<PAGE>
EXHIBIT 10.14
CERTIFICATE OF INCORPORATION OF NU HORIZON'S ELECTRONICS CORP.
1. The name of the Corporation is NU HORIZONS ELECTRONICS CORP.
2. The address of the registered office of the Corporation in Delaware is
1209 Orange Street, City of Wilmington, County of New Castle, Delaware 19801.
The name of the registered agent is The Corporation Trust Company.
3. The Purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General
Corporation Law of Delaware.
4. The aggregate number of shares which the Corporation shall have the
authority to issue is eleven million (11,000,000), consisting of ten million
(10,000,000) shares of Common Stock of the par value of one ($.01) cent per
share and one million (1,000,000) shares shall be shares of Preferred Stock of
the par value of one ($1.00) dollar per share. The Preferred Stock may be issued
in Series and the number, designations relative rights, preferences and
limitation of shares of each series of Preferred Stock one ($1.00) dollar per
share par value shall be fixed by the Board of Directors.
The holders of Common Stock shall be entitled to one vote for each
share held; the holders of Common Stock shall be entitled to receive such
dividends as may be declared from time to time by the Board of Directors; and in
the event of the voluntary or involuntary liquidation, dissolution or winding up
of the Corporation, the holders of the Common Stock shall be entitled to receive
all the remaining assets of the Corporation, tangible and intangible, of
whatever kind available for distribution to stockholders ratably in proportion
to the number of shares of Common Stock held by them, respectively.
5. The affairs, business and property of the Corporation shall be managed
and controlled by the Board of Directors. The number of directors of the
Corporation shall not be less than three nor more than eleven, shall be
initially fixed at five and may thereafter be changed from time to time by
action of not less than a majority of the members of the Board then in office.
The Board of Directors shall be divided into three classes, as nearly
equal in number as possible, with the term of office for one class expiring each
year. The initial Board of Directors shall consist of one director of the first
class to be elected to hold office for a term expiring at the first annual
meeting of stockholders, two directors of the second class to be elected to hold
office for a term expiring at the second annual meeting of stockholders and two
directors of the third class to be elected to hold office for a term expiring at
the third annual meeting of stockholders. At each annual meeting of stockholders
the successors, to the class of directors whose term shall then expire shall be
elected to hold office for a term expiring at the third succeeding annual
meeting.
<PAGE>
Any vacancies in the Board of Directors for any reason and any newly
created directorships resulting from any increase in the number of directors
shall be filled by the Board of Directors, acting by not less than a majority of
the directors then in office, although less than a quorum. Any directors so
chosen shall hold office until the next election of the class for which such
directors shall have been chosen and until their successors shall be elected and
qualified. No decrease in the number of directors shall shorten the term of any
incumbent director.
Notwithstanding any other provision of this Certificate of
Incorporation or the By-Laws of the Corporation (and notwithstanding the fact
that some lesser percentage may be specified by law, this Certificate of
Incorporation or the By-Laws of the Corporation), any director or the entire
Board, of Directors of the Corporation may be removed only with cause and only
by the affirmative vote of the holders of a majority of the outstanding shares
of capital stock of the Corporation entitled to vote generally in the election
of directors (considered for this purpose as one class).
As used in this Certificate of Incorporation, (1) the term "other
entity" shall include any individual, corporation, partnership, person or entity
and any other entity with which it or its "affiliate" or "associate" as those
terms are defined in Rule 12b-2 (or any successor rule) of the General Rules and
Regulations under the Securities Exchange Act of 1934, together with the
successors and assigns of such persons in any transaction or series of
transactions not involving a public offering of the Corporation's stock within
the meaning of the Securities Act of 1933; and (2) the term "continuing
director" shall mean a member of the initial Board of Directors of the
Corporation, or a member of the Board of Directors of the Corporation who was
elected by the public stockholders prior to the time that such other entity
acquired shares of stock of the Corporation entitling such other entity to
exercise in excess of ten (10%) percent of the total voting power of all classes
of stock of the Corporation entitled to vote in the election of directors, or a
member of the Board of Directors of the Corporation who was elected or nominated
for election by a majority of continuing directors.
6. Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of directors.
Such nominations other than by the Board of Directors shall be made by notice in
writing, delivered or mailed by first class United States mail, postage prepaid,
to the Secretary of the corporation not less than ninety (90) days prior to the
first anniversary of the date of the last meeting of stockholders of the
Corporation called for the election of directors.
