Exhibit 3.9
CERTIFICATE OF INCORPORATION
OF
SPD HOLDINGS, INC.
The undersigned, for the purpose of forming a corporation pursuant to the
provisions of the General Corporation Law of the State of Delaware ("GCL"),
does hereby certify as follows:
FIRST: The name of the corporation is SPD Holdings, Inc. (hereinafter
referred to as the "Corporation").
SECOND: The address of the Corporation's registered office in the State
of Delaware is 1013 Centre Road, City of Wilmington, County of New Castle,
Delaware 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 GCL.
FOURTH: (A) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 2,000,000 shares divided into the
following classes: (i) 1,000,000 shares of Common Stock with a par value of
$0.01 per share; and (ii) 1,000,000 shares of Preferred Stock with a par value
$0.01 per share.
(B) The Board of Directors of the Corporation is authorized, subject to
the limitations prescribed by law and the provisions of this Article, to
provide for the issuance, from time to time in one or more series, or any
number of shares of Preferred Stock, and by filing a certificate of
designations pursuant to Section 151 of the GCL, to establish the number of
shares to be included in each series of Preferred Stock and to fix the powers,
designations, preferences, relative rights, qualifications and restrictions
thereof. The authority of the Board of Directors with respect to each series of
Preferred Stock shall include, but not be limited to, a determination of the
following:
(a) The number of shares of Preferred Stock constituting that
series and the distinctive designation of that series;
(b) The dividend rate on the shares of Preferred Stock of that
series, whether dividends shall be cumulative, and if so, from which
date or dates, and whether they shall be payable in preference to, or
in such
relation to, the dividends payable on any other class or classes or
of any other series of the capital stock of the Corporation;
(c) Whether that series shall have any voting rights in addition
to those provided by law, and if so, the terms of such additional
voting rights;
(d) Whether that series shall have conversion or exchange
privileges, and if so, the terms and conditions of such conversion or
exchange, including provision for adjustment of the conversion or
exchange rate in such events as the Board of Directors shall
determine;
(e) Whether or not the shares of that series shall be
redeemable, and if so, the terms and conditions of such redemption,
including the manner of selecting shares for redemption if less than
all of the shares are to be redeemed, the date or dates upon or after
which they shall be redeemable and the type and amount of
consideration payable per share in case of redemption, which amount
may vary under different conditions and at different redemption
dates;
(f) Whether that series shall be entitled to the benefit of a
sinking fund to be applied to the purchase or redemption of shares of
that series, and if so, the terms and amount of such sinking fund;
(g) The right of shares of that series to the benefit of
conditions and restrictions upon the creation of indebtedness of the
Corporation or any subsidiary, upon the issuance of any additional
stock (including additional shares of such series or of any other
series) and upon the payment of dividends or the making of other
distributions on, and the purchase or redemption or other acquisition
by the Corporation or any subsidiary of, any outstanding stock of the
Corporation;
(h) The rights of the shares of that series in the event of a
voluntary or involuntary liquidation, dissolution or winding up of
the Corporation and whether such rights shall be in preference to, or
in another relation to, the comparable rights of any other class or
classes or series of capital stock; and
(i) Any other relative, participating, optional or other special
rights, qualifications, limitations or restrictions of that series.
FIFTH: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the Corporation, and for further
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definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
I. The election of directors need not be by written ballot, unless the
By-laws so provide.
II. The Board of Directors shall have the power, without the assent or
vote of the stockholders, to make, alter, amend, change, add to or repeal the
By-laws of the Corporation in accordance with Article XI of the By-laws.
SIXTH: The Corporation shall indemnify and advance expenses to, to the
fullest extent permitted by Section 145 of the GCL, as amended from time to
time, each person made or threatened to be made a party of an action or
proceeding, whether criminal, civil, administrative or investigative, by
reason of the fact that such person is or was a director or officer of the
Corporation or serves or served any other enterprise as director or officer at
the request of the Corporation, and the heirs, executors and administrators of
each such person. Any expenses (including attorneys' fees) incurred by each
such person, and the heirs, executors and administrators of such person, in
connection with defending any such proceeding in advance of its final
disposition shall be paid by the Corporation; provided, however, that if the
GCL requires, an advancement of expenses incurred by an indemnitee in his
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such indemnitee, including, without limitation,
service to an employee benefit plan) shall be made only upon delivery to the
Corporation of an undertaking by or on behalf of such indemnitee to repay all
amounts so advanced, if it shall ultimately be determined that such indemnitee
is not entitled to be indemnified for such expenses under this Article or
otherwise.
