1
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF ON SEMICONDUCTOR CORPORATION
(AS OF AUGUST 9, 2000)
ON Semiconductor Corporation (hereinafter referred to as the
"Corporation"), organized and existing under and by virtue of the Delaware
General Corporation Law, does hereby certify as follows:
1. The Corporation filed its original Certificate of
Incorporation (hereinafter referred to as the "Certificate of Incorporation")
with the Secretary of State of Delaware on June 18, 1992, and the name of the
Corporation at that time was Motorola Energy Systems, Inc.
2. By unanimous written consent of the Board of Directors of
the Corporation, a resolution was duly adopted, pursuant to Sections 242 and 245
of the Delaware General Corporation Law, setting forth the Amended and Restated
Certificate of Incorporation of the Corporation and declaring said Amended and
Restated Certificate of Incorporation of the Corporation advisable. By written
consent of the stockholders of the Corporation, a resolution was duly adopted,
pursuant to Sections 228, 242 and 245 of the Delaware General Corporation Law,
setting forth and approving such Amended and Restated Certificate of
Incorporation of the Corporation.
RESOLVED: That the Certificate of Incorporation, as amended to date, be and
hereby is amended and restated in its entirety as follows:
FIRST: The name of the corporation is:
ON Semiconductor Corporation.
SECOND: The registered office of the Corporation is to be located
at 1209 Orange Street, in the City of Wilmington, in the County of New Castle,
in the State of Delaware. The name of its registered agent at that address is
The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful
act or activity for which a corporation may be organized under the Delaware
General Corporation Law.
FOURTH:
(1) The aggregate number of shares which the Corporation shall
have authority to issue is 300,100,000 of which 100,000 of said shares shall be
par value $0.01 and shall be
2
designated Preferred Stock, and 300,000,000 of said shares shall be par value
$0.01 per share and shall be designated Common Stock.
(2) Subject to the limitations and in the manner provided by law,
shares of the Preferred Stock may be issued from time to time in series and the
Board of Directors of the Corporation (hereinafter referred to as the "Board")
is hereby authorized to establish and designate series of the Preferred Stock,
to fix the number of shares constituting each series, and to fix the
designations and the relative rights, preferences and limitations of the shares
of each series and the variations in the relative rights, preferences and
limitations as between series, and to increase and to decrease the number of
shares constituting each series. Subject to the limitations and in the manner
provided by law, the authority of the Board with respect to each series shall
include but shall not be limited to the authority to determine the following:
(a) The designation of such series.
(b) The number of shares initially constituting such series.
(c) The increase and the decrease to a number not less than the
number of the outstanding shares of such series, of the number of shares
constituting such series theretofore fixed.
(d) The rate or rates and the times at which dividends on the
shares of such series shall be paid, the form in which such dividends shall be
paid or payable (which may include additional shares of capital stock of the
Corporation) and whether or not such dividends shall be cumulative and, if such
dividends shall be cumulative, the date or dates from and after which they shall
accumulate; provided, however, that, if the stated dividends are not paid in
full, the shares of all series of the Preferred Stock ranking pari passu shall
share ratably in the
2
3
payment of dividends, including accumulations, if any, in accordance with the
sums that would be payable on such shares if all dividends were declared and
paid in full.
(e) Whether or not the shares of such series shall be redeemable
and, if such shares shall be redeemable, the terms and conditions of such
redemption, including but not limited to the date or dates upon or after which
such shares shall be redeemable and the amount per share that shall be payable
upon such redemption, which amount may vary under different conditions and at
different redemption dates.
(f) The amount payable on the shares of such series in the event
of the voluntary or involuntary liquidation, dissolution or winding up of the
Corporation; provided, however, that the holders of such shares shall be
entitled to be paid, or to have set apart for payment, not less than $0.01 per
share before the holders of shares of the Common Stock or the holders of any
other class or series of stock ranking junior to the Preferred Stock as to
rights on liquidation shall be entitled to be paid any amount or to have any
amount set apart for payment; and provided further, that, if the amounts payable
on liquidation are not paid in full, the shares of all series of the Preferred
Stock ranking pari passu shall share ratably in any distribution of assets other
than by way of dividends in accordance with the sums that would be payable in
such distribution if all sums payable were discharged in full. A liquidation,
dissolution or winding up of the Corporation, as such terms are used in this
paragraph (f), shall not be deemed to be occasioned by or to include any
consolidation or merger of the Corporation with or into any other corporation or
other entity or corporations or other entities or a sale, lease or conveyance of
all or a part of its assets.
