**EXHIBIT 3.1**

 

AMENDED AND RESTATEDCERTIFICATE OF INCORPORATIONOFSMTEK INTERNATIONAL, INC.

 

SMTEKInternational, Inc., a corporation organized and existing under and by virtueof the General Corporation Law of the State of Delaware (the “Corporation”), doeshereby certify the following:

 

A.     The name of the Corporation is SMTEK,International, Inc.  SMTEKInternational, Inc. was originally incorporated as DDL Companies, Inc., and theoriginal Certificate of Incorporation was filed with the Secretary of State ofthe State of Delaware on September 24, 1986.

 

B.    That pursuant to Sections 242 and 245 of theGeneral Corporation Law of the State of Delaware, this Amended and RestatedCertificate of Incorporation has been duly adopted by the Corporation’s boardof directors and stockholders, and that this Amended and Restated Certificateof Incorporation restates and integrates and further amends the provisions ofthe Amended and Restated Certificate of Incorporation of this Corporation.

 

C.    The text of the Restated Certificate ofIncorporation as heretofore amended or supplemented is hereby restated andfurther amended to read in its entirety as follows:

 

**ARTICLE ONE**

 

The name ofthe Corporation is SMTEK International, Inc. (the “Corporation”).

 

**ARTICLE TWO**

 

The name and address of the registered agent of theCorporation in the State of Delaware is:

TheCorporation Trust Company

1209 OrangeStreet

Wilmington,Delaware 19801

County of NewCastle

 

###### **ARTICLE THREE**

 

The purpose of the Corporation is to engage in anylawful act or activity for which corporations may be organized under theGeneral Corporation Law of Delaware.

 

**ARTICLE FOUR**

 

A.    TheCorporation is authorized to issue two classes of shares of stock to bedesignated respectively, ‘Common’ and ‘Preferred’; the total number of suchshares shall be 21,000,000; the total number of Common shares shall be20,000,000 and the par value of each Common share shall be one cent ($.01); andthe total number of Preferred shares shall be One Million (1,000,000) and thepar value of each Preferred share shall be one dollar ($1.00).

 

B.    The Preferred shares may be issued from time totime in one or more series.  The Boardof Directors is hereby vested with authority to fix by 

 

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resolution or resolutions the designations and the powers, preferencesand relative, participating, optional or other special rights, andqualifications, limitations or restrictions thereof, including withoutlimitation the dividend rate, conversion rights, redemption price andliquidation preference, of any series of Preferred shares, and to fix thenumber of shares constituting any such series, and to increase or decrease thenumber of shares of any such series (but not below the number of shares thereofthen outstanding).  In case the numberof shares of any such series shall be so decreased, the shares constitutingsuch decrease shall resume the status which they had prior to the adoption ofthe resolution or resolutions originally fixing the number of shares of suchseries.

 

C.    The Board of Directors had designated 250,000shares of the Preferred Stock of the Corporation as “Series A Preferred Stock,“ and the voting powers, designations, preferences, rights of the Series APreferred stock and the qualifications, limitations and restrictions thereof, beand they hereby are, as set forth below:

 

Section 1.  Designationand Amount.  The shares of suchseries shall be designated as “Series A Preferred Stock” and the number ofshares constituting such series so designated shall be 250,000 (the“Series A Preferred Stock”).  Suchnumber of shares may be increased or decreased by resolution of the Board ofDirectors; *provided*,*however*,that no decrease shall reduce the number of shares of Series A Preferred Stockto a number less than the number of shares of Series A Preferred Stock thenoutstanding plus the number of shares reserved for issuance upon the exerciseof outstanding options, rights or warrants or upon the conversion of anyoutstanding securities issued by the Corporation convertible into Series APreferred Stock.  All shares ofSeries A Preferred Stock shall in all respects be equal, and shall havethe voting powers, designations, preferences and relative, participating,optional, redemption, and other special rights, and limitations, restrictionsand qualifications thereof, hereinafter set forth.  Except as otherwise indicated herein, capitalized terms shallhave the meaning set forth in Section 11 hereof.