SEVENTH: Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware, may, on the application in a summary
way of the Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution of any receiver or receivers appointed
for the Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors, and/or
of the stockholders or class of stockholders of the Corporation, as the case
may be, to be summoned in such manner as the said court directs. If a majority
in number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of the
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of the Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court
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to which the said application has been made, be binding on all the creditors or
class of creditors, and/or on all of the stockholders or class of stockholders
of the Corporation, as the case may be, and also on the Corporation.
EIGHTH: No director of the Corporation shall be liable to the Corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (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 GCL, or (iv) for any transaction from which
the director derived an improper personal benefit.
NINTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation in the
manner now or hereafter prescribed by law, and all rights and powers conferred
herein on stockholders, directors and officers are subject to this reserved
power.
TENTH: The name and mailing address of the sole Incorporator of the
Corporation is Susan Fields, c/o Reid & Priest LLP, 40 West 57th Street, New
York, New York 10019
IN WITNESS WHEREOF, the undersigned, being the sole Incorporator of the
Corporation, does hereby certify that the facts hereinabove stated are truly
set forth and, accordingly, hereby executes this Certificate of Incorporation
this 16th day of December, 1996.
/s/ Susan Fields
-------------------------------
Incorporator
Susan Fields
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CERTIFICATE OF DESIGNATION, RIGHTS AND PREFERENCES
OF THE
8% SERIES A
CUMULATIVE REDEEMABLE PREFERRED STOCK
OF
SPD HOLDINGS, INC.
- --------------------------------------------------------------------------------
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
- --------------------------------------------------------------------------------
SPD HOLDINGS, INC. (the "Corporation"), a corporation organized and
existing under the General Corporation Law of the State of Delaware, does
hereby certify that pursuant to authority conferred upon the Board of Directors
of the Corporation (the "Board of Directors") by its Certificate of
Incorporation, and pursuant to the provision of Section 151 of the General
Corporation Law of the State of Delaware, the Board of Directors, by unanimous
written consent dated December 20, 1996, duly approved and adopted the
following resolution:
RESOLVED, that pursuant to the authority vested in the Board of
Directors by its Certificate of Incorporation (the "Certificate of
Incorporation"), the Board of Directors does hereby create, authorize and
provide for the issue of a 8% Series A Cumulative Redeemable Preferred Stock,
par value $0.01 per share, with a stated value of $100.00 per share, consisting
initially of 38,010 shares, having the designations, preferences and relative,
participating, optional and other special rights and the qualifications,
limitations and restrictions thereof that are set forth in the Certificate of
Incorporation and in this Resolution as follows:
1. Designation and Amount. The distinctive designation of such series
is "8% Series A Cumulative Redeemable Preferred Stock" (hereinafter in this
Resolution called "Preferred Stock") and the number of shares constituting such
series shall be 38,010.
2. Rank. the Preferred Stock shall, with respect to dividend rights
and rights of liquidation, winding up and dissolution, rank senior to all other
equity securities of the Corporation (all of such equity securities to which
the Preferred Stock ranks senior are collectively referred to herein as the
"Junior Securities").
3. Dividends. (a) Subject in all cases to Section 3(b) below, with
respect to each dividend period described below, holders of record of shares of
Preferred Stock shall be entitled to receive when, as and if declared by the
Board of Directors, out of funds legally available thereof (the "Legally
Available Funds"), cash dividends payable on the shares of Preferred Stock (x)
for the period commencing on the date of issuance of the Preferred Stock and
ending on December 31, 1997 (the "Initial Period"), and (y) for cash dividend
period (an "Annual Dividend Period") thereafter, which Annual Dividend Period
shall commence on January 1 of each year and shall end on and shall include
December 31 of such year, in each case at a rate per annum equal to 8% of the
Liquidation Preference (as hereinafter defined) per share of Preferred Stock.
Such dividends shall fully cumulative and shall accrue (whether or not declared
and whether or not the Company has Legally Available Funds), without interest,
from the first day of each Annual Dividend Period to and including the end of
such Annual Dividend Period, except that with respect to the dividends for the
Initial Period, such dividends shall accrue from the date of issuance on the
shares of Preferred Stock to and including the end of the Initial Period.
Dividends shall accrue on a daily basis without regard to the declaration of
any dividend.
