1
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
AIRONET WIRELESS COMMUNICATIONS, INC.
The name of the corporation (which is hereinafter referred to as the
"Corporation") is "Aironet Wireless Communications, Inc."
The original certificate of incorporation was filed with the Secretary
of State of the State of Delaware on August 25, 1993, under the name "Spider,
Inc." Such certificate of incorporation was amended on August 30, 1993, October
13, 1993, January 19, 1994, and June 20, 1996.
This Amended and Restated Certificate of Incorporation has been duly
approved and adopted by the Corporation's Board of Directors and stockholders,
and has been duly executed and acknowledged by the officers of the Corporation
in accordance with Sections 103, 242 and 245 of the General Corporation Law of
the State of Delaware.
The text of the Certificate of Incorporation of the Corporation is
hereby amended and restated to read in its entirety as follows:
ARTICLE I
---------
NAME
The name of the corporation (which is hereinafter referred to as the
"Corporation") is Aironet Wireless Communications, Inc.
ARTICLE II
----------
REGISTERED AGENT
The address of the registered office of the Corporation in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, City of Wilmington,
County of New Castle, Delaware 19801. The name of its registered agent at such
address is The Corporation Trust Company.
ARTICLE III
-----------
PURPOSE
The purpose of the Corporation 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 as the same exists or may hereafter be amended
("Delaware Law").
2
ARTICLE IV
----------
CAPITAL STOCK
SECTION 1. TOTAL NUMBER OF SHARES.
-----------------------
(a) The total number of shares of capital stock which the
Corporation shall have authority to issue is 60,500,000, consisting of
60,000,000 shares of Common Stock, par value of $0.01 per share (the
"Common Stock"), and 500,000 shares of Preferred Stock, par value of
$0.01 per share (the "Preferred Stock"). The Common Stock of the
Corporation shall be all of one class. The Preferred Stock may be
issued in one or more series having such designations as may be fixed
by the Board of Directors.
(b) The Board of Directors is expressly authorized to provide
for the issuance of all or any shares of the Common Stock and the
Preferred Stock, to determine the number of shares of each series and
to fix for each series of Common Stock and for any series of Preferred
Stock such voting powers, full or limited, or no voting powers, and
such 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 or a duly
authorized committee thereof providing for the issue of such series and
as may be permitted by Delaware Law.
(c) The number of authorized shares of any class or classes of
stock may be increased or decreased (but not below the number of shares
thereof then outstanding) by the affirmative vote of a majority of the
Common Stock of the Corporation irrespective of the provisions of
Section 242(b)(2) of Delaware Law.
SECTION 2. COMMON STOCK.
-------------
(a) ISSUANCE AND CONSIDERATION. Any unissued or treasury
shares of the Common Stock may be issued for such consideration as may
be fixed in accordance with applicable law from time to time by the
Board of Directors.
(b) DIVIDENDS. Subject to the rights of holders of the
Preferred Stock, the holders of the Common Stock shall be entitled to
receive, when and as declared by the Board of Directors, out of the
assets of the Corporation which are by law available therefor,
dividends payable either in cash, in property, or in shares of stock,
and the holders of the Preferred Stock shall not be entitled to
participate in any such dividends (unless otherwise provided by the
Board of Directors in any resolution providing for the issue of a
series of Preferred Stock).
2
3
(c) POWERS, PREFERENCES. The following is a statement of the
powers, preferences and relative participating, optional or other
special rights and qualifications, limitations and restrictions of the
Common Stock of the Corporation:
(1) The powers, preferences and relative
participating, optional or other special rights and
qualifications, limitations or restrictions of the shares of
Common Stock shall be identical in all respects.
(2) Subject to the rights of the holders of Preferred
Stock, and subject to any other provisions of this Amended and
Restated Certificate of Incorporation ("Certificate of
Incorporation"), holders of Common Stock shall be entitled to
receive such dividends and other distributions in cash, stock
of any corporation (including the Common Stock of the
Corporation) or property of the Corporation as may be declared
thereon by the Board of Directors from time to time out of
assets or funds of the Corporation legally available therefor
and shall share equally on a per share basis in all such
dividends and other distributions.
