**EXHIBIT 3.1**

 

FOURTH AMENDED AND RESTATED 

 

CERTIFICATE OF INCORPORATION 

 

OF 

 

VYYO INC. 

 

Vyyo Inc. (the “Corporation”), a corporation organized and existing under the General Corporation Law of the State of Delaware, does hereby certify as follows: 

 

(a) The name of the Corporation is Vyyo Inc. The original Certificate of Incorporation of the Corporation was filed with theoffice of the Secretary of State of the State of Delaware on March 21, 1996 under the name PhaseCom, Inc. 

 

(b) This Fourth Amended and Restated Certificate of Incorporation (the “Fourth Amended and Restated Certificate of Incorporation”) was dulyadopted by the Board of Directors and by the stockholders of the Corporation in accordance with Sections 228, 242 and 245 of the General Corporation Law of the State of Delaware. 

 

(c) The text of the Third Certificate of Incorporation of the Corporation is amended and restated in its entirety asfollows: 

 

FIRST: The name of the Corporation is VyyoInc. (hereinafter the “Corporation”). 

 

SECOND:The address of the registered office of the Corporation in the State of Delaware and County of New Castle is 1313 N. Market Street, Suite 5100, Wilmington, DE 19801. The name of its registered agent at that address is PHS CORPORATE SERVICES, INC..

 

THIRD: The purpose of the Corporation is to engage inany lawful act or activity for which a corporation may be organized under the General Corporation Law of the State of Delaware as set forth in Title 8 of the Delaware Code (the “DGCL”). 

 

FOURTH: The total number of shares of stock which the Corporationshall have authority to issue is 50,000,000 shares of common stock, each having a par value of $0.0001, and 5,000,000 shares of preferred stock, each having a par value of $0.001. 

 

The Board of Directors is expressly authorized to provide for the issuance of all or any shares of the preferred stock inone or more classes or series, and to fix for each such class or series such voting powers, full or limited, or no voting powers, and such distinctive designations, preferences and relative, participating, optional or other special rights and suchqualifications, limitations or restrictions thereof, as shall be stated and expressed in the resolution or resolutions adopted by the Board of Directors providing for the issuance of such class or series and as may be permitted by the DGCL,including, without limitation, the authority to provide that any such class or series may be (i) subject to redemption at such time or times and at such price or prices; (ii) entitled to receive dividends (which may be cumulative or non-cumulative)at such rates, on such conditions, and at such times, and payable in preference to, or in such relation to, the dividends payable on any other class or classes or any other series; (iii) entitled to such rights upon the dissolution of, or upon anydistribution of the assets of, the Corporation; or (iv) convertible into, or exchangeable for, shares of any other class or classes of stock, or of any other series of the same or any other class or classes of stock, of the Corporation at such priceor prices or at such rates of exchange and with such adjustments; all as may be stated in such resolution or resolutions. 

 

Effective at 8:00 a.m., Eastern Daylight Savings Time, on August 1, 2002 (the “Effective Time”), each one (1) share of Common Stock of theCorporation issued and outstanding, by virtue of this Fourth Amended and Restated Certificate of Incorporation, shall be combined into one-third (1/3) of one (1) share of fully paid and nonassessable Common Stock of the Corporation, subject to thetreatment of fractional shares interests described below. Following the Effective Time of this amendment, the Corporation will evidence the reverse stock split effected hereby pursuant to procedures adopted by the Corporation. 

 

No fractional shares of Common Stock of the Corporation shall be issued. Nostockholder of 

the Corporation shall transfer any fractional shares of Common Stock of the Corporation. The Corporation shall not recognize on its stock record books anypurported transfer of any fractional share of Common Stock of the Corporation. 

