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EXHIBIT 3.1
RESTATED
ARTICLES OF INCORPORATION
OF COMARCO, INC.
ROBERT E. WATTENBERG and DON M. BAILEY certify that:
1. They are the vice president and the secretary, respectively, of
COMARCO INC., a California corporation (the "Corporation").
2. The articles of incorporation of the Corporation as amended to the
date of the filing of this certificate, including amendments set forth herein
but not separately filed, are restated to read as follows:
I.
The name of this Corporation is COMARCO, INC.
II.
The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of California other than the banking business, the trust company business or
the practice of a profession permitted to be incorporated by the California
Corporations Code.
III.
1. The corporation is authorized to issue two classes of shares
designated "Preferred Stock" and "Common Stock", respectively. The number of
shares of Preferred Stock authorized to be issued is 10,000,000 and the number
of shares of Common Stock authorized to be issued is 33,705,000. Upon amendment
of this Article to read as herein set forth, each outstanding share is converted
into or reconstituted as one Common share.
2. The Preferred Stock may be divided into such number of series as the
board of directors may determine. The board of directors is authorized to
determine and 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
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number of shares constituting any series, may increase or
decrease (but not below the number of shares of such series then outstanding)
the number of shares of any series subsequent to the issue of shares of that
series.
IV.
The Corporation elects to be governed by the General Corporation Law (as
added to the California Corporations Code effective January 1, 1977, and as
subsequently amended) not otherwise applicable to this Corporation under Chapter
23 of said General Corporation Law.
V.
The By-laws of the Corporation may be adopted, repealed, rescinded,
altered or amended in any respect by the stockholders of the Corporation, but in
the case of Article III, Sections 12 and 13 and Article IV, Section 8, only by
the affirmative vote of the holders of not less than sixty-six and two-thirds
percent of the voting power of all outstanding shares of Voting Stock,
regardless of class and voting together as a single class.
VI.
Any action required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called Annual Meeting or special meeting
of stockholders of the Corporation
VII.
1. Subject to the provisions of Section 2 of this Article VII, in
addition to any vote required by law, a Business Combination (as herein defined)
shall be approved by the affirmative vote of the holders of not less than
sixty-six and two-thirds percent of the voting power of all outstanding shares
of Voting Stock, regardless of class and voting together as a single class.
The affirmative vote referred to in this Section 1 shall be required
notwithstanding the fact that, no vote may be required, or that a lesser
percentage or proportion may be specified by law, or in any agreement between
the Corporation and any national securities exchange or any other person, or
otherwise.
2. Notwithstanding the provisions of Section 1 of this Article VII, a
Business Combination may be approved if all of the conditions specified in
either of the following paragraphs (a) or (b) have been satisfied:
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(a) both of the following conditions specified in clauses (i)
and (ii) of this paragraph (a) have been satisfied:
(i) there are one or more Continuing Directors and such
Business Combination shall have been approved by a majority of the members of
the Board of Directors of the Corporation (without counting any director who is
not a Continuing Director); and
(ii) such Business Combination shall have been approved
by the affirmative vote of the Corporation's stockholders required by law, if
any such vote is so required; or
(b) all of the following conditions specified in clauses (i)
though (vii) of this paragraph (b) have been satisfied:
(i) such Business Combination shall have been approved
by the affirmative vote of holders of a majority of the voting power of all
outstanding shares of Voting Stock, regardless of class and voting together as a
single voting class;
(ii) the aggregate amount of (A) the cash and (B) the
Fair Market Value (as hereinafter defined) as of the date of the consummation of
the Business Combination (the "Consummation Date") of consideration other than
cash received or to be received per share by holders of shares of Common Stock
in such Business Combination shall be at least equal to the higher of the
following:
(I) (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes and soliciting dealers'
fees) paid or agreed to be paid by the Interested Stockholder which is (or the
Affiliate or Associate of which is) a party to such Business Combination for any
shares of Common Stock (x) within the two-year period immediately prior to and
including the date of the final public announcement of the terms of the proposed
Business Combination (the "Announcement Date"), or (y) in the transaction in
which it became an Interested Stockholder, whichever is higher; or
(II) the Fair Market Value per share of Common
Stock (x) on the Announcement Date, or (y) on the date on which the Interested
Stockholder became an Interested Stockholder (the "Determination Date"),
whichever is higher;
(iii) the aggregate amount of (A) the cash and (B) the
Fair Market Value, as of the Consummation Date, of consideration other than cash
received or to be received, per share, by holders of shares of any class of
outstanding Voting Stock other than Common Stock in such Business Combination,
shall be at least equal to the highest of the following (it being intended that
the requirements of this clause (iii) shall be required to be met with respect
