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EXHIBIT 3.1
FORM OF RESTATED
CERTIFICATE OF INCORPORATION
OF McDATA CORPORATION
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Pursuant to Sections 242 and 245 of the
Delaware General Corporation Law
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McDATA Corporation (the "Corporation"), a corporation
organized and existing under the General Corporation Law of the State of
Delaware (the "GCL"), does hereby certify as follows:
(1) The name of the Corporation is McDATA Corporation. The
Corporation was originally incorporated under the name JMCD Corporation. The
original certificate of incorporation of the Corporation was filed with the
office of the Secretary of State of the State of Delaware on July 31, 1997 and
was amended and restated on October 1, 1997.
(2) This Restated Certificate of Incorporation was duly
adopted by the Board of Directors of the Corporation (the "Board of Directors")
and by the stockholders of the Corporation in accordance with Sections 228, 242
and 245 of the GCL.
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(3) This Restated Certificate of Incorporation restates and
integrates and further amends the certificate of incorporation of the
Corporation, as heretofore amended or supplemented.
(4) The text of the Certificate of Incorporation is restated
in its entirety as follows:
FIRST: The name of the Corporation is McDATA Corporation (the
"Corporation").
SECOND: 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, 19801. The name of its registered agent at that address is
The Corporation Trust Company.
THIRD: The purpose of the 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 "GCL").
FOURTH: (a) AUTHORIZED CAPITAL STOCK. The total number of
shares of stock which the Corporation shall have authority to issue is
475,000,000 shares of capital stock, consisting of (i) 250,000,000 shares of
class A common stock, par value $.01 per share (the "Class A Common Stock"),
(ii) 200,000,000 shares of class B common stock, par value $.01 per share (the
"Class B Common Stock" and, together with the Class A Common Stock, the "Common
Stock"), and (iii)
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25,000,000 shares of preferred stock, par value $.01 per share (the "Preferred
Stock").
(b) COMMON STOCK. The powers, preferences and rights, and the
qualifications, limitations and restrictions, of each class of the Common Stock
are as follows:
(1) RANKING. Except as otherwise expressly provided
in this Restated Certificate of Incorporation, the powers, preferences and
rights of the holders of Class A Common Stock and holders of Class B Common
Stock, and the qualifications, limitations and restrictions thereof, shall be in
all respects identical.
(2) VOTING. Except as otherwise expressly required by
law or provided in this Restated Certificate of Incorporation, and subject to
any voting rights provided to holders of Preferred Stock at any time
outstanding, the holders of any outstanding shares of Class A Common Stock and
the holders of any outstanding shares of Class B Common Stock shall vote
together as a single class on all matters with respect to which stockholders are
entitled to vote under applicable law, this Restated Certificate of
Incorporation or the By-Laws of the Corporation, or upon which a vote of
stockholders is otherwise duly called for by the Corporation. At each annual or
special meeting of stockholders, each holder of record of shares of Class A
Common Stock on the relevant record date shall be entitled to cast for each
share of the Class A Common Stock standing in such holder's name on the stock
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transfer records of the Corporation one (1) vote in person or by proxy, and each
holder of record of shares of Class B Common Stock on the relevant record date
shall be entitled to cast for each share of Class B Common Stock standing in
such holder's name on the stock transfer records of the Corporation one-tenth
(1/10) of a vote in person or by proxy.
(3) NO CUMULATIVE VOTING. Neither the holders of
shares of Class A Common Stock nor the holders of shares of Class B Common Stock
shall have cumulative voting rights.
