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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
PMC-SIERRA, INC.
ARTICLE I
The name of this corporation is PMC-Sierra, Inc. (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 this corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
Delaware.
ARTICLE IV
This corporation is authorized to issue two classes of stock to be
designated, respectively, "Common Stock" and "Preferred Stock." The Corporation
is authorized to issue a total of 205,000,000 shares. 200,000,000 shares shall
be Common Stock, par value $0.001, and 5,000,000 shares shall be Preferred
Stock, par value $0.001.
The Preferred Stock may be issued from time to time in one or more series.
The Board of Directors is 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 to increase, or to decrease (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 of
Preferred Stock, but not below the number of shares of any such series then
outstanding) the number of shares of any such series subsequent to the issue of
shares of that series. In case the number of shares of any series of Preferred
Stock shall be so decreased, the shares constituting the decrease shall resume
the status which they had prior to the adoption of the resolution originally
fixing the number of shares of such 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;
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(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 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 Restated
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.
ARTICLE VII
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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
In the event any shares of Preferred Stock shall be redeemed or converted
pursuant to the terms hereof, the shares so converted or redeemed shall not
revert to the status of authorized but unissued shares, but instead shall be
canceled and shall not be re-issuable by the Corporation.
ARTICLE IX
Holders of stock of any class or series of this Corporation shall be
entitled to cumulate their votes for the election of directors pursuant to
Section 214 of the Delaware General Corporation Law.
ARTICLE X
1. Number of Directors. The number of directors 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 need not be by written
ballot unless demanded by any stockholder at the meeting and before the voting
has begun or the Bylaws of the Corporation shall so provide.
ARTICLE XI
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 XII
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The stockholders of the Corporation shall not act by written consent,
except solely to call a special meeting of the stockholders in accordance with
the following procedures:
Upon request by written consent of holders of a majority of the
outstanding shares, containing the information described below, sent
by registered mail to the president or chief executive officer, the
board of director shall determine a place and time for such meeting
and a record date for the determination of stockholders entitled to
vote at such meeting. Such time shall not be more than 75 days after
determination of the validity of such request. The board of directors
shall have no more than 10 days after receipt of such request to
determine its validity. Following such receipt and determinations,
the secretary shall give notice to the stockholders entitled to vote
at such meeting that a meeting will be held at the place and time so
determined.
The request by written consent shall state each action the requesting
stockholders propose to take at such meeting. The board of directors
may include other proposals to be considered at such meeting.
The requesting stockholders shall provide to the Corporation
information regarding any material interest in the proposal held by
the requesting stockholders and any other information that would be
required to be disclosed in filings with the Securities and Exchange
Commission in connection with the solicitation of proxies.
ARTICLE XIII
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.
ARTICLE XIV
The name and mailing address of the incorporator are:
Noga D. Spira, Esq.
Wilson, Sonsini, Goodrich & Rosati
650 Page Mill Road
Palo Alto, California 94304-1050
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The undersigned incorporator hereby acknowledges that the above Certificate
of Incorporation of PMC-Sierra, Inc. is her act and deed and that the facts
stated therein are true.
Dated: May 2, 1997 /s/ Noga D. Spira
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Noga D. Spira
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