<PAGE>
EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
LOGIMETRICS, INC.
THE UNDERSIGNED, a natural person, for the purpose of organizing a
corporation under the provisions and subject to the requirements of the General
Corporation Law of the State of Delaware, hereby certifies that:
FIRST: The name of the Corporation is LOGIMETRICS, INC.
SECOND: The registered office of the Corporation is to be located at
306 South State Street, in the City of Dover, in the County of Kent, in the
State of Delaware. The name of its registered agent at that address is the
United States Corporation Company.
THIRD: The purpose of the Corporation is to engage in any lawful act of
activity for which a corporation may be organized under the General Corporation
Law of Delaware.
FOURTH: (a) The aggregate number of shares of stock which the
Corporation shall have authority to issue is one million (1,000,000) shares of
which eight hundred thousand (800,000) shares with a par value of ten cents
($.10) per share shall be designated "Class A Common Stock" and two hundred
thousand (200,000) shares with a par value of forty cents ($.40) per share shall
be designated "Class B Common Stock."
(b) The relative rights, preferences and limitations of the
shares of each class are as follows:
(i) the holders of the Class A Common Stock shall have one
vote per share for all purposes and the holders of the Class B Common Stock
shall have four votes per share for all purposes.
(ii) at any time after the Corporation first has net
earnings after all federal, state and local taxes in any fiscal year, of
the sum of two hundred and fifty thousand ($250,000) dollars as determined
by the Corporation's regularly employed independent Certified Public
Accountant in accordance with generally accepted accounting principles each
share of Class B Common Stock may, at the option of the holder thereof, be
converted into four shares of Class A Common Stock.
FIFTH: The name and address of the incorporator is:
NAME ADDRESS
Robert S. Persky 477 Madison Avenue
New York, New York 10022
SIXTH: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and shareholders:
(1) The number of directors of the Corporation shall be such as
from time to time shall be fixed by, or in the manner provided in the
by-laws. Election of directors need not be by ballot unless the by-laws so
provide.
(2) The Board of Directors shall have power without the assent or
vote of the stockholders.
(a) to make, alter, amend, change, add to or repeal the
By-Laws of the Corporation;
(b) to fix and vary the amount to be reserved for any
proper purpose;
(c) to authorize and cause to be executed mortgages and
liens upon all or any part of the property of the Corporation;
(d) to determine the use and disposition of any surplus
or net profits;
<PAGE>
(e) 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 of the Corporation (other than the
stock ledger) or any of them, shall be open to the inspection of the
stockholders.
(3) The directors in their discretion may submit any contract or act
for approval or ratification at any annual meeting of the stockholders or
at any meeting of the stockholders called for the purpose of considering
any such act or contract, and any contract or act that shall be approved or
be ratified by the vote of the holders of a majority of the stock of the
Corporation which is represented in person or by proxy at such meeting and
entitled to vote thereat (provided that a lawful quorum of stockholders be
there represented in person or by proxy) shall be as valid and as binding
upon the Corporation and upon all the stockholders as though it had been
approved or ratified by every stockholder of the Corporation, whether or
not the contract or act would otherwise be open to legal attack because of
directors' interest, or for any other reason.
(4) In addition to the powers and authorities hereinbefore or by
statute expressly conferred upon them, the directors are hereby empowered
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 statutes of Delaware, of this certificate, and to any
by-laws from time to time made by the directors or stockholders; provided,
however, that no by-laws so made shall invalidate any prior act of the
directors which would have been valid if such by-law had not been made.
SEVENTH: The Corporation shall, to the full extent permitted by Section
145 of the Delaware General Corporation Law, as amended from time to time,
indemnify all persons whom it may indemnify pursuant thereto.
EIGHTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 279 of Title B of the
Delaware Code order a meeting of the creditors or class or creditors, and/or of
the stockholders or class of stockholders of this Corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as the case may be,
and also on this Corporation.
NINTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this certificate of incorporation in the
manner now or hereafter prescribed by law, and all rights and powers conferred
herein on stockholders, directors and officers are subject to this reserved
power.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the 20th day
of December, 1968.
/s/Robert S. Persky
___________________(L.S.)
ROBERT S. PERSKY
<PAGE>
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
BE IT REMEMBERED that personally appeared before me, on 20th day of
December, 1968, the undersigned, a Notary Public duly authorized to take
acknowledgment of deeds by the laws of the place where the foregoing certificate
of incorporation was signed, Robert S. Persky, the incorporator who signed the
foregoing certificate of incorporation, known to me personally to be such, and
who acknowledged the same to be his act and deed, and that the facts herein
stated are true. Given under my hand and seal of office the day and year
aforesaid.
/s/Stephen
----------------------
Notary Public
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
LOGIMETRICS, INC.
The undersigned corporation, in order to amend its Certificate of
Incorporation, hereby certifies as follows:
FIRST: The name of the corporation is LOGIMETRICS, INC.
SECOND: The amendment to the Certificate of Incorporation to be
effected hereby is as follows:
(a) The paragraph number "Fourth" of the Certificate of Incorporation,
relating to capitalization is amended to read as follows:
"FOURTH: The total number of shares of stock which the
corporation shall have authority to issue is One Million (1,000,000),
of the par value of $.10 per share, of which Eight Hundred Thousand
(800,000) shares are designated as Class A Common Stock and Two
Hundred Thousand (200,000) shares are designated as Class B Common
Stock."
Except as otherwise provided by law or herein, the holders of Class A
Common Stock shall have the sole voting power for the election of directors of
the corporation and no holder of Class B Common Stock shall have any right to
vote for the election of directors of the corporation. At every meeting of the
shareholders (i) each holder of Class A Common Stock shall be entitled to one
vote per share, voting with the holders of any other class of stock entitled to
vote, without regard to class, on all matters to be voted on by the shareholders
of the corporation and (ii) each holder of Class B Common Stock shall be
entitled to one vote per share, voting with the holders of any other class of
stock entitled to vote, without regard to class, on all matters to be voted on
by shareholders of the corporation other than for the election of directors of
the corporation. Subject to and upon compliance with the provisions of this
Article FOURTH, each record holder of Class B Common Stock shall be entitled at
any time and from time to time to convert any or all of the shares of Class B
Common Stock held by him into the same number of shares of Class A Common Stock.
Each conversion of shares of Class B Common Stock into shares of Class
A Common Stock shall be effected by the surrender of the certificate or
certificates representing the shares of Class B Common Stock to be converted at
the office of the
<PAGE>
Secretary of the corporation (and at such additional place or places as may from
time to time be designated by the Secretary or an Assistant Secretary of the
corporation) together with written notice by the holder of such Class B Common
Stock stating that such holder desires to convert the shares, or a stated number
of the shares, of Class B Common Stock represented by such certificate, into
Class A Common Stock, which notice shall also state the name or names (with
addresses) and denominations in which the certificate or certificates for Class
A Common Stock shall be issued and shall include instructions for delivery
thereof. Promptly after such surrender and the receipt of such written notice,
the corporation shall issue and deliver in accordance with such instructions the
certificate or certificates for the Class A Common Stock issuable upon such
conversion. Such conversion shall be deemed to have been effected as of the
close of business on the date on which such certificate or certificates shall
have been surrendered and such notice shall have been received by the
corporation and at such time the rights of the holder of such Class B Common
Stock (or specified portion thereof) as such shareholder shall cease and the
person or persons in whose name or names any certificate or certificates for
shares of Class A Common Stock are to be issued upon such conversion shall be
deemed to have become the holder or holders of record of the shares of Class A
Common Stock represented thereby.
If the certificate or certificates for Class A Common Stock are to be
registered in a name other than the name of the registered holder of Class B
Common Stock surrendered for conversion, the corporation shall not be required
to issue or deliver any certificate unless and until the holder of the stock
surrendered has paid to the corporation the amount of any tax which may be
payable in respect of any transfer involved in such issuance or shall establish
to the satisfaction of the corporation that such tax has been paid.
The corporation shall at all times reserve and keep available, out of
its authorized but unissued Class A Common Stock, such number of shares of Class
A Common Stock as shall be sufficient to effect conversion of all shares of
Class B Common Stock then outstanding.
When and as dividends are declared, whether payable in cash, in
property or in shares of stock of the corporation, the holders of Class B Common
Stock and the holders of Class A Common Stock shall be entitled to share
equally, share for share, in such dividends, except that if dividends are
declared which are payable in shares of Class B Common Stock or Class A Common
Stock, dividends shall be declared which are payable at the same rate in both
classes of stock and the dividends payable in shares of Class B Common Stock
shall be payable to holders of that class of stock and the dividends payable in
shares of Class A Common Stock shall be payable to holders of that class of
stock.
If the corporation shall in any manner subdivide or combine the
outstanding shares of Class A Common Stock, the outstanding shares of Class B
Common Stock shall be proportionately subdivided or combined.
<PAGE>
Shares of Class B Common Stock which are converted into shares of
Class A Common Stock as provided in this Article FOURTH shall not be reissued.
Except as herein otherwise expressly provided, all shares of Class B
Common Stock and Class A Common Stock shall be identical and shall entitle the
holders thereof to the same rights and privileges.
(b) The capital of the corporation will not be reduced under or by
reason of this Amendment.
THIRD: The amendment effected herein was authorized by the affirmative
vote of the holders of a majority of the outstanding shares entitled to vote
thereon at a meeting of shareholders pursuant to Section 222 and 242 of the
General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the corporation has caused this certificate to be
executed under its corporate seal the 3rd day of July, 1970.
