Exhibit 3.43
CERTIFICATE OF INCORPORATION
OF
SPC ACQUISITION CORP.
FIRST: The name of the corporation is:
SPC ACQUISITION CORP.
SECOND: The address of its registered office in the State of Delaware is
1013 Centre Road, in the City of Wilmington, County of New Castle, 19805. The
name of its registered agent at such address is Corporation Service Company.
THIRD: 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.
FOURTH: The total number of shares of capital stock which the corporation
shall have authority to issue is Two Million Four Hundred Thousand (2,400,000),
consisting solely of:
Two Million (2,000,000) shares of Class A Voting Common Stock, $0.01 par
value per share (the "Class A Common Stock"); and
Four Hundred Thousand (400,000) shares of Class B Non-Voting Common Stock,
$0.01 par value per share (the "Class B Common Stock").
As used in this Article Fourth, "Common Stock" means, collectively,
the Class A Common Stock and the Class B Common Stock.
The following is a statement of the designations, powers,
preferences and rights, and the qualifications, limitations and restrictions, in
respect of each class of capital stock of the corporation:
1. Dividend and Other Rights of Common Stock.
(a) Ratable Treatment. Except as specifically otherwise provided herein,
all shares of Common Stock shall be identical and shall entitle the holders
thereof to the same rights and privileges. The corporation shall not subdivide
or combine any shares of Common Stock, or pay any dividend or retire any share
or make any other distribution on any share of Common Stock, or accord any other
payment, benefit or preference to any share of Common Stock, except by extending
such subdivision, combination, distribution, payment, benefit or preference
equally to all shares of Common Stock. If dividends are declared which are
payable in shares of Common Stock, such dividends shall be payable in shares of
Class A Common Stock to holders of Class A Common Stock and in shares of Class B
Common Stock to holders of Class B Common Stock.
(b) Dividends. The holders of Common Stock shall be entitled to
dividends out of funds legally available therefor, when declared by the Board of
Directors in respect of Common
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Stock, and, upon any voluntary or involuntary liquidation, dissolution or
winding up of the corporation, to share ratably in the assets of the corporation
available for distribution to the holders of Common Stock.
2. Voting Rights of Common Stock.
(a) Class A Common Stock. Except as otherwise provided by law, the
holders of Class A Common Stock shall have full voting rights and powers to vote
on all matters submitted to stockholders of the corporation for vote, consent or
approval, and each holder of Class A Common Stock shall be entitled to one vote
for each share of Class A Common Stock held of record by such holder.
(b) Class B Common Stock. Except as otherwise provided by law, the
holders of Class B Common Stock shall have no right to vote on any matter
submitted to stockholders of the corporation for vote, consent or approval, and
the Class B Common Stock shall not be included in determining the number of
shares voting or entitled to vote on such matters.
3. Mandatory Conversion of Class B Stock.
(a) Conversion Event. Each share of Class B Common Stock then
outstanding shall be converted automatically into one share of Class A Common
Stock upon the closing of an initial public offering of Class A Common Stock
pursuant to a registration statement filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended.
(b) Conversion Procedure. The corporation will give each holder of
record of shares of Class B Common Stock written notice in advance of, or
promptly after, any such conversion, to the address of such holder appearing in
the corporation's stock records. On the conversion date, all rights with respect
to the Class B Common Stock so converted will terminate, except only the rights
of the holders thereof, upon surrender of their certificate or certificates
therefor, to receive certificates for the number of shares of Class A Common
Stock into which such Class B Common Stock has been converted. Certificates
surrendered for conversion shall be duly endorsed or assigned in blank, with
signatures guaranteed if reasonably requested by the corporation, and
accompanied by instructions stating the name or names (with addresses) and
denominations in which the certificate or certificates for the Class A Common
Stock will be issued, and instructions for delivery thereof. All certificates
evidencing shares of Class B Common Stock which are converted into shares of
Class A Common Stock in accordance with the provisions hereof shall, from and
after the date of such conversion, be deemed to have been retired and canceled
and the shares of Class B Common Stock represented thereby converted into Class
A Common Stock for all purposes, notwithstanding the failure of the holder or
holders thereof to surrender such certificates prior to or after such date.
Promptly after the date of such conversion and the surrender of the certificate
or certificates for Class B Common Stock, the corporation shall cause to be
issued and delivered to such holder, or on his or its written order, a
certificate or certificates for the number of shares of Class A Common Stock
issuable upon such conversion in accordance with the provisions hereof.
