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EXHIBIT 3.3
RESTATED CERTIFICATE OF INCORPORATION
OF
WILDBLUE COMMUNICATIONS, INC.
Wildblue Communications, Inc., a corporation organized and existing under
the laws of the State of Delaware, hereby certifies as follows:
1. The corporation was originally incorporated under the name KaSTAR
Satellite Communications Corp. on May 20, 1999.
2. The corporation filed an Amended and Restated Certificate of
Incorporation reflecting the corporation's name change to "iSKY.net, Inc." and
certain other amendments on October 19, 1999.
3. The corporation filed a Certificate of Amendment to the Amended and
Restated Certificate of Incorporation reflecting the corporation's name change
to "iSKY, Inc." on December 3, 1999.
4. The corporation filed a Certificate of Amendment to the Amended and
Restated Certificate of Incorporation reflecting the corporation's name change
to "Wildblue Communications, Inc." effective August 15, 2000.
5. This Restated Certificate of Incorporation was duly adopted in
accordance with the provisions of Section 242 and 245 of the General Corporation
Law of the State of Delaware.
6. This Restated Certificate of Incorporation shall be effective upon
filing with the Secretary of State of the State of Delaware.
I.
The name of this corporation is Wildblue Communications, Inc.
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, and
the name of the registered agent of the corporation in the State of Delaware at
such address is The Corporation Trust Company.
1.
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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 FIFTY
MILLION (150,000,000) shares. ONE HUNDRED THIRTY-FIVE MILLION (135,000,000)
shares shall be Common Stock, each having a par value of one-tenth of one cent
($.001). FIFTEEN MILLION (15,000,000) shares shall be Preferred Stock, each
having a par value of one-tenth of one cent ($.001).
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. BOARD OF DIRECTORS
1. MANAGEMENT. The management of the business and the conduct of the
affairs of the corporation shall be vested in its Board of Directors. Subject to
the corporation's bylaws, the number of directors which 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 corporation's bylaws and the
rights of the holders of any series of Preferred Stock to elect additional
directors under specified circumstances, directors shall be elected at each
annual meeting of stockholders for a term of one year. Each director shall serve
until his successor is duly elected and qualified or until his death,
2.
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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. The Board of Directors or any individual
director may be removed from office at any time (a) with cause by the
affirmative vote of the holders of a majority of the voting power of all the
then-outstanding shares of voting stock of the corporation, entitled to vote at
an election of directors or (b) without cause by the affirmative vote of the
holders of at least sixty-six and two-thirds percent (66 2/3%) of the voting
power of all the then-outstanding shares of the voting stock 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. BYLAWS
1. 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. 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.
3.
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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.
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.
4.
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IN WITNESS WHEREOF, this Certificate has been subscribed this __________
day of __________, 200_ by the undersigned who affirms that the statements made
herein are true and correct.
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