SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 8-A/A
APPLICATION FOR REGISTRATION OF SECURITIES ON A NATIONAL
SECURITIES EXCHANGE PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
AEROFLEX INCORPORATED
(Exact Name of Registrant as Specified in Charter)
Delaware 11-1974412
(State of Incorporation) (I.R.S. Employer Identification No.)
35 South Service Road
Plainview, New York 11803
(Address of Principal Executive Offices)
If this form relates to the If this form relates to the
registration of a class of registration of a class of
securities pursuant to Section 12(b) securities pursuant to Section 12(g)
of the Exchange Act and is effective of the Exchange Act and is effective
pursuant to General Instruction pursuant to General Instruction
A.(c), please check the following A.(d), please check the following
box [ ] box [x]
Securities Act registration statement file number to which this form
relates____________.
Securities to be registered pursuant to Section 12(b) of the Act:
None
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, par value $.10 per share
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Title of Class
Preferred Share Purchase Rights
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Title of Class
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ITEM 1. Description of Registrant's Securities to be Registered
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Common Stock:
General. Aeroflex Incorporated (the "Company") has 40,000, 000 authorized
shares of common stock; 18,660,046 shares were outstanding as of March 1, 2000.
All shares of common stock currently outstanding are validly issued, fully paid
and non-assessable.
Voting Rights. Each share of common stock entitles its holder to one vote,
either in person or by proxy, at meetings of stockholders. The Company's board
of directors consists of three classes each of which serves for a term of three
years. At each annual meeting of the stockholders, the directors in only one
class will be elected. The holders are not permitted to vote their shares
cumulatively. Accordingly, the holders of more than fifty percent (50%) of the
issued and outstanding shares of common stock can elect all of the Company's
directors.
Dividend Policy. All shares of common stock are entitled to participate
ratably in dividends when and as declared by the board of directors out of the
funds legally available therefor. Any such dividends may be paid in cash,
property or additional shares of common stock. The Company has not paid any cash
dividends since inception and presently expects that any earnings will be used
to develop its business and that no dividends on the shares of common stock will
be declared in the foreseeable future. Payment of future dividends will be
subject to the discretion of the board of directors and will depend upon, among
other things, future earnings, our operating and financial condition, capital
requirements and general business conditions. Therefore dividends on the common
stock may not be paid in the future.
Miscellaneous Rights and Provisions. Holders of common stock have no
preemptive or other subscription rights, conversion rights, redemption or
sinking fund provisions. In the event of the Company's liquidation or
dissolution, whether voluntary or involuntary, each share of common stock is
entitled to share ratably in any assets available for distribution to the
holders of the Company's equity after satisfaction of all liabilities, subject
to the rights of holders of preferred stock, no shares of which are issued and
outstanding.
Preferred Share Purchase Rights:
On August 13, 1998, the Board of Directors of the Company declared a
dividend distribution of one common stock purchase right (the "Rights") for each
outstanding share of Common Stock, $.10 par value (the "Common Shares"). The
dividend was paid on August 31, 1998,(the "Record Date") to the stockholders of
record on that date. Each Right entitles the registered holder to purchase from
the Company one one-thousandth of a share of Series A Junior Participating
Preferred Stock, par value $.10 per share (the "Preferred Shares"), of the
Company at a price of $65 per one one-thousandth of a Preferred Share (the
"Purchase Price"), subject to adjustment. The description and terms of the
Rights are set forth in a Rights Agreement (the "Rights Agreement") between the
Company and American Stock Transfer & Trust Company, as Rights Agent (the
"Rights Agent").
Until the earlier to occur of (i) 10 days following a public announcement
that a person or group of affiliated or associated persons (an "Acquiring
Person") have acquired beneficial ownership of 15% or more of the outstanding
Common Shares or (ii) 10 business days (or such later date as may be determined
by action of the Board of Directors prior to such time as any person or group of
affiliated persons becomes an Acquiring Person) following the commencement of,
or announcement of an intention to make, a tender offer or exchange offer the
consummation of which would result in the beneficial ownership by a person or
<PAGE>
group of 15% or more of the outstanding Common Shares (the earlier of such dates
being called the "Distribution Date"), the Rights will be evidenced, with
respect to any of the Common Share certificates outstanding as of the Record
Date, by such Common Share certificate with a copy of the Summary of Rights
attached thereto.
The Rights Agreement provides that, until the Distribution Date (or earlier
redemption or expiration of the Rights), the Rights will be transferred with and
only with the Common Shares. Until the Distribution Date (or earlier redemption
or expiration of the Rights), new Common Share certificates issued after the
Record Date upon transfer or new issuance of Common Shares will contain a
notation incorporating the Rights Agreement by reference. Until the Distribution
Date (or earlier redemption or expiration of the Rights), the surrender for
transfer of any certificates for Common Shares outstanding as of the Record
Date, even without such notation or copy of this Summary of Rights being
attached thereto, will also constitute the transfer of the Rights associated
with the Common Shares represented by such certificate. As soon as practicable
following the Distribution Date, separate certificates evidencing the Rights
("Right Certificates") will be mailed to holders of record of the Common Shares
as of the close of business on the Distribution Date and such separate Right
Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The Rights will
expire on August 31, 2008(the "Final Expiration Date"), unless the Final
Expiration Date is extended or unless the Rights are earlier redeemed or
exchanged by the Company, in each case, as described below.
The Purchase Price payable, and the number of Preferred Shares or other
securities or property issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Preferred
Shares, (ii) upon the grant to holders of the Preferred Shares of certain rights
or warrants to subscribe for or purchase Preferred Shares at a price, or
securities convertible into Preferred Shares with a conversion price, less than
the then current market price of the Preferred Shares or (iii) upon the
distribution to holders of the Preferred Shares of evidences of indebtedness or
assets (excluding regular periodic cash dividends paid out of earnings or
retained earnings or dividends payable in Preferred Shares) or of subscription
rights or warrants (other than those referred to above).
The number of outstanding Rights and the number of one one-thousandths of a
Preferred Share issuable upon exercise of each Right are also subject to
adjustment in the event of a stock split of the Common Shares or a stock
dividend on the Common Shares payable in Common Shares or subdivisions,
consolidations or combinations of the Common Shares occurring, in any such case,
prior to the Distribution Date.
Preferred Shares purchasable upon exercise of the Rights will not be
redeemable. Each Preferred Share will be entitled to a minimum preferential
quarterly dividend payment of $1 per share but will be entitled to an aggregate
dividend of 1,000 times the dividend declared per Common Share. In the event of
liquidation, the holders of the Preferred Shares will be entitled to a minimum
preferential liquidation payment of $1,000 per share but will be entitled to an
aggregate payment of 1,000 times the payment made per Common Share. Each
Preferred Share will have 1,000 votes, voting as a class with the Common Shares.
Finally, in the event of any merger, consolidation or other transaction in which
Common Shares are exchanged, each Preferred Share will be entitled to receive
1,000 times the amount received per Common Share. These rights are protected by
customary anti-dilution provisions.
<PAGE>
Because of the nature of the Preferred Shares' dividend, liquidation and
voting rights, the value of the one one-thousandth interest in a Preferred Share
purchasable upon exercise of each Right should approximate the value of one
Common Share.
In the event that the Company is acquired in a merger or other business
combination transaction or 50% or more of its consolidated assets or earning
power are sold after a person or group has become an Acquiring Person, proper
provision will be made so that each holder of a Right will thereafter have the
right to receive, upon the exercise thereof at the then current exercise price
of the Right, that number of shares of common stock of the acquiring company
which at the time of such transaction will have a market value of two times the
exercise price of the Right. In the event that any person or group of affiliated
or associated persons becomes an Acquiring Person, proper provision shall be
made so that each holder of a Right, other than Rights beneficially owned by the
Acquiring Person (which will thereafter be void), will thereafter have the right
to receive upon exercise that number of Common Shares having a market value of
two times the exercise price of the Right.
At any time after any person or group becomes an Acquiring Person and prior
to the acquisition by such person or group of 50% or more of the outstanding
Common Shares, the Board of Directors of the Company may exchange the Rights
(other than Rights owned by such person or group which will have become void),
in whole or in part, at an exchange ratio of one Common Share, or one
one-thousandth of a Preferred Share (or of a share of a class or series of the
Company's preferred stock having equivalent rights, preferences and privileges),
per Right (subject to adjustment).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional Preferred Shares will be issued (other than
fractions which are integral multiples of one one-thousandth of a Preferred
Share, which may, at the election of the Company, be evidenced by depositary
receipts) and in lieu thereof, an adjustment in cash will be made based on the
market price of the Preferred Shares on the last trading day prior to the date
of exercise.
At any time prior to the acquisition by a person or group of affiliated or
associated persons of beneficial ownership of 15% or more of the outstanding
Common Shares, the Board of Directors of the Company may redeem the Rights in
whole, but not in part, at a price of $.01 per Right (the "Redemption Price").
The redemption of the Rights may be made effective at such time on such basis
with such conditions as the Board of Directors in its sole discretion may
establish. Immediately upon any redemption of the Rights, the right to exercise
the Rights will terminate and the only right of the holders of Rights will be to
receive the Redemption Price.
The terms of the Rights may be amended by the Board of Directors of the
Company without the consent of the holders of the Rights, including an amendment
to lower certain thresholds described above to not less than the greater of (i)
the sum of .001% and the largest percentage of the outstanding Common Shares
then known to the Company to be beneficially owned by any person or group of
affiliated or associated persons and (ii) 10%, except that from and after such
time as any person or group of affiliated or associated persons becomes an
Acquiring Person no such amendment may adversely affect the interests of the
holders of the Rights.
<PAGE>
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends.
So long as the Rights are attached to the Common Stock (and, in certain
circumstances, after such time), the Company will issue one Right with each new
share of Common Stock so that all such shares will have attached Rights.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person who attempts to acquire the Company without the
consent of the Board of Directors. The Rights will not affect a transaction
approved by the Company prior to the existence of an Acquiring Person, because
the Rights can be redeemed before the consummation of such transaction.
The Rights Agreement dated as of August 13, 1998, between the Company and
American Stock Transfer & Trust Company, as Rights Agent, specifying the terms
of the Rights is hereby incorporated by reference to Exhibit 4 to the Current
Report on Form 8-K dated August 13, 1998, and filed by the Company with the
Securities and Exchange Commission on August 14, 1998. The foregoing description
of the Rights is qualified in its entirety by reference to such exhibit.
ITEM 2. Exhibits
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3.(I) Certificate of Incorporation of the Company, as amended to date.
3.(II) Bylaws of the Company, as amended to date (incorporated by reference
to the Company's Form 10-Q for the quarter ended March 31, 1998).
4.(I)Rights Agreement, dated as of August 13, 1998, between Aeroflex
Incorporated and American Stock Transfer & Trust Company, which
includes the form of Statement setting forth the terms of the Series A
Junior Participating Preferred Stock, par value $.10 per share, of
Aeroflex Incorporated, as Exhibit A, the form of Right Certificate as
Exhibit B and the Summary of Rights to Purchase Preferred Shares as
Exhibit C (incorporated by reference to Exhibit 4 to the Company's
Report on Form 8-K dated August 13, 1998, filed with the Securities
and Exchange Commission on August 14, 1998).
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Registrant has duly caused the registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized.
AEROFLEX INCORPORATED
By: /s/ Michael Gorin
-----------------------
Michael Gorin
President
Dated: March 20, 2000
PAGE 1
State of Delaware
Office of the Secretary of State
------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "AEROFLEX LABORATORIES INCORPORATED", FILED IN THIS OFFICE ON
THE THIRD DAY OF JANUARY, A.D. 1961, AT 10 O'CLOCK A.M.
[SEAL OMITTED]
/s/ Edward J. Freel
[SEAL OMITTED] -----------------------------------------
Edward J. Freel, Secretary of State
0561329 8100 AUTHENTICATION: 7276018
944200245 DATE: 10-20-94
<PAGE>
================================================================================
AEROFLEX LABORATORIES INCORPORATED
-----------------------
CERTIFICATE OF INCORPORATION
-----------------------
Incorporated under the laws
of the State of Delaware
================================================================================
<PAGE>
CERTIFICATE OF INCORPORATION
of
AEROFLEX LABORATORIES INCORPORATED
--------------------
We, the undersigned, for the purpose of associating to establish a
corporation for the transaction of the business and the promotion and conduct of
the objects and purposes hereinafter stated, under the provisions, and subject
to the requirements, of the laws of the State of Delaware (particularly Chapter
1 of Title 8 of the Delaware Code of 1953, known as the "General Corporation Law
of the State of Delaware", and the acts amendatory thereof, supplemental thereto
or substituted therefor), do make and file this Certificate of Incorporation in
writing and do hereby certify as follows:
FIRST: The name of the corporation (hereinafter called the
Corporation) is
AEROFLEX LABORATORIES INCORPORATED
SECOND: The respective names of the County and of the City within
the County in which the principal office of the Corporation is to be located in
the State of Delaware are the County of New Castle and the City of Wilmington.
