**Exhibit 3.1**

 

**SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION**

 

**OF**

 

**TUT SYSTEMS, INC.**

 

 

Tut Systems,Inc. a corporation organized and existing under the laws of the State ofDelaware (the “Corporation”), hereby certifies as follows:

 

A.            Thatthis corporation was originally incorporated on July 6, 1998 under the name TutSystems, Inc., pursuant to the General Corporation Law of Delaware.  On August 10, 1998, the Corporation’s RestatedCertificate of Incorporation was filed with the Secretary of State.

 

B.            Pursuantto Sections 228, 242 and 345 of the General Corporation Law of Delaware, thisSecond Restated Certificate of Incorporation restates and integrates andfurther amends the provisions of the Restated Certificate of Incorporation ofthis corporation.

 

C.            Thetext of the Restated Certificate of Incorporation as heretofore amended orsupplemented is hereby amended and restated in its satisfy to read as follows:

 

**ARTICLE I**

 

The name ofthis Corporation is Tut Systems, Inc. (the “Corporation”).

 

**ARTICLE II**

 

The address ofthe Corporation’s registered office in the State of Delaware in 1209 OrangeStreet, Wilmington, County of New Caste. The name of its registered agent at such office is The Corporation TrustCompany.

 

 
| * * | * * | *STATE OF DELAWARE*         |
|----------|----------|-----------------------------|
| * * | * * | *SECRETARY OF STATE*        |
|     | * * | *DIVISION OF CORPORATIONS*  |
|     | * * | *FILED 03:00 PM 02/03/1999* |
| * * | * * | *991044177 – 2917245*  |

 

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**ARTICLE III**

 

The nature ofthe business or purposes to be conducted or promoted by the Corporation is inengage in any lawful act or activity for which corporations may be organizedunder the General Corporation Law of Delaware.

 

**ARTICLE IV**

 

ThisCorporation is authorized to issue two classes of shares of stock which shallbe designated, respectively, “Common Stock” and “Preferred Stock.”  The total number of shares that thisCorporation is authorized to issue is one hundred five million (105,000,000)shares.  The number of shares of CommonStock authorized is one hundred million (100,000,000) shares, $0.001 parvalue.  The number of shares of PreferredStock authorized is five million (5,000,000) shares, $0.001 par value.

 

The shares ofPreferred Stock authorized by this Certificate of Incorporation may be issuedfrom time to time in one or more series. For any wholly unissued series of Preferred Stock, the Board ofDirectors is hereby authorized to fix and alter the rights, preferences,privileges and restrictions thereof, including but not limited to the dividendrights, dividend rates, conversion rights, voting rights, rights and terms ofredemption (including sinking fund provisions), redemption prices, andliquidation preferences, the number of shares constituting any such series andthe designation thereof, or any of them. Without limitation of the generality of the foregoing,  the Board of Directors shall have the powerto fix the number of authorized but undesignated shares comprising any wholly unissuedseries of Preferred Stock, and to fix and alter the rights, preferences,privileges and restrictions of any such unissued series of Preferred Stock,(including, but not limited to the dividend rights, dividend rates, conversionrights, voting rights, rights and terms of redemption and sinking fundprovisions, redemption prices, and liquidation preferences of such series) insuch member as the Board of Directors determines, which rights, preferences,privileges and restrictions may, in the role discretion of the Board ofDirectors be superior to, on a parity with, or junior to the rights, preferences,privileges and restrictions of any other series of Preferred Stock.

 

The Board ofDirectors is hereby authorized to increase or decrease the number of shares ofany series of Preferred Stock when the number of shares of such series wasoriginally fixed by designation of the Board of Directors.  The Board of Directors is authorized to decreasethe number of shares of any series of Preferred Stock when the number of shareswas not originally fixed by designation of the Board of Directors.  Any such increase or decrease shall besubject to the limitations and restrictions stated in the resolution of theBoard of Directors originally fixing the number of shares of such series, or inthe Certificate of Incorporation, as the case may be; provided, that the numberof shares of any series shall not be decreased below the number of shares ofsuch series then outstanding.  If thenumber of shares of any series is so decreased, then the shares constitutingsuch decrease shall resume the status of authorized but undesignated shares ofPreferred Stock.

 

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**ARTICLE V**

 

The Corporationis to have perpetual existence.

 

**ARTICLE VI**

 

Section 1.               Themanagement of the business and the conduct of the affairs of the Corporationshall be vested in the Board of Directors. The number of directors which shall constitute the whole Board ofDirectors shall be fixed in the manner designated in the Bylaws of theCorporation.

