Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
MICROSEMI CORPORATION
Microsemi Corporation, a corporation organized and existing under the laws
of the State of Delaware (the "Corporation"), hereby certifies as follows:
1. The name of the Corporation is Microsemi Corporation. The date of
filing of its original Certificate of Incorporation with the Secretary of State
of the State of Delaware was September 27, 1960. The Corporation was originally
incorporated under the name Microsemiconductor Corporation.
2. This Amended and Restated Certificate of Incorporation restates and
integrates and further amends the Certificate of Incorporation of this
Corporation including, without limitation, an amendment increasing the number of
authorized shares of Common Stock of this Corporation from 20,000,000 to
100,000,000.
3. The text of the Certificate of Incorporation as amended or
supplemented heretofore is further amended hereby to read as herein set forth in
full:
FIRST: The name of the Corporation is MICROSEMI CORPORATION.
SECOND: The location of the registered office of the Corporation in
the State of Delaware is at 2711 Centerville Road, Suite 400, City of
Wilmington, County of New Castle. The name and address of its registered
agent in charge thereof upon whom process against the Corporation may be
served is United States Corporation Company, 2711 Centerville Road, Suite
400, Wilmington, County of New Castle, Delaware 19808.
THIRD: 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.
FOURTH: The total number of shares of stock which the Corporation
shall have the authority to issue is one hundred one million (101,000,000)
shares, consisting of a class of one million (1,000,000) shares of
Preferred Stock of the par value of $1.00 per share, and a class of one
hundred million (100,000,000) shares of Common Stock of the par value of
$0.20 per share (the Preferred Stock, par value $1.00 per share, being
herein referred to as "Preferred Stock"; and the Common Stock, par value
$0.20 per share, being herein referred to as "Common Stock"). The Board of
Directors is expressly authorized to provide for the issuance of the shares
of Preferred Stock in one or more series and, by filing a Certificate
pursuant to the applicable law of the State of Delaware, to establish, from
time to time the number of shares to be included in each series, and to fix
the designations, powers, preferences and relative, participating, optional
or other special rights, if any, of the shares of each such series and the
qualifications, limitations and restrictions thereof, if any, with respect
to each such series of Preferred Stock.
-1-
FIFTH: The Board of Directors of the Corporation shall have the
power to make, alter, and repeal the bylaws of the Corporation subject to
the reserved power of the stockholders to make, alter, and repeal bylaws.
SIXTH:
Section 1. Elimination of Certain Liability of Directors. 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 Delaware General
Corporation Law, or (iv) for any transaction from which the director
derived an improper personal benefit. The limitation of liability provided
herein shall continue after a director has ceased to occupy such position
as to acts or omissions occurring during such director's term or terms of
office.
Section 2.
(a) Right to Indemnification. Each person who was or is made
-------------------------
a party or is threatened to be made a party to or is involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that
he or she, or a person of whom he or she is the legal representative,
is or was a director or officer, of the Corporation or is or was
serving at the request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership, joint
venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer,
employee or agent or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the
Delaware General Corporation Law, as the same exists or may hereafter
be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to
provide prior to such amendment), against all expense, liability and
loss (including attorney's fees, judgments, fines, ERISA excise taxes
or penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of
his or her heirs, executors and administrators: provided, however,
that, except as provided in paragraph (b) hereof, the Corporation
shall indemnify any such person seeking indemnification in connection
with a proceeding (or part thereof) initiated by such person only if
such proceeding (or part thereof) was authorized by the board of
directors of the Corporation. The right to indemnification conferred
in this Section shall be a contract right and shall include the right
to be paid by the Corporation the expenses incurred in defending any
such proceeding in advance of its final disposition: provided,
however, that, if the Delaware General Corporation Law requires, the
payment of such expenses incurred
-2-
by a director or officer in his or her capacity as a director or
officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including without
limitation, service to an employee benefit plan) in advance of the
final disposition of a proceeding, shall be made only upon delivery to
the Corporation of an undertaking, by or on behalf of such director or
officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be
indemnified under this Section or otherwise. The Corporation may, by
action of its Board of Directors, provide indemnification to employees
and agents of the Corporation with the same scope and effect as the
foregoing indemnification of directors and officers.
(b) Right of Claimant to Bring Suit. If a claim under paragraph
--------------------------------
(a) of this Section is not paid in full by the Corporation within
thirty days after a written claim has been received by the
Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and,
if successful in whole or in part, the claimant shall be entitled to
be paid also the expense of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to enforce a
claim for expenses incurred in defending any proceeding in advance of
its final disposition where the required undertaking, if any is
required, has been tendered to the Corporation) that the claimant has
not met the standards of conduct which makes it permissible under the
Delaware General Corporation Law for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, independent legal
counsel, or its stockholders) to have made a determination prior to
the commencement of such action that indemnification of the claimant
is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General
Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard
of conduct, shall be a defense to the action or create a presumption
that the claimant has not met the applicable standard of conduct.
