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EXHIBIT 3.3
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
MAXIM INTEGRATED PRODUCTS, INC.
John F. Gifford and Michael J. Byrd each hereby certifies that:
1. They are the President and Assistant Secretary, respectively, of Maxim
Integrated Products, Inc. (the "Corporation"), a Delaware corporation, the
original Restated Certificate of Incorporation of which was filed with the
Secretary of State of the State of Delaware on September 21, 1995.
2. At a meeting of the Board of Directors of the Corporation, resolutions
were duly adopted setting forth a proposed amendment of the Restated
Certificate of Incorporation of the Corporation, declaring that amendment to be
advisable and directing that the amendment proposed be considered at the next
annual meeting of the stockholders. The resolution setting forth the proposed
amendment is as follows:
RESOLVED that the second and third sentences of Section A of Article
FOURTH of the Restated Certificate of Incorporation of the Corporation are
hereby amended to read in full as follows:
"The total number of shares of all classes of stock which
the Corporation has the authority to issue is 242,000,000
shares. The number of shares of Common Stock which the
Corporation is authorized to issue is 240,000,000, and the
number of shares of Preferred Stock which the Corporation
is authorized to issue is 2,000,000."
3. Thereafter, the annual meeting of stockholders of the Corporation was
called and held upon notice in accordance with Section 222 of the General
Corporation Law of the State of Delaware. At that annual meeting a vote of the
stockholders entitled to vote thereon was taken for and against the proposed
amendment. A majority of the outstanding Common Stock, being the only class of
stock outstanding, entitled to vote thereon was voted in favor of the proposed
amendment.
4. This Certificate of Amendment of Restated Certificate of Incorporation
has been duly adopted, in accordance with Section 242 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the undersigned have executed this Certificate of
Amendment of Restated Certificate of Incorporation this 3rd day of December,
1997.
/s/ JOHN F. GIFFORD
--------------------------
John F. Gifford, President
ATTEST:
/s/ MICHAEL J. BYRD
- ------------------------------------
Michael J. Byrd, Assistant Secretary
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RESTATED CERTIFICATE OF INCORPORATION
OF
MAXIM INTEGRATED PRODUCTS, INC.
MAXIM INTEGRATED PRODUCTS, INC., a corporation organized and existing
under the General Corporation Law of the State of Delaware DOES HEREBY CERTIFY:
FIRST:
(a) The present name of this corporation is Maxim Integrated
Products, Inc.
(b) The name under which this corporation was originally incorporated
was Maxim Integrated Products, Inc. (Delaware).
(c) The original Certificate of Incorporation of Maxim Integrated
Products, Inc. (Delaware) was filed with the Secretary of State of the State of
Delaware on August 19, 1987.
SECOND: The Restated Certificate of Incorporation of Maxim Integrated
Products, Inc. in the form attached hereto as Exhibit A has been duly adopted
in accordance with the provisions of Section 245 of the General Corporation Law
of the State of Delaware by the directors of the Corporation.
THIRD: The Restated Certificate of Incorporation only restates and
integrates and does not further amend the provisions of the corporation's
Certificate of Incorporation as heretofore amended or supplemented, and there
is no discrepancy between those provisions and the provisions of the Restated
Certificate.
FOURTH: The Restated Certificate of Incorporation so adopted reads in full
as set forth in Exhibit A attached hereto and hereby incorporated by reference.
IN WITNESS WHEREOF, Maxim Integrated Products, Inc. has caused this
Certificate to be signed by John F. Gifford, its President, this 20th day of
September, 1995.
MAXIM INTEGRATED PRODUCTS, INC.
By: /s/ JOHN F. GIFFORD
---------------------------
John F. Gifford, President
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EXHIBIT A
RESTATED CERTIFICATE OF INCORPORATION
OF
MAXIM INTEGRATED PRODUCTS, INC.
FIRST: The name of the corporation (hereinafter called the "Corporation")
is MAXIM INTEGRATED PRODUCTS, INC.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 32 Loockerman Square, Suite L-100, City of Dover, County
of Kent, and the name or the registered agent of the Corporation in the State
of Delaware at such address as the United States Corporation Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH:
A. The Corporation is authorized to issue two classes of shares
designated respectively "Common Stock" and "Preferred Stock", and referred to
herein as Common Stock and either Preferred Stock or Preferred Shares,
respectively. The total number of shares of all classes of stock which the
Corporation has the authority to issue is 62,000,000 shares. The number of
shares of Common Stock which the Corporation is authorized to issue is
60,000,000, and the number of shares of Preferred Stock which the Corporation
is authorized to issue is 2,000,000. Each share of Common stock shall have a
par value of $0.001, and each share of Preferred Stock shall have a par value
of $0.001.
