Exhibit 3.1
CERTIFICATE OF AMENDMENT
TO THE
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF INTELECT COMMUNICATIONS, INC.
Intelect Communications, Inc., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), does hereby certify as follows:
FIRST: That the Board of Directors of the Corporation at a duly called
meeting, duly adopted resolutions setting forth a proposed amendment to the
Corporation's Amended and Restated Certificate of Incorporation ("Certificate of
Incorporation"), declaring said amendment to be advisable and proposing that
said amendment be considered at a special meeting by the Stockholders of the
Corporation. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that the Board of Directors declares that it is advisable to
amend Article I of the Certificate of Incorporation of the Corporation as
follows:
The name of the Corporation is TeraForce Technology Corporation.
SECOND: That thereafter, the Stockholders of the Corporation, at a duly
called special meeting of the Stockholders, voted in favor of the amendment.
THIRD: That said amendment was fully adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, Intelect Communications, Inc. has caused this
Certificate to be signed by its duly authorized officer, this 30th day of
January, 2001.
INTELECT COMMUNICATIONS, INC.
By:/s/ HERMAN M. FRIETSCH
Herman M. Frietsch, President
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
Intelect Communications, Inc., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware, DOES
HEREBY CERTIFY:
FIRST: That the Amended and Restated Certificate of Incorporation, as
amended, of said Corporation has been amended by amending Section 4.1 of Article
IV to read as follows:
SECTION 4.1. TOTAL NUMBER OF SHARES OF CAPITAL STOCK. The total number of shares
of capital stock of all classes which the Company shall have authority to issue
is 250,000,000 shares, consisting of 200,000,000 shares of Common Stock, par
value $0.01 per share (the "Common Stock"), and 50,000,000 shares of Preferred
Stock, par value $0.01 per share (the "Preferred Stock").
SECOND, the aforesaid amendment was duly proposed by the Board of Directors
of the Corporation and was duly adopted by the stockholders of the Corporation
entitled to vote thereon in accordance with the applicable provisions of section
242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said Intelect Communications, Inc. has caused this
Certificate of Amendment to be signed by Herman M. Frietsch, its Chairman and
Chief Executive Officer and attested by Robert P. Capps, its Secretary, this
16th day of June, 2000.
INTELECT COMMUNICATIONS, INC.
By: /s/ HERMAN M. FRIETSCH
----------------------
Herman M. Frietsch
Chairman and Chief Executive Officer
ATTEST:
By: /s/ ROBERT P. CAPPS
-------------------
Robert P. Capps
Secretary
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
Intelect Communications, Inc., a corporation organized and existing under
and by virtue of the General Corporation Law of the States of Delaware, DOES
HEREBY CERTIFY:
FIRST: That the Amended and Restated Certificate of Incorporation of said
Corporation has been amended by inserting Section 4.1 of Article IV to read as
follows:
Section 4.1. TOTAL NUMBER OF SHARES OF CAPITAL STOCK. The total number of
shares of capital stock of all classes which the Company shall have authority to
issue is 150,000,000 shares, consisting of 100,000,000 shares of Common Stock,
par value $0.01 per share (the "Common Stock"), and 50,000,000 shares of
Preferred Stock, par value $0.01 per share (the "Preferred Stock").
SECOND, the aforesaid amendment was duly proposed by the Board of Directors
of the Corporation and was duly adopted by the stockholders of the Corporation
entitled to vote thereon in accordance with the applicable provisions of section
242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said Intelect Communications, Inc. has caused this
certificate of be signed by Herman M. Frietsch, it Chairman and Chief Executive
Officer and attested by Edwin J. Ducayet, its Assistant Secretary, this 3rd day
of March, 1999.
INTELECT COMMUNICATIONS, INC.
By: /s/ HERMAN M. FRIETSCH
----------------------
Herman M. Frietsch
Chairman and Chief Executive Officer
ATTEST:
By: /s/ EDWIN J. DUCAYET, JR.
-------------------------
Edwin J. Ducayet, Jr.
Assistant Secretary
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
INTELECT COMMUNICATIONS, INC.
This document constitutes an amendment and restatement of the original
Certificate of Incorporation of Intelect Communications, Inc. (the
"Corporation"), which was filed with the Secretary of State of Delaware on May
23, 1995. The name under which the original Certificate of Incorporation was
filed was Intelect Systems Corp. This Amended and Restated Certificate of
Incorporation was duly adopted in accordance with the provisions of Section
245(c) and 242 of the Delaware General Corporation Law.
ARTICLE I
Name
The name of the Corporation is Intelect Communications, Inc.
ARTICLE II
Address of Registered Office:
Name of Registered Agent
The address of the registered office of the Corporation in the State of
Delaware is corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, county of New Castle, 19801. The name of its registered agent at
that address in the State of Delaware is The Corporation Trust Company.
ARTICLE III
Purpose and Powers
The purpose of the Corporation is to engage in any lawful act or activity
for which a Corporation may now or hereafter be organized under the Delaware
General Corporation Law ("Delaware Law"). It shall have all powers that may now
or hereafter be lawful for a corporation under the Delaware Law.