(g) Whether or not the shares of such series shall have voting
rights, in addition to the voting rights provided by law and, if such shares
shall have such voting rights, the
3
4
terms and conditions thereof, including but not limited to the right of the
holders of such shares to vote as a separate class either alone or with the
holders of shares of one or more other series of Preferred Stock and the right
to have more than one vote per share.
(h) Whether or not a sinking fund shall be provided for the
redemption of the shares of such series and, if such a sinking fund shall be
provided, the terms and conditions thereof.
(i) Whether or not a purchase fund shall be provided for purchase
of the shares of such series, and, if such a purchase fund shall be provided,
the terms and conditions thereof.
(j) Whether or not the shares of such series shall have
conversion or exchange privileges, and, if such shares shall have conversion or
exchange privileges, the terms and conditions of conversion or exchange,
including but not limited to any provision for the adjustment of the conversion
rate or the conversion price and whether conversion or exchange can be effected
solely by the Corporation or the holder.
(k) Any other relative rights, preferences and limitations.
(3) Except as otherwise provided by law or by the resolution or
resolutions providing for the issuance of any series of Preferred Stock, the
holders of outstanding shares of Common Stock shall have the exclusive right to
vote for the election of directors and for all other purposes, each holder of
record of shares of Common Stock being entitled to one vote for each share of
Common Stock standing in such holder's name on the books of the Corporation.
4
5
FIFTH: The name and address of the incorporator is as follows:
Deborah J. Burmeister
1303 East Algonquin Road
Schaumburg, Illinois 60196
SIXTH: Unless and except to the extent that the By-Laws of the
Corporation shall so require, the election of directors of the Corporation need
not be by written ballot.
SEVENTH: In furtherance and not in limitation of the powers
conferred by law, the Board is expressly authorized and empowered to adopt,
amend and repeal the By-Laws of the Corporation by a majority vote at any
regular or special meeting of the Board or by written consent, subject to the
power of the stockholders of the Corporation to amend or repeal any By-Law of
the Corporation made by the Board. Notwithstanding any other provision of this
Amended and Restated Certificate of Incorporation or the By-Laws of the
Corporation (and notwithstanding that a lesser percentage may be specified by
law), the provisions of Article II, Sections 1, 2 and 5, Article III, Section 1,
and Article VI of the By-Laws of the Corporation may not be amended or repealed,
nor may any By-Law provision inconsistent therewith be adopted, by the
stockholders of the Corporation, unless such action is approved by the
affirmative vote of the holders of not less than sixty-six and two thirds
percent (66 2/3%) of the voting power of all of the outstanding shares of
capital stock of the Corporation entitled to vote generally in the election of
directors, considered for purposes of this Article SEVENTH as a single class.
EIGHTH: The Corporation reserves the right at any time and from
time to time to amend, alter, change or repeal any provision contained in this
Amended and Restated Certificate of Incorporation, 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 by law; and all
rights, preferences and privileges of whatsoever nature conferred upon
stockholders, directors or
5
6
any other persons whomsoever by and pursuant to this Amended and Restated
Certificate of Incorporation in its present form or as hereafter amended are
granted subject to the right reserved in this Article EIGHTH.
Notwithstanding any other provisions of this Amended and Restated
Certificate of Incorporation or the By-Laws of the Corporation (and
notwithstanding that a lesser percentage may be specified by law), the
provisions of this Article EIGHTH, Article SEVENTH, Article NINTH, Article
TENTH, Article ELEVENTH, Article TWELFTH, Article THIRTEENTH and Article
FOURTEENTH hereof may not be amended or repealed, nor may any Certificate of
Incorporation provision inconsistent therewith be adopted, by the stockholders
of the Corporation unless such action is approved by the affirmative vote of the
holders of not less than sixty-six and two thirds percent (66 2/3%) of the
voting power of all of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors, considered
for purposes of this Article EIGHTH as a single class.
NINTH: (1) The business and affairs of the Corporation shall be
managed by or under the direction of a Board consisting of not fewer that six
(6) nor more than eleven (11) directors (exclusive of directors referred to in
the following paragraph), the exact number to be determined from time to time by
resolution adopted by affirmative vote of a majority of such directors then in
office. Upon the filing of this Amended and Restated Certificate of
Incorporation with the Secretary of State of the State of Delaware, the
directors shall be divided into three classes, designated Class I, Class II and
Class III. Each class shall consist, as nearly as may be possible, of one-third
of the total number of directors determined by the Board pursuant to this
Section (1). Class I directors shall serve for an initial term ending at the
annual meeting of
6
7
stockholders held in 2000, Class II directors for an initial term ending at the
annual meeting of stockholders held in 2001 and Class III directors for an
initial term ending at the annual meeting of stockholders held in 2002. At each
annual meeting of stockholders beginning in 2000, successors to the directors in
the class whose term expires at that annual meeting shall be elected for a
three-year term. If the number of directors is changed, any increase or decrease
shall be apportioned among the classes so as to maintain the number of directors
in each class as nearly equal as possible, and any additional director of any
class elected to fill a vacancy resulting from an increase in such class shall
hold office for the remaining term of that class, but in no case will a decrease
in the number of directors shorten the term of any incumbent director. A
director shall hold office until the annual meeting for the year in which his or
her term expires and until his or her successor shall be elected and shall
qualify, subject, however, to prior death, resignation, retirement,
disqualification or removal from office.
