CERTIFICATE OF INCORPORATION
OF
FSC SEMICONDUCTOR CORPORATION
1. Name. The name of the Corporation is FSC
Semiconductor Corporation.
2. Registered Office and Agent. The address of
the Corporation's registered office in the State of Delaware
is 1013 Centre Road, in the City of Wilmington, County of
New Castle. The name of the Corporation's registered agent
at such address is Corporation Service Company.
3. Purpose. The purposes for which the
Corporation is formed are 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")
and to possess and exercise all of the powers and privileges
granted by such law and any other law of Delaware.
4. Authorized Capital. The aggregate number of
shares of stock which the Corporation shall have authority
to issue is 60,070,000 shares, divided into three (3)
classes consisting of 70,000 shares of 12% Series A
Cumulative Compounding Preferred Stock, par value $.01 per
share ("Series A Preferred Stock"); 30,000,000 shares of
Class A Common Stock, par value $.01 per share ("Class A
Common Stock"); and 30,000,000 shares of Class B Common
Stock, par value $.01 per share ("Class B Common Stock").
Class A Common Stock and Class B Common Stock are
hereinafter sometimes collectively referred to as "Common
Stock".
The following is a statement of the designations,
preferences, qualifications, limitations, restrictions and
the special or relative rights granted to or imposed upon
the shares of each such class.
A. SERIES A PREFERRED STOCK
(a) Accrual and Payment of Dividends
i. The holders of Series A Preferred
Stock shall be entitled to receive,
when, as and if declared by the Board of
Directors out of funds of the
Corporation legally available therefor,
cumulative cash dividends at the rate of
$120 per share per annum.
ii. Such dividends shall be payable in
annual installments in arrears
commencing September 15, 1997 and
thereafter on the
fifteenth day of March
and September (unless such day is not a
business day in which event on the last
preceding business day) in each such
year (hereinafter referred to as a
"Dividend Accrual Date"), except that
the dividend payment payable on
September 15, 1997 shall be calculated
at the annual rate of $120 per share
from the date of original issuance
through September 15, 1997. Each such
dividend on Series A Preferred Stock
when paid shall be payable to holders of
record as they appear on the stock books
of the Corporation on the date
established by the Board of Directors of
the Corporation as the record date for
the payment of such dividend (which
record date shall not precede the date
upon which the resolution fixing such
record date is adopted and which record
date shall be not more than sixty days
prior to such action). If no record
date is fixed, the record date for
determining holders for such purpose
shall be at the close of business on the
date on which the Board of Directors
adopts the resolution relating to such
dividend payment. Dividends with
respect to any shares of Series A
Preferred Stock shall accrue (whether or
not earned or declared) from the date of
issue of such shares.
iii. Such dividends on the Series A
Preferred Stock shall be cumulative,
whether or not earned or declared, so
that if at any time full cumulative
dividends at the rate aforesaid on all
shares of Series A Preferred Stock then
outstanding to the end of the annual
dividend period next preceding such time
shall not have been paid, the amount of
the deficiency shall be paid before any
sum shall be set aside for or applied by
the Corporation to the purchase,
redemption or other acquisition for
value of any shares of Junior Stock
(either pursuant to any applicable
sinking fund requirement or otherwise)
or any dividend or other distribution
shall be paid or declared and set apart
for payment on any Junior Stock (other
than a dividend payable in Junior Stock)
provided, however, that the foregoing
shall not prohibit the Corporation from
repurchasing shares of Junior Stock from a
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former employee of the Corporation (or
a subsidiary of the Corporation) where
such repurchase arises from the
Corporation's option to repurchase such
shares upon termination of such
employee's employment with the
Corporation (or a subsidiary) pursuant
to a written agreement between the
Corporation and such employee. Accrued
dividends on the Series A Preferred
Stock if not paid on the first or any
subsequent Dividend Accrual Date
following accrual shall thereafter
accrue additional dividends in respect
thereof (the "Additional Dividends"),
compounded annually, at the rate of 12%
per annum.
iv. When dividends are not paid in full
upon the Series A Preferred Stock, all
dividends paid upon shares of Series A
Preferred Stock shall be paid pro rata
so that in all cases the amount of
dividends paid per share on the Series A
Preferred Stock shall bear the same
ratio that accrued dividends per share
on the shares of Series A Preferred
Stock bear to each other.
v. An annual dividend period shall
commence on the day following a Dividend
Accrual Date and shall end on the next
succeeding Dividend Accrual Date.
