Attached files
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8-K - FORM 8-K - AVIAT NETWORKS, INC. | f54142e8vk.htm |
EX-3.2 - EX-3.2 - AVIAT NETWORKS, INC. | f54142exv3w2.htm |
Exhibit
3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
HARRIS STRATEX NETWORKS, INC.
Harris Stratex Networks, Inc. (the Corporation), a corporation organized and
existing under, and by virtue of, the General Corporation Law of the State of Delaware
(DGCL) hereby certifies as follows:
(1) The name of the Corporation is Harris Stratex Networks, Inc.
(2) The original certificate of incorporation of the Corporation was filed with the Secretary
of the State of Delaware on October 5, 2006. The Amended and Restated Certificate of Incorporation
of the Corporation was filed with the Secretary of State of Delaware on January 26, 2007. A
Certificate of Designations of Series A Junior Participating Preferred Stock was filed with the
Secretary of State of Delaware on April 21, 2009.
(3) This amended and restated certificate of incorporation which restates, integrates and
amends the Corporations certificate of incorporation, as heretofore amended or supplemented, has
been duly adopted by the board of directors of the Corporation (the Board) and by the
stockholders of the Corporation in accordance with Sections 242 and 245 of the DGCL, and has been
duly executed by an officer of the Corporation and filed in accordance with Section 103 of the
DGCL.
(4) As of the date of the filing with the Secretary of State of the State of Delaware of this
certificate of incorporation of the Corporation, as restated, integrated and amended (the
Amended and Restated Certificate of Incorporation), no shares of the Corporations Class
B common stock, par value $0.01 per share, are issued and outstanding;
(5) The text of the Amended and Restated Certificate of Incorporation shall read, in its
entirety, as follows:
Article I
Name
Name
The name of the Corporation is Harris Stratex Networks, Inc.
Article II
Registered Agent
Registered Agent
The address of the registered office of the Corporation in the State of Delaware is 1209
Orange Street, the City of Wilmington, County of New Castle, and the name of its registered agent
at that address is The Corporation Trust Company.
Article III
Purpose
Purpose
The purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the DGCL.
Article IV
Capitalization
Capitalization
(a) Capitalization. The total number of shares of all classes that this Corporation
is authorized to issue is 350,000,000 shares, of which (i) 50,000,000 shares shall be designated as
preferred stock, par value $0.01 per share (the Preferred Stock), and (ii) 300,000,000
shares shall be designated as common stock, par value $0.01 per share (the Common Stock).
Upon the filing of this Amended and Restated Certificate of Incorporation with the Secretary of
State of the State of Delaware (the Filing Time), each share of common stock of the
Corporation, however designated, issued and outstanding immediately prior thereto (Old Common
Stock), shall be automatically reclassified as one validly issued, fully paid and
non-assessable share of Common Stock without any further action on the part of the Corporation or
by the holder thereof. Each certificate formerly representing a share or shares of Old Common
Stock shall automatically represent from and after the Filing Time, without any further action on
the part of the Corporation or any holder thereof, a number of shares of Common Stock equal to the
number of shares of Old Common Stock represented by such certificate immediately prior to the
Filing Time.
(b) Preferred Stock. Shares of Preferred Stock may be issued in one or more series
from time to time by the Board, and the Board is expressly authorized to fix by resolution or
resolutions the designations and the powers, preferences and rights, and the qualifications,
limitations and restrictions thereof, of the shares of each series of Preferred Stock, including
without limitation the following:
(i) the distinctive serial designation of such series which shall distinguish it from
other series;
(ii) the number of shares included in such series;
(iii) the dividend rate (or method of determining such rate) payable to the holders of
the shares of such series, any conditions upon which such dividends shall be paid and the
date or dates upon which such dividends shall be payable;
(iv) whether dividends on the shares of such series shall be cumulative and, in the
case of shares of any series having cumulative dividend rights, the date or dates or method
of determining the date or dates from which dividends on the shares of such series shall be
cumulative;
(v) the amount or amounts which shall be payable out of the assets of the corporation
to the holders of the shares of such series upon voluntary or involuntary liquidation,
dissolution or winding up the Corporation, and the relative rights of priority, if any, of
payment of the shares of such series;
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(vi) the price or prices at which, the period or periods within which and the terms and
conditions upon which the shares of such series may be redeemed, in whole or in part, at the
option of the Corporation or at the option of the holder or holders thereof or upon the
happening of a specified event or events;
(vii) the obligation, if any, of the Corporation to purchase or redeem shares of such
series pursuant to a sinking fund or otherwise and the price or prices at which, the period
or periods within which and the terms and conditions upon which the shares of such series
shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(viii) whether or not the shares of such series shall be convertible or exchangeable,
at any time or times at the option of the holder or holders thereof or at the option of the
Corporation or upon happening of a specified event or events, into shares of any other class
or classes of stock of the Corporation, and the price or prices or rate or rates of exchange
or conversion and any adjustments applicable thereto; and
(ix) whether or not the holders of the shares of such series shall have voting rights,
in addition to the voting rights provided by law, and if so the terms of such voting rights.