 

Section 2.  Dividends and Distributions.

 

(a)           Subjectto the rights of the holders of any Senior Preferred Stock, the holders ofSeries A Preferred Stock shall be entitled to receive, on January 1 ofeach year (each, a “Dividend Payment Date”), out of any assets legallyavailable therefor, payable when, as and if declared by the Board, prior and inpreference to any declaration or payment of any dividend on Junior Securities,dividends at the rate of 9% of the Purchase Price per annum (or portion thereoffrom the issuance date of such Series A Preferred Stock to the nextDividend Payment Date) on each outstanding share of Series A PreferredStock (the “Annual Preference Dividend Amount”).  Such dividends shall be payable only when, as and if declared bythe Board of Directors and shall be non-cumulative.  If dividends declared in respect of any previous or currentannual dividend period shall have not been paid on all shares of Series APreferred Stock at the Annual Preference Dividend Amount, the deficiency shallfirst be fully paid before any dividend or other distribution shall be paid on 

 

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or declared and set apartfor any holders of shares of Junior Securities.

 

(b)           Inaddition to the Annual Preference Amount, if the Corporation declares and paysdividends or distributions on the Common Stock, then, in that event, theholders of shares of Series A Preferred Stock shall be entitled to sharein such dividends or distributions on a pro rata basis, as if their shares hadbeen converted into shares of Common Stock pursuant to Section 6immediately prior to the record date for determining the stockholders of theCorporation eligible to receive such dividends or distributions.

 

Section 3.  VotingRights.

 

(a)           Exceptas provided herein or by law, each share of Series A Preferred Stock shallentitle the holder thereof on the record date to the number of votes, on allmatters submitted to a vote of the Company’s stockholders, that equals thenumber of shares of Common Stock (including fractions of a share) into whichsuch share of Series A Preferred Stock is convertible immediately prior tothe record date for determining the stockholders of the Corporation eligible tovote on such matters.

 

(b)           Exceptas otherwise provided herein, in the Certificate of Incorporation, in any othercertificate of designations creating a series of Preferred Stock or any similarstock or by law, the holders of shares of Series A Preferred Stock and theholders of shares of Common Stock and any other capital stock of theCorporation having general voting rights shall vote together as one class onall matters submitted to a vote of the stockholders of the Corporation.

 

(c)           Exceptas expressly set forth herein, or as otherwise provided by law, holders ofSeries A Preferred Stock shall have no special voting rights and their consentshall not be required (except to the extent they are entitled to vote withholders of Common Stock as set forth herein) for taking any corporate action.

 

Section 4.  ReacquiredShares.  Any shares of Series APreferred Stock purchased or otherwise acquired by the Corporation in anymanner whatsoever shall be retired and canceled promptly after the acquisitionthereof.  All such shares shall upontheir cancellation become authorized but unissued shares of Preferred Stock andmay be reissued as part of a new series of Preferred Stock subject to theconditions and restrictions on issuance set forth herein, in the Certificate ofIncorporation, in any other certificate of designations creating a series ofPreferred Stock or any similar stock or as otherwise required by law.

 

Section 5.  Liquidation, Dissolution or Winding Up.

 

(a)           Subjectto the rights of the holders of any Senior Preferred Stock, upon the occurrenceof a Liquidation, the holders of shares of Series A Preferred Stock shallbe entitled to be paid, *pari passu* with any payment due to theholders of Parity Stock, out of, but only to the extent of, the assets of 

 

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the Corporation legallyavailable for distribution to its stockholders, an amount equal to 150% of thePurchase Price (the “Liquidation Preference”) plus all accrued and unpaiddividends, if any, with respect to each share of Series A Preferred Stock,before any payment or distribution is made to any Junior Stock.  If the assets of the Corporation availablefor distribution to the holders of Series A Preferred Stock and any ParityStock shall be insufficient to permit payment in full to such holders of thesums which such holders are entitled to receive in such case, then all of theassets available for distribution to holders of the Series A PreferredStock and any Parity Stock shall be distributed among and paid to such holdersratably in proportion to the amounts that would be payable to such holders ifsuch assets were sufficient to permit payment in full.