(b) Except as provided in Section 4(a) below, all accrued and
cumulated dividends described in Section 3(a) above shall be payable only upon
the occurrence of a Triggering Event (as defined herein). Upon such Triggering
Event, such dividend shall be payable concurrently with consummation of the
Triggering Event and shall be paid to the holders of record at the close of
business on the day immediately preceding consummation of the Triggering Event.
(c) Dividends payable on the Preferred Stock for any period more
or less than an Annual Dividend Period or the Initial Dividend Period, as the
case may be, shall be computed on the basis of a 360-day year and the actual
number of days elapse in such period.
(d) All dividends paid with respect to shares of the Preferred
Stock pursuant to Section 3(a) shall be paid pro rata to the holders of
Preferred Stock.
(e) (i) Holders of shares of the Preferred Stock shall be
entitled to receive the dividends provided for in Section 3(a) hereof
in preference to and in priority over any dividends upon any of the
Junior Securities.
(ii) No dividends shall be paid on the Preferred Stock if such
payment would violate terms of any instrument governing indebtedness
of the Corporation.
(iii) So long as any shares of the Preferred Stock are
outstanding, the Corporation shall not (A) declare, pay or set apart
for payment any dividend on any of the Junior Securities or make any
payment on account of, or set apart for payment money for, the
purchase, redemption or other
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retirement of, any of the Junior Securities or any warrants, rights,
calls or options exercisable for or convertible into any of the
Junior Securities, or make any distribution or exchange in respect
thereof, either directly or indirectly, and whether in cash,
obligations or shares of the Corporation or other property, or
(B) permit any corporation or other entity directly or indirectly
controlled by the Corporation to purchase or redeem any Junior
Securities, or any warrants, rights, calls or options exercisable for
or convertible into any Junior Securities, unless all accrued and
unpaid dividends on shares of the Preferred Stock shall have been or
be paid or declared or set aside for payment. Notwithstanding the
foregoing, (x) dividends payable in additional shares of Junior
Securities on any series of Junior Securities shall be permitted
hereunder, and (y) repurchases of the Corporation's Common Stock
shall be permitted pursuant to the terms of a Stockholders' Agreement
to be entered into among the Corporation and its stockholders, as
such agreement may be amended from time to time.
(f) Subject to the foregoing provisions of this Section 3 and
the other provisions hereof, the Board of Directors may declare and the
Corporation may pay or set apart for payment dividends on any of the Junior
Securities, and the holders of the shares of the Preferred Stock shall not be
entitled to share therein.
4. Liquidation Preference.
(a) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation, the holders of
shares of Preferred Stock then outstanding shall be entitled to be paid out of
the assets of the Corporation available for distribution to its stockholders an
amount in cash equal to $100.00 for each share outstanding (the "Liquidation
Preference"), plus an amount in cash equal to all accrued but unpaid dividends
thereon to the date fixed for liquidation, dissolution or winding up, before
any payment shall be made or any assets distributed to the holders of any of
the Junior Securities. If the assets of the Corporation are not sufficient to
pay in full the liquidation payments payable to the holders of outstanding
shares of the Preferred Stock, then the holders of all such shares shall
ratably in such distribution of assets in proportion with the amount which
would be payable on such distribution if the amounts to which the holders of
outstanding shares of Preferred Stock are entitled were paid in full.
(b) Upon any such liquidation, dissolution or winding up of the
Corporation, after the holders of Preferred Stock shall have been paid in full
the amounts to which they shall be entitled, the remaining assets of the
Corporation may be distributed to the holders of the Junior Securities. For the
purposes of this Section 4, neither the voluntary sale, lease, conveyance,
exchange or transfer (for cash, shares of stock, securities or other
consideration) of all or any part of the property or assets of the Corporation
nor the merger or consolidation of the Corporation with one or more
corporations nor the reduction of the capital stock of the Corporation shall be
deemed to be a liquidation, dissolution or winding up, voluntary or
involuntary.
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5. Mandatory Redemption.
(a) All of the shares of Preferred Stock will be subject to
mandatory redemption by the Corporation, at a redemption price equal to $100.00
per share, together with accrue and unpaid dividends thereon too the applicable
redemption date, in cash out of Legally Available Funds without interest, upon
the occurrence of any Triggering Event.
