EXHIBIT 3.1
SMTC Corporation
Amended and Restated
Certificate of Incorporation
Pursuant to Section 241 of the General Corporation Law of the State of
Delaware, SMTC Corporation has adopted this Second Amended and Restated
Certificate of Incorporation restating and amending its Certificate of
Incorporation (originally filed on July 31, 1998). This Second Amended and
Restated Certificate of Incorporation, which restates and further amends the
provisions of this Corporation's First Amended and Restated Certificate of
Incorporation, was duly proposed by the board of directors and adopted by
written consent of the requisite number of Stockholders of the Corporation, in
accordance with the applicable provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware.
ARTICLE I
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The name of this corporation is "SMTC Corporation" (hereinafter referred to
as the "Corporation").
ARTICLE II
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The registered office of this corporation in the State of Delaware is
located at 1013 Centre Road, in the City of Wilmington, County of New Castle.
The name of its registered agent at such address is Corporation Service Company.
ARTICLE III
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The purpose of this 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 (the "DGCL").
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ARTICLE IV
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The total number of shares of all classes of stock which the Corporation
shall have authority to issue is 65,000,000 shares, consisting of (i) 60,000,000
shares of Common Stock, $.01 par value per share ("Common Stock"), and (ii)
5,000,000 shares of Preferred Stock, $.01 par value per share ("Preferred
Stock").
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The following is a statement of the designations and the powers, privileges
and rights, and the qualifications, limitations or restrictions thereof in
respect of each class of capital stock of the Corporation.
1. Common Stock.
A. General. Subject to the powers, preferences and rights of any Preferred
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Stock, including any series thereof, having any preference or priority
over, or rights superior to, the Common Stock and except as otherwise
provided by law and this Article, the holders of the Common Stock shall
have and possess all powers and voting and other rights pertaining to
the stock of the corporation and each share of Common Stock shall be
entitled to one vote. Except as otherwise provided by the DGCL or this
Amended and Restated Certificate of Incorporation, the holders of
record of Common Stock shall share ratably in all dividends payable in
cash, stock or otherwise and other distributions, whether in respect of
liquidation or dissolution (voluntary or involuntary) or otherwise. The
holders of the Common Stock shall have no preemptive rights to
subscribe for any shares of any class of stock of this Corporation
whether now or hereafter authorized.
B. Voting. The holders of the Common Stock are entitled to one vote for
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each share of Common Stock held at all meetings of stockholders. There
shall be no cumulative voting.
C. Number. The number of authorized shares of Common Stock may be
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increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority of
the stock of the Corporation entitled to vote, irrespective of the
provisions of Section 242(b)(2) of the DGCL.
D. Dividends. Dividends may be declared and paid on the Common Stock from
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funds lawfully available therefor as and when determined by the Board
of Directors and subject to any preferential dividend rights of any
then outstanding Preferred Stock.
E. Liquidation. Upon the dissolution or liquidation of the Corporation,
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whether voluntary or involuntary, holders of Common Stock will be
entitled to receive all assets of the Corporation available for
distribution to its stockholders, subject to any preferential rights of
any then outstanding Preferred Stock.
2. Preferred Stock.
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Preferred Stock may be issued from time to time in one or more series, each
of such series to have such terms as stated or expressed herein and in the
resolution or resolutions providing for the issue of such series adopted by the
Board of Directors of the Corporation as hereinafter provided. Any shares of
Preferred Stock which may be redeemed, purchased or acquired by the Corporation
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may be reissued except as otherwise provided by law or this Amended and Restated
Certificate of Incorporation. Different series of Preferred Stock shall not be
construed to constitute different classes of shares for the purposes of voting
by classes unless expressly provided in the resolution or resolutions providing
for the issue of such series adopted by the Board of Directors as hereinafter
provided.
