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EXHIBIT 3.1
C&S 500 /5686
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| MICHIGAN DEPARTMENT OF COMMERCE - CORPORATION AND SECURITIES BUREAU |
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|DATE RECEIVED| | (FOR BUREAU USE ONLY) |
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|NAME: J. MICHAEL BERNARD | |
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|ADDRESS: 400 RENAISSANCE CENTER | |
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| DYKEMA GOSSETT PLLC | |
| DETROIT, MICHIGAN 48243 | EFFECTIVE DATE: |
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DOCUMENT WILL BE RETURNED TO
NAME AND ADDRESS INDICATED ABOVE
CORPORATION IDENTIFICATION NUMBER
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| 3 | 3 | 6 | - | 7 | 8 | 8 |
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ARTICLES OF INCORPORATION
(domestic profit corporation)
Pursuant to the provisions of Act 284, Public Acts of 1972, as amended, the
undersigned corporation executes the following Articles:
ARTICLE I
NAME
The name of the corporation is MICROWAVE COMPONENTS ENTERPRISES, INC.
ARTICLE III
AUTHORIZED SHARES
The total authorized capital stock of the corporation is 240,000 shares of
Common Stock and 20,000 shares of Preferred Stock.
<PAGE> 2
A statement of all or any of the designations and the powers, preferences
and rights, and the qualifications, limitations or restrictions thereof is as
follows:
PREFERRED STOCK
Issuance in Series. The Preferred Stock may be issued in one or more series
and the shares of all series will rank equally and be substantially identical in
all respects, except that with respect to each series the Board of Directors may
fix, among other things, the dividends payable thereon, the times and prices of
redemption, if any, the amount payable upon liquidation, the retirement or
sinking fund, if any, the conversion rights, if any, the restrictions, if any,
on the payment of dividends or to retirements of junior stock, the limitations,
if any, on the creation of indebtedness or the issuance of stock of equal or
prior rank, and the number of shares to comprise each series.
Dividend Rights. The Board of Directors is authorized to determine whether,
and the terms and conditions upon which, the shares of Preferred Stock of each
series will be entitled to receive dividends, and whether such dividends shall
be cumulative.
Redemption Provisions. The Board of Directors is authorized to determine
whether, and the terms and conditions upon which, the shares of Preferred Stock
of each series will have redemption rights. The shares of Preferred Stock of
each series, if redeemable, will be redeemable at a time so fixed and
determined, in whole or in part, and by lot or in such other manner as the Board
of Directors may determine.
Sinking Fund. The Board of Directors is authorized to determine whether,
and the terms and conditions upon which, the shares of Preferred Stock of each
series shall be entitled to the benefits of a retirement or sinking fund.
Conversion Rights. The Board of Directors is authorized to determine
whether, and the terms and conditions upon which, the shares of Preferred Stock
of each series shall have conversion or exchange rights.
Voting Rights. The Board of Directors is authorized to determine whether,
and the terms and conditions upon which, the shares of Preferred Stock of each
series shall have voting rights.
General. The Board of Directors is authorized to determine any other
preferences and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions relating to the Preferred Stock, or
any series thereof, as shall not be inconsistent with this Article III or
Michigan law. The terms of any series of Preferred Stock may be amended without
consent of the holders of any other series of Preferred Stock or of the Common
Stock, provided such amendment does not substantially adversely affect the
holders of such other series of Preferred Stock or the Common Stock.
Reissue of Reacquired Shares; Issuance of Additional Shares of Same Series.
Shares of any series of Preferred Stock which have been issued and reacquired in
any manner including shares redeemed by purchases (whether through the operation
of a retirement or sinking fund or otherwise), will have the status of
authorized and unissued Preferred Stock and may be reissued as a part of the
series of which they were originally a part or may be reclassified into and
reissued as a part of the new series.
2
<PAGE> 3
Amendment to Articles of Incorporation. Any resolution of the Board of
Directors establishing and designating a series of Preferred Stock and fixing
and determining the relevant rights and preferences thereof shall be
appropriately filed with the State of Michigan as an amendment to the Articles
of Incorporation.