(b) Preference on Liquidation
i. In the event that the Corporation
shall be liquidated, dissolved or wound
up, whether voluntarily or
involuntarily, after all creditors of
the Corporation shall have been paid in
full, the holders of the Series A
Preferred Stock shall be entitled to
receive, out of the assets of the
Corporation legally available for
distribution to its stockholders,
whether from capital, surplus or
earnings, before any amount shall be
paid to the holders of any shares of
Junior Stock, an amount equal to $1000
in cash per share plus an amount equal
to full cumulative dividends (whether or
not earned or declared) accrued and
unpaid thereon (including Additional
Dividends) to the date of final
distribution, and no more. If upon any
voluntary or involuntary liquidation,
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dissolution or winding up of the
Corporation, the net assets of the
Corporation shall be insufficient to pay
the holders of all outstanding shares of
Series A Preferred Stock the full
amounts to which they respectively shall
be entitled, such assets, or the
proceeds thereof, shall be distributed
ratably among the holders of the Series
A Preferred Stock in accordance with the
amounts which would be payable on such
distribution if the amount to which the
holders of the Series A Preferred Stock
are entitled were paid in full. Holders
of Series A Preferred Stock shall not be
entitled, upon the voluntary or
involuntary liquidation, dissolution or
winding up of the Corporation, to
receive any amounts with respect to such
stock other than the amounts referred to
in this paragraph (b)(i).
ii. Neither the purchase nor redemption
by the Corporation of shares of any
class of stock in any manner permitted
by the Certificate of Incorporation or
any amendment thereof, nor the merger or
consolidation of the Corporation with or
into any other corporation or
corporations, nor a sale, exchange,
conveyance, transfer or lease of all or
substantially all of the Corporation's
assets shall be deemed to be a
liquidation, dissolution or winding up
of the Corporation for the purposes of
this paragraph (b); provided, however,
that any consolidation or merger of the
Corporation in which the Corporation is
not the surviving entity shall be deemed
to be a liquidation, dissolution or
winding up of the affairs of the
Corporation within the meaning of this
paragraph (b) if, (A) in connection
therewith, the holders of Common Stock
of the Corporation receive as
consideration, whether in whole or in
part, for such Common Stock (1) cash,
(2) notes, debentures or other evidences
of indebtedness or obligations to pay
cash or (3) preferred stock of the
surviving entity which ranks on a parity
with or senior to the preferred stock
received by holders of the Series A
Preferred Stock with respect to
liquidation or dividends or (B) the
holders of the Series A Preferred Stock
do not receive preferred stock of the
surviving entity with rights,
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powers and preferences equal to (or more
favorable to the holders than) the rights,
powers and preferences of the Series A
Preferred Stock.
(c) Redemption
i. Mandatory Redemption. All
outstanding shares of the Series A
Preferred Stock shall be redeemed from
funds legally available therefor on
March 16, 2009 (the "Mandatory
Redemption Date"), in the manner
provided in Section 4(A)(d) hereof, at a
price per share equal to $1,000 plus an
amount per share equal to full
cumulative dividends (whether or not
earned or declared) accrued and unpaid
thereon (including Additional Dividends)
to the Mandatory Redemption Date.
ii. Optional Redemption. The Series A
Preferred Stock may be redeemed from
funds legally available therefor, in
whole or in part, at the election of the
Corporation, expressed by resolution of
the Board of Directors, at any time at a
price per share equal to $1,000 plus an
amount per share equal to full
cumulative dividends (whether or not
earned or declared) accrued and unpaid
thereon (including Additional Dividends
and all dividends which have accrued
since the most recent Dividend Accrual
Date) to the date of redemption.
iii. The aggregate amount of any
redemption pursuant to paragraph (i) or
(ii) is hereinafter referred to as the
"Redemption Price" with respect to such
redemption. The Mandatory Redemption
Date and the date of any redemption
pursuant to paragraph (ii) are each
hereinafter referred to individually as
a "Redemption Date."
