EXHIBIT 3.1
DRAFT
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SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CII TECHNOLOGIES INC.
CII TECHNOLOGIES INC., a corporation organized and existing under the
Laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is CII TECHNOLOGIES INC. The date of
filing of its original Certificate of Incorporation with the Secretary of State
of the State of Delaware was April 29, 1993 under the name Communications
Instruments Holdings, Inc. A Restated Certificate of Incorporation was filed
with the Secretary of State on October 6, 1995 and a Certificate of Amendment to
the Restated Certificate of Incorporation was filed with the Secretary of State
on March 15, 1996.
2. This Second and Amended Restated Certificate of Incorporation has
been duly proposed by resolutions adopted and declared advisable by the Board of
Directors of the corporation, duly adopted by written consent of a majority of
the stockholders of the corporation in lieu of a meeting and vote and duly
executed and acknowledged by the officers of the corporation in accordance with
the provisions of Sections 103, 228, 242 and 245 of the General Corporation Law
of the State of Delaware.
3. The text of the Restated Certificate of Incorporation as amended
heretofore is hereby amended and restated to read in its entirety as follows:
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ARTICLE I
The name of the corporation (hereinafter called the "corporation") is
CII TECHNOLOGIES INC.
ARTICLE II
The address, including street, number, city, and county, of the
registered office of the corporation in the State of Delaware is 32 Loockerman
Square, Suite L-100, City of Dover 19901, County of Kent; and the name of the
registered agent of the corporation in the State of Delaware at such address is
The Prentice-Hall Corporation System, Inc.
ARTICLE III
The purpose of the 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.
ARTICLE IV
The total number of shares of capital stock which the corporation
shall have authority to issue is 30,000,00 shares which shall be divided into
two classes as follows: 25,000,000 shares of Common Stock, par value $.01 per
share (the "Common Stock") and 5,000,000 shares of Preferred Stock, par value
$.01 per share (the "Preferred Stock").
Each of the 1,020,000 issued and outstanding shares of Common Stock at
the date hereof is hereby converted into and hereafter deemed to represent
2,500,000 fully paid and non-assessable shares of Common Stock.
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Except as otherwise expressly provided herein, all shares of Common
Stock shall be identical and shall entitle the holder thereof to the same rights
and privileges.
SECTION A. Preferred Stock. The Preferred Stock may be issued from
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time to time in one or more series. The Board of Directors is hereby authorized
to provide for the issuance of shares of Preferred Stock in series and, by
filing a certificate pursuant to the applicable law of the State of Delaware
(hereinafter referred to as a "Preferred Stock Designation"), to establish from
time to time the number of shares to be included in each such series, and to fix
the designation, powers, preferences and rights of the shares of each such
series and the qualifications, limitations and restrictions thereof. The
authority of the Board of Directors with respect to each series shall include,
but not be limited to, determination of the following:
(i) The designation of the series, which may be by
distinguishing number, letter or title.
(ii) The number of shares of the series, which number the Board
of Directors may thereafter (except where otherwise provided in the
Preferred Stock Designation) increase or decrease (but not below the number
of shares thereof then outstanding).
(iii) Whether dividends, if any, shall be cumulative or
noncumulative and the dividend rate of the series.
(iv) The dates at which dividends, if any, shall be
payable.
(v) The redemption rights and price or prices, if any, for
shares of the series.
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(vi) The terms and amount of any sinking fund provided for the
purchase or redemption of shares of the series.
(vii) The amounts payable on shares of the series in the event
of any voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the Corporation.
(viii) Whether the shares of the series shall be convertible
into shares of any other class or series, or any other security, of the
Corporation or any other corporation, and, if so, the specification of such
other class or series or such other security, the conversion price or
prices or rate or rates, any adjustments thereof, the date or dates as of
which such shares shall be convertible and all other terms and conditions
upon which such conversion may be made.
(ix) Restrictions on the issuance of shares of the same series
or of any other class or series.
(x) The voting rights, if any, of the holders of shares of the
series.