Each notice shall set forth (i) the name, age and address of the
stockholder who intends to make the nomination and of the person or persons to
be nominated; (ii) a representation that the stockholder is a holder of record
of the corporation entitled to vote at the meeting and intends to appear in
person or by proxy at the meeting to nominate the person or persons specified in
the notice; (iii) the name, age, business address and, if known, residence
address of each nominee proposed in such notice; (iv) the principal occupation
or employment of each such nominee; (v) a description of all arrangements or
understandings between the stockholder and each such nominee and any 'other
person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder;
<PAGE>
(vi) such other information regarding each such nominee as would have been
required to be included in a proxy statement filed pursuant to the proxy rules
of the Securities and Exchange Commission had each nominee been nominated, or
intended to be nominated, by the Board of Directors of the Corporation; and
(vii) the consent of each such nominee to serve as a director of the Corporation
if so elected. The Chairman of any meeting of stockholders may, if the facts
warrant, determine and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he or she should so determine,
the Chairman shall so declare to the meeting and the defective nomination shall
be disregarded.
Except as required in the By-Laws no election need be by written
ballot.
7. The vote of stockholders of the Corporation required to approve any
Business Combination shall be as set forth in this Article 7. The term "Business
Combination" shall have the meaning ascribed to it in (a) (B) of this Article;
each other capitalized term used in this Article shall have the meaning ascribed
to it -in (c) of this Article.
(a)(A) In addition to any affirmative vote required by law or this
Certificate of Incorporation and except as otherwise expressly provided
in (b) of this Article 7;
(1) any merger or consolidation of the Corporation or any
Subsidiary with (i) any Interested Stockholder or (ii) any other corporation or
entity (whether or not itself is an Interested Stockholder) which is, or after
each merger or consolidation would be, an Affiliate of an Interested
Stockholder; or
(2) any sale, lease, exchange, mortgage, pledge, transfer, or other
disposition (in one transaction or a series of transactions) to or with any
Interested Stockholder or any Affiliate of any Interested Stockholder of assets
of the Corporation or any Subsidiary having an aggregate Fair Market Value of
$5,000,000 or more; or
(3) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of transactions) of any securities of any
Affiliate or any Interested Stockholder in exchange for cash, securities or
other property (or a combination thereof) having an aggregate Fair Market Value
of $5,000,000 or more, other than the issuance of securities upon the conversion
of convertible securities of the Corporation or any Subsidiary which were not
acquired by such interested Stockholder (or such Affiliate) from the Corporation
or a Subsidiary; or
(4) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an Interested
Stockholder or any Affiliate of and Interested Stockholder; or
(5) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or consolidation
of the Corporation with any
<PAGE>
of its Subsidiaries or any other transaction (whether or not with or into or
otherwise involving an Interested Stockholder) which in any such case has the
effect, directly or indirectly, of increasing the proportionate share of the
outstanding-shares of any class or series of stock or securities convertible
into the stock of the Corporation or any subsidiary which is directly or
indirectly beneficially owned by any Interested Stockholder or any affiliate of
any Interested Stockholder;
shall not be consummated without the affirmative vote of the holders of at
least 80 percent of the combined voting power of the then outstanding
shares of stock of all classes and series of the Corporation entitled to
vote generally in the election of directors ("Voting Stock"), in each case
voting together as a single class. Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that a lesser
percentage may be specified, by law or by this Certificate of Incorporation
or in any agreement with any national securities exchange or otherwise.
(B) The term "Business Combination" as used in this Article 7 shall
mean any transaction that is referred to in any one or more clauses (1)
through (5) of (a) (A) of this Article 7.