(d) Redemption Procedure
i. Any redemption pursuant to this
paragraph (d) shall be accomplished in
the manner and with the effect as set
forth in this paragraph.
ii. Notice of every redemption of
Series A Preferred Stock pursuant to
paragraph (c)
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shall be given by first
class mail to each holder of record on
the record date for such redemption at
such holder's address as the same
appears on the stock register of the
Corporation not less than ten (10) days
and not more than sixty (60) days prior
to the Redemption Date. Each such
notice shall state (A) the Redemption
Date, (B) whether the redemption is a
mandatory or optional redemption under
Section 4(A)(c)(i) or 4(A)(c)(ii)
hereof, as the case may be, (C) the
place or places where such shares are to
be surrendered, (D) that the holder is
to surrender the shares at the place of
redemption and (E) that dividends on the
Series A Preferred Stock shall cease to
accrue on the Redemption Date. If less
than all the outstanding Series A
Preferred Stock is to be redeemed, the
selection of shares for redemption shall
be made pro rata and the notice of
redemption to a holder shall state the
number of shares of Series A Preferred
Stock of such holder to be redeemed.
The amount of the applicable Redemption
Price shall be deposited on or before
the applicable Redemption Date in trust
for the account of the holders of Series
A Preferred Stock entitled thereto with
a bank or trust company in good standing
doing business in the State of New York
and having capital and surplus of at
least $100,000,000 (the date of such
deposit being hereinafter in this
paragraph (d) referred to as the "date
of deposit").
iii. Notice of the date on which, and
the name and address of the bank or
trust company with which, the deposit
has been or will be made shall be
included in the notice of redemption.
On and after the applicable Redemption
Date (unless default shall be made by
the Corporation in providing money for
the payment of the Redemption Price
pursuant to the notice of redemption),
or if the Corporation shall make such
deposit on or before the date specified
therefor in the notice of redemption,
then on and after the date of deposit
(provided notice of redemption has been
duly given), all dividends on the Series
A Preferred Stock so called for
redemption shall cease to accrue,
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and the notice of redemption shall so
state, and, notwithstanding that any
certificate for shares of Series A
Preferred Stock is not surrendered for
cancellation, the shares represented
thereby shall no longer be deemed
outstanding and all rights of the
holders thereof as stockholders of the
Corporation shall cease and terminate,
except the right to receive the
Redemption Price (without interest) as
hereinafter provided.
iv. At any time on or after the
applicable Redemption Date, or if the
Corporation shall deposit the money for
such redemption prior to the Redemption
Date, then at any time on or after the
date of deposit, which time shall be
specified by the Corporation in the
notice of redemption and which shall not
be later than the applicable Redemption
Date, the holders of record of the
Series A Preferred Stock to be redeemed
shall be entitled to receive the
Redemption Price upon actual delivery to
the bank or trust company with which
such deposit shall be made of
certificates for the shares to be
redeemed, such certificates, if
required, to be duly endorsed in blank
or accompanied by proper instruments of
assignment and transfer duly endorsed in
blank. The making of such deposit with
any such bank or trust company shall not
relieve the Corporation of liability for
payment of the Redemption Price.
v. Any money so deposited which shall
remain unclaimed by the holders of such
Series A Preferred Stock at the end of
two (2) years after the Redemption Date
shall be paid by such bank or trust
company to the Corporation, which shall
thereafter, to the extent of the money
so repaid, be liable for the payment of
the Redemption Price. Any interest
accrued on money so deposited shall be
paid to the Corporation from time to
time.
