-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, M0E8FiiPx1l/VaaE9DBhfBcaeJbm3ycozFeyRP5izpW0yq2AejFLq3duLlRBcjhD xM61xpgrheMbZiRI2nwuDQ== 0000932214-01-500087.txt : 20020410 0000932214-01-500087.hdr.sgml : 20020410 ACCESSION NUMBER: 0000932214-01-500087 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 20010930 FILED AS OF DATE: 20011114 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AEROFLEX INC CENTRAL INDEX KEY: 0000002601 STANDARD INDUSTRIAL CLASSIFICATION: SEMICONDUCTORS & RELATED DEVICES [3674] IRS NUMBER: 111974412 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 001-08037 FILM NUMBER: 1786280 BUSINESS ADDRESS: STREET 1: 35 S SERVICE RD CITY: PLAINVIEW STATE: NY ZIP: 11803 BUSINESS PHONE: 5166946700 MAIL ADDRESS: STREET 1: 35 S SERVICE ROAD CITY: PLAINVIEW STATE: NY ZIP: 11803 FORMER COMPANY: FORMER CONFORMED NAME: AEROFLEX LABORATORIES INC DATE OF NAME CHANGE: 19851119 FORMER COMPANY: FORMER CONFORMED NAME: ARX INC DATE OF NAME CHANGE: 19920703 10-Q 1 arx10qsept30-live.txt UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------- FORM 10-Q QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarter ended September 30, 2001 ---------------------------- Commission File Number 000-02324 ------------------- AEROFLEX INCORPORATED (Exact name of Registrant as specified in its Charter) DELAWARE 11-1974412 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification No.) 35 South Service Road Plainview, N.Y. 11803 (Address of principal executive offices) (Zip Code) (516) 694-6700 (Registrant's telephone number, including area code) ------------------- *Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months, and (2) has been subject to such filing requirements for the past 90 days. Yes X No ----- ----- Indicate the number of shares outstanding of each of the issuer's classes of common stock as of the latest practicable date. November 14, 2001 59,721,308 shares (excluding 4,388 shares held in treasury) - -------------------------------------------------------------------------------- (Date) (Number of Shares) NOTE: THIS IS PAGE 1 OF A DOCUMENT CONSISTING OF 21 PAGES. ---- AEROFLEX INCORPORATED AND SUBSIDIARIES INDEX ----- PAGE ---- PART I: FINANCIAL INFORMATION - ------ --------------------- CONSOLIDATED BALANCE SHEETS September 30, 2001 and June 30, 2001 3-4 CONSOLIDATED STATEMENTS OF OPERATIONS Three Months Ended September 30, 2001 and 2000 5 CONSOLIDATED STATEMENTS OF CASH FLOWS Three Months Ended September 30, 2001 and 2000 6 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 7-14 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS Three Months Ended September 30, 2001 and 2000 15-19 PART II: OTHER INFORMATION 20 - ------- ----------------- SIGNATURES 21 -2- AEROFLEX INCORPORATED AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS
September 30, June 30, 2001 2001 ------------ -------- (Unaudited) (In thousands) ASSETS - ------ Current assets: Cash and cash equivalents $ 66,650 $ 69,896 Marketable securities 9,139 12,012 Accounts receivable, less allowance for doubtful accounts of $668,000 and $459,000 40,515 49,409 Inventories, net 49,426 48,423 Deferred income taxes 7,197 7,148 Prepaid expenses and other current assets 4,213 2,583 -------- -------- Total current assets 177,140 189,471 Property, plant and equipment, net 60,842 62,137 Intangible assets with definite lives 16,562 20,286 Goodwill 22,929 21,006 Deferred income taxes 10,031 8,538 Other assets 10,059 8,814 -------- -------- Total assets $297,563 $310,252 ======== ========
See notes to consolidated financial statements. -3- AEROFLEX INCORPORATED AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS (continued)
September 30, June 30, 2001 2001 ------------- -------- (Unaudited) (In thousands) LIABILITIES AND STOCKHOLDERS' EQUITY - ------------------------------------ Current liabilities: Current portion of long-term debt $ 1,766 $ 1,905 Accounts payable 7,950 16,794 Accrued expenses and other current liabilities 15,170 18,398 -------- -------- Total current liabilities 24,886 37,097 Long-term debt 11,104 11,428 Other long-term liabilities 7,030 6,606 -------- -------- Total liabilities 43,020 55,131 -------- -------- Stockholders' equity: Preferred Stock, par value $.10 per share; authorized 1,000,000 shares: Series A Junior Participating Preferred Stock, par value $.10 per share, authorized 80,000; none issued - - Common Stock, par value $.10 per share; authorized 80,000,000 shares; issued 59,682,000 and 59,674,000 shares 5,968 5,967 Additional paid-in capital 219,357 219,278 Accumulated other comprehensive income (loss) (140) (154) Retained earnings 29,372 30,044 -------- -------- 254,557 255,135 Less: Treasury stock, at cost (4,000 and 4,000 shares) 14 14 -------- -------- Total stockholders' equity 254,543 255,121 -------- -------- Total liabilities and stockholders' equity $297,563 $310,252 ======== ========
See notes to consolidated financial statements. -4- AEROFLEX INCORPORATED AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF OPERATIONS
Three Months Ended September 30, ------------------ 2001 2000 -------- -------- (Restated, Note 3) (Unaudited) (In thousands, except per share data) Net sales $ 39,490 $ 51,127 Cost of sales 26,418 31,662 -------- -------- Gross profit 13,072 19,465 -------- -------- Selling, general and administrative costs 9,787 9,465 Research and development costs 4,546 3,024 -------- -------- 14,333 12,489 -------- -------- Operating income (loss) (1,261) 6,976 -------- -------- Other expense (income) Interest expense 337 370 Other expense (income) (576) (1,108) -------- -------- Total other expense (income) (239) (738) -------- -------- Income (loss) before income taxes (1,022) 7,714 Provision (benefit) for income taxes (350) 2,625 -------- -------- Income (loss) before cumulative effect of a change in accounting (672) 5,089 Cumulative effect of a change in accounting, net of tax (Note 2) - 132 -------- -------- Net income (loss) $ (672) $ 5,221 ======== ======== Net income (loss) per common share (1): Basic Income (loss) before cumulative effect $(.01) $ .09 Cumulative effect of a change in accounting - - ------ ----- Net income (loss) $(.01) $ .09 ===== ===== Diluted (2) Income (loss) before cumulative effect $(.01) $ .09 Cumulative effect of a change in accounting - - ------ ----- Net income (loss) $(.01) $ .09 ===== ===== Weighted average number of common shares outstanding: Basic 59,789 56,614 ======== ======== Diluted (2) 59,789 60,016 ======== ======== (1) All share and per share data for 2000 have been restated to reflect a 2-for- 1 stock split declared and paid in November 2000. (2) As a result of the loss for the three months ended September 30, 2001, all options are anti-dilutive.
See notes to consolidated financial statements. -5- AEROFLEX INCORPORATED AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOWS
Three Months Ended September 30, ------------------ 2001 2000 ---- ---- (Restated, Note 3) (Unaudited) (In thousands) Cash Flows From Operating Activities: Net income (loss) $ (672) $ 5,221 Adjustments to reconcile net income (loss) to net cash provided by (used in) operating activities: Depreciation and amortization 3,051 2,518 Amortization of deferred gain (127) (242) Tax benefit from stock option exercises (Note 8) - 2,745 Deferred income taxes (350) (161) Other, net 227 77 Change in operating assets and liabilities: Decrease (increase) in accounts receivable 8,685 9,812 Decrease (increase) in inventories (1,003) (2,821) Decrease (increase) in prepaid expenses and other assets (2,876) (1,147) Increase (decrease) in accounts payable, accrued expenses and other liabilities (11,575) (1,870) -------- -------- Net Cash Provided By (Used In) Operating Activities (4,640) 14,132 -------- -------- Cash Flows From Investing Activities: Payment for purchase of businesses, net of cash acquired - (271) Capital expenditures (1,073) (3,896) Purchase of marketable securities - (19,171) Proceeds from sale of marketable securities 2,882 - -------- -------- Net Cash Provided By (Used In) Investing Activities 1,809 (23,338) -------- -------- Cash Flows From Financing Activities: Borrowings under debt agreements - 292 Debt repayments (463) (651) Proceeds from the exercise of stock options and warrants 48 921 Amounts paid for withholding taxes on stock option exercises (14) (4,979) Withholding taxes collected for stock option exercises 14 769 -------- -------- Net Cash Provided By (Used In) Financing Activities (415) (3,648) -------- -------- Net Increase (Decrease) In Cash And Cash Equivalents (3,246) (12,854) Cash And Cash Equivalents At Beginning Of Period 69,896 54,732 -------- -------- Cash And Cash Equivalents At End Of Period $ 66,650 $ 41,878 ======== ======== See notes to consolidated financial statements.
