mail such certificate, by first class mail,
postage prepaid, to each registered holder of such Preferred Stock at the
holder's address as shown in this corporation's books. The certificate shall set
forth such adjustment or readjustment, showing in detail the facts upon which
such adjustment or readjustment is based, including a statement of the
Conversion Prices at the time in effect and the type and amount, if any, of
securities or other property which at the time would be received upon conversion
of the affected Preferred Stock.
(S) NOTICES OF RECORD DATE. Upon (i) any taking by this
corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend or other distribution, or (ii) any capital reorganization of this
corporation, any reclassification or recapitalization of the capital stock of
this corporation, any merger or consolidation of this corporation with or into
any other corporation, or any transfer of all or substantially all the assets of
this corporation to any other person, or any voluntary or involuntary
dissolution, liquidation or winding up of this corporation, this corporation
shall mail to each holder of Preferred Stock at least twenty (20) days prior to
the record date specified therein a notice specifying (a) the date on which any
such record is to be taken for the purpose of such dividend or distribution and
a description of such dividend or distribution, (b) the date on which any such
reorganization, reclassification, transfer,
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consolidation, merger, dissolution, liquidation or winding up is expected to
become effective, and (c) the date, if any, that is to be fixed as to when the
holders of record of Common Stock (or other securities) shall be entitled to
exchange their shares of Common Stock (or other securities) for securities or
other property deliverable upon such reorganization, reclassification, transfer,
consolidation, merger, dissolution, liquidation or winding up.
(T) AUTOMATIC CONVERSION.
(I) Each share of Preferred Stock shall automatically be
converted into shares of Common Stock, based on the then-effective Conversion
Prices, immediately upon the closing of a firmly underwritten public offering
pursuant to an effective registration statement under the Securities Act of
1933, as amended, covering the offer and sale of Common Stock for the account of
this corporation in which either (i)(A) the per share price is at least $9.00
(as adjusted for stock splits, recapitalizations and the like), and (B) the
gross cash proceeds to this corporation (before underwriting discounts,
commissions and fees) are at least $15,000,000, or (ii) the holders of fifty
percent (50%) or more of the outstanding shares of Preferred Stock, voting
together as a single class, approve such conversion in connection with such
public offering.
(II) Upon the occurrence of any event specified in paragraph
(i) above, the outstanding shares of Preferred Stock shall be converted
automatically without any further action by the holders of such shares and
whether or not the certificates representing such shares are surrendered to this
corporation or its transfer agent; PROVIDED, HOWEVER, that in the case of a
conversion in connection with a firmly underwritten public offering, at the
option of the holder of the Preferred Stock being converted, the conversion may
be conditioned upon the closing with the underwriter or underwriters of the sale
of securities pursuant to such offering, and such conversion shall be deemed to
occur immediately prior to the closing of such sale of securities; and PROVIDED
FURTHER, that this corporation shall not be obligated to issue certificates
evidencing the shares of Common Stock issuable upon such conversion unless the
certificates evidencing such shares of Preferred Stock are either delivered to
this corporation or its transfer agent as provided below, or the holder notifies
this corporation or its transfer agent that such certificates have been lost,
stolen or destroyed. Upon the occurrence of such automatic conversion of the
Preferred Stock, the holders of such Preferred Stock shall surrender the
certificates representing such shares at the office of this corporation or any
transfer agent for the Preferred Stock. Thereupon, there shall be issued and
delivered to such holder promptly at such office and in its name as shown on
such surrendered certificate or certificates, a certificate or certificates for
the number of shares of Common Stock into which the shares of Preferred Stock
surrendered were convertible on the date on which such automatic conversion
occurred.
(U) FRACTIONAL SHARES. No fractional shares of Common Stock shall
be issued upon conversion of Preferred Stock. All shares of Common Stock
(including fractions thereof) issuable upon conversion of more than one share of
Preferred Stock by a holder thereof shall be aggregated for purposes of
determining whether the conversion would result in the issuance of any
fractional share. If, after the afore-mentioned aggregation, the conversion
would result in the issuance of any fractional share, this corporation shall, in
lieu of issuing any fractional share, pay cash equal to the product of such
fraction multiplied by the fair market value of a share of Common Stock (as
determined by the Board) on the date of conversion.
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(V) RESERVATION OF STOCK ISSUABLE UPON CONVERSION. This
corporation shall at all times reserve and keep available out of its authorized
but unissued shares of Common Stock, solely for the purpose of effecting the
conversion of the shares of the Preferred Stock, such number of its shares of
Common Stock as shall from time to time be sufficient to effect the conversion
of all outstanding shares of the Preferred Stock. If at any time the number of
authorized but unissued shares of Common Stock shall not be sufficient to effect
the conversion of all then outstanding shares of the Preferred Stock, this
corporation will take such corporate action as may, in the opinion of its
counsel, be necessary to increase its authorized but unissued shares of Common
Stock to such number of shares as shall be sufficient for such purpose.
(W) NOTICES. Any notice required by the provisions of this
Section 4 to be given to the holders of shares of the Preferred Stock shall be
deemed given upon the earlier of actual receipt by hard or by confirmed fax or
seventy-two (72) hours after the same has been deposited in the United States
mail, by certified or registered mail, return receipt requested, postage
prepaid, and addressed to each holder of record at the address of such holder
appearing on the books of this corporation.