ATTEST: LOGIMETRICS, INC.
/s/Robert S. Persky /s/Melvin Dubin
_________________________ By: __________________________
Robert S. Persky, Secretary Melvin Dubin, President
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Be it remembered that on this 3rd day of July, 1970, personally came
before me, a Notary Public in and for the County and State aforesaid, Melvin
Dubin, who stated that he is the President of Logimetrics, Inc., and who is
known personally to me to be such, and acknowledged the foregoing document to be
the act and deed of the signers thereof, and that the facts stated therein are
true.
Given under my hand and seal of office the day and year aforesaid.
/s/Donald S. Snider
--------------------------
Donald S. Snider
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
LOGIMETRICS, INC.
----------------------------------------------------
Adopted in accordance with the provisions
of Section 242 of the General Corporation
Law of the State of Delaware
---------------------------------------------------
We, FRANK J. SPOSATO, President, and CARL J. BARONE, Secretary, of
LOGIMETRICS, INC., do hereby certify as follows:
FIRST: That the Certificate of Incorporation of said corporation has
been amended as follows:
By striking out the whole of the first paragraph of Article
FOURTH thereof as it now exists and inserting in lieu thereof a new first
paragraph of said Article FOURTH, reading as follows:
FOURTH: The total number of shares of stock which the corporation
shall have authority to issue is One Million Five Hundred Thousand
(1,500,000), of the par value of $.10 per share, of which One Million
Three Hundred Thousand (1,300,000) shares are designated as Class A
Common Stock and Two Hundred Thousand (200,000) shares are designated
as Class B Common Stock."
Except as amended hereby all other paragraphs and provisions of said
Article FOURTH shall remain as they presently read.
SECOND: That such amendment has been duly adopted in accordance with
the provisions of the General Corporation Law of the State of Delaware by the
affirmative vote of the holders of a majority of the stock entitled to vote at a
meeting of stockholders.
IN WITNESS WHEREOF, we have signed this certificate this 13th day of
March, 1975.
/s/Frank J. Sposato
-------------------------
Frank J. Sposato, President
/s/Carl Barone
-------------------------
Carl J. Barone, Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
LOGIMETRICS, INC.
---------------------------------------------------
Adopted in accordance with the provisions
of Section 242 of the General Corporation
Law of the State of Delaware
--------------------------------------------------
We, MURRAY H. FEIGENBAUM, President, and JOEL HASEN, Assistant
Secretary of LOGIMETRICS, Inc., do hereby certify as follows:
FIRST: That the Certificate of Incorporation of said corporation has
been amended as follows:
By striking out the whole of the first paragraph of Article FOURTH
thereof as it now exists and inserting in lieu thereof a new first paragraph of
said Article FOURTH, reading as follows:
"FOURTH: The total number of shares of stock which the
corporation shall have authority to issue is Three Million Two Hundred
Thousand (3,200,000), of the par value of $.10 per share, of which
Three Million (3,000,000) shares are designated as Class A Common
Stock and Two Hundred Thousand (200,000) shares are designated as
Class B Common Stock."
Except as amended hereby all other paragraphs and provisions of said
Article FOURTH shall remain as they presently read.
SECOND: That such amendment has been duly adopted pursuant to the
provisions of Section 228(a) of the General Corporation Law of the State of
Delaware by the written consent of the holders of a majority of the shares of
Common Stock of said corporation entitled to vote at a meeting of stockholders,
and that written notice of the taking of such action has been given to the
holders of all such Common Stock.
IN WITNESS WHEREOF, we have signed this certificate this 25th day of
June, 1982.
/s/Murray H. Feigenbaum
-------------------------------
Murray H. Feigenbaum, President
ATTEST:
/s/Joel Hasen
-------------------------------
Joel Hasen, Assistant Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
LOGIMETRICS, INC.
--------------------------------------------
Adopted in accordance with the provisions
of Section 242 of the General Corporation
Law of the State of Delaware
--------------------------------------------
We, MURRAY H. FEIGENBAUM, President, and JOEL HASEN, Assistant
Secretary of LOGIMETRICS, Inc., do hereby certify as follows:
FIRST: That the Certificate of Incorporation of said corporation has
been amended as follows:
By striking out the whole of the first paragraph of Article FOURTH
thereof as it now exists and inserting in lieu thereof a new first paragraph of
said Article FOURTH, reading as follows:
"FOURTH: The total number of shares of stock which the
corporation shall have authority to issue is Six Million Two Hundred
Thousand (6,200,000), of the par value of $.10 per share, of which Six
Million (6,000,000) shares are designated as Class A Common Stock and
Two Hundred Thousand (200,000) shares are designated as Class B Common
Stock."
Except as amended hereby all other paragraphs and provisions of said
Article FOURTH shall remain as they presently read.
SECOND: That such amendment has been duly adopted pursuant to the
provisions of Section 242(c) of the General Corporation Law of the State of
Delaware by the affirmative vote of a majority of the issued and outstanding
shares of stock entitled to vote thereon at the annual meeting of stockholders
of the corporation duly called and held November 23, 1983.
IN WITNESS WHEREOF, we have signed this certificate this 27th day of
November, 1983.
/s/Murray H. Feigenbaum
-------------------------------
Murray H. Feigenbaum, President
/s/Joel Hasen
-------------------------------
Joel Hasen, Assistant Secretary
<PAGE>
REGISTERED OFFICE AND OF REGISTERED AGENT
PURSUANT TO SECTION 134 OF TITLE 8 OF THE DELAWARE CODE
To: DEPARTMENT OF STATE
Division of Corporations
Townsend Building
Federal Street
Dover, Delaware 19903
Pursuant to the provisions of Section 134 Title 8 of the Delaware
Code, the undersigned Agent for service of process, in order to change the
address of the registered office of the corporations for which it is registered
agent, hereby certifies that:
1. The name of the agent is United States Corporation Company.
2. The address of the old registered office was 306 South State
Street, Dover, Delaware 19901.
3. The address to which the registered office is to be changed is 229
South State Street, Dover, Delaware 19901. The new address will be effective on
February 18th, 1986.
4. The names of the corporations represented by said agent are set
forth on the list annexed to this certificate and made a part hereof by
reference.
IN WITNESS WHEREOF, said agent has caused this certificate to be
signed on its behalf by its Vice President and Secretary this 13th day of
February, 1986.
UNITED STATES CORPORATION COMPANY
/s/Dennis E. Howarth
-----------------------------------
Dennis E. Howarth
Vice President
ATTEST:
/s/Grant Dawson
- -------------------------
Grant Dawson
Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
LOGIMETRICS, INC.
------------------------------------------------------------
Adopted in accordance with the provisions
of Section 242 of the General Corporation
Law of the State of Delaware
------------------------------------------------------------
We, MURRAY H. FEIGENBAUM, President, and JOEL HASEN, Assistant
Secretary, of LOGIMETRICS, INC., do hereby certify as follows:
FIRST: That the Certificate of Incorporation of said corporation has
been amended as follows:
By striking out the whole of the first paragraph of Article FOURTH
thereof as it now exists and inserting in lieu thereof a new first paragraph of
said Article FOURTH, reading as follows:
"FOURTH: The total number of shares of stock which the
corporation shall have authority to issue is Six Million Two Hundred
Fifty Thousand (6,250,000), of the par value of $.10 per share, of
which Six Million (6,000,000) shares are designated as Class A Common
Stock and Two Hundred Fifty Thousand (250,000) shares are designated
as Class B Common Stock."
Except as amended hereby all other paragraphs and provisions of said
Article FOURTH shall remain as they presently read.
SECOND: That such amendment has been duly adopted pursuant to the
provisions of Section 242 and Section 228 of the General Corporation Law of the
State of Delaware by the written consent of a majority of the issued and
outstanding shares of each class of stock entitled to vote thereon.
IN WITNESS WHEREOF, we have signed this certificate this ______ day of
July, 1988.
/s/Murray H. Feigenbaum
------------------------------
Murray H. Feigenbaum, President
ATTEST:
/s/Joel Hasen
------------------------------
Joel Hasen, Assistant Secretary
<PAGE>
TO: DEPARTMENT OF STATE
Division of Corporations
Townsend Building
Federal Street
Dover, Delaware 19903
Pursuant to the provisions of Section 134 of Title 8 of the Delaware
Code, the undersigned Agent for service of process, in order to change the
address of the registered office of the corporations for which it is registered
agent, hereby certifies that:
1. The name of the agent is United States Corporation Company.
2. The address of the old registered office was 229 South State
Street, Dover, Kent County, Delaware 19901.
3. The address to which the registered office is to be changed is 32
Loockerman Square, Suite L-100, Dover, Kent County, Delaware 19901. The new
address will be effective on October 27, 1989.
4. The names of the corporations represented by said agent are set
forth on the list annexed to this certificate and made a part hereof by
reference.
IN WITNESS WHEREOF, said agent has caused this certificate to be
signed on its behalf by its Vice President and Assistant Secretary this 10th day
of October 1989.
UNITED STATES CORPORATION COMPANY
/s/Alan Spiewak
-----------------------------------
Alan Spiewak, Vice President
ATTEST:
/s/Richard L. Kushay
- --------------------------------------
Richard L. Kushay, Assistant Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
LOGIMETRICS, INC.