-6- AEROFLEX INCORPORATED AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 1. Basis of Presentation --------------------- The consolidated balance sheet of Aeroflex Incorporated and Subsidiaries ("the Company") as of September 30, 2001 and the related consolidated statements of operations for the three months ended September 30, 2001 and 2000 and the consolidated statements of cash flows for the three months ended September 30, 2001 and 2000 have been prepared by the Company and are unaudited. In the opinion of management, all adjustments (which include normal recurring adjustments) necessary to present fairly the financial position, results of operations and cash flows at September 30, 2001 and for all periods presented have been made. Certain information and footnote disclosures normally included in financial statements prepared in accordance with accounting principles generally accepted in the United States of America have been omitted. It is suggested that these consolidated financial statements be read in conjunction with the financial statements and notes thereto included in the Company's June 30, 2001 annual report to shareholders. There have been no changes of significant accounting policies since June 30, 2001, except as disclosed in Note 2. Certain reclassifications have been made to previously reported financial statements to conform to current classifications. Results of operations for the three month periods are not necessarily indicative of results of operations for the corresponding years. 2. Recent Accounting Pronouncements -------------------------------- Accounting for Derivative Instruments and Hedging Activities ------------------------------------------------------------ Effective July 1, 2000, the Company adopted Statement of Financial Accounting Standards ("SFAS") No. 133, "Accounting for Derivative Instruments and Hedging Activities," as amended. This statement requires companies to record derivatives on the balance sheet as assets or liabilities at their fair value. In certain circumstances changes in the value of such derivatives may be required to be recorded as gains or losses. The impact of this statement did not have a material effect on the Company's consolidated financial statements. The cumulative effect of the adoption of this accounting policy was a $132,000, net of tax, credit in the quarter ended September 30, 2000 which represents the net of tax fair value of certain interest rate swap agreements at July 1, 2000. Accounting for Business Combinations, Goodwill and Other Intangible Assets -------------------------------------------------------------------------- In July 2001, the Financial Accounting Standards Board ("FASB") issued SFAS No. 141, "Business Combinations," and SFAS No. 142, "Goodwill and Other Intangible Assets." SFAS No. 141 specifics criteria that intangible assets acquired in a business combination must meet to be recognized and reported apart from goodwill. SFAS No. 142 requires that goodwill and intangible assets with indefinite useful lives no longer be amortized, but instead tested for impairment at least annually in accordance with the provisions of SFAS No. 142. This pronouncement also requires that intangible assets with estimable useful lives be amortized over their respective estimated useful lives and reviewed for impairment in accordance with SFAS No. 121. The Company has adopted the provisions of SFAS Nos. 141 and 142 as of July 1, 2001. The Company has evaluated its existing intangible assets and goodwill that were acquired in prior purchase business combinations and has reclassified $3.0 million net carrying value of intangible assets to goodwill in order to conform to the new criteria in SFAS No. 141 for recognition apart from goodwill. In connection with this reclassification, the Company has also reduced goodwill for the amount of deferred taxes -7- previously recorded on the reclassified intangible assets that is no longer required. The Company has also reassessed the useful lives and residual values of all intangible assets acquired, and has determined that no amortization period adjustments were necessary. The Company will be required to test goodwill for impairment in accordance with the provisions of SFAS No. 142 by December 31, 2001. Any impairment loss will be measured as of the date of adoption and recognized as the cumulative effect of a change in accounting principle as of July 1, 2001. Because of the extensive effort needed to comply with adopting SFAS No. 142, it is not practicable to reasonably estimate whether the Company will be required to recognize any transitional impairment losses as the cumulative effect of a change in accounting principle. The components of amortized intangible assets are as follows:
As of September 30, 2001 ------------------------------ Gross Carrying Accumulated Amount Amortization -------------- ------------ (In thousands) Existing technology $ 21,413 $ 5,593 Tradenames 1,000 258 --------- --------- Total $ 22,413 $ 5,851 ========= =========
The aggregate amortization expense for the amortized intangible assets was $685,000 for the three months ended September 30, 2001. The carrying amount of goodwill is as follows:
Balance as Balance as of of July 1, Adjustment Adjustment September 30, 2001 (Note a) (Note b) 2001 ---------- ---------- ---------- -------------- (In thousands) Microelectronic Solutions Segment $ 9,268 $ 2,913 $ (1,116) $ 11,065 Test Solutions Segment 10,949 126 - 11,075 Isolator Products Segment 789 - - 789 -------- -------- -------- -------- Total $ 21,006 $ 3,039 $ (1,116) $ 22,929 ======== ======== ======== ======== Note a - Reclassification from intangible assets in accordance with SFAS No. 141. Note b - Reversal of deferred taxes payable, previously recorded, for reclassified intangible assets.
Goodwill (including intangible assets reclassified to goodwill in accordance with SFAS No. 141) amortization for the three months ended September 30, 2000 was $265,000 and generated a tax benefit of $36,000. The following table shows the results of operations as if SFAS No. 141 was applied to prior periods: -8-
For the three months ended September 30, -------------------- 2001 2000 ---- ---- (In thousands, except per share amounts) Net income (loss), as reported $(672) $ 5,221 Add Back: Goodwill amortization, net of tax - 229 ----- ------- Adjusted net income (loss) $(672) $ 5,450 ===== ======= Income (loss) per share - Basic Net income (loss), as reported $(.01) $ .09 Goodwill amortization, net of tax - .01 ----- ------- Adjusted net income (loss) $(.01) $ .10 ===== ======= Income (loss) per share - Diluted Net income (loss), as reported $(.01) $ .09 Goodwill amortization, net of tax - - ----- ------- Adjusted net income (loss) $(.01) $ .09 ===== =======
Accounting for the Impairment of Long-Lived Assets -------------------------------------------------- In October 2001, the FASB issued SFAS No. 144, Accounting for the Impairment of Long-Lived Assets, which addresses financial accounting and reporting for the impairment or disposal of long-lived assets. The Company will adopt SFAS No. 144 effective July 1, 2002 and does not expect such adoption to have a material impact on its consolidated financial statements. 3. Acquisition of Businesses ------------------------- TriLink ------- Effective March 23, 2001, the Company acquired all of the outstanding stock of TriLink Communications Corp. ("TriLink") for 1.1 million shares of Aeroflex common stock. TriLink designs, develops, manufactures and markets fiber optic components for the communications industry, including Lithium Niobate modulators and optical switches. The Company evaluated the acquired tangible and identifiable intangible assets to serve as a basis for allocation of the purchase price. In accordance with SFAS No. 141, the Company allocated the purchase price, including acquisition costs of approximately $300,000, as follows:
(In thousands) Net tangible assets $ 1,171 Identifiable intangible assets - existing technology 6,000 Deferred income taxes on identifiable intangible assets (2,400) Excess costs over fair value of net assets acquired 5,926 In-process research and development 1,000 ------- $11,697 =======
The existing technology is being amortized on a straight-line basis over 6 years. The acquired in-process research and development was not considered to have reached technological feasibility and, in accordance with accounting principles generally accepted in the United States of America, the value of such was expensed in the quarter ended March 31, 2001. At the acquisition date, TriLink was conducting design, development, engineering and testing activities associated with the completion of its 10 GB modulator. -9- Summarized below are the unaudited pro forma results of operations of the Company as if TriLink had been acquired at the beginning of the fiscal period presented. The $1.0 million write-off has not been included in the September 30, 2000 pro forma income in order to provide comparability to the respective historical period.
Pro Forma Three Months Ended September 30, 2000 ------------------ (In thousands, except per share data) Net Sales $ 51,180 Income before cumulative effect of a change in accounting 4,649 Income before cumulative effect of a change in accounting per share: Basic $ .08 Diluted $ .08
The pro forma financial information presented above is not necessarily indicative of either the results of operations that would have occurred had the acquisition taken place at the beginning of the period presented or of future operating results of the combined companies. RDL --- On October 23, 2000, the Company acquired all of the outstanding stock of RDL, Inc. ("RDL") for $14.0 million of available cash. RDL designs, develops and manufactures advanced commercial communications test and measurement products and defense subsystems. The acquired company's net sales were approximately $15.0 million for the year ended March 31, 2000. The Company evaluated the acquired tangible and identifiable intangible assets to serve as a basis for allocation of the purchase price. In accordance with SFAS No. 141, the Company allocated the purchase price, including acquisition costs of approximately $100,000, as follows:
(In thousands) Net tangible assets $ 6,774 Existing technology 2,970 Excess costs over fair value of net assets acquired 2,856 In-process research and development 1,500 ------- $14,100 =======
The existing technology is being amortized on a straight-line basis over 7 years. The acquired in-process research and development was not considered to have reached technological feasibility and, in accordance with accounting principles generally accepted in the United States of America, the value of such was expensed in the quarter ended December 31, 2000. At the acquisition date, RDL was conducting design, development, engineering and testing activities associated with the completion of its defense and commercial product lines representing next-generation technologies. Summarized below are the unaudited pro forma results of operations of the Company as if RDL had been acquired at the beginning of the fiscal period presented. The $1.5 million write-off has not been included in the September 30, 2000 pro forma income in order to provide comparability to the respective historical period. -10-
Pro Forma Three Months Ended September 30, 2000 ------------------ (In thousands, except per share data) Net sales $ 55,667 Income before cumulative effect of a change in accounting 4,872 Income before cumulative effect of a change in accounting per share: Basic $ .09 Diluted .08
The pro forma financial information presented above is not necessarily indicative of either the results of operations that would have occurred had the acquisition taken place at the beginning of the period presented or of future operating results of the combined companies. Altair ------ On October 16, 2000, the Company issued 550,000 shares(after adjustment for the two-for-one stock split effective in November 2000) of its Common Stock for all the outstanding common stock of Altair Aerospace Corporation ("Altair"). Altair designs and develops advanced object-oriented control systems software based upon a proprietary software engine. This business combination has been accounted for as a pooling-of-interests and, accordingly, for all periods prior to the business combination, the Company's historical consolidated financial statements have been restated to include the accounts and results of operations of Altair. The acquired company's net sales were approximately $3.0 million for the year ended December 31, 2000. For periods preceding the combination, there were no intercompany transactions which required elimination from the combined consolidated results of operations and there were no adjustments necessary to conform the accounting practices of the two companies. Amplicomm --------- Effective September 7, 2000, Aeroflex Amplicomm, Inc. ("Amplicomm") was formed as a wholly-owned subsidiary of the Company. On September 20, 2000, Amplicomm acquired certain equipment and intellectual property from a third party for approximately $300,000, entered into employment agreements with this third party's former owners and issued 25% of the stock of Amplicomm to them. Amplicomm designs and develops fiber optic amplifiers and modulator drivers used by manufacturers of advanced fiber optic systems. On a pro forma basis, had the Amplicomm acquisition taken place as of the beginning of the periods presented, results of operations for those periods would not have been materially affected. 4. Earnings Per Share ------------------ In accordance with SFAS No. 128 "Earnings Per Share," net income (loss) per common share ("Basic EPS") is computed by dividing net income (loss) by the weighted average common shares outstanding. Net income (loss) per common share, assuming dilution ("Diluted EPS") is computed by dividing net income by the weighted average common shares outstanding plus potential dilution from the exercise of stock options and warrants. -11- A reconciliation of the numerators and denominators of the Basic EPS and Diluted EPS calculations is as follows:
Three Months Ended September 30, ------------------- 2001 2000 ---- ---- (In thousands, except per share data) Income (loss) before cumulative effect of a change in accounting $ (672) $ 5,089 Cumulative effect of a change in accounting, net of tax - 132 ------- -------- Net income (loss) $ (672) $ 5,221 ======= ======== Computation of Adjusted Weighted Average Shares Outstanding: Weighted average shares outstanding 59,789 56,614 Add: Effect of dilutive options and warrants outstanding - (1) 3,402 ------- -------- Weighted average shares and common share equivalents used for computation of diluted earnings per common share 59,789 60,016 ======= ======== Income (loss) per share - Basic: Income (loss) before cumulative effect $(.01) $.09 Cumulative effect of a change in accounting - - ----- ---- Net income (loss) $(.01) $.09 ===== ==== Income (loss) per share - Diluted: Income (loss) before cumulative effect $(.01) $.09 Cumulative effect of a change in accounting - - ----- ---- Net income (loss) $(.01) $.09 ===== ==== (1) As a result of the loss for the three months ended September 30, 2001, all options are anti-dilutive.
