EXHIBIT 3.3
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
NETGEAR, INC.
A DELAWARE CORPORATION
NETGEAR, Inc. (the "Corporation"), a corporation organized and existing
under the General Corporation Law of the State of Delaware (the "General
Corporation Law") hereby certifies as follows:
1. That the Corporation was originally incorporated on January 8, 1996
pursuant to the General Corporation Law.
2. Pursuant to Sections 242 and 228 of the General Corporation Law, the
amendments and restatement herein set forth have been duly approved by the Board
of Directors and stockholders of NETGEAR, Inc.
3. Pursuant to Section 245 of the General Corporation Law, this Amended
and Restated Certificate of Incorporation restates and integrates and further
amends the provisions of the Amended and Restated Certificate of Incorporation
of this Corporation.
4. The text of the Amended and Restated Certificate of Incorporation
is hereby amended and restated in its entirety as follows:
"ARTICLE I
The name of this corporation is NETGEAR, Inc. (the "Corporation").
ARTICLE II
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 as the same exists or may hereafter be amended.
ARTICLE III
The address of the Corporation's registered office in the State of
Delaware is 15 East North Street, in the City of Dover, County of Kent. The name
of the registered agent at such address is Incorporating Services, Ltd.
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 which the Corporation shall have authority to issue is two hundred and
five million (205,000,000) shares, consisting of
two hundred million (200,000,000) shares of Common Stock, par value $0.001 per
share, and five million (5,000,000) shares of Preferred Stock, par value $0.001
per share.
The Board of Directors of the Corporation (the "Board") is authorized,
subject to any limitations prescribed by law, to provide for the issuance of
shares of Preferred Stock in series, and to establish from time to time the
number of shares to be included in each such series, and to fix the designation,
powers, preferences, and rights of the shares of each such series and any
qualifications, limitations or restrictions thereof.
Each outstanding share of Common Stock shall entitle the holder thereof to
one vote on each matter properly submitted to the stockholders of the
Corporation for their vote; provided, however, that, except as otherwise
required by law, holders of Common Stock shall not be entitled to vote on any
amendment to this Certificate of Incorporation (this "Certificate") (including
any certificate of designation of Preferred Stock relating to any series of
Preferred Stock) that relates solely to the terms of one or more outstanding
series of Preferred Stock if the holders of such affected series are entitled,
either separately or together as a class with the holders of one or more other
such series, to vote thereon by law or pursuant to this Certificate (including
any certificate of designation of Preferred Stock relating to any series of
Preferred Stock).
ARTICLE V
A. The business and affairs of the Corporation shall be managed by
or under the direction of the Board. In addition to the powers and authority
expressly conferred upon them by statute or by this Certificate or the Bylaws of
the Corporation, 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.
B. Any action required or permitted to be taken by the stockholders
of the Corporation must be effected at a duly called annual or special meeting
of stockholders of the Corporation and may not be effected by any consent in
writing by such stockholders.
C. Special meetings of stockholders of the Corporation may be called
only by the Chairman of the Board, the Chief Executive Officer, the President or
the Board acting pursuant to a resolution adopted by a majority of the Board and
any power of stockholders to call a special meeting is specifically denied. Only
such business shall be considered at a special meeting of stockholders as shall
have been stated in the notice for such meeting.
D. 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.
E. No stockholder will be permitted to cumulate votes at any
election of directors.
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ARTICLE VI
To the fullest extent permitted by the General Corporation Law as the same
exists or as may hereafter be amended, a director of the Corporation shall not
be personally liable to the Corporation or its stockholders for monetary damages
for a breach of fiduciary duty as a director. If the General Corporation Law is
amended to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted by
the General Corporation Law as so amended.
The Corporation may indemnify to the fullest extent permitted by law any
person made or threatened to be made a party to an action or proceeding, whether
criminal, civil, administrative or investigative, by reason of the fact that he,
she, his or her testator or intestate is or was a director, officer, employee or
agent of the Corporation or any predecessor of the Corporation or serves or
served at any other enterprise as a director, officer, employee or agent at the
request of the Corporation or any predecessor to the Corporation.
