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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (date of earliest event reported): January 30, 1998
IFR SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 0-14224 48-0777904
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
10200 West York, Wichita, Kansas 67215
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (316) 522-4981
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ITEM 5. OTHER EVENTS
Effective January 30, 1998, IFR Systems, Inc. (the "Company")
reorganized its corporate structure into a "holding company" structure. As a
result, the Company, whose name has been changed to IFR Instruments, Inc., is
now an operating subsidiary of the new holding company and the former
stockholders of the Company are now stockholders of the new holding company.
The new holding company (sometimes referred to herein as "Registrant") has
been given the Company's former name, IFR Systems, Inc.
The reorganization was effected under Section 251(g) of the
Delaware General Corporation Law (the "DGCL") and did not require the
approval of the Company's shareholders. The reorganization was accomplished
by first creating a wholly owned subsidiary of the Company, IFR Holding
Corporation ("Holding"), and a wholly owned subsidiary of Holding called IFR
Merger Corporation ("Merger Corporation"). Holding, Merger Corporation, and
the Company are all Delaware corporations.
On January 30, 1998, Merger Corporation was merged with and into
the Company. The Company is the surviving Corporation in the merger. Each
share of the Company's issued and outstanding common stock, par value $.01
per share, was automatically converted in the merger into a share of common
stock, par value $.01 per share, of Holding and all options to acquire the
Company's common stock were converted into identical options to purchase
common stock of Holding on the same terms and conditions as the former
options. As a part of the merger, the Company's corporate name was changed
to IFR Instruments, Inc., and immediately after the merger became effective,
the corporate name of Holding was changed to IFR Systems, Inc., the Company's
former name and the Registrant's current name.
Each outstanding stock certificate representing shares of the
Company's common stock now represents an equal number of shares of common
stock of the new holding company. Because the new holding company has the
same name as the former name of the Company, IFR Systems, Inc., stockholders
do not need to exchange their existing stock certificates for new stock
certificates of Registrant.
In the merger, the Company's existing Rights Agreement, dated
February 28, 1989, with Harris Bank and Trust Company and the rights granted
under such agreement were assumed by Registrant. Until certain events
described in the rights agreement occur, the rights are represented by the
stock certificates to which they relate and are not separately transferable.
The certificate of incorporation and bylaws of Registrant contain
identical terms to those contained in the Company's certificate of
incorporation and bylaws as in effect immediately prior to the merger except
for certain matters that do not materially affect the rights of stockholders
as permitted by the DGCL.
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Pursuant to Rule 12g-3, Registrant's common stock, par value $0.01
per share, is deemed to be registered under Section 12(g) of the Securities
Exchange Act of 1934, as amended. Accordingly this report is filed to report
that Registrant is the successor issuer of the Company.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) The following exhibits are filed herewith:
Exhibit No. Description
2 Agreement and Plan of Merger of IFR Systems, Inc.
with IFR Merger Corporation, dated as of January
20, 1998.
3.01 Amended and Restated Certificate of Incorporation
of IFR Systems, Inc.
3.02 By-Laws of the Company. (Incorporated by
reference to Exhibit 3.3 to the Company's
Annual Report on Form 10-K for the year ended
June 30, 1987, File No. 0-14224).
3.03 Amendment to By-Laws of the Company adopted
January 26,1990. (Incorporated by reference to
Exhibit 3.5 to the Company's Annual Report on
Form 10-K for the year ended June 30, 1990,
File No. 0-14224).
4 Rights Agreement, dated as of January 30, 1998,
between IFR Systems, Inc. and Harris Trust and
Savings Bank
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
IFR SYSTEMS, INC.
By /s/ Alfred H. Hunt, III
-------------------------------------
Alfred H. Hunt, III
President and Chief Executive Officer
Date: February 2, 1998
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EXHIBIT 2
AGREEMENT AND PLAN OF MERGER
OF
IFR SYSTEMS, INC.
WITH
IFR MERGER CORPORATION
__________________________________
This Agreement and Plan of Merger (this "Agreement"), dated as of January
30, 1998, is entered into by IFR Systems, Inc., a Delaware corporation ("IFR
Systems"), IFR Merger Corporation, a Delaware corporation ("Merger
Corporation"), and IFR Holding Corporation, a Delaware Corporation ("IFR
Holding").
RECITALS
A. The Board of Directors of IFR Systems has determined it to be in the
best interests of IFR Systems and its stockholders to effect a restructuring
whereby IFR Systems will be become the wholly owned subsidiary of a new holding
company; and
B. It is intended that the holding company structure be effected without a
vote of the stockholders of IFR Systems pursuant to and in accordance with
Section 251(g) of the Delaware General Corporation Law (the "DGCL").
C. The Boards of Directors of IFR Systems, Merger Corporation, and IFR
Holding, and IFR Holding acting as the sole stockholder of Merger Corporation,
have approved the merger of Merger Corporation with and into IFR Systems (the
"Merger").
D. It is intended that, for federal income tax purposes, the Merger shall
qualify as a reorganization under the provisions of Section 368(a) of the
Internal Revenue Code, as amended, and the rules and regulations promulgated
thereunder.
E. The Certificate of Incorporation and the By-Laws of IFR Holding
immediately after the Effective Time (as hereinafter defined) will contain
provisions identical to the Certificate of Incorporation and Bylaws of IFR
Systems immediately before the Effective Time other than with respect to matters
excepted by Section 251(g) of the DGCL.
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AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements contained in this Agreement, the parties hereto agree as follows:
ARTICLE I
THE MERGER
Section 1.1. THE MERGER. At the Effective Time (as defined in Section
1.2) and subject to and upon the terms and conditions of this Agreement, Merger
Corporation shall be merged with and into IFR Systems in accordance with the
DGCL, whereupon the separate corporate existence of Merger Corporation shall
cease and IFR Systems shall be the surviving corporation in the Merger (the
"Surviving Corporation") and shall succeed to and assume all of the rights and
obligations of Merger Corporation in accordance with the DGCL.
Section 1.2. EFFECTIVE TIME. The Merger shall become effective on the
date of the filing of a certified copy of this Agreement with the Secretary of
State of Delaware as required by the DGCL (the "Effective Time").