to every class of outstanding Voting Stock other than Common Stock, whether or
not such Interested Stockholder [or such Affiliate or Associate] has previously
acquired any shares of a particular class of Voting Stock):
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(I) (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes and soliciting dealers'
fees) paid or agreed to be paid by the Interested Stockholder for any shares of
such class of Voting Stock (x) within the two year period immediately prior to
the Announcement Date, or (y) in the transaction in which it became and
Interested Stockholder, whichever is higher;
(II) (if applicable) the highest preferential
amount per share of which the holders of shares of such class of Voting Stock
are entitled in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation; or
(III) the Fair Market Value per share of such
class of Voting Stock (x) on the Announcement Date, or (y) on the Determination
Date, whichever is higher;
(iv) the consideration to be received by the holders of
a particular class of outstanding Voting Stock (including Common Stock) shall be
in cash or in the same form as the Interested Stockholder has previously paid
(or agreed to pay) for shares of such class of Voting Stock; if the Interested
Stockholder has paid for shares of any class of Voting Stock with varying forms
of consideration, the form of consideration to be received by holders of shares
of such class of Voting Stock shall be either cash or the form used to acquire
the largest number of shares of such class of Voting Stock previously acquired
by such Interested Stockholder, and the price determined in accordance with
clauses (ii) and (iii) of this paragraph (b) shall be subject to appropriate
adjustment in the event of any stock dividend, stock split, combination of
shares or similar event;
(v) after such Interested Stockholder has become an
Interested Stockholder, and prior to the consummation of such Business
Combination, neither such Interested Stockholder nor any of its Affiliates or
Associates shall have become the beneficial owner of any additional shares of
Voting Stock, except (A) as part of the transaction which resulted in such
Interested Stockholder becoming an Interested Stockholder, or (B) upon
conversion of convertible securities acquired by it prior to such Interested
Stockholder becoming an Interested Stockholder, or as a result of a stock split
or a pro rata stock dividend;
(vi) after such Interested Stockholder has become an
Interested Stockholder, neither such Interested Stockholder nor any of its
Affiliates or Associates shall have received the benefit, directly or indirectly
(except proportionately as a stockholder), of any loans, advances, guarantees,
pledges or other financial assistance or any tax credits or other tax advantages
provided by the Corporation, whether in anticipation of or in connection with
such Business Combination or otherwise; and
(vii) a proxy or information statement describing the
proposed Business Combination and complying with the requirements of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder (or any subsequent provisions replacing such Act , rules and/or
regulations) shall be mailed to stockholders of the Corporation at least twenty
days prior to the consummation of such Business Combination (whether or not such
proxy or
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information statement is required to be mailed pursuant to such Act, rules
and/or regulations or such subsequent provisions).
VIII.
No purchase or other acquisition, directly or indirectly, in one or more
transactions, of any Voting Stock or any Voting Stock Right known by the
Corporation to be beneficially owned by any Prohibited Stockholder who has
beneficially owned the same for less than two years prior to the date of such
proposed purchase shall be made by the-Corporation or any Subsidiary unless,
except as hereinafter expressly provided, such purchase or acquisition is
approved by the affirmative vote of not less than sixty-six and two-thirds
percent of the voting power of all outstanding shares of Voting Stock,
regardless of class and voting together as a single class.
Such affirmative vote shall be required notwithstanding the fact that no
vote may be required, or that a lesser percentage may be specified, by law or
any agreement with any national securities exchange, or otherwise, but no such
affirmative vote shall be required with respect to any purchase or other
acquisition by the Corporation or any Subsidiary of Voting Stock or Voting Stock
Rights (a) at or below Fair Market Value; (b) made as a part of a tender or
exchange offer made on the same terms to all holders of such securities and
complying with the applicable requirements of the Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder; or (c) in a Public
Transaction.
IX.
1. For the purposes for these Articles of Incorporation, the following
definitions shall apply:
(a) "Affiliate" and "Associate" have the respective meanings
given to those terms in Rule 12b-2 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as amended.
(b) A person is the "beneficial owner" of any shares of capital
stock:
(i) which such person or any of its Affiliates or
Associates beneficially owns, directly or indirectly;
(ii) which such person or any of its Affiliates or
Associates has (A) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion rights, exchange
right, warrants or options, or otherwise, or (B) the right to vote pursuant to
any agreement, arrangement or understanding; or
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(iii) which are beneficially owned, directly or
indirectly, by any other person with which such first-mentioned person or any of
its Affiliates or Associates has any agreement, arrangement or understanding for
the purpose of acquiring, holding, voting or disposing of any shares of capital
stock of the Corporation or a Subsidiary, as the case may be.
