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Exhibit 3.1(a)
PROVISIONS OF AMENDED AND RESTATED CERTIFICATE
OF INCORPORATION OF COHU, INC.
FIRST: The name of the corporation is COHU, INC.
SECOND: Its registered office in the State of Delaware is located at
No. 100 West Tenth Street, in the City of Wilmington, County of New Castle. The
name and address of its registered agent is The Corporation Trust Company, No.
100 West Tenth Street, Wilmington, Delaware, 19801.
THIRD: The nature of the business, or objects or purposes to be
transacted, promoted or carried on are:
To manufacture, sell and deal in electronic instruments and
devices.
To manufacture, purchase or otherwise acquire, invest in, own,
mortgage, pledge, sell, assign and transfer or otherwise dispose of,
trade, deal in and deal with goods, wares and merchandise and
personal property of every class and description.
To acquire, and pay for in cash, stock or bonds of this
corporation or otherwise, the good will, rights, assets and
property, and to undertake or assume the whole or any part of the
obligations or liabilities of any person, firm, association or
corporation.
To acquire, hold, use, sell, assign, lease, grant licenses in
respect of mortgage or otherwise dispose of letters patent of the
United States or any foreign country, patent rights, licenses and
privileges, inventions, improvements and processes, copyrights,
trademarks and trade names, relating to or useful in connection with
any business of this corporation.
To acquire by purchase, subscription or otherwise, and to
receive, hold, own guarantee, sell, assign, exchange, transfer,
mortgage, pledge or otherwise dispose of or deal in and with any of
the shares of the capital stock, or any voting trust certificates in
respect of the shares of capital stock, scrip, warrants, rights,
bonds, debentures, notes, trust receipts, and other securities,
obligations, choses in action and evidences of indebtedness or
interest issued or created by any corporations, joint stock
companies, syndicates, associations, firms, trusts or persons,
public or private, or by the government of the United States of
America, or by any foreign government, or by any state, territory,
province, municipality or other political subdivision or by any
governmental agency, and as owner thereof to possess and exercise
all the rights, powers and privileges of ownership, including the
right to execute consents and vote thereon, and to do any and all
acts and things necessary or advisable for the preservation,
protection, improvement and enhancement in value thereof.
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Exhibit 3.1(a)
To enter into, make and perform contracts of every kind and
description with any person, firm, association, corporation,
municipality, county, state, body politic or government or colony or
dependency thereof.
To borrow or raise moneys for any of the purposes of the
corporation and, from time to time without limit as to amount, to
draw, make, accept, endorse, execute and issue promissory notes,
drafts, bills of exchange, warrants, bonds, debentures and other
negotiable or non-negotiable instruments and evidences of
indebtedness, and to secure the payment of any thereof and of the
interest thereon by mortgage upon or pledge, conveyance or
assignment in trust of the whole or any part of the property of the
corporation, whether at the time owned or thereafter acquired, and
to sell, pledge or otherwise dispose of such bonds or other
obligations of the corporation for its corporate purposes.
To loan to any person, firm or corporation any of its surplus
funds, either with or without security.
To purchase, hold, sell and transfer the shares of its own
capital stock; provided it shall not use its funds or property for
the purchase of its own shares of capital stock when such use would
cause any impairment of its capital except as otherwise permitted by
law, and provided further that shares of its own capital stock
belonging to it shall not be voted upon directly or indirectly.
To have one or more offices, to carry on all or any of its
operations and business and without restriction or limit as to
amount, to purchase or otherwise acquire, hold, own, mortgage, sell,
convey or otherwise dispose of, real and personal property of every
class and description in any of the states, districts, territories
or colonies of the United States, and in any and all foreign
countries, subject to the laws of such state, district, territory,
colony or country.
In general, to carry on any other business in connection with
the foregoing, and to have and exercise all the powers conferred by
the laws of Delaware upon corporations formed under the General
Corporation Law of the State of Delaware, and to do any or all of
the things hereinbefore set forth to the same extent as natural
persons might or could do.
The objects and purposes specified in the foregoing clauses
shall, except where otherwise expressed, be in no way limited or
restricted by reference to, or inference from the terms of any other
clause in this certificate of incorporation, but the objects and
purposes specified in each of the foregoing clauses of this article
shall be regarded as independent objects and purposes.
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 41,000,000 shares, of which
1,000,000 shares
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Exhibit 3.1(a)
shall constitute Preferred Stock having a par value of $1.00 per share and
40,000,000 shares shall constitute Common Stock having a par value of $1.00 per
share.