Section 1.3. EFFECT OF THE MERGER. The effects of the Merger shall be
as provided in the applicable provisions of the DGCL. Without limiting the
generality of the foregoing, and subject thereto, at the Effective time all the
rights, privileges, powers, franchises, and property of Merger Corporation and
IFR Systems shall vest in the Surviving Corporation, and all restrictions,
disabilities, duties, debts, and liabilities of Merger Corporation and IFR
Systems shall become the restrictions, disabilities, duties, debts, and
liabilities of the Surviving Corporation.
Section 1.4. CERTIFICATES OF INCORPORATION AND BYLAWS. (a) At the
Effective Time, the Certificate of Incorporation of IFR Systems shall be the
Certificate of Incorporation of the Surviving Corporation except that, effective
as of the Effective Time, such Certificate of Incorporation shall be amended as
follows:
(i) Paragraph (a) of Article I shall be amended to read in its entirety as
follows:
(a) NAME. The name of this Corporation is IFR Instruments, Inc.
(ii) Paragraph (d) of Article I shall be amended to read in its entirety
as follows:
(d) SHARES OF CAPITAL STOCK. The aggregate number of shares which
the Corporation shall have the authority to issue is 1,000 shares of common
stock, par
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value $1.00 per share ("Common Stock"). No shares of the previously authorized
preferred stock have been issued and all provisions previously contained in this
Certificate authorizing preferred stock are hereby withdrawn.
(iii) Article VII is repealed in its entirety and the following Article
VII is substituted to read in its entirety as follows:
ARTICLE VII
REQUIRED STOCKHOLDER APPROVAL
Any act or transaction by or involving the Corporation that requires for
its adoption under the General Corporation Law of the State of Delaware or this
Certificate of Incorporation the approval of the stockholders of the Corporation
shall, pursuant to Section 251(g) of the General Corporation Law of the State of
Delaware, require, in addition, the approval of the stockholders of IFR Holding
Corporation, a Delaware corporation (or any successor by merger), by the same
vote as is required by the General Corporation Law of the State of Delaware or
this Certificate of Incorporation so long as IFR Holding Corporation (whose name
is being changed to IFR Systems, Inc.) or its successor is the ultimate parent
of the Corporation. For the purposes of this Article VII, the term "parent"
shall mean a corporation that owns, directly or indirectly at least a majority
of the outstanding capital stock of the Corporation entitled to vote in the
election of directors without regard to the occurrence of any contingency.
(b) Substantially concurrently with the filing of this Agreement with the
Secretary of the State of Delaware, IFR Holding Corporation shall cause to be
filed with the Secretary of the State of Delaware an Amended and Restated
Certificate of Incorporation of IFR Holding Corporation substantially in the
form of Exhibit "A" hereto.
(c) At the Effective Time, the Bylaws of IFR Holding Corporation shall be
in the form of the Bylaws of IFR Systems immediately prior to the Effective
Time.
Section 1.5. ADDITIONAL ACTIONS. Subject to the terms of this
Agreement, the parties hereto shall take all such reasonable and lawful actions
as may be necessary or appropriate in order to effectuate the Merger. If at
any time after the Effective Time, the Surviving Corporation shall consider or
be advised that any deeds, bills of sale, assignments, assurances, or any other
actions or things are necessary to vest, perfect, or confirm, of record or
otherwise, in the Surviving Corporation its right, title, or interest in, to, or
under any of the rights, properties, or assets acquired or to be acquired by the
Surviving Corporation as a result of, or in connection with, the Merger or
otherwise to carry out this Agreement, the officers and directors of the
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Surviving Corporation shall be authorized to execute and deliver, in the name
and on behalf of each of Systems and Merger Corporation, all such deeds, bills
of sale, assignments, and assurances and to take all such other actions and
things as may be necessary or desirable to vest, perfect, or confirm any and all
rights titles, and interests, in, to and under such rights, properties, or
assets in the Surviving Corporation or otherwise to carry out this Agreement.
Section 1.6. DIRECTORS AND OFFICERS. The directors and officers of the
Surviving Corporation shall be the directors and officers, respectively, of IFR
Systems immediately prior to the Effective Time, in each case until their
respective successors are duly elected or appointed and qualified.
Section 1.7. RIGHTS PLANS. Prior to the Effective Time IFR Systems and
IFR Holding Corporation shall take all necessary action to substitute IFR
Holding Corporation for IFR Systems under the existing Rights Agreement, dated
as of February 28, 1989, between IFR Systems and Harris Trust & Savings Bank
(the "Rights Agreement") and all rights granted thereunder as of the Effective
Time, so that, as of the Effective Time, IFR Holding Corporation shall have
assumed all of the rights and obligations under the Rights Agreement and the
preferred stock purchase rights ("Rights") granted thereunder.
ARTICLE II
CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS;
NO EXCHANGE OF CERTIFICATES
Section 2.1. CONVERSION OF SECURITIES. At the Effective time, by virtue
of the Merger and without any action on the part of IFR Systems, IFR Holding,
Merger Corporation, or the holders of any of the securities of any of them, IFR
Systems will become a wholly owned subsidiary of IFR Holding, and the
stockholders of IFR Systems will become stockholders of IFR Holding. To effect
the foregoing:
(a) each share of common stock, par value $0.01, of IFR Systems
("IFR Systems Common Stock") then held by IFR Systems as a treasury share or
then held by Merger Corporation or IFR Holding Corporation shall be canceled
and extinguished without payment of any consideration therefor and without
any conversion thereof;
(b) each share of IFR Systems Common Stock then issued and
outstanding (other than those described in Section 2.1(a)) together with the
associated Right shall, without necessity of exchange or surrender thereof,
be converted into and thereafter shall represent one validly issued, fully
paid, and non-assessable share of common stock, par value $1.00 par share, of
IFR Holding ("IFR Holding Common Stock") and one associated Right;
(c) each then outstanding warrant, option, or other right to
purchase or receive one share of IFR Systems Common Stock (collectively "IFR
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Systems Options") shall, automatically represent the right to receive one
validly issued, fully paid, and non-assessable warrant, option, or other
right (as the case may be) representing the right to purchase or receive,
subject to the identical terms and provisions of the respective agreements
applicable to the IFR Systems Options (collectively the "IFR Systems Options
Agreements"), one share of IFR Holding Common Stock ("IFR Holding Options").
