EXHIBIT 3.1(a)
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
WIND RIVER SYSTEMS, INC.
Jerry L. fiddler and David N. Wilner hereby certify that:
1. They are the Chief Executive Officer and Secretary, respectively,
of Wind River Systems, Inc., a Delaware corporation.
2. The date of filing of the corporation's original Certificate of
Incorporation was March 4, 1993.
4. The Amended and Restated Certificate of Incorporation of said
corporation as provided in Exhibit A hereto was duly adopted in accordance
with the provisions of Section 242 and Section 245 of the General Corporation
Law of the State of Delaware by the Board of Directors of the corporation.
5. Pursuant to Section 245 of the Delaware General Corporation Law,
approval of the stockholders of the corporation has been obtained.
6. The Amended and Restated Certificate of Incorporation so adopted
reads in full as set forth in Exhibit A attached hereto and is hereby
incorporated by reference.
IN WITNESS WHEREOF, the undersigned have signed this certificate this
15th day of October 1993 and hereby affirm and acknowledge under penalty of
perjury that the filing of this Amended and Restated Certificate of
Incorporation is the act and deed of Wind River Systems, Inc.
WIND RIVER SYSTEMS, INC.
By: /s/ Jerry L. Fiddler
--------------------------------------
Jerry L. Fiddler
Chief Executive Officer
ATTEST:
/s/ David N. Wilner
- -----------------------------------
David N. Wilner
Secretary
EXHIBIT A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
WIND RIVER SYSTEMS, INC.
I.
The name of this corporation is Wind River Systems, Inc.
II.
The address, including street, number, city and county of the registered
officer of the corporation in the State of Delaware is 32 Loockerman Square,
Suite L-100, City of Dover 19901, County of Kent; and the name of the
registered agent of the corporation in the State of Delaware at such address
is The Prentice-Hall Corporation System, Inc.
III.
The purpose of this corporation is to engage in any lawful act or
activity for which a corporation may be organized under the Delaware General
Corporation Law.
IV.
1. This corporation is authorized to issue Twenty-Two Million
(22,000,000) shares of its capital stock, which shall be divided into two
classes of stock designated "Common Stock" and "Preferred Stock." The
total number of shares of Common Stock which the corporation is authorized to
issue is Twenty Million (20,000,000) shares, each having a par value of one
tenth of one cent ($.001). The total number of shares of Preferred Stock
which the corporation is authorized to issue is Two Million (2,000,000)
shares, each having a par value of one tenth of one percent ($.001).
2. The Preferred Stock may be issued from time to time in one or more
series. The Board of Directors is hereby authorized, by filing a certificate
pursuant to the Delaware General Corporation Law, to fix or alter from time
to time the designation, powers, preferences and rights of the shares of each
such series and the qualifications, limitations or restrictions thereof,
including without limitation the dividend rights, dividend rate, conversion
rights, voting rights, rights and terms of redemption (including sinking fund
provisions), redemption price or prices, and the liquidation preferences of
any wholly unissued series of Preferred Stock, and to establish from time to
time the number of shares constituting any such series and the designation
thereof, or any of them (a "Preferred Stock Designation"); and to increase
or decrease the number of shares of any series subsequent to the issuance of
shares of that series, but no below the number
2.
of shares of such series then outstanding. In case the number of shares of
any series shall be so decreased, the shares constituting such decrease shall
resume the status that they had prior to the adoption of the resolution
originally fixing the number of shares of such series.
No share or shares of any series of Preferred Stock acquired by the
Corporation by reason of redemption, purchase conversion or otherwise shall
be reissued as part of such series, and the Board of Directors is authorized,
pursuant to Section 243 of the Delaware General Corporation Law, to retire
any such share or shares. The retirement of any such share or shares shall
not reduce the total authorized number of shares of Preferred Stock.
V.
For the management of the business and for the conduct of the affairs of
the 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:
1. The management of the business and the conduct of the affairs of
the corporation shall be vested in its Board of Directors. The number of
directors which shall constitute the whole Board of Directors shall be fixed
exclusively by one or more resolutions adopted by the Board of Directors.
Each director shall serve until his successor is duly elected and
qualified or until his death, resignation or removal. No decrease in the
number of directors constituting the Board of Directors shall shorten the
term of any incumbent director.
Any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other causes shall be filled by
either (i) the affirmative vote of the holders of a majority of the voting
power of the then-outstanding shares of voting stock of the corporation
entitled to vote generally in the election of directors (the "Voting
Stock") voting together as a single class; or (ii) by the affirmative vote
of a majority of the remaining directors then in office, even though less
than a quorum of the Board of Directors. Newly created directorships
resulting from any increase in the number of directors shall, unless the
Board of Directors determines by resolution that any such newly created
directorship shall be filled by the stockholders, be filled only by the
affirmative vote of the directors then in office, even though less than a
quorum of the Board of Directors. Any director elected in accordance with
the preceding sentence shall hold office until such director's successor
shall have been elected and qualified.
2. The Bylaws may be altered or amended or new Bylaws adopted by the
affirmative vote of at least sixty-six and two-thirds percent (66-2/3%) of
the voting power of all of the then outstanding shares of the Voting Stock.
In furtherance and not in limitation of the power conferred by statute, the
Board of Directors is expressly authorized to adopt, amend, supplement or
repeal the Bylaws.
3.
3. The directors of the corporation need not be elected by written
ballot unless the Bylaws so provide.
4. No action shall be taken by the stockholders of the corporation
except at an annual or special meeting of the stockholders called in
accordance with the Bylaws and no action shall be taken by the stockholders
by written consent.
5. 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.
6. Any director, or the entire Board of Directors, may be removed from
office at any time (i) with cause by the affirmative vote of the holders of
at least a majority of the voting power of all of the then-outstanding shares
of the Voting Stock, voting together as a single class; or (ii) without cause
by the affirmative vote of the holders of at least sixty-six and two-thirds
percent (66-2/3%) of the voting power of all of the then outstanding shares
of the Voting Stock.
VI.
A director of the corporation shall, to the full extent not prohibited
by the General Corporation Law of the State of Delaware, as the same exists
or may hereafter be amended, not be liable to the corporation or its
stockholders for monetary damages for breach of his or her fiduciary duty as
a director.
VII.
Notwithstanding any other provisions of this Certificate of
Incorporation or any provision of law which might otherwise permit a lesser
vote or no vote, but in addition to any affirmative vote of the holders of
any particular class or series of the Voting Stock required by law, this
Certificate of Incorporation or any Preferred Stock Designation, the
affirmative vote of the holders of at least sixty-six and two-thirds percent
(66-2/3%) of the voting power of all of the then-outstanding shares of the
Voting Stock, voting together as a single class, shall be required to alter,
amend or repeal Article VI.
VIII.
The corporation is to have perpetual existence.
IX.
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 the
stockholders herein are granted subject to this right.
4.