Authority is hereby expressly granted to the Board of Directors from time
to time to issue the Preferred Stock in one or more series, and in connection
with the creation of any such series, by resolution or resolutions providing for
the issue of the shares thereof, to determine and fix such voting powers, full
or limited, or no voting powers, and such designations, preferences and relative
participating, optional or other special rights, and qualifications, limitations
or restrictions thereof, including without limitation thereof, dividend rights,
conversion rights, redemption privileges and liquidation preferences, as shall
be stated and expressed in such resolutions, all to the full extent now or
hereafter permitted by the DGCL. Without limiting the generality of the
foregoing, the resolutions providing for issuance of any series of Preferred
Stock may provide that such series shall be superior or rank equally or be
junior to the Preferred Stock of any other series to the extent permitted by law
and this Amended and Restated Certificate of Incorporation. Except as otherwise
provided in this Amended and Restated Certificate of Incorporation, no vote of
the holders of the Preferred Stock or Common Stock shall be a prerequisite to
the designation or issuance of any shares of any series of the Preferred Stock
authorized by and complying with the conditions of this Amended and Restated
Certificate of Incorporation, the right to have such vote being expressly waived
by all present and future holders of the capital stock of the Corporation.
ARTICLE V
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The Corporation shall have a perpetual existence.
ARTICLE VI
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In furtherance of and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to adopt, amend or repeal the By-
Laws of this Corporation, subject to the right of the stockholders entitled to
vote with respect thereto to alter and repeal the By-Laws adopted or amended by
the Board of Directors; provided, however, that, notwithstanding the fact that a
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lesser percentage may be specified by law, the By-Laws shall not be altered,
amended or repealed by the stockholders of the Corporation except by the
affirmative vote of holders of not less than seventy-five percent (75%) of the
then outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, unless such alteration, amendment or
repeal has been approved by a majority of those directors who are not affiliated
or associated with any person or entity holding 10% or more of the voting power
of the Corporation's outstanding capital stock. Notwithstanding the foregoing,
neither the Bain Capital Funds, Celerity Partners nor Kilmer Electronics Group
shall be deemed at any time to be an entity holding 10% or more of the voting
power of the Corporation's outstanding capital stock without regard to the
actual percentage of the voting power the Corporation's outstanding capital
stock held from time to time by any of them. The
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Bain Capital Funds shall mean Bain Capital Fund VI, L.P., BCIP Associates II,
BCIP Trust Associates II, BCIP Associates II-B, BCIP Trust Associates II-C and
any other entity which receives investment advice from an advisor or subadvisor
to any of those entities or from an affiliate of such advisor or subadvisor.
Celerity Partners shall mean Celerity EMSIcon, LLC and any entity which receives
investment advice from any of its advisor(s) or subadvisor(s). Kilmer
Electronics Group shall mean Kilmer Electronics Group Limited and any entity
which controls it, which is controlled by it or is under common control with it.
ARTICLE VII
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Except to the extent that the DGCL prohibits the elimination or limitation
of liability of directors for breaches of fiduciary duty, no director of the
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for any breach of fiduciary duty as a director,
notwithstanding any provision of law imposing such liability. No amendment to or
repeal of this provision shall apply to or have any effect on the liability or
alleged liability of any director of the Corporation for or with respect to any
acts or omissions of such director occurring prior to such amendment.
ARTICLE VIII
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1. Indemnification. The Corporation shall, to the maximum extent permitted
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under the DGCL and except as set forth below, indemnify, hold harmless and, upon
request, advance expenses to each person (and the heirs, executors or
administrators of such person) who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that he or she is or was, or has agreed to become, a director or officer of the
Corporation, or is or was serving, or has agreed to serve, at the request of the
Corporation, as a director, officer or trustee of, or in a similar capacity
with, another corporation, partnership, joint venture, trust or other
enterprise, including any employee benefit plan (any such person being referred
to hereafter as an "Indemnitee"), or by reason of any action alleged to have
been taken or omitted in such capacity, against all expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her or on his or her behalf in connection with
such action, suit or proceeding and any appeal therefrom, if he or she acted in
good faith and in a manner he or she reasonably believed to be in, or not
opposed to, the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. Notwithstanding anything to the contrary in this Article,
the Corporation shall not indemnify an Indemnitee seeking indemnification in
connection with any action, suit, proceeding, claim or counterclaim, or part
thereof, initiated by the Indemnitee unless the initiation thereof was approved
by the Board of Directors of the Corporation.