(d) each share of common stock, par value $1.00 per share, of
Merger Corporation issued and outstanding immediately prior to the Effective
Time shall be converted into and thereupon and thereafter shall represent one
validly issued, fully paid, and non-assessable share of common stock of the
Surviving Corporation; and
(e) each share of common stock, par value $1.00 per share, of IFR
Holding held by IFR Systems immediately prior to the Effective Time shall be
contributed to the capital of IFR Holding and canceled and extinguished
without payment of any consideration therefor and without any conversion
thereof.
(f) IFR Holding and IFR Systems shall (i) make any necessary or
desirable amendments to the various IFR Systems Options Agreements; (ii) use
all reasonable best efforts to obtain any required consents or releases;
(iii) prepare and execute appropriate agreements granting or creating the IFR
Holding Options; and (iv) take any other action necessary to effect the
transactions contemplated by this Section 2.1.
(g) Each certificate representing shares of IFR Systems Common
Stock immediately prior to the Effective Time not being expressly canceled
pursuant to this Agreement shall be deemed to represent the same number of
shares of IFR Holding Common Stock at the Effective Time and shall no longer
represent shares of IFR Systems Common Stock and it shall not be necessary
for any holder thereof to exchange any such stock certificate.
ARTICLE III
AMENDMENT;TERMINATION
This Agreement may be amended by the parties hereto by action taken by or
on behalf of their respective boards of directors at any time prior to the
Effective Time. This Agreement may be terminated at any time prior to the
Effective Time by the Boards of Directors of the parties hereto notwithstanding
approval of this Agreement by the stockholders of any party hereto.
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ARTICLE IV
GENERAL PROVISIONS
Section 4.1. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
Section 4.2. SEVERABILITY. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
Section 4.3. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties.
IN WITNESS WHEREOF, IFR Holding, IFR Systems, and Merger Corporation have
caused this Agreement to be executed by their respective duly authorized
officers.
IFR HOLDING CORPORATION
By:_______________________________
Alfred H. Hunt, III, President
ATTEST:
_________________________
Charles J. Woodin, Secretary
IFR SYSTEMS, INC.
By:________________________________
Alfred H. Hunt, III, President
ATTEST:
_________________________
Charles J. Woodin, Secretary
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IFR MERGER CORPORATION
By:_________________________________
Alfred H. Hunt, III, President
ATTEST:
__________________________
Charles J. Woodin, Secretary
This Agreement has been adopted pursuant to Section 251(g) of the General
Corporation Law of the State of Delaware, and all of the conditions specified in
the first sentence of that Section 251(g) have been satisfied.
DATED: January _____, 1998
___________________________________________
Charles J. Woodin, Secretary
IFR Systems, Inc.
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EXHIBIT 3.01
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
IFR HOLDING CORPORATION
------------------------------
IFR Holding Corporation (the "Corporation"), a corporation originally
incorporated under the same name on January 26, 1998, and organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That by written consent in lieu of a meeting, the Board of
Directors of the Corporation duly adopted a resolution proposing and declaring
advisable that the Certificate of Incorporation of the Corporation be amended
and restated in its entirety as set forth in Paragraph THIRD of this Amended and
Restated Certificate of Incorporation and calling a meeting of the stockholders
of the Corporation for consideration thereof. This Amended and Restated
Certificate of Incorporation was thereto duly adopted and approved by the sole
stockholder of the Corporation by written consent in lieu of a meeting.
SECOND: This Amended and Restated Certificate of Incorporation has been
duly adopted in accordance with the provisions of Sections 242 and 245 of the
General Corporation Law of the State of Delaware.
THIRD: That the Amended and Restated Certificate of Incorporation, as
amended and restated hereby, reads in its entirety as follows:
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AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
IFR SYSTEMS, INC.
ARTICLE I - GENERAL PROVISIONS
(a) NAME. The name of this Corporation shall be IFR Systems, Inc.
(b) ADDRESS OF REGISTERED OFFICE. The address of the registered office is
1209 Orange Street, Wilmington, New Castle County, Delaware 19801. The name of
the Corporation's registered agent at such address is The Corporation Trust
Company.
(c) PURPOSe. 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 the State of Delaware.
(d) SHARES OF CAPITAL STOCK. The aggregate number of shares which the
Corporation shall have the authority to issue is 51,000,000 shares, divided into
two classes consisting of 1,000,000 shares of preferred stock, par value $.01
per share (the "Preferred Stock"), and 50,000,000 shares of common stock, par
value $.01 pre share (the "Common Stock"). Shares of the Preferred Stock may be
issued from time to time in one or more series, which series may have such
voting powers, full or limited, or no voting powers, and such designations,
preferences and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, as shall be stated and
expressed in the resolution or resolutions providing for the issue of such
shares adopted by the Board of Directors of the Corporation. The authority for
the adoption of such resolution or resolutions is hereby expressly granted to
and vested in the Board of Directors of the Corporation and shall include
authority to specify the number of shares of any series of Preferred Stock and
to provide, as to any series of Preferred Stock, such voting powers, full or
limited, or no voting powers, and such designations, preferences and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions thereof, as are from time to time permitted under the General
Corporation Law of the State of Delaware.
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(e) INCORPORATOR. The name and mailing address of the incorporator are as
follows:
Alfred H. Hunt, III
10200 West York
Wichita, Kansas 67215
ARTICLE II - BOARD OF DIRECTORS
(a) NUMBER, ELECTION AND TERMS. Except as otherwise fixed by or pursuant
to the provisions of Article I hereof relating to the rights of the holders of
any class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation to elect additional directors under specified
circumstances, there shall be seven members of the Board of Directors of the
Corporation. The directors, other than those who may be elected by the holders
of any class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation, shall be divided or classified, with respect to
the time for which they severally hold office, into three classes, as nearly
equal in number as possible, one class to serve for a term expiring at the
annual meeting of shareholders held in 1998 (the "1998 Class"), another class to
serve for a term expiring at the annual meeting of shareholders to be held in
1999 (the "1999 Class"), and a third class to serve for a term expiring at the
annual meeting of shareholders to be held in 2000 (the "2000 Class"), with each
class to hold office until its successor is elected and qualified. At each
annual meeting of the shareholders of the Corporation, the successors of the
class of directors whose term expires at that meeting shall be elected to hold
office for a term expiring at the annual meeting of shareholders held in the
third year following the year of their election. The election of directors need
not be by written ballot. The names and mailing addresses of the persons who
are to serve as initial directors until their successors are elected and
qualified and their initial classifications are set forth below:
(i) The 1998 Class:
Donald L. Graf A. Duda & Sons, Inc.
