1
EXHIBIT 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
GENERAL SEMICONDUCTOR, INC.
The undersigned, Stephen B. Paige, certifies that he is the
Senior Vice President, General Counsel and Secretary of General Semiconductor,
Inc., a corporation organized and existing under the laws of the State of
Delaware (the "Corporation"), and does hereby further certify as follows:
(1) The name of the corporation is General Semiconductor, Inc.
The Corporation was originally incorporated under the name FLGI Holding Corp.
(2) The original Certificate of Incorporation of the
Corporation was filed with the Secretary of State of the State of Delaware on
June 28, 1990.
(3) A Certificate of Amendment was filed with the Secretary of
State of the State of Delaware on August 9, 1990, a Restated Certificate of
Incorporation was filed with the Secretary of State of the State of Delaware on
November 13,1990, a Certificate of Amendment was filed with the Secretary of
State of the State of Delaware on February 26, 1992, an Amended and Restated
Certificate of Incorporation was filed with the Secretary of State of the State
of Delaware on March 30, 1992, an Amended and Restated Certificate of
Incorporation was filed with the Secretary of State of the State of Delaware on
May 4, 1992, a Certificate of Correction was filed with the Secretary of State
of the State of Delaware on June 16, 1992, an Amended and Restated Certificate
of Incorporation was filed with the Secretary of State of the State of Delaware
on June 2, 1993, and an Amended and Restated Certificate of Incorporation was
filed with the Secretary of State of the State of Delaware on July 21, 1997.
(4) This Restated Certificate of Incorporation restates and
integrates the provisions of the original Certificate of Incorporation of the
Corporation as heretofore amended or supplemented and has been duly adopted in
accordance with Section 245 of the General Corporation Law of Delaware (the
"GCL").
(5) Pursuant to Section 103(d) of the GCL, this Restated
Certificate of Incorporation shall become effective immediately upon filing with
the Secretary of State of the State of Delaware (the "Effective Date").
(6) The text of the Restated Certificate of Incorporation of
the Corporation is again restated to read in its entirety as follows:
FIRST: The name of the Corporation is General
Semiconductor, Inc.
SECOND: 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, Delaware 19801. The name of its registered agent at
such address is The Corporation Trust Company.
2
THIRD: The purpose of the Corporation is to engage in
any lawful act or activity for which corporations may be
organized under the GCL as set forth in Title 8 of the
Delaware Code.
FOURTH: The aggregate number of shares of all classes
of capital stock which the Corporation shall have authority to
issue is (i) 400,000,000 shares of common stock, par value
$.01 per share (the "New Common Stock"), and (ii) 20,000,000
shares of preferred stock, par value $.01 per share (the
"Preferred Stock").
At 5:15 p.m., on July 25, 1997 (the "Effective
Time"), each four shares of the common stock, par value $.01
per share, issued and outstanding immediately prior to the
Effective Time (the "Old Common Stock"), shall automatically,
without further action on the part of the Corporation or any
holder of such Old Common Stock, be reclassified as and
converted into one fully paid and nonassessable share of New
Common Stock as herein authorized (the "Reverse Stock Split"),
subject to the treatment of fractional share interests as
described below. Such reclassification and conversion of Old
Common Stock into New Common Stock shall not change the par
value per share of the shares reclassified and converted,
which par value shall remain $.01 per share. The
reclassification of the Old Common Stock into New Common
Stock, will be deemed to occur at the Effective Time,
regardless of when the certificates representing such Old
Common Stock are physically surrendered to the Corporation.
After the Effective Time, certificates representing the Old
Common Stock will, until such shares are surrendered to the
Corporation, represent the number of shares of New Common
Stock into which such Old Common Stock shall have been
converted pursuant hereto. The Corporation is authorized to
use a book-entry transfer facility to reflect ownership of the
New Common Stock; however, upon request and in accordance with
the procedures of any such book-entry transfer facility and
Delaware law, stockholders shall be entitled to receive a
certificate representing shares of New Common Stock.