------------------------------------------------------------
Adopted in accordance with the provisions
of Section 242 of the General Corporation
Law of the State of Delaware
------------------------------------------------------------
We, MURRAY H. FEIGENBAUM, President, and BARBARA DIVACK, Secretary, of
LOGIMETRICS, INC., do hereby certify as follows:
FIRST: That the Certificate of Incorporation of said corporation has
been amended as follows:
By striking out the whole of the first paragraph of Article FOURTH
thereof as it now exists and inserting in lieu thereof a new first paragraph of
said Article FOURTH, reading as follows:
"FOURTH: The total number of shares of stock which the
corporation shall have authority to issue is Seven Million
(7,250,000), of the par value of $.10 per share, of which Seven
Million (7,000,000) shares are designated as Class A Common Stock and
Two Hundred Fifty Thousand (250,000) shares are designated as Class B
Common Stock."
Except as amended hereby all other paragraphs and provisions of said
Article FOURTH shall remain as they presently read.
SECOND: That such amendment has been duly adopted pursuant to the
provisions of Section 242(c) of the General Corporation Law of the State of
Delaware by the resolution adopted on June 13, 1995 by stockholders holding a
majority of the issued and outstanding shares of stock entitled to vote thereon.
IN WITNESS WHEREOF, we signed this certificate this 15th day of June,
1995.
/s/Murray H. Feigenbaum
------------------------------
Murray H. Feigenbaum, President
/s/Barbara Divack
------------------------------
Barbara Divack, Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
LOGIMETRICS, INC.
------------------------------------------------------------
Adopted in accordance with the provisions
of Section 242 of the General Corporation
Law of the State of Delaware
------------------------------------------------------------
We, MURRAY H. FEIGENBAUM, President, and BARBARA DIVACK, Secretary, of
LOGIMETRICS, INC., do hereby certify as follows:
FIRST: The amendments to the Certificate of Incorporation of said
corporation to be effected hereby as follows:
1. The whole of Article FOURTH thereof as it now exists shall be
deleted and, in lieu thereof, a new Article FOURTH shall be inserted, reading as
follows:
"FOURTH: The total number of shares of stock which the
Corporation shall have the authority to issue is Thirty Five Million
Two Hundred (35,000,200) shares, of which Thirty Five Million
(35,000,000) shares are designated as Common Stock, $.01 par value per
share, and Two Hundred (200) shares are designated as Preferred Stock
$.01, par value per share."
The Board of Directors of the Corporation is authorized, subject to
limitations prescribed by law and the provisions of this Article FOURTH, to
provide for the issuance of the shares of Preferred Stock in series, and by
filing a certificate pursuant to the applicable law of the State of Delaware, to
establish from time to time the number of shares to be included in each such
series and the voting powers thereof, full or limited, and to fix the
designation, powers, preferences and rights of the shares of each such series
and the qualifications, limitations or restrictions thereof.
<PAGE>
The authority of the Board of Directors with respect to each
series of Preferred Stock shall include, but not be limited to,
determination of the following:
(a) The number of shares constituting that series and the
distinctive designation of that series;
(b) The dividend rate on the shares of that series, whether
dividends shall by cumulative, and, if so, from which date or dates, and
the relative rights of priority, if any, of payment of dividends on shares
of that series;
(c) Whether that series shall have voting rights, in addition to
the voting rights provided by law, and, if so, the terms of such voting
rights;
(d) Whether that series shall have conversion privileges, and, if
so, the terms and conditions of such conversion privileges, including
provision for adjustment of the conversion rate in such events as the Board
of Directors shall determine;
(e) Whether or not the shares of that series shall be redeemable,
and, if so, the terms and conditions of such redemption, including the date
or dates upon or after which they shall be redeemable, and the amount per
share payable in case of redemption, which amount may vary under different
conditions and at different redemption dates;
(f) Whether that series shall have a sinking fund for the
redemption or purchase of shares of that series, and, if so, the terms and
amount of such sinking fund;
(g) The rights of the shares of that series in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
corporation, and the relative rights of priority, if any, of payment of
shares of that series; and
(h) Any other relative rights, preferences and limitations of
that series."
The capital of the Corporation will be reduced by reason of the above
amendment; however, assets of the Corporation remaining after such reduction are
sufficient to pay debts of the Corporation for which payment has not otherwise
been provided.
<PAGE>
2. The whole of Article SEVENTH thereof as it now exists shall be
deleted and in lieu thereof, a new Article SEVENTH shall be inserted, reading as
follows:
"SEVENTH: (a) Every person who is or was a director, officer,
employee or agent of the Corporation shall be indemnified by the
Corporation pursuant to the provisions of Section 145 of the General
Corporation Law of the State of Delaware (or any similar provision or
provisions of applicable law at the time in effect) to the fullest
extent permitted thereby against all liabilities and expenses imposed
upon or incurred by that person in connection with any proceeding in
which that person may be made, or threatened to be made, a party, or
in which that person may become involved by reason of that person
being or having been a director or officer or continues to serve in
any capacity with any other enterprise at the request of the
Corporation. The foregoing right of indemnification shall not be
deemed to be exclusive of any other rights to which those seeking
indemnification may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors, or otherwise. No repeal or
amendment of this Article shall adversely affect any right or
protection of any person existing at the time of such repeal or
amendment."
(b) No director of the Corporation shall be personally
liable to the Corporation or its stockholders for any monetary damages
for breach of fiduciary duty as a director; provided, however, that
the foregoing clause shall not apply to any liability of a director
(i) for any breach of the 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 of the State of Delaware; or (iv) for any transaction from which
the director derived an improper personal benefit. If the General
Corporation Law of the State of Delaware is amended to authorize
corporate action further eliminating or limiting the personal
liability of directors, then by virtue of this Article SEVENTH, the
liability of a director of the Corporation shall be eliminated or
limited to the fullest extent permitted thereby, as so amended. Any
repeal or amendment of this Article shall not adversely affect any
right or protection of a director of the Corporation existing at the
time of such repeal or amendment."
SECOND: That such amendments have been duly adopted in accordance with
the provisions of Section 242(b) of the General Corporation Law of the State of
Delaware by the affirmative vote of a majority of the issued and outstanding
shares of the corporation at a Special Meeting of Stockholders duly called and
held on February 9, 1996. IN WITNESS WHEREOF, we have signed this certificate
this 7th day of March, 1996.
/s/Murray H. Feigenbaum
---------------------------------
Murray H. Feigenbaum, President
/s/Barbara Divack
------------------------------
Barbara Divack, Secretary
<PAGE>
CERTIFICATE OF DESIGNATION OF
SERIES A 12% CUMULATIVE CONVERTIBLE
REDEEMABLE PREFERRED STOCK
CERTIFICATE OF DESIGNATION
OF
12% CUMULATIVE CONVERTIBLE
REDEEMABLE PREFERRED STOCK
OF
LOGIMETRICS, INC.
(Pursuant to Section 151 of the
General Corporation Law of the State of Delaware)
LogiMetrics, Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation"), in
accordance with the provisions of Section 151(g) thereof,
HEREBY CERTIFIES:
That pursuant to the authority conferred upon the Board of Directors
by the Certificate of Incorporation of the Corporation, the Board of Directors
on March 6, 1996 adopted the following resolutions creating a series of 30
shares of preferred stock designated as Series A 12% Cumulative Convertible
Redeemable Preferred Stock:
WHEREAS, the Board of Directors is granted authority, subject to the
provisions of Article FOURTH of the Certificate of Incorporation, to authorize
the issue of one or more series of preferred stock and to fix and determine with
respect to each series:
(a) The number of shares constituting that series and the
distinctive designation of that series;
(b) The dividend rate on the share of that series, whether
dividends shall be cumulative, and, if so, from which date
or dates, and the relative rights of priority, if any, of
payment of dividends on shares of that series;
(c) Whether that series shall have voting rights, in addition to
the voting rights provided by law, and, if so, the terms of
such voting rights;
(d) Whether that series shall have conversion privileges, and,
if so, the terms and conditions of such conversion
privileges, including provision for adjustment of the
conversion rate in such events as the Board of Directors
shall determine;
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(e) Whether or not the shares of that series shall be
redeemable, and, if so, the terms and conditions of such
redemption, including the date or date upon or after which
they shall be redeemable, and the amount per share payable
in case of redemption, which amount may vary under different
conditions and at different redemption dates;
(f) Whether that series shall have a sinking fund for the
redemption or purchase of shares of that series, and, if so,
the terms and amount of such sinking fund;
(g) The rights of the shares of that series in the event of
voluntary or involuntary liquidation, dissolution or winding
up of the corporation, and the relative rights of priority,
if any, of payment of shares of that series; and
(h) Any other relative rights, preferences and limitations of
that series;
WHEREAS, the Corporation has made a private offering of a minimum of
15 and a maximum of 30 units, at a price of $50,000 per unit, each unit to be
composed of (a) one share of 12% Series A cumulative convertible redeemable
preferred stock, convertible at any time, but only in whole, into 94,340 shares
of Common Stock, par value $.01 per share, and (b) one seven-year series D
warrant to purchase 94,340 shares of Common Stock of the Corporation at a price
of $.01 per share, all pursuant to that certain Confidential Private Offering
Memorandum dated February 5, 1996 ("Memorandum");
NOW THEREFORE BE IT RESOLVED, that pursuant to the authority vested in
the Board of Directors of the Corporation by the provisions of Article FOURTH of
the Certificate of Incorporation to authorize the issuance of one or more series
of preferred stock and to fix and determine with respect to each series the
designation, powers, preferences and relative participating, optional,
conversion or other rights and qualifications, limitations and restrictions
thereof, the Corporation shall, and hereby does authorize issuance of a series
of thirty (30) shares of Series A cumulative convertible redeemable preferred
stock, having the following designation, powers, preferences and relative
participating, optional, conversion or other rights and qualifications,
limitations and restrictions:
1. Designation. Such series of cumulative convertible redeemable
preferred stock shall be designated and known as: "Series A 12% Cumulative
Convertible Redeemable Preferred Stock" ("Preferred Stock"). The stated value of
each share of Preferred Stock shall be $50,000 ("Stated Value").