Subject to the rights of the holders of any series of Preferred Stock, the number of authorized
shares of any class or series of Preferred Stock may be increased or decreased (but not below the
number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of
the outstanding shares of such class or series, voting together as a single class, irrespective of
the provisions of Section 242(b)(2) of the DGCL. The Board has designated a series of its Series A
Junior Participating Preferred Stock pursuant to a Certificate of Designations duly filed with the
Secretary of State of Delaware on April 21, 2009, a copy of which is attached hereto as Exhibit
A and incorporated herein by reference.
Article V
Directors
Directors
The number of directors (the Directors) that shall constitute the whole Board shall
be fixed from time to time pursuant to the amended and restated bylaws of the Corporation, as may
be further amended from time to time (the Bylaws).
Article VI
Limitation of Liability
Limitation of Liability
A Director shall not be liable to the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a Director, except to the extent that such exemption from liability or
limitation thereof is not permitted under the DGCL as currently in effect or as the same may
hereafter be amended. If the DGCL is hereafter amended to authorize corporate action further
limiting or eliminating the liability of Directors to the Corporation or its stockholders, then
without any further action by any individual, corporation (including not-for-profit), general or
limited partnership, limited liability company, joint venture, estate, trust, association,
organization, government entity or other entity of any kind or nature such liability shall be so
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limited or eliminated to the fullest extent permitted by the DGCL as so amended. No adoption,
amendment, modification or repeal of this Article VI or any other provision of this Amended and
Restated Certificate of Incorporation shall adversely affect any right or protection of a Director
existing at the time of such adoption, amendment, modification or repeal with respect to acts or
omissions occurring prior to such time.
Article VII
Bylaws
Bylaws
In furtherance and not in limitation of the powers conferred by statute, the Board is
expressly authorized to adopt, repeal, alter, amend and rescind from time to time any or all of the
Bylaws of the Corporation.
Article VIII
Amendment of Amended and Restated Certificate of Incorporation
Amendment of Amended and Restated Certificate of Incorporation
This Corporation reserves the right to amend, alter, change or repeal any provision contained
in this Amended and Restated 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.
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IN WITNESS WHEREOF, I have signed this Amended and Restated Certificate of Incorporation this
19th day of November, 2009.
HARRIS STRATEX NETWORKS, INC. |
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By: | /s/ Harald J. Braun | |||
Name: | Harald J. Braun | |||
Title: | Chief Executive Officer and President | |||
5
Exhibit A
CERTIFICATE OF DESIGNATIONS
of
SERIES A JUNIOR PARTICIPATING
SERIES A JUNIOR PARTICIPATING
PREFERRED STOCK
of
HARRIS STRATEX NETWORKS, INC.
(Pursuant to Section 151 of the
Delaware General Corporation Law)
Delaware General Corporation Law)
Harris Stratex Networks, Inc., a corporation organized and existing under the General
Corporation Law of the State of Delaware (hereinafter called the Corporation), DOES
HEREBY CERTIFY that pursuant to the authority vested in the Board of Directors of the Corporation
(hereinafter called the Board of Directors or the Board) by the Amended and
Restated Certificate of Incorporation of the Corporation, and in accordance with the provisions of
Section 151 of the General Corporation Law of the State of Delaware, the Board of Directors on
April 20, 2009 adopted a resolution providing for the authorization of a series of preferred stock,
as follows:
RESOLVED, that pursuant to the authority granted to and vested in the Board of Directors of
the Corporation in accordance with the provisions of the Amended and Restated Certificate of
Incorporation, the Board of Directors hereby creates a series of preferred stock, par value $0.01
per share (the Series A Junior Participating Preferred Stock), of the Corporation and
hereby states the designation and number of shares, and fixes the relative rights, preferences, and
limitations thereof as follows:
Section 1. Designation and Amount. The shares of such series shall be designated as
Series A Junior Participating Preferred Stock and the number of shares constituting the
Series A Junior Participating Preferred Stock shall be 1,000,000. Such number of shares may be
increased or decreased by resolution of the Board of Directors; provided, that no decrease shall
reduce the number of shares of Series A Junior Participating Preferred Stock to a number less than
the number of shares then outstanding plus the number of shares reserved for issuance upon the
exercise of outstanding options, rights or warrants or upon the conversion of any outstanding
securities issued by the Corporation convertible into Series A Junior Participating Preferred
Stock.