Stock Split ----------- On November 2, 2000, the Company's Board of Directors authorized a two-for-one stock split of the Common Stock, effective November 16, 2000. The share and per share amounts in these consolidated financial statements give effect to the stock split. -12- 5. Comprehensive Income (Loss) -------------------------- The components of comprehensive income (loss) are as follows:
Three Months Ended September 30, ------------------- 2001 2000 ---- ---- (In thousands) Net income (loss) $ (672) $ 5,221 Unrealized gain (loss) on interest rate swap agreements, net of tax (125) 60 Unrealized investment gain (loss), net of tax 6 (46) Foreign currency translation adjustment 133 (46) ------- ------- Total comprehensive income (loss) $ (658) $ 5,189 ======= =======
6. Bank Loan Agreements -------------------- As of February 25, 1999, the Company replaced a previous agreement with a revised revolving credit, term loan and mortgage agreement with two banks which is secured by substantially all of the Company's assets not otherwise encumbered. The agreement provided for a revolving credit line of $23.0 million, a term loan of $20.0 million and a mortgage on its Plainview property for $4.5 million. The revolving credit loan facility expires in December 2002. The term loan was fully paid with the proceeds from the Company's sale of its Common Stock in May 2000. The interest rate on borrowings under this agreement is at various rates depending upon certain financial ratios, with the current rate substantially equivalent to prime (6.0% at September 30, 2001) on the revolving credit borrowings. The Company paid a facility fee of $100,000 and is required to pay a commitment fee of .25% per annum of the average unused portion of the credit line. The mortgage is payable in monthly installments of approximately $26,000 through March 2008 and a balloon payment of $1.6 million in April 2008. The Company has entered into an interest rate swap agreement for the outstanding amount under the mortgage agreement at approximately 7.6% in order to reduce the interest rate risk associated with these borrowings. The fair market value of the interest rate swap agreement was $254,000 as of September 30, 2001 in favor of the banks. The terms of the loan agreement require compliance with certain covenants including minimum consolidated tangible net worth and pretax earnings, maintenance of certain financial ratios, limitations on capital expenditures and indebtedness and prohibition of the payment of cash dividends. In connection with the purchase of certain materials for use in manufacturing, the Company has a letter of credit of $2.0 million. At September 30, 2001, the Company's available unused line of credit was approximately $20.4 million after consideration of this and other letters of credit. 7. Inventories ----------- Inventories, net, consist of the following:
September 30, June 30, 2001 2001 (In thousands) Raw Materials $ 30,179 $ 28,999 Work in Process 12,993 13,071 Finished Goods 6,254 6,353 -------- -------- $ 49,426 $ 48,423 ======== ========
-13- 8. Income Taxes ------------ The Company is undergoing routine audits by various taxing authorities of several of its Federal and state income tax returns covering periods from 1997 to 2000. Management believes that the probable outcome of these various audits should not materially affect the consolidated financial statements of the Company. The Company recorded credits of $14,000 and $5.1 million to additional paid-in capital during the three months ended September 30, 2001 and 2000, respectively, in connection with the tax benefit related to compensation deductions on the exercise of stock options. 9. Contingencies ------------- A subsidiary of the Company whose operations were discontinued in 1991, is one of several defendants named in a personal injury action initiated in August 1994, by a group of plaintiffs. The plaintiffs are seeking damages which cumulatively exceed $500 million. The complaint alleges, among other things, that the plaintiffs suffered injuries from exposure to substances contained in products sold by the subsidiary to one of its customers. This action is in the discovery stage. Based upon available information and considering its various defenses, together with its product liability insurance, in the opinion of management of the Company, the outcome of the action against its subsidiary will not have a materially adverse effect on the Company's consolidated financial statements. 10. Business Segments ----------------- The Company's business segments and major products included in each segment, are as follows: Microelectronic Solutions: Test Solutions: a)Microelectronic Modules a)Instrument Products b)Thin Film Interconnects b)Motion Control Systems c)Integrated Circuits Isolator Products
For The Three Months Ended September 30, -------------------------- Business Segment Data: 2001 2000 ---- ---- (In thousands) Net sales: Microelectronic Solutions $ 22,213 $ 32,273 Test Solutions 12,935 14,144 Isolator Products 4,342 4,710 --------- --------- Net sales $ 39,490 $ 51,127 ========= ========= Operating income (loss): Microelectronic Solutions $ 1,105 $ 8,100 Test Solutions (1,886) 231 Isolator Products 536 495 General corporate expenses (1,016) (1,850) --------- --------- (1,261) 6,976 Interest expense (337) (370) Other income (expense), net 576 1,108 --------- --------- Income (loss) before income taxes $ (1,022) $ 7,714 ========= =========
-14- AEROFLEX INCORPORATED AND SUBSIDIARIES MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS Overview We use our advanced design, engineering and manufacturing abilities to produce microelectronic, integrated circuit, interconnect and testing solutions. Our products are used in fiber optic, broadband cable, wireless and satellite communications markets. We also design and manufacture motion control systems and shock and vibration isolation systems which are used for commercial, industrial and defense applications. Our operations are grouped into three segments: -- microelectronic solutions -- test solutions -- isolator products Our consolidated financial statements include the accounts of Aeroflex Incorporated and all of our subsidiaries. All of our subsidiaries are wholly-owned, except for Europtest, S.A., which is 96.8% owned by us, and Aeroflex Amplicomm, Inc., which is 75% owned by us. Our microelectronic solutions segment has been designing, manufacturing and selling state-of-the-art microelectronics for the electronics industry since 1974. In January 1994, we acquired substantially all of the net operating assets of the microelectronics division of Marconi Circuit Technology Corporation, which manufactures a wide variety of microelectronic assemblies. In March 1996, we acquired MIC Technology Corporation which designs, develops, manufactures and markets microelectronics products in the form of passive thin film circuits and interconnects. Effective July 1, 1997, MIC Technology acquired certain equipment, inventory, licenses for technology and patents of two of Lucent Technologies' telecommunications component units - multi-chip modules and film integrated circuits. These units manufacture microelectronic modules and interconnect products. In February 1999, we acquired all of the outstanding stock of UTMC Microelectronic Systems, Inc. consisting of UTMC's integrated circuit business. In September 2000, we acquired all of the operating assets of AmpliComm, Inc., which designs and develops fiber optic amplifiers and modulator drivers used by manufacturers of advanced fiber optic systems. In March 2001, we acquired TriLink Communications Corp. which designs, develops, manufactures and markets fiber optic components for the communications industry, including Lithium Niobate modulators and optical switches. Our test solutions segment consists of two divisions: (1) instruments and (2) motion control products, including the following product lines: -- Comstron, a leader in radio frequency and microwave technology used in the manufacture of fast switching frequency signal generators and components, which we acquired in November 1989. Comstron is currently an operating division of Aeroflex Laboratories, Incorporated, one of our wholly-owned subsidiaries; -- Lintek, a leader in high speed instrumentation antenna measurement systems, radar systems and satellite test systems, which we acquired in January 1995; -15- -- Europtest, S.A. (France), of which we acquired 90% effective September 1, 1998, under a purchase agreement which requires us to purchase the remaining 10% of Europtest pro rata over a three-year period at prices determined based upon net sales of Europtest products. In each of March 2001 and October 1999, we purchased an additional 3.4%. Europtest develops and sells specialized software-driven test equipment used primarily in cellular, satellite and other communications applications. -- Altair, which we merged with in October 2000 in a pooling-of-interests business combination. Altair designs and develops advanced object- oriented control systems software based upon a proprietary software engine. -- RDL, which we acquired in October 2000. RDL designs, develops and manufactures advanced commercial communications test and measurement products and defense subsystems. -- Our motion control products division has been engaged in the development and manufacture of electro-optical scanning devices used in infra-red night vision since 1975. Additionally, it is engaged in the design, development and production of stabilization tracking devices and systems and magnetic motors used in satellites and other high reliability applications. Our isolator products segment has been designing, developing, manufacturing and selling severe service shock and vibration isolation systems since 1961. These devices are primarily used in defense applications. In October 1983, we acquired Vibration Mountings & Controls, Inc., which manufactures a line of off-the-shelf rubber and spring shock, vibration and structure borne noise control devices used in commercial and industrial applications. In December 1986, we acquired the operating assets of Korfund Dynamics Corporation, a manufacturer of an industrial line of heavy duty spring and rubber shock mounts. Our revenue is generally recognized based upon shipments. Revenues associated with certain long-term contracts are recognized under the units-of-delivery method which includes shipments and progress billings, in accordance with Statement of Position 81-1 "Accounting for Performance of Construction-Type and Certain Production-Type Contracts." We record costs on our long-term contracts using percentage-of-completion accounting. Under percentage of completion accounting, costs are recognized on revenues in the same relation that total estimated manufacturing costs bear to total contract value. Estimated costs at completion are based upon engineering and production estimates. Provisions for estimated losses or revisions in estimated profits on contracts-in-process are recorded in the period in which such losses or revisions are first determined. Approximately 29% of our sales for fiscal 2001 and 33% of our sales for fiscal 2000 were to agencies of the United States Government or to prime defense contractors or subcontractors of the United States Government. Our overall dependence on the military has been declining due to a focusing of resources towards developing standard products for commercial markets. -16- Three Months Ended September 30, 2001 Compared to Three Months Ended September 30, 2000 Net Sales. Net sales decreased 22.8% to $39.5 million for the three months ended September 30, 2001 from $51.1 million for the three months ended September 30, 2000. Net sales in the microelectronic solutions segment decreased 31.2% to $22.2 million for the three months ended September 30, 2001 from $32.3 million for the three months ended September 30, 2000 due primarily to decreased sales volume in thin film interconnects. Net sales in the test solutions segment decreased 8.5% to $12.9 million for the three months ended September 30, 2001 from $14.1 million for the three months ended September 30, 2000 primarily due to lower volume in frequency synthesizers partially offset by increased sales volume in satellite test equipment and the acquisition of RDL in October 2000. Net sales in the isolator products segment were $4.3 million for the three months ended September 30, 2001 and $4.7 million for the three months ended September 30, 2000. Gross Profit. Cost of sales includes materials, direct labor and overhead expenses such as engineering labor, fringe benefits, allocable occupancy costs, depreciation and manufacturing supplies. Gross profit decreased 32.8% to $13.1 million for the three months ended September 30, 2001 from $19.5 million for the three months ended September 30, 2000. Gross margin decreased to 33.1% for the three months ended September 30, 2001 from 38.1% for the three months ended September 30, 2000. The decreases were primarily a result of the decreased sales volume in both the microelectronic solutions and test solutions segments. The gross profit margin also decreased in both the microelectronic solutions and test solutions segments due to the fixed nature of some of the labor and overhead costs. Selling, General and Administrative Costs. Selling, general and administrative costs include office and management salaries, fringe benefits and commissions. Selling, general and administrative costs increased 3.4% to $9.8 million (24.8% of net sales) for the three months ended September 30, 2001 from $9.5 million (18.5% of net sales) for the three months ended September 30, 2000. The increase was primarily due to the