(b) If, for any reason, the Corporation shall fail to discharge
its mandatory redemption obligations pursuant to this Section 5, such mandatory
redemption obligations shall be discharged as soon as the Corporation is able
to discharge each obligation. If and so long as any mandatory redemption
obligations with respect to the shares of the Preferred Stock shall not be
fully discharged, the Corporation shall not directly or indirectly:
(i) declare, pay or set apart for payment any dividend on the
Junior Securities or make any payment on account of, or set apart for
payment money for, a sinking or other similar fund for, the purchase,
or other retirement of, any of the Junior Securities or any warrants,
rights, calls or options exercisable for or convertible into any of
the Junior Securities, or make any distribution or exchange in
respect thereof, either directly or indirectly, and whether in cash,
obligations, or shares of the Corporation or other property;
(ii) permit any corporation or other entity directly or
indirectly controlled by the Corporation to purchase or redeem Junior
Securities, or any warrants, rights, calls or options exercisable for
or convertible into any Junior Securities.
(iii) purchase or redeem fewer than all of the shares of the
Preferred Stock then outstanding, other than pro rata among the
holders of the Preferred Stock; or
(iv) permit any corporation or other entity directly or
indirectly controlled by the Corporation to purchase any shares of
the Preferred Stock.
In addition, dividends shall continue to accrue on any mandatory redemption
obligation that has been discharged by the Corporation pursuant to this Section
5.
6. Optional Redemption.
(a) On the first day of any calendar quarter of the Corporation
at anytime from and after the date of issuance, shares of Preferred Stock
outstanding from time to time shall be subject to redemption at the option of
the Board of Directors of the Corporation, as a whole at any time, or from time
to time in part, at a price of $100.00 per share, together with all accrued and
unpaid dividends thereon to the applicable redemption date, in cash out of
Legally Available Funds without interest.
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(b) If less than all of the outstanding shares of Preferred
Stock are to be redeemed, the shares to be redeemed shall be redeemed pro rata.
The Corporation may not redeem less than all outstanding shares of Preferred
Stock unless all dividends due with respect to the Preferred Stock through the
redemption date shall have been declared and paid or set aside for payment upon
all outstanding shares of Preferred Stock for all past periods.
7. Procedure for Redemption.
(a) In the event the Corporation shall be required to redeem
shares of Preferred Stock pursuant to Section 5 or Section 6, notice of such
redemption shall be given by first class mail, postage paid, mailed not less
than 15 days nor more than 60 days prior to the redemption date to each holder
of record of the shares of Preferred Stock at such holders's address as the
same appears on the stock register of the Corporation; provided, however, that
no failure to give such notice nor any defect therein shall affect the validity
of the proceeding for the redemption of any shares of Preferred Stock to be
redeemed, except as to the holder to whom the Corporation has failed to give
said notice or except as to the holder whose notice was defective. Each such
notice shall state: (i) the redemption date; (ii) the total number of shares of
Preferred Stock to be redeemed and the number of shares of Preferred Stock to
be redeemed from such holder; (iii) the redemption price; (iv) the place or
places where certificates for such shares are to be surrendered for payment of
the redemption price; and (v) that dividends on the shares to be redeemed will
cease to accrue upon the redemption date.
(b) Notice having been mailed as aforesaid, from and after the
redemption date (unless default shall be made by the Corporation in providing
money for the payment of the redemption price of the shares of Preferred Stock
called for redemption), dividends on the shares of Preferred Stock so called
for redemption shall cease to accrue, and said shares shall no longer be deemed
to be outstanding and shall have the status of authorized but unissued shares
of Preferred Stock and all rights of the holders thereof as stockholders of the
Corporation (except the right to receive from the Corporation the redemption
price and any accrued and unpaid dividends without interest) shall cease. Upon
surrender in accordance with said notice of the certificates for any shares so
redeemed (properly endorsed or assigned for transfer, if the Board of Directors
of the Corporation shall so require and the notice shall so state), such shares
shall be redeemed by this Corporation at the redemption price.
8. Voting Rights. The Holders of record of shares of Preferred
Stock shall not be entitled to any voting rights except as otherwise provided
by law.
9. Consents. Without the affirmative vote of the holders of at least
88% of the then outstanding shares of Preferred Stock, voting as a single
class, the Corporation may not:
(1) amend the Certificate of Incorporation so as to adversely
affect the rights of preferences of shares of the Preferred Stock; or
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(ii) authorize, issue or create any shares of capital stock that
are pari passu with or senior with respect to dividends or
liquidation rights to the Preferred Stock.