COMMON STOCK
Subject to the preferences accorded the holders of Preferred Stock pursuant
to the Articles of Incorporation or action of the Board of Directors taken with
respect to such preferences, holders of Common Stock are entitled to receive
such dividends as may be declared by the Board of Directors of the corporation
from time to time. Subject to the preferences provided in the Articles of
Incorporation or action of the Board of Directors taken with respect to such
preferences, in the event of any liquidation, dissolution or winding up of the
corporation, the holders of Common Stock will be entitled to receive pro rata
all the remaining assets of the corporation available for distribution. Holders
of Common Stock shall have equal voting and other rights share for share.
ARTICLE IV
REGISTERED OFFICE AND RESIDENT AGENT
The address and mailing address of the initial registered office is 15450
East Jefferson, Grosse Pointe Park, Michigan 48230. The name of the initial
resident agent is John L. Smucker.
ARTICLE V
LIMITATION OF DIRECTOR LIABILITY
No director of the corporation shall be personally liable to the
corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director, provided that the foregoing shall not eliminate or limit the
liability of a director for any of the following: (i) breach of the director's
duty of loyalty to the corporation or its shareholders; (ii) acts or omissions
not in good faith or that involve intentional misconduct or knowing violation of
law; (iii) a violation of Section 551(1) of the MBCA; or (iv) a transaction from
which the director derived an improper personal benefit.
If the MBCA hereafter is amended to authorize the further elimination or
limitation of the liability of directors, then the liability of a director of
the corporation, in addition to the limitation on personal liability contained
herein, shall be limited to the fullest extent permitted by the amended MBCA as
so amended.
No amendment or repeal of this Article V shall apply to or have any effect
on the liability or alleged liability of any director of the corporation for or
with respect to any acts or omissions of such director occurring prior to such
amendment or repeal.
3
<PAGE> 4
ARTICLE VI
COMPROMISE, ARRANGEMENT, OR PLAN OF REORGANIZATION
Whenever a compromise or arrangement or any plan of reorganization of this
corporation is proposed between this corporation and its creditors or any class
of them and/or between this corporation and its shareholders or any class of
them, any court of equity jurisdiction within the State of Michigan may, on the
application of this corporation or of any creditor or any shareholder thereof,
or on the application of any receiver or receivers appointed for this
corporation, order a meeting of the creditors or class of creditors, and/or of
the shareholders or class of shareholders, as the case may be, to be affected by
the proposed compromise or arrangement or reorganization, to be summoned in such
manner as said court directs.
If a majority in number, representing three-fourths (3/4) in value of the
creditors or class of creditors, and/or of the shareholders or class of
shareholders, as the case may be, to be affected by the proposed compromise or
arrangement or reorganization, agrees to any compromise or arrangement or to any
reorganization of this corporation as a consequence of such compromise or
arrangement, said compromise or arrangement and said reorganization shall, if
sanctioned by the court to which the said application has been made, be binding
on all the creditors or class of creditors, and/or on all the shareholders or
class of shareholders, as the case may be, and also on this corporation.
ARTICLE VII
CORPORATE ACTION WITHOUT MEETING OF SHAREHOLDERS
Any action required or permitted by the MBCA to be taken at an annual or
special meeting of shareholders may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so
taken, is signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take the action
at a meeting at which all shares entitled to vote thereon were present and
voted. The written consents shall bear the date of signature of each shareholder
who signs the consent. No written consents shall be effective to take the
corporate action referred to unless, within 60 days after the record date for
determining shareholders entitled to express consent to or dissent from a
proposal without a meeting, written consents dated not more than 10 days before
the record date and signed by a sufficient number of shareholders to take the
action are delivered to the corporation. Delivery shall be to the corporation's
registered office, its principal place of business, or an
4
<PAGE> 5
officer or agent of the corporation having custody of the minutes of the
proceedings of its shareholders. Delivery made to a corporation's registered
office shall be by hand or by certified or registered mail, return receipt
requested.
Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent shall be given to shareholders who would
have been entitled to notice of the shareholder meeting if the action had been
taken at a meeting and who have not consented in writing.
ARTICLE VIII
INCORPORATOR
The name and business address of the incorporator is J. Michael Bernard,
Dykema Gossett PLLC, 400 Renaissance Center, Detroit, Michigan 48243.
I, the incorporator, sign my name this 5th day of October, 1995.