2. Advance of Expenses. Notwithstanding any other provisions, this Amended and
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Restated Certificate of Incorporation, the By-Laws of the Corporation, or any
agreement, vote of stockholder or disinterested directors, or arrangement to the
contrary, the Corporation shall advance payment of
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expenses incurred by an Indemnitee in advance of the final disposition of any
matter only upon receipt of an undertaking by or on behalf of the Indemnitee to
repay all amounts so advanced in the event that it shall ultimately be
determined that the Indemnitee is not entitled to be indemnified by the
Corporation as authorized in this Article. Such undertaking may be accepted
without reference to the financial ability of the Indemnitee to make such
repayment.
3. Subsequent Amendment. No amendment, termination or repeal of this Article or
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of the relevant provisions of the DGCL or any other applicable laws shall affect
or diminish in any way the rights of any Indemnitee to indemnification under the
provisions hereof with respect to any action, suit, proceeding or investigation
arising out of or relating to any actions, transactions or facts occurring prior
to the final adoption of such amendment, termination or repeal.
4. Other Rights. The Corporation may, to the extent authorized from time to
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time by its Board of Directors, grant indemnification rights to other employees
or agents of the Corporation or other persons serving the Corporation and such
rights may be equivalent to, or greater or less than, those set forth in this
Article.
5. Reliance. Persons who after the date of the adoption of this provision
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become or remain directors or officers of the Corporation or who, while a
director or officer of the Corporation, become or remain a director, officer,
employee or agent of a subsidiary, shall be conclusively presumed to have relied
on the rights to indemnity, advance of expenses and other rights contained in
this Article in entering into or continuing such service. The rights to
indemnification and to the advance of expenses conferred in this Article shall
apply to claims made against an indemnitee arising out of acts or omissions
which occurred or occur both prior and subsequent to the adoption hereof.
6. Merger or Consolidation. If the Corporation is merged into or consolidated
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with another corporation and the Corporation is not the surviving corporation,
the surviving corporation shall assume the obligations of the Corporation under
this Article with respect to any action, suit, proceeding or investigation
arising out of or relating to any actions, transactions or facts occurring prior
to the date of such merger or consolidation.
7. Insurance. The Corporation shall have power to purchase and maintain
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insurance on behalf of any person who is or was, or has agreed to become, a
director, officer, employee or agent of the Corporation, or is or was serving,
or has agreed to serve, at the request of the Corporation as a director,
officer, employee, agent or trustee of another corporation, partnership, joint
venture, trust or other enterprise, including any employee benefit plan, against
all expenses (including attorney's fees) judgments, fines or amounts paid in
settlement incurred by such person in any such capacity or arising out of his or
her status as such, whether or not the Corporation would have the power to
indemnify him or her against such expenses under the DGCL.
8. Savings Clause. If this Article or any portion hereof shall be invalidated
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on any ground by any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify each Indemnitee as to any expenses, including attorneys'
fees, judgments, fines and amounts paid in
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settlement in connection with any action, suit, proceeding or investigation,
whether civil, criminal or administrative, including an action by or in the
right of the Corporation, to the fullest extent permitted by any applicable
portion of this Article that shall not have been invalidated and to the fullest
extent permitted by applicable law.
ARTICLE IX
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The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Amended and Restated Certificate of Incorporation,
in the manner now or hereafter prescribed by statute and this Amended and
Restated Certificate of Incorporation, and all rights conferred upon
stockholders herein are granted subject to this reservation.
ARTICLE X
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This Article is inserted for the management of the business and for the
conduct of the affairs of the Corporation.
1. Number of Directors. The number of directors of the Corporation shall
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not be less than three. The exact number of directors within the
limitations specified in the preceding sentence shall be fixed from
time to time by, or in the manner provided in, the By-Laws of the
Corporation.