10. Exclusively. Except as expressly set forth herein, the
holders of the Preferred Stock shall have no rights other than those provided
by law.
11. Definition.
(a) "Affiliate" means the same as such term is defined in Rule
12b-2 under the Securities Exchange Act of 1934, as amended.
(b) "Change of Control" means one transaction or a series of
transactions, other than a Public Offering, whereby the holders of shares of
Voting Stock on the Closing Date hold fifty percent (50%) or less of the
outstanding shares of Voting Stock following the consummation of such
transaction(s).
(c) "Closing Date" means the date of the closing of the
purchase by the Corporation of 80,000 shares of the common stock of SPD
Technologies, Inc., pursuant to the Stock Purchase Agreement, dated December 20,
1996 between Kulen Capital, L.P., a Delaware limited partnership, and the
Corporation.
(d) "Net Proceeds" means the aggregate cash proceeds actually
received by the Corporation from any sale or sales of Junior Securities
pursuant to a Public Offering, net of any expenses payable by the Corporation
in connection with such sale or sales, including, without limitation, any
underwriting discounts or commissions.
(e) "Person" means an individual, partnership, corporation,
business trust, joint stock company, trust, unincorporated association, joint
venture or other entity of whatever nature.
(f) "Significant Subsidiary" means the same as such term is
defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended.
(g) "Triggering Event" means any of the following:
(i) the sale of Junior Securities pursuant to one or more
effective registration statements under the Securities Act of 1933,
as amended, other than a registration statement relating to Junior
Securities issuable upon exercise of employee stock options or in
connection with any employee benefit or similar plan of the
Corporation (a "Public Offering"), which Public Offering results in
the receipt by the Corporation of at least $20.0 Million in Net
Proceeds (as defined above);
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(i) the consummation of the direct or indirect sale, lease,
exchange or other transfer of all or substantially all of the assets
of the Corporation or of a Significant Subsidiary of the Corporation
to or acquisition of the same by any Person other than an Affiliate
of the Corporation; or
(ii) the ocurrence of a Change of Control.
(i) "Voting Stock" means capital stock of any class or classes
of the Corporation, the holders of which are entitled, in the absence of
contingencies, to participate generally in the election of the members of the
Corporation's Board of Directors, and any securities of the Corporation
convertible into, or exercisable or exchangeable for, any such capital stock of
the Corporation; provided however, that options to purchase Voting Stock issued
pursuant to any employee stock option plan of the Corporation shall not be
deemed to be Voting Stock.
"RESOLVED FURTHER, that, before the Corporation shall issue any shares
of the Preferred Stock, a certificate pursuant to Section 151 of the General
Corporation Law of the State of Delaware shall be made, executed, acknowledged,
filed and recorded in accordance with the provisions of said Sections 103 and
151, and the proper officers of the Corporation are hereby authorized and
directed to do all acts and things which may be necessary or proper in their
opinion to carry into effect the purposes and intent of this and the foregoing
resolutions."
IN WITNESS WHEREOF, SPD Holdings, Inc. has caused this Certificate of
Designation Rights and Preferences to be signed by Larry A. Colangelo its Chief
Executive Officer, on this 27th day of December, 1996.
SPD HOLDINGS, INC.
By: /s/ LARRY A. COLANGELO
--------------------------
Name: Larry A. Colangelo
Title: Chief Executive Officer
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CERTIFICATE OF AMENDMENT
TO THE CERTIFICATE OF INCORPORATION OF
SPD HOLDINGS, INC.
SPD Holdings, Inc., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the
"Corporation"),
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of the Corporation,
a resolution was duly adopted setting forth a proposed amendment of the
Certificate of Incorporation of the Corporation, declaring said amendment to be
advisable and calling for approval by the shareholders of the Corporation. The
resolution setting forth the proposed amendment is as follows:
RESOLVED, that the Certificate of Incorporation of the Corporation be
amended as follows:
By striking out the whole of Section (A) of Article FOURTH as it
exists now and inserting in lieu and instead thereof a new Section
(A) of Article FOURTH reading as follows:
FOURTH: (A) The total number of shares of all classes of
stock which the Corporation shall have authority to issue is
2,000,000 shares divided into the following classes: (i) 500,000
shares of voting Class A Common Stock with a par value of $0.01
per share; (ii) 500,000 shares of non-voting Class B Common
Stock with a par value of $0.01 per share; and (iii) 1,000,000
shares of Preferred Stock with a par value $0.01 per share.