2. Dividends. The holders of shares of Preferred Stock shall be
entitled to receive, but only when and as declared by the Board of Directors,
cash dividends in an amount equal to twelve percent (12%) of the Stated Value
per share per annum, payable quarterly on such dates in each year as shall be
fixed by the Board of Directors.
Such dividends on the Preferred Stock shall be cumulative from and
after such date or dates as shall be fixed by the Board of Directors for such
Series. No dividends shall be paid or
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set apart for payment on the Corporation's Common Stock, nor shall any
distribution be made on the Common Stock, other than a dividend payable in
Common Stock or in stock ranking junior to the Preferred Stock ("Junior Stock"),
nor shall any shares of Common Stock or Junior Stock be redeemed, retired or
otherwise acquired for a valuable consideration (except upon the conversion
thereof) unless full cumulative dividends on all Preferred Stock for all
dividend periods shall have been declared and the Corporation shall have paid
such dividends or shall have set aside a sum sufficient for the payment thereof.
Any accumulation of dividends on the Preferred stock shall not bear
interest. The holders of Preferred Stock shall not be entitled to receive any
dividends thereon other than the dividends provided for herein.
Dividends on Preferred Stock shall be declared if, when and as the
Board of Directors shall in its sole discretion deem advisable, and only from
the net profits or surplus of the Corporation as such shall be fixed and
determined by the said Board of Directors. The determination of the Board of
Directors at any time of the amount of net profits or surplus available for
dividend shall be binding and conclusive on the holders of all the stock of the
Corporation at the time outstanding.
3. No preemptive rights. No holder of the Preferred Stock shall be
entitled, as of right, to purchase or subscribe for any part of the unissued
stock of the Corporation or of any stock of the Corporation to be issued by
reason of any increase of the authorized capital stock of the Corporation, or to
purchase or subscribe for any bonds, certificates of indebtedness, debentures or
other securities convertible into or carrying options or warrants to purchase
stock or other securities of the Corporation or to purchase or subscribe for any
stock of the Corporation purchased by the Corporation or by its nominee or
nominees, or to have any preemptive rights now or hereafter defined by the laws
of the State of Delaware.
4. Preference on liquidation, etc. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, or any
reduction in its capital resulting in any distribution of assets to its
stockholders, holders of Preferred Stock shall be entitled to receive in cash
out of the assets of the Corporation, whether from capital or from earnings,
available for distribution to its stockholders, before any amount shall be paid
to the holders of Common Stock, a sum equal to Stated Value, plus an amount
equal to all accumulated and unpaid dividends thereon to the date fixed for
payment of such distributive amount. The purchase or redemption by the
Corporation of stock of any class, in any manner permitted by law, shall not for
the purpose of this paragraph be regarded as a liquidation, dissolution or
winding up of the Corporation or as a reduction of its capital. Neither the
consolidation nor merger of the Corporation with or into any other corporation
or corporations, nor the sale or transfer by the Corporation of all or any part
of its assets, shall be deemed to be a liquidation, dissolution or winding up of
the Corporation for the purposes of this paragraph. A dividend or distribution
to stockholders from net profits or surplus earned after the date of any
reduction of capital shall not be deemed to be a distribution resulting from
such reduction in capital. No holder of Preferred Stock shall be entitled to
receive any amounts with respect thereto upon any
<PAGE>
liquidation, dissolution or winding up of the Corporation other than the amounts
provided for in this paragraph.
5. Redemption. The Corporation, by action of its Board of Directors,
may redeem all (but not less than all) the Preferred Stock at any time after six
(6) months from the date of issuance of the Preferred Stock at a price equal to
the Stated Value of each share redeemed, plus a sum equal to all accumulated and
unpaid dividends thereon to the date fixed for redemption, but only if the
average closing price of the Corporation's Common Stock on the dates during the
120-day period immediately prior to the date notice of redemption is given (as
provided herein below) such Common Stock was traded shall have been not less
than $5.00 per share, and the closing price of the Corporation's Common Stock
for each of the thirty (30) trading days immediately preceding the date of such
notice shall have been not less than $5.00 per share, adjusted in each case for
stock splits, stock dividends or other similar transactions effecting the price
of the Common Stock.
Notice of the election of the Corporation to redeem any Preferred
Stock shall be given by the Corporation by mailing a copy of such notice in
person or by registered or certified mail, return receipt requested not less
than thirty (30) business days prior to the date designated therein as the date
for such redemption, to the holders of record of the Preferred Stock to be
redeemed, addressed to them at their respective address appearing on the books
of the Corporation.
The Board of Directors shall have full power and authority, subject to
the limitations and provisions herein contained, to prescribe the manner in
which and the terms and conditions upon which the Preferred Stock shall from
time to time be redeemable. On and after the date specified in such notice, each
holder of the Preferred Stock called for redemption as aforesaid, upon
presentation and surrender at the place designated in such notice of the
certificate or certificates for such Preferred Stock held by him, properly
endorsed in blank for transfer or accompanied by proper instruments of
assignment in blank (if required by the Corporation) and bearing all necessary
stock transfer tax stamps thereto affixed and cancelled, shall be entitled to
receive therefor the redemption price thereof.
From and after the date of redemption specified in such notice (unless
default shall be made by the Corporation in providing moneys for the payment of
the redemption price) all dividends upon the Preferred Stock so called for
redemption shall cease to accrue and, from and after said date (unless default
shall be made by the Corporation as aforesaid) or, if the Corporation shall so
elect, from and after the date specified therefor in the notice of redemption
(prior to the date of redemption so specified) on which the Corporation shall
provide the moneys for the payment of the redemption price by depositing the
amount thereof in trust for such purpose with a bank or trust company doing
business in the City, County and State of New York, and having a capital and
surplus of at least $500,000,000, all rights of the holders of the Preferred
Stock so called for redemption as stockholders of the Corporation, excepting
only the right to receive the redemption price of such shares on and after the
redemption date without interest thereon, shall cease and determine.
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In the event the rights of the holders of the Preferred Stock as
stockholders of the Corporation shall cease prior to the date of redemption as
aforesaid, the amount of dividends which would otherwise have accrued (if such
rights had not ceased) on such Preferred Stock from the time such rights cease
to the date of redemption, shall be deemed an additional premium. Any interest
accrued on funds so deposited shall be paid to the Corporation from time to
time. In case any holders of Preferred Stock so called for redemption shall not,
within six years after such deposit, claim the amounts deposited with respect to
the redemption thereof, any such bank or trust company shall, upon demand, pay
over to the Corporation such unclaimed amounts and thereupon such bank or trust
company shall be relieved of all responsibility in respect thereof to such
holders.
All Preferred Stock at any time redeemed shall be cancelled and shall
not be reissued.
The Corporation may also from time to time, to the extent now or
hereafter permitted by law, purchase Preferred Stock at a purchase price not
exceeding the redemption price thereof. Except in accordance with an offer made
to all holders of Preferred Stock, the Corporation shall not at any time
purchase less than the whole amount of its then outstanding Preferred Stock
unless full cumulative dividends to such date of purchase (if the same be a
dividend payment date, or to the next preceding dividend payment date if such
date of purchase is not a dividend payment date) upon all Preferred Stock
outstanding, and not then to be purchased, shall have been paid or declared and
set apart for payment.
6. Conversion. The holders of shares of Preferred Stock shall have the
right, at their option, to convert such shares into shares of Common Stock of
the Corporation ("Conversion Right") on the following terms and conditions:
(a) Each share of Preferred Stock shall be convertible, but only in
whole, at any time commencing ninety (90) days after its issuance (or, if such
share is called for redemption, at any time up to and including, but not after,
the close of business on the fifth full business day prior to the date fixed for
such redemption, unless default shall be made by the Corporation in providing
moneys for the payment of the redemption price), into ninety-four thousand,
three hundred forty (94,340) fully paid and non-assessable shares of Common
Stock of the Corporation as constituted at the time of such conversion. Every
reference herein to the Common Stock of the Corporation (unless a different
intention is expressed) shall be to the shares of the Common Stock of the
Corporation, par value $.01 per share, as such stock exists immediately after
the issuance of shares of Preferred Stock provided for hereunder, or to stock
into which said Common Stock may be changed from time to time thereafter.