(b) The provisions of (a) of this Article 7 shall not be applicable
to any Business Combination in respect of which all of the conditions
specified in either of the following' paragraphs (A) and (B) are met, and
such Business Combination shall require only such affirmative vote as is
required by law and any other provision of the Certificate of
Incorporation;
(A) such Business Combination shall have been approved by a majority
of the Disinterested Directors, or
(B) each of the six conditions specified in the following clauses (1)
through (6) shall have been met:
(1) the aggregate amount of the cash and the Fair Market Value
as of the date of the consummation of the Business Combination (the
"Consummation Date") of any consideration other than cash to be
received by holders of Common Stock in such Business Combination shall
be at least equal to the higher of the following:
(i) (if applicable) the highest per share price (including
any brokerage commissions, transfer taxes, and soliciting
dealers' fees) paid in order to acquire any shares of Common
Stock beneficially owned by the Interested Stockholder which were
acquired beneficially by such Interested Stockholder (x) within
the two-year period immediately prior to the Announcement Date or
(y) in the transaction in which it became an Interested
Stockholder, whichever is higher; or
<PAGE>
(ii) the Fair Market Value per share of Common Stock on
the Announcement Date or on the date on which the Interested
Stockholder became an Interested Stockholder the Determination
Date), whichever is higher; and
(2) the aggregate amount of the cash and the Fair Market Value as of
the Consummation Date of any 'consideration other than cash to be received per
share by holders of shares of any other class or series of Voting Stock shall be
at least equal to the highest of the following (it being intended that the
requirements of this clause (B) (2) shall be required to be met with respect to
each class and series of such outstanding Voting Stock, whether or not the
Interested Stockholder beneficially owns any shares of a particular class or
series of Voting Stock):
(i) (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid in order to acquire any shares of
such class or series of voting stock beneficially owned by the
Interested Stockholder, which were acquired beneficially by such
Interested Stockholder (x) within the two-year period immediately
prior to the Announcement Date or (y) n the transaction in which
it became in Interested Stockholder, whichever is higher;
(ii) (if applicable) the highest preferential amount per
share to which the holders of shares of such class or series, of
Voting stock are entitled in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the
Corporation; and
(iii) the Fair Market Value per share of such class or
series of Voting Stock on the Announcement Date or the
Determination Date, whichever is higher; and
(3) the consideration to be received by holders of a particular class
or series of outstanding Voting Stock (including Common Stock) shall be in cash
or in the same form as were previously paid in order to acquire beneficially
shares of such class or series of Voting Stock that are beneficially owned by
the Interested Stockholder and, if the Interested Stockholder beneficially owns
shares of any class or series of Voting Stock that were acquired with varying
forms of consideration, the form of consideration to be received by holders of
such class or series of Voting Stock shall be either cash or the form used to
acquire beneficially the largest number of Shares of such class or series of
Voting Stock beneficially acquired prior to the Announcement Date; and
(4) after such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business Combination:
(i) except as approved by a majority of the Disinterested
Directors, there shall have been no failure to declare and pay at
the regular
<PAGE>
dates therefor the full amount of any dividends (whether or not
cumulative) payable on any class or series of stock having a
preference over the Common Stock as to dividends or upon
liquidation.
(ii) there shall have been (x) no reduction in the annual
rate of dividends paid on the Common Stock (except as necessary
to reflect any subdivision of the Common Stock), except as
approved by a majority of the Disinterested Directors and (y) an
increase in such annual rate of dividends (as necessary to
prevent any such reduction) in the event of any reclassification
(including any reverse stock split) recapitalization,
reorganization or any similar transaction which has the effect of
reducing the number of outstanding shares of the Common Stock,
unless the failure so to increase such annual rate was approved
by a majority of the Disinterested Directors; and
(iii) such interested Stockholder shall not have become the
beneficial owner of any additional shares of Voting Stock except
as part of the transaction in which it became an Interested
Stockholder; and
(5) after such Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder shall not have received the
benefit, directly or indirectly (except proportionately as a stockholder),
of any loans, advances, guarantees, pledges or other financial assistance
or tax credits or other tax advantages provided by the Corporation, whether
in anticipation of or in connection with such Business Combination or
otherwise; and
(6) a proxy or information statement describing the proposed Business
Combination and complying with the requirements of the Securities Exchange
Act of 1934 and the rules and regulations thereunder (or any subsequent
provisions replacing such Act, rules or regulations) shall be mailed to
public stockholders of the Corporation at least 30 days prior to the
consummation of such Business Combination (whether or not such proxy or
information statement is required to be mailed pursuant to such Act or
subsequent provisions).
(c) For the purposes of this Article 7:
(A) A "person" shall mean any individual, firm or corporation or
other entity.