(3) (A) At every meeting of the stockholders of the
Corporation, every holder of Common Stock shall be entitled to
one vote in person or by proxy for each share of Common Stock
standing in his name on the transfer books of the Corporation
in connection with the election of directors and all other
matters submitted to a vote of stockholders.
(B) Every reference in this Certificate of
Incorporation to a majority or other proportion of shares of
Common Stock shall refer to such majority or other proportion
of the votes to which such shares of Common Stock are
entitled.
(4) In the event of any dissolution, liquidation or
winding up of the affairs of the Corporation, whether
voluntary or involuntary, after payment in full of the amounts
required to be paid to the holders of Preferred Stock, the
remaining assets and funds of the Corporation shall be
distributed pro rata to the holders of Common Stock. For
purposes of this paragraph, the voluntary sale, conveyance,
lease, exchange or transfer (for cash, shares of stock,
securities or other consideration) of all or substantially all
of the assets of the Corporation or a consolidation or merger
of the Corporation with one or more other corporations
(whether or not the Corporation is the corporation surviving
such consolidation or merger) shall not be deemed to be a
liquidation, dissolution or winding up, voluntary or
involuntary.
3
4
SECTION 3. PREFERRED STOCK.
----------------
SERIES AND LIMITS OF VARIATIONS BETWEEN SERIES. Any unissued
or treasury shares of the Preferred Stock may be issued from time to
time in one or more series for such consideration as may be fixed from
time to time by the Board of Directors, and each share of a series
shall be identical in all respects with the other shares of such
series, except that, if the dividends thereon are cumulative, the date
from which they shall be cumulative may differ. Before any shares of
Preferred Stock of any particular series shall be issued, a certificate
shall be filed with the Secretary of State of Delaware setting forth
the designation, rights, privileges, restrictions and conditions to be
attached to the Preferred Stock of such series and such other matters
as may be required, and the Board of Directors shall fix and determine,
and is hereby expressly empowered to fix and determine, in the manner
provided by law, the particulars of the shares of such series (so far
as not inconsistent with the provisions of this Article IV applicable
to all series of Preferred Stock), including, but not limited to, the
following:
(a) the distinctive designation of such series and the number
of shares which shall constitute such series, which number may
be increased (except where otherwise provided by the Board of
Directors in creating such series) or decreased (but not below
the number of shares thereof then outstanding) from time to
time by like action of the Board of Directors;
(b) the annual rate of dividends payable on shares of such
series, the conditions upon which such dividends shall be
payable and the date from which dividends shall be cumulative
in the event the Board of Directors determines that dividends
shall be cumulative;
(c) whether such series shall have voting rights, in addition
to the voting rights provided by law and, if so, the terms of
such voting rights;
(d) whether such series shall have conversion privileges and,
if so, the terms and conditions of such conversion privileges,
including, but not limited to, provision for adjustment of the
conversion rate upon such events and in such manner as the
Board of Directors shall determine;
(e) whether or not the shares of such series shall be
redeemable and, if so, the terms and conditions of such
redemption, including the date or dates upon or after which
they shall be redeemable, and the amount per share payable in
case of redemption, which amount may vary under different
conditions and at different redemption dates;
4
5
(f) whether such series shall have a sinking fund for the
redemption or purchase of shares of that series and, if so,
the terms and amount of such sinking fund;
(g) the rights of the shares of such series in the event of
voluntary or involuntary liquidation, dissolution or winding
up of the Corporation, and the relative rights of priority, if
any, of payment of shares of that series; and
(h) any other relative rights, preferences and limitations of
or otherwise relating to such series.
SECTION 4. NO PREEMPTIVE RIGHTS. Except as otherwise set forth above in
this Article IV, no holder of shares of this Corporation of any class shall be
entitled, as such, as a matter of right, to subscribe for or purchase shares of
any class now or hereafter authorized, or to purchase or subscribe for
securities convertible into or exchangeable for shares of the Corporation or to
which there shall be attached or appertain any warrants or rights entitling the
holders thereof to purchase or subscribe for shares.