(c) Reservation of Shares. The corporation will at all times reserve and
keep available out of its authorized but unissued shares of Class A Common Stock
or its treasury
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shares of Class A Common Stock, solely for the purpose of issuance upon the
conversion of the Class B Common Stock as provided in this Section, such number
of shares of Class A Common Stock as are then issuable upon conversion of all
then outstanding shares of Class B Common Stock into shares of Class A Common
Stock. Notwithstanding the foregoing, if, at any time, there shall be an
insufficient number of authorized or treasury shares of Class A Common Stock
available for issuance upon conversion of Class B Common Stock, the corporation
will take all action necessary to propose and recommend to the stockholders of
the corporation that this Certificate of Incorporation be amended to authorize
additional shares in an amount sufficient to provide adequate reserves of shares
for issuance upon such conversion, including the diligent solicitation of votes
and proxies to vote in favor of such an amendment. All shares of Class A Common
Stock which are issuable upon conversion hereunder will, when issued, be duly
and validly issued, fully paid and nonassessable.
(d) Taxes and Costs. The issuance of certificates for shares of Class A
Common Stock upon conversion of shares of Class B Common Stock will be made
without charge to any original holder of any shares of Class B Common Stock for
any issuance tax in respect thereof, or other cost incurred by the corporation
in connection with such conversion and the related issuance of Class A Common
Stock, provided that the corporation will not be required to pay any such taxes
or costs which may be payable in respect of any such conversion by any other
person or in respect of any transfer involved in the issuance and delivery of
any certificate in a name other than that of the registered holder of the shares
converted.
FIFTH: The name and mailing address of the sole incorporator is as
follows:
NAME MAILING ADDRESS
Steven M. Taibl, Esq. c/o Bingham Dana LLP
150 Federal Street
Boston, Massachusetts 02110
SIXTH: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the corporation and for defining
and regulating the powers of the corporation and its directors and stockholders
and are in furtherance and not in limitation of the powers conferred upon the
corporation by statute:
(a) The election of directors need not be by written ballot.
(b) The Board of Directors shall have the power and authority:
(1) to adopt, amend or repeal by-laws of the corporation, subject
only to such limitation, if any, as may be from time to time
imposed by law or by the by-laws; and
(2) to the full extent permitted or not prohibited by law, and
without the consent of or other action by the stockholders, to
authorize or create mortgages, pledges or other liens or
encumbrances upon any or all of the assets, real, personal or
mixed, and franchises of the corporation, including
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after-acquired property, and to exercise all of the powers of
the corporation in connection therewith; and
(3) subject to any provision of the by-laws, to determine whether,
to what extent, at what times and places and under what
conditions and regulations the accounts, books and papers of
the corporation (other than the stock ledger), or any of them,
shall be open to the inspection of the stockholders, and no
stockholder shall have any right to inspect any account, book
or paper of the corporation except as conferred by statute or
authorized by the by-laws or by the Board of Directors.
SEVENTH: No director of the corporation shall be personally liable to the
corporation or to any of its stockholders for monetary damages for breach of
fiduciary duty as a director, notwithstanding any provision of law imposing such
liability; provided, however, that to the extent required from time to time by
applicable law, this Article Seventh shall not eliminate or limit the liability
of a director, to the extent such liability is 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
Title 8 of the Delaware Code, or (iv) for any transaction from which the
director derived an improper personal benefit. No amendment to or repeal of this
Article Seventh shall apply to or have any effect on the liability or alleged
liability of any director for or with respect to any acts or omissions of such
director occurring prior to the effective date of such amendment or repeal.
THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, does make this certificate, hereby declaring and certifying
that this is my act and deed and the facts stated herein are true, and
accordingly have hereunto set my hand this 27th day of March, 2000.
/s/ Steven M. Taibl
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Steven M. Taibl
Sole Incorporator
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
SPC ACQUISITION CORP.
Pursuant to Section 242 of the Delaware General Corporation Law it is
hereby certified that:
1. The name of the corporation(hereinafter called the "corporation")is
SPC Acquisition Corp.
2. The certificate of incorporation of the corporation is hereby
amended by striking out Article FIRST thereof and by substituting in lieu of
said Article the following new Article:
"Article First: The name of the Corporation is
SpeakerCraft, Inc."
3. The amendment of the certificate of incorporation herein certified
has been duly adopted in accordance with the provisions of Section 242 of the
General Corporation Law of the State of Delaware.
Signed on April 4, 2000
/s/ James T. Munn
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Name: James T. Munn
Title: President