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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
DYNATECH CORPORATION
(as amended)
FIRST: The name of the corporation is Dynatech Corporation (the
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"Corporation").
SECOND: The Corporation's registered office in the State of Delaware is c/o
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Corporation Trust Center, 1209 Orange Street in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD: The nature of the business of the Corporation and its purpose is to
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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 all classes of stock which the
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Corporation shall have authority to issue is 350,100,000 shares, consisting of
350,000,000 shares of Common Stock, par value $.01 per share, and 100,000 shares
of Preferred Stock, par value $1.00 per share.
The Preferred Stock may be issued at any time and from time to time in one
or more series. The Board of Directors is hereby authorized to provide for the
issuance of shares of Preferred Stock in series and, by filing a certificate of
designation pursuant to the applicable provisions of the General Corporation Law
of the State of Delaware (hereinafter referred to as a "Preferred Stock
Certificate of Designation"), to establish from time to time the number of
shares to be included in each such series, and to fix the designation, powers,
preferences and rights of shares of each such series and the qualifications,
limitations and restrictions thereof.
The authority of the Board of Directors with respect to each series of
Preferred Stock shall include, but not be limited to, determination of the
following:
(a) the designation of the series, which may be by distinguishing number,
letter or title;
(b) the number of shares of the series, which number the Board of Directors
may thereafter (except where otherwise provided in the applicable Preferred
Stock Certificate of Designation) increase or decrease (but not below the number
of shares thereof then outstanding);
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(c) whether dividends, if any, shall be cumulative or noncumulative and the
dividend rate of the series;
(d) the dates on which dividends, if any, shall be payable;
(e) the redemption rights and price or prices, if any, for shares of the
series;
(f) the terms and amount of any sinking fund provided for the purchase or
redemption of shares of the series;
(g) the amounts payable on shares of the series in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the affairs
of the Corporation;
(h) whether the shares of the series shall be convertible or exchangeable
into shares of any other class or series, or any other security, of the
Corporation or any other corporation, and, if so, the specification of such
other class or series or such other security, the conversion or exchange price
or prices or rate or rates, any adjustments thereof, the date or dates as of
which such shares shall be convertible or exchangeable and all other terms and
conditions upon which such conversion or exchange may be made;
(i) restrictions on the issuance of shares of the same series or of any
other class or series;
(j) the voting rights, if any, of the holders of shares of the series; and
(k) such other terms and provisions as the Board of Directors may
determine.
FIFTH: The name and mailing address of the incorporator is as follows:
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Andrew S. Borodach
c/o Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
SIXTH: The following provisions are inserted for the management of the
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business and for the conduct of the affairs of the Corporation and for the
purpose of creating, defining, limiting and regulating the powers of the
Corporation and its directors and stockholders:
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(a) The number of Directors constituting the Board of Directors shall be as
set forth in, or determined by the Board of Directors in accordance with, the
By-Laws of the Corporation. The Board of Directors shall be divided into three
classes, designated Classes I, II and III, which shall be as nearly equal in
number as possible. Directors of Class I shall be elected at any time on and
after the date of filing of this Certificate of Incorporation with the Secretary
of State of the State of Delaware to hold office for an initial term expiring at
the annual meeting of stockholders to be held in 2001. Directors of Class II
shall be elected at any time on and after the date of filing of this Certificate
of Incorporation with the Secretary of State of the State of Delaware to hold
office for an initial term expiring at the annual meeting of stockholders to be
held in 2002. Directors of Class III shall be elected at any time on and after
the date of filing of this Certificate of Incorporation with the Secretary of
State of the State of Delaware to hold office for an initial term expiring at
the annual meeting of stockholders to be held in 2000; provided that, prior to
the annual meeting of stockholders to be held in 2000, the Board of Directors
may, by resolution duly adopted, create and appoint one or more persons to fill
one or more Class III Directorships up to a number not to exceed the number of
Directors in Class I for an interim term expiring at the annual meeting of
stockholders to be held in 2000. At each annual meeting of stockholders
following the annual meeting of stockholders to be held in 2000, the respective
successors of the Directors whose terms are expiring shall be elected for terms
expiring at the annual meeting of stockholders held in the third succeeding
year. Vacancies in the Board of Directors and newly-created Directorships
resulting from any increase in the authorized number of Directors may be filled
as provided in the By-Laws. Directors may be removed, with or without cause, by
the holders of a majority of the shares then entitled to vote at an election of
Directors.
(b) The election of directors may be conducted in any manner approved by
the stockholders at the time when the election is held and need not be by
ballot.
(c) All corporate powers and authority of the Corporation (except as at the
time otherwise provided by law, by this Certificate of Incorporation or by the
By-Laws) shall be vested in and exercised by the Board of Directors.
(d) The Board of Directors shall have the power without the assent or vote
of the stockholders to adopt, amend, alter or repeal the By-Laws of the
Corporation, except to the extent that the By-Laws or this Certificate of
Incorporation otherwise provide.
(e) No director of the Corporation shall be liable to the Corporation or
its stockholders for monetary damages for breach of his or her fiduciary duty as
a
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director, provided that nothing contained in this Certificate of Incorporation
shall eliminate or limit the liability of a director (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 the law, (iii) under Section 174 of the General Corporation
Law of the State of Delaware or (iv) for any transaction from which the director
derived an improper personal benefit.
SEVENTH: The Corporation reserves the right to amend, alter, change or
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repeal any provision contained in this certificate in the manner now or
hereafter prescribed by statute; and all rights herein conferred upon the
stockholders are granted subject to this reservation.
IN WITNESS WHEREOF, I, the undersigned, being the incorporator hereinabove
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, do make and file this Certificate of
Incorporation, hereby declaring and certifying that the facts herein stated are
true, and accordingly have hereunto set my hand this 8th day of September, 1999.
/s/ Andrew S. Borodach
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Andrew S. Borodach
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