(c) "Business Combination" means any one or more of the
following transactions referred to in clauses (i) through (v) of this paragraph
(c):
(i) any merger or consolidation of the Corporation or
any Subsidiary (as defined in paragraph (k) of this Section 1) with or into (A)
any Interested Stockholder or (B) any other corporation (whether or not itself
an Interested Stockholder) which immediately before such merger or consolidation
is, or after such merger or consolidation is, or after such merger or
consolidation would be, an Affiliate or Associate of an Interested Stockholder.
(ii) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a series of related
transactions) to or with any Interested Stockholder, Affiliate and/or any
Associate of any Interested Stockholder of any assets of the Corporation and/or
any Subsidiary, where such assets have an aggregate Fair Market Value of
$5,000,000 or more;
(iii) the issuance or transfer by the Corporation and/or
any Subsidiary (in one transaction or a series of related transactions) of any
equity securities of the Corporation and/or any Subsidiary to a person which,
immediately prior to such issuance or transfer, is an Interested Stockholder or
an Affiliate or Associate of an Interested Stockholder, where such equity
securities have an aggregate Fair Market Value of $2,000,000 or more;
(iv) any reclassification of securities (including any
reverse stock split) or recapitalization of the Corporations, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any similar
transaction (whether or not with or into or otherwise involving an Interested
Stockholder, which has the effect, directly or indirectly, of increasing the
percentage of the outstanding shares of any class of equity or convertible
securities of the Corporation or any Subsidiary which is directly or indirectly
owned by any Interested Stockholder or by any Affiliate and/or Associate of any
Interested Stockholder; or
(v) any agreement, contract or other arrangement
providing for any of the transactions described in clauses (i) through (iv) of
this paragraph (c).
(d) "Consideration other than cash received or to be received"
as used in clauses (ii) and (iii) of paragraph (b) of Section 2 of Article VII
shall include, in the event of any Business Combination in which the Corporation
survives, the shares of Common Stock and/or shares of any other class of Voting
Stock retained by the holder of such shares.
(e) "Continuing Director" means (i) any member of the Board of
Directors of the Corporation who (A) is not an Interested Stockholder or an
Affiliate or Associate of an Interested Stockholder and (B) was a member of the
Board of Directors prior to the time that an
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Interested Stockholder became an Interested Stockholder, and (ii) any person who
is elected or nominated to succeed a Continuing Director, or to join the Board
of Directors, by a majority of the Continuing Directors.
(f) "Fair Market Value" means (i) in the case of stock (A) the
highest closing sale price during the 90-day period including and immediately
preceding the date in question of a share of such stock on the Composite Tape
for New York Stock Exchange-Listed Stocks, or (B) if such stock is not quoted on
the Composite Tape, the highest closing sale price during such 90-day period on
the New York Stock Exchange, or (C) if such stock is not listed on such
Exchange, the highest closing sale price during such 90-day period on the
principal United States securities exchange registered under the Securities
Exchange Act of 1934, as amended, on which such stock is listed, or (D) if such
stock is not listed on any such exchange, the highest closing bid quotation with
respect to a share of such stock on the National Association of Securities
Dealers, Inc. Automated Quotations System or any system then in use during such
90-day period, or (E) if no such quotations are available, the fair market value
on the date in question of a share of such stock as determined in good faith by
a majority of the Board of Directors; and (ii) in case of property other than
cash or stock, the fair market value of such property on the date in question as
determined in good faith by the majority vote of the Board of Directors of the
Corporation (without counting the vote of any directory who is not a Continuing
Director), or if there are no Continuing Directors, then by a majority of the
Board.