The name of the resident agent of the Corporation is The Corporation Trust
Company.
<PAGE>
2
The street and number of said principal office and the address by
street and number of said resident agent is No. 100 West Tenth Street, in the
City of Wilmington, State of Delaware.
THIRD: The nature of the business of the Corporation and the objects
and purposes to be transacted, promoted or carried on by it, are as follows:
(a) To manufacture, process, prepare, design, develop, experiment
with, equip, remodel, construct, acquire, hold, use, operate, buy, sell,
lease, install, repair, service, import, export, trade and deal in and
with, and to grant, receive and exercise licenses, rights and privileges
in respect of the development, production, use and marketing of, any and
all equipment, machines, machinery, apparatus, instruments, fixtures,
appliances, devices and contrivances of any kind or nature whatsoever
which perform image-forming sensory functions in the field of aerial or
space reconnaissance, or which are used in any field for the control,
receipt, generation, transmission, conversion, amplification or use of
energy, power, light, signals or information or other data, whether based
upon, involving or applying principles of electricity, electronics,
mechanics, or otherwise, and any and all components, sub-assemblies,
parts, appurtenances and accessories thereof, and any and all other
products, materials and other things manufactured for use in or in
connection with or by the use of, or used or suitable for use in or in
connection with, the foregoing, and to engage in the performance of
services and other related activities in connection therewith;
(b) To make, manufacture, experiment with, develop, assemble, use,
repair, buy, sell, lease and otherwise deal in and with machines,
machinery, engines, motors, equipment, apparatus, instruments, fixtures,
appliances, devices and contrivances of any kind or nature whatsoever and
any parts, accessories or improvements of any thereof, of any kind
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3
or nature whatsoever, and any and all other goods, articles, materials,
wares and merchandise of any kind or nature whatsoever, and to engage and
participate in any industrial, manufacturing, mercantile, or trading
business of any kind or character whatsoever;
(c) To conduct and carry on any experimental and research work in
engineering and scientific fields, and to render to any person, firm,
association or corporation engaged in any lawful adventure, enterprise or
business, services of an engineering, scientific, business or technical
nature, or concerned with the management of any business program or the
production, sale, operation or servicing of any equipment, product or
article of any kind whatsoever;
(d) To acquire by purchase or otherwise, erect, construct, improve,
maintain, operate, equip, hold, own, improve, develop, manage, lease,
mortgage, create liens upon, sell, convey, or otherwise dispose of or turn
to account buildings, factories, plants, laboratories, offices, shops,
storehouses, tanks, buildings, roads, machinery, cars and other vehicles,
and works, structures, machines and apparatus of all kinds, and any and
all rights and privileges therein, in so far as the same may appertain to
or be useful in the conduct of the business of the Corporation;
(e) To develop, adopt, apply for, obtain, register, purchase, take
licenses in respect of or otherwise acquire, maintain, protect, hold, use,
own, exercise, develop, operate, introduce, sell and grant licenses or
other rights in respect of, and assign or otherwise dispose of or turn to
account, any inventions, devices, formulae, processes, improvements and
modifications thereof, patents, patent rights, concessions, copyrights and
distinctive marks and rights analogous thereto, trademarks and trade
names, including such thereof as may be covered by, used in connection
with, or secured or received under, the laws of the United States of
America or of any other jurisdiction;
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4
(f) To acquire by purchase, exchange, lease or otherwise, and to
own, hold, develop, operate, sell, assign, lease, transfer, convey,
exchange, mortgage, pledge or otherwise dispose of or encumber property,
real or personal, tangible or intangible, of any class or description,
wheresoever situated, and rights and privileges therein;
(g) To borrow or raise moneys for any of the purposes of the
Corporation, without limit as to amount; from time to time to issue and
sell, exchange, pledge or otherwise dispose of its own securities in such
amounts, on such terms and conditions, for such purposes and for such
consideration, now or hereafter permitted by the laws of the State of
Delaware and by this Certificate of Incorporation as the Board of
Directors of the Corporation (hereinafter called the Board of Directors)
may determine; and to secure such securities by mortgage upon, or the
pledge of, or the conveyance or assignment in trust of, the whole or any
part of the properties, assets, business and good will of the Corporation,
then owned or thereafter acquired;
(h) To acquire by purchase, exchange, lease or otherwise all, or any
part of, or any interest in, the properties, assets, business and good
will of any one or more persons, partnerships, syndicates, firms,
associations or corporations heretofore or hereafter engaged in any
business for which a corporation may now or hereafter be organized under
the laws of the State of Delaware; to pay for the same in cash, property
or its own or other securities; to hold, operate, reorganize, liquidate,
sell or in any manner dispose of the whole or any part thereof; and, in
connection therewith, to assume or guarantee performance of any
liabilities, obligations or contracts of such persons, partnerships,
syndicates, firms, associations or corporations, and to conduct the whole
or any part of any business thus acquired;
(i) To acquire by purchase, subscription, exchange or otherwise, to
hold, mortgage, pledge, sell, assign, transfer, exchange or otherwise
dispose of securities, and to pay therefor, in whole or in part, with cash
or other property, or with shares, bonds, debentures, notes or other
obligations,
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5
of the Corporation, or in any other lawful manner whatsoever; and, while
the owner or holder of any such securities, to possess and exercise in
respect thereof all the rights, powers and privileges of ownership,
including the right to vote thereon or consent in respect thereof for any
and all purposes; and, upon a distribution or division of the profits or
assets of the Corporation, to distribute any such securities; the term
"securities" as used herein to include, without limitation, shares of
stock, bonds, debentures, notes, mortgages or other evidences of
indebtedness, and certificates, receipts or other instruments representing
rights to receive, purchase or subscribe for the same, or representing any
other rights or interests therein or in any property or assets, created or
issued by any person, firm, association, corporation, or government or
subdivision thereof;
(j) To enter into, make, perform and carry out contracts and
agreements of every kind and description which may be necessary,
appropriate, convenient or advisable in carrying out the business of the
Corporation, with any person, corporation, association, partnership, firm,
trustee, syndicate, individual, government, state, municipality or other
governmental division or subdivision;
(k) To lend its uninvested funds from time to time to such extent,
to such persons, firms, associations, corporations, syndicates,
governments or subdivisions, instrumentalities or agencies thereof, and on
such terms and on such security, if any, as the Board of Directors may
determine;
(l) To endorse or guarantee the payment of principal, interest or
dividends upon, and to guarantee the performance of sinking fund or other
obligations of, any securities, and to guarantee the performance of any
contracts or other undertakings in which the Corporation may otherwise be
or become interested, in so far as may be permitted by law;
(m) To purchase, hold, cancel, reissue, sell, exchange, transfer or
otherwise deal in its own securities, from time to time, to such an extent
and in such manner and upon such terms as the Board of Directors may
determine; provided that the Corporation
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6
shall not use its funds or property for the purchase of its own shares of
capital stock when such use would cause any impairment of its capital,
except as otherwise permitted by law; and provided further that shares of
its own capital stock belonging to the Corporation shall not be voted upon
directly or indirectly;
(n) To organize or cause to be organized under the laws of the State
of Delaware, or of any other State of the United States of America, or of
the District of Columbia, or of any territory, dependency, colony or
possession of the United States of America, or of any foreign country, a
corporation or corporations for the purpose of transacting, promoting or
carrying on any of or all the objects or purposes for which the
Corporation is organized, and to dissolve, wind up, liquidate, merge or
consolidate any such corporation or corporations or to cause the same to
be dissolved, wound up, liquidated, merged or consolidated;
(o) To carry out all or any part of the foregoing purposes as
principal, factor, agent, contractor or otherwise, either alone or in
conjunction with any person, firm, association or other corporation and in
any part of the world;
(p) To conduct its business in any and all of its branches in the
State of Delaware, and in any and all other states, territories,
possessions, colonies and dependencies of the United States of America,
and in the District of Columbia, and in any and all foreign countries; to
have one or more offices within and without the State of Delaware; and to
carry on all and any of its operations and business without restriction or
limit as to amount; and
(q) To do any and all things necessary, suitable, convenient or
proper for, or in connection with, or incidental to, the accomplishment of
any of the purposes herein enumerated, or designed directly or indirectly
to promote the interests of the Corporation, or to enhance the value of
any of its properties or rights; and, in general, to do any and all things
and exercise any and all powers
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7
which it may now or hereafter be lawful for the Corporation to do or to
exercise under the laws of the State of Delaware; and to execute from time
to time such general or special powers of attorney, and to such person or
persons as the Board of Directors may approve, granting to such person or
persons such powers as the Board of Directors may deem proper, and to
revoke such powers of attorney as and when the Board of Directors may
desire.
It is the intention that the objects and purposes set forth in the
foregoing clauses of this Article THIRD shall not, unless otherwise specified
herein, be in any wise limited or restricted by reference to, or inference from,
the terms of any other clause of this or any other article in this Certificate
of Incorporation, but that the objects and purposes set forth in each of the
clauses of this Article shall be regarded as independent objects and purposes.
It is also the intention that said clauses shall be construed as
powers, as well as objects and purposes, and that the foregoing enumeration of
specific powers shall not be held to limit or restrict in any manner the general
powers of the Corporation, and, generally, that the Corporation shall be
authorized to do all things and exercise any and all powers, rights and
privileges which a corporation may now or hereafter be organized to do or
exercise under the General Corporation Law of the State of Delaware, or under
any act amendatory thereof, supplemental thereto or substituted therefor;
provided, however, that the Corporation shall not, in any state, district,
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8
territory, province, possession or country, carry on any business, or exercise
any powers, except to the extent that a similar corporation organized under the
laws of said state, district, territory, province, possession or country could
carry on such business or exercise such powers therein.
Notwithstanding any other provision of this Certificate of
Incorporation, the Corporation shall not have power or authority to issue bills,
notes or other evidences of debt for circulation as money, or to carry on the
business of receiving deposits of money or the business of buying gold or silver
bullion or foreign coins, or to engage in the business of banking or insurance,
or to carry on the business of constructing, maintaining or operating public
utilities in the State of Delaware.
FOURTH: The total number of shares of stock which the Corporation
shall have authority to issue is seven hundred fifty thousand (750,000), and the
par value of each of such shares shall be One Dollar ($1). All such shares shall
be of one class and shall be designated Common Stock.
The minimum amount of capital with which the Corporation shall
commence business is One thousand Dollars ($1,000).
FIFTH: The names and places of residence of each of the
incorporators are as follows:
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9
Name Place of Residence
---- ------------------
W.D. Ford 30 Sutton Place, New York 22, N.Y.
Robert V. Zener 415 East 80th St., New York 21, N.Y.
W.J. Schrenk, Jr. 34 East 62nd St., New York 21, N.Y.
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: The private property of the stockholders of the Corporation
shall not be subject to the payment of corporate debts to any extent whatever.
EIGHTH: For the management of the business and for the conduct of
the affairs of the Corporation, and in further definition, limitation and
regulation of the powers of the Corporation and of its directors and
stockholders, it is further provided:
1. The number of directors of the Corporation shall be fixed by, or
in the manner provided in, its by-laws, but in no case shall the number be
less than three. A director need not be a stockholder. The election of
directors of the Corporation need not be by ballot unless the by-laws so
require. One-third of the directors (but not less than two) shall
constitute a quorum for the transaction of business, unless the by-laws
shall provide that a different number shall constitute a quorum, which in
no case shall be less
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10
than one-third of the total number of directors nor less than two
directors.