Neither any amendment nor repeal of this Article VI, nor the adoption of
any provision of this Corporation's Certificate of Incorporation inconsistent
with this Article VI, shall eliminate or reduce the effect of this Article VI,
in respect of any matter occurring, or any action or proceeding accruing or
arising or that, but for this Article VI, would accrue or arise, prior to such
amendment, repeal or adoption of an inconsistent provision.
ARTICLE VII
The Corporation is to have perpetual existence.
ARTICLE VIII
Elections of directors need not be by written ballot unless the Bylaws of
the Corporation shall so provide.
ARTICLE IX
A. The provisions of this paragraph shall be subject to the rights
of the holders of any series of Preferred Stock to elect additional directors
under specified circumstances. The number of directors which constitute the
Board of Directors of the Corporation shall be as designated or provided for in
the Bylaws of the Corporation. Each director, including a director elected to
fill a vacancy, shall hold office until the expiration of the term for which
elected and until such director's successor is elected and qualified or until
such director's earlier death, resignation or removal.
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B. Subject to the rights of the holders of any series of Preferred Stock then
outstanding and unless the Board otherwise determines, newly created
directorships resulting from any increase in the authorized number of directors
or any vacancies in the Board resulting from death, resignation, retirement,
disqualification, removal from office or other cause shall, unless otherwise
provided by law or by resolution of the Board, be filled only by a majority vote
of the directors then in office, whether or not less than a quorum, and
directors so chosen shall hold office until such director's successor is elected
and qualified. No reduction in the authorized number of directors shall have the
effect of removing any director before such director's term of office expires.
C. Subject to the rights of the holders of any series of Preferred
Stock then outstanding, unless otherwise restricted by statue, by this
Certificate or the Bylaws of the Corporation, any director, or all of the
directors, may be removed from the Board, with or without cause, but only by the
affirmative vote of the holders of at least a majority of the voting power of
all of the then outstanding shares of capital stock of the Corporation then
entitled to vote at the election of directors, voting together as a single
class.
ARTICLE X
The Board is expressly empowered to adopt, amend or repeal any of the
Bylaws of the Corporation. Any adoption, amendment or repeal of the Bylaws of
the Corporation by the Board shall require the approval of a majority of the
Board. The stockholders shall also have power to adopt, amend or repeal the
Bylaws of the Corporation; provided, however, that, in addition to any vote of
the holders of any class or series of stock of the Corporation required by law
or by this Certificate, the affirmative vote of the holders of at least 66-2/3%
of the voting power of the then outstanding shares of voting stock entitled to
vote generally in the election of directors, voting together as a single class,
shall be required to adopt, amend or repeal all or any portion of Article II,
Section 3.2, Section 3.3, Section 3.4, Section 3.14, Article VI or Article IX of
the Bylaws of the Corporation.
ARTICLE XI
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside of 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 XII
The Corporation reserves the right to amend or repeal any provision
contained in this Certificate in the manner prescribed by the laws of the State
of Delaware and all rights conferred upon stockholders are granted subject to
this reservation; provided, however, that, notwithstanding any other provision
of this Certificate, or any provision of law that might otherwise permit a
lesser
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vote or no vote, but in addition to any vote of the holders of any class or
series of the stock of this Corporation required by law or by this Certificate,
the affirmative vote of the holders of at least 66-2/3% of the voting power of
the then outstanding shares of voting stock entitled to vote generally in the
election of directors, voting together as a single class, shall be required to
amend or repeal this Article XII, Article V, Article VI, Article VIII, Article
IX or Article X."
IN WITNESS WHEREOF, NETGEAR, Inc. has caused this Amended and Restated
Certificate of Incorporation to be executed by its Chief Executive Officer
this ____ day of _______, 2003.
NETGEAR, INC.
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Patrick Lo
Chief Executive Officer
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