(g) "Interested Stockholder" means any person who or which,
together with its Affiliates and Associates, as of the record date for the
determination of stockholders entitled to notice of, and to vote on, any
Business Combination, the removal of a director or the adoption of any proposed
amendment, alteration, rescission or repeal of any provision of these Articles
of Incorporation or any Bylaw, or immediately prior to the Consummation Date:
(i) is the beneficial owner (as defined in paragraph (b)
of this Section 1), directly or indirectly, of ten percent or more of the voting
power of (A) all outstanding shares of Voting Stock or (B) all outstanding
shares of the capital stock of a Subsidiary having general voting power
("Subsidiary Stock"); or
(ii) is an assignee of or has otherwise succeeded to any
share of Voting Stock or Subsidiary Stock which was, at any time within the
two-year period prior thereto, beneficially owned by any person who at such time
was an Interested Stockholder, and such assignment or succession shall have
occurred in the course of a transaction or series of transactions not involving
a public offering within the meaning of the Securities Act of 1933, as amended,
and the rules and regulations thereunder (or any subsequent provisions replacing
such Act, rules and/or regulations); provided, however, that the term
"Interested Stockholder" shall not include (A) the Corporation or any Subsidiary
or (B) any profit sharing, employee stock ownership or other employee benefit
plan or trust of or of the Corporations or any Subsidiary, or any trustee of, or
fiduciary with respect to, any such plan when acting in such capacity.
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(h) "Person" means an individual, firm, partnership, trust,
corporation or other entity (including a "group" within the meaning of Section
13(d) of the Securities Exchange Act of 1934, as amended).
(i) "Prohibited Stockholder"'means any person (other than (A)
the Corporation or any Subsidiary of (B) any profit sharing, employee stock
ownership or other employee benefit plan or trust of or for the benefit of the
Corporation or any Subsidiary, or any trustee or fiduciary with respect to, any
such plan when acting in such capacity) who or which:
(i) is the beneficial owner, directly or indirectly, of
more than five percent of any class of Voting Stock (or Voting Stock Rights with
respect to more than five percent of any such class); or
(ii) at any time within the two-year period immediately
prior to the date in question was the beneficial owner, directly or indirectly,
of more than five percent of any class of Voting Stock (or Voting Stock Rights
with respect to more than five percent of any such class); or
(iii) is an assignee of or has otherwise succeeded to
any shares of any class of Voting Stock (or Voting Stock Rights with respect to
more than five percent of any such class) which were at any time within the
two-year period immediately prior to the date in question beneficially owned by
a Prohibited Stockholder, unless such assignment or succession shall have
occurred pursuant to any Public Transaction or a series of transactions
including a Public Transaction.
(j) "Public Transaction" means any (i) purchase of shares
offered pursuant to an effective registration statement under the Securities Act
of 1933, as amended, or (ii) open market purchases of shares if, in either such
case, the price and other terms of sale are not negotiated by the purchaser and
seller of the beneficial interest in the shares.
(k) "Subsidiary" means any corporation of which a majority of
any class of equity security (as defined in Rule 3a11-l of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended) is owned,
directly or indirectly, by the corporation.
(l) "Voting Stock" means the capital stock of the Corporation
having general voting power. For the purpose of determining whether a person is
a Interested Stockholder pursuant to paragraph (g) of this Section 1, the number
of shares of Voting Stock or Subsidiary Stock, as the case may be, deemed to be
outstanding shall include shares deemed owned by a beneficial owner through
application of paragraph (b) of this Section 1, but shall not include any other
shares of Voting Stock of Subsidiary Stock, as the case may be, which may be
issuable to any other person pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights warrants or options, or
otherwise.
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(m) "Voting Stock Right" means any security convertible into,
and any warrant, option or other right of any kind to acquire beneficial
ownership of, any Voting Stock, other than securities issued pursuant to any
employee benefit plans of the Corporation or any Subsidiary.
2. The Board of Directors of the Corporation, acting by vote of a
majority of the members thereof (without counting the vote of any director who
is not a Continuing Director), shall have the power and duty to determine, for
purposes of Article VII and VIII of these Articles of Incorporation, on the
basis of information known to them: (a) whether a person is an Interested
Stockholder; (b) the number of shares of Voting Stock or Subsidiary Stock
beneficially owned by any person; (c) whether a person is an Affiliate or
Associate of another person; (d) whether a person has an agreement, arrangement
or understanding with another person as to the matters referred to in clause
(ii) or (iii) of paragraph (b), or an agreement, contract or other arrangement
referred to in clause (v) of paragraph (c), of Section 1 of this Article IX; (e)
whether any particular assets of the Corporation and/or any Subsidiary have an
aggregate Fair Market Value of $5,000,000 or more; or (f) whether equity
securities issued or transfer by the Corporation and/or any Subsidiary to an
Interested Stockholder or its Affiliate or Associate have an aggregate Fair
Market Value of $2,000,000 or more. In furtherance and not in limitation of the
aforesaid powers and duties, the Board of Directors of the Corporations, acting
by vote of a majority of the members thereof (without counting the vote of any
director who is not a Continuing Director), shall have the power and duty to
interpret all of the terms and provisions of this Article IX.