2. In furtherance and not in limitation of the powers conferred by
the laws of the State of Delaware, the Board of Directors is expressly
authorized and empowered:
(a) To make, alter, amend or repeal the by-laws of the
Corporation, in any manner not inconsistent with the laws of the
State of Delaware or the Certificate of Incorporation of the
Corporation, subject to the power of the stockholders of the
Corporation having voting power to alter, amend or repeal the
by-laws made by the Board of Directors;
(b) Subject to the applicable provisions of the by-laws then
in effect, to determine, from time to time, whether and to what
extent and at what times and places and under what conditions and
regulations the accounts and books and documents of the Corporation,
or any of them, shall be open to the inspection of stockholders; and
a stockholder shall not have any right to inspect any account or
book or document of the Corporation, except as conferred by the laws
of the
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11
State of Delaware, unless and until authorized so to do by
resolution of the Board of Directors or of the stockholders of the
Corporation;
(c) Without the assent or vote of the stockholders, to
authorize and issue, from time to time, obligations of the
Corporation, secured or unsecured, to include therein such
provisions as to redeemability, convertibility into shares of stock
of the Corporation or otherwise, and to authorize the mortgaging or
pledging, as security therefor, of any property, real or personal,
then owned or thereafter acquired by the Corporation, all as the
Board of Directors, in its sole discretion, may determine;
(d) To determine whether any, and, if any, what part, of the
annual net profits of the Corporation or of its net assets in excess
of its capital shall be declared in dividends and paid to the
stockholders, and to direct and determine the use and disposition of
any such annual net profits or net assets in excess of capital;
(e) To fix from time to time the amount of the profits of the
Corporation to be reserved as working capital or for any other
lawful purpose;
<PAGE>
12
(f) To establish bonus, profit-sharing, retirement or other
types of incentive or compensation plans for the officers and
employees (including officers and employees who are also directors)
of the Corporation and to determine the persons to participate in
any such plans and the amount of their respective participations;
and in connection with the acquisition of all or any part of the
property, assets, business and good will of any persons, firms,
associations or corporations, to assume, adopt or enter into any
such plans previously established by such persons, firms,
associations or corporations;
(g) To issue and sell or grant options for the purchase of
shares of stock of the Corporation or shares of stock of any other
corporation to officers and employees (including officers and
employees who are also directors) of the Corporation and its
subsidiaries for such consideration and on such terms and conditions
as the Board of Directors may from time to time determine;
(h) By resolution passed by a majority of the whole Board, to
designate one or more committees, each committee to consist of two
(2) or
<PAGE>
13
more of the directors of the Corporation, which to the extent
provided in said resolution or in the by-laws, shall have and may
exercise the powers of the Board of Directors in the management of
the business and affairs of the Corporation and may have power to
authorize the seal of the Corporation to be affixed to all papers
which may require it, such committee or committees to have such name
or names as may be stated in the by-laws or as may be determined
from time to time by resolution adopted by the Board of Directors;
and
(i) In addition to the powers and authorities hereinbefore and
by the laws of the State of Delaware expressly conferred upon the
Board of Directors, to exercise all such powers and do all such acts
and things as may be exercised or done by the Corporation, subject,
nevertheless, to the provisions of the laws of the State of
Delaware, of this Certificate of Incorporation and of the by-laws of
the Corporation.
3. Any director or officer elected or appointed by the stockholders
of the Corporation or by its Board
<PAGE>
14
of Directors may be removed at any time in such manner as shall be
provided in the by-laws of the Corporation.
4. In the absence of fraud, no contract or other transaction between
the Corporation any any other corporation, and no act of the Corporation,
shall in any way be invalidated or otherwise affected by the fact that any
one or more of the directors of the Corporation are pecuniarily or
otherwise interested in, or are directors or officers of, such other
corporation or have a pecuniary or other interest in such act. Any
director of the Corporation individually, or any firm or association of
which any director may be a member, may be a party to, or may be
pecuniarily or otherwise interested in, any contract or transaction of the
Corporation, provided that the fact that he individually or such firm or
association is such a party or so interested shall be disclosed or shall
have been known to the Board of Directors or a majority of the members
thereof who shall be present at any meeting of the Board of Directors at
which action upon any such contract or transaction shall be taken; and any
director of the Corporation who is also a director or officer of such
other corporation or who
<PAGE>
15
is so interested, may be counted in determining the existence of a quorum
at any meeting of the Board of Directors or of any committee thereof which
shall authorize any such contract or transaction, and may vote thereat to
authorize any such contract or transaction, with like force and effect as
if he were not such director or officer of such other corporation or not
so interested. Any director of the Corporation may vote upon any contract
or other transaction between the Corporation and any subsidiary or
affiliated corporation without regard to the fact that he is also a
director of such subsidiary or affiliated corporation.
Any contract, transaction or act of the Corporation, or of the Board
of Directors, or of any committee of the Board of Directors, which shall
be ratified by a majority of a quorum of the holders of Common Stock of
the Corporation entitled to vote at any annual meeting, or at any special
meeting called for such purpose, shall, in so far as permitted by law or
by this Certificate of Incorporation, be as valid and as binding as though
ratified by every such stockholder; provided, however, that any failure of
the stockholders to approve or ratify any such contract, transaction or
act, when and if submitted, shall not be deemed in any
<PAGE>
16
way to invalidate the same or deprive the Corporation, its directors,
officers or employees, of its or their right to proceed with such
contract, transaction or act.
5. Subject to any limitation in the by-laws then in effect, the
members of the Board of Directors shall be entitled to reasonable fees,
salaries, or other compensation for their services and to reimbursement
for their expenses as such members. Nothing contained herein shall
preclude any director from serving the Corporation, or any subsidiary or
affiliated corporation, in any other capacity and receiving proper
compensation therefor.
NINTH: The stockholders and the Board of Directors shall have the
power, if the by-laws so provide, to hold their respective meetings outside of
the State of Delaware, and, except as otherwise required by law, the corporate
records, books, documents and papers of the Corporation may be kept outside of
the State of Delaware.
TENTH: The Company reserves the right from time to time to amend,
alter, change, add to or repeal any provisions contained in this Certificate of
Incorporation in any manner now or hereafter prescribed by law, and all rights
and powers at any time conferred upon stockholders, directors
<PAGE>
17
and officers of the Corporation by this Certificate of Incorporation or any
amendment thereof are subject to the provisions of this Article TENTH.
IN WITNESS WHEREOF, we, the undersigned, being all of the
incorporators hereinabove named, do hereby further certify that the facts
hereinabove stated are truly set forth, and accordingly have hereunto set our
respective hands and seals this 30th day of December, 1960.
/s/ W. D. Ford [L.S.]
----------------------
/s/ Robert V. Zener [L.S.]
----------------------
/s/ W. J. Schrenk, Jr. [L.S.]
----------------------
<PAGE>
STATE OF NEW YORK, )
) ss.:
COUNTY OF NEW YORK, )
BE IT REMEMBERED that on the 30th day of December, 1960, personally
appeared before me, Mark D. Geraghty, a Notary Public in and for the County and
State aforesaid, W. D. Ford, Robert V. Zener and W. J. Schrenk, Jr., all the
incorporators who signed the foregoing Certificate of Incorporation, known to me
personally to be such, and I having made known to them and to each of them the
contents of said Certificate of Incorporation, they did severally acknowledge
the same to be the act and deed of the signers, respectively, and that the facts
therein stated are truly set forth.
GIVEN under my hand and seal of office the day and year aforesaid.
/s/ Mark D. Geraghty
---------------------------------
Notary Public
MARK D. GERAGHTY MARK D. GERAGHTY
NOTARY PUBLIC Notary Public, State of New York
STATE OF NEW YORK No. 60-6490510
Qualified in Westchester County
Cert. filed in New York Co. Clerk
Term Expires March 30, 1962
<PAGE>
PAGE 1
State of Delaware
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "AEROFLEX LABORATORIES INCORPORATED", FILED IN THIS OFFICE ON THE FOURTH DAY
OF MAY, A.D. 1961, AT 10 O'CLOCK A.M.
[SEAL OMITTED]
/s/ Edward J. Freel
[SEAL OMITTED] -----------------------------------------
Edward J. Freel, Secretary of State
0561329 8100 AUTHENTICATION: 7276019
944200245 DATE: 10-20-94
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
BEFORE PAYMENT OF CAPITAL
OF
AEROFLEX LABORATORIES INCORPORATED
We, the undersigned, being all the incorporators of Aeroflex
Laboratories Incorporated, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware
DO HEREBY CERTIFY:
FIRST: That Article FOURTH of the Certificate of Incorporation be,
and it hereby is, amended by adding thereto a third paragraph to read as
follows:
"At all elections of directors of the Corporation each
stockholder shall be entitled to as many votes as shall equal the
number of votes which (except for this provision as to cumulative
voting) he would be entitled to cast for the election of directors
with respect to his shares of stock multiplied by the number of
directors to be elected. He may cast all of such votes for a single
director or may distribute them among the number to be voted for,
or any two or more of them as he may see fit."
SECOND: That a new Article be, and it hereby is, added at the end of
the Certificate of Incorporation to read as follows:
"ELEVENTH: No holder of stock of the Corporation shall, as
such holder, have any right to purchase or subscribe for any shares
of stock of the Corporation of any class, now or hereafter
authorized, or any obligations or instruments which the Corporation
may issue or sell that shall be convertible into or exchangeable for
or entitle the holders
<PAGE>
thereof to subscribe for or purchase any shares of stock of the
Corporation of any class, now or hereafter authorized, other than
such right, if any, as the Board of Directors in its discretion may
determine."
THIRD: That no part of the capital of said Corporation has been
paid,
IN WITNESS WHEREOF, we have signed this Certificate this 3rd, day of
May, 1961.
/s/ William D. Ford
----------------------
/s/ Robert V. Zener
----------------------
/s/ W. J. Schrenk, Jr.
----------------------
-2-
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
BE IT REMEMBERED that on this 3rd day of May, A.D. 1961, personally
came before me ANTHONY MAGGIO a Notary Public for the State of New York, W. D.
Ford, Robert V. Zener and W. J. Schrenk, Jr., all of the incorporators of the
foregoing corporation, known to me personally to be such and severally
acknowledged the said amended certificate to be the act and deed of the signers
respectively, and that the facts therein stated are truly set forth.
GIVEN under my hand and seal of office the day and year aforesaid.
/s/ Anthony Maggio
------------------------------------
Notary Public
ANTHONY MAGGIO ANTHONY MAGGIO
NOTARY PUBLIC Notary Public, State of New York
STATE OF NEW YORK No. 41-2469000
Qualified in Queens County
Certificate filed in New York County
Commission Expires March 30, 1963
-3-
<PAGE>
PAGE 1
State of Delaware
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "AEROFLEX LABORATORIES INCORPORATED", FILED IN THIS OFFICE ON THE SECOND DAY
OF MARCH, A.D. 1976, AT 10 O'CLOCK A.M.
[SEAL OMITTED]
/s/ Edward J. Freel
[SEAL OMITTED] -----------------------------------
Edward J. Freel, Secretary of State
0561329 8100 AUTHENTICATION: 7276020
944200245 DATE: 10-20-94
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
AEROFLEX LABORATORIES INCORPORATED
*****
AEROFLEX LABORATORIES INCORPORATED, a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of AEROFLEX
LABORATORIES INCORPORATED, resolutions were duly adopted setting forth a
proposed amendment to the Certificate of Incorporation of said corporation,
declaring said amendment to be advisable and calling a meeting of the
stockholders of said corporation for consideration thereof. The resolution
setting forth the amendment is as follows:
RESOLVED, that the Certificate of Incorporation of this corporation
be amended by changing the Article thereof numbered "FOURTH" so that, as
amended, said Article shall be and read as follows:
"FOURTH: The total number of shares of stock which the Corporation
shall have authority to issue is one million two hundred fifty thousand
(1,250,000) and the par value or each of such shares shall be Ten Cents
($.10). All such shares shall be of one class and shall be designated
Common stock.
<PAGE>
At all elections of directors of the Corporation, each stockholder
shall be entitled to as many votes as shall equal the number of votes
which (except for this provision as to cumulative voting) he would be
entitled to cast for the election of directors with respect to his shares
of stock multiplied by the number of directors to be elected. He may cast
all of such votes for a single director or may distribute them among the
number to be voted for, or any two or more of them as he may see fit."
SECOND: That thereafter, pursuant to resolution of its Board of
Directors, a special meeting of the stockholders corporation was duly called and
held, upon notice in accordance with Section 222 of the General Corporation Law
of the State of Delaware, at which meeting the necessary number of shares
required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
FOURTH: That a Certificate of Reduction of capital pursuant to
Section 244 (c) of the General Corporation Law of the State of Delaware is being
filed with this Certificate of Incorporation.