Fractional shares of New Common Stock shall not be
issued in connection with the Reverse Stock Split. Fractional
shares of New Common Stock shall be aggregated into whole
shares of New Common Stock and shall be sold in the open
market at prevailing prices on behalf of holders who otherwise
would be entitled to receive fractional share interests of New
Common Stock, such holders shall then receive a cash payment
equal to the amount of their pro rata share of the total sale
proceeds.
Following the Effective Time, the capital of the
Corporation shall be reduced to reflect the change in the
outstanding shares of the Corporation.
Shares of the Preferred Stock of the Corporation may
be issued from time to time in one or more classes or series,
each of which class or series shall have such distinctive
designation or title as shall be fixed by the Board of
Directors of the Corporation (the "Board of Directors") prior
to the issuance of any shares thereof. Each such class or
series of Preferred Stock shall have such voting powers, full
or limited, or no voting powers, and such preferences and
relative, participating, optional or other special rights and
such qualifications, limitations or restrictions thereof, as
shall be stated in such resolution or resolutions providing
for the issue of such class or series of Preferred Stock as
may be adopted from time to time by the Board of Directors
prior to the issuance of any shares thereof pursuant to the
authority hereby expressly vested in it, all in accordance
with the laws of the State of Delaware.
FIFTH: The business and affairs of the Corporation
shall be managed under the direction of the Board of
Directors. The number of directors of the Corporation shall be
from time to time fixed by, or in the manner provided in, the
By-laws of the
2
3
Corporation.
SIXTH: Subject to the rights, if any, of the holders
of shares of Preferred Stock then outstanding, any or all of
the directors of the Corporation may be removed from office,
with or without cause, at any time by the affirmative vote of
the holders of a majority of the outstanding shares of the
Corporation then entitled to vote generally in the election of
directors, considered for purposes of this Article SIXTH as
one class.
SEVENTH: 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,
provided, however, that the foregoing shall not eliminate or
limit the liability of a director (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 GCL, or (iv) for any
transaction from which the director derived an improper
personal benefit. If the GCL is hereafter amended to permit
further elimination or limitation of the personal liability of
directors, then the liability of a Director of the Corporation
shall be eliminated or limited to the fullest extent permitted
by the GCL as so amended. Any repeal or modification of this
Article SEVENTH by the stockholders of the Corporation or
otherwise shall not 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 or repeal.
EIGHTH: The Corporation shall, to the fullest extent
permitted by Delaware law, indemnify any person (the
"Indemnitee") who is or was involved in any manner (including,
without limitation, as a party or a witness) in any
threatened, pending or completed investigation, claim, action,
suit or proceeding, whether civil, criminal, administrative or
investigative (including, without limitation, any action, suit
or proceeding brought by or in the right of the Corporation to
procure judgement in its favor) (a Proceeding") by reason of
the fact that the Indemnitee is or was a director or officer
of the Corporation, or is or was serving another entity in
such capacity at the request of the Corporation, against all
expenses and liabilities actually and reasonably incurred by
the Indenmitce in connection with the defense or settlement of
such Proceeding (including attorneys' fees).
NINTH: The Corporation reserves the right to rescind,
amend, alter, change, or repeal any provision contained in
this Restated 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.
TENTH: In furtherance and not in limitation of the
powers conferred by statute, the Board of Directors is
expressly authorized to adopt, repeal, alter, amend or rescind
the By-laws of the Corporation. In addition, the By-laws of
the Corporation may be adopted, repealed, altered, amended or
rescinded by the affirmative vote of a majority of the
outstanding stock of the Corporation entitled to vote thereon.
ELEVENTH: Whenever a compromise or arrangement is
proposed between this Corporation and its creditors or any
class of them and/or between this Corporation and its
stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the
application in a summary way of this Corporation or of any
creditor or stockholder thereof or on the application of any
receiver or receivers appointed for this Corporation under the
provisions of Section 291 of Title 8 of the Delaware Code or
on the application of trustees in dissolution or of any
receiver or receivers appointed for this Corporation under the
provisions of Section 279 of Title 8 of the Delaware Code
order a
3
4
meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as
the case may be, to be summoned in such manner as the said
court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this Corporation as a
consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall,
if sanctioned by the court to which said application has been
made, be binding on all the creditors or class of creditors,
and/or on all of the stockholders or class of stockholders, of
this Corporation, as the case may be, and also on this
Corporation
TWELFTH: Elections of directors need not be by
written ballot unless the By-laws of the Corporation shall
otherwise provide.