(4) DIVIDENDS; STOCK SPLITS. Subject to the rights of
the holders of Preferred Stock, and subject to any other provisions of this
Restated Certificate of Incorporation, as it may be amended from time to time,
holders of shares of Class A Common Stock and shares of Class B Common Stock
shall be entitled to receive such dividends and other distributions in cash,
stock or property of the Corporation when, as and if declared thereon by the
Board of Directors from time to time out of assets or funds of the Corporation
legally available therefor. If, at any time, a dividend or other distribution in
cash or other property (other than dividends or other distributions payable in
shares of Common Stock or other voting securities of the Corporation, or rights,
options or warrants to purchase shares of Common Stock or other voting
securities of the Corporation or securities convertible into or exchangeable for
shares of Common Stock or other voting securities of the Corpora-
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tion) is declared or paid on the shares of Class A Common Stock or shares of
Class B Common Stock, a like dividend or other distribution in cash or other
property shall also be declared or paid, as the case may be, on shares of Class
B Common Stock or shares of Class A Common Stock, as the case may be, in an
equal amount per share. If, at any time, a dividend or other distribution
payable in shares of Common Stock or other voting securities of the Corporation,
or rights, options or warrants to purchase shares of Common Stock or other
voting securities of the Corporation, or securities convertible into or
exchangeable for shares of Common Stock or other voting securities of the
Corporation is paid or declared on shares of Class A Common Stock or Class B
Common Stock, a like dividend or other distribution shall also be paid or
declared, as the case may be, on shares of Class B Common Stock or Class A
Common Stock, as the case may be, in an equal amount per share; PROVIDED, that,
for this purpose, if shares of Class A Common Stock or other voting securities
of the Corporation, or rights, options or warrants to purchase shares of Class A
Common Stock or other voting securities of the Corporation or securities
convertible into or exchangeable for shares of Class A Common Stock or other
voting securities of the Corporation, are paid on shares of Class A Common
Stock, and shares of Class B Common Stock or voting securities identical to the
other voting securities paid on the shares of Class A Common Stock or rights,
options or warrants to purchase shares of Class B Common Stock or such other
voting securities or securities convertible into
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or exchangeable for shares of Class B Common Stock or such other voting
securities, are paid on shares of Class B Common Stock, in an equal amount per
share of Class A Common Stock and Class B Common Stock, such dividend or other
distribution shall be deemed to be a like dividend or other distribution. In the
case of any split, subdivision, combination or reclassification of shares of
Class A Common Stock or Class B Common Stock, the shares of Class B Common Stock
or Class A Common Stock, as the case may be, shall also be split, subdivided,
combined or reclassified so that the number of shares of Class A Common Stock
and Class B Common Stock outstanding immediately following such split,
subdivision, combination or reclassification shall bear the same relationship to
each other as did the number of shares of Class A Common Stock and Class B
Common Stock outstanding immediately prior to such split, subdivision,
combination or reclassification.
(5) LIQUIDATION, DISSOLUTION, ETC. In the event of
any liquidation, dissolution or winding up (either voluntary or involuntary) of
the Corporation, the holders of shares of Class A Common Stock and the holders
of shares of Class B Common Stock shall be entitled to receive the assets and
funds of the Corporation available for distribution after payments to creditors
and to the holders of any Preferred Stock of the Corporation that may at the
time be outstanding, in proportion to the number of shares held by them,
respectively, without regard to class.
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(6) MERGER, ETC. In the event of a merger or
consolidation of the Corporation with or into another entity (whether or not the
Corporation is the surviving entity), the holders of each share of Class A
Common Stock and Class B Common Stock shall be entitled to receive the same per
share consideration on a per share basis; PROVIDED that, if such consideration
shall consist in any part of voting securities (or of options or warrants to
purchase, or of securities convertible into or exchangeable for, voting
securities), the holders of shares of Class A Common Stock may receive, on a per
share basis, voting securities with ten (10) times the number of votes per share
as those voting securities to be received by the holders of shares of Class B
Common Stock (or options or warrants to purchase, or securities convertible into
or exchangeable for, voting securities with ten times the number of votes per
share as those voting securities issuable upon exercise of the options or
warrants to be received by the holders of the shares of Class B Common Stock, or
into which the convertible or exchangeable securities to be received by the
holders of the shares of Class B Common Stock may be converted or exchanged).
(7) NO PREEMPTIVE OR SUBSCRIPTION RIGHTS. No holder
of shares of Class A Common Stock or Class B Common Stock shall be entitled to
preemptive or subscription rights.
(c) PREFERRED STOCK. The Board of Directors is hereby
expressly authorized to provide for the issuance of all or any shares of the
Preferred Stock in
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one or more classes or series, and to fix for each such class or series such
voting powers, full or limited, or no voting powers, and such designations,
preferences and relative, participating, optional or other special 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 class or series, including, without
limitation, the authority to provide that any such class or series may be (i)
subject to redemption at such time or times and at such price or prices; (ii)
entitled to receive dividends (which may be cumulative or non-cumulative) at
such rates, on such conditions, and at such times, and payable in preference to,
or in such relation to, the dividends payable on any other class or classes or
any other series; (iii) entitled to such rights upon the dissolution of, or upon
any distribution of the assets of, the Corporation; or (iv) convertible into, or
exchangeable for, shares of any other class or classes of stock, or of any other
series of the same or any other class or classes of stock, of the Corporation at
such price or prices or at such rates of exchange and with such adjustments; all
as may be stated in such resolution or resolutions.