 

A holder of Common Stock at the Effective Time who would otherwise be entitled to a fraction of a share shall, in lieu thereof, be entitled to receive a cash payment in an amount equal to the fraction to which thestockholder would otherwise be entitled multiplied by the average of the closing prices of the Common Stock, as reported in The Wall Street Journal, on the thirty (30) trading days preceding the date that is five (5) trading days before theEffective Time (as adjusted for the reverse stock split effected hereby) (or if such prices are not available, the average of the last bid and asked prices of the Common Stock on such days (as adjusted for the reverse stock split effected herby) orother price determined by the Board of Directors). 

 

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 itsdirectors and stockholders: 

 

(a) The business and affairs ofthe Corporation shall be managed by or under the direction of the Board of Directors. 

 

(b) The Board of Directors shall consist of not less than one nor more than ten members, the exact number of which shall be fixed by the Board of Directors. Election of directors need not be by written ballot unlessthe Bylaws so provide. 

 

(c) The directors shall be divided intothree 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. The initial division of the Board ofDirectors into classes shall be made by the decision of the affirmative vote of a majority of the entire Board of Directors. The term of the initial Class I directors shall terminate on the date of the 2001 annual meeting; the term of the initialClass II directors shall terminate on the date of the 2002 annual meeting; and the term of the initial Class III directors shall terminate on the date of the 2003 annual meeting. At each succeeding annual meeting of stockholders beginning in 2001,successors to the class of directors whose term expires at that annual meeting shall be elected for a three-year term. If the number of directors is changed, any increase or decrease shall be apportioned among the classes so as to maintain thenumber of directors in each class as nearly equal as possible, and any additional director of any class elected to fill a vacancy resulting from an increase in such class shall hold office for a term that shall coincide with the remaining term ofthat class, but in no case will a decrease in the number of directors shorten the term of any incumbent director. 

 

(d) A director shall hold office until the annual meeting for the year in which his or her term expires and until his or her successor shall be electedand shall qualify, subject, however, to prior death, resignation, retirement, disqualification or removal from office. 

 

(e) Subject to the terms of any one or more classes or series of preferred stock, any vacancy on the Board of Directors that results from an increase inthe number of directors may be filled by a majority of the Board of Directors then in office, provided that a quorum is present, and any other vacancy occurring on the Board of Directors may be filled by a majority of the Board of Directors then inoffice, even if less than a quorum, or by a sole remaining director. Any director of any class elected to fill a vacancy resulting from an increase in the number of directors of such class shall hold office for a term that shall coincide with theremaining term of that class. Any director elected to fill a vacancy not resulting from an increase in the number of directors shall have the same remaining term as that of his predecessor. Subject to the rights, if any, of the holders of shares ofpreferred stock then outstanding, any or all of the directors of the Corporation may be removed from office at any time, but only for cause and only by the affirmative vote of the holders of at least sixty-six and two-thirds percent (66 2/3%) of the voting power of the Corporation’s then outstanding capital stock entitled to vote generally in theelection of directors. Notwithstanding the foregoing, whenever the holders of any one or more classes or series of Preferred Stock issued by the Corporation shall have the right, voting separately by class or series, to elect directors at an annualor special meeting of stockholders, the election, term of office, filling of vacancies and other features of such directorships shall be governed by the terms of this Fourth Amended and Restated Certificate of Incorporation applicable thereto, andsuch directors so elected shall not be divided into classes pursuant to this Article FIFTH unless expressly provided by such terms. 

 

(f) In addition to the powers and authority hereinbefore or by statute expressly conferred upon them, the directors are hereby empowered to exercise allsuch powers and do all such acts and things as may be 

exercised or done by the Corporation, subject, nevertheless, to the provisions of the DGCL, this Fourth Amended and Restated Certificate of Incorporation,and any Bylaws adopted by the stockholders; provided, however, that no Bylaws hereafter adopted by the stockholders shall invalidate any prior act of the directors which would have been valid if such Bylaws had not been adopted.