IN WITNESS WHEREOF, General Semiconductor, Inc. has
caused this Restated Certificate of Incorporation to be signed
by Stephen B. Paige, its Senior Vice President, General
Counsel and Secretary, this 10th day of March, 1999.
GENERAL SEMICONDUCTOR, INC.
By: /s/ Stephen B. Paige
----------------------------------------
Stephen B. Paige Senior Vice President,
General Counsel and Secretary
4
5
GENERAL SEMICONDUCTOR, INC.
CERTIFICATE OF DESIGNATION, PREFERENCES
AND RIGHTS OF SERIES A JUNIOR PARTICIPATING
PREFERRED STOCK
(Pursuant to Section 151
of the General Corporation Law of the State of Delaware)
I, Stephen B. Paige, Senior Vice President, General Counsel
and Secretary of General Semiconductor, Inc., a corporation organized and
existing under the General Corporation Law of the State of Delaware (the
"Corporation"), in accordance with the provisions of Section 103 thereof, do
hereby certify:
That pursuant to the authority conferred upon the Board of
Directors by the Corporation's Certificate of Incorporation (the "Certificate of
Incorporation"), the Board of Directors on January 6, 1997, adopted the
following resolution creating a series of 400,000 shares of Preferred Stock
designated as Series A Junior Participating Preferred Stock:
WHEREAS, the Certificate of Incorporation provides that the
Corporation is authorized to issue 20,000,000 shares of preferred stock, none of
which are outstanding, now therefore it is.
RESOLVED, that pursuant to the authority vested in the Board
of Directors of the Corporation by Article FOURTH of the Certificate of
Incorporation, a series of Preferred Stock of the Corporation be, and it hereby
is, created out of the authorized but unissued shares of the capital stock of
the Corporation, such series to be designated Series A Junior Participating
Preferred Stock (the "Participating Preferred Stock"), to consist of four
hundred thousand (400,000) shares, par value $.01 per share, of which the
preferences and relative and other rights, and the qualifications, limitations
or restrictions thereof, shall be as follows:
1. Future Increase or Decrease. Subject of paragraph
4(e) of this resolution, the number of shares of said
series may at any time or from time to time be
increased or decreased by the Board of Directors
notwithstanding that shares of such series may be
outstanding at such time of increase or decrease.
2. Dividend Rate.
(a) The holders of shares of Participating Preferred
Stock shall be entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for the purpose, quarterly dividends
payable in cash on the first day of each November, February, May and August in
each year (each such date being referred to herein as a "Quarterly Dividend
Payment Date"), commencing on the first Quarterly Dividend Payment Date after
the first issuance of a share or fraction of a share of Participating Preferred
Stock, in an amount per share (rounded to the nearest cent) equal to the greater
of (a) $10.00 or (b) 1,000 times the aggregate per share amount of all cash
dividends and 1,000 times the aggregate per share amount (payable in kind) of
all non-cash dividends or other distributions other than a dividend payable in
shares of Common Stock or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared on the Common Stock, par
value $.01 per share, of the Corporation (the "Common Stock") since the
immediately preceding Quarterly Dividend Payment Date, or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of Participating Preferred Stock.
(b) On or after the first issuance of any share or
fractional share of Participating Preferred Stock, no dividend on Common Stock
shall be declared unless concurrently therewith a dividend or distribution is
declared on the Participating Preferred Stock as provided in paragraph (a)
above; and the declaration of any such dividend on the Common Stock shall be
expressly conditioned
5
6
upon payment or declaration of and provision for a dividend on the Participating
Preferred Stock as above provided. In the event no dividend or distribution
shall have been declared on the Common Stock during the period between any
Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend
Payment Date, a dividend of $10.00 per share on the Participating Preferred
Stock shall nevertheless be payable on such subsequent Quarterly Dividend
Payment Date.