ARTICLE IV
Capital Stock
Section 4.1. TOTAL NUMBER OF SHARES OF STOCK. The total number of shares of
capital stock of all classes that the Corporation shall have authority to issue
is 100,000,000 (One Hundred Million) shares. The authorized capital stock is
divided into 50,000,000 (Fifty Million) shares of preferred stock, of the par
value of $.01 each (the "Preferred Stock"), and 50,000,000 (Fifty Million)
shares of common stock, or the par value of $.01 each (the "Common Stock').
Section 4.2. PREFERRED STOCK. (a) The shares of Preferred Stock of the
Corporation may be issued from time to time in one or more classes or series
thereof, the shares of each class or series thereof to have such voting powers,
full or limited, or no voting powers, and such designations, preferences and
relative, participating, optional or other special rights, and qualifications,
limitations or restrictions thereof, as are stated and expressed herein or in
the resolution or resolutions providing for the issue of such class or series,
adopted by the board of directors of the Corporation (the "Board of Directors")
as hereinafter provided.
(b) Authority is hereby expressly granted to the Board of Directors,
subject to the provisions of this Article IV and to the limitations prescribed
by the Delaware Law, to authorize the issue of one or more classes, or series
thereof, of Preferred Stock and with respect to each such class or series to fix
by resolution or resolutions providing for the issue of such class or series the
voting powers, full or limited, if any, of the shares os such class or series
and the designations, preferences, and relative, participating, optional or
other special rights, and qualifications, limitations or restrictions thereof.
The authority of the Board of Directors with respect to each class or series
thereof shall include, but not be limited to the determination or fixing of the
following:
(i) the maximum number of shares to constitute such class or series,
which may subsequently be increased or decreased by resolutions of the
Board of Directors unless otherwise provided in the resolution providing
for the issue of such class or series, the distinctive designation thereof
and the sated value thereof if different than the par value thereof;
(ii) the dividend rate of such class or series, the conditions and
dates upon which such dividends shall be payable, the relation which such
dividends shall bear to the dividends payable on any other class or classes
of stock or any other series of any class of stock of the Corporation, and
whether such dividends shall be cumulative or noncumulative;
(iii) whether the shares of such class or series shall be subject to
redemption, in whole or in part, and if made subject to such redemption the
times, prices and other terms and conditions of such redemption, including
whether or not such redemption may occur at the option of the Corporation
or at the option of the holder or holders thereof or upon the happening of
a special event;
(iv) the terms and amount of any sinking fund established for the
purchase or redemption of the shares of such class or series;
(v) whether or not the shares of such class or series shall be
convertible into or exchangeable for shares of any other class or classes
of any stock or any other series of any class of stock of the Corporation,
and, if provision is made for conversion or exchange, the times, prices,
rates, adjustments, and other terms and conditions of such conversion or
exchange;
(vi) the extent, if any, to which the holders of shares of such class
or series shall be
entitled to vote with respect to the election of directors or otherwise;
(vii) the restrictions, if any, on the issue or reissue of any
additional Preferred Stock;
(viii) the rights of the holders of the shares of such class or series
upon the dissolution of, or upon the subsequent distribution or assets of,
the Corporation; and
(ix) the manner in which any facts ascertainable outside the resolution
or resolutions providing for the issue of such class or series shall
operate upon the voting powers, designations, preferences, rights and
qualifications, limitations or restrictions of such class or series.
Section 4.3. COMMON STOCK. The shares of Common Stock of the Corporation
shall be of one and the same class. The holders of Common Stock shall have one
vote per share of Common Stock on all matters on which holders of Common Stock
are entitled to vote.
ARTICLE V
Board of Directors
Section 5.1 POWER OF THE BOARD OF DIRECTORS. The business and affairs of
the Corporation shall be managed by or under the direction of its Board of
Directors which shall consist of not less than three members. In furtherance,
and not in limitation, of the powers conferred by the laws of the State of
Delaware, the Board of Directors is expressly authorized to:
(a) adopt, amend, alter, change, or repeal the By-Laws of the Corporation;
provided, however, that no By-Laws hereafter adopted shall invalidate any prior
act of the directors that would have been valid if such new By-Laws had not been
adopted;
(b) determine the rights, powers, duties, rules and procedures that affect
the power of the Board of Directors to manage and direct the business and
affairs of the Corporation, including the power to designate and empower
committees of the Board of Directors, to elect, appoint and empower the officers
and other agents of the Corporation, and to determine the time and place of the
notice requirements for Board meetings, as well as quorum and voting
requirements for and the manner of taking Board action; and
(c) exercise all such powers and do all such acts as may be exercised or
done by the Corporation, subject to the provisions of the Delaware Law, this
Certificate of Incorporation and the By-Laws of the Corporation.
Section 5.2. NUMBER OF DIRECTORS. The number of directors constituting the
Board of Directors shall be determined from time to time exclusively by a vote
of a majority of the Board of Directors in office at the time of such vote.