 

(b)           Afterthe holders of all shares of Series A Preferred Stock shall have been paidin full the amounts to which they are entitled in Section 5(a), the sharesof Series A Preferred Stock shall not be entitled to any furtherparticipation in any distribution of assets of the Corporation.

 

Section 6.  Conversion.

 

(a)           Subjectto the provisions of this Section 6, each share of Series A PreferredStock shall be convertible, at any time and from time to time after the date ofissuance of such Series A Preferred Stock until one day prior to the RedemptionDate, if any, for such share of Series Preferred Stock, into fully paid andnonassessable shares of Common Stock (i) at the option of the holderthereof, or (ii) automatically upon the election of holders of at least amajority of the then outstanding Series A Preferred Stock to so convert.

 

(b)           Uponconversion, the number of shares of Common Stock into which each share ofSeries A Preferred Stock shall be convertible equals the (a) PurchasePrice plus all accrued and unpaid dividends, divided by (b) the ConversionPrice.  No accrued and unpaid AnnualPreference Dividend Amount will be payable upon shares of Series A PreferredStock that are converted.

 

(c)           Nofractional shares of Common Stock shall be issued upon conversion of theSeries A Preferred Stock.  In lieuof any fractional share to which a holder would otherwise be entitled, theCorporation shall pay cash equal to such fraction multiplied by the ConversionPrice.  Before any holder ofSeries A Preferred Stock shall be entitled to convert the same into fullshares of Common Stock and to receive certificates therefor, such holder shallsurrender the certificate or certificates therefor, duly endorsed, at theoffice of the Corporation or of any transfer agent for the Series APreferred Stock and shall give written notice to the Corporation that suchholder elects to convert the same.  TheCorporation shall, as soon as practicable thereafter, issue and deliver to suchholder of Series A Preferred Stock a certificate or certificates for thenumber of shares of Common Stock to which such holder shall be entitledhereunder and a check payable to the holder in the amount of any cash amountspayable as the result of a conversion into a fractional share of CommonStock.  Such conversion shall be deemedto have been made

 

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immediately prior to theclose of business on the date of such surrender to the Corporation of theshares of Series A Preferred Stock to be converted, with all requireddocumentation, and the person or persons entitled to receive the shares ofCommon Stock issuable upon such conversion shall be treated for all purposes asthe record holder or holders of such shares of Common Stock on such date.

 

(d)           TheCorporation shall at all times reserve and keep available out of its authorizedbut unissued shares of Common Stock solely for the purpose of effecting theconversion of the shares of the Series A Preferred Stock such number ofits shares of Common Stock as shall from time to time be sufficient to effectthe conversion of all outstanding shares of the Series A Preferred Stock,and if at any time the number of authorized but unissued shares of Common Stockshall not be sufficient to effect the conversion of all then outstanding sharesof the Series A Preferred Stock, in addition to such other remedies asshall be available to the holder of such Series A Preferred Stock, theCorporation will take such corporate action as may, in the opinion of itscounsel, be necessary to increase its authorized but unissued shares of CommonStock to such number of shares as shall be sufficient for such purposes.

 

(e)           TheCorporation will pay any and all documentary, stamp or similar issue ortransfer taxes payable in respect of the issue or delivery of shares of CommonStock on the conversion of shares of Series A Preferred Stock pursuant tothis Section 6; *provided*, *however*, that theCorporation shall not be required to pay any tax that may be payable in respectof any registration of transfer involved in the issue or delivery of shares ofCommon Stock in a name other than that of the registered holder ofSeries A Preferred Stock converted or to be converted, and no such issueor delivery shall be made unless and until the person requesting such issue haspaid to the Corporation the amount of any such tax or has established, to thesatisfaction of the Corporation, that such tax has been paid.