B. The Preferred Shares may be issued from time to time in one or more
series. The Board of Directors is authorized to fix the number of shares of any
series of Preferred shares and to determine the designation of any such series.
The Board of Directors is also authorized to determine the rights, preferences,
privileges and restrictions granted to or imposed upon any wholly unissued
series of Preferred shares and, within the limits and restrictions stated in any
resolution or resolutions of the Board of Directors originally fixing the number
of shares constituting any series, to increase or decrease (but not below the
number of shares of such series, then outstanding) the number of shares of any
series subsequent to the issue of shares of that series.
FIFTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors shall have the power to adopt, amend, repeal or
otherwise alter the bylaws without any action on the part of the stockholders;
provided, however, that any bylaws made by
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the Board of Directors and any and all powers conferred by any of said bylaws
may be amended, altered or repealed by the stockholders.
SIXTH: A director of the Corporation shall, to the full extent permitted
by the Delaware General Corporation Law, as the same exists or may hereafter be
amended, not be liable to the Corporation or its stockholders for monetary
damages for breach of his fiduciary duty as a director.
SEVENTH:
(a) Vote Required for Certain Business Combinations.
(1) Higher Vote for Certain Business Combinations. In addition to
any affirmative vote required by law or this Restated Certificate of
Incorporation, and except as otherwise expressly provided in paragraph (b) of
this Article Seventh:
(i) any merger or consolidation of this Corporation or any
Subsidiary (as hereinafter defined) with (a) any Interested Stockholder (as
hereinafter defined) or (b) any other corporation (whether or not itself an
Interested Stockholder) which is, or after such merger or consolidation would
be, an Affiliate (as hereinafter defined) of an Interested Stockholder; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) to or with
any Interested Stockholder or any Affiliate of any Interested Stockholder of
any assets of this Corporation or any Subsidiary having an aggregate Fair
Market Value equal to or greater than 10% of the Corporation's assets as set
forth on the Corporation's most recent audited, consolidated financial
statements filed with the Securities and Exchange Commission; or
(iii) the adoption of any plan or proposal for the liquidation or
dissolution of this Corporation proposed by or on behalf of an Interested
Stockholder or any Affiliate of any Interested Stockholder; or
(iv) any reclassification of securities (including any reverse
stock split) or recapitalization of this Corporation, or any merger or
consolidation of this Corporation with any of its Subsidiaries or any other
transaction (whether or not with or into or otherwise involving an Interested
Stockholder) which has the effect, directly or indirectly, of increasing the
proportionate shares of the outstanding shares of any class of equity or
convertible securities of this Corporation or any Subsidiary which is directly
or indirectly owned by any Interested Stockholder or any affiliate of any
Interested Stockholder;
shall require the affirmative vote of the holders of at least sixty-six and
two-thirds percent (66-2/3%) of the voting power of the then outstanding shares
of capital stock of the Corporation entitled to vote generally in the election
of directors (the "Voting Stock"), voting together as a single class. Such
affirmative vote shall be required notwithstanding the fact that no vote may
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be required, or that a lesser percentage may be specified, by law or in any
agreement with any national securities exchange or otherwise.
(2) Definition of "Business Combination." The term "Business
Combination" as used in this Article Seventh shall mean any transaction which
is referred to in any one or more clauses (i) through (iv) or subparagraph (1)
of this paragraph (a).
(b) When Higher Vote is Not Required. The provisions of paragraph (a) of
this Article Seventh shall not be applicable to any particular Business
Combination, and such Business Combination shall require only such affirmative
vote as is required by law and any other provision of this Restated Certificate
of Incorporation, if all of the conditions specified in either of the following
subparagraphs (b)(1) or (b)(2) are met:
(1) Approval by Disinterested Directors. The Business Combination
shall have been approved by a majority of the Disinterested Directors (as
hereinafter defined).