addition of the expenses of RDL and TriLink partially offset by lower corporate expenses. Research and Development Costs. Research and development costs include material, engineering labor and allocated overhead. Our self-funded research and development costs increased 50.3% to $4.5 million (11.5% of net sales) for the three months ended September 30, 2001 from $3.0 million (5.9% of net sales) for the three months ended September 30, 2000. The increase was primarily due to the addition of the expenses of RDL and increased efforts in the development of proprietary integrated circuits utilized in broadband communications. Other Expense (Income). Interest expense decreased to $337,000 for the three months ended September 30, 2001 from $370,000 for the three months ended September 30, 2000, primarily due to reduced levels of borrowings. Other income of $576,000 for the three months ended September 30, 2001 consists primarily of $763,000 of interest income offset by a $198,000 decrease in the fair value of our interest rate swap agreements. Other income of $1.1 million for the three months ended September 30, 2000 consisted primarily of $1.2 million of interest income offset by a $72,000 decrease in the fair value of our interest rate swap agreements. Interest income decreased primarily due to the lower market interest rates. -17- Provision (Benefit) for Income Taxes. The income tax benefit was $350,000 (an effective income tax rate of 34.3%) for the three months ended September 30, 2001 and the income tax provision was $2.6 million (an effective income tax rate of 34.0%) for the three months ended September 30, 2000. The income tax provision (benefit) for the two periods differed from the amount computed by applying the U.S. Federal income tax rate to income (loss) before income taxes primarily due to state and local income taxes and research and development credits. Liquidity and Capital Resources As of September 30, 2001, we had $152.3 million in working capital. Our current ratio was 7.1 to 1 at September 30, 2001. As of February 25, 1999, we replaced a previous agreement with a revised revolving credit, term loan and mortgage agreement with two banks which is secured by substantially all of our assets not otherwise encumbered. The agreement provided for a revolving credit line of $23.0 million, a term loan of $20.0 million and a mortgage on our Plainview property for $4.5 million. The revolving credit loan facility expires in December 2002. The term loan was fully paid in May 2000 with the proceeds from the sale of our Common Stock. The interest rate on borrowings under this agreement is at various rates depending upon certain financial ratios, with the current rate substantially equivalent to prime (6.0% at September 30, 2001) on the revolving credit borrowings. The mortgage is payable in monthly installments of approximately $26,000 through March 2008 and a balloon payment of $1.6 million in April 2008. We have entered into an interest rate swap agreement for the outstanding amount under the mortgage agreement at approximately 7.6% in order to reduce the interest rate risk associated with these borrowings. The terms of the loan agreement require compliance with certain covenants including minimum consolidated tangible net worth and pretax earnings, maintenance of certain financial ratios, limitations on capital expenditures and indebtedness and prohibition of the payment of cash dividends. In connection with the purchase of certain materials for use in manufacturing, we have a letter of credit of $2.0 million. Our backlog of orders was $116.7 million at September 30, 2001 and $132.8 million at September 30, 2000. For the three months ended September 30, 2001, our operations used cash of $4.6 million primarily to reduce accounts payable and accrued expenses offset in part by collections of receivables. For the three months ended September 30, 2001, our investing activities provided cash of $1.8 million - $2.9 million from the sale of marketable securities partially offset by $1.1 million of capital expenditures. For the three months ended September 30, 2001, our financing activities used cash of $415,000 primarily for debt repayments. We believe that existing cash, cash equivalents and marketable securities coupled with internally generated funds and available lines of credit will be sufficient for our working capital requirements, capital expenditure needs and the servicing of our debt for the foreseeable future. Our cash, cash equivalents and marketable securities are available to fund acquisitions and other potential large cash needs that may arise. At September 30, 2001, our available unused line of credit was $20.4 million after consideration of this and other letters of credit. -18- Market Risk We are exposed to market risk related to changes in interest rates and, to an immaterial extent, foreign currency exchange rates. Most of our debt is at fixed rates of interest or at a variable rate with an interest rate swap agreement which effectively converts the variable rate debt into fixed rate debt. Therefore, if market interest rates increase by 10% from levels at September 30, 2001, the effect on our net income (loss) would not be material. Most of our invested cash and marketable securities are at variable rates of interest. If market interest rates decrease by 10% from levels at September 30, 2001, the effect on our net income (loss) would be a reduction of approximately $164,000 per year. Forward-Looking Statements All statements other than statements of historical fact included in this Report on Form 10-Q, including without limitation statements under "Management's Discussion and Analysis of Financial Condition and Results of Operations" regarding our financial position, business strategy and plans and objectives of our management for future operations, are forward-looking statements. When used in this Report on Form 10-Q, words such as "anticipate," "believe," "estimate," "expect," "intend" and similar expressions, as they relate to us or our management, identify forward-looking statements. Such forward-looking statements are based on the beliefs of our management, as well as assumptions made by and information currently available to our management. Actual results could differ materially from those contemplated by the forward-looking statements, as a result of certain factors, including but not limited to competitive factors and pricing pressures, changes in legal and regulatory requirements, technological change or difficulties, product development risks, commercialization difficulties and general economic conditions. Such statements reflect our current views with respect to future events and are subject to these and other risks, uncertainties and assumptions relating to our financial condition, results of operations, growth strategy and liquidity. -19- AEROFLEX INCORPORATED AND SUBSIDIARIES PART II - OTHER INFORMATION Item 1. Legal Proceedings None Item 2. Changes in Securities None Item 3. Defaults upon Senior Securities None Item 4. Submission of Matters to a Vote of Security Holders The Registrant held its Annual Meeting of Stockholders on November 8, 2001. A. Three Directors were elected at the Annual Meeting to serve until the Annual Meeting of Stockholders in 2004. The names of these Directors and votes cast in favor of their election and shares withheld are as follows:
Name Votes For Votes Withheld ---- --------- -------------- Paul Abecassis 54,368,632 501,807 Leonard J. Borow 46,190,074 8,680,365 Milton Brenner 54,355,004 515,435
B. The Stockholders approved to amend the article FOURTH of the Certificate of Incorporation to increase the number of authorized shares of the Company from 81,000,000 to 111,000,000; 41,301,620 shares were voted in favor of this proposal, 5,162,053 shares voted against the proposal and 61,228 shares abstained from voting. Item 5. Other Information None Item 6. Exhibits and Reports on Form 8-K (a) Exhibits Exhibit 3.1 - Certificate of Incorporation, as amended Exhibit 3.2 - Amended and Restated By-Laws Exhibit 10.1 - Amendment No. 3 to Employment Agreement between Aeroflex Incorporated and Harvey R. Blau dated November 8, 2001 Exhibit 10.2 - Amendment No. 3 to Employment Agreement between Aeroflex Incorporated and Michael Gorin dated November 8, 2001 Exhibit 10.3 - Amendment No. 3 to Employment Agreement between Aeroflex Incorporated and Leonard Borow dated November 8, 2001 (b) Reports on Form 8-K None -20- 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. AEROFLEX INCORPORATED (REGISTRANT) November 14, 2001 By: s/Michael Gorin ---------------------------------- Michael Gorin President, Chief Financial Officer and Principal Accounting Officer -21- EX-3.1 3 arxex3-1live.txt Exhibit 3.1 PAGE 1 State of Delaware Office of the Secretary of State ------------------------------ I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF INCORPORATION OF "AEROFLEX LABORATORIES INCORPORATED", FILED IN THIS OFFICE ON THE THIRD DAY OF JANUARY, A.D. 1961, AT 10 O'CLOCK A.M. [SEAL OMITTED] /s/ Edward J. Freel [SEAL OMITTED] ----------------------------------------- Edward J. Freel, Secretary of State 0561329 8100 AUTHENTICATION: 7276018 944200245 DATE: 10-20-94 ================================================================================ AEROFLEX LABORATORIES INCORPORATED ----------------------- CERTIFICATE OF INCORPORATION ----------------------- Incorporated under the laws of the State of Delaware ================================================================================ CERTIFICATE OF INCORPORATION of AEROFLEX LABORATORIES INCORPORATED -------------------- We, the undersigned, for the purpose of associating to establish a corporation for the transaction of the business and the promotion and conduct of the objects and purposes hereinafter stated, under the provisions, and subject to the requirements, of the laws of the State of Delaware (particularly Chapter 1 of Title 8 of the Delaware Code of 1953, known as the "General Corporation Law of the State of Delaware", and the acts amendatory thereof, supplemental thereto or substituted therefor), do make and file this Certificate of Incorporation in writing and do hereby certify as follows: FIRST: The name of the corporation (hereinafter called the Corporation) is AEROFLEX LABORATORIES INCORPORATED SECOND: The respective names of the County and of the City within the County in which the principal office of the Corporation is to be located in the State of Delaware are the County of New Castle and the City of Wilmington. The name of the resident agent of the Corporation is The Corporation Trust Company. 2 The street and number of said principal office and the address by street and number of said resident agent is No. 100 West Tenth Street, in the City of Wilmington, State of Delaware. THIRD: The nature of the business of the Corporation and the objects and purposes to be transacted, promoted or carried on by it, are as follows: (a) To manufacture, process, prepare, design, develop, experiment with, equip, remodel, construct, acquire, hold, use, operate, buy, sell, lease, install, repair, service, import, export, trade and deal in and with, and to grant, receive and exercise licenses, rights and privileges in respect of the development, production, use and marketing of, any and all equipment, machines, machinery, apparatus, instruments, fixtures, appliances, devices and contrivances of any kind or nature whatsoever which perform image-forming sensory functions in the field of aerial or space reconnaissance, or which are used in any field for the control, receipt, generation, transmission, conversion, amplification or use of energy, power, light, signals or information or other data, whether based upon, involving or applying principles of electricity, electronics, mechanics, or otherwise, and any and all components, sub-assemblies, parts, appurtenances and accessories thereof, and any and all other products, materials and other things manufactured for use in or in connection with or by the use of, or used or suitable for use in or in connection with, the foregoing, and to engage in the performance of services and other related activities in connection therewith; (b) To make, manufacture, experiment with, develop, assemble, use, repair, buy, sell, lease and otherwise deal in and with machines, machinery, engines, motors, equipment, apparatus, instruments, fixtures, appliances, devices and contrivances of any kind or nature whatsoever and any parts, accessories or improvements of any thereof, of any kind 3 or nature whatsoever, and any and all other goods, articles, materials, wares and merchandise of any kind or nature whatsoever, and to engage and participate in any industrial, manufacturing, mercantile, or trading business of any kind or character whatsoever; (c) To conduct and carry on any experimental and research work in engineering and scientific fields, and to render to any person, firm, association or corporation engaged in any lawful adventure, enterprise or business, services of an engineering, scientific, business or technical nature, or concerned with the management of any business program or the production, sale, operation or servicing of any equipment, product or article of any kind whatsoever; (d) To acquire by purchase or otherwise, erect, construct, improve, maintain, operate, equip, hold, own, improve, develop, manage, lease, mortgage, create liens upon, sell, convey, or otherwise dispose of or turn to account buildings, factories, plants, laboratories, offices, shops, storehouses, tanks, buildings, roads, machinery, cars and other vehicles, and works, structures, machines and apparatus of all kinds, and any and all rights and privileges therein, in