(xi) The manner in which any facts ascertainable outside the
Preferred Stock Designation shall operate upon the voting powers,
designations, preferences, rights and qualifications, limitations or
restrictions of such series.
The Common Stock shall be subject to the express terms of the
Preferred Stock and any series thereof.
ARTICLE V
All shares of Common Stock will be identical and will entitle the
holder thereof to the same rights and privileges. The holders of record of the
issued and outstanding
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Common Stock will have one vote per share on all matters upon which they are
entitled to vote under the General Corporation Law of Delaware and will vote
together as a single class on all matters voted on by the Corporation's
stockholders. Except as otherwise provided by law, this Second Amended and
Restated Certificate of Incorporation or the Bylaws, all matters submitted to
the stockholders for voting will require the affirmative vote of the holders of
a majority of the issued and outstanding Common Stock entitled to vote.
ARTICLE VI
Special meetings of stockholders, for any purpose or purposes, may be
called only by either the Chairman of the Board of Directors, if there be one,
or the President and shall be called by such officers at the request in writing
of a majority of the Board of Directors. Such request shall state the purpose
or purposes of the proposed meeting.
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. Any action required or permitted to be
taken by the stockholders of the Corporation must be effected at a duly called
annual or special meeting of such stockholders and may not be effected by any
consent in writing by such stockholders. The books of the Corporation may be
kept (subject to any provision contained in the Delaware General Corporation
Law) 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 Bylaws of the Corporation.
ARTICLE VII
The business and affairs of the Corporation shall be managed by or
under the direction of its Board of Directors, except as may be otherwise
specifically provided for or
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limited by statute, this Second Amended and Restated Certificate of
Incorporation or the Bylaws of the Corporation. In furtherance of, and not in
limitation of, the powers conferred by law, the Board of Directors is expressly
authorized and empowered to adopt, amend or repeal the By-Laws of the
Corporation; provided, however, that the By-Laws adopted by the Board of
Directors under the powers hereby conferred may be amended or repealed by the
Board of Directors or by the stockholders having voting power with respect
thereto.
The Corporation may in its By-Laws confer powers upon the Board of
Directors in addition to the foregoing and in addition to the powers and
authorities expressly conferred upon the Board of Directors by applicable law.
ARTICLE VIII
SECTION A. Number, Election and Terms of Directors. Subject to the
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rights of the holders of any series of Preferred Stock as set forth in a
Preferred Stock Designation to elect additional directors under specified
circumstances, the number of directors of the Corporation shall be determined in
the manner provided in the Bylaws of the Corporation.
The Board of Directors shall be divided into three classes. Each
class shall consist, as nearly as possible, of one-third of the total number of
directors constituting the entire Board of Directors, and the term of office of
one class shall expire each year. At the first annual meeting of stockholders
after the filing date of this Second and Amended Restated Certificate of
Incorporation (the "Filing Date"), directors of the first class shall be elected
to hold office for a term expiring at the next succeeding annual meeting,
directors of the second class shall be elected to hold office for a term
expiring at the second succeeding annual meeting and directors of the third
class shall be elected to hold office for a term
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expiring at the third succeeding annual meeting. Subject to the foregoing, at
each annual meeting of stockholders after the Filing Date, the successors to the
class of directors whose term shall then expire shall be elected to hold office
for a term expiring at the third succeeding annual meeting. Notwithstanding the
foregoing, and except as otherwise required in accordance with the General
Corporation Law of the State of Delaware, whenever the holders of any class or
series of Preferred Stock shall be granted the right to elect one or more
directors of the Corporation, the terms of the director or directors elected by
such holders shall expire at the next succeeding annual meeting of stockholders.
SECTION B. Removal of Directors; Vacancies. Subject to the rights of
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the holders of any series of Preferred Stock to elect additional directors under
specified circumstances, any director or the entire Board of Directors may be
removed from office at any time, but only for cause. Any vacancies in the Board
of Directors for any reason and any newly created directorship resulting by
reason of any increase in the number of directors may be filled only by the
Board of Directors, acting by a majority of the remaining directors then in
office, although less than a quorum, or by a sole remaining director, and any
directors so appointed shall hold office until the next election of the class
for which such directors have been chosen, and until their successors are
elected and qualified.
