Exhibit 3.1
================================================================================
AMENDED
AND RESTATED
CERTIFICATE OF INCORPORATION
OF
AMETEK, INC.
(AS AMENDED TO AND INCLUDING MAY 18, 2004)
================================================================================
AMENDED
AND RESTATED
CERTIFICATE OF INCORPORATION
OF
AMETEK, INC.
(UNDER SECTIONS 242 AND 245 OF THE
DELAWARE GENERAL CORPORATION LAW)
It is hereby certified that:
1. The name of the corporation (hereinafter called the "Corporation") is
AMETEK, INC.
2. The Certificate of Incorporation of GE Subsidiary, Inc. 64 was
originally filed with The Secretary of State of the State of Delaware on May 8,
1986.
3. An Amended and Restated Certificate of Incorporation of the Corporation
was filed with The Secretary of State of the State of Delaware on July 10, 1997.
4. A Certificate of Change of Registered Agent and Registered Office was
filed with The Secretary of State of the State of Delaware on July 21, 2003.
5. The Amended and Restated Certificate of Incorporation of the
Corporation filed with The Secretary of State of the State of Delaware on July
10, 1997 is hereby amended and restated in its entirety to read as follows:
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
AMETEK, INC.
(A DELAWARE CORPORATION)
FIRST. The name of the corporation is AMETEK, INC. (the "Company").
SECOND. The address of the Company's registered office in the State of
Delaware is 1209 Orange Street, City of Wilmington, County of New Castle,
Delaware 19801. The name of the Company's registered agent at such address is
The Corporation Trust Company.
2
THIRD. The purpose of the Company 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 ("DGCL").
FOURTH. Section 1. Authorized Capital Stock. The Company is authorized to
issue two classes of capital stock, designated Common Stock and Preferred Stock.
The total number of shares of capital stock that the Company is authorized to
issue is 205,000,000 shares, consisting of 200,000,000 shares of Common Stock,
par value $0.01 per share, and 5,000,000 shares of Preferred Stock, par value
$0.01 per share.
Section 2. Preferred Stock. The Preferred Stock may be issued in one or
more series. The Board of Directors of the Company (the "Board") is hereby
authorized to issue the shares of Preferred Stock in such series and to fix from
time to time before issuance the number of shares to be included in any such
series and the designation, relative powers, preferences, rights,
qualifications, limitations and restrictions of all shares of such series. The
authority of the Board with respect to each such series will include, without
limiting the generality of the foregoing, the determination of any or all of the
following:
(a) the number of shares of any series and the designation to
distinguish the shares of such series from the shares of all other series;
(b) the voting powers, if any, and whether such voting powers are
full or limited in such series;
(c) the redemption provisions, if any, applicable to such series,
including the redemption price or prices to be paid;
(d) whether dividends, if any, will be cumulative or noncumulative,
the dividend rate of such series, and the dates and preferences of
dividends on such series;
(e) the rights of such series upon the voluntary or involuntary
dissolution of, or upon any distribution of the assets of, the Company;
(f) the provisions, if any, pursuant to which the shares of such
series are convertible into, or exchangeable for, shares of any other
class or classes or of any other series of the same or any other class or
classes of stock, or any other security, of the Company or any other
corporation or other entity, and the price or prices or the rates of
exchange applicable thereto;
(g) the right, if any, to subscribe for or to purchase any
securities of the Company or any other corporation or other entity;
(h) the provisions, if any, of a sinking fund applicable to such
series; and
(i) any other relative, participating, optional, or other special
powers, preferences, rights, qualifications, limitations, or restrictions
thereof;
3
all as may be determined from time to time by the Board and stated in the
resolution or resolutions providing for the issuance of such Preferred Stock
(collectively, a "Preferred Stock Designation").
Section 3. Common Stock. Except as may otherwise be provided in a
Preferred Stock Designation, the holders of Common Stock will be entitled to one
vote on each matter submitted to a vote at a meeting of stockholders for each
share of Common Stock held of record by such holder as of the record date for
such meeting.
FIFTH. The Board may make, amend, and repeal the By-Laws of the Company.