(c) Non-Exclusivity of Rights. The right to the indemnification
--------------------------
and the payment of expenses incurred in defending a proceeding in
advance of its final disposition conferred in this Section shall not
be exclusive of any other right which any person may have or hereafter
acquire under any statute, provision of the Certificate of
Incorporation, bylaw, agreement, vote of stockholders or disinterested
directors or otherwise.
(d) Insurance. The Corporation may maintain insurance, at its
----------
expense, to protect itself and any director, officer, employee or
agent of the Corporation or another corporation, partnership, joint
venture, trust or other enterprise against any such expense, liability
or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under
the Delaware General Corporation Law.
-3-
SEVENTH: 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 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 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 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 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 this Corporation, as the case may be, and also on
this Corporation.
EIGHTH: Any and all right, title, interest, and claim in or to any
dividends declared by the Corporation, whether in cash, stock or otherwise,
which are unclaimed by the stockholder entitled thereto for a period of six
years after the close of business on the payment date, shall be and be
deemed to be extinguished and abandoned; and such unclaimed dividends in
the possession of the Corporation, its transfer agents or other agents or
depositaries, shall at such time become the absolute property of the
Corporation, free and clear of any and all claims of any persons
whatsoever.
NINTH: There shall be a series of Preferred Stock, par value $1.00
per share, of the Corporation, to be designated "Series A Junior
Participating Preferred Stock," initially consisting of 100,000 shares.
Section 1. Designation and Amount. The shares of such series shall
-----------------------
be designated as "Series A Junior Participating Preferred Stock," par value
$1.00 per share, and the number of shares constituting such series shall be
100,000.
Section 2. Dividends and Distributions.
----------------------------
(a) Subject to the prior and superior right of the holders of
any shares of any series of Preferred Stock ranking prior and superior
to the shares of Series A Junior Participating Preferred Stock with
respect to dividends, the holders of shares of Series A Junior
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
last day of September, December, March and June 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 Series A
Junior
-4-
Participating Preferred Stock, in an amount per share (rounded to the
nearest cent) equal to, subject to the provision for adjustment
hereinafter set forth, 10,000 times the aggregate per share amount of
all cash dividends, and 10,000 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 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 Series A Junior Participating Preferred
Stock.
(b) The Corporation shall declare a dividend or distribution
on the Series A Junior Participating Preferred Stock as provided in
paragraph (a) above immediately after it declares a dividend payable
in shares of Common Stock after the first issuance of any share or
fraction of a share of Series A Junior Participating Preferred Stock.
(c) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Junior Participating Preferred Stock
from the Quarterly Dividend Payment Date preceding the date of issue
of such shares of Series A Junior 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 Series A Junior 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. Dividends
paid on the shares of Series A Junior Participating Preferred Stock in
an amount less than the total amount of such dividends at the time
accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding.
The Board of Directors may fix a record date for the determination of
holders of shares of Series A Junior Participating Preferred Stock
entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be no more than thirty (30) days
prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Junior
--------------
Participating Preferred Stock shall have the following voting rights:
(a) Subject to the provision for adjustment hereinafter set
forth, each share of Series A Junior Participating Preferred Stock
shall entitle the holder thereof to 1,000 votes on all matters
submitted to a vote of the stockholders of the Corporation.
-5-
(b) Except as otherwise provided herein or by law, the holders
of shares of Series A Junior 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) Except as required by law, holders of Series A Junior
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
taking any corporate action.
Section 4. Certain Restrictions.
---------------------
(a) The Corporation shall not declare any dividend on, make
any distribution on, or redeem or purchase or otherwise acquire for
consideration any shares of Common Stock after the first issuance of a
share or fraction of a share of Series A Junior Participating
Preferred Stock unless concurrently therewith it shall declare a
dividend on the Series A Junior Participating Preferred Stock as
required by Section 2 hereof.
(b) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Junior Participating Preferred
Stock as provided in Section 2 are in arrears, thereafter and until
all accrued and unpaid dividends and distributions, whether or not
declared, on shares of Series A Junior Participating Preferred Stock
outstanding shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire for
consideration any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Series A Junior Participating Preferred Stock;
(ii) declare or pay dividends on, make any other
distributions on any shares of stock ranking on a parity (either
as to dividends or upon liquidation, dissolution or winding up)
with Series A Junior Participating Preferred Stock, except
dividends paid ratably on the Series A Junior Participating
Preferred Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which
the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity (either as
to dividends or upon liquidation, dissolution or winding up) with
the Series A Junior Participating Preferred Stock, provided that
the Corporation may at any time redeem, purchase or otherwise
acquire shares of any such parity stock in exchange for shares of
any stock of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or winding up) to the
Series A Junior Participating Preferred Stock; or
-6-
(iv) purchase or otherwise acquire for consideration any
shares of Series A Junior Participating Preferred Stock, or any
shares of stock ranking on a parity with the Series A Junior
Participating Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as determined
by the Board of Directors) to all holders of such shares upon
such terms as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights and
preferences of the respective series and classes, shall determine
in good faith that such purchase or acquisition will result in
fair and equitable treatment among the respective series or
classes.