2. Classes of Directors. The Board of Directors shall be and is divided
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into three classes: Class I, Class II and Class III. No one class
shall have more than one director more than any other class. If a
fraction is contained in the quotient arrived at by dividing the
designated number of directors by three, then, if such fraction is
one-third, the extra director shall be a member of Class III, and if
such fraction is two-thirds, one of the extra directors shall be a
member of Class III and one of the extra directors shall be a member
of Class II, unless otherwise provided from time to time by resolution
adopted by the Board of Directors.
3. Election of Directors. Elections of directors need not be by written
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ballot except as and to the extent provided in the By-Laws of the
Corporation.
4. Terms of Office. Except as provided in Section 6 of this Article X,
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each director shall serve for a term ending on the date of the third
annual meeting following the annual meeting at which such director was
elected; provided, however, that each initial director in Class I
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shall serve for a term ending on the date of the annual meeting in
2001; each initial director in Class II shall serve for a term ending
on the date of the annual meeting in 2002; and each initial director
in Class III shall serve for a term ending on the date of the annual
meeting in 2003; and provided, further, that the term of each director
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shall be subject to the election and qualification of his or her
successor and to his or her earlier death, resignation or removal.
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5. Allocation of Directors Among Classes in the Event of Increases or
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Decreases in the Number of Directors. In the event of any increase or
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decrease in the authorized number of directors, (i) each director then
serving as such shall nevertheless continue as a director of the class
of which he or she is a member and (ii) the newly created or
eliminated directorships resulting from such increase or decrease
shall be apportioned by the Board of Directors among the three classes
of directors so as to ensure that no one class has more than one
director more than any other class. To the extent possible, consistent
with the foregoing rule, any newly created directorships shall be
added to those classes whose terms of office are to expire at the
latest dates following such allocation, and any newly eliminated
directorships shall be subtracted from those classes whose terms of
offices are to expire at the earliest dates following such allocation,
unless otherwise provided from time to time by resolution adopted by
the Board of Directors.
6. Removal. The directors of the Corporation may not be removed without
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cause and may be removed for cause only by the affirmative vote of the
holders of at least seventy-five percent (75%) of the shares of the
capital stock of the Corporation issued and outstanding and entitled
to vote generally in the election of directors cast at a meeting of
the stockholders called for that purpose, notwithstanding the fact
that a lesser percentage may be specified by law.
7. Vacancies. Any vacancy in the Board of Directors, however occurring,
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including a vacancy resulting from an enlargement of the Board, shall
be filled only by vote of a majority of the directors then in office,
although less than a quorum, or by a sole remaining director. A
director elected to fill a vacancy shall be elected for the unexpired
term of his or her predecessor in office, and a director chosen to
fill a position resulting from an increase in the number of directors
shall hold office until the next election of the class for which such
director shall have been chosen, subject to the election and
qualification of his or her successor and to his or her earlier death,
resignation or removal.
8. Stockholder Nominations and Introduction of Business, Etc. Advance
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notice of stockholder nominations for election of directors and other
business to be brought by stockholders before either an annual or
special meeting of stockholders shall be given in the manner provided
by the By-Laws of this Corporation.
9. Amendment to Article. Notwithstanding any other provisions of law,
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this Amended and Restated Certificate of Incorporation or the By-Laws,
each as amended, and notwithstanding the fact that a lesser percentage
may be specified by law, this Amended and Restated Certificate of
Incorporation or the By-Laws of the Corporation, the affirmative vote
of least seventy-five percent (75%) of the then outstanding shares of
capital stock of the Corporation entitled to vote generally in the
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election of directors shall be required to amend or repeal, or to
adopt any provisions inconsistent with the purpose or intent of, this
Article X, unless such amendment, repeal or adoption has been approved
by a majority of those directors who are not affiliated or associated
with any person or entity holding 10% or more of the voting power of
the Corporation's outstanding capital stock. Notwithstanding the
foregoing, neither the Bain Capital Funds, Celerity Partners nor
Kilmer Electronics Group shall be deemed at any time to be an entity
holding 10% or more of the voting power of the Corporation's
outstanding capital stock without regard to the actual percentage of
the voting power the Corporation's outstanding capital stock held from
time to time by any of them.