ARTICLE V
---------
BYLAWS AMENDMENT
SECTION 1. AMENDMENT OF BYLAWS BY DIRECTORS. 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 the Bylaws of the
Corporation.
SECTION 2. AMENDMENT OF BYLAWS BY THE STOCKHOLDERS. The Bylaws shall
not be made, repealed, altered, amended or rescinded by the stockholders of the
Corporation except by the vote of not less than eighty percent (80%) of the
outstanding shares of the Corporation entitled to vote thereon. Any amendment to
this Certificate of Incorporation which shall contravene any bylaw in existence
on the record date of the stockholders meeting at which such amendment is to be
voted upon by the stockholders shall require the vote of not less than eighty
percent (80%) of the outstanding shares entitled to vote thereon.
ARTICLE VI
----------
BOARD OF DIRECTORS
SECTION 1. CLASSIFIED BOARD. The number of directors of the Corporation
(exclusive of directors to be elected by the holders of any one or more series
of Preferred Stock voting separately as a class or classes) shall be five (5) or
such other number as may be fixed from time to time by action of not less than a
majority of the members of the Board of Directors then in office but in no event
more than nine (9) or less than three (3). Nominations for directors shall
5
6
be made in accordance with the Bylaws. The Board of Directors (exclusive of
directors to be elected by the holders of any one or more series of Preferred
Stock voting separately as a class or classes) shall be divided into three
classes, Class A, Class B and Class C. The number of directors in each class
shall be the whole number contained in the quotient arrived at by dividing the
authorized number of directors by three, and if a fraction is also contained in
such quotient, then if such fraction is one-third, the extra director shall be a
member of Class A and if the fraction is two-thirds, one of the extra directors
shall be a member of Class A and the other shall be a member of Class B. Each
director shall serve for a term ending on the date of the third annual meeting
following the annual meeting at which such director was elected; provided,
however, that the directors first elected to Class A shall serve for a term
ending on the date of the annual meeting next following the end of the calendar
year 1999, the directors first elected to Class B shall serve for a term ending
on the date of the second annual meeting next following the end of the calendar
year 2000, and the directors first elected to Class C shall serve for a term
ending on the date of the third annual meeting next following the end of the
calendar year 2001. Notwithstanding the foregoing formula provisions, in the
event that, as a result of any change in the authorized number of directors, the
number of directors in any class would differ from the number allocated to that
class under the formula provided in this Article VI immediately prior to such
change, the following rules shall govern:
(a) each director then serving as such shall nevertheless
continue as a director of the class of which such director is a member
until the expiration of his current term, death, resignation or
removal;
(b) at each subsequent election of directors, even if the
number of directors in the class whose term of office then expires is
less than the number then allocated to that class under said formula,
the number of directors then elected for membership in that class shall
not be greater than the number of directors in that class whose term of
office then expires, unless and to the extent that the aggregate number
of directors then elected plus the number of directors in all classes
then duly continuing in office does not exceed the then authorized
number of directors of the Corporation;
(c) at each subsequent election of directors, if the number of
directors in the class whose term of office then expires exceeds the
number then allocated to that class under said formula, the Board of
Directors shall designate one or more of the directorships then being
elected as directors of another class or classes in which the number or
directors then serving is less than the number then allocated to such
other class or classes under said formula;
(d) in the event of the death, resignation or removal of any
director who is a member of a class in which the number of directors
serving immediately preceding the creation of such vacancy exceeded the
number then allocated to that class under said formula, the Board of
Directors shall designate the vacancy thus created as a vacancy in
6
7
another class in which the number of directors then serving is less
than the number then allocated to such other class under said formula;
(e) in the event of any increase in the authorized number of
directors, the newly created directorships resulting from such increase
shall be apportioned by the Board of Directors to such class or classes
as shall, so far as possible, bring the composition of each of the
classes into conformity with the formula in this Article VI, as it
applies to the number of directors authorized immediately following
such increase; and
(f) designation of directorships or vacancies into other
classes and apportionments of newly created directorships to classes by
the Board of Directors under the foregoing items (c), (d) and (e)
shall, so far as possible, be effected so that the class whose term of
office is due to expire next following such designation or
apportionment shall contain the full number of directors then allocated
to said class under said formula. Notwithstanding any of the foregoing
provisions of this Article VI, each director shall serve until his
successor is elected and qualified or until his death, resignation or
removal.
