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EXHIBIT 3.03
FIRST AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
TALARIAN CORPORATION
ARTICLE I
The name of the corporation is Talarian Corporation.
ARTICLE II
The address of the registered office of the corporation in the State of
Delaware is 15 East North Street, City of Dover, County of Kent. The name of its
registered agent at that address is Incorporating Services, Ltd.
ARTICLE III
The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
ARTICLE IV
A. Authorization of Shares
The total number of shares of all classes of stock which the corporation
has authority to issue is sixty-three million eight hundred eighty-two thousand
five hundred ninety-eight (63,882,598) shares, consisting of two classes: fifty
million (50,000,000) shares of Common Stock, $0.001 par value per share, and
thirteen million eight hundred eighty-two thousand five hundred ninety-eight
(13,882,598) shares of Preferred Stock, $0.001 par value per share.
B. Designation of Future Series of Preferred Stock
The Board of Directors is authorized, subject to any limitations
prescribed by the law of the State of Delaware, to provide for the issuance of
the shares of Preferred Stock in one or more series, and, by filing a
certificate of designation pursuant to the applicable law of the State of
Delaware, to establish from time to time the number of shares to be included in
each such series, to fix the designation, powers, preferences and rights of the
shares of each such series and any qualifications, limitations or restrictions
thereof and to increase or decrease the number of shares of any such series (but
not below the number of shares of such series then outstanding). Subject to
approval by the Board of Directors, the number of authorized shares of Preferred
Stock may be increased or decreased (but not below the number of shares thereof
then outstanding) by the affirmative vote of the holders of a majority of the
stock of the corporation entitled to vote, unless a vote of any other holders is
required pursuant to a certificate or certificates establishing a series of
Preferred Stock.
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Except as expressly provided in any certificate of designation
designating any series of Preferred Stock pursuant to the foregoing provisions
of this Article IV, any new series of Preferred Stock may be designated, fixed
and determined as provided herein by the Board of Directors without approval of
the holders of Common Stock or the holders of Preferred Stock, or any series
thereof, and any such new series may have powers, preferences and rights,
including, without limitation, voting rights, dividend rights, liquidation
rights, redemption rights and conversion rights senior to, junior to or pari
passu with the rights of the Common Stock, the Preferred Stock, or any future
class or series of Preferred Stock or Common Stock.
If the certificate of designation creating a series of Preferred Stock
so provides, any shares of a series of Preferred Stock that are acquired by the
corporation, whether by redemption, purchase, conversion or otherwise, so that
such shares are issued but not outstanding, may not be reissued as shares of
such series or as shares of the class of Preferred Stock. Upon the retirement of
any such shares and the filing of a certificate of retirement pursuant to
Sections 103 and 243 of the Delaware General Corporation Law with respect
thereto, the shares of such series shall be eliminated and the number of shares
of Preferred Stock shall be reduced accordingly.
ARTICLE V
The Board of Directors of the corporation shall have the power to adopt,
amend or repeal the Bylaws of the corporation.
ARTICLE VI
Election of directors need not be by written ballot unless the Bylaws of
the corporation shall so provide.
ARTICLE VII
A. Number of Directors. The number of directors constituting the entire
Board shall be fixed from time to time exclusively by vote of a majority of the
entire Board. The number of directors shall not be reduced so as to shorten the
term of any director at the time in office.
B. Classified Board. Subject to the rights of the holders of any series
of Preferred Stock to elect additional directors under specified circumstances,
following the closing of the corporation's initial public offering pursuant to
an effective registration statement under the Securities Act of 1933, as
amended, covering the offer and sale of Common Stock to the public (the "Initial
Public Offering"), the directors shall be divided, with respect to the time for
which they severally hold office, 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, with the number of directors in each class to be divided as equally
as reasonably possible. The term of office of the Class I directors shall expire
at the corporation's first annual meeting of stockholders following the closing
of the corporation's Initial Public Offering, the term of office of the Class II
directors shall expire at the corporation's second annual meeting of
stockholders following the closing of the Initial Public Offering, and the term
of office of the Class III directors shall expire at the corporation's third
annual meeting of stockholders following the closing of the Initial Public
Offering. At each annual meeting of
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stockholders commencing with the first annual meeting of stockholders following
the closing of the Initial Public Offering, directors elected to succeed those
directors of the class whose terms then expire shall be elected for a term of
office to expire at the third succeeding annual meeting of stockholders after
their election. Prior to the closing of the Initial Public Offering, or in the
event the corporation is prohibited from dividing its board of directors through
the operation of Section 2115 of the California General Corporation Law
following the closing of the Initial Public Offering, each director shall hold
office until the next annual meeting of stockholders and until such director's
successor is elected and qualified, or until such director's earlier death,
resignation or removal.
C. Removal. Subject to the rights of the holders of any series of
Preferred Stock then outstanding, and unless otherwise required by law, any
director or the entire Board of Directors of the corporation may be removed only
for cause and only by the affirmative vote of the holders of 66 2/3% of the
shares then entitled to vote at an election of directors.
ARTICLE VIII
To the fullest extent permitted by law, no director of the corporation
shall be personally liable for monetary damages for breach of fiduciary duty as
a director. Without limiting the effect of the preceding sentence, if the
Delaware General Corporation Law is hereafter amended to authorize the further
elimination or limitation of the liability of a director, then the liability of
a director of the corporation shall be eliminated or limited to the fullest
extent permitted by the Delaware General Corporation Law, as so amended.
Neither any amendment nor repeal of this Article VIII, nor the adoption
of any provision of this Certificate of Incorporation inconsistent with this
Article VIII, shall eliminate, reduce or otherwise adversely affect any
limitation on the personal liability of a director of the corporation existing
at the time of such amendment, repeal or adoption of such an inconsistent
provision.
ARTICLE IX
Effective immediately after the closing of an underwritten public
offering of shares of the corporation's Common Stock pursuant to a registration
statement filed with and declared effective by the Securities and Exchange
Commission, actions shall be taken by the corporation's stockholders only at
annual or special meetings of stockholders, and the corporation's stockholders
shall not be able to act by written consent.