Any By-Law made by the Board under the powers conferred hereby may be amended or
repealed by the Board or by the stockholders in the manner provided in the
By-Laws of the Company. Notwithstanding the foregoing and anything contained in
this Amended and Restated Certificate of Incorporation to the contrary, By-Laws
3, 8, 10, 11, 12, 13 and 39 may not be amended or repealed by the stockholders,
and no provision inconsistent therewith may be adopted by the stockholders,
without the affirmative vote of the holders of at least 80% of the Voting Stock,
voting together as a single class. The Company may in its By-Laws confer powers
upon the Board in addition to the foregoing and in addition to the powers and
authorities expressly conferred upon the Board by applicable law. For the
purposes of this Amended and Restated Certificate of Incorporation, "Voting
Stock" means stock of the Company of any class or series entitled to vote
generally in the election of Directors. Notwithstanding anything contained in
this Amended and Restated Certificate of Incorporation to the contrary, the
affirmative vote of the holders of at least 80% of the Voting Stock, voting
together as a single class, is required to amend or repeal, or to adopt any
provisions inconsistent with, this Article Fifth.
SIXTH. Subject to the rights of the holders of any series of Preferred
Stock:
(a) any action required or permitted to be taken by the stockholders
of the Company must be effected at a duly called annual or special meeting
of stockholders of the Company and may not be effected by any consent in
writing of such stockholders; and
(b) special meetings of stockholders of the Company may be called
only by (i) the Chairman of the Board (the "Chairman") or (ii) the
Corporate Secretary of the Company (the "Secretary") within 10 calendar
days after receipt of the written request of a majority of the total
number of Directors which the Company would have if there were no
vacancies (the "Whole Board").
At any annual meeting or special meeting of stockholders of the Company, only
such business will be conducted or considered as has been brought before such
meeting in the manner provided in the By-Laws of the Company. Notwithstanding
anything contained in this Amended and Restated Certificate of Incorporation to
the contrary, the affirmative vote of at least 80% of the Voting Stock, voting
together as a single class, will be required to amend or repeal, or adopt any
provision inconsistent with, this Article Sixth.
SEVENTH. Section 1. Number, Election, and Terms of Directors. Subject to
the rights, if any, of the holders of any series of Preferred Stock to elect
additional Directors under circumstances specified in a Preferred Stock
Designation, the number of the Directors of the Company will not be less than
three nor more than 12 and will be fixed from time to time in the manner
described in the By-Laws of the Company. The Directors, other than those who may
be
4
elected by the holders of any series of Preferred Stock, will be classified with
respect to the time for which they severally hold office into three classes, as
nearly equal in number as possible, designated Class I, Class II, and Class III.
The Directors first appointed to Class I will hold office for a term expiring at
the first annual meeting of stockholders to be held following the filing of this
Certificate; the Directors first appointed to Class II will hold office for a
term expiring at the second annual meeting of stockholders to be held following
the filing of this Certificate; and the Directors first appointed to Class III
will hold office for a term expiring at the third annual meeting of stockholders
to be held following the filing of this Certificate, with the members of each
class to hold office until their successors are elected and qualified. At each
succeeding annual meeting of the Company, the successors of the class of
Directors whose terms expire at that meeting will be elected by plurality vote
of all votes cast at such meeting to hold office for a term expiring at the
annual meeting of stockholders held in the third year following the year of
their election. Election of Directors of the Company need not be by written
ballot unless requested by the Chairman or by the holders of a majority of the
Voting Stock present in person or represented by proxy at a meeting of the
stockholders at which Directors are to be elected.
Section 2. Nomination of Director Candidates. Advance notice of
stockholder nominations for the election of Directors must be given in the
manner provided in the By-Laws of the Company.
Section 3. Newly Created Directorships and Vacancies. Subject to the
rights, if any, of the holders of any series of Preferred Stock to elect
additional Directors under circumstances specified in a Preferred Stock
Designation, newly created directorships resulting from any increase in the
number of Directors and any vacancies in the Board resulting from death,
resignation, disqualification, removal, or other cause will be filled solely by
the affirmative vote of a majority of the remaining Directors then in office,
even though less than a quorum of the Board, or by a sole remaining Director.
Any Director elected in accordance with the preceding sentence will hold office
for the remainder of the full term of the class of Directors in which the new
directorship was created or the vacancy occurred and until such Director's
successor has been elected and qualified. No decrease in the number of Directors
constituting the Board may shorten the term of any incumbent Director.
