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EXHIBIT 3.3
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF MASIMO CORPORATION
The undersigned, Joe E. Kiani and Bradley R. Langdale, hereby certify that:
1. They are the duly elected, qualified and acting President and
Secretary respectively, of Masimo Corporation, a Delaware corporation.
2. The Certificate of Incorporation of said corporation shall be
amended and restated to read in its entirety as follows:
ARTICLE I
The name of this corporation is Masimo Corporation.
ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is 1013 Centre Road, City of Wilmington, County of New Castle, Delaware
19801. The name of the Corporation's registered agent at such address is the
Corporation Service Company.
ARTICLE III
The nature of the business or purposes to be conducted or promoted 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 (the "GCL").
ARTICLE IV
The Corporation is authorized to issue two classes of stock to be
designated, respectively, "Common Stock" and "Preferred Stock." The total number
of shares that the Corporation is authorized to issue is Sixty Five Million
(65,000,000). Sixty Million (60,000,000) shares shall be Common Stock, par value
$0.001 per share, and Five Million (5,000,000) shares shall be Blank Check
Preferred Stock, par value $0.001 per share. The Preferred Stock may be issued
from time to time in one or more series, without further stockholder approval.
The Board of Directors of the Corporation is hereby authorized to fix or alter
the rights, preferences, privileges and restrictions granted to or imposed upon
each series of Preferred Stock, and the number of shares constituting any such
series and the designation thereof, or of any of them. The rights, privileges,
preferences and restrictions of any such additional series may be subordinated
to, pari passu with (including, without limitation, inclusion in provisions with
respect to liquidation and acquisition preferences, redemption and/or approval
of matters by vote), or senior to any of those of any present or future class or
series of Preferred Stock or Common Stock. The Board of Directors is also
authorized to increase or decrease the number of shares of any series prior or
subsequent to the issue 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 so decreased, the shares
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constituting such decrease shall resume the status which they had prior to the
adoption of the resolution originally fixing the number of shares of such
series.
ARTICLE V
In furtherance and not in limitation of the powers conferred by statute, the
Board of Directors is expressly authorized to make, repeal, alter, amend and
rescind any or all of the Bylaws of the Corporation. In addition, the Bylaws may
be amended by the affirmative vote of holders of at least sixty-six and
two-thirds percent (66 2/3%) of the outstanding shares of voting stock of the
Corporation entitled to vote at an election of directors.
ARTICLE VI
The number of directors of the Corporation shall be determined by resolution of
the Board of Directors. Elections of directors need not be by written ballot
unless the Bylaws of the Corporation shall so provide. Advance notice of
stockholder nominations for the election of directors and of any other business
to be brought before any meeting of the stockholders shall be given in the
manner provided in the Bylaws of this Corporation. At each annual meeting of
stockholders, directors of the Corporation shall be elected to hold office until
the expiration of the term for which they are elected, or until their successors
have been duly elected and qualified; except that if any such election shall not
be so held, such election shall take place at a stockholders' meeting called and
held in accordance with the GCL. The directors of the Corporation shall be
divided into three (3) classes as nearly equal in size as is practicable, hereby
designated Class I, Class II and Class III. For the purposes hereof, the initial
Class I, Class II and Class III directors shall be those directors so designated
by a resolution of the Board of Directors. At the first annual meeting of
stockholders following the closing of the initial public offering of the
Corporation's Common Stock, the term of office of the Class I directors shall
expire and Class I directors shall be elected for a full term of three (3)
years. At the second annual meeting of stockholders following the closing of the
initial public offering of the Corporation's Common Stock, the term of office of
the Class II directors shall expire and Class II directors shall be elected for
a full term of three (3) years. At the third annual meeting of stockholders
following the initial public offering of the Corporation's Common Stock, the
term of office of the Class III directors shall expire and Class III directors
shall be elected for a full term of three (3) years. At each succeeding annual
meeting of stockholders, directors shall be elected for a full term of three (3)
years to succeed the directors of the class whose terms expire at such annual
meeting. If the number of directors is hereafter changed, each director then
serving as such shall nevertheless continue as a director of the Class of which
he is a member until the expiration of his current term and any newly created
directorships or decrease in directorships shall be so apportioned among the
classes as to make all classes as nearly equal in number as is practicable.
Vacancies occurring on the Board of Directors for any reason may be filled by
vote of a majority of the remaining members of the Board of Directors, even if
less than a quorum, at any meeting of the Board of Directors. A person elected
by the Board of Directors to fill a vacancy 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 duly elected and qualified.
A director may be removed from office by the affirmative vote of the holders of
66 2/3% of the outstanding shares of voting stock of the Corporation entitled to
vote at an election of directors, provided that such removal is for cause.
2.
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ARTICLE VII
Stockholders of the Corporation shall take action by meetings held
pursuant to this Amended and Restated Certificate of Incorporation and the
Bylaws and shall have no right to take any action by written consent without a
meeting. Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. Special meetings of the stockholders, for
any purpose or purposes, may only be called by the Board of Directors, the
Chairman of the Board or the President of the Corporation. The books of the
Corporation may be kept (subject to any provision contained in the statutes)
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 Bylaws of the Corporation.
