Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
-------------------------------------------------
OF
--
VITESSE SEMICONDUCTOR CORPORATION
---------------------------------
The undersigned Eugene F. Hovanec does hereby verify that:
1. He is the duly elected Vice President, Finance, Chief Financial
Officer
and Secretary of Vitesse Semiconductor Corporation, a Delaware corporation.
2. The Certificate of Incorporation of this corporation is amended and
restated to read in its entirety as follows:
1. The name of the corporation is Vitesse Semiconductor Corporation (the
"Corporation").
2. The address of the Corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle, zip code 19801. The name of its registered
agent at such address is The Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted by
the Corporation is to engage in any lawful act or activity for which
Corporations may be organized under the General Corporation Law of Delaware.
4. This Corporation is authorized to issue two classes of shares to be
designated respectively Preferred Stock ("Preferred") and Common Stock
("Common"). The total number of shares of Preferred this Corporation shall have
authority to issue shall be 10,000,000, $0.01 par value, and the total number of
Common this Corporation shall have authority to issue shall be 250,000,000,
$0.01 par value.
The Preferred Stock may be issued from time to time in one or more series
pursuant to a resolution or resolutions providing for such issue duly adopted by
the Board of Directors (authority to do so being hereby expressly vested in the
Board). The Board of Directors is further authorized to determine or alter the
rights, preferences, privileges and restrictions granted to or imposed upon any
wholly unissued series of Preferred Stock and, to fix the number of shares of
any series of Preferred Stock and the designation of any such series of
Preferred Stock. The Board of Directors, within the limits and restrictions
stated in any resolution or resolutions of the Board of Directors originally
fixing
1 of EX 3.1
the number of shares constituting any series, may increase or decrease (but not
below the number of shares in any such series then outstanding) the number of
shares of any series subsequent to the issue of shares of that series.
5. The Corporation is to have perpetual existence.
6. Elections of directors need not be by written ballot unless a
stockholder demands election by written ballot at the meeting and before voting
begins or unless the Bylaws of the Corporation shall so provide.
7. The number of directors which constitute the whole Board of Directors
of the Corporation shall be designated in the Bylaws of the Corporation.
8. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter, amend or
repeal the Bylaws of the Corporation.
9. (a) To the fullest extent permitted by the Delaware General
Corporation Law as the same exists or as may hereafter be amended, a director of
the Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director.
(b) The Corporation shall indemnify to the fullest extent permitted by
law any person made or threatened to be made a party to an action or proceeding,
whether criminal, civil, administrative or investigative, by reason of the fact
that he, his testator or intestate is or was a director, officer or employee of
the Corporation or any predecessor of the Corporation or serves or served at any
other enterprise as a director, officer or employee at the request of the
Corporation or any predecessor to the Corporation.
(c) Neither any amendment nor repeal of this Article 9, nor the
adoption of any provision of this Corporation's Certificate of Incorporation
inconsistent with this Article 9, shall eliminate or reduce the effect of this
Article 9 in respect of any matter occurring, or any action or proceeding
accruing or arising or that, but for this Article 9, would accrue or arise,
prior to such amendment, repeal or adoption of an inconsistent provision.
10. 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 statutes) outside of the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the Bylaws of the Corporation.
11. Following the effectiveness of the registration of any class of
securities of the Corporation pursuant to the requirements of the Securities
Exchange Act of 1934, as amended, no action shall be taken by the stockholders
of the Corporation except at an annual or special meeting of the stockholders
call in accordance with the Bylaws and no action shall be taken by the
stockholders by written consent.
2 of EX 3.1
3. The foregoing amendment and restatement of the Certificate of
Incorporation has been duly approved by the Board of Directors.
4. The foregoing amendment and restatement of the Certificate of
Incorporation has been duly approved by the required vote of stockholders in
accordance with Section 242 of the General Corporation Law of the State of
Delaware. The total number of outstanding shares of Common Stock of the
Corporation is 78,036,697 and there are no shares of Preferred Stock
outstanding. The number of shares voting in favor of the Amended and Restated
Certificate of Incorporation equalled or exceeded the vote required. The
percentage vote required was more than 50% of the Common voting as a class.
Notice has been given to any non-consenting stockholders in accordance with the
provisions of Section 228(c) of the General Corporation Law of the State of
Delaware.
The undersigned declares under penalty of perjury under the laws of the
State of Delaware that the matters set forth in this certificate are true,
correct and of his own knowledge.
Executed at Camarillo, California on September 16, 1999.
/s/ Eugene F. Hovanec
---------------------
Eugene F. Hovanec
Vice President, Finance &
Chief Financial Officer and
Secretary
3 of EX 3.1