ARTICLE XI
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1. Dividends. The Board of Directors shall have authority from time to time to
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set apart out of any assets of the Corporation otherwise available for dividends
a reserve or reserves as working capital or for any other purpose or purposes,
and to abolish or add to any such reserve or reserves from time to time as said
board may deem to be in the interest of the Corporation; and said Board shall
likewise have power to determine in its discretion, except as herein otherwise
provided, what part of the assets of the Corporation available for dividends in
excess of such reserve or reserves shall be declared in dividends and paid to
the stockholders of the Corporation.
2. Issuance of Stock. The shares of all classes of stock of the Corporation may
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be issued by the Corporation from time to time for such consideration as from
time to time may be fixed by the Board of Directors of the Corporation, provided
that shares of stock having a par value shall not be issued for a consideration
less than such par value, as determined by the Board. At any time, or from time
to time, the Corporation may grant rights or options to purchase from the
Corporation any shares of its stock of any class or classes to run for such
period of time, for such consideration, upon such terms and conditions, and in
such form as the Board of Directors may determine. The Board of Directors shall
have authority, as provided by law, to determine that only a part of the
consideration which shall be received by the Corporation for the shares of its
stock which it shall issue from time to time, shall be capital; provided,
however, that, if all the shares issued shall be shares having a par value, the
amount of the part of such consideration so determined to be capital shall be
equal to the aggregate par value of such shares. The excess, if any, at any
time, of the total net assets of the Corporation over the amount so determined
to be capital, as aforesaid, shall be surplus. All classes of stock of the
Corporation shall be and remain at all times nonassessable.
The Board of Directors is hereby expressly authorized, in its discretion,
in connection with the issuance of any obligations or stock of the Corporation
(but without intending hereby to limit its general power so to do in other
cases), to grant rights or options to purchase stock of the Corporation of any
class upon such terms and during such period as the Board of Directors shall
determine, and to cause such rights to be evidenced by such warrants or other
instruments as it may deem advisable.
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3. Inspection of Books and Records. The Board of Directors shall have power
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from time to time to determine to what extent and at what times and places and
under what conditions and regulations the accounts and books of the Corporation,
or any of them, shall be open to the inspection of the stockholders; and no
stockholder shall have any right to inspect any account or book or document of
the Corporation, except as conferred by the laws of the State of Delaware,
unless and until authorized so to do by resolution of the Board of Directors or
of the stockholders of the Corporation.
4. Location of Meetings, Books and Records. Except as otherwise provided in the
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By-laws, the stockholders of the Corporation and the Board of Directors may hold
their meetings and have an office or offices outside of the State of Delaware
and, subject to the provisions of the laws of said State, may keep the books of
the Corporation outside of said State at such places as may, from time to time,
be designated by the Board of Directors or by the By-laws of this Corporation.
ARTICLE XII
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At any time during which a class of capital stock of this Corporation is
registered under Section 12 of the Securities Exchange Act of 1934 or any
similar successor statute, stockholders of the Corporation may not take any
action by written consent in lieu of a meeting. Notwithstanding any other
provisions of law, this Amended and Restated Certificate of Incorporation or the
By-Laws, each as amended, and notwithstanding the fact that a lesser percentage
may be specified by law, this Amended and Restated Certificate of Incorporation
or the By-Laws of the Corporation, the affirmative vote of seventy-five percent
(75%) of the then outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors shall be required to
amend or repeal, or to adopt any provisions inconsistent with the purpose or
intent of, this Article XII, unless such amendment, repeal or adoption has been
approved by a majority of those directors who are not affiliated or associated
with any person or entity holding 10% or more of the voting power of the
Corporation's outstanding capital stock. Notwithstanding the foregoing, neither
the Bain Capital Funds, Celerity Partners nor Kilmer Electronics Group shall be
deemed at any time to be an entity holding 10% or more of the voting power of
the Corporation's outstanding capital stock without regard to the actual
percentage of the voting power the Corporation's outstanding capital stock held
from time to time by any of them.