ARTICLE IX
Each person who is or was or had agreed to become a director or
officer of the Corporation, or each such person who is or was serving or who had
agreed to serve at the request of the Board of Directors or an officer of the
Corporation as an employee or agent of the Corporation or as a director,
officer, employee or agent of another corporation,
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partnership, joint venture, trust or other enterprise (including the heirs,
executors, administrators or estate of such person), shall be indemnified by the
Corporation to the full extent permitted from time to time by the General
Corporation Law of the State of Delaware as the same exists or may hereafter be
amended or any other applicable laws as presently or hereafter in effect.
Without limiting the generality or the effect of the foregoing, the Corporation
may enter into one or more agreements with any person which provide for
indemnification greater or different than that provided in this Article IX. Any
amendment or repeal of this Article IX shall not adversely affect any right or
protection existing hereunder immediately prior to such amendment or repeal.
ARTICLE X
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, 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 General Corporation Law of the
State of Delaware, or (iv) for any transaction from which the director derived
an improper personal benefit. If the General Corporation Law of the State of
Delaware is amended to authorize corporate action further eliminating or
limiting 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 General Corporation Law of the State of Delaware, as so
amended. Any amendment or repeal of this Article X shall not adversely affect
any right or
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protection of a director of the Corporation existing immediately prior to such
amendment or repeal.
ARTICLE XI
The Corporation reserves the right at any time and from time to time
to amend, alter, change or repeal any provision contained in this Second Amended
and Restated Certificate of Incorporation or a Preferred Stock Designation, and
any other provisions authorized by the laws of the State of Delaware at the time
in force may be added or inserted, in the manner now or hereafter prescribed
herein or by applicable law, and all rights, preferences and privileges of
whatsoever nature conferred upon stockholders, directors or any other persons
whomsoever by and pursuant to this Second Amended and Restated Certificate of
Incorporation in its present form or as hereafter amended are granted subject to
the right reserved in this Article XI; provided, however, that any amendment or
repeal of Article IX or Article X of this Second Amended and Restated
Certificate of Incorporation shall not adversely affect any right or protection
existing hereunder immediately prior to such amendment or repeal; and provided
further that no Preferred Stock Designation shall be amended after the issuance
of any shares of the series of Preferred Stock created thereby, except in
accordance with the terms of such Preferred Stock Designation and the
requirements of applicable law.
ARTICLE XII
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws of the Corporation may provide. The books of the
Corporation may be kept
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outside the State of Delaware at such place of places as may be designated from
time to time by the Board of Directors or in the Bylaws of the Corporation.
ARTICLE XIII
In the event that any of the provisions of this Second and Amended
Restated Certificate of Incorporation (including any provision within a single
Article, paragraph or sentence) are held by a court of competent jurisdiction to
be invalid, void or otherwise unenforceable, the remaining provisions are
severable and shall remain enforceable to the full extent permitted by law.
THE UNDERSIGNED, being the Chairman and Chief Executive Officer of the
Corporation, for the purpose of amending and restating the Restated Certificate
of Incorporation of the Corporation pursuant to the General Corporation Law of
the State of Delaware, does make this Certificate, hereby declaring and
certifying that this is the act and deed of the Corporation and that the facts
herein stated are true, and accordingly have hereunto set my hand as of the __th
day of ___________ 1996.
CII TECHNOLOGIES INC.
By:___________________________________
Name: Ramzi A. Dabbagh
Title: Chairman and Chief Executive Officer
STATE OF NEW YORK )
:ss.:
COUNTY OF NEW YORK )
The foregoing instrument was acknowledged before me this ____ day of
__________, 1996, by Ramzi A. Dabbagh, the Chairman and Chief Executive Officer
of Communications Instruments Holdings, Inc., a Delaware corporation, on behalf
of the corporation.
____________________________________
Notary Public
My Commission Expires
[seal]