(b) The Conversion Right is exercisable upon presentation and
surrender of the certificate of Preferred Stock, duly endorsed for transfer, at
the principal office to the Corporation or at any other office or agency
maintained by the Corporation for the transfer of the Preferred Stock, whereupon
the holder of such Preferred Stock, shall be entitled, subject to the
limitations herein contained, to receive in exchange therefor a certificate or
certificates for fully paid and nonassessable shares of Common Stock, as
provided above. The Preferred Stock shall be deemed to have been converted and
the person converting the same to have become the holder
<PAGE>
of record of Common Stock, for the purpose of receiving dividends and for all
other purposes whatever, as of the date when the certificate or certificates for
such Preferred Stock are surrendered to the Corporation as aforesaid. The
Corporation shall not be required to make any such conversion, and no surrender
of the Preferred Stock shall be effective for such purpose, while the books for
the transfer of either class of stock are closed for any purpose, but the
surrender of such shares of the Preferred Stock for conversion during any period
while such books are closed shall become effective for all purposes of
conversion immediately upon the reopening of such books, as if the conversion
had been made on the date such shares of Preferred Stock were surrendered.
7. Dilution.
(a) In case, at any time or from time to time after the date of
issuance of the Preferred Stock ("Issuance Date"), the Corporation shall issue
or sell shares of its Common Stock (other than any Common Stock issued upon (i)
conversion of the Corporation's (A) 12% Convertible Subordinated Debentures and
(B) 12% Convertible Senior Subordinated Debentures (together "Debentures"), (ii)
exercise of those certain Amended and Restated Series A Warrants dated March 7,
1996 to purchase 600,000 shares of Common Stock ("Series A Warrants"), (iii)
exercise by each of Murry H. Feigenbaum and Jerome Deutsch of his option to
purchase 100,000 shares of Common Stock at a price of $.10 per share
("Principals' Options"), (iv) exercise of those certain Amended and Restated
Series B Warrants dated March 7, 1996 to purchase 1,500,000 shares of Common
Stock ("Series B Warrants"), (v) exercise of those certain Series C Warrants
dated March 7, 1996 to purchase 2,542,380 shares of Common Stock ("Series C
Warrants"), (vi) exercise of those certain Series D Warrants dated March 7, 1996
to purchase 2,830,200 shares of Common Stock ("Series D Warrants"), (vii)
exercise of those certain Series E Warrants dated March 7, 1996 to purchase
1,000,000 shares of Common Stock ("Series E Warrants" and together with the
Series A, B, C and D Warrants, "Warrants") and (viii) exercise of those certain
Stock Options, dated March 7, 1996 to purchase 1,000,000 shares of Common Stock
issued to Richard K. Laird ("Laird Options" and together with the Debentures,
the Warrants, the Principals' Options and the Laird Options, the "Subject
Securities") for a consideration per share less than $.27 per share ("Trigger
Price"), or, if a Pro Forma Adjusted Trigger Price (hereinafter defined) shall
be in effect as provided below in this paragraph 7, then less than such Pro
Forma Adjusted Trigger Price per share, then and in each such case the holder of
Preferred Stock, upon the conversion hereof as provided in paragraph (a) hereof,
shall be entitled to receive, in lieu of the shares of Common Stock theretofore
receivable upon the conversion of the Preferred Stock, a number of shares of
Common Stock determined by (a) dividing the Trigger Price by a Pro Forma
Adjusted Trigger Price per share to be computed as provided below in this
paragraph 7, and (b) multiplying the resulting quotient by the number of shares
of Common Stock into which the Preferred Stock is convertible. A Pro Forma
Adjusted Trigger Price per share shall be the price computed (to the nearest
cent, a fraction of half cent or more being considered a full cent):
by dividing (i) the sum of (x) the result obtained by multiplying the
number of shares of Common Stock of the Corporation outstanding
immediately prior to such issue or sale by the Trigger Price (or, if a
Pro Forma Adjusted Trigger Price shall be in effect,
<PAGE>
by such Price), and (y) the consideration, if any, received by the
Corporation upon such issue or sale, by (ii) the number of shares of
Common Stock of the Corporation outstanding immediately after such
issue or sale.
For the purpose of this paragraph 7:
(1) In case the Corporation splits its Common Stock or shall
declare any dividend, or make any other distribution, upon
any stock of the Corporation of any class payable in Common
Stock, or in any stock or other securities directly or
indirectly convertible into or exchangeable for Common Stock
(any such stock or other securities being hereinafter called
"Convertible Securities"), such split, declaration or
distribution shall be deemed to be an issue or sale (as of
the record date for such split, dividend or other
distribution), without consideration, of such Common Stock
or such Convertible Securities, as the case may be.
(2) In case the Corporation shall issue or sell any Convertible
Securities other than the Subject Securities, there shall be
determined the price per share for which Common Stock is
issuable upon the conversion or exchange thereof, such
determination to be made by dividing (a) the total amount
received or receivable by the Corporation as consideration
for the issue or sale of such Convertible Securities, plus
the minimum aggregate amount of additional consideration, if
any, payable to the Corporation upon the conversion or
exchange thereof, by (b) the maximum number of shares of
Common Stock of the Corporation issuable upon the conversion
or exchange of all such Convertible Securities.
If the price per share so determined shall be less than the Trigger
Price (or, if a Pro Forma Adjusted Trigger Price shall be in effect, less than
such Pro Forma Adjusted Trigger Price) as of the date of such issue or sale,
then such issue or sale shall be deemed to be an issue or sale for cash (as of
the date of issue or sale of such Convertible Securities) of such maximum number
of shares of Common Stock at the price per share so determined, provided that,
if such Convertible Securities shall by their terms provide for an increase or
increases, with the passage of time, in the amount of additional consideration,
if any, payable to the Corporation, or in the rate of exchange, upon the
conversion or exchange thereof, the Pro Forma Adjusted Trigger Price per share
shall, forthwith upon any such increase becoming effective, be readjusted to
reflect the same, and provided, further, that upon the expiration of such rights
of conversion or exchange of such Convertible Securities, if any thereof shall
not have been exercised, the Pro Forma Adjusted Trigger Price per share shall
forthwith be readjusted and thereafter be the price which it would have been had
an adjustment been made on the basis that the only shares of Common Stock so
<PAGE>
issued or sold were those issued or sold upon the conversion or exchange of such
Convertible Securities, and that they were issued or sold for the consideration
actually received by the Corporation upon such conversion or exchange, plus the
consideration, if any, actually received by the Corporation for the issue or
sale of all such Convertible Securities which shall have been converted or
exchanged.
(b) In case the Corporation shall grant any rights or options to
subscribe for, purchase or otherwise acquire Common Stock of any class other
than the Subject Securities, there shall be determined the price per share for
which Common Stock is issuable upon the exercise of such rights or options, such
determination to be made by dividing (a) the total amount, if any, received or
receivable by the Corporation as consideration for the granting of such rights
or options, plus the minimum aggregate amount of additional consideration, if
any, payable to the Corporation upon the exercise of such rights or options, by
(b) the maximum number of shares of Common Stock issuable upon the exercise of
such rights or options.
If the price per share so determined shall be less than the Trigger
Price (or, if a Pro Forma Adjusted Trigger Price shall be in effect, less than
such Price) as of the date of such issue or sale, then the granting of such
rights or options shall be deemed to be an issue or sale for cash (as of the
date of the granting of such rights or options) of such maximum number of shares
of Common Stock at the price per share so determined, provided that, if such
rights or options shall be their terms provide for an increase or increases,
with the passage of time, in the amount of additional consideration, if any,
payable to the Corporation upon the exercise thereof, the Pro Forma Adjusted
Trigger Price per share shall, forthwith upon any such increase becoming
effective, be readjusted to reflect the same, and provided, further, that upon
the expiration of such rights or options, if any thereof shall not have been
exercised, the Pro Forma Adjusted Trigger Price per share shall forthwith be
readjusted and thereafter be the price which it would have been had an
adjustment been made on the basis that the only shares of Common Stock so issued
or sold were those issued or sold upon the exercise of such rights or options
and that they were issued or sold for the consideration actually received by the
Corporation upon such exercise, plus the consideration, if any, actually
received by the Corporation for the granting of all such rights and options,
whether or not exercised.
(c) In case the Corporation shall grant any rights or options to
subscribe for, purchase or otherwise acquire Convertible Securities, such
Convertible Securities shall be deemed, for the purposes of paragraph 7(a)(2)
above, to have been issued or sold for the total amount received or receivable
by the Corporation as consideration for the granting of such rights or options
plus the minimum aggregate amount of additional consideration, if any, payable
to the Corporation upon the exercise of such rights or options, provided that,
upon the expiration of such rights or options, if any thereof shall not have
been exercised, the Pro Forma Adjusted Trigger Price per share shall forthwith
be readjusted and thereafter be the price which it would have been had an
adjustment been made upon the basis that the only Convertible Securities so
issued or sold were those issued or sold upon the exercise of such rights or
options and that they were issued or sold for the consideration actually
received by the Corporation upon such exercise, plus the consideration, if any,
actually received by the Corporation for the granting of all such rights or
options, whether or not exercised.
<PAGE>
(d) In case any shares of stock or other securities, other than Common
Stock of the Corporation, shall at any time be receivable upon the conversion of
Preferred Stock, and in case any additional shares of such stock or any
additional such securities (or any stock or other securities convertible into or
exchangeable for any such stock or securities) shall be issued or sold for a
consideration per share such as to dilute the purchase rights evidenced by
Preferred Stock, then and in each such case the Pro Forma Adjusted Trigger Price
per share shall forthwith be adjusted, substantially in the manner provided for
above in this paragraph 7, so as to protect the holder of Preferred Stock
against the effect of such dilution.
(e) In case any shares of Common Stock or Convertible Securities or
any rights or options to subscribe for, purchase or otherwise acquire any Common
Stock or Convertible Securities shall be issued or sold for cash, the
consideration received therefor shall be deemed to be the amount received by the
Corporation therefor, after deducting any expenses incurred and any underwriting
or similar commissions, compensation or concessions paid or allowed by the
Corporation in connection with such issue or sale.