(2) Price and Procedure Requirements. All of the following
conditions shall have been met:
(i) The aggregate amount of the cash and the Fair Market Value
(as hereinafter defined) as of the date of the consummation of the Business
Combination of consideration other than cash to be received per share by
holders of Common Stock in such Business Combination shall be at least equal
to the higher of the following:
(A) (if applicable) the highest per share price paid by the
Interested Stockholder for any shares of Common Stock acquired by it (1) within
the two-year period immediately prior to the first public announcement of the
proposal of the Business Combination (the "Announcement Date") or (2) in the
transaction in which it became an Interested Stockholder, whichever is higher;
and
(B) the Fair Market Value per share of Common Stock on the
Announcement Date or on the date on which the Interested Stockholder became an
Interested Stockholder (such latter date is referred to in this Article Seventh
as the "Determination Date"), whichever is higher.
(ii) The aggregate amount of the cash and the Fair Market Value
as of the date of consummation of the Business Combination of consideration
other than cash to be received per share by holders of shares of any other class
of outstanding Voting Stock shall be at least equal to the highest of the
following (it being intended that the requirements of this subparagraph
(b)(2)(ii) shall be required to be met with respect to every class of
outstanding Voting Stock, whether or not the Interested Stockholder has
previously acquired any shares of a particular class of Voting Stock):
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(A) (if applicable) the highest preferential amount
per share to which the holders of shares of such class of Voting Stock are
entitled in the event of any voluntary or involuntary liquidation, dissolution
or winding up of this corporation; and
(C) the Fair Market Value per share of such class of
Voting Stock on the Announcement Date or on the Determination Date, whichever is
higher.
(iii) The consideration to be received by holders of any
particular class of outstanding Voting Stock (including Common Stock) shall be
in cash or in the same form as the Interested Stockholder has previously paid
for shares of such class of Voting Stock. If the Interested Stockholder has
paid for shares of any class Voting Stock with varying forms of consideration,
the form of consideration for such class of Voting Stock shall be either cash
or the form used to acquire the largest number of shares of such class of
Voting Stock previously acquired by it. The price determined in accordance with
subparagraphs (b)(2)(i) and (b)(2)(ii) shall be subject to appropriate
adjustment in the event of any stock dividend, stock split, combination of
shares or similar event.
(iv) A proxy or information statement describing the
proposed Business Combination and complying with the requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations thereunder (or any subsequent provisions replacing the Exchange
Act or such rules or regulations) shall be mailed to public stockholders of this
corporation at least 30 days prior to the consummation of such Business
Combination (whether or not such proxy or information statement is required to
be mailed pursuant to such Act or subsequent provisions).
(c) Certain Definitions. For the purposes of this Article Seventh:
(1) A "person" shall mean any individual, firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean any person (other than this
Corporation or any Subsidiary) who or which:
(i) is the beneficial owner, directly or indirectly, of more
than 20% of the voting power of the outstanding Voting Stock; or
(ii) is an Affiliate of this corporation and at any time within
the two-year period immediately prior to the date in question was the
beneficial owner, directly or indirectly, of 20% or more of the voting power of
the then outstanding Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to any
shares of Voting Stock that were at any time within the two-year period
immediately prior to the date in question beneficially owned by any Interested
Stockholder, if such assignment or succession shall have occurred in the course
of a transaction or series of transactions not involving public offering within
the meaning of the Securities Act of 1933.
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(3) A person shall be a "beneficial owner" of any Voting Stock:
(i) that such person or any of its Affiliates or Associates (as
hereinafter defined) beneficially owns, directly or indirectly; or
(ii) that such person or any of its Affiliates or Associates has
(A) the right to acquire (whether such right is exercisable immediately or only
after the passage of time), pursuant to an agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise; provided, however, that a person shall not be
deemed the beneficial owner of securities tendered pursuant to a tender or
exchange offer made by or on behalf of such person or any of such person's
Affiliates or Associates until such tender securities are accepted for purchase;
of (B) the right to vote pursuant to any agreement, arrangement or
understanding; provided, however, that a person shall not be deemed the
beneficial owner of any security of the agreement, arrangement or understanding
to vote such security (I) arises solely from a revocable proxy or consent given
to such person in response to a public proxy or consent solicitation made
pursuant to, and in accordance with, the Exchange Act and (II) is not also then
reportable on Schedule 13D under the Exchange Act (or a comparable or successor
report); or
(iii) that are beneficially owned, directly or indirectly, by
any other person with which such person or any of its Affiliates or Associates
has any agreement, arrangement or understanding for the purpose of acquiring,
holding, voting (except to the extent permitted by the proviso of subparagraph
(c)(3)(ii)(B) above) or disposing of any shares of Voting Stock.
