EXHIBIT 4.1
CERTIFICATE OF INCORPORATION
OF
LEVEL ONE COMMUNICATIONS, INCORPORATED
ARTICLE I
The name of the corporation is Level One Communications, Incorporated
(the "Corporation").
ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is 1209 Orange Street, City of Wilmington, County of New Castle,
Delaware 19801. The name of its registered agent at such address is The
Corporation Trust Company.
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 Delaware.
ARTICLE IV
The Corporation is authorized to issue two classes of shares of stock to
be designated, respectively, Common Stock, $0.001 par value, and Preferred
Stock, $0.001 par value. The total number of shares that the Corporation is
authorized to issue is 246,250,000 shares. The number of shares of Common
Stock authorized is 236,250,000. The number of shares of Preferred authorized
is 10,000,000.
The Preferred Stock may be issued from time to time in one or more
series pursuant to a resolution or resolutions providing for such issue duly
adopted by the board of directors (authority to do so being hereby expressly
vested in the board). The board of directors is further authorized to
determine or alter the rights, preferences, privileges and restrictions
granted to or imposed upon any wholly unissued series of Preferred Stock and
to fix the number of shares of any series of Preferred Stock and the
designation of any such series of Preferred Stock. The board of directors,
within the limits and restrictions stated in any resolution or resolutions of
the board of directors originally fixing the number of shares constituting
any series, may increase or decrease (but not below the number of shares in
any such series then outstanding) the number of shares of any series
subsequent to the issuance of shares of that series.
The authority of the board of directors with respect to each such class
or series shall include, without limitation of the foregoing, the right to
determine and fix:
(a) the distinctive designation of such class or series and the number
of shares to constitute such class or series;
-1-
(b) the rate at which dividends on the shares of such class or series
shall be declared and paid, or set aside for payment, whether dividends at
the rate so determined shall be cumulative or accruing, and whether the
shares of such class or series shall be entitled to any participating or
other dividends in addition to dividends at the rate so determined, and if
so, on what terms;
(c) the right or obligation, if any, of the corporation to redeem
shares of the particular class or series of Preferred Stock and, if
redeemable, the price, terms and manner of such redemption;
(d) the special and relative rights and preferences, if any, and the
amount or amounts per share, which the shares of such class or series of
Preferred Stock shall be entitled to receive upon any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation;
(e) the terms and conditions, if any, upon which shares of such class
or series shall be convertible into, or exchangeable for, shares of capital
stock of any other class or series, including the price or prices or the
rate or rates of conversion or exchange and the terms of adjustment, if
any;
(f) the obligation, if any, of the corporation to retire, redeem or
purchase shares of such class or series pursuant to a sinking fund or fund
of a similar nature or otherwise, and the terms and conditions of such
obligation;
(g) voting rights, if any, on the issuance of additional shares of
such class or series or any shares of any other class or series of
Preferred Stock;
(h) limitations, if any, on the issuance of additional shares of such
class or series or any shares of any other class or series of Preferred
Stock; and
(i) such other restrictions, preferences, powers, qualifications,
special or relative rights and privileges thereof as the board of directors
of the corporation, acting in accordance with this Certificate of
Incorporation, may deem advisable and are not inconsistent with law and
the provisions of this Certificate of Incorporation.
ARTICLE V
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 the stockholders
herein are granted subject to this right.
ARTICLE VI
The Corporation is to have perpetual existence.
-2-
ARTICLE VII
1. LIMITATION OF LIABILITY. To the fullest extent permitted by the
General Corporation Law of the State of Delaware as the same exists or as may
hereafter be amended, 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.
2. INDEMNIFICATION. The Corporation may indemnify to the fullest extent
permitted by law any person made or threatened to be made a party to an
action or proceeding, whether criminal, civil, administrative or
investigative, by reason of the fact that such person or his or her testator
or intestate is or was a director, officer or employee of the Corporation, or
any predecessor of the Corporation, or serves or served at any other
enterprise as a director, officer or employee at the request of the
Corporation or any predecessor to the Corporation.
3. AMENDMENTS. Neither any amendment nor repeal of this Article VII,
nor the adoption of any provision of the Corporation's Certificate of
Incorporation inconsistent with this Article VII, shall eliminate or reduce
the effect of this Article VII, in respect of any matter occurring, or any
action or proceeding accruing or arising or that, but for this Article VII,
would accrue or arise, prior to such amendment, repeal, or adoption of an
inconsistent provision.
ARTICLE VIII
1. NUMBER OF DIRECTORS. The number of directors of the corporation which
constitutes the whole Board of Directors of the corporation shall be designated
in the Bylaws of the corporation.
2. ELECTION OF DIRECTORS. Elections of directors shall not be by written
ballot unless the Bylaws of the corporation shall so provide.
ARTICLE X
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to make, alter, amend or
repeal the Bylaws of the corporation.
ARTICLE XI
No action shall be taken by the stockholders of the corporation except
at an annual or special meeting of the stockholders called in accordance with
the Bylaws of the corporation, and no action shall be taken by the
stockholders by written consent.
ARTICLE XII
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside of 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.
-3-
ARTICLE XIII
The name and mailing address of the incorporator are as follows:
John Kehoe
Level One Communications, Incorporated
9750 Goethe Road
Sacramento, CA 95827
The undersigned incorporator hereby acknowledges that the above
Certificate of Incorporation of Level One Communications, Incorporated is his
act and deed and that the facts stated therein are true.
Dated: July 7, 1998 /s/ John Kehoe
--------------------------
John Kehoe, Incorporator
-4-