3. Nothing contained in Articles VII and VIII of these Articles of
Incorporation shall be construed to relieve any Interested Stockholder or
Prohibited Stockholder or any Affiliate or Associate thereof from any fiduciary
obligation imposed by law.
4. The fact that any action or transaction complies with the provisions
of Article VII and VIII of these Articles of Incorporation shall not be
construed to impose any fiduciary duty, obligation or responsibility on the
Board of Directors or any member thereof to approve such action or transaction
or recommend its adoption or approval to the stockholder of the Corporation, nor
shall such compliance limit, prohibit or otherwise restrict in any manner the
Board of Directors, or any member thereof, with respect to evaluations of, or
actions and responses taken with respect to, such action or transaction.
X.
The provisions set forth in this Article X and in Articles V, VI, VII,
VIII and IX hereof may not be repealed, rescinded, altered or amended in any
respect, and no other provision may be adopted which impairs in any respect the
operation or effect of any such provision, except by the affirmative vote of the
holders of not less than sixty-six and two-thirds percent of the voting power of
all outstanding shares of action is approved by the Board of Directors of the
Corporation (without counting any director who is not a Continuing Director),
the affirmative
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vote of a majority of the voting power of all outstanding shares of Voting
Stock, regardless of class and voting together as a single class, shall be
required for approval of such action.
XI.
The liability of the Directors of the Corporation for monetary damages
shall be eliminated to the fullest extent permissible under California law.
XII.
The Corporation is authorized to provide indemnification of agents (as
defined in Section 317 of the Corporations Code) for breach of duty to the
corporation and its stockholders through by-law provisions or through agreement
with the agents, or both, in excess of the indemnification otherwise permitted
by Section 317 of the Corporations Code, subject to the limits on such excess
indemnification set forth in Section 204 of the Corporations Code.
3. The foregoing amendments and restatement of articles of incorporation
have been duly approved by the board of directors.
4. The article amendments, included in the restated articles of
incorporation, have been duly approved by the required vote of shareholders in
accordance with Section 902 of the Corporations Code. The total number of
outstanding shares of the Corporation is 4,396,079. The number of shares voting
in favor of the amendment equaled or exceeded the vote required. The percentage
vote required for the approval of the amendments was more than 50%.
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We further declare under penalty of perjury under the laws of the State
of California that the matters set forth in this certificate are true and
correct of our own knowledge.
Date: September 7, 1988
/s/ Robert E. Wattenberg
------------------------------------
ROBERT E. WATTENBERG, Vice President
/s/ Don M. Bailey
------------------------------------
DON M. BAILEY, Secretary
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CERTIFICATE OF AMENDMENT
OF
RESTATED ARTICLES OF INCORPORATION
OF
COMARCO, INC.
Thomas A. Franza and Evelyn Evans certify that:
1. They are the President and Secretary, respectively, of
Comarco, Inc., a California corporation.
2. Paragraph 1 of Article III of the Restated Articles of
Incorporation of this Corporation is amended to read in its entirety as follows:
"The Corporation is authorized to issue two classes of shares
designated "Preferred Stock" and "Common Stock", respectively.
The number of shares of Preferred Stock authorized to be issued
is 10,000,000 and the number of shares of Common Stock
authorized to be issued is 50,625,000. Effective upon the filing
of this Certificate of Amendment, every one (1) outstanding
share of Common Stock is split into one and one-half (1.5)
shares of Common Stock. In lieu of any fractional share to which
a holder would otherwise be entitled, the Corporation shall pay
cash equal to such fraction multiplied by the fair market value
of one share of Common Stock (post-split) as determined by the
Board of Directors of the Corporation."
3. The foregoing amendment of the Restated Articles of
Incorporation was approved by unanimous vote of the Board of Directors pursuant
to Section 902(c) of the California Corporations Code, and was entitled to be
approved by the Board of Directors alone pursuant to Section 902(c) because the
foregoing amendment effects only a stock split and a proportionate increase in
the number of authorized shares of Common Stock. The Corporation is authorized
to issue two (2) classes of shares, Preferred Stock and Common Stock, and only
one (1) class of shares, Common Stock, is outstanding.
4. This Amendment shall become effective on October 27,
2000.
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Each of the undersigned further declares under the penalty of perjury
under the laws of the State of California that the matters set forth in this
Certificate are true and correct of our own knowledge.
Date: September 29, 2000
/s/ Thomas A. Franza
-----------------------------
Thomas A. Franza
President
/s/ Evelyn Evans
-----------------------------
Evelyn Evans
Secretary