SECTION 2. ELECTION BY HOLDERS OF PREFERRED STOCK. During any period
when the holders of any Preferred Stock or any one or more series thereof,
voting as a class, shall be entitled to elect a specified number of directors,
by reason of dividend arrearages or other provisions giving them the right to do
so, then and during such time as such right continues (i) the then otherwise
authorized number of directors shall be increased by such specified number of
directors, and the holders of such Preferred Stock or such series thereof,
voting as a class, shall be entitled to elect the additional director(s) so
provided for, pursuant to the provisions of such Preferred Stock or series; (ii)
each such additional director shall serve for such term, and have such voting
powers, as shall be stated in the provisions pertaining to such Preferred Stock
or series; and (iii) whenever the holders of any such Preferred Stock or series
thereof are divested of such rights to elect a specified number of directors,
voting as a class, pursuant to the provisions of such Preferred Stock or series,
the terms of office of all directors elected by the holders of such Preferred
Stock or series, voting as a class pursuant to such provisions or elected to
fill any vacancies resulting from the death, resignation or removal of directors
so elected by the holders of such Preferred Stock or series, shall forthwith
terminate and the authorized number of directors shall be reduced accordingly.
SECTION 3. BALLOTS. Elections of directors at an annual or special
meeting of stockholders need not be by written ballot unless the bylaws of the
Corporation shall provide otherwise.
SECTION 4. INITIAL DIRECTORS. The directors of the Corporation shall,
at the date hereof, be:
(a) Class A Directors
(i) John W. Paxton
7
8
(b) Class B Directors
(i) Samuel F. McKay
(ii) vacant (to be filled as a newly-created seat
under the Bylaws)
(c) Class C Directors
(i) Roger J. Murphy, Jr.
(ii) James H. Furneaux
ARTICLE VII
-----------
STOCKHOLDER ACTION
No action shall be taken by the stockholders except at a duly called
annual or special meeting of stockholders and may not be effected by any consent
in writing by such stockholders.
ARTICLE VIII
------------
ACQUISITION EVALUATION
The Board of Directors of the Corporation, when evaluating any offer of
another party to (i) make a tender or exchange offer for any equity security of
the Corporation; (ii) merge or consolidate the Corporation with another
corporation; or (iii) purchase or otherwise acquire all or substantially all of
the properties and assets of the Corporation, shall in connection with the
exercise of its judgment in determining what is in the best interests of the
Corporation and its stockholders, give due consideration to all relevant
factors, including without limitation the social and economic effects on the
employees, customers, suppliers and other constituents of the Corporation and
its subsidiaries and on the communities in which the Corporation and its
subsidiaries operate or are located.
ARTICLE IX
----------
REMOVAL OF DIRECTOR
Any director may be removed at any annual or special stockholders'
meeting upon the affirmative vote of not less than eighty percent (80%) of the
outstanding shares of voting stock of the Corporation at that time entitled to
vote thereon; provided, however, that such director may be removed only for
cause and shall receive a copy of the charges against him, delivered to him
personally or by mail at his last known address at least ten (10) days prior to
the date of the stockholders' meeting; AND PROVIDED FURTHER, that directors who
shall have been elected by the
8
9
holders of a series or class of Preferred Stock, voting separately as a class,
shall be removed only pursuant to the provisions establishing the rights of such
series or class to elect such directors.