/s/ J. Michael Bernard
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J. Michael Bernard, Incorporator
5
<PAGE> 6
RETURN DOCUMENT TO:
J. Michael Bernard
Dykema Gossett PLLC
400 Renaissance Center
Detroit, Michigan 48243
NAME OF ORGANIZATION REMITTING FEES:
Dykema Gossett PLLC
PREPARER'S NAME AND BUSINESS TELEPHONE NUMBER:
J. Michael Bernard
(313) 568-5374 / 5686
1
<PAGE> 7
C&S 515 (Rev. 8/96)
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MICHIGAN DEPARTMENT OF CONSUMER AND INDUSTRY SERVICES
CORPORATION, SECURITIES AND LAND DEVELOPMENT BUREAU
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Date Received (FOR BUREAU USE ONLY)
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Name: J. Michael Bernard, Dykema Gossett PLLC
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Address: 400 Renaissance Center EFFECTIVE DATE:
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City: Detroit State: Michigan Zip Code: 48243
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Document will be returned to the name and address you enter above
CERTIFICATE OF AMENDMENT TO THE ARTICLES OF INCORPORATION
FOR USE BY DOMESTIC PROFIT AND/OR CORPORATIONS
Pursuant to the provisions of Act 284, Public Acts of 1972 (profit
corporations), and/or Act 162, Public Acts of 1982 ( corporations), the
undersigned corporations execute the following Certificate:
MICROWAVE COMPONENTS ENTERPRISES, INC.
1. The present name of the corporation is:
MICROWAVE COMPONENTS ENTERPRISES, INC.
2. The Identification number assigned by the Bureau is:
336-788.
3. The location of the registered office is:
300 Dino Drive, Ann Arbor, Michigan 48103.
4. The first sentence of Article III of the Articles of Incorporation is
hereby amended to read in its entirety as follows:
<PAGE> 8
"ARTICLE III
Authorized Shares
The total authorized capital stock of the corporation is
340,000 shares of Common Stock and 20,000 shares of Preferred Stock."
5. The foregoing amendment to Article III of the Articles of Incorporation
was duly adopted on the 15th day of April, 1997, by the shareholders at
a meeting at which the necessary votes were cast in favor of the
amendment.
Signed this 20th day of October, 1997
By: /s/ John L. Smucker
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John L. Smucker, President of
Microwave Components Enterprises, Inc.
<PAGE> 9
C&S 515 (Rev. 8/96)
MICHIGAN DEPARTMENT OF CONSUMER AND INDUSTRY SERVICES
CORPORATION, SECURITIES AND LAND DEVELOPMENT BUREAU
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Date Received (FOR BUREAU USE ONLY)
Name: J. Michael Bernard, Dykema Gossett PLLC
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Address: 400 Renaissance Center EFFECTIVE DATE:
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City: Detroit State: Michigan Zip Code: 48243
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Document will be returned to the name and address you enter above
CERTIFICATE OF AMENDMENT TO THE ARTICLES OF INCORPORATION
FOR USE BY DOMESTIC PROFIT AND/OR CORPORATIONS
Pursuant to the provisions of Act 284, Public Acts of 1972 (profit
corporations), and/or Act 162, Public Acts of 1982 ( corporations), the
undersigned corporations execute the following Certificate:
MICROWAVE COMPONENTS ENTERPRISES, INC.
1. The present name of the corporation is:
MICROWAVE COMPONENTS ENTERPRISES, INC.
2. The Identification number assigned by the Bureau is:
336-788.
3. The location of the registered office is:
300 Dino Drive, Ann Arbor, Michigan 48103.
4. The following Articles of the Articles of Incorporation are hereby
amended as follows:
(a) Article I of the Articles of Incorporation is hereby amended
to read in its entirety as follows:
<PAGE> 10
"ARTICLE I
Name
The name of the corporation is MCE COMPANIES, INC."
(b) The Certificate of the Powers, Designations, Preferences and
Rights of the Series A Preferred Stock, Liquidation Value
$1,000 per Share, as set forth in Article III of the Articles
of Incorporation, in the form filed as a Certificate of
Amendment to the Articles of Incorporation on July 23, 1996,
is hereby amended to read in its entirety as set forth on
ANNEX A attached hereto and hereby incorporated by reference
herein.
5. The foregoing amendments to Article I and Article III of the Articles
of Incorporation described in Items 4(a) and 4(b) above, respectively,
were duly adopted as of the 17th day of October, 1997, by written
consent of all of the shareholders entitled to vote in accordance with
Section 407(2) of the Act.