1975 W. State Road 426
Oviedo, Florida 32765
Ralph R. Whitney, Jr. Hammond, Kennedy, Whitney & Co.
230 Park Avenue, Suite 1616
New York, New York 10169
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(ii) The 1999 Class:
John V. Grose Navair, Inc.
2450 Derry Road East, Hangar #2
Mississauga, Ontario
Canada L5S 1B2
Oscar L. Tang Reich & Tang
600 Fifth Avenue, 8th Floor
New York, New York 10020
(iii) The 2000 Class:
William W. Cogswell, III Alamo Corporation Center #1020
102 S. Tejon
Colorado Springs, CO 80903
Alfred H. Hunt, III IFR Systems, Inc.
10200 West York
Wichita, Kansas 67215
Notwithstanding the foregoing, and except as otherwise required by law,
whenever the holders of any one or more series of Preferred Stock shall have the
right, voting separately as a class, to elect one or more directors of the
Corporation, the terms of the director or directors elected by such holders
shall expire at the next succeeding annual meeting of shareholders.
(b) NOMINATION OF DIRECTOR CANDIDATES. Subject to the rights of holders
of any class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation, nominations for the election of directors may be
made by the Board of Directors or a nominating committee appointed by the Board
of Directors or by any shareholder entitled to vote in the election of directors
generally. However, any shareholder entitled to vote in the election of
directors generally may nominate one or more persons for election as directors
at a meeting only if written notice of such shareholder's intent to make such
nomination or nominations has been given, either by personal delivery or by
United States mail, postage prepaid, to the Secretary of the Corporation not
later than
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(i) with respect to an election to be held at an annual meeting of
shareholders not less than twenty (21) days in advance of such meeting, and
(ii) with respect to an election to be held at a special meeting of
shareholders for the election of directors, the close of business on the
seventh day following the date on which notice of such meeting is first given
to shareholders. Each such notice shall set forth: (a) the name and address
of the shareholder who intends to make the nomination and of the person or
persons to be nominated; (b) a representation that the shareholder is a
holder of record of stock of the Corporation entitled to vote at such meeting
and intends to appear in person or by proxy at the meeting to nominate the
person or persons specified in the notice; (c) a description of all
arrangements or understandings between the shareholder and each 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 shareholder; (d) such
other information regarding each nominee proposed by such shareholder as
would be required to be included in a proxy statement filed pursuant to the
proxy rules of the Security and Exchange Commission, had the nominee been
nominated, or intended to be nominated, by the Board of Directors; and (e)
the consent of each nominee to serve as a director of the Corporation if so
elected. The chairman of the meeting may refuse to acknowledge the
nomination of any person not made in compliance with the foregoing procedure.
(c) NEWLY CREATED DIRECTORSHIPS AND VACANCIES. Except as otherwise
provided for or fixed by or pursuant to the provisions of Article I hereof
relating to the rights of the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation to elect
directors under specified circumstances, newly created directorships resulting
from any increase in the number of directors and any vacancies on the Board of
Directors resulting from death, resignation, disqualification, removal or other
cause shall be filed by the affirmative vote a majority of the remaining
directors then in office, even though less than a quorum of the Board of
Directors. Any director elected in accordance with the preceding sentence shall
hold office for the remainder of the full term of the class of directors in
which the new directorship was created or the vacancy occurred and until such
director's successor shall have been elected and qualified. No decrease in the
number of directors constituting the Board of Directors shall shorten the term
of any incumbent director.
(d) REMOVAL. Notwithstanding any other provision of this Certificate or
the Bylaws of the Corporation (and not withstanding the fact that some lesser
percentage may be specified by law), this Certificate or the Bylaws of the
Corporation, and subject to the rights of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation to elect
directors under specified circumstances, any director may be removed from office
at any time, but only for cause and only by the affirmative vote of the holders
of 85% of the combined voting power of the
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then outstanding shares of stock entitled to vote generally in the election
of directors considered for this purpose as one class).
(e) MEETINGS OF DIRECTORS. Meetings of the Board of Directors may be
held upon the call of the President, or a majority of the members of the
Board of Directors, at any place within or without the State of Delaware,
upon forty-eight (48) hours' notice, specifying the time, place and general
purposes of the meeting, given to each director, either personally, by
mailing, or by telegram. At any meeting at which all directors are present,
notice of the time, place and purpose thereof shall be deemed waived; and
similar notice may likewise be waived by absent directors, either by written
instrument or by telegram.
(f) TAKE ACTION WITHOUT MEETING. Any action required or permitted to be
taken at any meeting of the Board of Directors, or any committee thereof, may be
taken without a meeting if a written consent thereof is signed by all members of
the Board, or of such committee, as the case may be, and such written consent or
consents are filed with the minutes of proceedings of such Board of Directors or
committee.
(g) QUORUM. At any meeting of the Board of Directors, the presence of a
majority of the whole Board of Directors shall constitute a quorum for the
transaction of any business, except the filling of vacancies in the Board of
Directors. As used in this Certificate, the term "whole Board" means the total
number of directors which the Corporation would have if there were no vacancies.
(h) COMPENSATION OF DIRECTORS. The Board of Directors is empowered and
authorized to fix and determine the compensation of directors for attendance at
meetings of the Board; and additional compensation for such additional services
any of such directors may perform for the Corporation.
(i) PARTICIPATION IN MEETINGS BY MEANS OF CONFERENCE TELEPHONE OR OTHER
SIMILAR COMMUNICATIONS EQUIPMENT. A member of the Board of Directors or of a
committee designated by the Board may participate in a meeting of the Board or
committee by means of a conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation by these means constitutes presence in person at the meeting.