(d) POWER TO SELL AND PURCHASE SHARES. Subject to the
requirements of applicable law, the Corporation shall have the power to issue
and sell all or any part of any shares of any class of stock herein or hereafter
authorized to such persons, and for such consideration, as the Board of
Directors shall from time to
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time, in its discretion, determine, whether or not greater consideration could
be received upon the issue or sale of the same number of shares of another
class, and as otherwise permitted by law. Subject to the requirements of
applicable law, the Corporation shall have the power to purchase any shares of
any class of stock herein or hereafter authorized from such persons, and for
such consideration, as the Board of Directors shall from time to time, in its
discretion, determine, whether or not less consideration could be paid upon the
purchase of the same number of shares of another class, and as otherwise
permitted by law.
FIFTH: The following provisions are inserted for the
management of the business and the conduct of the affairs of the Corporation,
and for further definition, limitation and regulation of the powers of the
Corporation and of its directors and stockholders:
(a) The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors.
(b) The Board of Directors shall consist of not less than
three (3) or more than fifteen (15) members, the exact number of which shall be
fixed from time to time by resolution adopted by the affirmative vote of a
majority of the active Board of Directors.
(c) The directors shall be divided into three classes,
designated Class I, Class II and Class III. Each class shall consist, as nearly
as may be possible,
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of one-third of the total number of directors constituting the entire Board of
Directors. The initial division of the Board of Directors into classes shall be
made by the decision of the affirmative vote of a majority of the entire Board
of Directors. The term of the initial Class I directors shall terminate on the
date of the 2001 annual meeting; the term of the initial Class II directors
shall terminate on the date of the 2002 annual meeting; and the term of the
initial Class III directors shall terminate on the date of the 2003 annual
meeting. At each succeeding annual meeting of stockholders beginning in 2001,
successors to the class of directors whose term expires at that annual meeting
shall be elected for a three-year term. If the number of directors is changed,
any increase or decrease shall be apportioned among the classes so as to
maintain the number of directors in each class as nearly equal as possible, and
any additional director of any class elected to fill a vacancy resulting from an
increase in such class shall hold office for a term that shall coincide with the
remaining term of that class, but in no case will a decrease in the number of
directors shorten the term of any incumbent director.
(d) A director shall hold office until the annual meeting for
the year in which his or her term expires and until his or her successor shall
be elected and shall qualify, subject, however, to prior death, resignation,
retirement, disqualification or removal from office.
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(e) Subject to the terms of any one or more classes or series
of Preferred Stock, any vacancy on the Board of Directors that results from an
increase in the number of directors may be filled by a majority of the Board of
Directors then in office, provided that a quorum is present, and any other
vacancy occurring on the Board of Directors may be filled by a majority of the
Board of Directors then in office, even if less than a quorum, or by a sole
remaining director. Any director of any class elected to fill a vacancy
resulting from an increase in the number of directors of such class shall hold
office for a term that shall coincide with the remaining term of that class. Any
director elected to fill a vacancy not resulting from an increase in the number
of directors shall have the same remaining term as that of his predecessor.
Notwithstanding the foregoing and the provisions of Article FIFTH subsection
(f), whenever the holders of any one or more classes or series of Preferred
Stock issued by the Corporation shall have the right, voting separately by class
or series, to elect directors at an annual or special meeting of stockholders,
the election, term of office, filling of vacancies and other features of such
directorships shall be governed by the terms of this Restated Certificate of
Incorporation applicable thereto, and such directors so elected shall not be
divided into classes pursuant to this Article FIFTH unless expressly provided by
such terms.
(f) Subject to the rights, if any, of the holders of shares of
any series of Preferred Stock, any or all of the directors may be removed from
office at
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any time (i) with cause by the affirmative vote of stockholders who are entitled
to cast at least a majority of the total number of votes entitled to be cast at
an election of directors or (ii) without cause by the affirmative vote of
stockholders who are entitled to cast at least seventy percent (70%) of the
total number of votes entitled to be cast at an election of directors.