Signed this 20th day of October, 1997
By: /s/ John L. Smucker
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John L. Smucker, President of
Microwave Components Enterprises, Inc.
2
<PAGE> 11
ANNEX A
to
CERTIFICATE OF AMENDMENT TO THE ARTICLES OF INCORPORATION
for
MICROWAVE COMPONENTS ENTERPRISES, INC.
AMENDED AND RESTATED
CERTIFICATE OF THE POWERS, DESIGNATIONS,
PREFERENCES AND RIGHTS
OF THE SERIES A PREFERRED STOCK
LIQUIDATION VALUE $1,000 PER SHARE
WHEREAS, pursuant to the authority conferred upon the Board of
Directors of the Company by Article III of the Articles of Incorporation, the
Board of Directors established and designated and provided for the issuance of a
series of preferred stock, designated "Series A Preferred Stock" (the "Preferred
Stock"), consisting of 4,000 shares, $1,000 liquidation value per share; and
WHEREAS, as a result of the foregoing, the Board of Directors of the
Company did fix and determine the relative rights, powers and preferences of the
Preferred Stock to be as set forth in that certain Certificate of the Powers,
Designations, Preferences and Rights of the Series A Preferred Stock,
Liquidation Value $1,000 per Share, as set forth in Article III of the Articles
of Incorporation, in the form filed as a Certificate of Amendment to the
Articles of Incorporation on July 23, 1996 (the "Certificate of Designations");
and
WHEREAS, the Board of Directors of the Company and the holders of the
Common Stock and the holders of the Preferred Stock have approved the amendment
and restatement of the Certificate of Designations;
NOW, THEREFORE, BE IT RESOLVED, that the Certificate of Designations
shall be amended and restated in its entirety as set forth below:
1. Rights on Liquidation, Dissolution or Winding Up. In the event of
any liquidation, dissolution or winding up of the Company, the holders of shares
of the Preferred Stock then outstanding shall be entitled to be paid out of the
assets of the Company available for distribution to its stockholders, whether
from capital, surplus or earnings, before any payment shall be made to the
holders of Junior Shares (hereinafter defined), the amount of $1,000 per share
plus any accrued but unpaid dividends thereon. If, upon any liquidation,
dissolution or winding up of the Company, the assets of the Company available
for distribution to the holders of the Preferred
<PAGE> 12
Stock shall be insufficient to pay the holders of the Preferred Stock the full
amounts to which they respectively shall be entitled pursuant to this Section 1,
the holders of shares of the Preferred Stock shall share ratably in any
distribution of assets according to the respective amounts that would be payable
in respect of the shares of Preferred Stock held by them upon such distribution
if all amounts payable on or with respect to said shares were paid in full.
2. Dividends.
(a) The dividend rate on shares of the Preferred Stock shall
be $80 per share per annum for the period of July 23, 1996 through July 22, 2002
and shall be $160 per share per annum for the period after July 22, 2002.
Dividends on shares of the Preferred Stock shall be fully cumulative and shall
accrue, without interest, from the date of issuance of such shares, and shall be
payable in cash, when and as declared by the Board of Directors out of Available
Funds (hereinafter defined), in arrears on September 30, 1996 and quarterly in
arrears thereafter on December 31, March 31, June 30 and September 30 of each
year. Notwithstanding anything to the contrary in this Section 2, the Board of
Directors shall declare dividends on the Preferred Stock to the extent, in its
good faith judgment, there are Available Funds to pay such quarterly dividends.
To the extent there are insufficient Available Funds to pay all holders of the
Preferred Stock the full quarterly dividend for any quarter, the Board of
Directors shall declare a dividend to all holders of the Preferred Stock on a
pro rata basis to the extent of Available Funds, if any. Holders of shares of
the Preferred Stock shall be entitled to receive such dividends in preference to
and in priority over dividends upon Junior Shares. The holders of shares of the
Preferred Stock shall not be entitled to any dividends other than the dividends
provided in this Section 2.
(b) If at any time the Company has failed to pay accrued
dividends on any shares of the Preferred Stock at the time outstanding at the
times such dividends are due and payable, the Company shall not declare or pay
any dividend on Junior Shares or make any payment on account of, or set apart
money for a sinking or other analogous fund for, the purchase, redemption or
other retirement of, any Junior Shares or make any distribution in respect
thereof, either directly or indirectly and whether in cash or property or in
obligations or shares of the Company (other than in Junior Shares).