IN WITNESS WHEREOF, said AEROFLEX LABORATORIES INCORPORATED has
caused this Certificate to be signed by MILTON BRENNER, its President, and
attested by MICHAEL L. EVANS, Secretary, this 26th day of February, 1976.
AEROFLEX LABORATORIES INCORPORATED
CORPORATE SEAL By /s/ Milton Brenner
-------------------------
Milton Brenner, President
ATTEST:
By: /s/ Michael L. Evans
---------------------------
Michael L. Evans, Secretary
-2-
<PAGE>
PAGE 1
State of Delaware
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "AEROFLEX LABORATORIES INCORPORATED", FILED IN THIS OFFICE ON THE
TWENTY-FIRST DAY OF NOVEMBER, A.D. 1980, AT 10:30 O'CLOCK A.M.
[SEAL OMITTED]
/s/ Edward J. Freel
[SEAL OMITTED] -----------------------------------
Edward J. Freel, Secretary of State
0561329 8100 AUTHENTICATION: 7276021
944200245 DATE: 10-20-94
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE CERTIFICATE OF INCORPORATION OF
AEROFLEX LABORATORIES INCORPORATED
********
AEROFLEX LABORATORIES INCORPORATED, a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of AEROFLEX
LABORATORIES INCORPORATED, resolutions were adopted setting forth a proposed
amendment to the Certificate of Incorporation of said corporation, declaring
said amendment to be advisable and calling a meeting of the stockholders of said
corporation for consideration thereof.
SECOND: That thereafter, pursuant to resolution of its Board of
Directors, the Annual Meeting of Stockholders of said corporation was duly
called and held, upon notice in accordance with Section 222 of the General
Corporation Law of the State of Delaware at which meeting the necessary number
of shares as required by statute were voted in favor of the following amendment:
RESOLVED, that the Certificate of Incorporation of this corporation
be amended by changing the "first paragraph" of the Article thereof
numbered "FOURTH" so that, as amended said paragraph shall be and
read as follows:
"FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is Four Million Two
Hundred and Fifty Thousand (4,250,000) shares, of which Three
Million Two Hundred Fifty Thousand (3,250,000) shares shall be
shares of Common Stock of the
<PAGE>
par value of Ten Cents ($.10) per share and One Million (1,000,000)
shares shall be shares of Preferred Stock of the par value of Ten
Cents ($.10) per share. The Preferred Stock may be issued in series
and the number, designation, relative rights, preferences and
limitations of shares of each series of Preferred Stock, $.10 per
share par value shall be fixed by the Board of Directors."
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said AEROFLEX LABORATORIES INCORPORATED has
caused this certificate to be signed by Milton Brenner, its President and
attested by Harvey R. Blau its Secretary, this 24th day of November, 1980.
AEROFLEX LABORATORIES INCORPORATED
By: /s/ Milton Brenner
------------------------------
Milton Brenner, President
ATTEST:
/s/ Harvey R. Blau
- -------------------------
Harvey R. Blau, Secretary
<PAGE>
PAGE 1
State of Delaware
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "AEROFLEX LABORATORIES INCORPORATED", FILED IN THIS OFFICE ON THE EIGHTH DAY
OF APRIL, A.D. 1983, AT 10 O'CLOCK A.M.
[SEAL OMITTED]
/s/ Edward J. Freel
[SEAL OMITTED] -----------------------------------
Edward J. Freel, Secretary of State
0561329 8100 AUTHENTICATION: 7276022
944200245 DATE: 10-20-94
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE CERTIFICATE OF INCORPORATION OF
AEROFLEX LABORATORIES INCORPORATED
******
AEROFLEX LABORATORIES INCORPORATED, a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of AEROFLEX
LABORATORIES INCORPORATED, resolutions were adopted setting forth a proposed
amendment to the Certificate of Incorporation of said corporation, declaring
said amendment to be advisable and calling a meeting of the stockholders of the
corporation for consideration thereof.
SECOND: That thereafter, pursuant to resolution of its Board of Directors,
the Annual Meeting of Stockholders of said corporation was duly called and held,
upon notice in accordance with Section 222 of the General Corporation Law of the
State of Delaware at which meeting the necessary number of shares as required by
statute were voted in favor of the following amendment:
RESOLVED, that the Certificate of Incorporation of this corporation be
amended by changing the "first paragraph" of the Article thereof numbered
"FOURTH" so that, as amended said paragraph shall be and read as follows:
<PAGE>
"FOURTH: The total number of shares of all classes of stock, which
the corporation shall have the authority to issue is SIX MILLION
(6,000,000) shares, of which FIVE MILLION (5,000,000) shares shall be
shares of Common Stock of the par value of Ten Cents ($.10) per share and
ONE MILLION (1,000,000) shares shall be shares of Preferred Stock of the
par value of Ten Cents ($.10) per share. The Preferred Stock may be issued
in series and the number, designation, relative rights, preferences and
limitations of shares of each series of Preferred Stock, Ten Cents ($.10)
per share par value shall be fixed by the Board of Directors."
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said AEROFLEX LABORATORIES INCORPORATED has caused
this certificate to be signed by Milton Brenner, its President and attested by
Robert Ramistella, its Secretary, this 7th day of April, 1983.
AEROFLEX LABORATORIES INCORPORATED
By: /s/ Milton Brenner
------------------------------
Milton Brenner, President
ATTEST:
/s/ Robert Ramistella
- ----------------------------
Robert Ramistella, Secretary
<PAGE>
PAGE 1
State of Delaware
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "AEROFLEX LABORATORIES INCORPORATED", FILED IN THIS OFFICE ON THE
TWENTY-THIRD DAY OF NOVEMBER, A.D. 1983, AT 10 O'CLOCK A.M.
[SEAL OMITTED]
/s/ Edward J. Freel
[SEAL OMITTED] -----------------------------------
Edward J. Freel, Secretary of State
0561329 8100 AUTHENTICATION: 7276023
944200245 DATE: 10-20-94
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE CERTIFICATE OF INCORPORATION OF
AEROFLEX LABORATORIES INCORPORATED
********
AEROFLEX LABORATORIES INCORPORATED, a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of AEROFLEX
LABORATORIES INCORPORATED, resolutions were adopted setting forth a proposed
amendment to the Certificate of Incorporation of said corporation, declaring
said amendment to be advisable and calling a meeting of the stockholders of the
corporation for consideration thereof.
SECOND: That thereafter, pursuant to resolution of its Board of Directors,
the Annual Meeting of Stockholders of said corporation was duly called and held,
upon notice in accordance with Section 222 of the General Corporation Law of the
State of Delaware at which meeting the necessary number of shares as required by
statute were voted in favor of the following amendment:
<PAGE>
RESOLVED, that the Certificate of Incorporation of this corporation be
amended by changing the first paragraph of the Article thereof numbered
"FOURTH" so that, as amended, said paragraph shall be and read as follows:
"FOURTH: The total number of shares of all classes of stock which the
corporation shall have the authority to issue is SIXTEEN MILLION
(16,000,000) shares, of which FIFTEEN MILLION (15,000,000) shares shall be
shares of Common Stock of the par value of Ten Cents ($.10) per share and
ONE MILLION (1,000,000) shares shall be shares of Preferred Stock of the
par value of Ten Cents ($.10) per share. The Preferred Stock may be issued
in series and the number, designation, relative rights, preferences and
limitations of shares of each series of Preferred Stock, Ten Cents ($.10)
per share par value shall be fixed by the Board of Directors."
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said AEROFLEX LABORATORIES INCORPORATED has caused
this certificate to be signed by Milton Brenner, its President and attested by
Frank DiMaio, its Secretary, this 11th day of November, 1983.
AEROFLEX LABORATORIES INCORPORATED
By: /s/ Milton Brenner
------------------------------
Milton Brenner, President
ATTEST:
/s/ Frank DiMaio
- -----------------------
Frank DiMaio, Secretary
<PAGE>
PAGE 1
State of Delaware
Office of the Secretary of State
------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "AEROFLEX LABORATORIES INCORPORATED", CHANGING ITS NAME FROM "AEROFLEX
LABORATORIES INCORPORATED" TO "ARX, INC.", FILED IN THIS OFFICE ON THE THIRTIETH
DAY OF OCTOBER, A.D. 1985, AT 10 O'CLOCK A.M.
[SEAL OMITTED]
/s/ Edward J. Freel
[SEAL OMITTED] -----------------------------------
Edward J. Freel, Secretary of State
0561329 8100 AUTHENTICATION: 7276024
944200245 DATE: 10-20-94
<PAGE>
CERTIFICATE OF AMENDMENT OF THE
CERTIFICATE OF INCORPORATION OF
AEROFLEX LABORATORIES INCORPORATED
* * * * * * *
AEROFLEX LABORATORIES INCORPORATED, a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of AEROFLEX
LABORATORIES INCORPORATED, resolutions were adopted setting forth proposed
amendments to the Certificate of Incorporation of said corporation, declaring
said amendment to be advisable and calling a meeting of the stockholders of the
corporation for consideration thereof.
SECOND: That thereafter, pursuant to resolution of its Board of Directors,
the Annual Meeting of Stockholders of said corporation was duly called and held,
upon notice in accordance with Section 222 of the General Corporation Law of the
State of Delaware at which meeting the necessary number of shares as required by
statute were voted in favor of the following amendments:
RESOLVED, that the Certificate of Incorporation of this corporation be
amended by changing the Article thereof numbered "FIRST" so that, as
amended, said Article shall be and read as follows:
<PAGE>
"FIRST: The name of the corporation is ARX, Inc."
and it was further
RESOLVED, that the Certificate of Incorporation be further amended by
deleting the following from Article "FOURTH":
"At all elections of directors of the Corporation, each stockholder
shall be entitled to as many votes as shall equal the number of votes
which (except for this provision as to cumulative voting) he would be
entitled to cast for the election of directors with respect to his shares
of stock multiplied by the number of directors to be elected. He may cast
all of such votes for a single director or may distribute them among the
number to be voted for, or any two or more of them as he may see fit."
and it was further
RESOLVED, that the Certificate of Incorporation be further amended by
adding Article TWELFTH to read as follows:
"TWELFTH: The vote of stockholders of the Corporation required to
approve any Business Combination shall be as set forth in this Article
TWELFTH. The term "Business Combination" shall have the meaning ascribed
to it in (a)(B) of this Article; each other capitalized term used in this
Article shall have the meaning ascribed to it in (c) of this Article.
(a)(A) In addition to any affirmative vote required by law or
this Certificate of Incorporation and except as otherwise expressly
provided in (b) of this Article TWELFTH:
(1) any merger or consolidation of the Corporation or
any Subsidiary with (i) any Interested Stockholder or (ii) any other
corporation or entity (whether or not itself is an Interested
Stockholder) which is, or after each merger or consolidation would
be, an Affiliate of an Interested Stockholder; or
-2-
<PAGE>
(2) any sale, lease, exchange, mortgage, pledge,
transfer, or other disposition (in one transaction or a series of
transactions) to or with any Interested Stockholder or any Affiliate
of any Interested Stockholder of assets of the Corporation or any
Subsidiary having an aggregate Fair Market Value of $5,000,000 or
more; or
(3) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of transactions) of any
securities of any Affiliate or any Interested Stockholder in
exchange for cash, securities or other property (or a combination
thereof) having an aggregate Fair Market Value of $5,000,000 or
more, other than the issuance of securities upon the conversion of
convertible securities of the Corporation or any Subsidiary which
were were not acquired by such Interested Stockholder (or such
Affiliate) from the Corporation or a Subsidiary; or
(4) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation proposed by or on
behalf of an Interested Stockholder or any Affiliate of any
Interested Stockholder; or
(5) any reclassification of securities (including any
reverse stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its
Subsidiaries or any other transaction (whether or not with or into
or otherwise involving an Interested Stockholder) which in any such
case has the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class or series
of stock or securities convertible into the stock of the Corporation
or any subsidiary which is directly or indirectly beneficially owned
by any Interested Stockholder or any affiliate of any Interested
Stockholder;
-3-
<PAGE>
shall not be consummated without the affirmative vote of the holders
of at least 80 percent of the combined voting power of the then
outstanding shares of stock of all classes and series of the
Corporation entitled to vote generally in the election of directors
("Voting Stock"), in each case voting together as a single class.
Such affirmative vote shall be required notwithstanding the fact
that no vote may be required, or that a lesser percentage may be
specified, by law or by this Certificate of Incorporation or in any
agreement with any national securities exchange or otherwise.