 

(f)            Ifthe Corporation at any time subdivides (by any stock split, stock dividend,recapitalization or otherwise) its outstanding shares of Common Stock into agreater number of shares, the Conversion Price in effect immediately prior tosuch subdivision shall be proportionately reduced, and if the Corporation atany time combines (by reverse stock split or otherwise) one or more classes ofits outstanding shares of Common Stock into a smaller number of shares, theConversion Price in effect immediately prior to such subdivision shall beproportionately increased.

 

(g)           Ifthe Corporation at any time subdivides (by any stock split, stock dividend,recapitalization or otherwise) its outstanding shares of Series A PreferredStock into a greater number of shares, the Purchase Price in effect immediatelyprior to such subdivision shall be proportionately reduced, and if theCorporation at any time combines (by reverse stock split or otherwise) one ormore classes of its outstanding shares of Series A Preferred Stock into asmaller number of shares, the Purchase Price in effect immediately prior tosuch subdivision shall be proportionately increased.

 

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(i)            (i)            All calculations under this Section 6shall be made to the nearest cent or to the nearest one hundredth (1/100) of ashare, as the case may be.

 

(ii)           Noadjustment in the Conversion Price or Purchase Price need be made if suchadjustment would result in a change in such Conversion Price or Purchase Price,as applicable, of less than $0.01.  Anyadjustment of less than $0.01 which is not made shall be carried forward andshall be made at the time of and together with any subsequent adjustment which,on a cumulative basis, amounts to an adjustment of $0.01 or more in suchConversion Price or Purchase Price, as applicable.

 

Section 7.  Reorganization, Reclassification,Consolidation or Merger.  Anyrecapitalization, reorganization, reclassification, consolidation, merger orother transaction, in each case which is effected in such a manner that theholders of Common Stock are entitled to receive (either directly or uponsubsequent Liquidation) stock, securities or assets with respect to or inexchange for Common Stock, is referred to herein as an “Organic Change”.  Subject to the Corporation’s right ofredemption under Section 8, prior to the consummation of any Organic Change,the Corporation shall make appropriate provisions to insure that each of theholders of Series A Preferred Stock shall thereafter have the right toacquire and receive, in lieu of or in addition to (as the case may be) theshares of Common Stock immediately theretofore acquirable and receivable uponthe conversion of such holder’s Series A Preferred Stock, such shares ofstock, securities or assets as such holder would have received in connectionwith such Organic Change if such holder had converted its Series APreferred Stock, immediately prior to such Organic Change.  In each such case, the Corporation shallalso make appropriate provisions to insure that the provisions ofSection 6, to the extent applicable, shall thereafter be applicable to anystock or securities received by the holders of Series A Preferred Stock insuch Organic Change.  The Corporationshall not effect any such consolidation, merger or sale, unless prior to theconsummation thereof, the successor entity (if other than the Corporation)resulting from consolidation or merger or the entity purchasing such assetsassumes by written instrument, the obligation to deliver to each such holdersuch shares of stock, securities or assets as, in accordance with the foregoingprovisions, such holder may be entitled to acquire.

 

Section 8.  Redemption.

 

(a)           Subjectto any legal restrictions on the Corporation’s redemption of shares, at any timeafter the date that is 180 days after the Date of Issuance, theCorporation may from time to time redeem any or all of the outstanding sharesof Series A Preferred Stock upon 20 days’ prior written notice to therecord holders of the shares of Series A Preferred Stock (each, aRedemption Date”).

 

(b)           Theredemption price for each share of Series A Preferred Stock shall be theLiquidation Preference, plus all declared, accrued but unpaid dividends thereonto the Redemption Date.

 

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Section 9.  ProtectiveProvisions.  So long as any sharesof Series A Preferred Stock are outstanding, the Corporation will not,without first obtaining the approval of holders of the shares of Series APreferred Stock holding at least 51% of the shares of Series A Preferred Stockthen outstanding, take any action set forth below:

 

(a)           amend,alter or repeal any provision of the Certificate of Incorporation or bylaws ofthe Corporation which would adversely affect any right, preference, privilegeor voting power of the Series A Preferred Stock or the holders thereof; or

 

(b)           authorize,establish, create or issue any series of Senior Preferred Stock.