Section 4. Removal. Subject to the rights, if any, of the holders of any
series of Preferred Stock to elect additional Directors under circumstances
specified in a Preferred Stock Designation, any Director may be removed from
office by the stockholders only for cause and only in the manner provided in
this Section 4. At any annual meeting or special meeting of the stockholders,
the notice of which states that the removal of a Director or Directors is among
the purposes of the meeting, the affirmative vote of the holders of at least a
majority of the Voting Stock, voting together as a single class, may remove such
Director or Directors for cause. Except as may be provided by applicable law,
cause for removal will be deemed to exist only if the Director whose removal is
proposed has been adjudged by a court of competent jurisdiction to be liable to
the Company or its stockholders for misconduct as a result of (a) a breach of
such Director's duty of loyalty to the Company, (b) any act or omission by such
Director not in good faith or which involves a knowing violation of law, or (c)
any transaction from which such Director derived an improper personal benefit,
and such adjudication is no longer subject to direct appeal.
5
Section 5. Amendment, Repeal, Etc. Notwithstanding anything contained in
this Amended and Restated Certificate of Incorporation to the contrary, the
affirmative vote of at least 80% of the Voting Stock, voting together as a
single class, is required to amend or repeal, or adopt any provision
inconsistent with, this Article Seventh.
EIGHTH. To the fullest extent permitted by the Delaware General
Corporation Law, a director of the Company shall not be liable to the Company or
its stockholders for monetary damages for any breach of a fiduciary duty as a
director. If the Delaware General Corporation Law is hereafter amended to
authorize the further elimination or limitation of the liability of a director,
then the liability of a director of the Company shall be eliminated or limited
to the fullest extent permitted by the Delaware Corporation law, as so amended.
Any repeal or modification of the foregoing provisions of this Article EIGHTH by
the stockholders of the Company shall not adversely affect any right or
protection of a director of the Company existing at the time of such repeal or
modification.
NINTH. Each person who is or was or had agreed to become a Director or
officer of the Company, and each such person who is or was serving or who had
agreed to serve at the request of the Board or an officer of the Company as an
employee or agent of the Company or as a director, officer, employee, or agent
of another corporation, partnership, joint venture, trust, or other entity,
whether for profit or not for profit (including the heirs, executors,
administrators, or estate of such person), will be indemnified by the Company to
the fullest extent permitted by the Delaware General Corporation Law as the same
may be amended or supplemented. The right of indemnification provided in this
Article Ninth (a) will not be exclusive of any other rights to which any person
seeking indemnification may otherwise be entitled, including without limitation
pursuant to any contract approved by a majority of the Whole Board (whether or
not the Directors approving such contract are or are to be parties to such
contract or similar contracts), and (b) will be applicable to matters otherwise
within its scope whether or not such matters arose or arise before or after the
adoption of this Article Ninth. Without limiting the generality or the effect of
the foregoing, the Company may adopt By-Laws, or enter into one or more
agreements with any person, which provide for indemnification greater or
different than that provided in this Article Ninth or the Delaware General
Corporation Law. Notwithstanding anything contained in this Amended and Restated
Certificate of Incorporation to the contrary, the amendment or repeal of, or
adoption of any provision inconsistent with, this Article Ninth will require the
affirmative vote of the holders of at least 80% of the Voting Stock, voting
together as a single class. Any amendment or repeal of, or adoption of any
provision inconsistent with, this Article Tenth will not adversely affect any
right or protection existing hereunder prior to such amendment, repeal, or
adoption.
TENTH. Whenever a compromise or arrangement is proposed between the
Company and its creditors or any class of them and/or between the Company and
its stockholders or any class of them, any court of equitable jurisdiction
within the State of Delaware may, on the application in a summary way of the
Company or any creditor or stockholder thereof or on the application of any
receiver or receivers appointed for the Company under the provisions of Section
291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for the Company under the
provisions of Section 279 of Title 8 of the Delaware Code, order a meeting of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders, of the Company, as the case may be, to be summoned in such manner
as the said court directs. If a majority in number representing three-fourths in
value of the creditors or class of creditors, and/or of the stockholders or
class of stockholders, of the Company, as the
6
case may be, agree to any compromise or arrangement and to any reorganization of
the Company as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of the Company, as the case may be, and also on the Company.
3. This Amended and Restated Certificate of Incorporation was duly adopted
in accordance with the provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said AMETEK, INC. has caused this certificate to be
signed by Frank S. Hermance, its Chairman of the Board and Chief Executive
Officer, and attested by Kathryn E. Londra, its Corporate Secretary, this 18th
day of May, 2004.
Signed and attested to this 18th day of May, 2004.
AMETEK, INC.
/s/ Frank S. Hermance
---------------------------------------------
Frank S. Hermance
Chairman of the Board and
Chief Executive Officer
Attest:
/s/ Kathryn E. Londra
- --------------------------------------------
Kathryn E. Londra
Corporate Secretary
7