(B) "Interested Stockholder" shall mean any person (other than the
Corporation or any Subsidiary) who or which:
(1) is the beneficial owner, directly or indirectly, of more
than 10 percent of the combined voting power of the then outstanding
shares of Voting Stock; or
<PAGE>
(2) is an Affiliate of the Interested Stockholder and at any
time within the two-year period immediately prior to the date in
question was the beneficial owner, directly or indirectly, of 10
percent or more of the combined voting power of the then outstanding
shares of Voting Stock; or
(3) is an assignee of or has otherwise succeeded to the
beneficial ownership of any shares of Voting Stock that were at any
time within the two-year period immediately prior to the date in
question beneficially owned by an Interested' Stockholder, if such
assignment or succession shall have occurred in the course of a
transaction or series of transactions not involving a public offering
within the meaning of the Securities Act of 1933.
(C) A person shall be a "beneficial owner" of any Voting Stock:
(1) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; or
(2) which such person or any of its Affiliates or Associates has
(a) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise,
or (b) the right to vote or direct the vote pursuant to any agreement,
arrangement or understanding; or
(3) which are beneficially owned, directly or indirectly, by any
other person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any shares, of
Voting Stock.
(D) For the purposes of determining g whether a person is an
Interested Stockholder pursuant to (c) (B) of this Article 7, the number of
shares of Voting Stock deemed to be outstanding shall include shares owned
through application of (c) (C) of this Article but shall not include any
other shares of Voting Stock that may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of conversion
rights, warrants or options, or otherwise.
(E) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on September 1,
1985.
(F) "Subsidiary" means any corporation more than 50 percent of whose
outstanding stock having ordinary voting power in the election of directors
is owned, directly or indirectly, by the Corporation or by a Subsidiary or
by the Corporation and one or more Subsidiaries, provided, however, that
for the purposes of the definition of Interested Stockholders set forth in
(c) (B) of this Article 7 the term "Subsidiary" shall
<PAGE>
mean only acorporation of which a majority of each class or equity security
is owned, directly or indirectly, by the Corporation.
(G) "Disinterested Director" means any member of the Board of
Directors of the Corporation who is unaffiliated with, and not a nominee
of, the Interested Stockholder and was a member of the Board prior to the
time that the Interested Stockholder became an Interested Stockholder, any
successor of a Disinterested Director who is unaffiliated with, and not a
nominee of, the Interested Stockholder and who is recommended to succeed a
Disinterested Director by a majority of Disinterested Directors then on the
Board of Directors.
(H) "Fair Market Value" means: (1)/ in the case of stock, the highest
closing sale price during the 30-day period immediately preceding the date
in question of a share of such stock in the Composite Tape for New York
Stock Exchange Listed Stocks, or, if such stock is not quoted on the
Composite Tape on the New York Stock Exchange, or, if such stock is not
listed on any such exchange, the highest closing sales price or bid
quotation with respect to a share of such stock during the 30-day period
preceding the date in question on the National Association of Securities
Dealers, Inc. Automated Quotations System or any system then in use, or if
no such quotations are available, the fair market value on the date in
question of a share of stock as determined by a majority of the
Disinterested Directors in good faith; and (2) in the case of stock of any
class or series which is not traded on any United States registered
securities exchange nor in the over-the-counter market or in the case of
property other than cash or stock, the fair market value of such property
on the date in question as determined by a majority of the disinterested
Directors in good faith.
(I) In the event of any Business Combination in which the Corporation
survives, the phrase "other consideration to be received" as used in (b)
(B) (1) and (2) of this Article 7 shall include the shares of Common Stock
and/or the shares of any other class of outstanding Voting Stock retained
by the holders of such shares.
(J) "Announcement Date" means the date of first public announcement
of the proposed Business Combination.
(K) "Determination Date" means the date on which the Interested
Stockholder became an Interested Stockholder.
(d) A majority of the Disinterested Directors of the Corporation
shall have the power and duty to determine, on the basis of
information known to them after reasonable inquiry, all facts
necessary to determine compliance with this Article 7, including,
without limitation (A) whether a person is an Interested Stockholder,
(B) the number of shares of Voting Stock beneficially owned by any
person, (C) whether a person is an Affiliate or Associate of another
person, (D) whether the requirements of (b) of this Article 7 have
been met with respect to any Business Combination, and (E) whether the
assets which are the subject of
<PAGE>
any Business Combination have, or the consideration to be received for
the issuance or transfer of securities by the Corporation or any
Subsidiary in any Business Combination has, an aggregate Fair Market
Value of $5,000,000 or more. The good faith determination of a
majority of the Disinterested Directors on such matters shall be
conclusive and binding for all purposes of this Article 7.
