Attached files
file | filename |
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10-K - FORM 10-K - FINISAR CORP | f56169e10vk.htm |
EX-21 - EX-21 - FINISAR CORP | f56169exv21.htm |
EX-31.2 - EX-31.2 - FINISAR CORP | f56169exv31w2.htm |
EX-23.1 - EX-23.1 - FINISAR CORP | f56169exv23w1.htm |
EX-31.3 - EX-31.3 - FINISAR CORP | f56169exv31w3.htm |
EX-32.1 - EX-32.1 - FINISAR CORP | f56169exv32w1.htm |
EX-32.3 - EX-32.3 - FINISAR CORP | f56169exv32w3.htm |
EX-31.1 - EX-31.1 - FINISAR CORP | f56169exv31w1.htm |
EX-32.2 - EX-32.2 - FINISAR CORP | f56169exv32w2.htm |
EX-10.62 - EX-10.62 - FINISAR CORP | f56169exv10w62.htm |
Exhibit 3.8
AMENDED
AND RESTATED CERTIFICATE OF INCORPORATION
OF
FINISAR CORPORATION
(Originally incorporated under the name FINISAR DELAWARE CORPORATION)
(Pursuant to Section 245 of the General Corporation Law of the State of Delaware)
Finisar Corporation, a corporation organized and existing under the General Corporation Law of
the State of Delaware on September 1, 1999 (the Corporation) certifies as follows:
1. The Corporations Restated Certificate of Incorporation was duly adopted by the Board of
Directors by unanimous written consent in accordance with Section 245 of the General Corporation
Law.
2. The Corporations Restated Certificate of Incorporation only restates and integrates and
does not further amend the provisions of the Corporations Certificate of Incorporation as
theretofore amended or supplemented, and there is no discrepancy between those provisions and the
provisions of the Restated Certificate.
3. The Corporations Certificate of Incorporation is restated to read in full as follows:
FIRST: The name of the Corporation is Finisar Corporation.
SECOND: The address of the registered office of the Corporation in the State of Delaware is
Incorporating Services, Ltd., 15 East North Street, in the City of Dover, County of Kent. The name
of the registered agent at that address is Incorporating Services, Ltd.
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 Delaware.
FOURTH:
A. The total number of shares of all classes of stock which the Corporation will have authority to
issue is seven hundred fifty-five million (755,000,000), consisting of:
1. Five million (5,000,000) shares of preferred stock, par value one-tenth of one cent
($0.001) per share (the Preferred Stock); and
2. Seven hundred fifty million (750,000,000) shares of common stock, par value one-tenth of
one cent ($0.001) per share (the Common Stock).
Upon the effectiveness of the Certificate of Amendment of Restated Certificate of
Incorporation [September 25, 2009 at 4:30 p.m. EDT] (the Effective Time), each eight (8)
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shares of the Corporations Common Stock, par value $0.001 per share, issued and outstanding
immediately prior to the Effective Time (the Old Common Stock), will automatically and without
any action on the part of the respective holders thereof be combined, reclassified and changed into
one (1) share of Common Stock, par value $0.001 per share, of the Corporation (the New Common
Stock). Notwithstanding the immediately preceding sentence, in lieu of any fractional interests
in shares of New Common Stock to which any stockholder would otherwise be entitled pursuant hereto
(taking into account all shares of capital stock owned by such stockholder), such stockholder shall
be entitled to receive a cash payment equal to the fraction to which such holder would otherwise be
entitled multiplied by the closing price of a share of New Common Stock on the Nasdaq Global Select
Market immediately following the Effective Time. The combination and conversion of the Old Common
Stock shall be referred to as the Reverse Stock Split.