Notwithstanding the foregoing, whenever the holders of any one
or more classes or series of Preferred Stock issued by the Corporation shall
have the right, voting separately by class or series, to elect directors at an
annual or special meeting of stockholders, the number of such directors and the
election, term of office, filling of vacancies and other features of such
directorships shall be governed by the provisions of Article FOURTH of this
Amended and Restated Certificate of Incorporation and any resolution or
resolutions adopted by the Board pursuant thereto, and such directors shall not
be divided into classes unless expressly so provided therein.
(2) Subject to the rights of the holders of any one or more
classes or series of Preferred Stock issued by the Corporation, any director, or
the entire Board, may be removed from office at any time, but only for cause and
only by the affirmative vote of the holders of not less than sixty-six and two
thirds percent (66 2/3%) of the voting power of all of the outstanding
7
8
shares of capital stock of the Corporation entitled to vote generally in the
election of directors, considered for purposes of this sentence as a single
class. Any vacancy in the Board that results from an increase in the number of
directors may be filled by a majority of the directors then in office, provided
that a quorum is present, and any other vacancy may be filled only by a majority
of the directors then in office, even if less than a quorum, or by a sole
remaining director. Any director elected to fill a vacancy not resulting from an
increase in the number of directors shall hold office for the remaining term of
his or her predecessor.
TENTH: No action required to be taken or that may be taken at any
annual or special meeting of stockholders of the Corporation may be taken by
stockholders of the Corporation except at such a meeting of stockholders.
ELEVENTH: The Corporation shall, to the full extent permitted by
Section 145 of the Delaware General Corporation Law, as amended from time to
time, indemnify all persons whom it may indemnify pursuant thereto.
TWELFTH: The Board shall have authority to authorize the
issuance, from time to time without any vote or other action by the
stockholders, of any or all shares of stock of the Corporation of any class at
any time authorized, any securities convertible into or exchangeable for any
such shares so authorized, and any warrant, option or right to purchase,
subscribe for or otherwise acquire shares of stock of the Corporation for any
such consideration and on such terms as the Board from time to time in its
discretion lawfully may determine, which terms and conditions may include,
without limitation, restrictions or conditions that preclude or limit the
exercise, transfer or receipt thereof or that invalidate or void any such
securities, warrants, options or rights; provided, however, that the
consideration for the issuance of shares of stock of the Corporation having par
value shall not be less than such par value. Stock so issued, for
8
9
which the consideration has been paid to the Corporation, shall be fully paid
stock, and the holders of such stock shall not be liable to any further call or
assessments thereon. Nothing in this Article TWELFTH shall be interpreted to
limit the authority of the Board under the Delaware General Corporation Law or
under any other provision of this Amended and Restated Certificate of
Incorporation, to authorize the issuance of shares, warrants, options or rights
or other securities or to take any other action.
THIRTEENTH: The By-Laws of the Corporation may establish
procedures regulating the submission by stockholders of nominations and
proposals for consideration at meetings of stockholders of the Corporation.
FOURTEENTH: The provisions of Section 203 of the Delaware General
Corporation Law shall not apply to or govern the Corporation.
FIFTEENTH: Whenever a compromise or arrangement is proposed
between the Corporation and its creditors or any class of them and/or between
the 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 the Corporation or of any creditor or stockholder thereof or on
the application of any receiver or receivers appointed for the 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 the Corporation under the provisions of section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of the 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 the
Corporation, as the case may be, agree
9
10
to any compromise or arrangement and to any reorganization of the Corporation as
consequence of such compromise or arrangement, the said compromise or
arrangement and the said reorganization shall, if sanctioned by the court to
which the said application has been made, be binding on all the creditors or
class of creditors, and/or on all the stockholders or class of stockholders, of
the Corporation, as the case may be, and also on the Corporation.
SIXTEENTH: The personal liability of the directors of the
Corporation is hereby eliminated to the fullest extent permitted by paragraph
(7) of subsection (b) of Section 102 of the General Corporation Law of the State
of Delaware, as the same may be amended or supplemented.
10