(B) The term "Business Combination" as used in this
Article TWELFTH shall mean any transaction that is referred to in
any one or more clauses (1) through (5) of (a)(A) of this Article
TWELFTH.
(b) The provisions of (a) of this Article TWELFTH shall not be
applicable to any Business Combination in respect of which all of
the conditions specified in either of the following paragraphs (A)
and (B) are met, and such Business Combination shall require only
such affirmative vote as is required by law and any other provision
of the Certificate of Incorporation;
(A) such Business Combination shall have been approved
by a majority of the Disinterested Directors, or
(B) each of the six conditions specified in the
following clauses (1) through (6) shall have been met:
(1) the aggregate amount of the cash and the Fair
Market Value as of the date of the consummation of the
Business Combination (the "Consummation Date") of any
consideration other than cash to be received by holders of
Common Stock in such Business Combination shall be at least
equal to the higher of the following:
(i) (if applicable) the highest per share
price (including any brokerage commissions, transfer
taxes and soliciting dealers' fees) paid in order to
acquire any shares of Common Stock beneficially owned by
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<PAGE>
the Interested Stockholder which were acquired
beneficially by such Interested Stockholder (x) within
the two-year period immediately prior to the
Announcement Date or (y) in the transaction in which it
became an Interested Stockholder, whichever is higher;
or
(ii) the Fair Market Value per share of
Common Stock on the Announcement Date or on the date on
which the Interested Stockholder became an Interested
Stockholder (the Determination Date), whichever is
higher; and
(2) the aggregate amount of the cash and the Fair
Market Value as of the Consummation Date of any consideration
other than cash to be received per share by holders of shares
of any other class or series of Voting Stock shall be at least
equal to the highest of the following (it being intended that
the requirements of this clause (B)(2) shall be required to be
met with respect to each class and series of such outstanding
Voting Stock, whether or not the Interested Stockholder
beneficially owns any shares of a particular class or series
of Voting Stock):
(i) (if applicable) the highest per share
price (including any brokerage commissions, transfer
taxes and soliciting dealers' fees) paid in order to
acquire any shares of such class or series of voting
stock beneficially owned by the Interested Stockholder,
which were acquired beneficially by such Interested
Stockholder (x) within the two-year period immediately
prior to the Announcement Date or (y) in the transaction
in which it became an Interested Stockholder, whichever
is higher;
(ii) (if applicable) the highest
preferential amount per share to which the holders of
shares of such class or series of Voting Stock are
entitled in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the
Corporation; and
-5-
<PAGE>
(iii) the Fair Market Value per share of
such class or series of Voting Stock on the Announcement
Date or the Determination Date, whichever is higher; and
(3) the consideration to be received by holders of
a particular class or series of outstanding Voting Stock
(including Common Stock) shall be in cash or in the same form
as were previously paid in order to acquire beneficially
shares of such class or series of Voting Stock that are
beneficially owned by the Interested Stockholder and, if the
Interested Stockholder beneficially owns shares of any class
or series of Voting Stock that were acquired with varying
forms of consideration, the form of consideration to be
received by holders of such class or series of Voting Stock
shall be either cash or the form used to acquire beneficially
the largest number of shares of such class or series of Voting
Stock beneficially acquired prior to the Announcement Date;
and
(4) after such Interested Stockholder has become
an Interested Stockholder and prior to the consummation of
such Business Combination:
(i) except as approved by a majority of the
Disinterested Directors, there shall have been no
failure to declare and pay at the regular dates therefor
the full amount of any dividends (whether or not
cumulative) payable on any class or series of stock
having a preference over the Common Stock as to
dividends or upon liquidation.
(ii) there shall have been (x) no reduction
in the annual rate of dividends paid on the Common Stock
(except as necessary to reflect any subdivision of the
Common Stock), except as approved by a majority of the
Disinterested Directors and (y) an increase in such
annual rate of dividends (as necessary to prevent any
such reduction) in the event of any reclassification
(including any reverse stock split) recapitalization,
reorganization or any similar transaction which has the
effect of reducing the number of outstanding shares of
the Common Stock, unless the failure so to increase such
annual rate was approved by a majority of the
Disinterested Directors; and
-6-
<PAGE>
(iii) such Interested Stockholder shall not
have become the beneficial owner of any additional
shares of Voting Stock except as part of the transaction
in which it became an Interested Stockholder; and
(5) after such Interested Stockholder has become
an Interested Stockholder, such Interested Stockholder shall
not have received the benefit, directly or indirectly (except
proportionately as a stockholder), of any loans, advances,
guarantees, pledges or other financial assistance or tax
credits or other tax advantages provided by the Corporation,
whether in anticipation of or in connection with such Business
Combination or otherwise; and
(6) a proxy or information statement describing
the proposed Business Combination and complying with the
requirements of the Securities Exchange Act of 1934 and the
rules and regulations thereunder (or any subsequent provisions
replacing such Act, rules or regulations) shall be mailed to
public stockholders of the Corporation at least 30 days prior
to the consummation of such Business Combination (whether or
not such proxy or information statement is required to be
mailed pursuant to such Act or subsequent provisions).
(c) For the purposes of this Article TWELFTH:
(A) A "person" shall mean any individual, firm or
corporation or other entity.
(B) "Interested Stockholder" shall mean any person
(other than the Corporation or any Subsidiary) who or which:
(1) is the beneficial owner, directly or
indirectly, of more than 10 percent of the combined voting
power of the then outstanding shares of Voting Stock; or
(2) is an Affiliate of the Interested Stockholder
and at any time within the two-year period immediately prior
to the date in question was the beneficial owner, directly or
indirectly, of 10 percent or more of the combined voting power
of the then outstanding shares of Voting Stock, or
-7-
<PAGE>
(3) is an assignee of or has otherwise succeeded
to the beneficial ownership of any shares of Voting Stock that
were at any time within the two-year period immediately prior
to the date in question beneficially owned by an Interested
Stockholder, if such assignment or succession shall have
occurred in the course of a transaction or series of
transactions not involving a public offering within the
meaning of the Securities Act of 1933.
(C) A person shall be a "beneficial owner" of any Voting
Stock:
(1) which such person or any of its Affiliates or
Associates beneficially owns, directly or indirectly; or
(2) which such person or any of its Affiliates or
Associates has (a) the right to acquire (whether such right is
exercisable immediately or only after the passage of time),
pursuant to any agreement, arrangement or understanding or
upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (b) the right to vote or
direct the vote pursuant to any agreement, arrangement or
understanding; or
(3) which are beneficially owned, directly or
indirectly, by any other person with which such person or any
of its Affiliates or Associates has any agreement, arrangement
or understanding for the purpose of acquiring, holding, voting
or disposing of any shares of Voting Stock.
(D) For the purposes of determining whether a person is
an Interested Stockholder pursuant to (c)(B) of this Article
TWELFTH, the number of shares of Voting Stock deemed to be
outstanding shall include shares owned through application of (c)(C)
of this Article but shall not include any other shares of Voting
Stock that may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or
options, or otherwise.
-8-
<PAGE>
(E) "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange Act of
1934, as in effect on September 1, 1985.
(F) "Subsidiary" means any corporation more than 50
percent of whose outstanding stock having ordinary voting power in
the election of directors is owned, directly or indirectly, by the
Corporation or by a Subsidiary or by the Corporation and one or more
Subsidiaries, provided, however, that for the purposes of the
definition of Interested Stockholders set forth in (c)(B) of this
Article TWELFTH, the term "Subsidiary" shall mean only a corporation
of which a majority of each class or equity security is owned,
directly or indirectly, by the Corporation.
(G) "Disinterested Director" means any member of the
Board of Directors of the Corporation who is unaffiliated with, and
not a nominee of, the Interested Stockholder and was a member of the
Board prior to the time that the Interested Stockholder became an
Interested Stockholder, and any successor of a Disinterested
Director who is unaffiliated with, and not a nominee of, the
Interested Stockholder and who is recommended to succeed a
Disinterested Director by a majority of Disinterested Directors then
on the Board of Directors.
(H) "Fair Market Value" means: (1) in the case of stock,
the highest closing sale price during the 30-day period immediately
preceding the date in question of a share of such stock in the
Composite Tape for New York Stock Exchange Listed Stocks, or, if
such stock is not quoted on the Composite Tape, on the New York
Stock Exchange, or, if such stock is not listed on any such
exchange, the highest closing sales price or bid quotation with
respect to a share of such stock during the 30-day period preceding
the date in question on the National Association of Securities
Dealers, Inc. Automated Quotations System or any system then in use,
or if no such quotations are available, the fair market value on the
date in question of a share of stock as determined by a majority of
the Disinterested Directors in good faith; and (2) in the case of
stock of any class or series which is not traded on any United
States registered securities exchange nor in the over-the-counter
market or in the case of property other than cash or stock, the fair
market value of such property on the date in question as determined
by a majority of the Disinterested Directors in good faith.
-9-
<PAGE>
(I) In the event of any Business Combination in which
the Corporation survives, the phrase "other consideration to be
received" as used in (b)(B)(1) and (2) of this Article TWELFTH shall
include the shares of Common Stock and/or the shares of any other
class of outstanding Voting Stock retained by the holders of such
shares.
(J) "Announcement Date" means the date of first public
announcement of the proposed Business Combination.
(K) "Determination Date" means the date on which the
Interested Stockholder became an Interested Stockholder.
(d) A majority of the Disinterested Directors of the
Corporation shall have the power and duty to determine, on the basis
of information known to them after reasonable inquiry, all facts
necessary to determine compliance with this Article TWELFTH,
including, without limitation (A) whether a person is an Interested
Stockholder, (B) the number of shares of Voting Stock beneficially
owned by any person, (C) whether a person is an Affiliate or
Associate of another person, (D) whether the requirements of (b) of
this Article TWELFTH have been met with respect to any Business
Combination, and (E) whether the assets which are the subject of any
Business Combination have, or the consideration to be received for
the issuance or transfer of securities by the Corporation or any
Subsidiary in any Business Combination has, an aggregate Fair Market
Value of $5,000,000 or more. The good faith determination of a
majority of the Disinterested Directors on such matters shall be
conclusive and binding for all purposes of this Article TWELFTH.
(e) Nothing contained in this Article TWELFTH shall be
construed to relieve any Interested Stockholder from any fiduciary
obligation imposed by law.
(f) Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of the holders
of at least 50% of the voting power of the Voting Stock, voting
together as a single class, shall be required to alter, amend, or
repeal this Article TWELFTH or to adopt any provision Inconsistent
therewith."
-10-
<PAGE>
and it was further
RESOLVED, that the Certificate of Incorporation be further amended
by adding Article "THIRTEENTH" to read as follows:
"THIRTEENTH: Advance notice of stockholder nominations for the
election of Directors shall be given in the manner provided in the
By-Laws of the Corporation."
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said AEROFLEX LABORATORIES INCORPORATED has
caused this certificate to be signed by Milton Brenner, its President and
attested by Frank DiMaio, its Secretary-Treasurer, this 29th day of October,
1985.
AEROFLEX LABORATORIES INCORPORATED
By: /s/ Milton Brenner
-----------------------------------
Milton Brenner, President
ATTEST:
/s/ Frank DiMaio
- ---------------------------------------
Frank DiMaio, Secretary-Treasurer
<PAGE>
PAGE 1
State of Delaware
Office of the Secretary of State
------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "ARX, INC.", FILED IN THIS OFFICE ON THE EIGHTH DAY OF DECEMBER, A.D. 1986,
AT 10 O'CLOCK A.M.
[SEAL OMITTED]
/s/ Edward J. Freel
[SEAL OMITTED] -----------------------------------
Edward J. Freel, Secretary of State
0561329 8100 AUTHENTICATION: 7276025
944200245 DATE: 10-20-94
<PAGE>
CERTIFICATE OF AMENDMENT OF THE
CERTIFICATE OF INCORPORATION OF
ARX, INC.
ARX, INC., a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of ARX, INC.,
resolutions were adopted setting forth a proposed amendment to the Certificate
of Incorporation of said corporation, declaring said amendment to be advisable
and calling a meeting of the stockholders of the corporation for consideration
thereof.