ARTICLE VIII
To the fullest extent permitted by applicable law, this Corporation is
authorized to provide indemnification of (and advancement of expenses to)
directors, officers, employees and agents (and any other persons to which
Delaware law permits this Corporation to provide indemnification) through Bylaw
provisions, agreements with such agents or other persons, vote of stockholders
or disinterested directors or otherwise, in excess of the indemnification and
advancement otherwise permitted by Section 145 of the GCL, subject only to
limits created by applicable Delaware law (statutory or non-statutory), with
respect to action for breach of duty to the Corporation, its stockholders, and
others. No director of the Corporation shall be personally liable to the
Corporation or any stockholder for monetary damages for breach of fiduciary duty
as a director, except for any matter in respect of which such director shall be
liable under Section 174 of the GCL or any amendment thereto or shall be liable
by reason that, in addition to any and all other requirements for such
liability, such director (1) shall have breached the director's duty of loyalty
to the Corporation or its stockholders, (2) shall have acted in a manner
involving intentional misconduct or a knowing violation of law or, in failing to
act, shall have acted in a manner involving intentional misconduct or a knowing
violation of law, or (3) shall have derived an improper personal benefit. If the
GCL is hereafter amended to authorize the further elimination or limitation of
the liability of a director, the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the GCL, as so
amended. Each person who was or is made a party or is threatened to be made a
party to or is in any way involved in any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), including any appeal therefrom, by
reason of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of the Corporation or a director
indirect subsidiary of the Corporation, or is or was serving at the request of
the Corporation as a director or officer of another entity or enterprise, or was
a director or officer of a foreign or domestic corporation which was predecessor
corporation of the Corporation or of another entity or enterprise at the request
of such predecessor corporation, shall be indemnified and held harmless by the
Corporation, and the Corporation shall advance all expenses incurred by any such
person in defense of any such proceeding prior to its final determination, to
the fullest extent authorized by the GCL. In any proceeding against the
Corporation to enforce these rights, such person shall be presumed to be
entitled to indemnification and the Corporation shall have the burden of proving
that such person has not met the standards of conduct for permissible
indemnification set forth in
3.
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the GCL. The rights to indemnification and advancement of expenses conferred by
this Article VIII shall be presumed to have been relied upon by the directors
and officers of the Corporation in serving or continuing to serve the
Corporation and shall be enforceable as contract rights. Said rights shall not
be exclusive of any other rights to which those seeking indemnification may
otherwise be entitled. The Corporation may, upon written demand presented by a
director or officer of the Corporation or of a direct or indirect subsidiary of
the Corporation, or by a person serving at the request of the Corporation as a
director or officer of another entity or enterprise, enter into contracts to
provide such persons with specified rights to indemnification, which contracts
may confer rights and protections to the maximum extent permitted by the GCL, as
amended and in effect from time to time. If a claim under this Article VIII is
not paid in full by the Corporation within sixty (60) days after a written claim
has been received by the Corporation, the claimant may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of the claim
and, if successful in whole or in part, the claimant shall be entitled to be
paid also the expenses of prosecuting such claim. It shall be a defense to any
such action (other than an action brought to enforce the right to be advanced
expenses incurred in defending any proceeding prior to its final disposition
where the required undertaking, if any, has been tendered to the Corporation )
that the claimant has not met the standards of conduct which make it permissible
under the GCL for the Corporation to indemnify the claimant for the amount
claimed, but the claimant shall be presumed to be entitled to indemnification
and the Corporation shall have the burden of proving that the claimant has not
met the standards of conduct for permissible indemnification set forth in the
GCL. If the GCL is hereafter amended to permit the Corporation to provide
broader indemnification rights than said law permitted the Corporation to
provide prior to such amendment, the indemnification rights conferred by this
Article VIII shall be broadened to the fullest extent permitted by the GCL, as
so amended.
ARTICLE IX
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 stockholders herein are granted subject to this
reservation. Notwithstanding the foregoing, the provisions set forth in Articles
V, VI, VII, VIII and IX of this Amended and Restated Certificate of
Incorporation may not be repealed or amended in any respect without the
affirmative vote of holders at least 66-2/3% of the outstanding voting stock of
the Corporation entitled to vote at election of directors. The foregoing
amendment and restatement has been duly adopted by the Corporation's Board of
Directors in accordance with the applicable provisions of Sections 242 and 245
of the General Corporation Law of the State of Delaware. The foregoing amendment
and restatement was approved by the holders of the requisite number of shares
of the Corporation in accordance with Section 228 of the General Corporation Law
of the State of Delaware.
ARTICLE X
This Corporation is a Delaware corporation and is subject to the
anti-take over provisions of Section 203 of the GCL, which prohibits the
Corporation from engaging in a business combination with an stockholder, unless
the business combination is approved in the manner prescribed by Section 203.
4.
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IN WITNESS WHEREOF, the undersigned have executed this certificate on
__________ ___, 2000.
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Joe E. Kiani, President
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Bradley R. Langdale, Secretary
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