EXHIBIT 3.3
SMTC CORPORATION
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CERTIFICATE OF DESIGNATION
PURSUANT TO SECTION 151 OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
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SPECIAL VOTING STOCK
The undersigned officer of SMTC Corporation, a corporation organized and
existing under the laws of the State of Delaware (the "Company"), hereby
certifies that the following resolutions were duly adopted by the Board of
Directors of the Company pursuant to authority conferred upon the Board of
Directors by the provisions of the Amended and Restated Certificate of
Incorporation of the Company, by Section 3.1 of the By-laws of the Company and
by the resolutions of the Board of Directors set forth herein, by unanimous
written consent of the Board of Directors dated July 27, 2000.
The Board of Directors, by telephonic meeting on July 20, 2000, adopted
resolutions, among others, approving the Exchangeable Share Support Agreement,
dated as of July 27, 2000, by and among the Company, SMTC Nova Scotia Company
and SMTC Manufacturing Corporation of Canada (the "Support Agreement"); and the
Voting and Exchange Trust Agreement dated as of July 27, 2000, by and among the
Company, SMTC Manufacturing Corporation of Canada, SMTC Nova Scotia Company and
CIBC Mellon Trust Company as Trustee (the "Trust Agreement," and with the
Exchangeable Share Provisions of SMTC Manufacturing Corporation of Canada and
the Support Agreement, the "Exchangeable Documents"), which, among other things,
provides for the Special Voting Share, as defined herein.
The Board of Directors, by unanimous written consent dated July 27, 2000
adopted the following resolutions, among others, authorizing the classification
of the Special Voting Stock and the issuance of one share thereof (the "Special
Voting Share"), and fixing the relative powers, preferences, rights,
qualifications, limitations and restrictions of such share:
"RESOLVED, that the classification of one share of the Company's authorized
shares of preferred stock as the Special Voting Share, as defined below and in
the Trust Agreement, is hereby authorized and approved;
"RESOLVED, that any officer of the Company be, and each hereby is,
authorized to take any and all action that such officer of the Company may deem
necessary or desirable under applicable law, including, without limitation, the
execution of one or more Certificates of Designation under Section 151 of the
General Corporation Law of the State of Delaware, to create and issue one
Special Voting Share of the Company, to
have such rights, privileges, restrictions and conditions as are consistent with
the terms of the Exchangeable Documents, such share to be issued in
consideration of $1.00, and upon receipt by the Company of such consideration,
such Special Voting Share be issued to the Trustee, to be held and exercised by
such Trustee as contemplated therein and by the terms of the Trust Agreement;
and
"RESOLVED, that the number, powers, designations, preferences and relative,
participating, optional and other special rights, and the qualifications,
limitations and restrictions of the Special Voting Stock are to be fixed as
follows:
"I. AUTHORIZED NUMBER AND DESIGNATION. There is hereby created out of the
authorized and unissued shares of preferred stock of the Company a series of
preferred stock designated as "Special Voting Stock, par value $0.01 per share."
The number of shares constituting the Special Voting Stock shall be one (the
"Special Voting Share").
"II. DIVIDENDS. Neither the holder nor, if different, the owner of the
Special Voting Share shall be entitled to receive Company dividends in its
capacity as holder or owner thereof.
"III. VOTING RIGHTS. The holder of record of the Special Voting Share shall
be entitled to all of the voting rights, including the right to vote in person
or by proxy, of the Special Voting Share on any matters, questions, proposals or
propositions whatsoever that may properly come before the shareholders of the
Company at a Company meeting or in connection with a Company consent.
"IV. LIQUIDATION PREFERENCE. Upon any voluntary or involuntary
liquidation, dissolution or winding-up of the Company, the holder of the Special
Voting Share shall be entitled to receive out of the assets of the Company
available for distribution to the stockholders, an amount equal to $0.01 before
any distribution is made on the common stock of the Company or any other stock
ranking junior to the Special Voting Share as to distribution of assets upon
liquidation, dissolution or winding-up.
"V. RANKING. The Special Voting Share shall, with respect to rights on
liquidation, winding up and dissolution, rank (i) senior to all classes of
common stock of the Company and (ii) junior to any other class or series of
capital stock of the Company.
"VI. REDEMPTION. The Special Voting Share shall not be subject to
redemption, except that at such time as no exchangeable shares ("Exchangeable
Shares") of SMTC Manufacturing Corporation of Canada (other than Exchangeable
Shares owned by the Company and its affiliates) shall be outstanding, and no
shares of stock, debt, options or other agreements which could give rise to the
issuance of any Exchangeable Shares to any person (other than the Company and
its affiliates) shall exist, the Special Voting Share shall automatically be
redeemed and canceled, for an amount equal to $0.01 due and payable upon such
redemption. Upon any such redemption or other purchase or
acquisition of the Special Voting Share by the Company, the Special Voting Share
shall be deemed retired and canceled and may not be reissued.
"VII. OTHER PROVISIONS. Pursuant to the terms of that certain Trust
Agreement, as such agreement may be amended, modified or supplemented from time
to time:
(i) During the term of the Trust Agreement, the Company may not, without
the consent of the holders of the Exchangeable Shares (as defined in the Trust
Agreement), issue any shares of its Special Voting Stock in addition to the
Special Voting Share;
(ii) the Special Voting Share entitles the holder of record to a number of
votes at meetings of holders of Company Common Stock equal to the number of
Exchangeable Shares (as defined by the Trust Agreement) outstanding from time to
time (other than the Exchangeable Shares held by the Company and its
affiliates);
(iii) the Trustee (as defined by the Trust Agreement) shall exercise the
votes held by the Special Voting Share pursuant to and in accordance with the
Trust Agreement;
(iv) the voting rights attached to the Special Voting Share shall
terminate pursuant to and in accordance with the Trust Agreement; and
(v) the powers, designations, preferences and relative, participating,
optional and other special rights, and the qualifications, limitations and
restrictions of such Special Voting Share shall be as otherwise provided in the
Trust Agreement."
IN WITNESS WHEREOF, the Company has caused this Certificate of Designation
to be been signed by Paul Walker, its President, and attested by Richard Smith,
its Assistant Secretary, whereby said Assistant Secretary affirms, under
penalties of perjury, that this Certificate of Designation is the act and deed
of the Company and that the facts stated herein are true, this 27th day of July,
2000.
SMTC CORPORATION
By: /s/ Paul Walker
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Name: Paul Walker
Title: President
Attest:
By: /s/ Richard Smith
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Name: Richard Smith
Title: Assistant Secretary