ARTICLE X
---------
AMENDMENT OF CERTIFICATE OF INCORPORATION
SECTION 1. AMENDMENT OF CERTAIN ARTICLES. The provisions set forth in
this Article X and in Articles V; VI, Sections 1 and 5; VII; VIII; IX; XI and
XII may not be amended, altered, changed or repealed in any respect unless such
amendment, alteration, change or repealer is approved by the affirmative vote of
not less than eighty percent (80%) of the outstanding shares of the Corporation
entitled to vote thereon; provided that with respect to any proposed amendment,
alteration or change to this Certificate of Incorporation, or repealing of any
provision of this Certificate of Incorporation, which would amend, alter or
change the powers, preferences or special rights of the shares of Common Stock
so as to affect them adversely, the affirmative vote of not less than eighty
percent (80%) of the outstanding shares affected by the proposed amendment,
voting as a separate class, shall be required in addition to the vote otherwise
required pursuant to this Article X; and PROVIDED, FURTHER, that with respect to
any amendment, alteration or change to, or repealing of, any provision of
Article XI, the affirmative vote of not less than eighty percent (80%) of the
outstanding shares of the Corporation entitled to vote thereon, other than and
excepting shares held by the Interested Person (as referred to and defined in
Article XI) (if any) seeking or proposing to effect any transaction involving
the Corporation or any subsidiary of the Corporation, shall be required in
addition to the vote otherwise required pursuant to this Article X.
SECTION 2. AMENDMENTS GENERALLY. Subject to the provisions of Section 1
of this Article X, 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 on
stockholders herein are granted subject to this reservation.
ARTICLE XI
----------
BUSINESS COMBINATION
SECTION 1. DELAWARE LAW SECTION 203. This Article XI is in addition to,
not in limitation of, Delaware Law section 203.
SECTION 2. VOTE REQUIRED FOR CERTAIN BUSINESS COMBINATIONS. The
affirmative vote of not less than seventy-five percent (75%) of the outstanding
shares of "Voting Stock" (as hereinafter defined) held by stockholders other
than the "Interested Person" (as hereinafter defined) seeking to effect a
"Business Combination" (as hereinafter defined) shall be required for the
approval or authorization of any Business Combination with any Interested
Person.
9
10
SECTION 3. DEFINITIONS. Certain words and terms as used in this Article
XI shall have the meanings given to them by the definitions and descriptions in
this Section.
(a) BUSINESS COMBINATION. The term "Business Combination"
shall mean (i) any merger or consolidation of the Corporation or a
subsidiary of the Corporation with or into an Interested Person; (ii)
any sale, lease, exchange, transfer or other disposition, including
without limitation, a mortgage or any other security device, of all or
any "Substantial Part" (as hereinafter defined) of the assets either of
the Corporation (including without limitation, any voting securities of
a subsidiary) or of a subsidiary of the Corporation to an Interested
Person; (iii) any merger or consolidation of an Interested Person with
or into the Corporation or a subsidiary of the Corporation; (iv) any
sale, lease, exchange, transfer or other disposition, including without
limitation, a mortgage or other security device, of all or any
Substantial Part of the assets of an Interested Person to the
Corporation or a subsidiary of the Corporation; (v) the issuance or
transfer by the Corporation or any subsidiary of the Corporation of any
securities of the Corporation or a subsidiary of the Corporation to an
Interested Person; (vi) any reclassification of securities,
recapitalization or other comparable transaction involving the
Corporation that would have the effect of increasing the voting power
of any Interested Person with respect to Voting Stock of the
Corporation; and (vii) any agreement, contract or other arrangement
providing for any of the transactions described in this definition of
Business Combination.