so far as the same may appertain to or be useful in the conduct of the business of the Corporation; (e) To develop, adopt, apply for, obtain, register, purchase, take licenses in respect of or otherwise acquire, maintain, protect, hold, use, own, exercise, develop, operate, introduce, sell and grant licenses or other rights in respect of, and assign or otherwise dispose of or turn to account, any inventions, devices, formulae, processes, improvements and modifications thereof, patents, patent rights, concessions, copyrights and distinctive marks and rights analogous thereto, trademarks and trade names, including such thereof as may be covered by, used in connection with, or secured or received under, the laws of the United States of America or of any other jurisdiction; 4 (f) To acquire by purchase, exchange, lease or otherwise, and to own, hold, develop, operate, sell, assign, lease, transfer, convey, exchange, mortgage, pledge or otherwise dispose of or encumber property, real or personal, tangible or intangible, of any class or description, wheresoever situated, and rights and privileges therein; (g) To borrow or raise moneys for any of the purposes of the Corporation, without limit as to amount; from time to time to issue and sell, exchange, pledge or otherwise dispose of its own securities in such amounts, on such terms and conditions, for such purposes and for such consideration, now or hereafter permitted by the laws of the State of Delaware and by this Certificate of Incorporation as the Board of Directors of the Corporation (hereinafter called the Board of Directors) may determine; and to secure such securities by mortgage upon, or the pledge of, or the conveyance or assignment in trust of, the whole or any part of the properties, assets, business and good will of the Corporation, then owned or thereafter acquired; (h) To acquire by purchase, exchange, lease or otherwise all, or any part of, or any interest in, the properties, assets, business and good will of any one or more persons, partnerships, syndicates, firms, associations or corporations heretofore or hereafter engaged in any business for which a corporation may now or hereafter be organized under the laws of the State of Delaware; to pay for the same in cash, property or its own or other securities; to hold, operate, reorganize, liquidate, sell or in any manner dispose of the whole or any part thereof; and, in connection therewith, to assume or guarantee performance of any liabilities, obligations or contracts of such persons, partnerships, syndicates, firms, associations or corporations, and to conduct the whole or any part of any business thus acquired; (i) To acquire by purchase, subscription, exchange or otherwise, to hold, mortgage, pledge, sell, assign, transfer, exchange or otherwise dispose of securities, and to pay therefor, in whole or in part, with cash or other property, or with shares, bonds, debentures, notes or other obligations, 5 of the Corporation, or in any other lawful manner whatsoever; and, while the owner or holder of any such securities, to possess and exercise in respect thereof all the rights, powers and privileges of ownership, including the right to vote thereon or consent in respect thereof for any and all purposes; and, upon a distribution or division of the profits or assets of the Corporation, to distribute any such securities; the term "securities" as used herein to include, without limitation, shares of stock, bonds, debentures, notes, mortgages or other evidences of indebtedness, and certificates, receipts or other instruments representing rights to receive, purchase or subscribe for the same, or representing any other rights or interests therein or in any property or assets, created or issued by any person, firm, association, corporation, or government or subdivision thereof; (j) To enter into, make, perform and carry out contracts and agreements of every kind and description which may be necessary, appropriate, convenient or advisable in carrying out the business of the Corporation, with any person, corporation, association, partnership, firm, trustee, syndicate, individual, government, state, municipality or other governmental division or subdivision; (k) To lend its uninvested funds from time to time to such extent, to such persons, firms, associations, corporations, syndicates, governments or subdivisions, instrumentalities or agencies thereof, and on such terms and on such security, if any, as the Board of Directors may determine; (l) To endorse or guarantee the payment of principal, interest or dividends upon, and to guarantee the performance of sinking fund or other obligations of, any securities, and to guarantee the performance of any contracts or other undertakings in which the Corporation may otherwise be or become interested, in so far as may be permitted by law; (m) To purchase, hold, cancel, reissue, sell, exchange, transfer or otherwise deal in its own securities, from time to time, to such an extent and in such manner and upon such terms as the Board of Directors may determine; provided that the Corporation 6 shall not use its funds or property for the purchase of its own shares of capital stock when such use would cause any impairment of its capital, except as otherwise permitted by law; and provided further that shares of its own capital stock belonging to the Corporation shall not be voted upon directly or indirectly; (n) To organize or cause to be organized under the laws of the State of Delaware, or of any other State of the United States of America, or of the District of Columbia, or of any territory, dependency, colony or possession of the United States of America, or of any foreign country, a corporation or corporations for the purpose of transacting, promoting or carrying on any of or all the objects or purposes for which the Corporation is organized, and to dissolve, wind up, liquidate, merge or consolidate any such corporation or corporations or to cause the same to be dissolved, wound up, liquidated, merged or consolidated; (o) To carry out all or any part of the foregoing purposes as principal, factor, agent, contractor or otherwise, either alone or in conjunction with any person, firm, association or other corporation and in any part of the world; (p) To conduct its business in any and all of its branches in the State of Delaware, and in any and all other states, territories, possessions, colonies and dependencies of the United States of America, and in the District of Columbia, and in any and all foreign countries; to have one or more offices within and without the State of Delaware; and to carry on all and any of its operations and business without restriction or limit as to amount; and (q) To do any and all things necessary, suitable, convenient or proper for, or in connection with, or incidental to, the accomplishment of any of the purposes herein enumerated, or designed directly or indirectly to promote the interests of the Corporation, or to enhance the value of any of its properties or rights; and, in general, to do any and all things and exercise any and all powers 7 which it may now or hereafter be lawful for the Corporation to do or to exercise under the laws of the State of Delaware; and to execute from time to time such general or special powers of attorney, and to such person or persons as the Board of Directors may approve, granting to such person or persons such powers as the Board of Directors may deem proper, and to revoke such powers of attorney as and when the Board of Directors may desire. It is the intention that the objects and purposes set forth in the foregoing clauses of this Article THIRD shall not, unless otherwise specified herein, be in any wise limited or restricted by reference to, or inference from, the terms of any other clause of this or any other article in this Certificate of Incorporation, but that the objects and purposes set forth in each of the clauses of this Article shall be regarded as independent objects and purposes. It is also the intention that said clauses shall be construed as powers, as well as objects and purposes, and that the foregoing enumeration of specific powers shall not be held to limit or restrict in any manner the general powers of the Corporation, and, generally, that the Corporation shall be authorized to do all things and exercise any and all powers, rights and privileges which a corporation may now or hereafter be organized to do or exercise under the General Corporation Law of the State of Delaware, or under any act amendatory thereof, supplemental thereto or substituted therefor; provided, however, that the Corporation shall not, in any state, district, 8 territory, province, possession or country, carry on any business, or exercise any powers, except to the extent that a similar corporation organized under the laws of said state, district, territory, province, possession or country could carry on such business or exercise such powers therein. Notwithstanding any other provision of this Certificate of Incorporation, the Corporation shall not have power or authority to issue bills, notes or other evidences of debt for circulation as money, or to carry on the business of receiving deposits of money or the business of buying gold or silver bullion or foreign coins, or to engage in the business of banking or insurance, or to carry on the business of constructing, maintaining or operating public utilities in the State of Delaware. FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is seven hundred fifty thousand (750,000), and the par value of each of such shares shall be One Dollar ($1). All such shares shall be of one class and shall be designated Common Stock. The minimum amount of capital with which the Corporation shall commence business is One thousand Dollars ($1,000). FIFTH: The names and places of residence of each of the incorporators are as follows: 9 Name Place of Residence ---- ------------------ W.D. Ford 30 Sutton Place, New York 22, N.Y. Robert V. Zener 415 East 80th St., New York 21, N.Y. W.J. Schrenk, Jr. 34 East 62nd St., New York 21, N.Y. SIXTH: The Corporation is to have perpetual existence. SEVENTH: The private property of the stockholders of the Corporation shall not be subject to the payment of corporate debts to any extent whatever. EIGHTH: For the management of the business and for the conduct of the affairs of the Corporation, and in further definition, limitation and regulation of the powers of the Corporation and of its directors and stockholders, it is further provided: 1. The number of directors of the Corporation shall be fixed by, or in the manner provided in, its by-laws, but in no case shall the number be less than three. A director need not be a stockholder. The election of directors of the Corporation need not be by ballot unless the by-laws so require. One-third of the directors (but not less than two) shall constitute a quorum for the transaction of business, unless the by-laws shall provide that a different number shall constitute a quorum, which in no case shall be less 10 than one-third of the total number of directors nor less than two directors. 2. In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors is expressly authorized and empowered: (a) To make, alter, amend or repeal the by-laws of the Corporation, in any manner not inconsistent with the laws of the State of Delaware or the Certificate of Incorporation of the Corporation, subject to the power of the stockholders of the Corporation having voting power to alter, amend or repeal the by-laws made by the Board of Directors; (b) Subject to the applicable provisions of the by-laws then in effect, to determine, from time to time, whether and to what extent and at what times and places and under what conditions and regulations the accounts and books and documents of the Corporation, or any of them, shall be open to the inspection of stockholders; and a stockholder shall not have any right to inspect any account or book or document of the Corporation, except as conferred by the laws of the 11 State of Delaware, unless and until authorized so to do by resolution of the Board of Directors or of the stockholders of the Corporation; (c) Without the assent or vote of the stockholders, to authorize and issue, from time to time, obligations of the Corporation, secured or unsecured, to include therein such provisions as to redeemability, convertibility into shares of stock of the Corporation or otherwise, and to authorize the mortgaging or pledging, as security therefor, of any property, real or personal, then owned or thereafter acquired by the Corporation, all as the Board of Directors, in its sole discretion, may determine; (d) To determine whether any, and, if any, what part, of the annual net profits of the Corporation or of its net assets in excess of its capital shall be declared in dividends and paid to the stockholders, and to direct and determine the use and disposition of any such annual net profits or net assets in excess of capital; (e) To fix from time to time the amount of the profits of the Corporation to be reserved as working capital or for any other lawful purpose; 12 (f) To establish bonus, profit-sharing, retirement or other types of incentive or compensation plans for the officers and employees (including officers and employees who are also directors) of the Corporation and to determine the persons to participate in any such plans and the amount of their respective participations; and in connection with the acquisition of all or any part of the property, assets, business and good will of any persons, firms, associations or corporations, to assume, adopt or enter into any such plans previously established by such persons, firms, associations or corporations; (g) To issue and sell or grant options for the purchase of shares of stock of the Corporation or shares of stock of any other corporation to officers and employees (including officers and employees who are also directors) of the Corporation and its subsidiaries for such consideration and on such terms and conditions as the Board of Directors may from time to time determine; (h) By resolution passed by a majority of the whole Board, to designate one or more committees, each committee to consist of two (2) or 13 more of the directors of the Corporation, which to the extent provided in said resolution or in the by-laws, shall have and may exercise the powers of the Board of Directors in the management of the business and affairs of the Corporation and may have power to authorize the seal of the Corporation to be affixed to all papers which may require it, such committee or committees to have such name or names as may be stated in the by-laws or as may be determined from time to time by resolution adopted by the Board of Directors; and (i) In addition to the powers and authorities hereinbefore and by the laws of the State of Delaware expressly conferred upon the Board of Directors, to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject, nevertheless, to the provisions of the laws of the State of Delaware, of this Certificate of Incorporation and of the by-laws of the Corporation. 