(e) Nothing contained in this Article 7 shall be construed to
relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
(f) Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of the holders of
at least 80% of the voting power of the Voting Stock, voting together
as a single class, shall be required to alter, amend, or repeal this
Article 7 or to adopt any provision inconsistent therewith.
8. Special meetings of the stockholders may be called only by the Board
of Directors and the power of stockholders to call a special meeting for any and
all purpos es whatsoever is specifically denied.
9. Notwithstanding any other provision of this Certificate of
Incorporation or the By-Laws of the Corporation (and notwithstanding the fact
that some lesser percentage may be specified by law, this Certificate of
Incorporation or the By-Laws of the corporation), the affirmative vote of the
holders of not less than two-thirds of the outstanding shares of capital stock
of the Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend, alter,
change or repeal Articles 5, 6, 8 and 9 of the Certificate of Incorporation;
provided further that the provisions of this Article 9 shall not apply to, and
only such vote as shall be required by statute shall be required for, any
amendment, alteration, change or repeal recommended to the stockholders by two-
thirds of the whole Board of Directors of the Corporation, provided that and so
long as a majority of the members of the Board of Directors acting upon such
matter shall becontinuing directors (as defined in Article 5 of this Certificate
of Incorporation).
10. The Board of Directors shall have the power to make, alter, or repeal
By-Laws subject to the power of the stockholders to alter or repeal the By-Laws
made or altered by the Board of Directors.
11. No person who is or was at any time a director of the corporation
shall be personally liable to the corporation or its stockholders for monetary
damages for any breach .of fiduciary duty by such person as a director;
provided, however, that, unless and except to the extent otherwise permitted
from time to time by applicable law, the provisions of this Article shall not
eliminate or limit the liability of a director (i) for breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for any act or
omission by the director which is not in good faith or which involves
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the Delaware Law, (iv) for any transaction from which the director derived an
improper personal benefit or (v) for any act or omission occurring prior to the
date the Liability
<PAGE>
Amendment becomes effective. No amendment to or repeal of this Article Eleventh
shall apply to or have any effect on the liability or alleged liability of any
director of the corporation for or with respect to any act or omission of such
director occurring prior to such amendment or repeal.
12. The name and mailing address of the incorporator is as follows:
Name Mailing Address
---- ---------------
Melinda O'Donnell 100 Jericho Quadrangle
Jericho, New York 11753
Signed at Jericho, New York
on September 30, 1987.
/S/Melinda O'Donnell
--------------------------
Incorporator
<PAGE>
CERTIFICATE OF MERGER
-of-
NU HORIZONS ELECTRONICS CORP.
(A New York corporation)
into
NU HORIZONS ELECTRONICS CORP.
(A Delaware corporation)
The undersigned corporation, NU HORIZONS ELECTRONICS CORP., DOES HEREBY
CERTIFY:
FIRST: The name and state of incorporation of each of the corporations
of the merger is as follows:
Name State of Incorporation
---- ----------------------
NU HORIZONS ELECTRONICS CORP. New York
NU HORIZONS ELECTRONICS CORP. Delaware
SECOND: That a Plan and Agreement of Merger between the parties to the
merger has been adopted, certified, executed and acknowledged by each of the
constituent corporations in accordance with the requirements of subsection (c)
of Section 252 of the General Corporation Law of the State of Delaware.
THIRD: The name of the surviving corporation of the merger is NU
HORIZONS ELECTRONICS CORP., a Delaware corporation.
FOURTH: That the Certificate of Incorporation of NU HORIZONS ELECTRONICS
CORP., a Delaware corporation shall be the Certificate of Incorporation of the
surviving corporation.
FIFTH: That the executed Plan and Agreement of Merger is on file at the
office of the principal place of business of the surviving corporation. The
address of said principal place of business is: 6000 New Horizons Boulevard,
Amityville, New York 11701.
SIXTH: That a copy of the Plan and Agreement of merger will be furnished
on request and without cost to any stockholder of any constituent corporation.
SEVENTH: The authorized capital stock of each foreign corporation which is
a party to the merger is as follows:
<PAGE>
Par value per share
or statement that
Number shares are without
Corporation Class of Shares par value
----------- ----- --------- -------------------
Nu Horizons Common Stock 10,000,000 $.01 par value
Electronics Corp.
(New York) Preferred Stock 1,000,000 $1.00 par value
NU HORIZONS ELECTRONICS CORP.