(b) INTERESTED PERSON. The term "Interested Person" shall mean
and include any individual, corporation, partnership or other person or
entity which, together with its "Affiliates" and "Associates" (as
defined in Rule 12b-2 of the General Rules and Regulations under the
Securities Act of 1934 as in effect at the date of the adoption of this
Article XI by the stockholders of the Corporation), "Beneficially Owns"
(as defined in Rule 13d-3 of the General Rules and Regulations under
the Securities Exchange Act of 1934 as in effect at the date of the
adoption of this Article XI by the stockholders of the Corporation) in
the aggregate five percent (5%) or more of the outstanding Voting Stock
of the Corporation, and any Affiliate or Associate of any such
individual, corporation, partnership or other person or entity. Without
limitation, any share of Voting Stock of the Corporation that any
Interested Person has the right to acquire at any time (notwithstanding
that Rule 13d-3 deems such shares to be beneficially owned only if such
right may be exercised within sixty (60) days) pursuant to any
agreement, or upon exercise of conversion rights, warrants or options,
or otherwise, shall be deemed to be Beneficially Owned by the
Interested Person and to be outstanding for purposes of this
definition. An Interested Person shall be deemed to have acquired a
share of the Voting Stock of the Corporation at the time when such
Interested Person became the Beneficial Owner thereof. With respect to
the shares owned by Affiliates, Associates or other persons whose
ownership is attributed to an Interested Person under the foregoing
definition of Interested Person, if the price paid by such Interested
Person for such shares is not determinable by two-thirds of the
Continuing Directors, the price so paid shall be deemed to be the
higher of (i) the price paid upon the acquisition thereof by the
Affiliate, Associate or other person
10
11
or (ii) the market price of the shares in question at the time when the
Interested Person became the Beneficial Owner thereof.
(c) VOTING STOCK. The term "Voting Stock" shall mean all of
the outstanding shares of Common Stock of the Corporation and any
outstanding shares of Preferred Stock entitled to vote on each matter
on which the holders of record of Common Stock shall be entitled to
vote, and each reference to a proportion of shares of Voting Stock
shall refer to such proportion of the votes entitled to be cast by all
of such shares.
(d) SUBSTANTIAL PART. The term "Substantial Part" shall mean
more than twenty percent (20%) of the fair market value of the total
consolidated assets of the Corporation and its subsidiaries taken as a
whole as of the end of its most recent fiscal year ended prior to the
time the determination is being made, and determined by a vote of
two-thirds of the Corporation's directors.
ARTICLE XII
-----------
RELATED PARTY TRANSACTIONS
SECTION 1. VALIDITY OF AGREEMENTS. No contract, agreement, arrangement
or transaction (or any amendment, modification or termination thereof) between
the Corporation and any Related Entity (as defined below) or between the
Corporation and one or more of the directors or officers of the Corporation or
any Related Entity, shall be void or voidable solely for the reason that any
Related Entity or any one or more of the officers or directors of the
Corporation or any Related Entity are parties thereto, or solely because any
such directors or officers are present at or participate in the meeting of the
Board of Directors or committee thereof which authorizes the contract,
agreement, arrangement, transaction, amendment, modification or termination or
solely because his or their votes are counted for such purpose, but any such
contract, agreement, arrangement or transaction (or any amendment, modification
or termination thereof) shall be governed by the provisions of this Certificate
of Incorporation, the Corporation's Bylaws, Delaware Law and other applicable
law. For purposes of this Article XII, (i) the term "Related Entity" means one
or more directors of this Corporation, or one or more corporations,
partnerships, associations or other organizations in which one or more of its
directors have a direct or indirect financial interest and (ii) the term
"Corporation" shall mean the Corporation and all corporations, partnerships,
joint ventures, associations and other entities in which the Corporation
beneficially owns (directly or indirectly) fifty percent (50%) or more of the
outstanding voting stock, voting power or similar voting interests.
SECTION 2. DUAL DIRECTORSHIPS. Directors of the Corporation who are
also directors or officers of any Related Entity may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or of a
committee that authorizes or approves any such contract, agreement, arrangement
or transaction (or amendment, modification or termination thereof). Outstanding
Shares of Common Stock owned by any Related Entity may be counted in
11
12
determining the presence of a quorum at a meeting of stockholders that
authorizes or approves any such contract, agreement, arrangement or transaction
(or amendment, modification or termination thereof).