 

Section 10.  Notices.  Notice to a holder of shares ofSeries A Preferred Stock is duly given if in writing and delivered in personor mailed by first class mail (registered or certified, return receiptrequested), facsimile or overnight air courier guaranteeing next day delivery,to the address of such holder as shown on the books of the Corporation.

 

Section 11.  Definitions.

 

(a)           “CommonStock” means the Corporation’s****common stock, $0.01 par value pershare.

 

(b)           “ConversionPrice” shall initially be $2.00 per share of Series A PreferredStock, as the same may be amended pursuant to the terms hereof.

 

(c)           “Dateof Issuance” means the date on which the Corporation initially issues any shareof Series A Preferred Stock, regardless of the number of times a transferof such share is made on the stock records maintained by or for the Corporationand regardless of the number of certificates which may be issued to evidencesuch share.

 

(d)           “JuniorSecurities” means, collectively, the Common Stock and any other class or seriesof capital stock of the Corporation hereafter created which does not expresslyrank *paripassu* with or senior to the Series A Preferred Stock.

 

(e)           “Liquidation”means a voluntary or involuntary liquidation under applicable bankruptcy orreorganization laws, or the dissolution or winding up of the Corporation.

 

(f)            “ParityStock” means any capital stock of the Corporation which expressly ranks *pari passu*with the Series A Preferred Stock.

 

(g)           “PurchasePrice” means $2.00 per share of Series A Preferred Stock, as the samemay be amended from time to time pursuant to the terms hereof.

 

(h)           “SeniorPreferred Stock” means any Preferred Stock which would have a preference overthe Series A Preferred Stock with respect to dividends or uponLiquidation.

 

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**ARTICLEFIVE**

 

In furtherance and not in limitation of thepowers conferred by statute, the Board of Directors is expressly authorized tomake, repeal, alter, amend and rescind the Bylaws of the Corporation.

 

###### **ARTICLE SIX**

###### ** **

Elections ofdirectors need not be by written ballot unless the Bylaws of the Corporationshall so provide.

 

**ARTICLE SEVEN**

 

At all elections of directors of the Corporation, aholder of any class or series of stock then entitled to vote in such electionshall be entitled to as many votes as shall equal the number of votes which(except for this Article as to cumulative voting) such holder would be entitledto cast for the ordinary election of directors with respect to such holder’sshares of stock multiplied by the number of directors to be elected in theelection in which such holder’s class or series of stock is entitled to vote,and each stockholder may cast all of such votes for a single nominee fordirector or may distribute them among the number to be voted for, or for anytwo or more of them as such holder may see fit.

 

**ARTICLE EIGHT**

 

Specialmeetings of the stockholders of the Corporation for any purpose or purposes maybe called at any time by the Board, or by a majority of the members of theBoard.  Such special meetings may not becalled by any other person or persons or in any other manner.

 

**ARTICLE NINE**

 

No action may be taken by the stockholders except atan annual or special meeting of stockholders. No action may be taken by the stockholders by written consent.

 

**ARTICLE TEN**

 

To the fullestextent permitted by the Delaware General Corporation Law as the same exists ormay hereafter be amended, a director of the Corporation shall not be liable tothe Corporation or its stockholders for monetary damages for breach offiduciary duty as a director.

 

**ARTICLE ELEVEN**

 

TheCorporation reserves the right to amend, alter, change or repeal any provisioncontained in this Amended and Restated Certificate of Incorporation, in themanner now or hereafter prescribed by statute, and all rights conferred onstockholders herein are granted subject to this reservation.

 

In witnesswhereof, this Amended and Restated Certificate of Incorporation has beenexecuted this 19th day of December, 2003 by an authorized officer.

 

 
|   |                                               | SMTEK INTERNATIONAL,  INC. |
|--------|----------------------------------------------------|----------------------------|
|   |                                               |                       |
|   |                                               |                       |
|   | By:                                                | /s/ Kirk A. Waldron        |   |
|   |                                               | Kirk A.  Waldron           |
|   | Senior Vice  President and Chief Financial Officer |
|        |                                                    |                            |  |  |

 

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