(j) CHAIRMAN OF THE BOARD. The Chairman of the Board shall preside at all
meetings of the Board of Directors and of the shareholders of the Corporation
and shall perform all such additional services for the Corporation as, from time
to time, may be assigned to him by the Board of Directors.
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The Chairman of the Board shall serve without salary but shall be entitled to
compensation as hereinabove permitted.
(k) COMMITTEES.
(i) COMMITTEES OF THE BOARD OF DIRECTORS. The Board of Directors, by a
vote of a majority of the whole Board, may from time to time designate
committees of the Board, with such lawfully delegable powers and duties as it
thereby confers, to serve at the pleasure of the Board and shall, for those
committees and any others provided for herein, elect a director or directors to
serve as a member or members, designating, if it desires, other directors as
alternative members who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of any member of
any committee and any alternate member in his place, the member or members of
the committee present at the meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may by unanimous vote appoint another
member of the Board of Directors to act at the meeting in the place of the
absent or disqualified member.
(ii) CONDUCT OF BUSINESS. Each committee may determine the procedural
rules for meeting and conducting its business and shall act in accordance
therewith, except as otherwise provided herein or required by law. Adequate
provision shall be made for notice to members of all members of all meetings;
one-third of the members shall constitute a quorum unless the committee shall
consist of one or two members, in which event one member shall constitute a
quorum; and all matters shall be determined by a majority vote of the members
present. Action may be taken by any committee without a meeting if all members
thereof consent thereto in writing, and the writing or writings are filed with
the minutes of the proceedings of such committee.
(l) DIRECTOR'S LIABILITY. No member of the Board of Directors shall be
personally liable to the Corporation or its shareholders for monetary damages
for the breach of such director's fiduciary duty as a director, provided that
this section shall not eliminate the liability of such director (i) for any
breach of the director's duty of loyalty to the Corporation or its shareholders;
(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 Title 8 of
the Delaware Code relating to the liability of the director for unlawful
payments of dividends or unlawful stock purchases or redemptions; or (iv) for
any transaction from which the director derived an improper personal benefit.
This paragraph (1) shall not eliminate the
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liability of a director for acts or omissions occurring prior to the date
this paragraph (1) becomes effective.
(m) AMENDMENT, REPEAL, ETC. Notwithstanding anything contained in this
Certificate of Incorporation to the contrary, the affirmative vote of the
holders of at least 85% of the voting power of all shares of the Corporation
entitled to vote generally in the election of directors (considered for this
purpose as one class) shall be required to alter, amend, or repeal this Article
II or adopt any provision inconsistent with this Article II.
ARTICLE III - SHAREHOLDER ACTION
Any action required or permitted to be taken by the shareholders of the
Corporation must be effected at a duly called annual or special meeting of such
holders and may not be effected by any consent in writing by such holders.
Except as otherwise required by law and subject to the rights of the holders of
any class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation, special meetings of shareholders of the
Corporation may be called only by the Board of Directors pursuant to a
resolution approved by a majority of the whole Board. Notwithstanding anything
contained in this Certificate of Incorporation to the contrary, the affirmative
vote of the holders of at least 85% of the voting power of all shares of the
Corporation entitled to vote generally in the election of directors (considered
for this purpose as one class) shall be required to alter, amend, or repeal this
Article III or adopt any provision inconsistent with this Article III.
ARTICLE IV - OFFICERS
(a) NUMBER. The officers of the Corporation shall consist of the Chief
Executive Officer, a President, a Treasurer, a Secretary, and such Vice
Presidents and subordinate officers as may be chosen by the Board of Directors
at such time and in such manner and for such terms as the Board of Directors may
prescribe. Any number of offices may be held by the same person.
(b) ELECTION, TERM OF OFFICE, AND QUALIFICATIONS. The officers shall be
chosen annually by the Board of Directors. Each officer shall hold office until
his successor is chosen and qualified, or until his death, or until he shall
have resigned or shall have been removed in the manner hereinafter provided.
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(c) REMOVAL. Any officer may be removed, either with or without cause, at
any time, by the Board of Directors at any meeting thereof or by written
consent.
(d) RESIGNATIONS. Any officer may resign at any time by giving written
notice to the Board of Directors, or to the Chief Executive Officer, the
President or the Secretary. Such resignation shall take effect at the time
specified therein, and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
(e) THE CHIEF EXECUTIVE OFFICER. The Chief Executive Officer, who shall
be chosen from among the directors, shall have general supervision, direction
and control over the business and affairs of the Corporation, subject, however,
to the control of the Board of Directors. He shall, in general, perform all
duties incident to the office of the Chief Executive Officer and such other
duties as, from time to time, may be assigned to him by the Board of Directors.
(f) THE PRESIDENT. The President, who shall be chosen from among the
Board of Directors, shall have management responsibility for the operation of
the Corporation, subject, however, to the control of the Board of Directors and
the Chief Executive Officer. He shall, in general, perform all duties incident
to the office of the President and such other duties as, from time to time, may
be assigned to him by the Board of Directors or the Chief Executive Officer.
(g) THE VICE PRESIDENTS. The Vice President or each Vice President (if
one or more Vice Presidents be elected or appointed) shall have such powers and
perform such duties as the Board of Directors may, from time to time, prescribe
or as the Chief Executive Officer may, from time to time, delegate to him.
(h) THE SECRETARY. The Secretary shall keep or cause to be kept in books
provided for the purpose the minutes of the meetings of the shareholders and of
the Board of Directors; shall see that all notices are duly given in accordance
with the provisions of the Code of Bylaws and as required by law; shall be
custodian of the records; and, in general, shall perform all duties incident to
the office of Secretary and such other duties as may, from time to time, be
assigned to him by the Board of Directors or by the Chief Executive Officer.
(i) THE ASSISTANT SECRETARIES. The Assistant Secretary or each Assistant
Secretary (if one or more Assistant Secretaries be elected or appointed) shall
assist the Secretary in his duties and shall perform such other duties as the
Board of Directors may, from time to time, prescribe or the Chief Executive
Officer may, from time to time, delegate to him. At the request of the
Secretary or the
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Chief Executive Officer, any Assistant Secretary may, in the case of the
absence or inability to act of the Secretary, temporarily act in his place.