SECTION 3. GOOD FAITH ACTIVITY. No officer or director of any Related
Entity shall be liable to the Corporation or its stockholders for breach of any
fiduciary duty or duty of loyalty or failure to act in (or not opposed to) the
best interests of the Corporation or the derivation of any improper personal
benefit by reason of the fact that an officer or director of such Related Entity
in good faith takes any action or exercises any rights or gives or withholds any
consent in connection with any agreement or contract between any Related Entity
and the Corporation. No vote cast or other action taken by any person who is an
officer, director or other representative of such Related Entity, which vote is
cast or action is taken by such person in his capacity as a director of the
Corporation, shall constitute an action of or the exercise of a right by or a
consent of such Related Entity for the purpose of any such agreement or
contract.
SECTION 4. NOTICE AND WAIVER. Any person or entity purchasing or
otherwise acquiring any interest in any shares of capital stock of the
Corporation shall be deemed to have notice of, to understand the ramifications
of, to have consented to the provisions of, and, to the fullest extent permitted
by Delaware Law, to have waived his right to contest this Article XII.
SECTION 5. ALTER EGO. For purposes of this Article XII, any contract,
agreement, arrangement or transaction with any corporation, partnership, joint
venture, association or other entity in which the Corporation beneficially owns
(directly or indirectly) fifty percent (50%) or more of the outstanding voting
stock, voting power or similar voting interests, or with any officer or director
thereof, shall be deemed to be a contract, agreement, arrangement or transaction
with the Corporation.
SECTION 6. EFFECTIVENESS. Neither the alteration, amendment, change or
repeal of any provision of this Article XII nor the adoption of any provision
inconsistent with any provision of this Article XII shall eliminate or reduce
the effect of this Article XII in respect of any matter occurring, or any cause
of action, suit or claim that, but for this Article XII, would accrue or arise,
prior to such alteration, amendment, change, repeal or adoption.
SECTION 7. NON-EXCLUSIVE PROVISIONS. The provisions of this Article XII
are in addition to the provisions of Article VI, Section 5.
ARTICLE XIII
------------
LIMITED LIABILITY; INDEMNIFICATION
SECTION 1. LIMITED LIABILITY OF DIRECTORS. A director of the
Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of
12
13
fiduciary duty as a director, except, if required by Delaware Law, as amended
from time to time, 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) under Section 174 of Delaware Law; or (iv) for any transaction from
which the director derived an improper personal benefit. Neither the amendment
nor repeal of Section 1 of this Article XIII shall eliminate or reduce the
effect of Section 1 of this Article XIII in respect of any matter occurring, or
any cause of action, suit or claim that, but for Section 1 of this Article XIII
would accrue or arise, prior to such amendment or repeal.
SECTION 2. INDEMNIFICATION AND INSURANCE.
------------------------------
(a) RIGHT TO INDEMNIFICATION. Each person who was or is made a
party or is threatened to be made a party to or is involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "Proceeding"), by reason of the fact that
such person, or a person of whom such person is the legal
representative, is or was a director or officer of the Corporation or
is or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such proceeding
is alleged action in an official capacity as a director, officer,
employee or agent or in any other capacity while serving as a director,
officer, employee or agent, shall be indemnified and held harmless by
the Corporation to the fullest extent authorized by Delaware Law, as
the same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said law
permitted the Corporation to provide prior to such amendment), against
all expense, liability and loss (including attorneys' fees, judgments,
fines, amounts paid or to be paid in settlement, and excise taxes or
penalties arising under the Employee Retirement Income Security Act of
1974, as in effect from time to time) reasonably incurred or suffered
by such person in connection therewith and such indemnification shall
continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of such person's
heirs, executors and administrators; provided, however, that, except as
provided in paragraph (b) hereof, the Corporation shall indemnify any
such person seeking indemnification in connection with a proceeding (or
part thereof) initiated by such person only if such proceeding (or part
thereof) was authorized by the Board of Directors. The right to
indemnification conferred in this Section shall be a contract right and
shall include the right to have the Corporation pay the expenses
incurred in defending any such proceeding in advance of its final
disposition; any advance payments to be paid by the Corporation within
twenty (20) calendar days after the receipt by the Corporation of a
statement or statements from the claimant requesting such advance or
advances from time to time; provided, however, that, if and to the
extent Delaware law requires, the payment of such expenses incurred by
a director or officer in such person's capacity as a director or
officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service
13
14
to an employee benefit plan) in advance of the final disposition of a
proceeding, shall be made only upon delivery to the Corporation of an
undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this
Section or otherwise. The Corporation may, to the extent authorized
from time to time by the Board of Directors, grant rights to
indemnification, and rights to have the Corporation pay the expenses
incurred in defending any proceeding in advance of its final
disposition, to any employee or agent of the Corporation to the fullest
extent of the provisions of this Article with respect to the
indemnification and advancement of expenses of directors and officers
of the Corporation.