By:/s/ Irving Lubman
------------------------------
Irving Lubman
Chairman of the Board
ATTEST
By:/s/ Richard S. Schuster
--------------------------------
Richard S. Schuster
Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
NU HORIZONS ELECTRONICS CORP.
Nu Horizons Electronics, Corp. (the "Corporation"), a
corporation organized and existing under the General Corporation Law of the
State of Delaware, DOES HEREBY CERTIFY:
FIRST: That the board of directors of the Corporation, at a
meeting duly held on May 24, 1994, adopted a resolution proposing and declaring
advisable the following amendment to the Corporation's Certificate of
Incorporation:
RESOLVED, that the Certificate of Incorporation of Nu Horizons
Electronics Corp. be amended by deleting Article 4 thereof and substituting, in
lieu thereof, the following:
"4. The aggreate number of shares which the Corporation shall
have the authority to issue is twenty-one million
(21,000,000), consisting of twenty million (20,000,000) shares
of Common Stock of the par value of two-thirds of one cent
($.0066) per share and one million (1,000,000) shares of
Preferred Stock of the par value of one dollars ($1.00) per
share. The Preferred Stock may be issued in Series and the
number, designations relative rights, preferences and
limitation of shares of each series of Preferred Stock, one
dollar ($1.00) per share par value, shall be fixed by the
Board of Directors.
The holders of Common Stock shall be entitled to one vote
for each share held; the holders of Common Stock shall be
entitled to receive such dividends as may be declared from
time to time by the Board of Directors; and in the event of
the voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the holders of the Common Stock
shall be entitled to receive all the remaining assets of the
Corporation, tangible and intangible, of whatever kind
available for distribution to stockholders ratably in
proportion to the number of shares of Common Stock held by
them, respectively."
SECOND: That the Stockholders of the Corporation have approved
such amendment at a meeting duly held on September 14, 1994.
THIRD: That such amendment has been duly adopted in accordance
with the provisions of Section 242 of the General Corporation Law of the State
of Delaware.
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this
Certificate to be signed by Arthur Nadata, its President, and attested by
Richard S. Schuster, its Secretary, this _ day of September, 1994.
NU HORIZONS ELECTRONICS CORP.
By:/s/ Arthur Nadata
-------------------------------------
Arthur Nadata
President
ATTEST:
By:/s/ Richard S. Schuster
----------------------------
Richard S. Schuster
Secretary
<PAGE>
Exhibit A
FORM
of
CERTIFICATE OF DESIGNATION
of
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
NU HORIZONS ELECTRONICS CORP.
(Pursuant to Section 151 of the Delaware General Corporation Law)
Nu Horizons Electronics Corp., a corporation organized and existing
under the General Corporation Law of the State of Delaware (hereinafter called
the "Corporation"), hereby certifies that the following resolution was adopted
by the Board of Directors of the Corporation as required by Section 151 of the
General Corporation Law at a meeting duly called and held on May 26, 1999:
RESOLVED, that pursuant to the authority granted to and vested in the
Board of Directors of this Corporation (hereinafter called the "Board of
Directors" or the "Board") in accordance with the provisions of the Certificate
of Incorporation, as amended, the Board of Directors hereby adopts, effective as
of June 9, 1999, a Certificate of Designation establishing the Series A Junior
Participating Preferred Stock, and the relative rights, preferences, and
limitations of such Series A Junior Participating Preferred Stock, as follows:
Series A Junior Participating Preferred Stock:
Section 1. Designation and Amount. The shares of such series shall be
----------------------
designated as "Series A Junior Participating Preferred Stock" (the "Series A
Preferred Stock") and the number of shares constituting the Series A Preferred
Stock shall be 20,000. Such number of shares may be increased or decreased by
resolution of the Board of Directors; provided, that no decrease shall reduce
the number of shares of Series A Preferred Stock to a number less than the
number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the Corporation
convertible into Series A Preferred Stock.