(c) Dividends shall begin to accrue and be cumulative
on outstanding shares of Participating Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares of
Participating Preferred Stock, unless the date of issue of such shares is prior
to the record date for the first Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from the date of issue of such
shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a
date after the record date for the determination of holders of shares of
Participating Preferred Stock entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. The Board of
Directors may fix a record date for the determination of holders of shares of
Participating Preferred Stock entitled to receive payment of a dividend
distribution declared thereon, which record date shall be no more than 30 days
prior to the date fixed for the payment thereof.
3. Dissolution, Liquidation and Winding Up. In the event of
any voluntary or involuntary dissolution, liquidation or winding up of the
affairs of the Corporation (hereinafter referred to as a "Liquidation"), the
holders of Participating Preferred Stock shall receive at least $100.00 per
share, plus an amount equal to accrued and unpaid dividends and distributions
thereon, whether or not declared, to the date of such payment, provided that the
holders of shares of Participating Preferred Stock shall be entitled to receive
at least an aggregate amount per share equal to 1,000 times the aggregate amount
to be distributed per share to holders of Common Stock (the "Participating
Preferred Liquidation Preference").
4. Voting Rights. The holders of shares of Participating
Preferred Stock shall have the following voting rights:
(a) Each share of Participating Preferred Stock shall
entitle the holder thereof to one thousand (1,000) votes on all matters
submitted to a vote of the stockholders of the Corporation.
(b) Except as otherwise provided herein, or by law,
the Certificate of Incorporation or the Amended and Restated By-laws of the
Corporation (the "By-laws"), the holders of shares of Participating Preferred
Stock and the holders of shares of Common Stock shall vote together as one class
on all matters submitted to a vote of stockholders of the Corporation.
(c) If and whenever dividends on the Participating
Preferred Stock shall be in arrears in an amount equal to six quarterly dividend
payments, then and in such event the holders of the Participating Preferred
Stock, voting separately as a class (subject to the provisions of subparagraph
(d) below), shall be entitled at the next annual meeting of the stockholders or
at any special meeting to elect two (2) directors. Each share of Participating
Preferred Stock shall be entitled to one vote, and holders of fractional shares
shall have the right to a fractional vote. Upon election, such directors shall
become additional directors of the Corporation and the authorized number of
directors of the Corporation shall thereupon be automatically increased by such
number of directors. Such right of the holders of Participating Preferred Stock
to elect directors may be exercised until all dividends in default on the
Participating Preferred Stock shall have been paid in full, and dividends for
the current dividend period declared and funds therefor set apart, and when so
paid and set apart, the right of the holders of Participating Preferred Stock to
elect such number of directors shall cease, the term of such directors shall
thereupon terminate, and the authorized number of directors of the Corporation
shall thereupon return to the number of authorized directors otherwise in
effect, but subject always to the same provisions for the vesting of such
special voting rights in the case of any such future dividend default or
defaults. The fact that dividends have been paid and set apart as required by
the preceding sentence shall be evidenced by a
6
7
certificate executed by the President and the chief financial officer of the
Corporation and delivered to the Board of Directors. The directors so elected by
holders of Participating Preferred Stock shall serve until the certificate
described in the preceding sentence shall have been delivered to the Board of
Directors or until their respective successors shall be elected or appointed and
qualify.
