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EXHIBIT 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
M-TRON INDUSTRIES, INC.
M-Tron Industries, Inc., a corporation organized and existing
under the laws of the State of Delaware (hereinafter referred to as the
"Corporation") hereby certifies as follows:
1. The name of the Corporation is M-Tron Industries, Inc. The
Corporation's original Certificate of Incorporation was filed with the Secretary
of State of the State of Delaware on August 4, 2000 (the "Certificate").
2. Pursuant to Sections 242 and 245 of the General Corporation
Law of the State of Delaware, and having been adopted in accordance therewith,
this Amended and Restated Certificate of Incorporation restates and amends the
provisions of the Certificate, as heretofore amended and restated. The
amendments contained therein have been duly adopted by written consent of the
holders of at least 66 2/3% of the outstanding stock entitled to vote thereon
in accordance with Section 228 of the General Corporation Law of the State of
Delaware.
3. The text of the Certificate, as heretofore amended and
restated, hereby is amended and restated to read in its entirety as follows:
ARTICLE I
The name of the corporation (the "Corporation") is M-Tron
Industries, Inc.
ARTICLE II
The address of the Corporation's registered office in the
State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City
of Wilmington, County of New Castle, Delaware 19801. The name of the
Corporation's registered agent at such address is The Corporation Trust Company.
ARTICLE III
The nature of the business or purpose to be conducted or
promoted is to be engaged in any lawful act or activity for which corporations
may be organized under the General Corporation Law of the State of Delaware.
ARTICLE IV
AUTHORIZED STOCK
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The total number of shares of capital stock of all classes
that the Corporation will have the authority to issue is twenty five million
(25,000,000) shares, of which: (i) twenty six million (26,000,000) shares, of a
par value of $0.01 per share, shall be Common Stock (the "Common Stock"), twelve
million (12,000,000) shares of which shall be of a class designated as the
"Class A Common Stock" and thirteen million (13,000,000) shares of which shall
be of a class designated as the "Class B Common Stock"; and (ii) one million
(1,000,000) shares, of a par value of $0.01 per share, shall be designated
"Preferred Stock."
COMMON STOCK
1. VOTING. Each holder of a share of Class A Common Stock
issued and outstanding shall have one vote per share on all matters on which a
holder is entitled to vote and each holder of a share of Class B Common Stock
issued and outstanding shall have five (5) votes per share on all matters on
which a holder is entitled to vote. The shares of Class A Common Stock and Class
B Common Stock shall be voted together without distinction as to class.
2. CONVERSION.
(a) AUTOMATIC CONVERSION. In the event that Lynch Corporation,
a Delaware corporation ("Lynch") distributes the shares of Class B Common Stock
held by it to the holders of the common stock of Lynch, each such share of Class
B Common Stock so distributed automatically shall convert on a one-for-one basis
(subject to adjustment for stock splits, reverse splits or similar
recapitalizations affecting such shares) into a fully paid and nonassessable
share of Class A Common Stock without any action by the holder thereof on the
fifth anniversary of the date of such distribution; PROVIDED that Lynch, in its
sole discretion, shall have the option to accelerate such automatic conversion
by (1) giving written notice to the Corporation that it elects to exercise its
right to accelerate such conversion and (2) specifying in such written notice
the date on which such conversion shall occur. In the event that Lynch transfers
any shares of Class B Common Stock to a person or entity other than an Affiliate
(as defined below) of Lynch, the shares of Class B Common Stock so transferred
automatically shall convert on a one-for-one basis (subject to adjustment for
stock splits, reverse splits or similar recapitalizations affecting such shares)
into fully paid and non-assessable shares of Class A Common Stock. For purposes
of this subparagraph (a), an Affiliate of Lynch shall mean any person or entity
directly or indirectly controlling, controlled by or under common control with
Lynch (for purposes of this definition, "control" as used with respect to a
person or entity, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of management and policies of such person
or entity, whether by ownership of voting securities, by contract or otherwise).
(b) METHOD OF CONVERSION. Upon the occurrence of any of the
events specified in subparagraph (a) above, the shares of Class B Common Stock
that are subject to conversion shall be converted automatically without any
further action by the Corporation or the holders of such shares and whether or
not the certificates representing such shares are surrendered to the Corporation
or its transfer agent; PROVIDED, HOWEVER, that the Corporation shall not be
obligated to issue certificates evidencing the shares of Class A Common Stock
issuable upon such
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conversion unless the certificates evidencing such shares of Class B Common
Stock either are delivered to the Corporation or its transfer agent as provided
below, or the holder notifies the Corporation or its transfer agent that such
certificates have been lost, stolen or destroyed and executes an agreement
satisfactory to the Corporation to indemnify the Corporation from any loss
incurred by it in connection with such certificates. Upon the occurrence of such
automatic conversion of the Class B Common Stock, each holder of Class B Common
Stock shall surrender the certificate(s) representing such holder's shares at
the office of the Corporation or any transfer agent for the Class A Common Stock
or the Class B Common Stock, as applicable. Thereupon, there shall be issued and
delivered to such holder or to such holder's nominee or nominees, a certificate
or certificates for the number of shares of Class A Common Stock into which the
shares of Class B Common Stock surrendered were convertible on the date on which
the automatic conversion occurred.