(f) In case any shares of Common Stock or Convertible Securities or
any rights or options to subscribe for, purchase or otherwise acquire any Common
Stock or Convertible Securities shall be issued or sold for a consideration
other than cash (or a consideration which includes cash, if any cash constitutes
a part of the assets of a corporation or business substantially all of the
assets of which are being received a such consideration) then, for the purpose
of this paragraph 7(f), the Board of Directors of the Corporation shall promptly
determine the fair value of such consideration, and such Common Stock,
Convertible Securities, rights or options shall be deemed to have been issued or
sold on the date of such determination in good faith. Such value shall not be
more than the amount at which such consideration is recorded in the books of the
Corporation for accounting purposes except in the case of an acquisition
accounted for on a pooling of interest basis. In case any Common Stock or
Convertible Securities or any rights or options to subscribe for, purchase or
otherwise acquire any Common Stock or Convertible Securities shall be issued or
sold together with other stock or securities or other assets of the Corporation
for a consideration which covers both, the Board of Directors of the Corporation
shall promptly determine what part of the consideration so received is to be
deemed to be the consideration for the issue or sale of such Common Stock or
Convertible Securities or such rights or options.
The Corporation covenants and agrees that, should any determination of
fair value of consideration or of allocation of consideration be made by the
Board of Directors of the Corporation, pursuant to this paragraph 7(f), it will,
not less than seven (7) days after any and each such determination, deliver to
the holder of the Preferred Stock a certificate signed by the President or a
Vice President and the Treasurer or an Assistant Treasurer of the Corporation
reciting such value as thus determined and setting forth the nature of the
transaction for which such determination was required to be made, the nature of
any consideration, other than cash, for which Common Stock, Convertible
Securities, rights or options have been or are to be issued, the basis for its
valuation, the number of shares of Common Stock which have been or are to be
<PAGE>
issued, and a description of any Convertible Securities, rights or options which
have been or are to be issued, including their number, amount and terms.
(g) In case the Corporation shall take a record of the holders of
shares of its stock of any class for the purpose of entitling them (a) to
receive a dividend or a distribution payable in Common Stock or in Convertible
Securities, or (b) to subscribe for, purchase or otherwise acquire Common Stock
or Convertible Securities, then such record date shall be deemed to be the date
of the issue or sale of the Common Stock issued or sold or deemed to have been
issued or sold upon the declaration of such dividend or the making of such other
distribution, or the date of the granting of such rights of subscription,
purchase or other acquisition, as the case may be.
(h) The number of shares of Common Stock outstanding at any given time
shall include shares issuable in respect of scrip certificates issued in lieu of
fractions of shares of Common Stock, but shall exclude shares in the treasury of
the Corporation.
(i) Following each computation or readjustment of a Pro Forma Adjusted
Trigger Price as provided in this paragraph 7, the newly computed or adjusted
Pro Forma Adjusted Trigger Price shall remain in effect until a further
computation or readjustment thereof is required by this paragraph 7.
(j) In case at the time or from time to time after the Issuance Date
the holders of the Common Stock of the Corporation of any class (or other shares
of stock or other securities at the time receivable upon the conversion of
Preferred Stock) shall have received, or, on or after the record date fixed for
the determination of eligible stockholders, shall have become entitled to
receive:
(A) other or additional stock or other securities or property
(other than cash) by way of dividend:
(B) any cash or paid or payable out of capital or pain-in surplus
or surplus created as a result of a revaluation of property by way of
dividend; or
(C) other or additional (or less) stock or other securities or
property (including cash) by way of stock-split, spin-off, split-off,
split-up, reclassification, combination of shares or similar corporate
rearrangement;
(other than additional shares of Common Stock issued to holders of common Stock
as a stock dividend or stock-split, adjustments in respect of which shall be
covered by the provisions of this paragraph 7), then in each case the holder of
the Preferred Stock, upon the conversion thereof as provided in paragraph 6,
shall be entitled to receive, in lieu of, or in addition to, as the case may be,
the shares theretofore receivable upon the conversion of the Preferred Stock,
the amount of stock or other securities or property (including cash in the cases
referred to in clauses (B) and (C) above) which such holder would hold on the
date of such exercise if, on the Issuance Date, he, she or it had been the
holder of record of the number of shares of Common Stock of the Corporation into
which the Preferred Stock is convertible and had thereafter, during the period
from the Issuance Date to and including the date of such conversion, retained
such shares
<PAGE>
and/or all other or additional (or less) stock or other securities or property
(including cash in the cases referred to in clauses (B) and (C) above)
receivable by him, her or it as aforesaid during such period, giving effect to
all adjustments called for during the period from the Issuance Date and
including the date of such conversion, retained such period by paragraphs 7(a)
and 7(k) hereof.
(k) In case of any reorganization of the Corporation (or any other
corporation the stock or other securities of which are at the time deliverable
on the conversion of the Preferred Stock) after the date hereof, or in case,
after such date, the Corporation (or any such other corporation) shall
consolidate with or merge into another corporation or convey all or
substantially all its assets to another corporation, then and in each such case
the holder of the Preferred Stock, upon the conversion thereof as provided in
paragraph 6 hereof, at any time after the consummation of such reorganization,
consolidation, merger or conveyance, shall be entitled to receive the stock or
other securities or property to which such holder would have been entitled upon
such consummation if such holder had converted the Preferred Stock immediately
prior thereto, all subject to further adjustments as provided for herein; in
each such case, the terms of the Preferred Stock shall be applicable to the
shares of stock or other securities or property receivable upon the conversion
of the Preferred Stock after such consummation.
(l) The Corporation will not, by amendment of its charter or through
reorganization, consolidation, merger, dissolution, sale of assets or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms of the Preferred Stock, but will at all times in good faith assist in
the carrying out of all such terms and in the taking of all such action as may
be necessary or appropriate in order to protect the rights of the holder hereof
against dilution or other impairment. Without limiting the generality of the
foregoing, the Corporation will not increase the par value of any shares of
stock receivable upon the conversion of the Preferred Stock above the amount
payable therefor upon such exercise, and at all times will take all such action
as may be necessary or appropriate in order that the Corporation may validly and
legally issue fully paid and non-assessable stock upon the conversion of the
Preferred Stock.
(m) In each case of an adjustment in the number of shares of Common
Stock or other stock, securities or property receivable on the conversion of the
Preferred Stock, at the request of the holder of the Preferred Stock the
Corporation at its expense shall promptly cause independent public accountants
of recognized standing, selected by the Corporation, to compute such adjustment
in accordance with the terms of the Preferred Stock and prepare a certificate
setting forth such adjustment and showing in detail the facts upon which such
adjustment is based, including a statement of (A) the consideration received or
to be received by the Corporation for any additional shares issued or sold or
deemed to have been issued or sold, (B) the number of shares of Common Stock
outstanding or deemed to be outstanding and (C) the Pro Forma Adjusted Trigger
Price. The Corporation will forthwith mail a copy of each such certificate to
the holder of the Preferred Stock.
(n) In case:
(A) The Corporation shall take a record of the holders of its
Common Stock (or other stock or securities at the time deliverable upon the
conversion of the Preferred
<PAGE>
Stock) for the purpose of entitling or enabling them to receive any
dividend (other than a cash or stock dividend at the same rate as the rate
of the last cash or stock dividend theretofore paid) or other distribution,
or to exercise any preemptive right pursuant to the Corporation's charter,
or to receive any right to subscribe for or purchase any shares of stock of
any class or any other securities, or to receive any other right; or
(B) of any capital reorganization of the Corporation, any
reclassification of the capital stock of the Corporation, any consolidation
or merger of the Corporation with or into another corporation, or any
conveyance of all or substantially all of the assets of the Corporation to
another corporation; or
(C) of the voluntary or involuntary dissolution, liquidation or
winding up of the Corporation;
then, and in each such case, the Corporation will mail or cause to be mailed to
the holder of the Preferred Stock a notice specifying, as the case may be, (i)
the date on which a record is to be taken for the purpose of such dividend,
distribution or right, and stating the amount and character of such dividend,
distribution or right, or (ii) the date on which such reorganization,
reclassification, consolidation, merger, conveyance, dissolution, liquidation or
winding up is to take place, and the times, if any is to be fixed, as of which
the holders of record of Common Stock (or such other stock or securities at the
time deliverable upon the exercise of the Preferred Stock) shall be entitled to
exchange their shares of Common Stock of any class (or such other stock or
securities) for reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding up or (iii) the amount and character of the
stock or other securities proposed to be issued or granted, the date of such
proposed issuance or grant and the persons or class of persons to whom such
stock or other securities are to be offered, issued or granted. Such notice
shall be mailed at least thirty (30) days prior to the date therein specified.
(o) The Corporation shall, so long as any of the Preferred Stock is
outstanding, reserve and keep available out of its authorized and unissued
Common Stock, solely for the purpose of effecting the conversion of the
Preferred Stock, such number of shares of Common Stock as shall from time to
time be sufficient to effect the conversion of all shares of the Preferred
Stock, then outstanding. The Corporation shall from time to time increase its
authorized Common Stock and take such other action as may be necessary to permit
the issuance from time to time of the shares of Common Stock, as fully paid and
nonassessable shares, upon the conversion of the Preferred Stock, as herein
provided.