(g) In addition to the powers and authority hereinbefore or by
statute expressly conferred upon them, the directors are hereby empowered to
exercise all such powers and do all such acts and things as may be exercised or
done by the Corporation, subject, nevertheless, to the provisions of the GCL,
this Restated Certificate of Incorporation, and any By-Laws adopted by the
stockholders; PROVIDED, HOWEVER, that no By-Laws hereafter adopted by the
stockholders shall invalidate any prior act of the directors which would have
been valid if such By-Laws had not been adopted.
SIXTH: No director shall be personally liable to the
Corporation or any of its stockholders for monetary damages for breach of
fiduciary duty as a director, except to the extent such exemption from liability
or limitation thereof is not permitted under the GCL as the same exists or may
hereafter be amended. If the GCL is amended hereafter to authorize the further
elimination or limitation of the liability of directors, then the liability of a
director of the Corporation shall be eliminated or limited to the fullest extent
authorized by the GCL, as so amended. Any
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repeal or modification of this Article SIXTH shall not adversely affect any
right or protection of a director of the Corporation existing at the time of
such repeal or modification with respect to acts or omissions occurring prior to
such repeal or modification.
SEVENTH: The Corporation shall indemnify its directors and
officers to the fullest extent authorized or permitted by law, as now or
hereafter in effect, and such right to indemnification shall continue as to a
person who has ceased to be a director or officer of the Corporation and shall
inure to the benefit of his or her heirs, executors and personal and legal
representatives; PROVIDED, HOWEVER, that, except for proceedings to enforce
rights to indemnification, the Corporation shall not be obligated to indemnify
any director or officer (or his or her heirs, executors or personal or legal
representatives) in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented
to by the Board of Directors. The right to indemnification conferred by this
Article SEVENTH shall include the right to be paid by the Corporation the
expenses incurred in defending or otherwise participating in any proceeding in
advance of its final disposition.
The Corporation may, to the extent authorized from time to
time by the Board of Directors, provide rights to indemnification and to the
advancement of
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expenses to employees and agents of the Corporation similar to those conferred
in this Article SEVENTH to directors and officers of the Corporation.
The rights to indemnification and to the advance of expenses
conferred in this Article SEVENTH shall not be exclusive of any other right
which any person may have or hereafter acquire under this Restated Certificate
of Incorporation, the By-Laws of the Corporation, any statute, agreement, vote
of stockholders or disinterested directors or otherwise.
Any repeal or modification of this Article SEVENTH shall not
adversely affect any rights to indemnification and to the advancement of
expenses of a director or officer of the Corporation existing at the time of
such repeal or modification with respect to any acts or omissions occurring
prior to such repeal or modification.
EIGHTH: Meetings of stockholders may be held within or without
the State of Delaware, as the By-Laws may provide. The books of the Corporation
may be kept (subject to any provision contained in the GCL) outside 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 By-Laws of the Corporation.
NINTH: In furtherance and not in limitation of the powers
conferred upon it by the laws of the State of Delaware, the Board of Directors
shall have the power to adopt, amend, alter or repeal the Corporation's By-Laws.
The affirmative
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vote of at least a majority of the entire Board of Directors shall be required
to adopt, amend, alter or repeal the Corporation's By-Laws. The Corporation's
By-Laws also may be adopted, amended, altered or repealed by the affirmative
vote of stockholders who are entitled to cast at least seventy percent (70%) of
the total number of votes entitled to be cast at an election of directors.
TENTH: The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Restated Certificate of
Incorporation in the manner now or hereafter prescribed in this Restated
Certificate of Incorporation, the Corporation's By-Laws or the GCL, and all
rights herein conferred upon stockholders are granted subject to such
reservation; PROVIDED, HOWEVER, that, notwithstanding any other provision of
this Restated Certificate of Incorporation (and in addition to any other vote
that may be required by law), the affirmative vote of stockholders who are
entitled to cast at least seventy percent (70%) of the total number of votes
entitled to be cast at an election of directors shall be required to amend,
alter, change or repeal, or to adopt any provision as part of this Restated
Certificate of Incorporation inconsistent with the purpose and intent of
Articles FIFTH and NINTH of this Restated Certificate of Incorporation or this
Article TENTH.
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IN WITNESS WHEREOF, the Corporation has caused this Restated
Certificate of Incorporation to be executed on its behalf this __day of ______,
2000.
McDATA CORPORATION
By:
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Name:
Title:
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