(c) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any
shares of stock of the Corporation unless the Corporation could, under
paragraph (a) of this Section 4, purchase or otherwise acquire such
shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Junior
------------------
Participating Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and cancelled
promptly after the acquisition thereof. All such shares shall upon their
cancellation become authorized but unissued shares of Preferred Stock and
may be reissued as part of a new series of Preferred Stock to be created by
resolution or resolutions of the Board of Directors, subject to the
conditions and restrictions on issuance set forth herein.
Section 6. Liquidation, Dissolution or Winding Up.
---------------------------------------
(a) Upon any liquidation (voluntary or otherwise), dissolution
or winding up of the Corporation, no distribution shall be made to the
holders of shares of stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series A Junior
Participating Preferred Stock unless, prior thereto, the holders of
shares of Series A Junior Participating Preferred Stock shall have
received an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such
payment, plus an amount equal to the greater of (1) subject to the
provisions for adjustment hereinafter set forth, $800,000 per share,
provided that in the event the Corporation does not have sufficient
assets, after payment of its liabilities and distribution to holders
of Preferred Stock ranking prior to the Series A Participating
Preferred Stock, available to permit payment in full of the $800,000
per share amount, the amount required to be paid under this Section
6(a)(1) shall, subject to Section 6(b) hereof, equal the value of the
amount of available assets divided by the number of outstanding shares
of Series A Participating Preferred Stock or (2) 10,000 times the
aggregate per share amount to be distributed to the holders of Common
Stock (the greater of (1) or (2), the "Series A Liquidation
Preference"). In the event the Corporation shall at any time after the
close of business on December 22, 2000 (the "Rights Declaration Date")
(i) declare any dividend on Common Stock payable in shares of Common
Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine
the outstanding Common Stock into a
-7-
smaller number of shares, then in each such case the amount to which
holders of shares of Series A Junior Participating Preferred Stock
were entitled immediately prior to such event under clause (1) of the
preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately after such event.
(b) In the event, however, that there are not sufficient
assets available to permit payment in full of the Series A Liquidation
Preference and the liquidation preferences of all other series of
Preferred Stock, if any, which rank on a parity with the Series A
Junior Participating Preferred Stock, then such remaining assets shall
be distributed ratably to the holders of such parity shares in
proportion to their respective liquidation preferences.
Section 7. Consolidation, Merger, etc. In case the Corporation
---------------------------
shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for or
changed into other stock or securities, cash and/or any other property,
then in any such case the shares of Series A Junior Participating Preferred
Stock shall at the same time be similarly exchanged or changed in amount
per share (subject to the provision for adjustment hereinafter set forth)
equal to 10,000 times the aggregate amount of stock, securities, cash
and/or any other property (payable in kind), as the case may be, into which
or for which each share of Common Stock is changed or exchanged.
Section 8. No Redemption. The shares of Series A Junior
--------------
Participating Preferred Stock shall not be redeemable.
Section 9. Ranking. The Series A Junior Participating Preferred
--------
Stock shall rank junior to all other series of the Corporation's Preferred
Stock as to the payment of dividends and the distribution of assets, unless
the terms of any such series shall provide otherwise.
Section 10. Amendment. The Certificate of Incorporation, as amended,
----------
of the Corporation shall not be further amended in any manner which would
materially alter or change the powers, preference or special rights of the
Series A Junior Participating Preferred Stock so as to affect them
adversely without the affirmative vote of the holders of a majority or more
of the outstanding shares of Series A Junior Participating Preferred Stock,
voting separately as a class.
Section 11. Fractional Shares. Series A Junior Participating
------------------
Preferred Stock may be issued in fractions that are integral multiples of
one one-millionth of one share, which shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have the benefit of
all other rights of holders of Series A Junior Participating Preferred
Stock.
4. This Amended and Restated Certificate of Incorporation was duly
adopted by written consent of the stockholders in accordance with Section 228 of
the General Corporation Law of the
-8-
State of Delaware and duly proposed and submitted by the Board of Directors of
this Corporation and duly adopted by the stockholders in accordance with
Sections 242 and 245 of the General Corporation Law of the State of Delaware.
-9-
IN WITNESS WHEREOF, said MICROSEMI CORPORATION has caused this certificate
to be signed by James J. Peterson, its President, and attested by David R.
Sonksen, its Secretary, this 9th day of August, 2001.
MICROSEMI CORPORATION
By: /s/ James J. Peterson
----------------------------------------------
James J. Peterson, Chief Executive Officer and
President
ATTEST:
By: /s/ David R. Sonksen
-----------------------------------------
David R. Sonksen, Executive Vice President,
Chief Financial Officer and Secretary
-10-