Exhibit 3.1
THIRD AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
VYYO INC.
Vyyo Inc. (the "Corporation"), a corporation organized and existing
under the General Corporation Law of the State of Delaware, does hereby
certify as follows:
(a) The name of the Corporation is Vyyo Inc. The original
Certificate of Incorporation of the Corporation was filed with the office of
the Secretary of State of the State of Delaware on March 21, 1996 under the
name PhaseCom, Inc. (the "Original Certificate of Incorporation").
(b) This Third Amended and Restated Certificate of
Incorporation (this "Amended and 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 General Corporation Law of the State of
Delaware.
(c) This Amended and Restated Certificate of Incorporation
restates and amends the Original Certificate of Incorporation of the
Corporation.
(d) This Amended and Restated Certificate shall become
effective as of the ______ day of __________, 2000.
(e) The text of the Original Certificate of Incorporation
of the Corporation is amended and restated in its entirety as follows:
FIRST: The name of the Corporation is Vyyo Inc. (hereinafter the
"Corporation").
SECOND: The address of the registered office of the Corporation in
the State of Delaware and County of New Castle is 1201 Market Street, Suite
1600, Wilmington, Delaware 19801. The name of its registered agent at that
address is PHS Corporate Services, Inc.
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 as set forth in Title 8 of the
Delaware Code (the "DGCL").
FOURTH: The total number of shares of stock which the Corporation
shall have authority to issue is 200,000,000 shares of common stock, each
having a par value of $0.0001, and 5,000,000 shares of preferred stock, each
having a par value of $0.001.
The Board of Directors is expressly authorized to provide for the
issuance of all or any shares of the preferred stock in 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 distinctive 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 and as may be
permitted by the DGCL, 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.
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 one
nor more than ten members, the exact number of which shall be fixed by the Board
of
2
Directors. Election of directors need not be by written ballot unless the
Bylaws so provide.
(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, 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.
(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. Subject to the rights, if any, of the holders of
shares of preferred stock then outstanding, any or all of the directors of
the Corporation may be removed from office at any time, but only for cause
and only by the affirmative vote of the holders
3
of at least sixty-six and two-thirds percent (66 2/3%) of the voting power of
the Corporation's then outstanding capital stock entitled to vote generally
in the election of directors. Notwithstanding the foregoing, 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 Amended and 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) 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 DGCL, this Amended and Restated Certificate of
Incorporation, and any Bylaws adopted by the stockholders; PROVIDED, HOWEVER,
that no Bylaws hereafter adopted by the stockholders shall invalidate any
prior act of the directors which would have been valid if such Bylaws had not
been adopted.
(g) 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 for liability (i) for any breach of the
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) pursuant to Section 174 of the DGCL or
(iv) for any transaction from which the director derived an improper personal
benefit. 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. Any repeal or modification of this Article FIFTH, Section (g) 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 with respect to acts or omissions occurring prior to
such repeal or modification.
SIXTH: 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
4
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 SIXTH 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 expenses to employees and agents of the Corporation similar to
those conferred in this Article SIXTH to directors and officers of the
Corporation.
The rights to indemnification and to the advancement of expenses
conferred in this Article SIXTH shall not be exclusive of any other right
which any person may have or hereafter acquire under this Certificate of
Incorporation, the Bylaws of the Corporation, any statute, agreement, vote of
stockholders or disinterested directors or otherwise.
Any repeal or modification of this Article SIXTH by the stockholders
of the Corporation 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.
SEVENTH: 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 DGCL) 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.
EIGHTH: 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 make, alter, amend, change, add to or repeal the
Corporation's Bylaws. The affirmative vote of at least a majority of the
entire Board of Directors shall be required to adopt, amend, alter or repeal
the Corporation's Bylaws. The Corporation's Bylaws also may be altered,
amended, changed, added to or repealed by the affirmative vote of the holders
of at least sixty-six and two-thirds percent (66 2/3%) of the voting power of
the shares entitled to vote at an election of directors.
5
NINTH: 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 the ability of the
stockholders to consent in writing to the taking of any action is hereby
specifically denied.
TENTH: Unless otherwise required by law, special meetings of
stockholders, for any purpose or purposes, may be called by either (i) the
Chairman, if there be one, (ii) the Board of Directors or (iii) a committee
of the Board of Directors that has been duly designated by the Board of
Directors and whose powers and authority include the power to call such
meetings. The ability of the stockholders to call a special meeting of
stockholders is hereby specifically denied.
ELEVENTH: The Corporation reserves the right to amend, alter, change
or repeal any provision contained in this 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.
IN WITNESS WHEREOF, the Corporation has caused this Amended
and Restated Certificate of Incorporation to be executed on its behalf this
_____ day of ______________, 2000.
VYYO INC.
By: /s/ Davidi Gilo
------------------------------------------
Name: Davidi Gilo
Title: Chairman and Chief Executive Officer
6