SECOND: That thereafter, pursuant to resolution of its Board of Directors,
the Annual Meeting of Stockholders of said corporation was duly called and held,
upon notice in accordance with Section 222 of the General Corporation Law of the
State of Delaware at which meeting the necessary number of shares as required by
statute were voted in favor of the following amendment:
RESOLVED, that the Certificate of Incorporation of this corporation be
amended by adding Article "FOURTEENTH" so that, as amended, said Article
shall be and read as follows:
<PAGE>
"FOURTEENTH: To the extent permitted by Section 102(b)(7) of the
Delaware General Corporation Law, as the same may be supplemented and
amended, no director of the corporation shall be personally liable to the
corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director; provided the foregoing shall not eliminate
or limit the liability of such director (i) for any breach of such
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 law, (iii) under Section 174 of the
General Corporation Law, or (iv) for any transaction from which such
director derived an improper personal benefit."
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said ARX, INC. has caused this certificate to be
signed by Arthur J. Hendler, its Executive Vice President and attested by
Richard Carey, its Secretary, this 1st day of December, 1986.
ARX, INC.
By: /s/ Arthur J Hendler
-------------------------------------
Arthur J. Hendler
Executive Vice President
ATTEST:
/s/ Richard Carey
- ---------------------------------
Richard Carey, Secretary
<PAGE>
PAGE 1
State of Delaware
Office of the Secretary of State
------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
DESIGNATION OF "ARX, INC.", FILED IN THIS OFFICE ON THE TWENTY-THIRD DAY OF
AUGUST, A.D. 1988, AT 10 O'CLOCK A.M.
[SEAL OMITTED]
/s/ Edward J. Freel
[SEAL OMITTED] -----------------------------------
Edward J. Freel, Secretary of State
0561329 8100 AUTHENTICATION: 7276026
944200245 DATE: 10-20-94
<PAGE>
CERTIFICATE OF DESIGNATION
OF
ARX, INC.
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
(UNDER SECTION 151(g) OF THE GENERAL CORPORATION LAW)
* * * * *
ARX, INC., a corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
That at a meeting of the Board of Directors of ARX, Inc. the
following resolution was duly adopted creating a series of 150,000 shares of
Preferred Stock, designated as Series A Junior Participating Preferred Stock.
RESOLVED, that pursuant to the authority granted to and vested in
the Board of Directors of this Corporation in accordance with the
provisions of the Certificate of Incorporation, as amended, a series of
Series A Junior Participating Preferred Stock, of the Corporation be, and
it hereby is created, and that the designation and amount thereof and the
relative rights, preferences and limitations thereof are as follows:
(1) Designation and Amount.
There is hereby established a series of Preferred Stock, par value
$.10 per share, of the Corporation, which shall be designated as the "Series A
Junior Participating Preferred Stock." The number of shares constituting such
series shall be 150,000.
(2) Dividends and Distributions.
(A) Subject to any prior and superior rights of the holders of any
series of Preferred Stock ranking prior and superior to the shares of Series A
Junior Participating Preferred Stock with respect to dividends that may be
authorized
1
<PAGE>
by the Certificate of Incorporation, as amended, the holders of shares of Series
A Junior Participating Preferred Stock shall be entitled prior to the payment of
any dividends on shares ranking junior to the Series A Junior Participating
Preferred Stock to receive, when, as and if declared by the Board of Directors
out of funds legally available for the purpose, quarterly dividends payable in
cash on the last day of March, June, September and December in each year (each
such date being referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the first issuance
of a share or fraction of a share of Series A Junior Participating Preferred
Stock, in an amount per share (rounded to the nearest cent) equal to the greater
of (a)$1.00 or (b) subject to the provision for adjustment hereinafter set
forth, 100 times the aggregate per share amount of all cash dividends, and 100
times the aggregate per share amount (payable in kind) of all non-cash dividends
or other distributions other than a dividend payable in shares of Common Stock
or a subdivision of the outstanding shares of Common Stock (by reclassification
or otherwise), declared on the Common Stock, $.10 par value, of the Corporation
(the "Common Stock") since the immediately preceding Quarterly Dividend Payment
Date, or, with respect to the first Quarterly Dividend Payment Date, since the
first issuance of any share or fraction of a share of Series A Junior
Participating Preferred Stock. In the event the Corporation shall at any time
after August 19, 1988 (the "Rights Dividend Declaration Date") (i) declare any
dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding Common Stock into a
smaller number of shares, then in each such case the amount to which holders of
shares of Series A Junior Participating Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding sentence shall
be adjusted by multiplying such amount by a fraction the numerator of which is
the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the
Series A Junior Participating Preferred Stock as provided in subparagraph (A)
above immediately after it declares a dividend or distribution on the Common
Stock (other than a dividend payable in shares of Common Stock); provided that,
in the event no dividend or distribution shall have been declared on the Common
Stock during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $1.00 per share on
2
<PAGE>
the Series A Junior Participating Preferred Stock shall nevertheless be payable
on such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Junior Participating Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares of Series
A Junior Participating Preferred Stock, unless the date of issue of such shares
is prior to the record date for the first Quarterly Dividend Payment Date, in
which case dividends on such shares shall begin to accrue from the date of issue
of such shares, or unless the date of issue is a Quarterly Dividend Payment Date
or is a date after the record date for the determination of holders of shares of
Series A Junior Participating Preferred Stock entitled to receive a quarterly
dividend and before such Quarterly Dividend Payment Date, in either of which
events such dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series A Junior Participating
Preferred Stock in an amount less than the total amount of such dividends at the
time accrued and payable on such shares shall be allocated pro rata on a share-
by-share basis among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders of shares of
Series A Junior Participating Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date shall be no more
than 30 days prior to the date fixed for the payment thereof.
(3) Voting Rights.
The holders of shares of Series A Junior Participating Preferred
Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth,
each share of Series A Junior Participating Preferred Stock shall entitle the
holder thereof to 100 votes on all matters voted on at a meeting of the
shareholders of the Corporation. In the event the Corporation shall at any time
after the Rights Declaration Date (i) declare any dividend on Common Stock
payable in shares of Common Stock, or (ii) subdivide the outstanding Common
Stock, or (iii) combine the outstanding Common Stock into a smaller number of
shares, then in each such case the number of votes per share to which holders of
shares of Series A Junior Participating Preferred Stock were entitled
immediately prior to such event shall be adjusted by multiplying such number by
a fraction the numerator of which is
3
<PAGE>
the number of shares of Common Stack outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) Except as otherwise provided herein or by law, the holders of
shares of Series A Junior Participating Preferred Stock and the holders of
shares of Common Stock shall vote together as one voting group on all matters
voted on at a meeting of shareholders of the Corporation.
(C) (i) If at any time dividends on any Series A Junior
Participating Preferred Stock shall be in arrears in an amount equal to six (6)
quarterly dividends thereon, the occurrence of such contingency shall mark the
beginning of a period (herein called a "default period") which shall extend
until such time when all accrued and unpaid dividends for all previous quarterly
dividend periods and for the currently quarterly dividend period on all shares
of Series A Junior Participating Preferred Stock then outstanding shall have
been declared and paid or set apart for payment. During each default period, all
holders of Preferred Stock (including holders of the Series A Junior
Participating Preferred Stock) with dividends in arrears in an amount equal to
six (6) quarterly dividends thereon, voting as a class, irrespective of series,
shall have the right to elect two (2) Directors.
(ii) During any default period, such voting right of the holders of
Series A Junior Participating Preferred Stock may be exercised initially
at a special meeting called pursuant to subparagraph (C)(iii) of this
paragraph (3) or at any annual meeting of stockholders and thereafter at
annual meetings of stockholders, provided that neither such voting right
nor the right of the holders of any other series of Preferred Stock, if
any, to increase, in certain cases, the authorized number of Directors
shall be exercised unless the holders of ten percent (10%) in number of
shares of Preferred Stock outstanding shall be present in person or by
proxy. The absence of a quorum of the holders of Common Stock shall not
affect the exercise by the holders of Preferred Stock of such voting
right. At any meeting at which the holders of Preferred Stock shall
exercise such voting right initially during an existing default period,
they shall have the right, voting as a class, to elect Directors to fill
such vacancies, if any, in the Board of Directors as may then exist up to
two (2) Directors or, if such right is exercised at an annual meeting, to
elect two (2)
4
<PAGE>
Directors. If the number which may be so elected at any special meeting
does not amount to the required number, the holders of the Preferred Stock
shall have the right to make such increase in the number of Directors as
shall be necessary to permit the election by them of the required number.
After the holders of the Preferred Stock shall have exercised their right
to elect Directors in any default period and during the continuance of
such period, the number of Directors shall not be increased or decreased
except by vote of the holders of Preferred Stock as herein provided or
pursuant to the rights of any equity securities ranking senior to or pari
passu with the Series A Junior Participating Preferred Stock.
(iii) Unless the holders of Preferred Stock shall, during an
existing default period, have previously exercised their right to elect
Directors, the Board of Directors may order, or any shareholders or
shareholders owning in the aggregate not less than ten percent (10%) of
the total number of shares of Preferred Stock outstanding, irrespective of
series, may request, the calling of a special meeting of the holders of
Preferred Stock, which meeting shall thereupon be called by the President,
a Vice President or the Secretary of the Corporation. The only matter
which may be voted on at such meeting shall be the election of Directors.
Notice of such meeting and of any annual meeting at which holders of
Preferred Stock are entitled to vote pursuant to this subparagraph
(C)(iii) shall be given to each holder of record of Preferred Stock by
mailing a copy of such notice to him at his last address as the same
appears on the books of the Corporation. Such meeting shall be called for
a time not earlier than 20 days and not later than 60 days after such
order or request or in default of the calling of such meeting within 60
days after such order or request, such meeting may be called on similar
notice by any stockholders or shareholders owning in the aggregate not
less than ten percent (10%) of the total number of shares of Preferred
Stock outstanding. Notwithstanding the provisions of this subparagraph
(C)(iii), no such special meeting shall be called during the period within
60 days immediately preceding the date fixed for the next annual meeting
of the shareholders.
(iv) In any default period, the holders of Common Stock, and other
classes of stock of the Corporation if applicable, shall continue to be
entitled to elect the whole number of Directors until the holders of
Preferred
5
<PAGE>
Stock shall have exercised their right to elect two (2) Directors voting
as a class, after the exercise of which right, (x) the Directors so
elected by the holders of Preferred Stock shall continue in office until
their successors shall have been elected by such holders or until the
expiration of the default period and (y) any vacancy in the Board of
Directors may (except as provided in subparagraph (C)(ii) of this
Paragraph (3)) be filled by vote of a majority of the remaining Directors
theretofore elected by the holders of the class of stock which elected the
Director whose office shall have become vacant. References in this
paragraph (C) to Directors elected by the holders of a particular class of
stock shall include Directors elected by such Directors to fill vacancies
as provided in clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a default period (x) the
right of the holders of Preferred Stock as a class to elect Directors
shall cease, (y) the term of any Directors elected by the holders of
Preferred Stock as a class shall terminate, and (z) the number of
Directors shall be such number as may be provided for in the Restated
Certificate of Incorporation or By--Laws irrespective of any increase made
pursuant to the provisions of subparagraph (C)(ii) of this Paragraph (3)
(such number being subject, however, to change thereafter in any manner
provided by law or in the certificate of incorporation or by-laws). Any
vacancies in the Board of Directors effected by the provisions of clauses
(y) and (z) in the preceding sentence may be filled by a majority of the
remaining Directors.
(D) Except as set forth herein, holders of Series A Junior
Participating Preferred Stock shall have no special voting rights and their
consent shall not be required (except to the extent they are entitled to vote
with holders of Common Stock as set forth herein) for taking any corporate
action.
(4) Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Junior Participating Preferred Stock as provided in
Paragraph (2) are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares of Series A
Junior Participating Preferred Stock outstanding shall have been paid in full,
the Corporation shall not
6
<PAGE>
(i) declare or pay dividends on, make any other distributions on, or
redeem or purchase or otherwise acquire for consideration any shares of
stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Junior Participating Preferred
Stock;
(ii) declare or pay dividends on or make any other distributions on
any shares or stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Junior
Participating Preferred Stock, except dividends paid ratably on the Series
A Junior Participating Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the total amounts to
which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Junior
Participating Preferred Stock, provided that the Corporation may at any
time redeem, purchase or otherwise acquire shares of any such parity stock
in exchange for shares of any stock of the corporation ranking junior
(either as to dividends or upon dissolution, liquidation or winding up) to
the Series A Junior Participating Preferred Stock;
(iv) purchase or otherwise acquire for consideration any shares of
Series A Junior Participating Preferred Stock or any shares of stock
ranking on a parity with the Series A Junior Participating Preferred
Stock, except in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all holders of
such shares upon such terms as the Board of Directors, after consideration
of the respective annual dividend rates and other relative rights and
preferences of the respective series and classes, shall determine in good
faith will result in fair and equitable treatment among the respective
series or classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under subparagraph (A) of
this Paragraph (4), purchase or otherwise acquire such shares at such time and
in such manner.
