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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
EMULEX CORPORATION
ARTICLE I
Name of Corporation
The name of the corporation is EMULEX CORPORATION
ARTICLE II
Registered Office
The address of the registered office of the corporation in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware
19801, in the City of Wilmington, County of New Castle. The name of its
registered agent at that address is The Corporation Trust Company.
ARTICLE III
Purpose
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
the State of Delaware.
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ARTICLE IV
Authorized Capital Stock
The corporation is authorized to issue two classes of capital stock,
designated Common Stock and Preferred Stock. The amount of total authorized
capital stock of the corporation is 41,000,000 shares divided into 40,000,000
shares of Common Stock, par value $.10 per share, and 1,000,000 shares of
Preferred Stock, par value $0.01 per share.
The shares of Preferred Stock may be issued from time to time in one or more
series. The board of directors is hereby authorized to fix by resolution or
resolutions the designations and the powers, preferences and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions of any series of shares of Preferred Stock, including without
limitation the dividend rate, conversion rights, redemption price and
liquidation preference, of any such series, and to fix the number of shares
constituting such series, and to increase or decrease the number of shares of
any such series (but not below the number of shares thereof then outstanding).
In case the number of shares of any such series shall be so decreased, the
shares constituting such decrease shall resume the status which they had prior
to the adoption of the resolution or resolutions originally fixing the number of
shares of such series.
ARTICLE V
Vote of Stockholders
A. No vote at any meeting of stockholders need be by written ballot unless
the board of directors, in its discretion, or the officer of the corporation
presiding at the meeting, in his discretion, specifically directs the use of a
written ballot.
B. At each election of directors, each holder of shares of capital stock
entitled to vote for the election of directors shall be entitled to as many
votes as shall equal the number of votes which (except for this provision) 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
that he 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; provided, however, that no stockholder shall be entitled to vote in
accordance with this paragraph unless the names of the candidates for director
for whom such stockholder desires to vote have been placed in nomination prior
to the voting and the stockholder has given notice at the meeting prior to the
voting of the stockholder's intention to cumulate the stockholder's votes, and
provided further, that if any one stockholder has given such notice, all
stockholders may cumulate their votes for candidates in nomination in accordance
with this paragraph.
C. Directors may not be elected by written consent except by unanimous
written consent of all shares entitled to vote for the election of directors.
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ARTICLE VI
Board Power Regarding By-laws
In furtherance and not in limitation of the powers conferred by statute, the
board of directors shall have the power to make, adopt, amend, rescind or repeal
the By-laws of the corporation.
ARTICLE VII
Incorporator
The incorporator is Robert H. Goon, whose mailing address is 1880 Century
Park East, Fifth Floor, Los Angeles, California 90067.
ARTICLE VIII
Limitation of Director Liability
To the fullest extent permitted by the General Corporation Law of the State
of Delaware as the same exists or may hereafter be amended, a director of this
corporation shall not be liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director. Any repeal or
modification of this Article VIII 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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ARTICLE IX
Corporate Power
The corporation reserves the right to amend, alter, change or repeal any
provision contained in this 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.
THE UNDERSIGNED, being the incorporator herein above named, for the purpose
of forming a corporation to do business both within and without the State of
Delaware, and in pursuance of the General Corporation Law of the State of
Delaware, does make, file and record this Certificate.
Dated: October 23, 1996 /s/ Robert H. Goon
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Robert H. Goon, Incorporator
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
EMULEX CORPORATION
Emulex Corporation, 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 at a meeting of the Board of Directors of the Corporation,
resolutions were duly adopted setting forth a proposed amendment of the
Certificate of Incorporation of the Corporation, declaring said amendment to be
advisable and calling a special meeting of the stockholders of the Corporation
for consideration thereof. The resolution setting forth the proposed amendment
is as follows:
RESOLVED, that, subject to obtaining the requisite approval of the
stockholders of the Corporation, Article IV of the Corporation's
Certificate of Incorporation be amended, without effect upon any stock
designation heretofore filed, to read as follows:
"ARTICLE IV
Authorized Capital Stock
The corporation is authorized to issue two classes of capital
stock, designated Common Stock and Preferred Stock. The amount of total
authorized capital stock of the corporation is 21,000,000 shares,
divided into 20,000,000 shares of Common Stock, par value $.20 per
share, and 1,000,000 shares of Preferred Stock, par value $.01 per
share. Upon the effectiveness of the Amendment, each two outstanding
shares of Common Stock, par value $.10 per share, shall be reclassified,
converted and changed into one share of Common Stock, par value $.20 per
share. Each holder of Common Stock who would otherwise be entitled to
receive a fractional share shall instead be entitled to receive cash for
such fractional share, the amount of cash to be determined on the basis
of the average closing price of the Common Stock on the NASDAQ National
Market System for the ten trading days immediately preceding the
effective date of this Amendment.
The shares of Preferred Stock may be issued from time to time in
one or more series. The board of directors is hereby authorized to fix
by resolution or resolutions the designations and the powers,
preferences and relative, participating, optional or other special
rights, and qualifications, limitations
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or restrictions of any series of shares of Preferred Stock, including
without limitation the dividend rate, conversion rights, redemption
price and liquidation preference, of any such series, and to fix the
number of shares constituting such series, and to increase or decrease
the number of shares of any such series (but not below the number of
shares thereof then outstanding). In case the number of shares of any
such series shall be so decreased, the shares constituting such decrease
shall resume the status which they had prior to the adoption of the
resolution or resolutions originally fixing the number of shares of such
series."
SECOND: That thereafter, pursuant to resolutions of its Board of
Directors, a special meeting of the stockholders of the Corporation was duly
called and held, upon notice in accordance with Section 222 of the General
Corporation Law of the State of Delaware at which meeting the necessary number
of shares as required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed by Paul F. Folino, its President and Chief Executive officer, and Walter
J. McBride, its Senior Vice President, Chief Financial Officer and Secretary,
this 24th day of February, 1994.
By: /s/ PAUL F. FOLINO
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Paul F. Folino,
President and Chief Executive
Officer
Attest:
/s/ WALTER J. McBRIDE
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Walter J. McBride,
Secretary, Senior Vice President
and Chief Financial Officer
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