3. Any director or officer elected or appointed by the stockholders of the Corporation or by its Board 14 of Directors may be removed at any time in such manner as shall be provided in the by-laws of the Corporation. 4. In the absence of fraud, no contract or other transaction between the Corporation any any other corporation, and no act of the Corporation, shall in any way be invalidated or otherwise affected by the fact that any one or more of the directors of the Corporation are pecuniarily or otherwise interested in, or are directors or officers of, such other corporation or have a pecuniary or other interest in such act. Any director of the Corporation individually, or any firm or association of which any director may be a member, may be a party to, or may be pecuniarily or otherwise interested in, any contract or transaction of the Corporation, provided that the fact that he individually or such firm or association is such a party or so interested shall be disclosed or shall have been known to the Board of Directors or a majority of the members thereof who shall be present at any meeting of the Board of Directors at which action upon any such contract or transaction shall be taken; and any director of the Corporation who is also a director or officer of such other corporation or who 15 is so interested, may be counted in determining the existence of a quorum at any meeting of the Board of Directors or of any committee thereof which shall authorize any such contract or transaction, and may vote thereat to authorize any such contract or transaction, with like force and effect as if he were not such director or officer of such other corporation or not so interested. Any director of the Corporation may vote upon any contract or other transaction between the Corporation and any subsidiary or affiliated corporation without regard to the fact that he is also a director of such subsidiary or affiliated corporation. Any contract, transaction or act of the Corporation, or of the Board of Directors, or of any committee of the Board of Directors, which shall be ratified by a majority of a quorum of the holders of Common Stock of the Corporation entitled to vote at any annual meeting, or at any special meeting called for such purpose, shall, in so far as permitted by law or by this Certificate of Incorporation, be as valid and as binding as though ratified by every such stockholder; provided, however, that any failure of the stockholders to approve or ratify any such contract, transaction or act, when and if submitted, shall not be deemed in any 16 way to invalidate the same or deprive the Corporation, its directors, officers or employees, of its or their right to proceed with such contract, transaction or act. 5. Subject to any limitation in the by-laws then in effect, the members of the Board of Directors shall be entitled to reasonable fees, salaries, or other compensation for their services and to reimbursement for their expenses as such members. Nothing contained herein shall preclude any director from serving the Corporation, or any subsidiary or affiliated corporation, in any other capacity and receiving proper compensation therefor. NINTH: The stockholders and the Board of Directors shall have the power, if the by-laws so provide, to hold their respective meetings outside of the State of Delaware, and, except as otherwise required by law, the corporate records, books, documents and papers of the Corporation may be kept outside of the State of Delaware. TENTH: The Company reserves the right from time to time to amend, alter, change, add to or repeal any provisions contained in this Certificate of Incorporation in any manner now or hereafter prescribed by law, and all rights and powers at any time conferred upon stockholders, directors 17 and officers of the Corporation by this Certificate of Incorporation or any amendment thereof are subject to the provisions of this Article TENTH. IN WITNESS WHEREOF, we, the undersigned, being all of the incorporators hereinabove named, do hereby further certify that the facts hereinabove stated are truly set forth, and accordingly have hereunto set our respective hands and seals this 30th day of December, 1960. /s/ W. D. Ford [L.S.] ---------------------- /s/ Robert V. Zener [L.S.] ---------------------- /s/ W. J. Schrenk, Jr. [L.S.] ---------------------- STATE OF NEW YORK, ) ) ss.: COUNTY OF NEW YORK, ) BE IT REMEMBERED that on the 30th day of December, 1960, personally appeared before me, Mark D. Geraghty, a Notary Public in and for the County and State aforesaid, W. D. Ford, Robert V. Zener and W. J. Schrenk, Jr., all the incorporators who signed the foregoing Certificate of Incorporation, known to me personally to be such, and I having made known to them and to each of them the contents of said Certificate of Incorporation, they did severally acknowledge the same to be the act and deed of the signers, respectively, and that the facts therein stated are truly set forth. GIVEN under my hand and seal of office the day and year aforesaid. /s/ Mark D. Geraghty --------------------------------- Notary Public MARK D. GERAGHTY MARK D. GERAGHTY NOTARY PUBLIC Notary Public, State of New York STATE OF NEW YORK No. 60-6490510 Qualified in Westchester County Cert. filed in New York Co. Clerk Term Expires March 30, 1962 PAGE 1 State of Delaware Office of the Secretary of State -------------------------------- I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF "AEROFLEX LABORATORIES INCORPORATED", FILED IN THIS OFFICE ON THE FOURTH DAY OF MAY, A.D. 1961, AT 10 O'CLOCK A.M. [SEAL OMITTED] /s/ Edward J. Freel [SEAL OMITTED] ----------------------------------------- Edward J. Freel, Secretary of State 0561329 8100 AUTHENTICATION: 7276019 944200245 DATE: 10-20-94 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION BEFORE PAYMENT OF CAPITAL OF AEROFLEX LABORATORIES INCORPORATED We, the undersigned, being all the incorporators of Aeroflex Laboratories Incorporated, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware DO HEREBY CERTIFY: FIRST: That Article FOURTH of the Certificate of Incorporation be, and it hereby is, amended by adding thereto a third paragraph to read as follows: "At all elections of directors of the Corporation each stockholder shall be entitled to as many votes as shall equal the number of votes which (except for this provision as to cumulative voting) he would be entitled to cast for the election of directors with respect to his shares of stock multiplied by the number of directors to be elected. He may cast all of such votes for a single director or may distribute them among the number to be voted for, or any two or more of them as he may see fit." SECOND: That a new Article be, and it hereby is, added at the end of the Certificate of Incorporation to read as follows: "ELEVENTH: No holder of stock of the Corporation shall, as such holder, have any right to purchase or subscribe for any shares of stock of the Corporation of any class, now or hereafter authorized, or any obligations or instruments which the Corporation may issue or sell that shall be convertible into or exchangeable for or entitle the holders thereof to subscribe for or purchase any shares of stock of the Corporation of any class, now or hereafter authorized, other than such right, if any, as the Board of Directors in its discretion may determine." THIRD: That no part of the capital of said Corporation has been paid, IN WITNESS WHEREOF, we have signed this Certificate this 3rd, day of May, 1961. /s/ William D. Ford ---------------------- /s/ Robert V. Zener ---------------------- /s/ W. J. Schrenk, Jr. ---------------------- -2- STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) BE IT REMEMBERED that on this 3rd day of May, A.D. 1961, personally came before me ANTHONY MAGGIO a Notary Public for the State of New York, W. D. Ford, Robert V. Zener and W. J. Schrenk, Jr., all of the incorporators of the foregoing corporation, known to me personally to be such and severally acknowledged the said amended certificate to be the act and deed of the signers respectively, and that the facts therein stated are truly set forth. GIVEN under my hand and seal of office the day and year aforesaid. /s/ Anthony Maggio ------------------------------------ Notary Public ANTHONY MAGGIO ANTHONY MAGGIO NOTARY PUBLIC Notary Public, State of New York STATE OF NEW YORK No. 41-2469000 Qualified in Queens County Certificate filed in New York County Commission Expires March 30, 1963 -3- PAGE 1 State of Delaware Office of the Secretary of State -------------------------------- I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF "AEROFLEX LABORATORIES INCORPORATED", FILED IN THIS OFFICE ON THE SECOND DAY OF MARCH, A.D. 1976, AT 10 O'CLOCK A.M. [SEAL OMITTED] /s/ Edward J. Freel [SEAL OMITTED] ----------------------------------- Edward J. Freel, Secretary of State 0561329 8100 AUTHENTICATION: 7276020 944200245 DATE: 10-20-94 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF AEROFLEX LABORATORIES INCORPORATED ***** AEROFLEX LABORATORIES INCORPORATED, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That at a meeting of the Board of Directors of AEROFLEX LABORATORIES INCORPORATED, resolutions were duly adopted setting forth a proposed amendment to the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the amendment is as follows: RESOLVED, that the Certificate of Incorporation of this corporation be amended by changing the Article thereof numbered "FOURTH" so that, as amended, said Article shall be and read as follows: "FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is one million two hundred fifty thousand (1,250,000) and the par value or each of such shares shall be Ten Cents ($.10). All such shares shall be of one class and shall be designated Common stock. At all elections of directors of the Corporation, each stockholder shall be entitled to as many votes as shall equal the number of votes which (except for this provision as to cumulative voting) he would be entitled to cast for the election of directors with respect to his shares of stock multiplied by the number of directors to be elected. He may cast all of such votes for a single director or may distribute them among the number to be voted for, or any two or more of them as he may see fit." SECOND: That thereafter, pursuant to resolution of its Board of Directors, a special meeting of the stockholders corporation was duly called and held, upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware, at which meeting the necessary number of shares required by statute were voted in favor of the amendment. 