7
<PAGE>
(5) Reacquired Shares.
Any shares of Series A Junior Participating Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
to be created by resolution or resolutions of the Board of Directors, subject to
the conditions and restrictions on issuance set forth herein.
(6) Liquidation, Dissolution or Winding Up.
(A) Upon any liquidation, dissolution or winding up of the
Corporation, no distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Junior Participating Preferred Stock unless, prior
thereto, the holders of shares of Series A Junior Participating Preferred Stock
shall have received $2,500 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment (the "Series A Junior Participating Liquidation Preference").
Following the payment of the full amount of the Series A Junior Participating
Liquidation Preference, no additional distributions shall be made to the holders
of shares of Series A Junior Participating Preferred Stock unless, prior
thereto, the holders of shares of Common Stock shall have received an amount per
share (the "Common Adjustment") equal to the quotient obtained by dividing (i)
the Series A Junior Participating Liquidation Preference by (ii) 100 (as
appropriately adjusted as set forth in subparagraph (C) below to reflect such
events as stocks splits, stock dividends and recapitalizations with respect to
the Common Stock) (such number in clause (ii), the "Adjustment Number").
Following the payment of the full amount of the Series A Junior Participating
Liquidation Preference and the Common Adjustment in respect of all outstanding
shares of Series A Junior Participating Preferred Stock and Common Stock,
respectively, holders of Series A Junior Participating Preferred Stock and
holders of shares of Common Stock shall receive their ratable and proportionate
share of the remaining assets to be distributed in the ratio of the Adjustment
Number to 1 with respect to such Preferred Stock and Common Stock, on a per
share basis, respectively.
(B) In the event, however, that there are not sufficient assets
available to permit payment in full of the
8
<PAGE>
Series A Junior Participating Liquidation Preference and the liquidation
preferences of all other series of Preferred Stock, if any, which rank on a
parity with the Series A Junior Participating Preferred Stock, then such
remaining assets shall be distributed ratably to the holders of such parity
shares in proportion to their respective liquidation preferences. In the event,
however, that there are not sufficient assets available to permit payment in
full of the Common Adjustment, then such remaining assets shall be distributed
ratably to the holders of Common Stock.
(C) In the event the Corporation shall at any time after the Rights
Dividend Declaration Date (i) declare any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii)
combine the outstanding Common Stock into a smaller number of shares, then in
each such case the Adjustment Number in effect immediately prior to such event
shall be adjusted by multiplying such Adjustment Number by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(7) Merger, Consolidation, etc.
In case the Corporation shall enter into any merger, consolidation,
combination or other transaction in which the shares of Common Stock are
exchanged or changed into other stock or securities, cash and/or any other
property, then in any such case each share of Series A Junior Participating
Preferred Stock shall at the same time be similarly exchanged or changed in an
amount per share (subject to the provision for adjustment hereinafter set forth)
equal to 100 times the aggregate amount of stock, securities, cash and/or any
other property (payable in kind), as the case may be, into which or for which
each share of Common Stock is changed or exchanged. in the event the Corporation
shall at any time after the Rights Dividend Declaration Date (i) declare any
dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding Common Stock into a
smaller number of shares, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of shares of Series A
Junior Participating Preferred Stock shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of
9
<PAGE>
Common Stock that were outstanding immediately prior to such event.
(8) Redemption.
The shares of Series A Junior Participating Preferred Stock shall
not be redeemable.
(9) Ranking.
The Series A Junior Participating Preferred Stock shall rank junior
to all other series of the Corporation's Preferred Stock as to the payment of
dividends and other distribution of assets, unless, in accordance with
authorization in the Certificate of Incorporation, as amended, and any
Certificate of Designation, the terms of any such series shall provide
otherwise.
(10) Amendment.
The Certificate of Incorporation of the Corporation, as amended,
including the Certificate of Designation establishing the rights and preferences
of the Series A Junior Participating Preferred Stock shall not be further
amended in any manner which would alter or change the powers, references or
special rights of the Series A Junior Participating Preferred Stock so as to
affect them adversely without the affirmative vote of the holders of a majority
of the outstanding shares of Series A Junior Participating Preferred Stock,
voting separately as one voting group.
(11) Fractional Shares.
Series A Junior Participating Preferred Stock may be issued in
fractions of a share which shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Series A Junior Participating Preferred Stock.
10
<PAGE>
IN WITNESS WHEREOF, this Certificate of Designation is executed on
behalf of the Corporation by its Vice President-Finance and attested by its
Secretary this 23rd day of August, 1988.
ARX, INC.
By /s/ Michael Gorin
----------------------
Vice President-Finance
Attest:
By /s/ Richard Carey
- ----------------------
Secretary
11
<PAGE>
PAGE 1
State of Delaware
Office of the Secretary of State
------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "ARX, INC.", FILED IN THIS OFFICE ON THE FOURTH DAY OF NOVEMBER, A.D. 1988,
AT 10 O'CLOCK A.M.
[SEAL OMITTED]
/s/ Edward J. Freel
[SEAL OMITTED] -----------------------------------
Edward J. Freel, Secretary of State
0561329 8100 AUTHENTICATION: 7276027
944200245 DATE: 10-20-94
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE CERTIFICATE OF INCORPORATION OF
ARX, INC.
ARX, INC., a corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of ARX, INC.,
resolutions were adopted setting forth a proposed amendment to the Certificate
of Incorporation of said corporation, declaring said amendment to be advisable
and calling a meeting of the stockholders of the corporation for consideration
thereof.
SECOND: That thereafter, pursuant to resolution of the Board of
Directors, the Annual Meeting of Stockholders of said Corporation was duly
called and held, upon notice in accordance with Section 222 of the General
Corporation Law of the State of Delaware at which meeting the necessary number
of shares as required by statute were voted in favor of the following amendment:
<PAGE>
RESOLVED, that the Certificate of Incorporation of this Corporation
be amended by adding ARTICLE "FIFTEENTH" to read as follows:
"FIFTEENTH: No action required to be taken or which may be
taken at any annual or special meeting of stockholders of the
corporation may be taken without a meeting, and the power of
stockholders to consent in writing to the taking of any action is
specifically denied.
Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of the holders
of not less than 80% of the outstanding shares of capital stock of
the corporation entitled to vote generally in the election of
directors (considered for this purpose as one class) shall be
required to amend, alter, change or repeal this Article FIFTEENTH or
to adopt any provision inconsistent herewith."
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said ARX, INC. has caused this certificate to be
signed by Michael Gorin, its President and Richard Carey, its Secretary, this
27th day of October, 1988.
ARX, INC.
By:/s/ Michael Gorin
-----------------------
Michael Gorin
President
ATTEST:
/s/ Richard Carey
- -------------------------
Richard Carey, Secretary
<PAGE>
PAGE 1
State of Delaware
Office of the Secretary of State
------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "ARX, INC.", FILED IN THIS OFFICE ON THE TWENTY-THIRD DAY OF NOVEMBER, A.D.
1992, AT 10 O'CLOCK A.M.
[SEAL OMITTED]
/s/ Edward J. Freel
[SEAL OMITTED] -----------------------------------
Edward J. Freel, Secretary of State
0561329 8100 AUTHENTICATION: 7276027
944200245 DATE: 10-20-94
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE CERTIFICATE OF INCORPORATION OF
ARX, INC.
ARX, INC., a corporation organized and existing under and by virtue
of the Central Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of ARX, INC.,
resolutions were adopted setting forth a proposed amendment to the Certificate
of Incorporation of said corporation, declaring said amendment to be advisable
and calling a meeting of the stockholders of the corporation for consideration
thereof.
SECOND: That thereafter, pursuant to resolution of its Board of
Directors, the Annual Meeting of Stockholders of said corporation was duly
called and held, upon notice in accordance with section 222 of the General
Corporation Law of the State of Delaware at which meeting the necessary number
of shares as required by statute were voted in favor of the following amendment:
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 10:00 AM 11/23/1992
722328033 - 561329
<PAGE>
RESOLVED, that the certificate of incorporation be amended by
changing the Article thereof numbered "FOURTH" so that, as amended,
said Article shall be and read as follows:
"FOURTH: The total number of shares of all classes of stock
which the corporation shall have the authority to issue is TWENTY
SIX MILLION (26,000,000) shares, of which TWENTY FIVE MILLION
(25,000,000) shares shall be shares of Common Stock of the par value
of Ten Cents ($.10) per share and ONE MILLION (1,000,000) shares
shall be shares of Preferred Stock of the par value of Ten Cents
($.10) per share. The Preferred Stock may be issued in series and
the number, designation, relative rights, preferences and
limitations of shares of each series of Preferred Stock, Ten Cents
($.10) per share par value shall be fixed by the Board of
Directors."
THIRD: That said amendment was duly adopted in accordance with the
provisions of section 242 of the General Corporation Law of the
State of Delaware.
IN WITNESS WHEREOF, said ARX, INC. has caused this certificate to be
signed by MICHAEL GORIN, its President and attested by RICHARD G. SATIN, its
Secretary, this 11th day of November, 1992.
ARX, INC.
By:/s/ Michael Gorin
------------------------
MICHAEL GORIN, PRESIDENT
ATTEST:
/s/ Richard G. Satin
- ----------------------------
RICHARD G. SATIN
SECRETARY
<PAGE>
PAGE 1
State of Delaware
Office of the Secretary of State
------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "ARX, INC.", CHANGING ITS NAME FROM "ARX, INC." TO "AEROFLEX INCORPORATED"
FILED IN THIS OFFICE ON THE NINTH DAY OF NOVEMBER, A.D. 1994, AT 12 O'CLOCK
P.M.
[SEAL OMITTED]
/s/ Edward J. Freel
[SEAL OMITTED] -----------------------------------
Edward J. Freel, Secretary of State
0561329 8100 AUTHENTICATION: 7295908
944215514 DATE: 11-09-94
<PAGE>
CERTIFICATE OF AMENDMENT OF THE
CERTIFICATE OF INCORPORATION OF
ARX, INC
*********
ARX, Inc., corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of ARX, Inc,
resolutions were adopted setting forth a proposed amendment to the Certificate
of Incorporation of said corporation, declaring said amendment to be advisable
and calling a meeting of the stockholders of the corporation for consideration
thereof.
SECOND: That thereafter, pursuant to resolution of its Board of Directors,
the Annual Meeting of Stockholders of said corporation was duly called and held,
upon notice in accordance with Section 222 of the General Corporation Law of the
State of Delaware at which meeting the necessary number of shares as required by
statute were voted in favor of the following amendment:
RESOLVED, that the Certificate of Incorporation of this Corporation be
amended by changing the Article thereof numbered "FIRST" so that, as
amended, said Article shall be and read as follows:
"FIRST: The name of the corporation is:
AEROFLEX INCORPORATED"
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law.
IN WITNESS WHEREOF, said ARX, Inc. has caused this certificate to be
signed by Michael Gorin, its President and attested by Leonard Borow, its
Secretary, this 9th day of November, 1994.
ARX, INC.
By:/s/ Michael Gorin
------------------------
Michael Gorin, President
ATTEST:
/s/ Leonard Borow
- ------------------------
Leonard Borow, Secretary
<PAGE>
State of Delaware
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
DESIGNATION OF "AEROFLEX INCORPORATED", FILED IN THIS OFFICE ON THE THIRTY-FIRST
DAY OF AUGUST, A.D., 1998, AT 8:30 O'CLOCK A.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
[SEAL OMITTED]
/s/ Edward J. Freel
-----------------------------------
[SEAL OMITTED] Edward J. Freel, Secretary of State
0561329 8100 AUTHENTICATION: 9279902
981340007 DATE: 8-31-98
<PAGE>
AMENDED
CERTIFICATE OF DESIGNATION
of
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
AEROFLEX INCORPORATED
(Pursuant to Section 151 of the
Delaware General Corporation Law)
- --------------------------------------------------------------------------------
Aeroflex Incorporated, a corporation organized and existing under the
General Corporation Law of the State of Delaware (hereinafter called the
"Corporation"), hereby certifies that the following resolution was adopted by
the Board of Directors of the Corporation as required by Section 151 of the
General Corporation Law at a meeting duly called and held on August 13, 1998:
RESOLVED, that pursuant to the authority granted to and vested in the
Board of Directors of this Corporation (hereinafter called the "Board of
Directors" or the "Board") in accordance with the provisions of the Certificate
of Incorporation, as amended, the Board of Directors hereby amends, effective as
of August 31, 1998, the Certificate of Designation establishing the Series A
Junior Participating Preferred Stock, filed on August 23, 1988 (the
"Certificate") by amending and restating the designation and number of shares,
and the relative rights, preferences, and limitations of such Series A Junior
Participating Preferred Stock, no shares of which have been issued, as follows:
Series A Junior Participating Preferred Stock:
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series A Junior Participating Preferred Stock" (the "Series A
Preferred Stock") and the number of shares constituting the Series A Preferred
Stock shall be 25,000. Such number of shares may be increased or decreased by
resolution of the Board of Directors; provided, that no decrease shall reduce
the number of shares of Series A Preferred Stock to a number less than the
number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the Corporation
convertible into Series A Preferred Stock.
