1
Exhibit 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
NETRO CORPORATION
* * * * *
FIRST: The name of the Corporation is Netro Corporation.
SECOND: The address of its registered office 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.
THIRD: 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").
FOURTH: The total number of shares of stock that the Corporation shall
have authority to issue is 105,000,000, consisting of 100,000,000 shares of
Common Stock, par value $0.001 per share (the "COMMON STOCK"), and 5,000,000
shares of Preferred Stock, par value $0.001 per share (the "PREFERRED STOCK").
The Board of Directors is hereby empowered to authorize by resolution or
resolutions from time to time the issuance of one or more classes or series of
Preferred Stock and to fix the designations, powers, preferences and relative,
participating, optional or other rights, if any, and the qualifications,
limitations or restrictions thereof, if any, with respect to each such class or
series of Preferred Stock and the number of shares constituting each such class
or series, and to increase or decrease the number of shares of any such class or
series to the extent permitted by the General Corporation Law of the State of
Delaware, as amended from time to time.
FIFTH: (a) The business and affairs of the Corporation shall be managed
by or under the direction of a Board of Directors.
(b) 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. Each director shall serve for a term ending on the date of
the third annual meeting of stockholders next following the annual meeting at
which such director was elected, provided that directors initially designated as
Class I directors shall serve for a term ending on the date of the 2002 annual
meeting,
2
directors initially designated as Class II directors shall serve for a term
ending on the 2003 annual meeting, and directors initially designated as Class
III directors shall serve for a term ending on the date of the 2004 annual
meeting. Notwithstanding the foregoing, each director shall hold office until
such director's successor shall have been duly elected and qualified or until
such director's earlier death, resignation or removal. In the event of any
change in the number of directors, the Board of Directors shall apportion any
newly created directorships among, or reduce the number of directorships in,
such class or classes as shall equalize, as nearly as possible, the number of
directors in each class. In no event will a decrease in the number of directors
shorten the term of any incumbent director.
(c) The names and mailing addresses of the persons who are to serve
initially as directors of each Class shall be set forth in a resolution adopted
by the Board of Directors in accordance with the Bylaws of the corporation.
(d) There shall be no cumulative voting in the election of directors.
Election of directors need not be by written ballot unless the bylaws of the
Corporation so provide.
(e) Vacancies on the Board of Directors resulting from death,
resignation, removal or otherwise and newly created directorships resulting from
any increase in the number of directors may be filled solely by a majority of
the directors then in office (although less than a quorum) or by the sole
remaining director, and each director so elected shall hold office for a term
that shall coincide with the term of the Class to which such director shall have
been elected.
(f) No director may be removed from office by the stockholders except
for cause with the affirmative vote of the holders of not less than a majority
of the total voting power of all outstanding securities of the Corporation then
entitled to vote generally in the election of directors, voting together as a
single class.
SIXTH: Election of directors need not be by written ballot unless the
bylaws of the Corporation so provide.
SEVENTH: (1) A director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director to the fullest extent permitted by Delaware Law.
(2)(a) Each person (and the heirs, executors or administrators of such
person) who was or is a party or is threatened to be made a party to, or is
involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that such person is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise, shall be
indemnified and held harmless by
2
3
the Corporation to the fullest extent permitted by Delaware Law. The right to
indemnification conferred in this ARTICLE SEVENTH shall also include the right
to be paid by the Corporation the expenses incurred in connection with any such
proceeding in advance of its final disposition to the fullest extent authorized
by Delaware Law. The right to indemnification conferred in this ARTICLE SEVENTH
shall be a contract right.
(b) The Corporation may, by action of its Board of Directors, provide
indemnification to such of the employees and agents of the Corporation to such
extent and to such effect as the Board of Directors shall determine to be
appropriate and authorized by Delaware Law.
(3) The Corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any expense, liability or loss
incurred by such person in any such capacity or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against such liability under Delaware Law.
(4) The rights and authority conferred in this ARTICLE SEVENTH shall not
be exclusive of any other right which any person may otherwise have or hereafter
acquire.
(5) Neither the amendment nor repeal of this ARTICLE SEVENTH, nor the
adoption of any provision of this Certificate of Incorporation or the bylaws of
the Corporation, nor, to the fullest extent permitted by Delaware Law, any
modification of law, shall eliminate or reduce the effect of this ARTICLE
SEVENTH in respect of any acts or omissions occurring prior to such amendment,
repeal, adoption or modification.
EIGHTH: Any action required or permitted to be taken at any annual or
special meeting of stockholders may be taken only upon the vote of stockholders
at an annual or special meeting duly noticed and called in accordance with the
General Corporation Law of the State of Delaware, as amended from time to time,
and may not be taken by written consent of stockholders without a meeting.
NINTH: Special meetings of stockholders may be called by the Board of
Directors or the Chairman of the Board and shall be called by the Secretary at
the request in writing of holders of record of a majority of the outstanding
capital stock of the Corporation entitled to vote. Such request shall state the
purpose or purposes of the proposed meeting.
3
4
TENTH: The Corporation reserves the right to amend this Certificate of
Incorporation in any manner permitted by Delaware Law and, with the sole
exception of those rights and powers conferred under the above ARTICLE SEVENTH,
all rights and powers conferred herein on stockholders, directors and officers,
if any, are subject to this reserved power.
Signed and attested to on June 19, 2001.
By: /s/ Gideon Ben-Efraim
-------------------------------
Name: Gideon Ben-Efraim
Title: President
Attest:
/s/ Francis S. Currie
- ----------------------------------
Name: Francis S. Currie
Title: Secretary
4