Section 5.3. CLASSIFIED BOARD OF DIRECTORS. The directors shall be divided
into three classes, with each class to be as nearly equal in number as
reasonable possible, and with the
initial term of office of the first class of directors to expire at the 1998
annual meeting of stockholders, the initial term of office of the second class
of directors to expire at the 1999 annual meeting of stockholders and the
initial term of office of the third class of directors to expire at the 2000
annual meeting of stockholders, in each case upon the election and qualification
of their successors. Commencing with the 1998 annual meeting of stockholders,
directors elected to succeed those directors whose terms have thereupon expired
shall be elected to a terms of office to expire at the third succeeding annual
meeting of stockholders after their election, and upon the election and
qualification of their successors. If the number of directors is changed, any
increase or decrease shall be apportioned among the classes so as to maintain or
attain the number of directors in each class as nearly equal as reasonable
possible, but in no case will a decrease in the number of directors shorten the
term of any incumbent director.
Section 5.4 VACANCIES. Any vacancies in the Board of Directors for any
reason and any newly created directorship resulting by reason of any increase in
the number of directors may be filled only by the Board of Directors, acting by
a majority of the remaining directors then in office, although less than a
quorum, or by a sole remaining director, and any directors so appointed shall
hold office until the next election of the class for which such directors have
been chosen and until their successors are elected and qualified.
Section 5.5 REMOVAL OF DIRECTORS. Except as may be provided in a resolution
or resolutions providing for any class or series of Preferred Stock pursuant to
Article IV hereof with respect to any directors elected by the holders of such
class or series, any director may be removed from office at any time, but only
for cause, and only by the affirmative vote of the holders of at least ninety
percent (90%) of the voting power of all of the shares of capital stock of the
Corporation then entitled to vote generally in the election of directors, voting
together as a single class.
ARTICLE VI
Stockholder Actions and Meeting of Stockholders
Except as may be provided in a resolution or resolutions providing for any
class or series of Preferred Stock pursuant to Article IV hereof, 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 such holders and may not
be effected by any written consent in lieu of a meeting by such holders. Special
meetings of stockholders of the Corporation may be called only by the Board of
Directors pursuant to a resolution adopted by a majority of the members of the
Board of Directors then in office. Election of directors need not be by written
ballot unless otherwise provided in the By- Laws.
ARTICLE VII
Limitation on Liability of Directors
No person shall personally liable to the Corporation or its stockholders
for monetary damages for breach of a fiduciary duty as a director, including ,
without limitation, directors serving on committees of the Board of Directors;
provided however, that the foregoing shall not
eliminate or limit the liability of a director (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware Law, or (iv)
for any transaction from which the director derived an improper personal
benefit. If the Delaware Law is amended hereafter to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director of the Corporation shall be eliminated or limited to the
fullest extent permitted by the Delaware Law as so amended. Any amendment,
repeal or modification of this Article VII shall not adversely affect any right
or protection of a director of the Corporation existing hereunder with respect
to any act or omission occurring prior to such amendment, repeal or
modification.
ARTICLE VIII
Amendment of By-Laws
The power to adopt, amend, alter, change, or repeal any By-Laws of the
Corporation shall be vested exclusively with the Board of Directors.
ARTICLE IX
Amendment of Certificate of Incorporation
The Corporation hereby reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation in any manner
permitted by Delaware law and all rights and powers conferred upon stockholders,
directors, and officers herein are granted subject to this reservation. Except
as may be provided in a resolution or resolutions providing for any class or
series of Preferred Stock pursuant to Article IV hereof and which relate to such
class or series of Preferred Stock, any such amendment, alteration, change or
repeal shall require the affirmative vote of both (a) a majority of the members
of the Board of Directors then in office and (b) a majority of the voting power
of all of the shares of capital stock of the Corporation entitled to vote
generally in the election of directors voting together as a single class; except
that any proposal to amend, alter, change or repeal the provisions of Article V,
Article VI, Article VII, Article VIII, and this Article IX shall require the
affirmative vote of ninety percent (90%) of the voting power of all of the
shares of capital stock entitled to vote generally in the election of directors,
voting together as a single class.
ARTICLE X
Severability
In the event that any of the provisions of this Certificate of
Incorporation (including any provision within a single Section, paragraph or
sentence) are held by a court of competent jurisdiction to be unenforceable for
any reason, the remaining provisions of this Certificate of Incorporation shall
be and remain enforceable to the fullest extent permitted by law.
THE UNDERSIGNED, being the Chairman and Chief Executive Officer of the
Corporation, for the purpose of amending and restating the Certificate of
Incorporation of the Corporation pursuant to Delaware Law does make this
Certificate, hereby declaring and certifying that this is the act and deed of
the Corporation and that the facts herein stated are true, and accordingly have
hereunto set my hand as of 28th day of October 1997.
/s/ HERMAN M. FRIETSCH
----------------------
HERMAN M. FRIETSCH
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
ATTEST:
/s/ EDWIN J. DUCAYET, JR.
-------------------------
EDWIN J. DUCAYET, JR.
ASSISTANT SECRETARY