(p) The Corporation shall pay any and all taxes which may be imposed
upon it with respect to the issuance and delivery of Common Stock upon the
conversion of Preferred Stock as herein provided. The Corporation shall not be
required in any event to pay any transfer or other taxes by reason of the
issuance of such Common Stock in names other than those in which the Preferred
stock surrendered for conversion may stand, and no such conversion of issuance
of Common Stock shall be made unless and until the person requesting such
issuance has paid to the Corporation the amount of any such tax, or has
established to the satisfaction of the Corporation and its transfer agent, if
any, that such tax has been paid. Upon any conversion of
<PAGE>
Preferred Stock, as herein provided, no adjustment or allowance shall be made
for dividends on the Preferred Stock, so converted, and all rights to dividends,
if any, shall cease and be deemed satisfied, but nothing in this sentence shall
be deemed to relieve the Corporation from its obligation to pay any dividends
which shall have been declared and shall be payable to holders of Preferred
Stock, of record as of a date prior to such conversion even though the payment
date for such dividend is subsequent to the date of conversion.
(q) Preferred Stock surrendered upon conversion thereof shall not be
reissued and no Preferred Stock shall be issued in lieu thereof or in exchange
thereof.
8. Voting Rights of Preferred. Except as herein or by law expressly
provided, the Preferred Stock shall have no right or power to vote on any
questions or in any proceeding or to be represented at or to receive notice of
any meeting of the stockholders. Notwithstanding the provisions of the preceding
sentence, so long as any shares of Preferred Stock are outstanding, the
Corporation shall not, without the affirmative vote at a meeting (the notice of
which shall state the general character of the matters to be submitted thereat),
or the written consent with or without a meeting, of the holders of at least two
thirds (66 2/3%) of the then outstanding shares of Preferred Stock:
(a) increase the authorized amount of Preferred Stock, or authorize or
create; or increase the authorized amount of, any additional class of stock
ranking prior to or on a parity with the Preferred Stock as to dividends or
assets; or authorize or create, or increase the authorized amount of, any class
of stock or obligations convertible into or evidencing the right to purchase any
class of stock ranking prior to or on a parity with the Preferred Stock as to
dividends or assets; or
(b) amend, alter or repeal any of the provisions of the Certificate of
Incorporation or any of the rights, preferences or powers of the outstanding
Preferred Stock fixed herein or determined by the Board of Directors for any
series of Preferred Stock as herein authorized; so as adversely to affect the
rights, preferences or powers of the preferred stock or its holders; provided,
however, that if any such amendment, alteration or repeal would adversely affect
the rights, preferences or powers of outstanding shares of preferred stock of
any particular series without correspondingly affecting the rights, preferences
or powers of the outstanding shares of all series, then like vote or consent by
the holders of at least two thirds (66 2/3%) of the Preferred Stock of that
particular series at the time outstanding shall also be necessary for effecting
or validating any such amendment, alteration or repeal; or
(c) sell, lease or convey all, or substantially all, of its property
or business; or
(d) merge or consolidate with or into any other corporation or
corporations, unless the corporation surviving or resulting from such merger or
consolidation will have after such merger or consolidation no class of stock
either authorized or outstanding ranking prior to or on a parity with the
Preferred Stock as to dividends or assets except the same number of shares of
Preferred Stock with the same rights, preferences and powers as the preferred
stock of the Corporation authorized and outstanding immediately preceding such
merger or consolidation, and unless each
<PAGE>
holder of Preferred Stock at the time of such merger or consolidation and in
connection therewith shall continue to hold (in the case of a merger in which
the Corporation is the surviving corporation) his shares of Preferred Stock, or
(in the case of a consolidation or a merger of the Corporation into some other
corporation) shall receive the same number of shares of Preferred Stock, with
the same rights, preferences and powers, of such resulting Corporation; or
(e) amend or repeal any of the provisions of this paragraph 8.
9. Registration Rights. Within 90 days after the date of issuance of
the Preferred Stock, the Corporation shall prepare and file a registration
statement ("Registration Statement") with the Securities and Exchange Commission
("SEC") covering the shares of Common Stock issuable upon conversion of the
Preferred Stock ("Registrable Securities"), and will use its best efforts to
cause the Registration Statement to become effective within ninety (90) days
following the date of such filing. Once effective, the Corporation shall keep
the Registration Statement effective for a period of seven (7) years from the
date it is declared effective by the SEC.
In the event (i) the registration Statement is not filed by the
Corporation with the SEC on or prior to ninety (90) days after the date of
issuance of the Preferred Stock or (ii) the Registration Statement has not been
declared effective by the SEC on or prior to one hundred-eighty (180) days after
the date of issuance of the Preferred Stock, the annual dividend rate on the
Preferred Stock shall be increased to thirteen and one-half percent (13-1/2%)
per annum for the first three (3) months immediately following the expiration of
such ninety (90) day period or one hundred-eighty (180) day period, as the case
may be, and by an additional one-half percent (1/2%) per annum at the beginning
of each subsequent thirty (30) day period thereafter, until such time as the
requirements of clause (i) or (ii) above, as the case may be, have been
satisfied, at which time such dividend rate shall revert to the rate that
otherwise would be in effect but for the operation of this sentence; provided,
however, that in no event shall the dividend rate applicable to the Preferred
Stock exceed seventeen percent (17%) per annum pursuant to this sentence.
Except as otherwise expressly stated herein, the following provisions
shall be applicable to the Registration Statement:
(a) The Corporation will use its best efforts to cause the
Registration Statement to become effective as promptly as possible within the
time periods specified above, and if any stop order shall be issued by the SEC
in connection therewith to use its reasonable efforts to obtain the removal of
such order. Following the effective date of the Registration Statement, the
Corporation shall, upon the request of the holder, forthwith supply such
reasonable number of copies of the Registration Statement, preliminary
prospectus and prospectus meeting the requirements of the Securities Act, and
other documents necessary or incidental to a public offering of the Registrable
Securities, as shall be reasonably requested by the holder to permit the holder
to make a public distribution of its, his or her Registrable Securities. The
Corporation will use its reasonable efforts to qualify the Registrable
Securities for sale in such states as the holder of Registrable Securities shall
reaonsably request, provided that no such qualification will be required in any
jurisdiction where, solely as a result thereof, the Corporation would be subject
<PAGE>
to service of general process or to taxation or qualification as a foreign
corporation doing business in such jurisdiction. The obligations of the
Corporation hereunder with respect to the holder's Registrable Securities are
expressly conditioned on the holder's furnishing to the Corporation such
appropriate information concerning the holder, the holder's Registrable
Securities and the terms of the holder's offering of such Registrable Securities
as the Corporation may reasonably request.
(b) The Corporation shall pay all expenses incurred in complying with
the provisions of this paragraph 9, including, without limitation, all
registration and filing fees (including all expenses incident to filing with the
National Association of Securities Dealers, Inc.), printing expenses, fees and
disbursements of counsel to the Corporation, securities law and blue sky fees
and expenses and the expenses of any regular and special audits incident to or
required by any such registration. All underwriting discounts and selling
commissions applicable to the sales of the Registrable Securities, and any state
or federal transfer taxes payable with respect to the sales of the Registrable
Securities and all fees and disbursements of counsel for the holder, if any, in
each case arising in connection with registration of the Registrable Securities
shall be payable by the holder.
(c) In connection with the registration of the Registrable Securities
pursuant to this paragraph 9, the Corporation shall indemnify and hold harmless
the holder, its affiliates, officers, directors, partners, employees, agents and
representatives, each person, if any, who controls the holder within the meaning
of the Securities Act of 1933, as amended (the "Securities Act"), or the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and any person
claiming by or through any of them (collectively, the "Indemnified Persons")
from and against all losses, claims, damages, expenses or liabilities (or
actions in respect thereof) which arise out of or are based upon any untrue
statement of any material fact contained in the Registration Statement or
alleged untrue statement, under which such securities were registered under the
Securities Act, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereto, or arise out of or are based
upon the omission to state therein a material fact required to be stated therein
or necessary to make the statements made therein, in light of the circumstances
under which they are made, not misleading, or any violation by the Corporation
of the Securities Act, the Exchange Act or state securities or blue sky laws
applicable to the Corporation and relating to action or inaction required of the
Corporation in connection with such registration or qualification under such
state securities or blue sky laws; and will reimburse the Indemnified Persons
for any legal or any other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Corporation will not be liable in any such
case to any Indemnified Person to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or omission made
in the Registration Statement, said preliminary prospectus or said final
prospectus or said amendment or supplement or any document incident thereto in
reliance upon and in conformity with written information furnished to the
Corporation by or on behalf of the holder.
(d) The holder will indemnify and hold harmless the Corporation and
each person, if any, who controls the Corporation within the meaning of the
Securities Act or the Exchange Act,
<PAGE>
each officer of the Corporation who signs the Registration Statement and each
director of the Corporation from and against any and all such losses, claims,
damages or liabilities arising from any untrue statement in, or omission from,
the Registration Statement, any such preliminary or final prospectus, amendment,
or supplement or document incident thereto if the statement or omission in
respect of which such loss, claim, damage or liability is asserted was made in
reliance upon and in conformity with information furnished in writing to the
Corporation by or on behalf of the holder for use in connection with the
preparation of the Registration Statement or such prospectus or amendment or
supplement thereof.