(e) Optional Exchange
i. The Series A Preferred Stock may be
exchanged, at the Corporation's option
at any time and from time to time, in
whole or in part, for junior
subordinated debentures to
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be issued by the Corporation in
substantially the form attached as
Annex A hereto ("Exchange Debentures")
at the rate of $1000 per share plus an
amount per share equal to full
cumulative dividends (whether or not
earned or declared) accrued and unpaid
thereon (including all dividends which
have accrued since the most recent
Dividend Accrual Date) to the date
established by the Board of Directors
for such exchange (the Exchange Date")
(the aggregate of such amounts is
hereinafter referred to as the "Exchange
Amount"). The Exchange Debentures shall
bear interest at a rate equal to the
lesser of 12% and the maximum interest
rate permitted to be deducted as accrued
under the relevant provisions of the
Internal Revenue Code of 1986 and the
rules and regulations promulgated
thereunder in effect on the Exchange
Date. If less than all the shares of
Series A Preferred Stock is to be
exchanged, the selection of shares to
be exchanged shall be pro rata. The
election of the Corporation to exchange
the shares of Series A Preferred Stock
for Exchange Debentures pursuant to this
paragraph (e) must be made by the
affirmative vote of at least eighty
percent (80%) of all the directors of
the Corporation then in office.
(f) Exchange Procedure
i. Any exchange pursuant to paragraph
(e) shall be accomplished in the manner
and with the effect as set forth in this
paragraph (f).
ii. Notice of the exchange of Series A
Preferred Stock pursuant to paragraph
(e) shall be given by first class mail
to each holder of record on the record
date for such exchange at such holder's
address as the same appears on the stock
register of the Corporation not less
than ten (10) days and not more than
sixty (60) days prior to the Exchange
Date. Each such notice shall state:
(A) the Exchange Date, (B) the place or
places where certificates for such
shares of Series A Preferred Stock are
to be surrendered for exchange into the
Exchange Debentures, (C) that dividends
on the Series
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A Preferred Stock to be exchanged will
cease to accrue on such Exchange Date
and (D) if less than all the shares of
Series A Preferred Stock is to be
exchanged the number of shares of the
holder to be exchanged. The form
of the Exchange Debentures may not be
amended or supplemented before the
Exchange Date without the affirmative
vote or consent of the holders of a
majority of the outstanding shares of
Series A Preferred Stock, except for
those changes which would not adversely
affect the legal rights of the holders.
iii. On and after the Exchange Date, all
dividends on the Series A Preferred
Stock so called for exchange shall cease
to accrue and, notwithstanding that any
certificate for shares of Series A
Preferred Stock is not surrendered for
cancellation, the shares represented
thereby shall no longer be deemed
outstanding and all rights of the
holders thereof as stockholders of the
Corporation shall cease and terminate,
except the right to receive the Exchange
Debentures as herein provided.
iv. At any time on or after the
Exchange Date, the holders of record of
the Series A Preferred Stock to be
exchanged shall be entitled to receive
the amount of Exchange Debentures set
forth herein upon actual delivery to the
Corporation of certificates for the
shares to be exchanged, such
certificates, if required, to be duly
endorsed in blank or accompanied by
proper instruments of assignment and
transfer duly endorsed in blank. The
person or persons entitled to receive
the Exchange Debentures issuable upon
exchange shall be treated for all
purposes as the registered holder or
holders of such Exchange Debentures.
v. The Corporation shall not be
required to honor any request to
register a transfer or exchange of the
Series A Preferred Stock for the
fifteen (15) days prior to the Exchange
Date. The Corporation will cause the
Exchange Debentures to be authenticated
on the Exchange Date.
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(g) Voting. Except as required by law and
except for any voting by the holders of the
Series A Preferred Stock as part of a
separate class or series pursuant to
paragraph (h) hereunder or any other
provision of the Corporation's Certificate of
Incorporation, no holder of Series A
Preferred Stock, as such holder, shall be
entitled to vote on any matter submitted to a
vote of stockholders. On any matters on
which the holders of the Series A Preferred
Stock shall be entitled to vote, they shall
be entitled to one vote for each share held.
(h) Other Rights. Without the written
consent of the holders of a majority of the
outstanding shares of Series A Preferred
Stock or the vote of the holders of a
majority of the outstanding shares of Series
A Preferred Stock at a meeting of the holders
of Series A Preferred Stock called for such
purpose, the Corporation shall not (i)
exchange the shares of Series A Preferred
Stock for Exchange Debentures pursuant to
paragraph (e), (ii) create, authorize or
issue any other class or series of stock
entitled to a preference prior to Series A
Preferred Stock upon any dividend or
distribution or any liquidation, distribution
of assets, dissolution or winding up of the
Corporation, or increase the authorized
amount of any such other class or series, or
(iii) amend, alter or repeal any provision of
the Corporation's Certificate of
Incorporation so as to adversely affect the
relative rights and preferences of the Series
A Preferred Stock; provided, however, that
any such amendment that changes the dividend
payable on the Series A Preferred Stock shall
require the affirmative vote of the holder of
each share of Series A Preferred Stock at a
meeting of such holders called for such
purpose or the written consent of the holder
of each share of Series A Preferred Stock.
