EXHIBIT 3.02
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AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
FORMFACTOR, INC.
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FormFactor, Inc., a corporation organized and existing under the General
Corporation Law of the State of Delaware (the "CORPORATION"), in accordance with
the provisions of Sections 242 and 245 thereof, DOES HEREBY CERTIFY:
FIRST: The name of this corporation is FormFactor, Inc. FormFactor, Inc.
was originally incorporated under the same name and the original Certificate of
Incorporation of the Corporation was filed with the Secretary of State of the
State of Delaware on April 15, 1993.
SECOND: The Amendment and Restatement of the Corporation's Certificate
of Incorporation as set forth in the following resolution has been approved by
the Corporation's Board of Directors and stockholders and was duly adopted in
accordance with the provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware.
NOW, THEREFORE, BE IT RESOLVED, that the Certificate of Incorporation of
this Corporation be, and it hereby is, restated and further amended to read in
its entirety as follows:
FIRST
The name of this corporation is FormFactor, Inc.
SECOND
The address of its registered office in the State of Delaware is 15 East
North Street, City of Dover, County of Kent. The name of its registered agent at
such address is United Corporate Services, Inc.
THIRD
The nature of the business and of the purposes to be conducted and
promoted by the Corporation are to conduct any lawful business, to promote any
lawful purpose, and to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of Delaware.
FOURTH
A. This Corporation is authorized to issue two classes of shares of stock, to be
designated, respectively, "Common Stock" and "Preferred Stock." The Preferred
Stock may be issued in one or more series. The total number of shares that the
Corporation is authorized to issue is Two Hundred Sixty Million (260,000,000).
Two Hundred Fifty Million (250,000,000) shares with a par value of $0.001 each
shall be Common Stock, and Ten Million (10,000,000) shares with a par value of
$0.001 each shall be Preferred Stock.
B. The Board of Directors is authorized, subject to any limitations prescribed
by this Article FOURTH or 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). The number
of authorized shares of Preferred Stock may also 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 this Article FOURTH
or to a Certificate or Certificates of Designation establishing a series of
Preferred Stock.
C. Except as otherwise expressly provided in this Article FOURTH or in any
Certificate of Designation designating any series of Preferred Stock pursuant to
the foregoing provisions of this Article FOURTH, 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.
FIFTH
For the management of the business and for the conduct of the affairs of
this 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. The conduct of the affairs of the Corporation shall be managed under the
direction of the Board of Directors. The number of directors shall be fixed from
time to time exclusively by resolution of the Board of Directors.
B. Notwithstanding the foregoing provision of this Article FIFTH, each director
shall hold office until such director's successor is elected and qualified, or
until such director's
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earlier death, resignation or removal. No decrease in the authorized number of
directors constituting the Board of Directors shall shorten the term of any
incumbent director.
C. Subject to the rights of the holders of any series of Preferred Stock then
outstanding, any vacancy occurring in the Board of Directors for any cause, and
any newly created directorship resulting from any increase in the authorized
number of directors, shall, unless (i) the Board of Directors determines by
resolution that any such vacancies or newly created directorships shall be
filled by the stockholders, or (ii) as otherwise provided by law, be filled only
by the affirmative vote of a majority of the directors then in office, although
less than a quorum, or by a sole remaining director, 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.
D. 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 at least sixty six and two-thirds percent
(66 2/3%) of the shares then entitled to vote at an election of directors.
E. Classification of Board of Directors:
(1) The provisions of this Article FIFTH, Section E are subject to the
rights of the holders of any series of Preferred Stock to elect additional
directors under specified circumstances. As used in this Article FIFTH, Section
E, the term "INITIAL PUBLIC OFFERING" shall mean the initial public offering of
the Corporation 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.
(2) 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. No one class shall have more than one director more than
any other class. 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
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
stockholders commencing with the first annual meeting of stockholders following
the closing of the Initial Public Offering, each director elected to succeed a
director of the class whose term then expires shall be elected for a term of
office to expire at the third succeeding annual meeting of stockholders after
his or her election, or until such director's earlier death, resignation or
removal.