(e) The reimbursements required by subparagraphs 9(c) and (d) shall be
made by periodic payments during the course of the investigation or defense as
and when bills are received or expenses incurred; provided, however, that to the
extent that an indemnified party receives periodic payments for legal or other
expenses during the course of an investigation or defense, and such party
subsequently received payments for such expenses from any other parties to the
proceeding, such payments shall be used by the indemnified party to reimburse
the indemnifying party for such periodic payments. Any party which proposes to
assert the right to be indemnified under subparagraphs 9(c) or (d) will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim is to be made against
any indemnified party hereunder, notify each such indemnifying party of the
commencement of such action, suit or proceeding, enclosing a copy of all papers
served, but the failure to so notify such indemnifying party of any such action,
suit or proceeding shall not relieve the indemnifying party from any obligation
which it may have to any indemnified party hereunder unless and only to the
extent that the indemnifying party is prejudiced by said lack of notice. In case
any such action, suit or proceeding shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate in and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expense, other than reasonable costs of investigation subsequently
incurred by such indemnified party in connection with the defense thereof. The
indemnified party shall have the right to employ its own counsel in any such
action, but the reasonable fees and expenses of such counsel shall be at the
expense of such indemnified party, when and as incurred, unless (A) the
employment of counsel by such indemnified party has been authorized by the
indemnified party, (B) the indemnified party has reasonably concluded (based on
advice of counsel), that there may be legal defenses available to it that are
different from or in addition to those available to the indemnifying party, (C)
the indemnified party shall have reasonably concluded (based on advice of
counsel) that there may be a conflict of interest between the indemnifying party
and the indemnified party in the conduct of defense of such action (in which
case the indemnifying party shall not have the right to direct the defense of
such action on behalf of the indemnified party), or (D) the indemnifying party
shall not in fact have employed counsel to assume the defense of such action
within 15 days after receipt of notice of such action. An indemnifying party
shall not be liable for any settlement or any action or claim effected without
its consent.
<PAGE>
(f) If the indemnification provided for in this paragraph 9 is
unavailable to any indemnified party hereunder in respect of any losses, claims,
damages, liabilities or expenses referred to therein, then the indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or expenses in such proportion as is appropriate to
reflect the relative fault of the indemnifying party and indemnified parties in
connection with the actions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of such indemnifying party and indemnified parties shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact, has been made by, or relates to
information supplied by, such indemnifying party or indemnified parties, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include, subject to the limitations set forth herein,
any legal or other fees or expenses reasonably incurred by such party in
connection with any investigation or proceeding.
(g) The Corporation has determined that it would not be just and
equitable if contribution pursuant to subparagraph 9(f) were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations reeferred to in the immediately preceding
paragraph. Notwithstanding any other provisions hereof, in no event shall the
contribution obligation of the indemnifying party be greater in amount than the
excess of (A) the dollar amount of proceeds received by the indemnifying party
upon the sale of the securities giving rise to such contribution obligation over
(B) the dollar amount of any damages that the indemnifying party has otherwise
been required to pay by reason of the untrue or alleged untrue statement or
omission or alleged omission giving rise to such obligation. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(h) Neither the filing of the Registration Statement by the
Corporation nor the making of any request for prospectuses by the holder shall
impose upon the holder any obligation to sell his, her or its Registrable
Securities.
(i) The holder, upon receipt of notice from the Corporation that an
event has occurred which requires a post-effective amendment to the Registration
Statement or a supplement to the prospectus included therein, shall promptly
discontinue the sale of his, her or its Registrable Securities until the holder
receives a copy of a supplemented or amended prospectus from the Corporation,
which the Corporation shall provide as soon as practicable after such notice.
10. Replacement of certificates. Upon receipt of evidence reasonably
satisfactory to the Corporation of the loss, theft, destruction or mutilation of
the certificate of Preferred Stock and (in the case of loss, theft or
destruction) upon delivery of an indemnity agreement (with surety if reasonably
required) in an amount reasonably satisfactory to it, or (in the case of
<PAGE>
mutilation) upon surrender and cancellation thereof, the Corporation will issue,
in lieu thereof, a new certificate of like tenor.
AND IT BE FURTHER RESOLVED, that the appropriate officers of the
corporation be, and they hereby are authorized and directed to execute and
deliver certificates evidencing such shares of Preferred Stock in exchange for
payment of the purchase price of $50,000 per share.
IN WITNESS WHEREOF, LogiMetrics, Inc. as caused this certificate to be
duly executed this 8th day of April, 1997.
LOGIMETRICS, INC.
By: /s/Norman M. Phipps
------------------------
Norman M. Phipps
Acting President
Attest:
/s/Russell Reardon
- --------------------------
Russell Reardon
Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
of
CERTIFICATE OF INCORPORATION
of
LOGIMETRICS, INC.
LogiMetrics, Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation"), does
hereby certify that:
The following amendment to the Corporation's Certificate of
Incorporation, approved by the Corporation's Board of Directors and
stockholders, was duly adopted in accordance with the provisions of Section 242
of the General Corporation Law of the State of Delaware:
"The first paragraph of Article FOURTH of the Certificate of
Incorporation, as amended, of LogiMetrics, Inc. is hereby amended to read in its
entirety as follows:
FOURTH: The total number of shares of stock which the Corporation
shall have the authority to issue is One Hundred Million Two Hundred
(100,000,200) shares, of which One Hundred Million (100,000,000)
shares are designated as Common Stock, $.01 par value per share, and
Two Hundred (200) shares are designated as Preferred Stock, $.01 par
value per share."
IN WITNESS WHEREOF, LogiMetrics, Inc. has caused this Certificate to
be signed and attested by its duly authorized officers this 27th day of May,
1997.
LOGIMETRICS, INC.
By:/s/Norman M. Phipps
--------------------------------------
Norman M. Phipps
President and Chief Operating Officer
ATTEST:
/s/Russell J. Reardon
- ------------------------------
Russell J. Reardon, Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF DESIGNATION
OF
SERIES A 12% CUMULATIVE CONVERTIBLE REDEEMABLE PREFERRED STOCK
OF LOGIMETRICS, INC.
LogiMetrics, Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation"), does
hereby certify that:
The following amendments to the Certificate of Designation of Series A
12% Cumulative Convertible Redeemable Preferred Stock ("Preferred Stock") of the
Corporation ("Certificate of Designation") were duly adopted in accordance with
the provisions of Section 242 of the General Corporation Law of the State of
Delaware:
1. Section 2 of the Certificate of Designation is hereby amended to
read in its entirety as follows:
"2. Dividends. The holders of shares of Preferred Stock shall be
entitled to receive, but only when and as declared by the Board of Directors,
dividends in an amount equal to twelve percent (12%) of the Stated Value per
share per annum, payable quarterly on such dates in each year as shall be fixed
by the Board of Directors. Such dividends shall be payable, at the option of the
Board of Directors, either in cash or in shares of Common Stock having a "Fair
Market Value" (as defined below) on the date of declaration equal to the cash
dividend otherwise payable. As used herein, "Fair Market Value" on any date of
determination means the average of the last sale price per share of the Common
Stock for ten trading days immediately preceding such date as reported by any
national securities exchange on which the Common Stock is then listed or
admitted for trading or as reported by the Nasdaq Stock Market if the Common
Stock is not then listed or admitted for trading on any national securities
exchange, or the average of the closing bid and asked prices per share of the
Common Stock for the ten trading days immediately preceding such date as
reported on the OTC Bulletin Board or any similar successor service then
publishing quotations on the Common Stock if the Common Stock is not then listed
or admitted for trading on any national securities exchange or included on the
Nasdaq Stock Market, or as determined in good faith by the Company's Board of
Directors in the event that the Common Stock is not then listed or admitted for
trading on any national securities exchange or included on the Nasdaq Stock
Market and quotations on the Common Stock are not then being regularly
published."
2. Section 8 of the Certificate of Designation is hereby amended to
read in its entirety as follows:
"8. Voting rights of preferred. Except as expressly provided by law,
the Preferred Stock shall have no right to vote on any question or in any
proceeding or to be represented at or to receive notice of any meeting of the
stockholders."
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
executed and attested by its duly authorized officers, this 30th day of
November, 1999.
LOGIMETRICS, INC.
By:/s/Norman M. Phipps
________________________________
Norman M. Phipps, President and
Chief Operating Officer
ATTEST:
/s/Erik S. Kruger
__________________________
Erik S. Kruger, Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
LOGIMETRICS, INC.
LogiMetrics, Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation"), does
hereby certify that:
The following amendment to the Certificate of Incorporation of the
Corporation, approved by the Board of Directors and stockholders of the
Corporation, was duly adopted in accordance with the provisions of Section 242
of the General Corporation Law of the State of Delaware:
"The first paragraph of Article FOURTH of the Certificate of
Incorporation, as amended, of LogiMetrics, Inc. is hereby amended to read in its
entirety as follows:
FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is 355,000,000 shares, of
which 350,000,000 shares are designated as Common Stock, having a par
value of $.01 per share ("Common Stock") and 5,000,000 shares are
designated as Preferred Stock, $.01 par value per share ("Preferred
Stock")."
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed and attested by its duly authorized officers, this 20th day of April,
2000.
LOGIMETRICS, INC.
By: /s/Norman M. Phipps
----------------------------
Norman M. Phipps
President and Chief
Operating Officer
ATTEST:
/s/Erik S. Kruger
-----------------------------
Erik S. Kruger, Secretary