(j) THE TREASURER. The Treasurer shall be the financial officer of the
Corporation; shall have charge and custody of, and be responsible for, all funds
of the Corporation, and deposit all such funds in the name of the Corporation in
such banks, trust companies or other depositories as shall be selected by the
Board of Directors; shall receive, and give receipts for, monies due and payable
to the Corporation from any source whatsoever; and, in general, shall perform
all the duties incident to the office of Treasurer and such other duties as,
from time to time, may be assigned to him by the Board of Directors or by the
Chief Executive Officer.
(k) THE ASSISTANT TREASURERS. The Assistant Treasurer or each Assistant
Treasurer (if one or more Assistant Treasurers be elected or appointed) shall
assist the Treasurer in his duties, and shall perform such other duties as the
Board of Directors may, from time to time, prescribe or the Chief Executive
Officer may, from time to time, delegate to him. At the request of the
Treasurer or the Chief Executive Officer, the Assistant Treasurer may, in the
case of the absence or inability to act of the Treasurer, temporarily act in his
place.
(l) DELEGATION OF AUTHORITY. In case of the absence of any officer of the
Corporation, or for any other reason that the Board may deem sufficient, the
Board may delegate the powers or duties of such officer to any other officer or
to any director, for the time being, provided a majority of the entire Board
concurs therein.
(m) SALARIES. The salaries of the officers shall be fixed, from time to
time, by the Board of Directors. No officer shall be prevented from receiving
such salary by reason of the fact he is also a director of the Corporation.
ARTICLE V - INDEMNIFICATION OF
DIRECTORS, OFFICERS AND OTHERS
(a) INDEMNIFICATION IN GENERAL. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (including any action or suit by or in
the right of the Corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director,
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officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, to the maximum extent permitted under
the General Corporation Law of the State of Delaware.
(b) NON-EXCLUSIVE. The indemnification provided herein shall not be
deemed exclusive of any other rights to which those indemnified may be entitled
under any statute, by-law, agreement, vote of shareholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding the office or position entitling him to
indemnification, and shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
(c) INSURANCE. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such liability under the provisions of the General Corporation Law of the State
of Delaware or of this Certificate of Incorporation.
The Corporation's indemnity of any person who is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall be
reduced by any amounts such person may collect as indemnification (i) under any
policy of insurance purchased and maintained on his behalf by the Corporation or
(ii) from such other corporation, partnership, joint venture, trust or other
enterprise.
(d) AMENDMENT, REPEAL, ETC. Notwithstanding anything contained in this
Certificate of Incorporation to the contrary, the affirmative vote of the
holders of at least 85% of the voting power of all shares of the Corporation
entitled to vote generally in the election of directors (considered for this
purpose as one class) shall be required to alter, amend, or repeal this Article
V or adopt any provision inconsistent with this Article V.
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ARTICLE VI - PROVISIONS FOR REGULATIONS OF
BUSINESS AND CONDUCT OF AFFAIRS OF CORPORATION
(a) INTEREST OF DIRECTORS IN CONTRACTS. Any contract or other transaction
between the Corporation and one or more of its directors, or between the
Corporation and any firm of which one or more of its directors are members or
employees, or in which they are interested, or between the Corporation and any
corporation or association of which one or more of its directors are
shareholders, members, directors, officers, or employees, or in which they are
interested, shall be valid for all purposes, notwithstanding the presence of
such director or directors at the meeting of the Board of Directors of the
Corporation which acts upon, or in reference to, such contract or transaction,
and notwithstanding his or their participation in such action, provided (i) the
material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the
committee, and the Board or committee in good faith authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum; or
(ii) the material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the Shareholders entitled
to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the Shareholders; or (iii) the contract or transaction is
fair as to the Corporation as of the time it is authorized, approved or
ratified, by the Board of Directors, a committee or the Shareholders. Common or
interested directors may be counted in determining the presence of a quorum at a
meeting of the Board of Directors or of a committee which authorizes the
contract or transaction. This Section shall not be construed to invalidate any
contract or other transaction which would otherwise be valid under the common
and statutory law applicable thereto.
(b) AMENDMENT, REPEAL, ETC. Notwithstanding anything contained in this
Certificate of Incorporation to the contrary, the affirmative vote of the
holders of at least 85% of the voting power of all shares of the Corporation
entitled to vote generally in the election of directors (considered for this
purpose as one class) shall be required to alter, amend, or repeal this Article
VI or adopt any provision inconsistent with this Article VI.
ARTICLE VII - CERTAIN BUSINESS COMBINATIONS
(a) VOTE REQUIRED FOR CERTAIN BUSINESS COMBINATIONS.
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(1) HIGHER VOTE FOR CERTAIN BUSINESS COMBINATIONS. In addition to any
affirmative vote required by law or this Certificate of Incorporation, and
except as otherwise expressly provided in this Article VII:
(i) any merger or consolidation of the Corporation or any Subsidiary (as
hereinafter defined) with (a) any Interested Shareholder (as hereinafter
defined) or (b) any other corporation (whether or not itself an Interested
Shareholder) which is, or after such merger or consolidation would be, an
Affiliate (as hereinafter defined) of an Interested Shareholder; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or with any
Interested Shareholder or any Affiliate of any Interested Shareholder of any
assets of the Corporation or any Subsidiary having an aggregate Fair Market
Value of $1,000,000 or more; or
(iii) the insurance or transfer by the Corporation or any Subsidiary (in
one transaction or a series of transactions) of any securities of the
Corporation or any Subsidiary to any Interested Shareholder or any Affiliate of
any Interested Shareholder or any Affiliate of any Interested Shareholder in
exchange for cash, securities or other property (or a combination thereof)
having an aggregate Fair Market Value of $1,000,000 or more; or
(iv) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an Interested
Shareholder or any Affiliate of any Interested Shareholder; or
(v) any reclassification of securities (including any reverse stock split),
or recapitalization of the Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any other transaction (whether or
not with or into or otherwise involving an Interested Shareholder) which has the
effect, directly or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or indirectly owned by any
Interested Shareholder or any Affiliate of any Interested Shareholder;
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shall require the affirmative vote of (x) the holders of at least 85% of the
voting power of the then outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors (the "Voting Stock"),
considered for this purpose as one class; and (y) the holders of a majority of
the Voting Stock not owned by any Interested Shareholder or any Affiliate of any
Interested Shareholder or any Affiliate of any Interested Shareholder,
considered for this purpose as one class. It is understood that for purposes of
this Article VII, each share of the Voting Stock shall have the number of votes
granted to it pursuant to Article I of this Certificate of Incorporation. Such
affirmative voting requirements shall be fulfilled notwithstanding the fact that
no vote may be required, or that a lesser percentage may be specified, by law or
in any agreement with any national securities exchange or otherwise.