 

Section 2.               Infurtherance and not in limitation of the powers conferred by status, the Boardof Directors is expressly authorized to make, alter, amend or repeal the Bylawsof the Corporation.

 

Section 3.               Electionsof directors need not be by written ballot unless a stockholder demandselection by written ballot at the meeting and before voting begins or unlessthe Bylaws of the Corporation shall so provide.

 

**ARTICLE VII**

 

Section 1.               Tothe fullest extent permitted by the Delaware General Corporation Law as thesame exists or as may hereafter be amended, a director of the Corporation shallnot be personally liable to the Corporation or its stockholders for monetarydamages for breach of fiduciary duty as a director.

 

Section 2.               TheCorporation may indemnify to the fullest extent permitted by law any personmade or threatened to be made a party to an action or proceeding, whether criminal,civil, administrative or investigative, by reason of the fact that be, his testatoror interstate is or was a director, officer, employee or agent of theCorporation or any predecessor of the Corporation or serves or served at anyother enterprise as a director, officer, employee or agent at the request ofthe Corporation or any predecessor to the Corporation.

 

Section 3.               Neitherany amendment nor repeal of this Article VII, nor the adoption of any provisionof this Corporation’s Certificate of Incorporation inconsistent with thisArticle VII, shall eliminate or reduce the effect of this Article VII, inrespect of any matter occurring, or any action or proceeding accruing orarising or that, but for this Article VII, would accrue or arise, prior to suchamendment, repeal or adoption of an inconsistent provision.

 

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**ARTICLE VIII**

 

Meetings ofstockholders may be held within or without the State of Delaware, as the Bylawsmay provide.  The books of the Corporationmay be kept (subject to any provision contained in the statutes) outside of theState of Delaware at such place or places as may be designated from time totime by the Board of Directors or in the Bylaws of the Corporation.

 

**ARTICLE IX**

 

Vacancies createdby newly created directorships, created is accordance with the Bylaws of thisCorporation, may be filled by the vote of a majority, although less than aquorum, of the directors them in office, or by a sole remaining director.

 

**ARTICLE X**

 

Section 1.               Stockholdersof the Corporation may not take any action by written consent in lieu of ameeting and any action contemplated by stockholders after such time must betaken at a duly called annual or special meeting of stockholders.

 

Section 2.               Thenumber of directors which constitute the whole Board of Directors of theCorporation shall be fixed exclusively by one or more resolutions adopted fromtime to time by the Board of Directors. Upon the closing of the first sale of Common Stock of the Corporation pursuantto a registration statement declared effective by the Securities and ExchangeCommission Pursuant to the Securities Act of 1933, as amended, the Board ofDirectors shall be divided into three classes designated as Class I, Class II,and Class III, respectively.  Directorsshall be assigned to each class in accordance with a resolution or resolutionsadopted by the Board of Directors.  Atthe first annual meeting of stockholders following the date thereof, the termof office of the Class I directors shall expire and Class I directors shall beelected for a full term of three years. At the second annual meeting of stockholders following the date thereof,the term of office of the Class II directors shall expire and Class IIdirectors shall be elected for a full term of three years.  At the third annual meeting of stockholdersfollowing the date thereof, the term of office of the Class III directors shallexpire and Class III directors shall be elected for a full term of threeyears.  At each succeeding annual meetingof stockholders, directors shall be elected for a full term of three years tosucceed the directors of the class whole terms expire at such annual meeting.

 

Section 3.               Advancenotice of new business and stockholders nominations for the election ofdirectors shall be given in the manner and to the extent provided in the Bylawsof the Corporation.

 

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**ARTICLE XI**

 

TheCorporation reserves the right to amend, alter, change or repeal any provisioncontained in this Certificate of Incorporation, in the manner now or hereafterprescribed by statute, and all rights conferred upon stockholders herein are grantedsubject to this reservation.

 

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IN WITNESSWHEREOF, the corporation has caused this Second Amended and RestatedCertificate of Incorporation to be signed by Salvatore D’Auris, its president,and requested by Matthew Taylor, its Secretary, this 3 day of February, 1999.

 

 
|   | **TUT****SYSTEMS, INC.** |
|--------|--------------------------|
|   |                     |   |
|   |                     |   |
|   | By:                      | /s/ Salvatore  D’Auris |   |
|   |                     |     Salvatore  D’Auris, President |

 

 

**ATTEST:**

 
|                       |
|----------------------------|
| /s/ Matthew  Taylor        |   |
| Matthew  Taylor, Secretary |

 

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