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(3) In the event of any increase or decrease in the authorized number of
directors, (i) each director then serving as such shall nevertheless continue as
a director of the class of which he is a member and (ii) the newly created or
eliminated directorships resulting from such increase or decrease shall be
apportioned by the Board of Directors among the three classes of directors so as
to ensure that no one class has more than one director more than any other
class. To the extent possible, consistent with the foregoing rule, any newly
created directorships shall be added to those classes whose terms of office are
to expire at the latest dates following such allocation, and any newly
eliminated directorships shall be subtracted from those classes whose terms of
office are to expire at the earliest dates following such allocation, unless
otherwise provided from time to time by resolution adopted by the Board of
Directors.
F. Election of directors need not be by written ballot unless the Bylaws of the
Corporation shall so provide.
G. 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
of the Corporation, and no action shall be taken by the stockholders by written
consent.
H. Advance notice of stockholder nominations for the election of directors of
the Corporation and of business to be brought by stockholders before any meeting
of stockholders of the Corporation shall be given in the manner provided in the
Bylaws of the Corporation. Business transacted at special meetings of
stockholders shall be confined to the purpose or purposes stated in the notice
of meeting.
I. Notwithstanding any other provisions of law, this Certificate of
Incorporation or the Bylaws, each as amended, and notwithstanding the fact that
a lesser percentage may be specified by applicable law, this Certificate of
Incorporation or the Bylaws, the affirmative vote of the holders of at least
sixty-six and two-thirds percent (66-2/3%) of the Corporation's outstanding
voting stock then entitled to vote at an election of directors, voting together
as a single class, shall be required to alter, change, amend or repeal, or adopt
any provision inconsistent with, this Article FIFTH.
SIXTH
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to adopt, make, alter or repeal
the By-laws of the Corporation unless and to the extent such authority is
specifically and expressly limited in the By-laws or this Certificate of
Incorporation. Notwithstanding any other provisions of law, this Certificate of
Incorporation or the Bylaws, each as amended, and notwithstanding the fact that
a lesser percentage may be specified by law, this Certificate of Incorporation
or the Bylaws, the affirmative vote of the holders of at least sixty six and
two-thirds percent (66 2/3%) of the outstanding voting stock then entitled to
vote at an election of directors, voting together as a single class, shall be
required to make, alter, change, amend or repeal, or adopt any provision
inconsistent with, this Article SIXTH.
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SEVENTH
A. No director shall have any personal liability to the Corporation or its
stockholders for any monetary damages for breach of fiduciary duty as a
director, except that this Article shall not eliminate or limit the liability of
each director (i) for any breach of such director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which such director derived an improper personal benefit.
B. It is the intention of the foregoing provision to eliminate the liability of
the Corporation's directors to the fullest extent permitted by Section 102(b)(7)
of the General Corporation Law of the State of Delaware, as amended from time to
time. If the General Corporation Law of the State of Delaware is amended after
approval by the stockholders of this Article SEVENTH to authorize corporate
action further eliminating or limiting the personal liability of directors, then
a director of the Corporation, in addition to the circumstances in which he is
not now personally liable, shall be free of liability to the fullest extent
permitted by the General Corporation Law of the State of Delaware as so amended.
C. Any repeal or modification of the foregoing Section A of this Article SEVENTH
by the stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
D. Neither any amendment nor repeal of this Article SEVENTH, nor the adoption of
any provision of this Certificate of Incorporation inconsistent with this
Article SEVENTH, shall eliminate or reduce the effect of this Article SEVENTH in
respect of any matter occurring, or any cause of action, suit or claim accruing
or arising or that, but for this Article SEVENTH, would accrue or arise, prior
to such amendment, repeal or adoption of an inconsistent provision.
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IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Incorporation to be executed on its behalf by its Chief Financial Officer and
Secretary, this __ day of May 2002.
FORMFACTOR, INC.
By:
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Jens Meyerhoff, Chief Financial
Officer and Secretary
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