3. Mandatory Redemption.
(a) Upon the occurrence of a Triggering Event (described in
paragraph (b) below), and subject to the terms and provisions hereof, each
holder of the shares of the Preferred Stock shall have the right, but not the
obligation, to tender all, but not less than all, of such holder's shares, at a
price of $1,000 per share plus an amount equal to the dividends accrued and
unpaid thereon to the date fixed for redemption (the "Redemption Price"). The
holder's right to tender pursuant to this Section 3 shall continue up to the
twenty-fifth (25th) day after the later of the date of its receipt of the
Triggering Event Notice provided for in paragraph (c) of this Section 3 or the
date of the Triggering Event. The holder's right to tender shall be exercised by
the surrender to the Company, at its principal office or such other office
maintained by the Company for that purpose, of a certificate or certificates
representing the shares of the Preferred Stock, duly endorsed in blank (with
signatures guaranteed), and accompanied by written notice that the holder elects
to tender such shares for redemption (the "Redemption Notice"). Redemption of
tendered shares shall occur on or before the close of business on the tenth
(10th) day (the "Redemption Date") after the date such Redemption Notice is
received by the Company.
A-2
<PAGE> 13
(b) The occurrence of any one of the following events shall
constitute a "Triggering Event": (i) a sale, transfer or other disposition of
all or substantially all of the assets of the Company or the sale, transfer or
other disposition of all or substantially all of the assets of the Company and
its subsidiaries taken as a whole, or a merger or consolidation of the Company
into or with any other entity which results in the exchange of outstanding
shares of the Company for securities or other consideration issued or paid or
caused to be issued or paid by any such entity or affiliate thereof, without the
consent of holders representing 75% of the then outstanding shares of the
Preferred Stock; (ii) a Change of Control (as hereinafter defined) in the
Company; or (iii) the consummation of the sale by the Company of common stock by
and for the account of the Company pursuant to an underwritten initial public
offering effected pursuant to an effective registration statement under the
Securities Act of 1933, as in effect at the relevant time.
(c) As promptly as possible but in no event later than five
(5) days after the time the Company knows or should have known of the occurrence
of any Triggering Event, a notice (the "Triggering Event Notice") shall be given
by the Company by first class mail, postage prepaid, certified mail, return
receipt requested, by courier or by facsimile transmission, receipt
acknowledged, to the holders of record of the shares of the Preferred Stock at
their respective addresses or facsimile numbers as the same shall appear on the
books of the Company, stating that the event specified in the notice has
occurred and that each holder has the right to tender such holder's shares of
the Preferred Stock for redemption in cash pursuant to the terms hereof. Any
holder of record of the shares of the Preferred Stock may waive its right to the
Triggering Event Notice provided for herein.
(d) Notwithstanding any of the foregoing provisions in this
Section 3 to the contrary, the Company shall have the right, but not the
obligation, to purchase all or part of any Preferred Stock outstanding after
July 23, 2002, which right may be exercised by the Company from time to time
and, if so exercised, the holders of Preferred Stock shall be obligated to
surrender for redemption any such shares so elected to be purchased by the
Company in accordance with the terms hereof. The Company shall redeem such
Preferred Stock at the Redemption Price set forth in Section 3(a) and by
following the procedures and issuing the notices specified in Sections 3(a) and
3(c) hereof, respectively.
