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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
WJ COMMUNICATIONS, INC.
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ARTICLE I
The name of the corporation (which is hereinafter referred to as the
"Corporation") is: WJ Communications, Inc.
ARTICLE II
The address of the Corporation's registered office in the state of
Delaware is CorpAmerica, Inc., 30 Old Rudnick Lane, Dover, County of Kent
Delaware 19901. The name of the Corporation's registered agent at such
address is CorpAmerica, lnc.
ARTICLE III
The purpose of the Corporation shall be to engage in any lawful act
or activity for which corporations may be organized and incorporated under
the General Corporation Law of the State of Delaware.
ARTICLE IV
Section 1. The Corporation shall be authorized to issue One Hundred
Ten Million (110,000,000) shares of capital stock, of which One Hundred
Million (100,000,000) shares shall be shares of Common Stock, $.01 par value
per share ("Common Stock"), and Ten Million (10,000,000) shares shall be
shares of Preferred Stock, $.01 par value per share ("Preferred Stock").
Section 2. Except as otherwise provided by law, or as otherwise
provided in or pursuant to this Article IV, the Common Stunk shall have the
exclusive right to vote for the election of directors and for all other
purposes. Each share of Common Stock shall have one vote, and the Common
Stock shall vote together as a single class.
Section 3. The Board of Directors of the Corporation (the "Board")
is expressly authorized to provide for the issuance of all or any shares of
the Preferred Stock, in one or more series, and to fix for each such scars
such voting powers, full or limited, or no voting powers, and such
designations, preferences and relative, participating, optional or other
special rights, and such qualifications, limitations or restrictions thereof,
as shall be stated and expressed in the resolution or resolutions adopted by
the Board providing for the issue of such series (a "Preferred Stock
Designation") and as may be permitted by the General Corporation Law of the
State of Delaware. The number of authorized shares of Preferred Steak may be
increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority of the
voting power of all of the then outstanding shares of the capital stock of
the corporation entitled to vote generally in the election of directors,
voting together as a single class, without a separate vote of the holders of
the Preferred Stock, or any series thereof, unless a vote of any such holders
is required pursuant to any Preferred Stock Designation.
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ARTICLE V
Unless and except to the extent that the bylaws of the Corporation
shall so require, the election of directors of the Corporation need not be by
written ballot.
ARTICLE VI
In furtherance and not in limitation of the powers conferred by law,
the Board is expressly authorized and empowered to make, alter, amend and
repeal the bylaws of the Corporation by a majority vote of the directs
present at any meeting at which a quorum is present, or by written consent in
accordance with the General Corporation Law of the State of Delaware.
ARTICLE VII
The Corporation reserves the right at any time from time to time to
amend, alter, change or repeal any provision contained in this 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 any other persons
whomsoever by and pursuant to this Certificate of Incorporation in its
present form or as hereafter amended are granted subject to the right
reserved in this Article.
ARTICLE VIII
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. If the Delaware General
Corporation Law 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 Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by
the stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such
repeal or modification.
Section 2. INDEMNIFICATION AND INSURANCE.
(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
threatened, pending or completed 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
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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 General Corporation Law of the State of Delaware, as the
same exists or may hereafter be amended (but, in the case of any such
amendment, to the fullest extent permitted by law, 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 attorneys'
fees, judgments, fines, amounts paid or to be paid in settlement, and excise
taxes or penalties arising under the Employee Retirement Income Security Act
of 1974) 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 for part thereof) initiated by such person only if such proceeding
(or part thereof) was authorized by the Board. 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 General Corporation Law of the State of Delaware requires, the payment
of such expanses incurred 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 the Board 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 make it permissible under the General
Corporation Law of the State of Delaware 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, 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 General Corporation Law of
the State of Delaware, nor an actual determination by the Corporation
(including its Board, 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 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, bylaws, agreement, vote of
stockholders or disinterested directors or otherwise.
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(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 General Corporation Law of the State of
Delaware.
ARTICLE IX
The Corporation shall not be governed by Section 203 of the
General Corporation Law of the State of Delaware.
ARTICLE X
The incorporator is Janice L. Caldwell, whose mailing address
is: Irell & Manella LLP, 333 South Hope Street, Suite 3300, Los Angeles,
California 90071.
I, THE UNDERSIGNED, being the incorporator; for the purpose of
forming a corporation under the laws of the State of Delaware do make, file
and record this Certificate of Incorporation, and, accordingly, have hereto
set my hand this 12th day of May, 2000.
/s/ JANICE L. CALDWELL
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Janice L. Caldwell, Incorporator
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