The Corporation shall not be obligated to issue certificates evidencing the shares of New
Common Stock outstanding as a result of the Reverse Stock Split unless and until the certificates
evidencing the shares held by a holder prior to the Reverse Stock Split are either delivered to the
Corporation or its transfer agent, or the holder notifies the Corporation or its transfer agent
that such certificates have been lost, stolen or destroyed and executes an agreement satisfactory
to the Corporation to indemnify the Corporation from any loss incurred by it in connection with
such certificates. Each stock certificate that, immediately prior to the Effective Time,
represented shares of Old Common Stock shall, from and after the Effective Time, automatically and
without the necessity of presenting the same for exchange, represent that number of whole shares of
New Common Stock into which the shares of Old Common Stock represented by such certificate shall
have been reclassified (as well as the right to receive cash in lieu of any fractional shares of
New Common Stock as set forth above), provided, however, that each holder of record of a
certificate that represented shares of Old Common Stock shall receive, upon surrender of such
certificate, a new certificate representing the number of whole shares of New Common Stock into
which the shares of Old Common Stock represented by such certificate shall have been reclassified,
as well as any cash in lieu of fractional shares of New Common Stock to which such holder may be
entitled as set forth above.
B. The Board of Directors is authorized, subject to any limitations prescribed by law, to provide
for the issuance of the shares of Preferred Stock in series, and by filing a certificate pursuant
to the applicable law of the State of Delaware, to establish from time to time the number of shares
to be included in each such series, and to fix the designation, powers, preferences, and rights of
the shares of each such series and any qualifications, limitations or restrictions thereon. The
number of authorized shares 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 Common Stock without a vote of the holders of the Preferred Stock, or of any series thereof,
unless a vote of any such holders is required pursuant to the certificate or certificates
establishing the series of Preferred Stock.
Section 1 Designation and Amount. The shares of such series shall be
designated as Series RP Preferred Stock (the Series RP Preferred Stock), $0.001 par
value per share, and the number of shares constituting such series shall be 500,000.
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Section 2 Dividends and Distributions.
(A) The dividend rate on the shares of Series RP Preferred Stock shall be for each
quarterly dividend (hereinafter referred to as a quarterly dividend period), which
quarterly dividend periods shall commence on February 1, May 1, August 1 and November 1 each
year (each such date being referred to herein as a Quarterly Dividend Payment Date) (or in
the case of original issuance, from the date of original issuance) and shall end on and
include the day next preceding the first date of the next quarterly dividend period, at a
rate per quarterly dividend period (rounded to the nearest cent) equal to the greater of (a)
$350.00 or (b) subject to the provisions for adjustment hereinafter set forth, 1,000 times
the aggregate per share amount of all cash dividends, and 1,000 times the aggregate per
share amount (payable in cash, based upon the fair market value at the time the non-cash
dividend or other distribution is declared as determined in good faith by the Board of
Directors) 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 (but not withdrawn) on the Common Stock, par value
$0.001 per share, of the Corporation (the Common Stock) during the immediately preceding
quarterly dividend period, or, with respect to the first quarterly dividend period, since
the first issuance of any share or fraction of a share of Series RP Preferred Stock. In the
event this Company shall at any time after October 16, 2002 (the Rights Declaration Date)
(i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide
the outstanding Common Stock, or (iii) combine the outstanding Common Stock into a smaller
number of shares, then in each such case the amount to which holders of shares of Series RP
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.
(B) Dividends shall begin to accrue and be cumulative on outstanding shares of
Series RP Preferred Stock from the Quarterly Dividend Payment Date next preceding the date
of issue of such shares of Series RP Preferred Stock, 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 RP 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 RP 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 RP
Preferred Stock entitled to receive payment of a dividend or distribution declared thereon,
which record date shall be no more than 45 days prior to the date fixed for the payment
thereof.
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Section 3 Voting Rights. The holders of shares of Series RP Preferred Stock
shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each share of
Series RP Preferred Stock shall entitle the holder thereof to 1,000 votes on all matters
submitted to a vote of the stockholders of the Corporation. In the event the Corporation
shall at any time after the Rights Declaration Date (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or
(iii) combine the outstanding Common Stock into a smaller number of shares, then in each
such case the number of votes per share to which holders of shares of Series RP 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.
(B) Except as otherwise provided herein, in the Certificate of Incorporation or Bylaws,
the holders of shares of Series RP Preferred Stock and the holders of shares of Common Stock
shall vote together as one class on all matters submitted to a vote of stockholders of the
Corporation.
(C) Except as set forth herein, in the Certificate of Incorporation and in the Bylaws,
holders of Series RP 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 Reacquired Shares. Any shares of Series RP Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever shall be retired
and canceled 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 to be created by resolution or resolutions of the
Board of Directors, subject to the conditions and restrictions on issuance set forth herein.