SECOND: That thereafter, pursuant to the resolution of the Board of
Directors, the necessary number of shares as required by statute were voted by
written consent in favor of the amendment pursuant to Section 228 of the
Delaware General Corporation Law.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, SPD Holdings, Inc. has caused this Certificate to
be signed in its name by its President this 25th day of June, 1997 and the
statements contained therein are affirmed as true under penalties of perjury.
SPD HOLDINGS, INC.
By: /s/ Larry A. Colangelo
---------------------------
Larry A. Colangelo, President
and Chief Executive Officer
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
SPD HOLDINGS, INC.
SPD HOLDINGS, INC., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: THAT the Board of Directors of the Corporation adopted a
resolution proposing and declaring advisable the following amendment to the
Certificate of Incorporation of the corporation:
"RESOLVED, that Article First of the Certificate of
Incorporation be amended to read as follows:
'FIRST: The name of the Corporation is SPD Technologies Inc.'"
SECOND: That, in lieu of a meeting and a vote of stockholders, the
stockholders have given unanimous written consent to said amendment in
accordance with the provisions of Section 228 of the General Corporation Law of
the State of Delaware.
THIRD: That said amendment was duly adopted in accordance with the
applicable provisions of Sections 242 of the General Corporation Law of the
State of Delaware.
IN WITNESS WHEREOF, SPD HOLDINGS, INC. has caused this certificate to
be signed by Larry A. Colangelo, its President, this 17th day of July, 1997.
SPD HOLDINGS, INC,
By: /s/ Larry A. Colangelo
-----------------------------
ATTEST:
/s/ John C. Fleury
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Secretary
CERTIFICATE OF MERGER
OF
SPD MERGER CO.
INTO
SPD TECHNOLOGIES INC.
The undersigned corporation
DOES HEREBY CERTIFY:
FIRST: That the names an states of incorporation of each of the
constituent corporations of the merger is as follows:
NAME STATE OF INCORPORATION
SPD MERGER CO. Delaware
SPD Technologies Inc. Delaware
SECOND: That an agreement and plan of merger between the parties to
the merger has been approved, adopted, certified, executed and acknowledged by
each of the constituent corporations in accordance with the requirements of
subsection (c) of Section 251 of the General Corporation Law of the State of
Delaware.
THIRD: The name of the surviving corporation of the merger is SPD
Teohnologies Inc., a Delaware corporation.
FOURTH: That the certificate of incorporation of SPD Technologies Inc.,
a Delaware corporation, shall be the certificate of incorporation of the
surviving corporation following the merger.
FIFTH: That the executed agreement of merger is on file at the
principal place of business of the surviving corporation. The address of said
principal place is 13500 Roosevelt Blvd., Philadelphia, Pennsylvania 19116.
SIXTH: That a copy of the agreement of merger will be furnished on
request and without cost to any stockholder of either constituent corporation.
Dated: August 13, 1998
SPD TECHNOLOGIES, INC.
By: /s/ Larry A. Colangelo
--------------------------
Name: Larry A. Colangelo
Title: President & CEO
ATTEST:
By: /s/ John C. Fleury
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Name: John C. Fleury
Title: VP & CFO
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
SPD TECHNOLOGIES INC.
(Pursuant to Section 242 of the General
Corporation Law of the State of Delaware)
The undersigned, desiring to amend the certificate of incorporation
of a Delaware corporation under the provisions of the General Corporation Law
of the State of Delaware (the "GCL"), hereby certifies as follows:
1. The name of the corporation is: SPD TECHNOLOGIES INC. (the
"Corporation").
2. Article "FIRST" of the certificate of incorporation of the
Corporation is hereby amended to change the name of the Corporation from "SPD
TECHNOLOGIES INC." to "L-3 COMMUNICATIONS SPD TECHNOLOGIES, INC." said Article
"FIRST" to read in its entirety as follows:
"FIRST: The name of the corporation is: L-3 COMMUNICATIONS SPD
TECHNOLOGIES, INC. (the "Corporation")."
3. The amendment herein certified has been duly adopted in accordance
with Section 242 of the GCL.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed in its name by its officer as of the 8th day of December, 1998.
SPD TECHNOLOGIES INC.
By: /s/ Christopher C. Cambria
----------------------------
Christopher C. Cambria
Vice President