Exhibit 3(i)(b)
CERTIFICATE OF INCORPORATION
OF
MERRIMAC-DELAWARE, INC.
FIRST: The name of the Corporation is Merrimac-Delaware, Inc.
SECOND: The address of the Corporation's registered office in the
State of Delaware is 2711 Centerville Road #400, Wilmington, County of New
Castle, Delaware 19808. The name of the Corporation's registered agent at such
address is Corporation Service Company.
THIRD: The nature of the business or purposes to be conducted or
promoted are to engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of the State of Delaware.
FOURTH: A. The total number of shares of all classes of stock
that the Corporation shall have authority to issue is Twenty One Million
(21,000,000), consisting of Twenty Million (20,000,000) shares of common stock,
par value One Cent ($.01) per share (the "Common Stock") and One Million
(1,000,000) shares of preferred stock, par value One Cent ($.01) per share (the
"Preferred Stock").
B. The board of directors is authorized, subject to any
limitations prescribed by law, to provide for the issuance of shares of
Preferred Stock in series, and by filing a certificate pursuant to the
applicable law of the State of Delaware (such certificate being hereinafter
referred to as a "Preferred Stock Designation"), to establish from time to time
the number of shares to be included in each such series, and to fix the
designation, powers, preferences, and rights of the shares of each such series
and any qualifications, limitations or restrictions thereof. The number of
authorized shares of the Preferred Stock may be increased or decreased (but not
below the number of shares thereof then outstanding) by the affirmative vote of
the holders of a majority of the Common Stock, without a vote of the holders of
the Preferred Stock, or of any series thereof, unless a vote of any such holders
is required pursuant to the terms of any Preferred Stock Designation.
C. Each outstanding share of Common Stock shall entitle the
holder thereof to one vote on each matter properly submitted to the stockholders
of the Corporation for their vote; provided, however, that, except as otherwise
required by law, holders of Common Stock shall not be entitled to vote on any
amendment to this Certificate of Incorporation (including any Certificate of
Designations relating to any series of Preferred Stock) that relates solely to
the terms of one or more outstanding series of Preferred Stock if the holders of
such affected series are entitled, either separately or together as a class with
the holders of one or more other such series, to vote thereon by law or pursuant
to this Certificate of Incorporation (including any Certificate of Designations
relating to any series of Preferred Stock).
FIFTH: A. The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors. In addition to the
powers and authority expressly conferred upon them by statute or by this
Certificate of Incorporation or the By-laws of the Corporation, the directors
are hereby empowered to exercise all such powers and do all such acts and things
as may be exercised or done by the Corporation.
B. The Board of Directors is expressly authorized to adopt, amend
or repeal the By-laws of the Corporation. Any adoption, amendment, or repeal of
the By-laws of the Corporation by the Board of Directors shall require the
approval of a majority of the Whole Board. The stockholders shall also have
power to adopt, amend or repeal the By-laws of the Corporation; provided,
however, that, in addition to any vote of the holders of any class or series of
stock of the Corporation required by law or by this Certificate of
Incorporation, the affirmative vote of the holders of at least eighty percent
(80%) of the voting power of all of the then-outstanding shares of the capital
stock of the Corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be required to adopt, amend
or repeal any provision of the By-laws of the Corporation. For purposes of this
Certificate of Incorporation, the term "Whole Board" shall mean the total number
of authorized directors, whether or not there exist any vacancies in previously
authorized directorships.
SIXTH: Meetings of stockholders shall be held at such place,
within or without the State of Delaware, as may be designated by or in the
manner provided in the By-laws, or, if not so designated or provided, at the
registered office of the Corporation in the State of Delaware. Elections of
directors need not be by written ballot unless and to the extent that the
By-laws so provide.
SEVENTH: No director of the Corporation shall be personally
liable to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director; provided, however, that the foregoing clause shall
not apply to any liability of a director to the extent provided by applicable
law (i) for any breach of the director's duty of loyalty to the Corporation or
its stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the Delaware General Corporation Law or (iv) for any transaction from which the
director derived an improper personal benefit. If the Delaware General
Corporation Law is amended to authorize corporate action further eliminating or
limiting the personal liability of directors, then the liability of directors of
the Corporation shall be eliminated or limited to the fullest extent permitted
by the Delaware General Corporation Law, as so amended.
Neither the amendment nor repeal of this Article SEVENTH, nor the
adoption of any provision of this Certificate of Incorporation inconsistent with
this Article SEVENTH, shall adversely affect any right or protection of a
director of the
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Corporation existing at the time of such amendment, repeal or adoption of an
inconsistent provision.
EIGHTH: A. Subject to the rights of the holders of any series of
Preferred Stock to elect additional directors under specified circumstances, the
number of directors shall be fixed from time to time exclusively by the Board of
Directors pursuant to a resolution adopted by the affirmative vote of a majority
of the Whole Board, provided that the number of directors of the Corporation
shall not be less than three (3). If the number of directors is at any time
reduced by the Board of Directors, in no case shall such a reduction shorten the
term of any incumbent director. The directors, other than those who may be
elected by the holders of any series of Preferred Stock under specified
circumstances, shall be divided into three classes, designated Class I, Class II
and Class III, with the term of office of Class I to expire at the Corporation's
first annual meeting of stockholders, the term of office of Class II to expire
at the Corporation's second annual meeting of stockholders and the term of
office of Class III to expire at the Corporation's third annual meeting of
stockholders. At each annual meeting of stockholders, directors elected to
succeed those directors whose terms expire shall be elected for a term of office
to expire at the third succeeding annual meeting of stockholders after their
election. A director shall hold office until the annual meeting for the year in
which his term expires and until his successor shall be elected and shall
qualify, subject, however, to prior death, resignation, retirement,
disqualification or removal for cause. Subject to the rights of the holders of
any series of the Preferred Stock then outstanding, any vacancy occurring of the
Board of Directors, including any vacancy resulting from an increase in the
authorized number of directors, shall only be filled by a majority of the Board
of Directors then in office, although less than a quorum (and not by
stockholders), or by a sole remaining director. Any director elected to fill a
vacancy not resulting from an increase in the number of directors shall have the
same remaining term as that of his predecessor.