<PAGE>
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any series
of Preferred Stock, par value $.10 per share (the "Preferred Stock"), of
the Corporation (or any similar stock) ranking prior and superior to the
Series A Preferred Stock with respect to dividends, the holders of shares
of Series A Preferred Stock, in preference to the holders of Common Stock,
par value $.10 per share (the "Common Stock"), of the Corporation, and of
any other junior stock, shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the first day of March,
June, September and December in each year (each such date being referred to
herein as a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or
fraction of a share of Series A Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (a) $1 or (b) subject
to the provision for adjustment hereinafter set forth, 1,000 times the
aggregate per share amount of all cash dividends, and 1,000 times the
aggregate per share amount (payable in kind) of all non-cash dividends or
other distributions, other than a dividend payable in shares of Common
Stock or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date or, with respect to
the first Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series A Preferred Stock. In the event the
Corporation shall at any time after the date hereof declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the amount to which holders
of shares of Series A Preferred Stock were entitled immediately prior to
such event under clause (b) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the
Series A Preferred Stock as provided in paragraph (A) of this Section
immediately after it declares a dividend or distribution on the Common
Stock (other than a dividend payable in shares of Common Stock); provided
that, in the event no dividend or distribution shall have been declared on
the Common Stock during the period between any Quarterly Dividend Payment
Date and the next subsequent Quarterly Dividend Payment Date, a dividend of
$1 per share on the Series A Preferred Stock shall nevertheless be payable
on such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment Date
next preceding the date of issue of such shares, unless the date of issue
of such shares is prior to the record date for the first Quarterly Dividend
<PAGE>
Payment Date, in which case dividends on such shares shall begin to accrue
from the date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series A Preferred Stock entitled to
receive a quarterly dividend and before such Quarterly Dividend Payment
Date, in either of which events such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the shares of Series A
Preferred Stock in an amount less than the total amount of such dividends
at the time accrued and payable on such shares shall be allocated pro rata
on a share-by-share basis among all such shares at the time outstanding.
The Board of Directors may fix a record date for the determination of
holders of shares of Series A Preferred Stock entitled to receive payment
of a dividend or distribution declared thereon, which record date shall be
not more than 60 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Preferred Stock
shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth,
each share of Series A Preferred Stock shall entitle the holder thereof to
1,000 votes on all matters submitted to a vote of the stockholders of the
Corporation. In the event the Corporation shall at any time after the date
hereof declare or pay any dividend on the Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or consolidation of
the outstanding shares of Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each such case the number
of votes per share to which holders of shares of Series A Preferred Stock
were entitled immediately prior to such event shall be adjusted by
multiplying such number by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in any other Certificate of
Designation creating a series of Preferred Stock or any similar stock, or
by law, the holders of shares of Series A Preferred Stock and the holders
of shares of Common Stock and any other capital stock of the Corporation
having general voting rights shall vote together as one class on all
matters submitted to a vote of stockholders of the Corporation.
(C) Except as set forth herein, or as otherwise provided by law,
holders of Series A Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent they are entitled
to vote with holders of Common Stock as set forth herein) for taking any
corporate action.
<PAGE>
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section 2 are in
arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Preferred
Stock outstanding shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on
any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred
Stock;
(ii) declare or pay dividends, or make any other distributions, on
any shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A
Preferred Stock, except dividends paid ratably on the Series A
Preferred Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which the
holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred
Stock, provided that the Corporation may at any time redeem, purchase
or otherwise acquire shares of any such junior stock in exchange for
shares of any stock of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or winding up) to the
Series A Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration any
shares of Series A Preferred Stock, or any shares of stock ranking on
a parity with the Series A Preferred Stock, except in accordance with
a purchase offer made in writing or by publication (as determined by
the Board of Directors) to all holders of such shares upon such terms
as the Board of Directors, after consideration of the respective
annual dividend rates and other relative rights and preferences of the
respective series and classes, shall determine in good faith will
result in fair and equitable treatment among the respective series or
classes.
(B) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of
the Corporation unless the Corporation could, under paragraph (A) of this
Section 4, purchase or otherwise acquire such shares at such time and in
such manner.
Section 5. Reacquired Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
subject to the conditions and restrictions on issuance set forth herein, in the
Certificate of Incorporation, as amended, or in any other Certificate of
Designation creating a series of Preferred Stock or any similar stock or as
otherwise required by law.
<PAGE>
Section 6. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation, no distribution shall
be made (1) to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received $1,000 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment, provided that the holders of shares of Series A
Preferred Stock shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 1,000
times the aggregate amount to be distributed per share to holders of shares of
Common Stock, or (2) to the holders of shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up) with the
Series A Preferred Stock, except distributions made ratably on the Series A
Preferred Stock and all such parity stock in proportion to the total amounts to
which the holders of all such shares are entitled upon such liquidation,
dissolution or winding up. In the event the Corporation shall at any time after
the date hereof declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or consolidation
of the outstanding shares of Common Stock (by reclassification or otherwise than
by payment of a dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the aggregate amount to
which holders of shares of Series A Preferred Stock were entitled immediately
prior to such event under the proviso in clause (1) of the preceding sentence
shall be adjusted by multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock that
were outstading immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the Corporation shall
enter into any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case each share of
Series A Preferred Stock shall at the same time be similarly exchanged or
changed into an amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 1,000 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is changed or exchanged.
In the event the Corporation shall at any time after the date hereof declare or
pay any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the outstanding shares
of Common Stock (by reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the amount set forth in the preceding sentence
with respect to the exchange or change of shares of Series A Preferred Stock
shall be adjusted by multiplying such amount by a fraction, the numerator of
which is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
<PAGE>
Section 8. No Redemption. The shares of Series A Preferred Stock shall not
be redeemable.
Section 9. Rank. The Series A Preferred Stock shall rank, with respect to
the payment of dividends and the distribution of assets, junior to all series of
any other class of the Corporation's Preferred Stock.
Section 10. Amendment. The Certificate of Incorporation of the Corporation,
as amended, shall not be amended in any manner which would materially alter or
change the powers, preferences or special rights of the Series A Preferred Stock
so as to affect them adversely without the affirmative vote of the holders of at
least two-thirds of the outstanding shares of Series A Preferred Stock, voting
together as a single class.
IN WITNESS WHEREOF, this Amended Certificate of Designation is executed on
behalf of the Corporation by its President and attested by its Treasurer and
Assistant Secretary this 31st day of August, 1998.
/s/ Michael Gorin
--------------------------------------
Name: Michael Gorin
Title: President
Attest:
/s/ Charles Badlato
- ----------------------------------------
Name: Charles Badlato
Title: Treasurer and Assistant Secretary
<PAGE>
State of Delaware
Page 1
Office of the Secretary of State
___________________________
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "AEROFLEX INCORPORATED", FILED IN THIS OFFICE ON THE TENTH DAY OF FEBRUARY,
A.D. 1999, AT 12:29 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
/s/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
0561329 8100 AUTHENTICATION: 9569416
991052804 DATE: 02-10-99
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE CERTIFICATE OF INCORPORATION OF
AEROFLEX INCORPORATED
---------------------
AEROFLEX INCORPORATED, a corporation organized and existing under the
General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors, Inc. of AEROFLEX
INCORPORATED, resolutions were adopted setting forth a proposed amendment to the
Certificate of Incorporation of said corporation, declaring said amendment to be
advisable and calling a meeting of the stockholders of the corporation for
consideration thereof.
SECOND: That thereafter, pursuant to resolution of its Board of Directors,
the Annual Meeting of Stockholders of said corporation was duly called and held,
upon notice in accordance with Section 222 of the General Corporation Law of the
State of Delaware at which meeting the necessary number of shares as required by
statute were voted in favor of the following amendment:
RESOLVED, that the Certificate of Incorporation of this corporation be
amended by changing Article FOURTH of the Company's Certificate of
Incorporation, so that, as amended said Article shall be and read as
follows:
"FOURTH: The total number of shares of all classes of stock which the
corporation shall have the authority to issue is FORTY ONE MILLION
(41,000,000) shares, of which FORTY MILLION (40,000,000) shares shall be
shares of Common Stock of the par value of Ten Cents ($.10) per share and
ONE MILLION (1,000,000) shares shall be shares of Preferred Stock of the
par value of Ten Cents ($.10) per share. The Preferred Stock may be issued
in series and the number, designation, relative rights, preferences and
limitations of shares of each series of Preferred Stock, Ten Cents ($.10)
per share par value shall be fixed by the Board of Directors."
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
<PAGE>
IN WITNESS WHEREOF, said AEROFLEX INCORPORATED has caused this certificate
to be signed by MICHAEL GORIN, its President and LEONARD BOROW, its Secretary,
this 29th day of January, 1999.
AEROFLEX INCORPORATED
By:/s/ Michael Gorin
------------------------
Michael Gorin, President
ATTEST:
By: /s/ Leonard Borow
------------------------
Leonard Borow, Secretary
<PAGE>
State of Delaware
Page 1
Office of the Secretary of State
___________________________
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
DESIGNATION OF "AEROFLEX INCORPORATED", FILED IN THIS OFFICE ON THE TENTH DAY OF
FEBRUARY, A.D. 1999, AT 12:30 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
/s/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
0561329 8100 AUTHENTICATION: 9569510
991052809 DATE: 02-10-99
<PAGE>
AMENDMENT TO
CERTIFICATE OF DESIGNATION
of
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
AEROFLEX INCORPORATED
(Pursuant to Section 151 of the
Delaware General Corporation Law)
- --------------------------------------------------------------------------------
Aeroflex Incorporated, a corporation organized and existing under the
General Corporation Law of the State of Delaware (hereinafter called the
"Corporation"), hereby certifies that the following resolution was adopted by
the Board of Directors of the Corporation as required by Section 151 of the
General Corporation Law at a meeting duly called and held on November 17, 1998:
RESOLVED, that pursuant to the authority granted to and vested in the Board
of Directors of this Corporation (hereinafter called the "Board of Directors" or
the "Board") in accordance with the provisions of the Certificate of
Incorporation, as amended, the Board of Directors hereby amends, effective as of
the date of filing hereof, the Certificate of Designation establishing the
Series A Junior Participating Preferred Stock, filed on August 23, 1988 and
amended and restated effective August 31, 1998 (the "Certificate") by amending
and restating Section 1 of the Certificate establishing the designation and
number of such Series A Junior Participating Preferred Stock, no shares of which
have been issued, so that, as amended, such Section 1 shall read as follows:
"Section 1. Designation and Amount. The shares of such series shall be
designated as "Series A Junior Participating Preferred Stock" (the "Series
A Preferred Stock") and the number of shares constituting the Series A
Preferred Stock shall be 40,000. Such number of shares may be increased or
decreased by resolution of the Board of Directors; provided, that no
decrease shall reduce the number of shares of Series A Preferred Stock to a
number less than the number of shares then outstanding plus the number of
shares reserved for issuance upon the exercise of outstanding options,
rights or warrants or upon the conversion of any outstanding securities
issued by the Corporation convertible into Series A Preferred Stock."
<PAGE>
IN WITNESS WHEREOF, this Amended Certificate of Designation is executed on
behalf of the Corporation by its President and attested by its Treasurer and
Assistant Secretary this 28th day of January, 1999.
/S/ Michael Gorin
------------------------------
Name: Michael Gorin
Title: President
Attest:
/s/ Charles Badlato
- ----------------------------------------
Name: Charles Badlato
Title: Treasurer and Assistant Secretary