Section 5 Liquidation, Dissolution or Winding Up.
(A) In the event of any voluntary or involuntary liquidation, dissolution or winding up
of the Corporation, the holders of the Series RP Preferred Stock shall be entitled to
receive the greater of (a) $14,000.00 per share, plus accrued dividends to the date of
distribution, whether or not earned or declared, or (b) an amount per share, subject to the
provision for adjustment hereinafter set forth, equal to 1,000 times the aggregate amount to
be distributed per share to holders of Common Stock. In the event the Corporation shall at
any time after the Rights Declaration Date (i) declare any dividend on Common Stock payable
in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case the amount
to which holders of shares of Series RP Preferred Stock were entitled immediately prior to
such event pursuant to clause (b) of
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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 6 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 the shares of Series RP Preferred Stock shall at the
same time be similarly exchanged or changed in 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 after the rights Declaration Date (i) declare any dividend on
Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock,
or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each
such case the amount set forth in the preceding sentence with respect to the exchange or
change of shares of Series RP 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 7 No Redemption. The shares of Series RP Preferred Stock shall not
be redeemable.
Section 8 Fractional Shares. Series RP Preferred Stock may be issued in
fractions of a share which shall entitle the holder, in proportion to such holders
fractional shares, to exercise voting rights, receive dividends, participate in
distributions and have the benefit of all other rights of holders of Series RP Preferred
Stock. All payments made with respect to fractional shares hereunder shall be rounded to
the nearest whole cent.
Section 9 Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions payable on the
Series RP 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 RP Preferred Stock outstanding shall have been paid in full, the Corporation shall
not:
(i) declare or pay dividends on, make any other distributions on, or redeem or purchase
or otherwise acquire for consideration any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series RP Preferred Stock;
(ii) declare or pay dividends on or make any other distributions on any shares of stock
ranking on a parity (either as to dividends or upon liquidation,
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dissolution or winding up) with the Series RP Preferred Stock, except dividends paid
ratably on the Series RP 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 on a parity (either as to dividends or upon liquidation, dissolution or winding up)
with the Series RP Preferred Stock, provided that the Corporation may at any time redeem,
purchase or otherwise acquire shares of any such parity stock in exchange for shares of any
stock of the Corporation ranking junior (either as to dividends or upon dissolution,
liquidation or winding up) to the Series RP Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any shares of Series RP Preferred
Stock, or any shares of stock ranking on a parity with the Series RP 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.
(B) The Corporation shall not permit any subsidiary of the Corporation to purchase or
otherwise acquire for consideration any shares of stock of the Corporation unless the
Corporation could, under paragraph (A) of this Section 9, purchase or otherwise acquire such
shares at such time and in such manner.
Section 10 Ranking. The Series RP Preferred Stock shall be junior to all
other Series of the Corporations Preferred Stock as to the payment of dividends and the
distribution of assets, unless the terms of any series shall provide otherwise.
Section 11 Amendment. The 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 RP Preferred Stock so as to affect them
adversely without the affirmative vote of the holders of two-thirds or more of the
outstanding shares of Series RP Preferred Stock voting together as a single class.
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. In addition to the powers and authority expressly conferred upon them by
statute or by this Certificate of Incorporation or the Bylaws of the Corporation, 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.
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B. The directors of the Corporation need not be elected by written ballot unless the Bylaws so
provide.
C. On and after the closing date of the first sale of the Corporations Common Stock pursuant to a
firmly underwritten registered public offering (the IPO), 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 may not be effected by any consent in writing by
such stockholders. Prior to such sale, unless otherwise provided by law, any action which may
otherwise be taken at any meeting of the stockholders may be taken without a meeting and without
prior notice, if a written consent describing such actions is signed by the holders of outstanding
shares having not less than the minimum number of votes which would be necessary to authorize or
take such action at a meeting at which all shares entitled to vote thereon were present and voted.
D. Special meetings of stockholders of the Corporation may be called only (1) by the Board of
Directors pursuant to a resolution adopted by a majority of the total number of authorized
directors (whether or not there exist any vacancies in previously authorized directorships at the
time any such resolution is presented to the Board for adoption) or (2) by the holders of not less
than ten percent (10%) of all of the shares entitled to cast votes at the meeting.