Prior to issuing a certificate for shares of Class A Common
Stock to other than the registered owner of any shares of Class B Common Stock
being converted, the Corporation shall be entitled to receive such evidence as
it reasonably may request that such issuance may be made in compliance with
applicable federal and state securities laws.
PREFERRED STOCK
Shares of Preferred Stock may be issued from time to time in
one or more series. The Board of Directors of the Corporation (the "Board of
Directors" or the "Board") hereby is authorized to determine and alter all
rights, preferences, privileges and qualifications, and all limitations and
restrictions thereof (including, without limitation, voting rights and the
limitation and exclusion thereof) granted to or imposed upon any wholly unissued
series of Preferred Stock and the number of shares constituting any such series
and the designation thereof, and to 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 issuance of shares of that series then outstanding. In
the event that the number of shares of any series is so decreased, the shares
constituting such reduction shall resume the status which such shares had prior
to the adoption of the resolution originally fixing the number of shares of such
series.
ARTICLE V
The number of the directors of the Corporation shall be fixed
from time to time by or pursuant to the Bylaws of the Corporation. At each
annual meeting of the stockholders of the Corporation, the directors shall be
elected to hold office until such person's successor is elected and qualified or
until such person's death, retirement, resignation or removal. The directors
need not be stockholders.
ARTICLE VI
The Board of Directors expressly is empowered to adopt, amend
or repeal the Bylaws of the Corporation. Any adoption, amendment or repeal of
the Bylaws of the Corporation by the
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Board of Directors shall require the approval of a majority of the total number
of authorized directors (whether or not there exists any vacancy in previously
authorized directorships at the time any resolution providing for adoption,
amendment or repeal is presented to the Board). The stockholders also shall have
power to adopt, amend or repeal the Bylaws of the Corporation.
ARTICLE VII
(a) Each person who was or is made a party or is threatened to
be made a party to 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, limited liability company, trust or other enterprise, including
service with respect to employee benefit plans, whether or not the basis of such
proceeding is alleged action in an official 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 hereafter may 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 attorneys' fees, judgments, fines, taxes or
penalties and amounts paid or to be paid in settlement) actually and reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall inure to the benefit of his or her heirs, executors and
administrators; PROVIDED, HOWEVER, that, except as provided in subparagraph (b)
hereof, indemnification in connection with a proceeding (or part thereof)
initiated by such person shall be permitted hereunder only if such proceeding
(or part thereof) was authorized by the Board of Directors of the Corporation.
The right to indemnification conferred in this Article VII 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 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 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 ultimately shall be determined that such
director or officer is not entitled to be indemnified under this Article VII or
otherwise. The Corporation, by action of its Board of Directors, may provide
indemnification to employees and agents (including any nonvoting observers to
the Board of Directors or any committee thereof) of the Corporation with the
same scope and effect as the foregoing indemnification of directors and
officers.
(b) If a claim under subparagraph (a) of this Article VII is
not paid in full by the Corporation within thirty (30) 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 or otherwise to enforce his or her rights to indemnification and
payment of expenses
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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 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) The right to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Article VII shall not be exclusive of any other right which any person
may have or hereafter acquire under any statute, provision of this Amended and
Restated Certificate of Incorporation, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
(d) 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.
ARTICLE VIII
The personal liability of the directors of the Corporation
hereby is eliminated to the fullest extent permitted by paragraph (7) of
subsection (b) of Section 102 of the General Corporation Law of the State of
Delaware, as the same may be amended and supplemented.
ARTICLE IX
The Corporation is to have perpetual existence.
ARTICLE X
The Corporation reserves the right at any time, and from time
to time, to amend, alter, change or repeal any provision contained in this
Amended and Restated Certificate of Incorporation, and to add or insert other
provisions authorized by the laws of the State of Delaware at the time in force,
in the manner now or hereafter prescribed by law; and all rights, preferences
and privileges
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of whatsoever nature conferred upon stockholders, directors or any other person
whomsoever by and pursuant to this Amended and Restated Certificate of
Incorporation in its present form or as hereafter amended are granted subject to
the rights reserved in this Article X.
IN WITNESS WHEREOF, the Corporation has caused this Amended
and Restated Certificate of Incorporation to be signed by its President and
Secretary as of the 10th day of January, 2001.
ATTEST: M-TRON INDUSTRIES, INC.,
a Delaware corporation
By: /s/ Robert A. Hurwich By: /s/ Robert R. Zylstra
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Robert A. Hurwich, Secretary Robert R. Zylstra, President
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