At any time when such special voting rights have been so
vested in the holders of the Participating Preferred Stock, the Secretary of the
Corporation may, and upon the written request of the holders of record of 10% or
more of the number of shares of the Participating Preferred Stock then
outstanding addressed to such Secretary at the principal office of the
Corporation in the State of New York, shall, call a special meeting of the
holders of the Participating Preferred Stock for the election of the directors
to be elected by them as hereinabove provided, to be held in the case of such
written request within forty (40) days after delivery of such request, and in
either case to be held at the place and upon the notice provided by law and in
the By-laws of the Corporation for the holding of meetings of stockholders;
provided, however, that the Secretary shall not be required to call such a
special meeting (i) if any such request is received less than ninety (90) days
before the date fixed for the next ensuing annual or special meeting of
stockholders or (ii) if at the time any such request is received, the holders of
Participating Preferred Stock are not entitled to elect such directors by reason
of the occurrence of an event specified in the third sentence of subparagraph
(d) below.
(d) if, at any time when the holders of Participating
Preferred Stock are entitled to elect directors pursuant to the foregoing
provisions of this paragraph 4, the holders of any one or more additional series
of Preferred Stock are entitled to elect directors by reason of any default or
event specified in the Certificate of Incorporation, as in effect at the time of
the certificate of designation for such series, and if the terms for such other
additional series so permit, the voting rights of the two or more series then
entitled to vote shall be combined (with each series having a number of votes
proportional to the aggregate liquidation preference of its outstanding shares).
In such case, the holders of Participating Preferred Stock and of all such other
series then entitled so to vote, voting as a class, shall elect such directors.
If the holders of any such other series have elected such directors prior to the
happening of the default or event permitting the holders of Participating
Preferred Stock to elect directors, or prior to a written request for the
holding of a special meeting being received by the Secretary of the Corporation
from the holders of not less than 10% of the then outstanding shares of
Participating Preferred Stock, then such directors so previously elected will be
deemed to have been elected by and on behalf of the holders of Participating
Preferred Stock as well as such other series, without prejudice to the right of
the holders of Participating Preferred Stock to vote for directors if such
previously elected directors shall resign, cease to serve or fail to stand for
reelection while the holders of Participating Preferred Stock are entitled to
vote. If the holders of any such other series are entitled to elect in excess of
two (2) directors, the Participating Preferred Stock shall not participate in
the election of more than two (2) such directors, and those directors whose
terms first expire shall be deemed to be the directors elected by the holders of
Participating Preferred Stock; provided that, if at the expiration of such terms
the holders of Participating Preferred Stock are entitled to vote in the
election of directors pursuant to the provisions of this paragraph 4, then the
Secretary of the Corporation shall call a meeting (which meeting may be the
annual meeting or special meeting of stockholders referred to in subparagraph
(c)) of holders of Participating Preferred Stock for the purpose of electing
replacement directors (in accordance with the provisions of this paragraph 4) to
be held on or prior to the time of expiration of the expiring terms referred to
above.
(e) Except as otherwise set forth herein or required
by law, the Certificate of Incorporation or the By-laws, holders of
Participating Preferred Stock shall have no special voting rights and their
consent shall not be required (except to the extent they are entitled to vote
with holders of Common Stock as set forth herein) for the taking of any
corporate action. No consent of the holders of outstanding shares of
Participating Preferred Stock at any time outstanding shall be required in order
to permit the Board of Directors to: (i) increase the number of authorized
shares of Participating Preferred Stock or to decrease such number to a number
not below the sum of the number of shares of Participating Preferred Stock then
outstanding and the number of shares with respect to which there are outstanding
rights to
7
8
purchase; or (ii) to issue Preferred Stock which is senior to the Participating
Preferred Stock, junior to the Participating Preferred Stock or on a parity with
the Participating Preferred Stock.
5. Redemption. The shares of Participating Preferred Stock
shall not be redeemable.
6. Conversion Rights. The Participating Preferred Stock is not
convertible into Common Stock or any other security of the Corporation.
IN WITNESS WHEREOF, the undersigned Senior Vice President,
General Counsel and Secretary of the Corporation declares under penalty of
perjury the truth, to the best of his knowledge, of this Certificate of
Designation, Preferences and Rights of Series A Junior Participating Preferred
Stock.
Executed this 10th day of March, 1999 in Melville, New York
By: /s/ Stephen B. Paige
----------------------------------
Stephen B. Paige,
Senior Vice President,
General Counsel and Secretary
8