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. FOURTH: That a Certificate of Reduction of capital pursuant to Section 244 (c) of the General Corporation Law of the State of Delaware is being filed with this Certificate of Incorporation. IN WITNESS WHEREOF, said AEROFLEX LABORATORIES INCORPORATED has caused this Certificate to be signed by MILTON BRENNER, its President, and attested by MICHAEL L. EVANS, Secretary, this 26th day of February, 1976. AEROFLEX LABORATORIES INCORPORATED CORPORATE SEAL By /s/ Milton Brenner ------------------------- Milton Brenner, President ATTEST: By: /s/ Michael L. Evans --------------------------- Michael L. Evans, Secretary -2- CERTIFICATE OF REDUCTION OF CAPITAL OF AEROFLEX LABORATORIES INCORPORATED * * * * * AEROFLEX LABORATORIES INCORPORATED, a corporation organized and existing under the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That, at a meeting of the board of directors of AEROFLEX LABORATORIES INCORPORATED, resolutions were duly adopted setting forth a proposed reduction of the capital of said corporation in the manner and to the extent hereinafter set forth. SECOND: That, pursuant to the provisions of Section 244 of the General Corporation Law of the State of Delaware, a reduction of the capital of the corporation by the amount of Five Hundred Seventy One Thousand Sixty-Eight Dollars and Ninety Cents ($571,068.90) was authorized in the following manner: By transferring to surplus some or all of the capital represented by issued shares of its par value capital stock, which capital is in excess of the aggregate par value of such shares. THIRD: That the assets of the corporation remaining after such reduction are sufficient to pay any debts, the payment of which has not been otherwise provided for. IN WITNESS WHEREOF, said AEROFLEX LABORATORIES INCORPORATED has caused this certificate to be signed by MILTON BRENNER, its President, and attested by MICHAEL L. EVANS, its Secretary, this 26th day of February, 1976. AEROFLEX LABORATORIES INCORPORATED By:/s/Milton Brenner Milton Brenner, President ATTEST: By: /s/Michael L. Evans Michael L. Evans, Secretary PAGE 1 State of Delaware Office of the Secretary of State -------------------------------- I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF "AEROFLEX LABORATORIES INCORPORATED", FILED IN THIS OFFICE ON THE TWENTY-FIRST DAY OF NOVEMBER, A.D. 1980, AT 10:30 O'CLOCK A.M. [SEAL OMITTED] /s/ Edward J. Freel [SEAL OMITTED] ----------------------------------- Edward J. Freel, Secretary of State 0561329 8100 AUTHENTICATION: 7276021 944200245 DATE: 10-20-94 CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF AEROFLEX LABORATORIES INCORPORATED ******** AEROFLEX LABORATORIES INCORPORATED, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That at a meeting of the Board of Directors of AEROFLEX LABORATORIES INCORPORATED, resolutions were adopted setting forth a proposed amendment to the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. SECOND: That thereafter, pursuant to resolution of its Board of Directors, the Annual Meeting of Stockholders of said corporation was duly called and held, upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware at which meeting the necessary number of shares as required by statute were voted in favor of the following amendment: RESOLVED, that the Certificate of Incorporation of this corporation be amended by changing the "first paragraph" of the Article thereof numbered "FOURTH" so that, as amended said paragraph shall be and read as follows: "FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is Four Million Two Hundred and Fifty Thousand (4,250,000) shares, of which Three Million Two Hundred Fifty Thousand (3,250,000) shares shall be shares of Common Stock of the par value of Ten Cents ($.10) per share and One Million (1,000,000) shares shall be shares of Preferred Stock of the par value of Ten Cents ($.10) per share. The Preferred Stock may be issued in series and the number, designation, relative rights, preferences and limitations of shares of each series of Preferred Stock, $.10 per share par value shall be fixed by the Board of Directors." THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, said AEROFLEX LABORATORIES INCORPORATED has caused this certificate to be signed by Milton Brenner, its President and attested by Harvey R. Blau its Secretary, this 24th day of November, 1980. AEROFLEX LABORATORIES INCORPORATED By: /s/ Milton Brenner ------------------------------ Milton Brenner, President ATTEST: /s/ Harvey R. Blau - ------------------------- Harvey R. Blau, Secretary PAGE 1 State of Delaware Office of the Secretary of State -------------------------------- I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF "AEROFLEX LABORATORIES INCORPORATED", FILED IN THIS OFFICE ON THE EIGHTH DAY OF APRIL, A.D. 1983, AT 10 O'CLOCK A.M. [SEAL OMITTED] /s/ Edward J. Freel [SEAL OMITTED] ----------------------------------- Edward J. Freel, Secretary of State 0561329 8100 AUTHENTICATION: 7276022 944200245 DATE: 10-20-94 CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF AEROFLEX LABORATORIES INCORPORATED ****** AEROFLEX LABORATORIES INCORPORATED, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That at a meeting of the Board of Directors of AEROFLEX LABORATORIES INCORPORATED, resolutions were adopted setting forth a proposed amendment to the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of the corporation for consideration thereof. SECOND: That thereafter, pursuant to resolution of its Board of Directors, the Annual Meeting of Stockholders of said corporation was duly called and held, upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware at which meeting the necessary number of shares as required by statute were voted in favor of the following amendment: RESOLVED, that the Certificate of Incorporation of this corporation be amended by changing the "first paragraph" of the Article thereof numbered "FOURTH" so that, as amended said paragraph shall be and read as follows: "FOURTH: The total number of shares of all classes of stock, which the corporation shall have the authority to issue is SIX MILLION (6,000,000) shares, of which FIVE MILLION (5,000,000) shares shall be shares of Common Stock of the par value of Ten Cents ($.10) per share and ONE MILLION (1,000,000) shares shall be shares of Preferred Stock of the par value of Ten Cents ($.10) per share. The Preferred Stock may be issued in series and the number, designation, relative rights, preferences and limitations of shares of each series of Preferred Stock, Ten Cents ($.10) per share par value shall be fixed by the Board of Directors." THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, said AEROFLEX LABORATORIES INCORPORATED has caused this certificate to be signed by Milton Brenner, its President and attested by Robert Ramistella, its Secretary, this 7th day of April, 1983. AEROFLEX LABORATORIES INCORPORATED By: /s/ Milton Brenner ------------------------------ Milton Brenner, President ATTEST: /s/ Robert Ramistella - ---------------------------- Robert Ramistella, Secretary PAGE 1 State of Delaware Office of the Secretary of State -------------------------------- I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF "AEROFLEX LABORATORIES INCORPORATED", FILED IN THIS OFFICE ON THE TWENTY-THIRD DAY OF NOVEMBER, A.D. 1983, AT 10 O'CLOCK A.M. [SEAL OMITTED] /s/ Edward J. Freel [SEAL OMITTED] ----------------------------------- Edward J. Freel, Secretary of State 0561329 8100 AUTHENTICATION: 7276023 944200245 DATE: 10-20-94 CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF AEROFLEX LABORATORIES INCORPORATED ******** AEROFLEX LABORATORIES INCORPORATED, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That at a meeting of the Board of Directors of AEROFLEX LABORATORIES INCORPORATED, resolutions were adopted setting forth a proposed amendment to the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of the corporation for consideration thereof. SECOND: That thereafter, pursuant to resolution of its Board of Directors, the Annual Meeting of Stockholders of said corporation was duly called and held, upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware at which meeting the necessary number of shares as required by statute were voted in favor of the following amendment: RESOLVED, that the Certificate of Incorporation of this corporation be amended by changing the first paragraph of the Article thereof numbered "FOURTH" so that, as amended, said paragraph shall be and read as follows: "FOURTH: The total number of shares of all classes of stock which the corporation shall have the authority to issue is SIXTEEN MILLION (16,000,000) shares, of which FIFTEEN MILLION (15,000,000) shares shall be shares of Common Stock of the par value of Ten Cents ($.10) per share and ONE MILLION (1,000,000) shares shall be shares of Preferred Stock of the par value of Ten Cents ($.10) per share. The Preferred Stock may be issued in series and the number, designation, relative rights, preferences and limitations of shares of each series of Preferred Stock, Ten Cents ($.10) per share par value shall be fixed by the Board of Directors." THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, said AEROFLEX LABORATORIES INCORPORATED has caused this certificate to be signed by Milton Brenner, its President and attested by Frank DiMaio, its Secretary, this 11th day of November, 1983. AEROFLEX LABORATORIES INCORPORATED By: /s/ Milton Brenner ------------------------------ Milton Brenner, President ATTEST: /s/ Frank DiMaio - ----------------------- Frank DiMaio, Secretary PAGE 1 State of Delaware Office of the Secretary of State ------------------------------ I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF "AEROFLEX LABORATORIES INCORPORATED", CHANGING ITS NAME FROM "AEROFLEX LABORATORIES INCORPORATED" TO "ARX, INC.", FILED IN THIS OFFICE ON THE THIRTIETH DAY OF OCTOBER, A.D. 1985, AT 10 O'CLOCK A.M. [SEAL OMITTED] /s/ Edward J. Freel [SEAL OMITTED] ----------------------------------- Edward J. Freel, Secretary of State 0561329 8100 AUTHENTICATION: 7276024 944200245 DATE: 10-20-94 CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF AEROFLEX LABORATORIES INCORPORATED * * * * * * * AEROFLEX LABORATORIES INCORPORATED, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That at a meeting of the Board of Directors of AEROFLEX LABORATORIES INCORPORATED, resolutions were adopted setting forth proposed amendments to the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of the corporation for consideration thereof. SECOND: That thereafter, pursuant to resolution of its Board of Directors, the Annual Meeting of Stockholders of said corporation was duly called and held, upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware at which meeting the necessary number of shares as required by statute were voted in favor of the following amendments: RESOLVED, that the Certificate of Incorporation of this corporation be amended by changing the Article thereof numbered "FIRST" so that, as amended, said Article shall be and read as follows: "FIRST: The name of the corporation is ARX, Inc." and it was further RESOLVED, that the Certificate of Incorporation be further amended by deleting the following from Article "FOURTH": "At all elections of directors of the Corporation, each stockholder shall be entitled to as many votes as shall equal the number of votes which (except for this provision as to cumulative voting) he would be entitled to cast for the election of directors with respect to his shares of stock multiplied by the number of directors to be elected. He may cast all of such votes for a single director or may distribute them among the number to be voted for, or any two or more of them as he may see fit." and it was further RESOLVED, that the Certificate of Incorporation be further amended by adding Article TWELFTH to read as follows: "TWELFTH: The vote of stockholders of the Corporation required to approve any Business Combination shall be as set forth in this Article TWELFTH. The term "Business Combination" shall have the meaning ascribed to it in (a)(B) of this Article; each other capitalized term used in this Article shall have the meaning ascribed to it in (c) of this Article. (a)(A) In addition to any affirmative vote required by law or this Certificate of Incorporation and except as otherwise expressly provided in (b) of this Article TWELFTH: (1) any merger or consolidation of the Corporation or any Subsidiary with (i) any Interested Stockholder or (ii) any other corporation or entity (whether or not itself is an Interested Stockholder) which is, or after each merger or consolidation would be, an Affiliate of an Interested Stockholder; or -2- (2) any sale, lease, exchange, mortgage, pledge, transfer, or other disposition (in one transaction or a series of transactions) to or with any Interested Stockholder or any Affiliate of any Interested Stockholder of assets of the Corporation or any Subsidiary having an aggregate Fair Market Value of $5,000,000 or more; or (3) the issuance or transfer by the Corporation or any Subsidiary (in one transaction or a series of transactions) of any securities of any Affiliate or any Interested Stockholder in exchange for cash, securities or other property (or a combination thereof) having an aggregate Fair Market Value of $5,000,000 or more, other than the issuance of securities upon the conversion of convertible securities of the Corporation or any Subsidiary which were were not acquired by such Interested Stockholder (or such Affiliate) from the Corporation or a Subsidiary; or (4) the adoption of any plan or proposal for the liquidation or dissolution of the Corporation proposed by or on behalf of an Interested Stockholder or any Affiliate of any Interested Stockholder; or (5) any reclassification of securities (including any reverse stock split), or recapitalization of the Corporation, or any merger or consolidation of the Corporation with any of its Subsidiaries or any other transaction (whether or not with or into or otherwise involving an Interested Stockholder) which in any such case has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class or series of stock or securities convertible into the stock of the Corporation or any subsidiary which is directly or indirectly beneficially owned by any Interested Stockholder or any affiliate of any Interested Stockholder; -3- shall not be consummated without the affirmative vote of the holders of at least 80 percent of the combined voting power of the then outstanding shares of stock of all classes and series of the Corporation entitled to vote generally in the election of directors ("Voting Stock"), in each case voting together as a single class. Such affirmative vote shall be required notwithstanding the fact that no vote may be required, or that a lesser percentage may be specified, by law or by this Certificate of Incorporation or in any agreement with any national securities exchange or otherwise. (B) The term "Business Combination" as used in this Article TWELFTH shall mean any transaction that is referred to in any one or more clauses (1) through (5) of (a)(A) of this Article TWELFTH. (b) The provisions of (a) of this Article TWELFTH shall not be applicable to any Business Combination in respect of which all of the conditions specified in either of the following paragraphs (A) and (B) are met, and such Business