SIXTH:
A. The number of directors shall be set at six (6) and, thereafter, shall be fixed from time to
time exclusively by the Board of Directors pursuant to a resolution adopted by a majority of the
total number of authorized directors (whether or not there exist any vacancies in previously
authorized directorships at the time any such resolution is presented to the Board for adoption).
Upon the closing of the IPO, the directors shall be divided into three classes with the term of
office of the first class (Class I) to expire at the first annual meeting of the stockholders
following the IPO; the term of office of the second class (Class II) to expire at the second annual
meeting of stockholders held following the IPO; the term of office of the third class
(Class III) to expire at the third annual meeting of stockholders; and thereafter for each such
term to expire at each third succeeding annual meeting of stockholders after such election.
Subject to the rights of the holders of any series of Preferred Stock then outstanding, a vacancy
resulting from the removal of a director by the stockholders as provided in Article SIXTH,
Section C below may be filled at a special meeting of the stockholders held for that purpose. All
directors shall hold office until the expiration of the term for which elected, and until their
respective successors are elected, except in the case of the death, resignation, or removal of any
director.
B. Subject to the rights of the holders of any series of Preferred Stock then outstanding, newly
created directorships resulting from any increase in the authorized number of directors or any
vacancies in the Board of Directors resulting from death, resignation or other cause (other than
removal from office by a vote of the stockholders) may be filled only by a majority vote of the
directors then in office, though less than a quorum, and directors so chosen shall hold office for
a term expiring at the next annual meeting of stockholders at which the term of office of the class
to which they have been elected expires, and until their respective successors are elected, except
in the case of the death, resignation, or removal of any director. No decrease in the
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number of directors constituting the Board of Directors shall shorten the term of any incumbent
director.
C. Subject to the rights of the holders of any series of Preferred Stock then outstanding, any
directors, or the entire Board of Directors, may be removed from office at any time, with or
without cause, but only by the affirmative vote of the holders of at least a majority of the voting
power of all of the then outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single class. Vacancies in the Board
of Directors resulting from such removal may be filled by a majority of the directors then in
office, though less than a quorum, or by the stockholders as provided in Article SIXTH, Section A
above. Directors so chosen shall hold office for a term expiring at the next annual meeting of
stockholders at which the term of office of the class to which they have been elected expires, and
until their respective successors are elected, except in the case of the death, resignation, or
removal of any director.
SEVENTH: The Board of Directors is expressly empowered to adopt, amend or repeal Bylaws of
the Corporation. Any adoption, amendment or repeal of Bylaws of the Corporation by the Board of
Directors shall require the approval of a majority of the total number of authorized directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
resolution providing for adoption, amendment or repeal is presented to the Board). The
stockholders shall also have power to adopt, amend or repeal the Bylaws of the Corporation. Any
adoption, amendment or repeal of Bylaws of the Corporation by the stockholders shall require, in
addition to any vote of the holders of any class or series of stock of the Corporation required by
law or by this Certificate of Incorporation, 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 capital stock of the Corporation entitled to vote generally in the election of
directors, voting together as a single class.
EIGHTH: A director of the Corporation shall not be personally liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the directors duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involved intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or
(iv) for any transaction from which the director derived an improper personal benefit.
If the Delaware General Corporation Law is hereafter amended to authorize
the further elimination or limitation of the liability of a director, then
the liability of a director of the Corporation shall be eliminated or
limited to the fullest extent permitted by the Delaware General Corporation
Law, as so amended.
Any repeal or modification of the foregoing provisions of this Article
EIGHTH 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.
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NINTH: The Corporation reserves the right to amend or repeal any provision contained in
this Certificate of Incorporation in the manner prescribed by the laws of the State of Delaware and
all rights conferred upon stockholders are granted subject to this reservation; provided,
however, that, notwithstanding any other provision 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
vote of the holders of any class or series of the stock of this Corporation required by law or by
this Certificate of Incorporation, the affirmative vote of the holders of at least 66-2/3% of the
voting power of all of the then outstanding shares of the capital stock of the Corporation entitled
to vote generally in the election of directors, voting together as a single class, shall be
required to amend or repeal this Article NINTH, Article FIFTH, Article SIXTH, Article SEVENTH or
Article EIGHTH.
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