(2) DEFINITION OF "BUSINESS COMBINATION." The term "Business Combination"
as used in this Article VII shall mean any transaction which is referred to in
any one or more of clauses (i) through (v) of paragraph (1) of this Section (a).
(b) WHEN HIGHER VOTE IS NOT REQUIRED. The provisions of Section (a) of
this Article VII shall not be applicable to any particular Business Combination,
and such Business Combination shall require only such affirmative vote as is
required by law and any other provision of this Certificate of Incorporation, if
all of the conditions specified in either of the following paragraphs (1) and
(2) are met:
(1) APPROVAL BY DISINTERESTED DIRECTORS. The Business Combination shall
have been approved by a majority of the Disinterested Directors (as hereinafter
defined).
(2) PRICE AND PROCEDURE REQUIREMENTS. All of the following conditions
shall have been met:
(i) The aggregate amount of the cash and the Fair Market Value (as
hereinafter defined) as of the date of the consummation of the Business
Combination of consideration other than cash to be received per share by holders
of Common Stock in such Business Combination shall be at least equal to the
higher of the following:
(A) (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees) paid by
the Interested Shareholder for any shares of Common Stock acquired by it (1)
within the two-year period immediately prior to the first public announcement
of the proposal of
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the Business Combination (the "Announcement Date") or (2) in the transaction
in which it became an Interested Shareholder, whichever is higher; and
(B) the Fair Market Value per share of Common Stock on the Announcement
Date or on the date on which the Interested Shareholder became an Interested
Shareholder (such latter date is referred to in this Article VII as the
"Determination Date"), whichever is higher.
(ii) The aggregate amount of the cash and the Fair Market Value as of the
date of the consummation of the Business Combination of consideration other than
cash to be received per share by holders of shares of any other class of
outstanding Voting Stock shall be at least equal to the highest of the following
(it being intended that the requirements of this paragraph (2) (ii) shall be
required to be met with respect to every class of outstanding Voting Stock,
whether or not the Interested Shareholder has previously acquired any shares of
a particular class of Voting Stock):
(A) (if applicable) the highest per share price (including any brokerage
commissions, transfer taxes and soliciting dealers' fees) paid by the Interested
Shareholder for any shares of such class of Voting Stock acquired by it (1)
within the two-year period immediately prior to the Announcement Date or (2) in
the transaction in which it became an Interested Shareholder, whichever is
higher;
(B) (if applicable) the highest preferential amount per share to which the
holders of shares of such class of Voting Stock are entitled in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation; and
(C) the Fair Market Value per share of such class of Voting Stock on the
Announcement Date or on the Determination Date, whichever is higher.
(iii) The consideration to be received by holders of a particular class of
outstanding Voting Stock (including Common Stock) shall be in cash or in the
same form as the Interested Shareholder has previously paid for shares of such
class of Voting Stock. If the Interested Shareholder has paid for shares of any
class of Voting Stock with varying forms of consideration, the form of
consideration for such class of
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Voting Stock shall be either cash or the form used to acquire the largest
number of shares of such class of Voting Stock previously acquired by it.
(iv) After such Interested Shareholder has become an Interested
Shareholder and prior to the consummation of such Business Combination: (a)
except as approved by a majority of the Disinterested Directors, there shall
have been no failure to declare and pay at the regular date therefor any full
quarterly dividends (whether or not cumulative) on the outstanding Preferred
Stock; (b) there shall have been (1) no reduction in the annual rate of
dividends paid on the Common Stock (except a necessary to reflect any
subdivision of the Common Stock), except as approved by a majority of the
Disinterested Directors, and (2) an increase in such annual rate of dividends as
necessary to reflect 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 is approved by a majority of the
Disinterested Directors; and (c) such Interested Shareholder shall not have
become the beneficial owner of any additional shares of Voting Stock except as
part of the transaction which results in such Interested Shareholder becoming an
Interested Shareholder.
(v) After such Interested Shareholder has become an Interested
Shareholder, such Interested Shareholder shall not have received the benefit,
directly or indirectly (except proportionately as a shareholder), of any loans,
advances, guarantees, pledges or other financial assistance or any tax credits
or other tax advantages provided by the Corporation, whether in anticipation of
or in connection with such Business Combination or otherwise.
(vi) 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 shareholders
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) CERTAIN DEFINITIONS. For the purposes of this Article VII:
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(1) A "person" shall mean any individual, firm, corporation or other
entity.
(2) "Interested Shareholder" shall mean any person (other than the
Corporation or any Subsidiary) who or which:
(i) is the beneficial owner, directly or indirectly, of more than 20% of
the voting power of the outstanding Voting Stock; or
(ii) is an Affiliate of the Corporation and at any time within the
two-year period immediately prior to the date in question was the beneficial
owner, directly or indirectly, of 20% or more of the voting power of the then
outstanding Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to any shares of Voting
Stock which were at any time within the two-year period immediately prior to the
date in question beneficially owned by any Interested Shareholder, 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.
(3) A person shall be a "beneficial owner" of any Voting Stock:
(i) which such person or any of its Affiliates or Associates (as
hereinafter defined) beneficially owns, directly or indirectly; or
(ii) 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 pursuant to any agreement, arrangement or
understanding; or
(iii) 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.
(4) For the purposes of determining whether a person is an Interested
Shareholder pursuant to paragraph (2) of this Section (c), the number of shares
of Voting Stock deemed
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to be outstanding shall include shares deemed owned through application of
paragraph (3) of this Section (c) but shall not include any other shares of
Voting Stock which may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or options, or
otherwise.