Notwithstanding anything to the contrary in the foregoing,
whenever the holders of any one or more classes or series of stock issued by the
Corporation shall have the right, voting separately by class or series, to elect
directors at an annual or special meeting of stockholders, the election, term of
office, filling of vacancies and other features of such directorships shall be
governed by the provisions of this Certificate of Incorporation (including any
Preferred Stock Designation) applicable thereto, unless expressly provided
otherwise by the resolutions of the Board of Directors providing for the
creation of such class or series.
B. Advance notice of stockholder nominations for the elections of
directors and of business to be brought by stockholders before any meeting of
the stockholders of the Corporation shall be given in the manner provided by the
By-laws of the Corporation.
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C. Subject to the rights of the holders of any series of the
Preferred Stock then outstanding, any director, or the entire Board of
Directors, may be removed from office at any time, but only for cause and only
by the affirmative vote of the holders of at least a majority of the voting
power of all of the then outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors, voting together as a
single class.
NINTH: The Board of Directors is expressly authorized to cause
the Corporation to issue rights pursuant to Section 157 of the Delaware General
Corporation Law, including issuance of any such rights to the stockholders, and,
in that connection, to enter into any agreements necessary or convenient for
such issuance, and to enter into other agreements necessary and convenient to
the conduct of the business of the corporation.
TENTH: Any action permitted or required to be taken by the
stockholders of the Corporation must be effected at a duly called annual or
special meeting of stockholders and may not be effected by any consent in
writing by stockholders.
ELEVENTH: The Corporation reserves the right to amend, alter or
repeal any provision contained in this Certificate of Incorporation in the
manner now or hereafter prescribed by the laws of the State of Delaware, and all
rights of stockholders herein are granted subject to this reservation.
TWELFTH: The name and mailing address of the sole incorporator
are as follows:
Name Mailing Address
---- ---------------
Maksim Goldman Chadbourne & Parke LLP
30 Rockefeller Plaza
New York, New York 10112
THE UNDERSIGNED, being the sole incorporator above named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, has signed this instrument this 14th day of December, 2000.
/s/ Maksim Goldman
------------------------------
Maksim Goldman
Sole Incorporator
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CERTIFICATE OF MERGER
OF
MERRIMAC INDUSTRIES, INC.
WITH AND INTO
MERRIMAC-DELAWARE, INC.
------------------------
Pursuant to Section 252(c) of the General
Corporation Law of the State of Delaware
-------------------------
The undersigned corporation, organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the "DGCL"),
DOES HEREBY CERTIFY THAT:
FIRST: The name and state of incorporation of each of the
constituent corporations in the merger (the "Constituent Corporations") are as
follows:
Name State of Incorporation
---- ----------------------
MERRIMAC-DELAWARE, INC. Delaware
MERRIMAC INDUSTRIES, INC. New Jersey
SECOND: An Agreement and Plan of Merger dated as of December 18,
2000 (the "Merger Agreement") between Merrimac Industries, Inc., a New Jersey
corporation ("Merrimac NJ"), and Merrimac-Delaware, Inc., a Delaware corporation
and a wholly-owned subsidiary of Merrimac NJ ("Merrimac DE"), providing for the
merger of Merrimac NJ with and into Merrimac DE (the "Merger"), has been
approved, adopted, certified, executed and acknowledged by each of the
Constituent Corporations in accordance with the requirements of Section 252(c)
of the DGCL, and the Merger Agreement has been approved and adopted by written
consent of the sole stockholder of Merrimac DE in accordance with Section 228 of
the DGCL.
THIRD: Merrimac DE shall be the surviving corporation of the
Merger (the "Surviving Corporation"). The Certificate of Incorporation of
Merrimac DE shall be amended as a result of the Merger to change its name to
"Merrimac Industries, Inc."
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Consequently, the name of the Surviving Corporation shall be "Merrimac
Industries, Inc."
FOURTH: The Certificate of Incorporation of Merrimac DE as in
effect at the date of the Merger is hereby amended by amending Article FIRST
thereof to change the name of the Surviving Corporation to "Merrimac Industries,
Inc." and, as amended, shall be the Certificate of Incorporation of the
Surviving Corporation, until altered, amended or repealed thereafter in
accordance with the provisions thereof and of applicable law.
FIFTH: The executed Merger Agreement is on file at an office of
the Surviving Corporation located at 41 Fairfield Place, West Caldwell, New
Jersey 07006-6287, Attention: Office of the Secretary.
SIXTH: A copy of the Merger Agreement will be furnished by the
Surviving Corporation, upon request and without cost, to any stockholder of
either Constituent Corporation.
SEVENTH: The authorized capital stock of Merrimac NJ consists of
5,000,000 shares of common stock of the par value of $.50 per share.
IN WITNESS WHEREOF, this Certificate of Merger has been executed
on this 21st day of February, 2001.
MERRIMAC-DELAWARE, INC.
By: /s/ Mason N. Carter
--------------------------------------------
Name: Mason N. Carter
Title: Chairman of the Board,
President and Chief Executive Officer
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