(X) PAYMENT OF TAXES. This corporation will pay all taxes (other
than taxes based upon income) and other governmental charges that may be imposed
with respect to the issue or delivery of shares of Common Stock upon conversion
of shares of Preferred Stock, excluding any tax or other charge imposed in
connection with any transfer involved in the issue and delivery of shares of
Common Stock in a name other than that in which the shares of Preferred Stock so
converted were registered.
(Y) NO DILUTION OR IMPAIRMENT. This corporation shall not amend
its Certificate of Incorporation or participate in any reorganization, transfer
of assets, consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, for the purpose of avoiding or seeking to avoid the
observance or performance of any of the terms to be observed or performed
hereunder by this corporation, but shall at all times in good faith assist in
carrying out all such action as may be reasonably necessary or appropriate in
order to protect the conversion rights of the holders of the Preferred Stock
against dilution or other impairment.
5. NO REISSUANCE OF PREFERRED STOCK. No share or shares of
Preferred Stock acquired by this corporation by reason of redemption, purchase,
conversion or otherwise shall be reissued.
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:
A. 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 which shall
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constitute the whole Board of Directors shall be fixed exclusively by one or
more resolutions adopted by the Board of Directors and in accordance with
Article IV.
2. Subject to the rights of the holders of the Preferred Stock set
forth in Article IV, any vacancy 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 vacancy or
newly created directorship 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. 1. Subject to paragraph (h) of Section 42 of the Bylaws and the rights
of the holders of the Preferred Stock, 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. The Board of Directors shall also have the
power to adopt, amend, or repeal Bylaws.
2. The directors of the corporation need not be elected by written
ballot unless the Bylaws so provide.
3. Effective upon the closing of the initial public offering of Common
Stock of the corporation, 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.
4. Special meetings of the stockholders of the corporation may be
called, for any purpose or purposes, by (i) the Chairman of the Board of
Directors, (ii) the Chief Executive Officer, (iii) the Board of Directors
pursuant to a resolution adopted by a majority of the total number of authorized
directors (whether or not there exist any vacancies in previously authorized
directorships at the time any such resolution is presented to the Board of
Directors for adoption) or (iv) by the holders of the shares entitled to cast
not less that ten percent (10%) of the votes at the meeting, and shall be held
at such place, on such date, and at such time as the Board of Directors shall
fix.
5. Except with regard to the nomination and election of directors
provided for in Article IV, 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.
VI.
A. A director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for any 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
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violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived an improper
personal benefit. If the Delaware General Corporation Law is amended after
approval by the stockholders of this Article to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director shall be eliminated or limited to the fullest extent
permitted by the Delaware General Corporation Law, as so amended.
B. 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.
VII.
A. The corporation reserves the right to amend, alter, change or repeal any
provision contained in this Amended and Restated Certificate of Incorporation,
in the manner now or hereafter prescribed by statute and all rights conferred
upon the stockholders herein are granted subject to this reservation.
B. This Amended and Restated Certificate of Incorporation has been duly
approved by the Board of Directors of this corporation.
C. This Amended and Restated Certificate of Incorporation has been duly
approved by the required vote of stockholders of the corporation in accordance
with Sections 228, 242 and 245 of the Delaware General Corporation law. The
total number of outstanding shares entitled to vote or consent to this Amendment
was 53,068,315 shares, including 1,294,379 shares of Common Stock, 852,500
shares of Series E-1 Preferred Stock of the Company, 1,732,802 shares of Series
E-2 Preferred Stock of the Company, 1,982,858 shares of Series E-3 Preferred
Stock of the Company, 2,492,938 shares of Series E-4 Preferred Stock of the
Company, 4,974,619 shares of Series E-5 Preferred Stock of the Company,
6,912,801 shares of Series E-6 Preferred Stock of the Company, 4,899,292 shares
of Series E-7 Preferred Stock of the Company, and 27,926,126 shares of Series
T-1 Preferred Stock of the Company. A majority of the outstanding shares of
Common Stock, Series E-1 Preferred Stock, Series E-2 Preferred Stock, Series E-3
Preferred Stock, Series E-4 Preferred Stock, Series E-5 Preferred Stock, Series
E-6 Preferred Stock, Series E-7 Preferred Stock, and Series T-1 Preferred Stock,
voting together as a single class and a majority of the outstanding shares of
the Series E-1 Preferred Stock, Series E-2 Preferred Stock, Series E-3 Preferred
Stock, Series E-4 Preferred Stock, Series E-5 Preferred Stock, Series E-6
Preferred Stock, Series E-7 Preferred Stock, and Series T-1 Preferred Stock,
voting together as a single class voted in favor of this Amended and Restated
Certificate of Incorporation.
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IN WITNESS WHEREOF, EndWave Corporation has caused this Amended and
Restated Certificate of Incorporation to be signed by the President and the
Secretary in Sunnyvale, California this 6 day of June, 2000.
ENDWAVE CORPORATION
By: /s/ EDWARD A KEIBLE, JR.
-----------------------------------
Edward A. Keible, Jr.
President
ATTEST:
By: /s/ JULIANNE M. BIAGINI
-------------------------------------------------
Julianne M. Biagini
Secretary
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