(5) "Affiliate" or "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 November 30, 1985.
(6) "Subsidiary" means any corporation of which a majority of any class of
equity security is owned, directly or indirectly, by the Corporation; PROVIDED,
HOWEVER, THAT for the purposes of the definition of Interested Shareholder set
forth in paragraph (2) of this Section (c), the term "Subsidiary" shall mean
only a corporation of which a majority of each class of equity security is
owned, directly or indirectly, by the Corporation.
(7) "Disinterested Director" means any member of the Board of Directors of
the Corporation (i) who is named as a director in Article II of this Certificate
of Incorporation; or (ii) who subsequently became a director of the Corporation
and who either (x) was elected to fill a vacancy by a majority of the
Disinterested Directors remaining after such vacancy was created, or (y) was
nominated for election by the Corporation's shareholders by a vote of a majority
of the Disinterested Directors then on the Board of Directors.
(8) "Fair Market Value" means: (i) 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 on 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 such
Exchange, on the principal United States securities exchange registered under
the Securities Exchange Act of 1934 on which such stock is listed, or, if such
stock is not listed on any such exchange, the highest closing 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
Quotation 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 such
stock as determined by the Board in good faith; and (ii) 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 the Board in good faith.
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(9) In the event of any Business Combination in which the Corporation
survives, the phrase "other consideration to be received" as used in paragraphs
(2)(i) and (ii) of Section (b) of this Article VII shall include the share of
Common Stock and/or the shares of any other class of outstanding Voting Stock
retained by the holders of such shares.
(d) POWERS OF THE BOARD OF DIRECTORS. A majority of the directors of the
Corporation shall have the power and duty to determine for the purpose of this
Article VII, on the basis of information known to them after reasonable inquiry,
(i) whether a person is an Interested Shareholder, (ii) the number of shares of
Voting Stock beneficially owned by any person, (iii) whether a person is an
Affiliate or Associate of another, (iv) whether the assets which are the subject
of any Business Combination have, or the consideration to be received for the
issuance or transfer of securities by the Corporation or any Subsidiary in any
Business Combination has, an aggregate Fair Market Value of $1,000,000 or more.
(e) NO EFFECT ON FIDUCIARY OBLIGATIONS OF INTERESTED SHAREHOLDERS.
Nothing contained in this Article VII shall be construed to relieve any
Interested Shareholder from any fiduciary obligation imposed by law.
(f) AMENDMENT, REPEAL, ETC. Notwithstanding any other provisions of this
Certificate of Incorporation or the Bylaws of the Corporation (and
notwithstanding the fact that a lesser percentage may be specified by law, this
Certificate of Incorporation or the Bylaws of the Corporation), the affirmative
vote of the holders of 85% or more the outstanding Voting Stock (considered for
this purpose as one class), shall be required to alter, amend, or repeal this
Article VII or adopt any provision consistent with this Article VII.
ARTICLE VIII - BYLAW AMENDMENTS
The Board of Directors shall have power to make, alter, amend and repeal
the Bylaws of the Corporation. Any Bylaws made by the Board of Directors under
the powers conferred hereby may be altered, amended or repealed by the Directors
or by the shareholders upon the affirmative vote of the holders of at least 85%
of the voting power of all the shares of the Corporation entitled to vote
generally in the election of directors, voting together as a single class.
Notwithstanding anything contained in this Certificate of Incorporation to the
contrary, the affirmative vote of the holders of 85% or more of the outstanding
Voting Stock (considered for this purpose as one class) shall be required to
alter, amend, or repeal this Article VIII or adopt any provision inconsistent
with this Article VIII.
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FOURTH: The capital of the Corporation is not being reduced by this
amendment.
IN WITNESS WHEREOF, IFR Corporation has caused this Certificate to be
signed and attested by its duly authorized officer this _____ day of January,
1998.
IFR HOLDING CORPORATION
By:______________________________________
Alfred H. Hunt, III, President
ATTEST:
_________________________
Charles J. Woodin, Secretary
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EXHIBIT 4
ASSUMPTION OF RIGHTS AGREEMENT
THIS ASSUMPTION OF RIGHTS AGREEMENT, made and entered into and to be
effective as of January 30, 1998, by and between IFR SYSTEMS, INC., Delaware
corporation ("IFR"), and HARRIS TRUST & SAVINGS BANK (the "Rights Agent").
RECITALS
A. IFR Instruments, Inc., a Delaware corporation formerly named IFR
Systems, Inc. (the "Company"), and the Rights Agent are parties to a Rights
Agreement dated as of February 28, 1989 (the "Rights Agreement").
B. Pursuant to an Agreement and Plan of Merger of IFR Systems, Inc., with
IFR Merger Corporation (the "Merger Agreement") which is also effective as of
January 30, 1998, the Company effected a corporate restructuring pursuant to
Section 251(g) of the Delaware General Corporation Law (the "DGCL") whereby IFR
became a holding company and the Company became a wholly owned subsidiary of
IFR, and all of the stockholders of the Company and holders of Rights under the
Rights Agreement ("Rights") automatically became stockholders of IFR and the
Rights became obligations of IFR rather than the Company.
C. The Merger Agreement provides for IFR to be substituted for the
Company as a party to the Rights Agreement and to assume all of the Company's
obligations under the Rights Agreement and the Board of Directors of IFR has
duly adopted a resolution to such effect.
D. The parties desire to execute a written document evidencing such
assumption.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and the
covenants contained herein, the parties agree as follows:
1. ASSUMPTION AND SUBSTITUTION. IFR is hereby substituted for the
Corporation as a party to the Rights Agreement, and IFR hereby irrevocably
assumes and agrees to perform and discharge each and every obligation of the
Company under the Rights Agreement, including, without limitation, all Rights
now in existence under the Rights Agreement.
<PAGE>
2. RIGHTS AGREEMENT IN EFFECT. Except for the substitution of parties
effected hereby, the Rights Agreement continues in full force and effect without
modification.
IN WITNESS WHEREOF, the parties have caused this Assumption of Rights
Agreement to be executed and effective as of the 30th day of January, 1998.
______________________________________
Alfred H. Hunt, III, President
ATTEST:
_______________________________
Charles J. Woodin, Secretary