<PAGE>
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any
series of Preferred Stock, par value $1.00 per share (the "Preferred
Stock"), of the Corporation (or any similar stock) ranking prior and
superior to the Series A Preferred Stock with respect to dividends, the
holders of shares of Series A Preferred Stock, in preference to the
holders of Common Stock, par value $.0066 per share (the "Common
Stock"), of the Corporation, and of any other junior stock, shall be
entitled to receive, when, as and if declared by the Board of Directors
out of funds legally available for the purpose, quarterly dividends
payable in cash on the first day of March, June, September and December
in each year (each such date being referred to herein as a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a share
of Series A Preferred Stock, in an amount per share (rounded to the
nearest cent) equal to the greater of (a) $1 or (b) subject to the
provision for adjustment hereinafter set forth, 1,000 times the
aggregate per share amount of all cash dividends, and 1,000 times the
aggregate per share amount (payable in kind) of all non-cash dividends
or other distributions, other than a dividend payable in shares of
Common Stock or a subdivision of the outstanding shares of Common Stock
(by reclassification or otherwise), declared on the Common Stock since
the immediately preceding Quarterly Dividend Payment Date or, with
respect to the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series A Preferred
Stock. In the event the Corporation shall at any time after the date
hereof declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the amount to which holders of shares of
Series A Preferred Stock were entitled immediately prior to such event
under clause (b) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution
on the Series A Preferred Stock as provided in paragraph (A) of this
Section immediately after it declares a dividend or distribution on the
Common Stock (other than a dividend payable in shares of Common Stock);
provided that, in the event no dividend or distribution shall have been
declared on the Common Stock during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly Dividend
Payment Date, a dividend of $1 per share on the Series A Preferred
Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
<PAGE>
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment Date
next preceding the date of issue of such shares, unless the date of issue
of such shares is prior to the record date for the first Quarterly Dividend
Payment Date, in which case dividends on such shares shall begin to accrue
from the date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series A Preferred Stock entitled to
receive a quarterly dividend and before such Quarterly Dividend Payment
Date, in either of which events such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the shares of Series A
Preferred Stock in an amount less than the total amount of such dividends
at the time accrued and payable on such shares shall be allocated pro rata
on a share-by-share basis among all such shares at the time outstanding.
The Board of Directors may fix a record date for the determination of
holders of shares of Series A Preferred Stock entitled to receive payment
of a dividend or distribution declared thereon, which record date shall be
not more than 60 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Preferred
--------------
Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth,
each share of Series A Preferred Stock shall entitle the holder thereof to
1,000 votes on all matters submitted to a vote of the stockholders of the
Corporation. In the event the Corporation shall at any time after the date
hereof declare or pay any dividend on the Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or consolidation of
the outstanding shares of Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each such case the number
of votes per share to which holders of shares of Series A Preferred Stock
were entitled immediately prior to such event shall be adjusted by
multiplying such number by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in any other Certificate of
Designation creating a series of Preferred Stock or any similar stock, or
by law, the holders of shares of Series A Preferred Stock and the holders
of shares of Common Stock and any other capital stock of the Corporation
having general voting rights shall vote together as one class on all
matters submitted to a vote of stockholders of the Corporation.
(C) Except as set forth herein, or as otherwise provided by law,
holders of Series A Preferred Stock shall have no special voting rights and
their consent shall not be
<PAGE>
required (except to the extent they are entitled to vote with holders of
Common Stock as set forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
---------------------
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares of Series A
Preferred Stock outstanding shall have been paid in full, the Corporation
shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity (either as
to dividends or upon liquidation, dissolution or winding up) with the
Series A Preferred Stock, except dividends paid ratably on the Series
A Preferred Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which the
holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock, provided that the Corporation may at any
time redeem, purchase or otherwise acquire shares of any such junior
stock in exchange for shares of any stock of the Corporation ranking
junior (either as to dividends or upon dissolution, liquidation or
winding up) to the Series A Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series A Preferred Stock, or any shares of
stock ranking on a parity with the Series A Preferred Stock, except in
accordance with a purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of such shares
upon such terms as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights and
preferences of the respective series and classes, shall determine in
good faith will result in fair and equitable treatment among the
respective series or classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares
of stock of the Corporation unless the Corporation could, under paragraph
(A) of this Section 4, purchase or otherwise acquire such shares at such
time and in such manner.