(e) Notwithstanding anything contained herein to the contrary,
the Company shall pay the Redemption Price to holders of Preferred Stock who
validly tender their shares for redemption by the Redemption Date upon any
mandatory redemption described in this Section 3; provided that the Company has
Available Funds to pay the Redemption Price. If the Available Funds of the
Company for distribution in redemption of shares of the Preferred Stock pursuant
to this Section 3 are insufficient to redeem all of the shares of the Preferred
Stock on the Redemption Date, the Available Funds shall be used to redeem the
number of shares of the Preferred Stock which may be redeemed for such amount on
a pro rata basis. At any time thereafter when additional funds become available
for the redemption of additional tendered shares of the Preferred Stock, the
Company shall immediately notify the holders of the tendered
A-3
<PAGE> 14
shares of the Preferred Stock of the availability of such funds and such funds
shall be immediately used to redeem such additional tendered shares until such
time as all of the tendered shares of the Preferred Stock shall have been
redeemed. On and after the Redemption Date, dividends shall cease to accrue on
the shares of the Preferred Stock to be redeemed and the holders of such shares
shall cease to be shareholders with respect to such shares and shall have no
interest in or claims against the Company by virtue thereof, but shall have a
claim against the Company as a general creditor of the Company due in respect of
the shares to be so redeemed plus interest as hereafter provided. If the Company
shall not have Available Funds or shall fail to so pay for the shares tendered
for redemption on the Redemption Date, holders of the shares of the Preferred
Stock shall be entitled to receive interest at a rate of eleven percent (11%)
per annum from the Redemption Date up to and including the date of payment of
the Redemption Price. If the Company shall have failed to pay the Redemption
Price with respect to any shares of the Preferred Stock at the time such
Redemption Price shall be due and payable, the Company shall not declare or pay
any dividend on Junior Shares or make any payment on account of, or set apart
money for a sinking or other analogous fund for, the purchase, redemption or
other retirement of, any Junior Shares or make any distribution in respect
thereof, either directly or indirectly and whether in cash or property or in
obligations or shares of the Company (other than in Junior Shares).
4. Optional Redemption.
(a) The Company, at its option, may at any time, purchase and
redeem all or part of the Preferred Stock at a price per share of $1,000 if the
Company pays the redemption price from operating cash flow, or otherwise at the
price per share set forth for the date fixed for redemption in the following
table:
<TABLE>
<CAPTION>
Date Fixed for Redemption Price
<S> <C>
On or after July 23, 1996 and on or
before July 23, 1997 $1,030
After July 23, 1997 and on or before
July 23, 1998 $1,020
After July 23, 1998 and on or before
July 23, 1999 $1,010
Any date after July 23, 1999 $1,000
</TABLE>
plus an amount equal to the dividends accrued and unpaid thereon to the date set
for redemption (collectively, the "Call Price"); provided that in no event shall
any such single redemption be for shares of Preferred Stock having an aggregate
liquidation value of less than $500,000 in the aggregate, and in each case, the
Call Price shall be payable only out of Available Funds.
A-4
<PAGE> 15
(b) Not less than ten (10) days or more than thirty (30) days
prior to the date fixed for redemption under this Section 4, a notice shall be
given by the Company, by first class mail, postage prepaid, certified mail,
return receipt requested, by courier or by facsimile transmission, receipt
acknowledged, to the holders of record of the shares of the Preferred Stock to
be redeemed at their respective addresses or facsimile numbers as the same shall
appear on the books of the Company, stating (i) the redemption date, (ii) the
aggregate number of shares of the Preferred Stock to be redeemed, (iii) the
place where certificates for such shares are to be surrendered for payment of
the Call Price and, (iv) that dividends on the shares to be redeemed will cease
to accrue. Any such optional redemptions shall be pro rata among the holders of
Preferred Stock.
(c) On or before the close of business on the date fixed for
redemption in a redemption notice given by the Company pursuant to this Section
4, the Company shall pay to the holders of the shares of the Preferred Stock the
Call Price out of Available Funds upon surrender in accordance with said notice
of the certificates for any shares of the Preferred Stock to be redeemed, duly
endorsed in blank, with signatures guaranteed. On and after the redemption date,
dividends shall cease to accrue on the shares of the Preferred Stock to be
redeemed and the holders of such shares shall cease to be stockholders with
respect to such shares and shall have no interest in or claims against the
Company by virtue thereof but shall have a claim against the Company as a
general creditor of the Company due in respect of the shares to be so redeemed
plus interest as hereafter provided. If the Company shall fail to pay the Call
Price in accordance with this paragraph (c), holders of the shares of the
Preferred Stock to be redeemed shall be entitled to receive interest at a rate
of eleven percent (11%) per annum from the date fixed for redemption up to and
including the date of payment.
(d) If the Company shall have failed to pay the Call Price
with respect to any shares of the Preferred Stock at the time such Call Price
shall be due and payable, the Company shall not declare or pay any dividend on
Junior Shares or make any payment on account of, or set apart money for a
sinking or other analogous fund for, the purchase, redemption or other
retirement of, any Junior Shares or make any distribution in respect thereof,
either directly or indirectly and whether in cash or property or in obligations
or shares of the Company (other than in Junior Shares).