Section 2. Dividends and Distributions. Subject to the rights of the holders of any
shares of any series of preferred stock (or any similar stock) ranking prior and superior to the
Series A Junior Participating Preferred Stock with respect to dividends, the holders of shares of
Series A Junior Participating Preferred Stock, in preference to the holders of common stock, par
value $0.01 per share (the Common Stock), of the Corporation, and of any other junior
stock, shall be entitled to receive, when, as and if declared by the Board of Directors out of
funds legally available for the purpose, quarterly
dividends payable in cash on the first day of March, June, September and December in each year
(each such date being referred to herein as a Quarterly Dividend Payment Date),
commencing on the first Quarterly Dividend Payment Date after the first issuance of a share or
fraction of a share of Series A
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Junior Participating Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (a) $1.00 or (b) subject to the provision for
adjustment hereinafter set forth, one thousand (1,000) times the aggregate per share amount of all
cash dividends, and one thousand (1,000) times the aggregate per share amount (payable in kind) of
all non-cash dividends or other distributions, other than a dividend payable in shares of Common
Stock or a subdivision of the outstanding shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock since the immediately preceding Quarterly Dividend Payment
Date or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series A Junior Participating Preferred Stock. In the event the
Corporation shall at any time declare or pay any dividend on the Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each such case the amount
to which holders of shares of Series A Junior Participating Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to such event.
The Corporation shall declare a dividend or distribution on the Series A Junior Participating
Preferred Stock as provided in the first paragraph of this section immediately after it declares a
dividend or distribution on the Common Stock (other than a dividend payable in shares of Common
Stock); provided that, in the event no dividend or distribution shall have been declared on the
Common Stock during the period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $1.00 per share on the Series A Junior Participating
Preferred Stock shall nevertheless be payable on such subsequent Quarterly Dividend Payment Date.
Dividends shall begin to accrue and be cumulative on outstanding shares of Series A Junior
Participating Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of
issue of such shares, unless the date of issue of such shares is prior to the record date for the
first Quarterly Dividend Payment Date, in which case dividends on such shares shall begin to accrue
from the date of issue of such shares, or unless the date of issue is a Quarterly Dividend Payment
Date or is a date after the record date for the determination of holders of shares of Series A
Junior Participating Preferred Stock entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such dividends shall begin to accrue and
be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not
bear interest. Dividends paid on the shares of Series A Junior Participating Preferred Stock in an
amount less than the total amount of such dividends at the time accrued and payable on such shares
shall be allocated pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the determination of holders of
shares of Series A Junior Participating Preferred Stock entitled to receive payment of a dividend
or distribution declared thereon, which record date shall be not more than 60 days prior to the
date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Junior Participating
Preferred Stock shall have the following voting rights:
Subject to the provision for adjustment hereinafter set forth, each share of Series A Junior
Participating Preferred Stock shall entitle the holder thereof to one thousand votes on all matters
submitted to a vote of the stockholders of the Corporation. In the event the Corporation shall at
any time
declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a
greater or
-3-
lesser number of shares of Common Stock, then in each such case the number of votes per
share to which holders of shares of Series A Junior Participating Preferred Stock were entitled
immediately prior to such event shall be adjusted by multiplying such number by a fraction, the
numerator of which is the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
Except as otherwise provided herein, in any other Certificate of Designations creating a
series of preferred stock or any similar stock, or by law, the holders of shares of Series A Junior
Participating Preferred Stock and the holders of shares of Common Stock and any other capital stock
of the Corporation having general voting rights shall vote together as one class on all matters
submitted to a vote of stockholders of the Corporation.
Except as set forth herein, or as otherwise provided by law, holders of Series A Junior
Participating Preferred Stock shall have no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote with holders of Common Stock as set forth
herein) for taking any corporate action.