ARTICLE XIII
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Special meetings of stockholders may be called at any time by only the
Chairman of the Board of Directors, the Chief Executive Officer (or if there is
no Chief Executive Officer, the President), or by the Board of Directors of the
Corporation pursuant to a resolution adopted by the affirmative vote of a
majority of the total number of directors then in office. Any business
transacted at any special meeting of stockholders shall be limited to matters
relating to the purpose or purposes stated in the notice of meeting.
Notwithstanding any other provisions of law, this Amended and Restated
Certificate of Incorporation or the By-Laws, each as amended, and
notwithstanding the fact that a lesser percentage may be specified by law, this
Amended and Restated Certificate of
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Incorporation or the By-Laws of the Corporation, the affirmative vote of
seventy-five percent (75%) of the then outstanding shares of capital stock of
the Corporation entitled to vote generally in the election of directors shall be
required to amend or repeal, or to adopt any provisions inconsistent with the
purpose or intent of, this Article XIII, unless such amendment, repeal or
adoption has been approved by a majority of those directors who are not
affiliated or associated with any person or entity holding 10% or more of the
voting power of the Corporation's outstanding capital stock. Notwithstanding the
foregoing, neither the Bain Capital Funds, Celerity Partners nor Kilmer
Electronics Group shall be deemed at any time to be an entity holding 10% or
more of the voting power of the Corporation's outstanding capital stock without
regard to the actual percentage of the voting power the Corporation's
outstanding capital stock held from time to time by any of them.
ARTICLE XIV
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The Board of Directors of this Corporation, when evaluating any offer of
another party to make a tender or exchange offer for any equity security of the
Corporation, shall, in connection with the exercise of its judgment in
determining what is in the best interests of the Corporation as a whole, be
authorized to give due consideration to any such factors as the Board of
Directors determines to be relevant, including without limitation: (i) the
interests of the stockholders of the Corporation; (ii) whether the proposed
transaction might violate federal or state laws; (iii) not only the
consideration being offered in the proposed transaction, in relation of the then
current market price for the outstanding capital stock of the Corporation, but
also to the market price for the capital stock of the Corporation over a period
of years, the estimated price that might be achieved in a negotiated sale of the
Corporation as a whole or in part or through orderly liquidation, the premiums
over market price for the securities of other corporations in similar
transactions, current political, economic and other factors bearing on
securities prices and the Corporation's financial condition and future
prospects; and (iv) the social, legal and economic effects upon employees,
suppliers, customers and others having similar relationships with the
Corporation, and the communities in which the Corporation conducts its business.
In connection with any such evaluation, the Board of Directors is
authorized to conduct such investigations and to engage in such legal
proceedings as the Board of Directors may determine.
ARTICLE XV
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The Corporation expressly elects to be governed by Section 203 of the DGCL.
Notwithstanding the terms of Section 203 of the DGCL and without regard to the
percentage of voting stock of the Corporation owned at any time by the Bain
Capital Funds, Celerity Partners, Kilmer Electronics Group Limited, or a
stockholder affiliated or associated with any of the aforenamed, the Bain
Capital Funds, Celerity Partners, Kilmer Electronics Group Limited, or any
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stockholder affiliated or associated with any of the aforenamed shall not be
deemed at any time to be an "interested stockholder" as such term is defined in
Section 203(c)(5) of the DGCL.
* * * * * *
IN WITNESS HEREOF, said SMTC Corporation has caused this Amended and
Restated Certificate to be executed by Paul Walker, its President, this 27th day
of July, 2000.
SMTC CORPORATION
/s/ Paul Walker
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Name: Paul Walker
Title: President
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