(b) RIGHT OF CLAIMANT TO BRING SUIT. If a claim under
paragraph (a) of this Section is not paid in full by the Corporation
within thirty (30) calendar 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 expense of prosecuting such claim. It
shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any proceeding in
advance of its final disposition where the required undertaking, if any
is required, has been tendered to the Corporation) that the claimant
has not met the standard of conduct which makes it permissible under
Delaware Law for the Corporation to indemnify the claimant for the
amount claimed, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its
Board of Directors, independent legal counsel or its stockholders) to
have made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because
the claimant has met the applicable standard of conduct set forth in
Delaware Law, nor an actual determination by the Corporation (including
its Board of Directors, independent legal counsel, or its stockholders)
that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
(c) NON-EXCLUSIVITY OF RIGHTS. The right to indemnification
and the payment of expenses incurred in defending a proceeding in
advance of its final disposition conferred in this Section shall not be
exclusive of any other right which any person may have or hereafter
acquire under any statute, provision of the Certificate of
Incorporation, Bylaw, agreement, vote of stockholders or disinterested
directors or otherwise. No repeal or modification of this Article shall
in any way diminish or adversely affect the rights of any director,
officer, employee or agent of the Corporation hereunder in respect of
any occurrence or matter arising prior to any such repeal or
modification.
(d) INSURANCE. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent
of the Corporation or another corporation, partnership, joint venture,
trust or other enterprise against any such expense,
14
15
liability or loss, whether or not the Corporation would have the power
to indemnify such person against such expense, liability or loss under
Delaware Law.
(e) SEVERABILITY. If any provision or provisions of this
Article XIII shall be held to be invalid, illegal or unenforceable for
any reason whatsoever: (1) the validity, legality and enforceability of
the remaining provisions of this Article XIII (including, without
limitation, each portion of any paragraph of this Article XIII
containing any such provision held to be invalid, illegal or
unenforceable, that is not itself held to be invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby and
(2) to the fullest extent possible, the provisions of this Article XIII
(including, without limitation, each such portion of any paragraph of
this Article XIII containing any such provision held to be invalid,
illegal or unenforceable) shall be construed so as to give effect to
the intent manifested by the provision held invalid, illegal or
unenforceable.
ARTICLE XIV
-----------
GENDER AND FORM
Whenever the context may require, any pronouns used in this Certificate
of Incorporation shall include the corresponding masculine, feminine or neuter
forms, and the singular form of nouns and pronouns, including capitalized terms
defined herein, shall include the plural and vice versa. "Including" and words
of similar import shall be construed as words of inclusion and not of limitation
such that matters described following such words of inclusion shall be regarded
as nonexclusive, noncharacterizing illustrations of the matters described prior
to such words of inclusion.
ARTICLE XV
----------
EFFECTIVE DATE
Upon the adoption of this Certificate of Incorporation by the
stockholders of the Corporation and its filing by the Secretary of State of
Delaware as required by applicable provisions of Delaware Law, this Certificate
of Incorporation shall become effective and shall supersede the existing
Certificate of Incorporation, as amended to date.
15
16
IN WITNESS WHEREOF, this Certificate of Incorporation has been duly
adopted by the written consent of the stockholders of the Corporation in
accordance with the provisions of Sections 228, 242 and 245 of Delaware Law and
has been executed this _____ day of _______________________, 1999.
AIRONET WIRELESS COMMUNICATIONS, INC.
By:___________________________________
Name:_________________________________
Title:________________________________
Attest:
______________________________________
Secretary
16