(i) Acknowledgement. Each holder of Series
A Preferred Stock, by acceptance thereof,
acknowledges and agrees that payments of
dividends, interest, premium and principal
on, and redemption and repurchase of, such
securities by the Corporation are subject to
restrictions contained in certain credit and
financing agreements of the Corporation.
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(j) Definitions.
The following terms, when used herein,
shall have the meanings set forth below:
i. As used herein, the amount of
dividends "accrued" on any share of
Series A Preferred Stock as at any date
shall be calculated as the amount of any
unpaid dividends accumulated thereon to
and including the last preceding
Dividend Accrual Date with respect to
which dividends have not been paid,
whether or not earned or declared
(including the amount of any dividends
accumulated on any share of Series A
Preferred Stock from the preceding
Dividend Accrual Date in the event of an
optional redemption pursuant to
paragraph (d)(ii) or in the event of an
exchange pursuant to paragraph (e)).
ii. "corporation" shall mean a
corporation, partnership, business
trust, unincorporated organization,
association or joint stock company.
iii. "Junior Stock" shall mean any
series or class of the capital stock of
the Corporation now or hereafter
authorized or issued by the Corporation
ranking junior to the Series A Preferred
Stock with respect to dividends or
distributions or upon the liquidation,
distribution of assets, dissolution or
winding-up of the Corporation, including
without limitation the Class A Common
Stock and the Class B Common Stock.
iv. "person" shall mean an individual,
a corporation, partnership, trust,
organization, association, government or
any department or agency thereof, or any
other individual or entity.
B. CLASS A AND CLASS B COMMON STOCK
Except as otherwise provided herein, all
shares of Class A Common Stock and Class B
Common Stock shall be identical and shall
entitle the holders thereof to the same
rights and privileges.
(a) Dividends. Holders of Common Stock
shall be entitled to receive ratably on a per
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share basis such dividends as may be declared
by the Board of Directors, provided that if
dividends are declared which are payable in
shares of Class A Common Stock or Class B
Common Stock, dividends shall be declared
which are payable at the same rate on each
class of Common Stock and the dividends
payable in shares of Class A Common Stock
shall be payable to holders of Class A Common
Stock and the dividends payable in shares of
Class B Common Stock shall be payable to
holders of Class B Common Stock.
(b) Conversion. Each record holder of
Class A Common Stock shall be entitled to
convert any or all of such holder's Class A
Common Stock into the same number of shares
of Class B Common Stock and each record
holder of Class B Common Stock shall be
entitled to convert any or all of the shares
of such holder's Class B Common Stock into
the same number of shares of Class A Common
Stock; provided, however, that at the time of
conversion of shares of Class B Common Stock
into shares of Class A Common Stock such
holder would be permitted, pursuant to
applicable law, to hold the total number of
shares of Class A Common Stock which he would
hold after giving effect to such conversion.
Each conversion of shares of one class
of Common Stock into shares of another class
of Common Stock shall be effected by the
surrender of the certificate or certificates
representing the shares to be converted at
the principal office of the Corporation at
any time during normal business hours,
together with a written notice by the holder
of such shares stating the number of shares
that any such holder desires to convert into
the other class of Common Stock. Such
conversion shall be deemed to have been
effected as of the close of business on the
date on which such certificate or
certificates have been surrendered and such
notice has been received by the Corporation,
and at such time the rights of any such
holder with respect to the converted class of
Common Stock shall cease and the person or
persons in whose name or names the
certificate or certificates for shares of the
other class of Common Stock are to be issued
upon such conversion shall be deemed to have
become the holder or holders of record of the
shares of such other class of Common Stock
represented thereby.