1. Any of the shares of Preferred Stock may be issued from
time to time in one or more series. The Board of Directors, by
resolution or resolutions, is authorized to create or provide for
any such series, and to fix the designations, preferences and
relative, participating, optional or other special rights and
qualifications, limitations or restrictions thereof, including,
without limitation, the authority to fix or alter the dividend
rights, dividend rates, conversion rights, exchange rights, voting
rights, rights and terms of redemption (including sinking and
purchase fund provisions), the redemption price or prices, the
dissolution preferences, and the rights in respect to any
distribution of assets, of any wholly unissued series of Preferred
Stock and the number of shares constituting any such series, and the
designation thereof, or any of them and to increase or decrease the
number of shares of any series so created subsequent to the issue of
any such series but not below the number of shares of such series
then outstanding. In case the number of shares of any series shall
be so decreased, the shares constituting such decrease shall resume
the status which they had prior to the adoption of the resolution
originally fixing the number of shares of such series.
2. Subject to all of the rights of the Preferred Stock,
dividends may be paid upon the Common Stock as and when declared by
the Board of Directors out of funds legally available for payment of
dividends.
3. In the event of any liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary, and after the
holders of the Preferred Stock shall have been paid in full amounts
to which they respectively shall be entitled, or an amount
sufficient to pay the aggregate amount to which such holders shall
be entitled shall have been deposited in trust with a bank or trust
company having its principal office in the Borough of Manhattan,
City, County and State of New York, or the City of Los Angeles,
State of California, having a capital, undivided profits and surplus
aggregating at least $5,000,000 for the benefit of the holders of
the Preferred Stock, the remaining net assets of the Corporation
shall be distributed pro rata to the holders of the Common Stock.
4. The entire voting power and all voting rights, except as
otherwise required by law, or fixed by resolution or resolutions of
the Board of Directors with respect to one or more series of
Preferred Stock, shall be vested exclusively in the Common Stock.
The amount of either the authorized Preferred Stock or Common Stock,
or the amount of both such classes of stock, may be increased or
decreased by the affirmative vote of the holders of a majority of
the stock of the Corporation entitled to vote.
FIFTH: The shareholders of this corporation shall have no
pre-emptive rights.
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Exhibit 3.1(a)
SIXTH: The minimum amount of capital with which the corporation will
commence business is ONE THOUSAND DOLLARS ($1,000).
SEVENTH: The names and places of residence of the incorporators are
as follows:
NAMES RESIDENCES
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H. K. Webb Wilmington, Delaware
H. C. Broadt Wilmington, Delaware
A. D. Atwell Wilmington, Delaware
EIGHTH: The corporation is to have perpetual existence.
NINTH: The private property of the stockholders shall not be subject
to the payment of corporate debts to any extent whatever.
TENTH: In furtherance and not in limitation of the powers conferred
by statute, the board of directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
To authorize and cause to be executed mortgages and liens upon
the real and personal property of the corporation.
To set apart out of any of the funds of the corporation
available for dividends a reserve or reserves for any proper purpose
and to abolish any such reserve in the manner in which it was
created.
By resolution passed by a majority of the whole board, to
designate one or more committees, each committee to consist of two
or more of the directors of the corporation, which, to the extent
provided in the resolution or in the by-laws of the corporation,
shall have and may exercise the powers of the board of directors in
the management of the business and affairs of the corporation, and
may authorize the seal of the corporation to be affixed to all
papers which may require it. Such committee or committees shall have
such name or names as may be stated in the by-laws of the
corporation or as may be determined from time to time by resolution
adopted by the board of directors.
When and as authorized by the affirmative vote of the holders
of a majority of the stock issued and outstanding having voting
power given at a stockholders' meeting duly called for that purpose,
or when authorized by the written consent of the holders of a
majority of the voting stock issued and outstanding, to sell, lease
or exchange all of the property and assets of the corporation,
including its good will and its corporate franchises, upon such
terms and conditions and for such consideration, which may be in
whole or in part shares of stock in, and/or other securities of any
other corporation or corporations, as its board of directors shall
deem expedient and for the best interests of the corporation.
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Exhibit 3.1(a)
ELEVENTH: Meetings of stockholders may be held outside the State of
Delaware, if the by-laws so provide. The books of the corporation may be kept
(subject to any provision contained in the statutes) outside 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 by-laws of the corporation. Elections of directors
need not be by ballot unless the by-laws of the corporation shall so provide.
TWELFTH: The corporation reserves the right to amend, alter, change
or repeal any provision contained in this certificate of incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
THIRTEENTH: Every shareholder entitled to vote at any election of
directors of this company may cumulate his votes and give one candidate a number
of votes equal to the number of directors to be elected multiplied by the number
of votes to which his shares are entitled, or distribute his votes on the same
principle among as many candidates as he thinks fit. The candidates receiving
the highest number of votes up to the number of directors to be elected are
elected.