<PAGE>
Section 5. Reacquired Shares. Any shares of Series A Preferred Stock
------------------
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
subject to the conditions and restrictions on issuance set forth herein, in the
Certificate of Incorporation, as amended, or in any other Certificate of
Designation creating a series of Preferred Stock or any similar stock or as
otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any
---------------------------------------
liquidation, dissolution or winding up of the Corporation, no distribution shall
be made (1) to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received $1,000 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment, provided that the holders of shares of Series A
Preferred Stock shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 1,000
times the aggregate amount to be distributed per share to holders of shares of
Common Stock, or (2) to the holders of shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up) with the
Series A Preferred Stock, except distributions made ratably on the Series A
Preferred Stock and all such parity stock in proportion to the total amounts to
which the holders of all such shares are entitled upon such liquidation,
dissolution or winding up. In the event the Corporation shall at any time after
the date hereof declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or consolidation
of the outstanding shares of Common Stock (by reclassification or otherwise than
by payment of a dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the aggregate amount to
which holders of shares of Series A Preferred Stock were entitled immediately
prior to such event under the proviso in clause (l)of the preceding sentence
shall be adjusted by multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the Corporation shall
---------------------------
enter into any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case each share of
Series A Preferred Stock shall at the same time be similarly exchanged or
changed into an amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 1,000 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is changed or exchanged.
In the event the Corporation shall at any time after the date hereof declare or
pay any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the outstanding shares
of Common Stock (by reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the amount set forth in the preceding sentence
with respect to the exchange or change of
<PAGE>
shares of Series A Preferred Stock shall be adjusted by multiplying such amount
by a fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
Section 8. No Redemption. The shares of Series A Preferred Stock shall
--------------
not be redeemable.
Section 9. Rank. The Series A Preferred Stock shall rank, with respect
----
to the payment of dividends and the distribution of assets, junior to all series
of any other class of the Corporation's Preferred Stock.
Section 10. Amendment. The Certificate of Incorporation of the
----------
Corporation, as amended, shall not be amended in any manner which would
materially alter or change the powers, preferences or special rights of the
Series A Preferred Stock so as to affect them adversely without the affirmative
vote of the holders of at least two-thirds of the outstanding shares of Series A
Preferred Stock, voting together as a single class.
IN WITNESS WHEREOF, this Certificate of Amendment is executed on behalf of
the Corporation by its Chairman of the Board and attested by its Secretary this
26th day of May, 1999.
/s/ Irving Lubman
--------------------------------------
Chairman of the Board
Attest:
/s/ Richard Schuster
------------------------------
Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE CERTIFICATE OF INCORPORATION OF
NU HORIZONS ELECTRONICS CORP.
-----------------------------
NU HORIZONS ELECTRONICS CORP., a corporation organized and existing under
the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors, Inc. of NU
HORIZONS ELECTRONICS CORP., resolutions were adopted setting forth a proposed
amendment to the Certificate of Incorporation of said corporation, declaring
said amendment to be advisable and calling a meeting of the stockholders of the
corporation for consideration thereof.
SECOND: That thereafter, pursuant to resolution of its Board of
Directors, a Special Meeting of Stockholders of said corporation was duly called
and held, upon notice in accordance with Section 222 of the General Corporation
Law of the State of Delaware at which meeting the necessary number of shares as
required by statute were voted in favor of the following amendment:
RESOLVED, that the Certificate of Incorporation of this corporation be
amended by changing Article 4 of the Company's Certificate of
Incorporation, so that, as amended said Article shall be and read as
follows:
"4. The aggregate number of shares which the Corporation shall
have the authority to issue is fifty-one million (51,000,000),
consisting of fifty million (50,000,000) shares of Common Stock of the
par value of two-thirds of one cent ($.0066) per share and one million
(1,000,000) shares of Preferred Stock of the par value of one dollar
($1.00) per share. The Preferred Stock may be issued in Series and the
number, designations relative rights, preferences and limitation of
shares of each series of Preferred Stock, one dollar ($1.00) per share
par value, shall be fixed by the Board of Directors.
The holders of Common Stock shall be entitled to one vote for
each share held; the holders of Common Stock shall be entitled to
receive such dividends as may be declared from time to time by the
Board of Directors; and in the event of the voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, the holders
of the Common Stock shall be entitled to receive all the remaining
assets of the Corporation, tangible and intangible, of whatever kind
available for distribution to stockholders ratably in proportion to
the number of shares of Common Stock held by them, respectively."
<PAGE>
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said NU HORIZONS ELECTRONICS CORP. has caused this
certificate to be signed by Arthur Nadata, its President and Richard Schuster,
its Secretary, this 9/th/ day of November, 2000.
NU HORIZONS ELECTRONICS CORP.
By:/s/ Arthur Nadata
--------------------------------
Arthur Nadata, President
ATTEST:
By:/s/ Richard Schuster
-----------------------------------
Richard Schuster, Secretary