Section 4. Certain Restrictions. Whenever quarterly dividends or other dividends or
distributions payable on the Series A Junior Participating Preferred Stock as provided in Section 2
are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or
not declared, on shares of Series A Junior Participating Preferred Stock outstanding shall have
been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on any shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the
Series A Junior Participating Preferred Stock;
(ii) declare or pay dividends, or make any other distributions, on any shares of stock
ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with
the Series A Junior Participating Preferred Stock, except dividends paid ratably on the Series A
Junior Participating Preferred Stock and all such parity stock on which dividends are payable or
in arrears in proportion to the total amounts to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares of any stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A
Junior Participating Preferred Stock, provided that the Corporation may at any time redeem,
purchase or otherwise acquire shares of any such junior stock in exchange for shares of any
stock of the Corporation ranking junior (as to dividends and upon dissolution, liquidation and
winding up) to the Series A Junior Participating Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration any shares of Series A
Junior Participating Preferred Stock, or any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series A Junior Participating
Preferred Stock, except in accordance with a purchase offer made in writing or by publication
(as determined by the Board of Directors) to all holders of such shares upon such terms as the
Board of Directors, after consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and classes, shall determine in good
faith will result in fair and equitable treatment among the respective series or classes.
The Corporation shall not permit any subsidiary of the Corporation to purchase or otherwise
acquire for consideration any shares of stock of the Company unless the Corporation could, under
this Section 4, purchase or otherwise acquire such shares at such time and in such manner.
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Section 5. Reacquired Shares. Any shares of Series A Junior Participating Preferred
Stock purchased or otherwise acquired by the Company in any manner whatsoever shall be retired and
cancelled promptly after the acquisition thereof. All such shares shall upon their cancellation
become authorized but unissued shares of preferred stock and may be reissued as part of a new
series of preferred stock subject to the conditions and restrictions on issuance set forth herein,
in the Amended and Restated Certificate of Incorporation, or in any other Certificate of
Designations creating a series of preferred stock or any similar stock or as otherwise required by
law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any liquidation, dissolution
or winding up of the Corporation, no distribution shall be made (1) to the holders of shares of
stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the
Series A Junior Participating Preferred Stock unless, prior thereto, the holders of shares of
Series A Junior Participating Preferred Stock shall have received $1,000.00 per share, plus an
amount equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to
the date of such payment, provided that the holders of shares of Series A Junior Participating
Preferred Stock shall be entitled to receive an aggregate amount per share, subject to the
provision for adjustment hereinafter set forth, equal to one thousand (1,000) times the aggregate
amount to be distributed per share to holders of shares of Common Stock, or (2) to the holders of
shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Junior Participating Preferred Stock, except distributions made
ratably on the Series A Junior Participating Preferred Stock and all such parity stock in
proportion to the total amounts to which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up. In the event the Corporation shall at any time declare or
pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the aggregate amount to which holders of shares
of Series A Junior Participating Preferred Stock were entitled immediately prior to such event
under the proviso in clause (1) of the preceding sentence shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the Corporation shall enter into any
consolidation, merger, combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any other property, then in
any such case each share of Series A Junior Participating Preferred Stock shall at the same time be
similarly exchanged or changed into an amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 1,000 times the aggregate amount of stock, securities, cash and/or
any other property (payable in kind), as the case may be, into which or for which each share of
Common Stock is changed or exchanged. In the event the Corporation shall at any time declare or pay
any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the amount set forth in the preceding sentence
with respect to the exchange or change of shares of Series A Junior Participating Preferred Stock
shall be adjusted by multiplying such amount by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
Section 8. No Redemption. The shares of Series A Junior Participating Preferred
Stock shall not be redeemable.
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Section 9. Rank. The Series A Junior Participating Preferred Stock shall rank, with
respect to the payment of dividends and the distribution of assets, junior to all series of any
other class of the Corporations preferred stock.
Section 10. Amendment. The Amended and Restated Certificate of Incorporation of the
Corporation shall not be amended in any manner which would materially alter or change the powers,
preferences or special rights of the Series A Junior Participating Preferred Stock so as to affect
them adversely without the affirmative vote of the holders of at least a majority of the
outstanding shares of Series A Junior Participating Preferred Stock, voting together as a single
class.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, this Certificate of Designations is executed on behalf of the Company by
its Chief Executive Officer and President, this 20th day of April 2009.
HARRIS STRATEX NETWORKS, INC. |
||
/s/ Harald J. Braun
|
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Chief Executive Officer and President |