FOURTEENTH: The Board of Directors of this Corporation is divided
into three classes, Class 1, Class 2 and Class 3. The number of Directors in
each class shall be the whole number contained in the quotient arrived at by
dividing the authorized number of Directors by three, and if a fraction is also
contained in such quotient, then if such fraction is one-third, the extra
Director shall be a member of Class 3, and if the fraction is two-thirds, one of
the Directors shall be a member of Class 3 and the other shall be a member of
Class 2. Each Director shall serve for a term ending on the date of the third
annual meeting following that at which such Director is elected, and Directors
of only one class shall be elected at any annual meeting, except as hereinafter
provided. The Directors elected at the meeting of stockholders at which the
Amendment to the Certificate of Incorporation of this Corporation to include
this Article is approved shall determine which of them shall belong to Class 1,
which to Class 2, and which to Class 3 by resolution of the Board, which
resolution when adopted may not be amended or rescinded. Those so determined as
belonging to Class 1 shall serve for a term ending on the annual meeting date
next following, those so determined as belonging to Class 2 shall serve for a
term ending on the second annual meeting date next following, and those so
determined as belonging to Class 3 shall serve a full term as hereinabove
provided. The foregoing notwithstanding, each Director shall serve until a
successor shall have been duly elected and qualified unless he shall resign,
become disqualified, die or shall be removed as provided in this Certificate of
Incorporation.
No Director of the Corporation shall be removed from office as a
Director by vote or other action of stockholders or otherwise, unless the
Director to be removed has been convicted of a felony by a court of competent
jurisdiction and such conviction is no longer subject to direct appeal, or
unless the Director to be removed has been adjudged to be liable for negligence
or misconduct in the performance of his duty to the Corporation by a court of
competent jurisdiction and such adjudication is no longer subject to direct
appeal.
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Exhibit 3.1(a)
FIFTEENTH: In the event that it is proposed that this Corporation
enter into a "business combination" (as hereinafter defined) with any other
corporation and such corporation or its affiliates singly or in the aggregate
own or control directly or indirectly five (5%) percent or more of the
outstanding shares of the common stock of this Corporation (such corporation and
its affiliates being referred to herein as a "related party"), the affirmative
vote of the holders of not less than 80% of the total voting power of all
outstanding shares of stock of this Corporation shall be required for the
approval of such proposal; provided, however, that the foregoing shall not apply
to any business combination which was approved by resolution of the Board of
Directors of this Corporation prior to the acquisition of the ownership or
control of ten (10%) percent of the outstanding shares of this Corporation by
such related party, nor shall it apply to any business combination between this
Corporation and another Corporation, fifty (50%) percent or more of the voting
stock of which is owned by this Corporation, and none of which is owned or
controlled by a related party, provided that each stockholder of this
Corporation receives the same type of consideration in such transaction in
proportion to his stockholding. For the purposes hereof, an "affiliate" is any
person (including a corporation, partnership, trust, estate or individual) who
directly or indirectly, through one or more intermediaries, controls or is
controlled by or is under common control with the person specified, and
"control" means the possession directly or indirectly of the power to direct or
cause the direction of management and policies of a person, whether through the
ownership of voting securities, by contract, or otherwise.
For the purposes hereof, the term "business combination" shall mean
(a) any merger or consolidation of or with this Corporation, (b) any sale,
lease, exchange, transfer or other disposition, including without limitation a
mortgage or other security device, of all or any substantial part of the assets
of this Corporation or any subsidiary of this Corporation, (c) the acquisition
by this Corporation or subsidiary of this Corporation of any securities of a
related person, (d) the issuance of any shares of this Corporation or any
subsidiary to a related person, or (e) any agreement, contract or other
arrangement providing for any of the transactions described in this definition
of business combination.
SIXTEENTH: Action shall be taken by stockholders only at an annual
or special meeting of stockholders, and stockholders may not act by written
consent.
SEVENTEENTH: The by-laws of this Corporation may be adopted,
altered, amended or repealed at any time by affirmative vote of a majority of
the authorized number of Directors of this Corporation, and may also be altered,
amended or repealed at any annual meeting, or at any special meeting of
stockholders duly called for the purpose, by the affirmative vote of the holders
of not less than 80% of the issued and outstanding shares of the stock of this
Corporation, in any manner not prohibited by this Certificate of Incorporation
or by the Delaware Corporation Law as then in effect.
EIGHTEENTH: The provisions set forth in Articles Fourteenth,
Fifteenth, Sixteenth, and Seventeenth and in this Article Eighteenth may not be
repealed or amended in any respect unless such repeal or amendment is approved
by the affirmative vote of the holders of not less than 80% of the total voting
power of all outstanding shares of stock of this Corporation.
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