 

(g) No director shall be personally liable to the Corporationor any of its stockholders for monetary damages for breach of fiduciary duty as a director, except 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 goodfaith or which involve intentional misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the DGCL or (iv) for any transaction from which the director derived an improper personal benefit. No director shall be personally liableto the Corporation or any of its stockholders for monetary damages for breach of fiduciary duty as a director. Any repeal or modification of this Article FIFTH, Section (g) by the stockholders of the Corporation shall not adversely affect any rightor protection of a director of the Corporation existing at the time of such repeal or modification with respect to acts or omissions occurring prior to such repeal or modification. 

 

SIXTH: The Corporation shall indemnify its directors and officers to the fullest extent authorized or permitted bylaw, as now or hereafter in effect, and such right to indemnification shall continue as to a person who has ceased to be a director or officer of the Corporation and shall inure to the benefit of his or her heirs, executors and personal and legalrepresentatives; provided, however, that, except for proceedings to enforce rights to indemnification, the Corporation shall not be obligated to indemnify any director or officer (or his or her heirs, executors or personal or legalrepresentatives) in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors. The right to indemnification conferred by this ArticleSIXTH shall include the right to be paid by the Corporation the expenses incurred in defending or otherwise participating in any proceeding in advance of its final disposition. 

 

The Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnificationand to the advancement of expenses to employees and agents of the Corporation similar to those conferred in this Article SIXTH to directors and officers of the Corporation. 

 

The rights to indemnification and to the advancement of expenses conferred in this Article SIXTH shall not be exclusive ofany other right which any person may have or hereafter acquire under this Fourth Amended and Restated Certificate of Incorporation, the Bylaws of the Corporation, any statute, agreement, vote of stockholders or disinterested directors or otherwise.

 

Any repeal or modification of this Article SIXTH by thestockholders of the Corporation shall not adversely affect any rights to indemnification and to the advancement of expenses of a director or officer of the Corporation existing at the time of such repeal or modification with respect to any acts oromissions occurring prior to such repeal or modification. 

 

SEVENTH: Meetings of stockholders may be held within or without the State of Delaware, as the Bylaws may provide. The books of the Corporation may be kept (subject to any provision contained in the DGCL) outside the State of Delawareat such place or places as may be designated from time to time by the Board of Directors or in the Bylaws of the Corporation. 

 

EIGHTH: In furtherance and not in limitation of the powers conferred upon it by the laws of the State of Delaware, the Board of Directors shallhave the power to make, alter, amend, change, add to or repeal the Corporation’s Bylaws. The affirmative vote of at least a majority of the entire Board of Directors shall be required to adopt, amend, alter or repeal the Corporation’sBylaws. The Corporation’s Bylaws also may be altered, amended, changed, added to or repealed by the affirmative vote of the holders of at least sixty-six and two-thirds percent (66 2/3%) of the voting power of the shares entitled to vote at an election of directors. 

 

NINTH: Any action required or permitted to be taken by the stockholders of the Corporation must be effected at a dulycalled annual or special meeting of stockholders of the Corporation, and the ability of the stockholders to consent in writing to the taking of any action is hereby specifically denied. 

 

TENTH: Unless otherwise required by law, special meetings of stockholders, for any purpose or purposes, may be calledby either (i) the Chairman, if there be one, (ii) the Board of Directors or (iii) a committee of the Board of Directors that has been duly designated by the Board of Directors and whose powers and authority include the power to call such meetings.The ability of the stockholders to call a special meeting of stockholders is hereby specifically denied. 

ELEVENTH: The Corporation reserves the right to amend, alter, change or repeal any provisioncontained in this Fourth Amended and Restated Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation. 

 

IN WITNESS WHEREOF, the Corporation has caused this Amended and RestatedCertificate of Incorporation to be executed on its behalf this 14th day of March, 2005. 

 

VYYO INC.

By:
 
/s/ Davidi Gilo

Name:
 Davidi Gilo
Title:
 Chairman and Chief Executive Officer