(4) For the purposes of determining whether a person is an Interested
Stockholder pursuant to subparagraph (c)(2), the number of shares of Voting
Stock deemed to be outstanding shall include shares deemed owned through
application of subparagraph (c)(3), but shall not include any other shares of
Voting Stock that may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights warrants or options, or
otherwise.
(5) "Affiliate" or "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under
the Exchange Act, as in effect on August 15, 1987.
(6) "Subsidiary" means any corporation of which a majority of any
class of equity security is owned, directly or indirectly, by this Corporation;
provided, however, that for the purposes of the definition of Interested
Stockholder set forth in subparagraph (c)(2), the term "Subsidiary" shall mean
only a corporation of which a majority of each class of equity security is
owned, directly or indirectly by this Corporation.
(7) "Disinterested Director" means any member of the Board of
Directors of this Corporation (the "Board") who is unaffiliated with the
Interested Stockholder and was a member of the Board prior to the time that the
Interested Stockholder became an Interested Stockholder, and any successor of a
Disinterested Director who is unaffiliated with the Interested Stockholder
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and is recommended to succeed a Disinterested Director by a majority of
Disinterested Directors then on the Board.
(8) "Fair Market Value" means: (i) in the case of stock, the average
of the closing sale prices during the 10-day period immediately preceding the
date in question of a share of such stock on the Composite Tape for New York
Stock Exchange-Listed Stocks, or, if such stock is not quoted on the Composite
Tape, on the New York Stock Exchange, or, if such stock is not listed on such
Exchange, on the principal United States securities exchange registered under
the Securities Exchange Act of 1934 on which such stock is listed, or, if the
stock is not listed on any such exchange but is listed as a National Market
System stock in the National Association of Securities Dealers, Inc. Automated
Quotation System, as reported in that National Market System, if such stock is
not listed on any such exchange or reported in such system the average of the
closing bid quotations with respect to a share of such stock during the 10-day
period preceding the date in question on the National Association of Securities
Dealers, Inc. Automated Quotations System or any system then in use, or if no
such quotations are available, the fair market value on the date in question of
a share of such stock as determined by the Board in good faith; and (ii) in the
case of property other than cash or stock, the fair market value of such
property on the date in question as determined by the Board in good faith.
(9) In the event of any Business Combination in which the corporation
survives, the phase "consideration other than cash to be received" as used in
subparagraphs (b)(2)(i) and (ii) of this Article Seventh shall include the
shares of Common Stock and/or the shares of any other class of outstanding
Voting Stock retained by the holders of such shares.
(d) Powers of the Board of Directors. A majority of the Disinterested
Directors of this Corporation shall have the power and duty to determine for the
purposes of this Article Seventh on the basis of information known to them after
reasonable inquiry (i) whether a person is an Interested Stockholder, (ii) the
number of shares of Voting Stock beneficially owned by any person, (iii) whether
a person is an Affiliate or Associate of another, and (iv) the Fair Market Value
of the assets that are the subject of any Business Combination. A majority of
the Disinterested Directors of this Corporation shall have the further power to
interpret all of the terms and provisions of this Article Seventh.
(e) No Effect on Fiduciary Obligations of Interested Stockholders. Nothing
contained in this Article Seventh shall be construed to relieve any Interested
Stockholder from any fiduciary obligation imposed by law.
(f) Amendment, Repeal, etc. Notwithstanding any other provisions of this
Certificate of Incorporation or the bylaws of this corporation (and
notwithstanding the fact that a lesser percentage may be specified by law, this
Restated Certificate of Incorporation or the bylaws of this Corporation), the
affirmative vote of the holders of sixty-six and two-thirds percent (66-2/3%) or
more of the outstanding Voting Stock, voting together as a single class, shall
be required to amend or repeal, or adopt any provisions inconsistent with this
Article Seventh.
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EIGHTH: At all elections of directors of the Corporation, each holder of
shares of the Corporation's stock shall be entitled to as many votes as shall
equal the number of votes which (except for this provision as to cumulative
voting) he would be entitled to cast for the election of directors with respect
to his shares of stock multiplied by the number of directors to be elected by
him, and such holder may cast all of such votes for a single director or may
distribute them among the number to be voted for, or for any two or more of
them as he may see fit.
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