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Promptly after such surrender and the
receipt by the Corporation of the written
notice from the holder hereinbefore referred
to, the Corporation shall issue and deliver
in accordance with the surrendering holder's
instructions the certificate or certificates
for the other class of Common Stock issuable
upon such conversion and a certificate
representing any shares of Common Stock which
were represented by the certificate or
certificates delivered to the Corporation in
connection with such conversion but which
were not converted. The issuance of
certificates for the other class of Common
Stock upon conversion shall be made without
charge to the holder or holders of such
shares for any issuance tax (except stock
transfer taxes) in respect thereof or other
cost incurred by the Corporation in
connection with such conversion.
(c) Transfers. The Corporation shall
not close its books against the transfer of
any share of Common Stock, or of any share of
Common Stock issued or issuable upon
conversion of shares of the other class of
Common Stock, in any manner that would
interfere with the timely conversion of such
shares of Common Stock.
(d) Subdivision and Combinations of
Shares. If the Corporation in any manner
subdivides or combines the outstanding shares
of any class of Common Stock, the outstanding
shares of the other class of Common Stock
shall be proportionately subdivided or
combined.
(e) Reservation of Shares for
Conversion. So long as any shares of any
class of Common Stock are outstanding, the
Corporation shall at all times reserve and
keep available out of its authorized but
unissued shares of Class A Common Stock and
Class B Common Stock (or any shares of Class
A Common Stock or Class B Common Stock which
are held as treasury shares), the number of
shares sufficient for issuance upon
conversion of the outstanding shares of
common stock.
(f) Distribution of Assets. In the
event of the voluntary or involuntary
liquidation, dissolution or winding up of the
Corporation, holders of Common Stock shall be
entitled to receive all of the remaining
assets of the Corporation available for
distribution to its
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stockholders after all amounts to which
the holders of Series A Preferred Stock
are entitled have been paid or set aside
in cash for payment.
(g) Voting Rights. The holders of
Class A Common Stock shall have the general
right to vote for all purposes, including the
election of directors, as provided by law.
Each holder of Class A Common Stock shall be
entitled to one vote for each share thereof
held. There shall be no cumulative voting.
Except as otherwise required by law, the
holders of Class B Common Stock shall have no
voting rights.
(h) Merger, etc. In connection with
any merger, consolidation, or
recapitalization in which holders of Class A
Common Stock generally receive, or are given
the opportunity to receive, consideration for
their shares, all holders of Class B Common
Stock shall receive or be given the
opportunity to receive, as the case may be,
the same form of consideration for their
shares in the same amount per share as is
received by holders of Class A Common Stock.
5. Incorporator. The name and mailing address
of the incorporator are Nikki Gold, 4000 Bell Atlantic
Tower, 1717 Arch Street, Philadelphia, Pennsylvania
19103-2793.
6. Bylaws. In furtherance and not in limitation
of the powers conferred by law, the board of directors of
the Corporation is authorized to adopt, amend or repeal the
bylaws of the Corporation, except as otherwise specifically
provided therein, subject to the powers of the stockholders
of the Corporation to amend or repeal any bylaws adopted by
the board of directors.
7. Elections of Directors. Elections of
directors need not be by written ballot unless and except to
the extent the bylaws of the Corporation shall so provide.
8. Right to Amend. The Corporation reserves the
right to amend or repeal any provision contained in this
Certificate as the same may from time to time be in effect
in the manner now or hereafter prescribed by law, and all
rights, preferences and privileges conferred on
stockholders, directors or others hereunder are subject to
such reservation.
9. Limitation on Liability. The directors of
the Corporation shall be entitled to the benefits of all
limitations on the liability of directors generally that are
now or hereafter
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become available under the DGCL. Without
limiting the generality of the foregoing, to the fullest
extent permitted by the DGCL, as it exists on the date
hereof or as it may hereafter be amended, no director of the
Corporation shall be personally liable to the Corporation or
its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (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
DGCL, or (iv) for any transaction from which the director
derived an improper personal benefit. Any repeal or
modification of this Section 9 or any adoption of any
provision of this Certificate of Incorporation inconsistent
with this Section 9 shall be prospective only, and shall not
affect, to the detriment of any director, any limitation on
the personal liability of a director of the Corporation
existing at the time of such repeal, modification or
adoption.
Dated: March 10, 1997
______________________________
Nikki Gold, Incorporator
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