5. Reacquired Shares. All shares of the Preferred Stock which are at
any time redeemed pursuant to Section 3 or Section 4 and all shares of the
Preferred Stock which are otherwise reacquired by the Company and subsequently
canceled by the Board of Directors of the Company shall have the status of
authorized but unissued preferred stock, without designation as to series,
subject to reissuance by the Board of Directors of the Company as Junior Shares.
6. Voting Rights. The holders of the Preferred Stock shall have no
voting rights, except for those voting rights set forth in the Stockholder
Agreement and those provided by law or in the Articles of Incorporation of the
Company.
7. No Preemptive Rights. The holders of shares of the Preferred Stock
shall have no preemptive rights.
A-5
<PAGE> 16
8. Certain Definitions. As used in this Certificate, the following
terms shall have the following respective meanings:
"Available Funds" shall mean any funds legally available for
the payment of dividends and interest accrued with respect to shares of the
Preferred Stock or for the payment of the Redemption Price or Call Price of
shares of the Preferred Stock.
"Change of Control" shall mean that any person or group of
persons (within the meaning of Rule 13d-3 promulgated by the Securities and
Exchange Commission under the Securities Exchange Act of 1934, as amended) other
than the "Investors" and "Investor Affiliates," as such terms are defined in the
Purchase Agreement, shall have acquired beneficial ownership (within the meaning
of such Rule 13d-3) of 45% or more of the common stock of the Company, or such
Investors and Investor Affiliates shall cease to be the beneficial owner of at
least 45% of the common stock of the Company.
"Junior Shares" shall mean any shares of any series or class
of capital stock of the Company, other than the Preferred Stock.
"Purchase Agreement" shall mean the Note, Warrant and
Preferred Stock Purchase Agreement dated on or about July 23, 1996 by and among
the Company, Hanifen Imhoff Mezzanine Fund, L.P. and National City Capital
Corporation, as it may be amended from time to time.
"Stockholder Agreement" shall mean the Stockholder Agreement
by and among the Company and the stockholders of the Company dated on or about
July 23, 1996, as it may be amended from time to time.
A-6
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C&S 515 (Rev. 3/00)
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MICHIGAN DEPARTMENT OF CONSUMER AND INDUSTRY SERVICES
CORPORATION, SECURITIES AND LAND DEVELOPMENT BUREAU
--------------------------------------------------------------------------------
DATE RECEIVED (FOR BUREAU USE ONLY)
--------------------------------------------------
NAME: J. MICHAEL BERNARD, DYKEMA GOSSETT PLLC
-------------------------------------------------- EFFECTIVE DATE:
ADDRESS: 400 RENAISSANCE CENTER
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CITY: DETROIT STATE: MICHIGAN ZIP CODE: 48243
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DOCUMENT WILL BE RETURNED TO THE NAME AND ADDRESS YOU ENTER ABOVE.
CERTIFICATE OF AMENDMENT TO THE ARTICLES OF INCORPORATION
FOR USE BY DOMESTIC PROFIT AND NONPROFIT CORPORATIONS
PURSUANT TO THE PROVISIONS OF ACT 284, PUBLIC ACTS OF 1972 (PROFIT
CORPORATIONS), OR ACT 162, PUBLIC ACTS OF 1982 (NONPROFIT CORPORATIONS), THE
UNDERSIGNED CORPORATION EXECUTES THE FOLLOWING CERTIFICATE:
1. The present name of the corporation is:
MCE COMPANIES, INC.
2. The Identification number assigned by the Bureau is:
336-788.
3. The Articles of Incorporation are hereby amended by adding a new
Article X, which shall read in its entirety as follows:
"ARTICLE X
Opting-Out of Chapter 7A
Pursuant to Section 784(1)(b) of the MBCA, the corporation
elects not to be governed by Chapter 7A of the MBCA, being Sections 775
through 784 of the MBCA; provided that the corporation's Board of
Directors may terminate this election in whole or
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in part by action of a majority of directors then in office."
4. The foregoing amendment to the Articles of Incorporation was duly
adopted as of the 17th day of August, 2000, by written consent of the
shareholders having not less than the minimum number of votes required
by statute in accordance with Section 407(1) of the Act. Written notice
to shareholders who have not consented in writing has been given.
Signed this 28th day of August, 2000
By: /s/ John L. Smucker
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John L. Smucker
President
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