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EXHIBIT 3.3
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 One Hundred and Five
Million (105,000,000) shares. One Hundred Million (100,000,000) shares shall be
Common Stock, each having a par value of one-hundredth of one cent ($.001). Five
Million (5,000,000) shares shall be Preferred Stock, each having a par value of
one-hundredth of one cent ($.001).
1.
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B. 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 Delaware General Corporation Law. 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.
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 that shall constitute the whole Board of Directors shall be fixed
exclusively by one or more resolutions adopted by the Board of Directors.
2. BOARD OF DIRECTORS
Subject to the rights of the holders of any series of Preferred
Stock to elect additional directors under specified circumstances, the 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 adoption and filing of this
Certificate of Incorporation, 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 adoption and filing of
this Certificate of Incorporation, 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 adoption and
filing of this Certificate of Incorporation, 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.
2.
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Notwithstanding the foregoing provisions of this section, 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.
3. REMOVAL OF DIRECTORS
a. Neither the Board of Directors nor any individual director may
be removed without cause.
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.
4. VACANCIES
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.
B.
1. BYLAW AMENDMENTS
Subject to paragraph (h) of Section 43 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.
2. The directors of the corporation need not be elected by written
ballot unless the Bylaws so provide.
3.
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3. 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 of this corporation and
following the closing of the initial public offering no action shall be taken by
the stockholders by written consent.
4. 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. The liability of the directors for monetary damages shall be eliminated
to the fullest extent under applicable law.
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 Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, except as provided in paragraph B. of this
Article VII, and all rights conferred upon the stockholders herein are granted
subject to this reservation.
B. 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.
VIII.
A. This Amended and Restated Certificate of Incorporation has been duly
approved by the Board of Directors of this corporation.
B. 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 26,531,455 shares, including 650,153 shares of Common Stock, 426,250 shares
of Series E-1 Preferred Stock of the Company, 866,398 shares of Series E-2
Preferred Stock of the Company, 991,423 shares of Series E-3 Preferred Stock of
the Company, 1,246,464 shares of Series E-4 Preferred Stock of the Company,
2,481,671 shares of Series E-5 Preferred Stock of the Company, 3,456,391 shares
of Series E-6 Preferred Stock of the Company, 2,449,636 shares of Series E-7
Preferred Stock of the Company, and 13,963,063
4.
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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.
5.
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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 ___ day of _____, 2000.
ENDWAVE CORPORATION
By:
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Edward A. Keible, Jr.
President
ATTEST:
By:
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Julianne M. Biagini
Secretary
6.