Combination shall require only such affirmative vote as is required by law and any other provision of the Certificate of Incorporation; (A) such Business Combination shall have been approved by a majority of the Disinterested Directors, or (B) each of the six conditions specified in the following clauses (1) through (6) shall have been met: (1) the aggregate amount of the cash and the Fair Market Value as of the date of the consummation of the Business Combination (the "Consummation Date") of any consideration other than cash to be received by holders of Common Stock in such Business Combination shall be at least equal to the higher of the following: (i) (if applicable) the highest per share price (including any brokerage commissions, transfer taxes and soliciting dealers' fees) paid in order to acquire any shares of Common Stock beneficially owned by -4- the Interested Stockholder which were acquired beneficially by such Interested Stockholder (x) within the two-year period immediately prior to the Announcement Date or (y) in the transaction in which it became an Interested Stockholder, whichever is higher; or (ii) the Fair Market Value per share of Common Stock on the Announcement Date or on the date on which the Interested Stockholder became an Interested Stockholder (the Determination Date), whichever is higher; and (2) the aggregate amount of the cash and the Fair Market Value as of the Consummation Date of any consideration other than cash to be received per share by holders of shares of any other class or series of Voting Stock shall be at least equal to the highest of the following (it being intended that the requirements of this clause (B)(2) shall be required to be met with respect to each class and series of such outstanding Voting Stock, whether or not the Interested Stockholder beneficially owns any shares of a particular class or series of Voting Stock): (i) (if applicable) the highest per share price (including any brokerage commissions, transfer taxes and soliciting dealers' fees) paid in order to acquire any shares of such class or series of voting stock beneficially owned by the Interested Stockholder, which were acquired beneficially by such Interested Stockholder (x) within the two-year period immediately prior to the Announcement Date or (y) in the transaction in which it became an Interested Stockholder, whichever is higher; (ii) (if applicable) the highest preferential amount per share to which the holders of shares of such class or series of Voting Stock are entitled in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation; and -5- (iii) the Fair Market Value per share of such class or series of Voting Stock on the Announcement Date or the Determination Date, whichever is higher; and (3) the consideration to be received by holders of a particular class or series of outstanding Voting Stock (including Common Stock) shall be in cash or in the same form as were previously paid in order to acquire beneficially shares of such class or series of Voting Stock that are beneficially owned by the Interested Stockholder and, if the Interested Stockholder beneficially owns shares of any class or series of Voting Stock that were acquired with varying forms of consideration, the form of consideration to be received by holders of such class or series of Voting Stock shall be either cash or the form used to acquire beneficially the largest number of shares of such class or series of Voting Stock beneficially acquired prior to the Announcement Date; and (4) after such Interested Stockholder has become an Interested Stockholder and prior to the consummation of such Business Combination: (i) except as approved by a majority of the Disinterested Directors, there shall have been no failure to declare and pay at the regular dates therefor the full amount of any dividends (whether or not cumulative) payable on any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation. (ii) there shall have been (x) no reduction in the annual rate of dividends paid on the Common Stock (except as necessary to reflect any subdivision of the Common Stock), except as approved by a majority of the Disinterested Directors and (y) an increase in such annual rate of dividends (as necessary to prevent any such reduction) in the event of any reclassification (including any reverse stock split) recapitalization, reorganization or any similar transaction which has the effect of reducing the number of outstanding shares of the Common Stock, unless the failure so to increase such annual rate was approved by a majority of the Disinterested Directors; and -6- (iii) such Interested Stockholder shall not have become the beneficial owner of any additional shares of Voting Stock except as part of the transaction in which it became an Interested Stockholder; and (5) after such Interested Stockholder has become an Interested Stockholder, such Interested Stockholder shall not have received the benefit, directly or indirectly (except proportionately as a stockholder), of any loans, advances, guarantees, pledges or other financial assistance or tax credits or other tax advantages provided by the Corporation, whether in anticipation of or in connection with such Business Combination or otherwise; and (6) a proxy or information statement describing the proposed Business Combination and complying with the requirements of the Securities Exchange Act of 1934 and the rules and regulations thereunder (or any subsequent provisions replacing such Act, rules or regulations) shall be mailed to public stockholders of the Corporation at least 30 days prior to the consummation of such Business Combination (whether or not such proxy or information statement is required to be mailed pursuant to such Act or subsequent provisions). (c) For the purposes of this Article TWELFTH: (A) A "person" shall mean any individual, firm or corporation or other entity. (B) "Interested Stockholder" shall mean any person (other than the Corporation or any Subsidiary) who or which: (1) is the beneficial owner, directly or indirectly, of more than 10 percent of the combined voting power of the then outstanding shares of Voting Stock; or (2) is an Affiliate of the Interested Stockholder and at any time within the two-year period immediately prior to the date in question was the beneficial owner, directly or indirectly, of 10 percent or more of the combined voting power of the then outstanding shares of Voting Stock, or -7- (3) is an assignee of or has otherwise succeeded to the beneficial ownership of any shares of Voting Stock that were at any time within the two-year period immediately prior to the date in question beneficially owned by an Interested Stockholder, if such assignment or succession shall have occurred in the course of a transaction or series of transactions not involving a public offering within the meaning of the Securities Act of 1933. (C) A person shall be a "beneficial owner" of any Voting Stock: (1) which such person or any of its Affiliates or Associates beneficially owns, directly or indirectly; or (2) which such person or any of its Affiliates or Associates has (a) the right to acquire (whether such right is exercisable immediately or only after the passage of time), pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise, or (b) the right to vote or direct the vote pursuant to any agreement, arrangement or understanding; or (3) which are beneficially owned, directly or indirectly, by any other person with which such person or any of its Affiliates or Associates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any shares of Voting Stock. (D) For the purposes of determining whether a person is an Interested Stockholder pursuant to (c)(B) of this Article TWELFTH, the number of shares of Voting Stock deemed to be outstanding shall include shares owned through application of (c)(C) of this Article but shall not include any other shares of Voting Stock that may be issuable pursuant to any agreement, arrangement or understanding, or upon exercise of conversion rights, warrants or options, or otherwise. -8- (E) "Affiliate" and "Associate" shall have the respective meanings ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on September 1, 1985. (F) "Subsidiary" means any corporation more than 50 percent of whose outstanding stock having ordinary voting power in the election of directors is owned, directly or indirectly, by the Corporation or by a Subsidiary or by the Corporation and one or more Subsidiaries, provided, however, that for the purposes of the definition of Interested Stockholders set forth in (c)(B) of this Article TWELFTH, the term "Subsidiary" shall mean only a corporation of which a majority of each class or equity security is owned, directly or indirectly, by the Corporation. (G) "Disinterested Director" means any member of the Board of Directors of the Corporation who is unaffiliated with, and not a nominee of, the Interested Stockholder and was a member of the Board prior to the time that the Interested Stockholder became an Interested Stockholder, and any successor of a Disinterested Director who is unaffiliated with, and not a nominee of, the Interested Stockholder and who is recommended to succeed a Disinterested Director by a majority of Disinterested Directors then on the Board of Directors. (H) "Fair Market Value" means: (1) in the case of stock, the highest closing sale price during the 30-day period immediately preceding the date in question of a share of such stock in the Composite Tape for New York Stock Exchange Listed Stocks, or, if such stock is not quoted on the Composite Tape, on the New York Stock Exchange, or, if such stock is not listed on any such exchange, the highest closing sales price or bid quotation with respect to a share of such stock during the 30-day period preceding the date in question on the National Association of Securities Dealers, Inc. Automated Quotations System or any system then in use, or if no such quotations are available, the fair market value on the date in question of a share of stock as determined by a majority of the Disinterested Directors in good faith; and (2) in the case of stock of any class or series which is not traded on any United States registered securities exchange nor in the over-the-counter market or in the case of property other than cash or stock, the fair market value of such property on the date in question as determined by a majority of the Disinterested Directors in good faith. -9- (I) In the event of any Business Combination in which the Corporation survives, the phrase "other consideration to be received" as used in (b)(B)(1) and (2) of this Article TWELFTH shall include the shares of Common Stock and/or the shares of any other class of outstanding Voting Stock retained by the holders of such shares. (J) "Announcement Date" means the date of first public announcement of the proposed Business Combination. (K) "Determination Date" means the date on which the Interested Stockholder became an Interested Stockholder. (d) A majority of the Disinterested Directors of the Corporation shall have the power and duty to determine, on the basis of information known to them after reasonable inquiry, all facts necessary to determine compliance with this Article TWELFTH, including, without limitation (A) whether a person is an Interested Stockholder, (B) the number of shares of Voting Stock beneficially owned by any person, (C) whether a person is an Affiliate or Associate of another person, (D) whether the requirements of (b) of this Article TWELFTH have been met with respect to any Business Combination, and (E) 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 $5,000,000 or more. The good faith determination of a majority of the Disinterested Directors on such matters shall be conclusive and binding for all purposes of this Article TWELFTH. (e) Nothing contained in this Article TWELFTH shall be construed to relieve any Interested Stockholder from any fiduciary obligation imposed by law. (f) Notwithstanding anything contained in this Certificate of Incorporation to the contrary, the affirmative vote of the holders of at least 50% of the voting power of the Voting Stock, voting together as a single class, shall be required to alter, amend, or repeal this Article TWELFTH or to adopt any provision Inconsistent therewith." -10- and it was further RESOLVED, that the Certificate of Incorporation be further amended by adding Article "THIRTEENTH" to read as follows: "THIRTEENTH: Advance notice of stockholder nominations for the election of Directors shall be given in the manner provided in the By-Laws of the Corporation." THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, said AEROFLEX LABORATORIES INCORPORATED has caused this certificate to be signed by Milton Brenner, its President and attested by Frank DiMaio, its Secretary-Treasurer, this 29th day of October, 1985. AEROFLEX LABORATORIES INCORPORATED By: /s/ Milton Brenner ----------------------------------- Milton Brenner, President ATTEST: /s/ Frank DiMaio - --------------------------------------- Frank DiMaio, Secretary-Treasurer PAGE 1 State of Delaware Office of the Secretary of State ------------------------------ I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF "ARX, INC.", FILED IN THIS OFFICE ON THE EIGHTH DAY OF DECEMBER, A.D. 1986, AT 10 O'CLOCK A.M. [SEAL OMITTED] /s/ Edward J. Freel [SEAL OMITTED] ----------------------------------- Edward J. Freel, Secretary of State 0561329 8100 AUTHENTICATION: 7276025 944200245 DATE: 10-20-94 CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF ARX, INC. ARX, 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 at a meeting of the Board of Directors of ARX, INC., resolutions were adopted setting forth a proposed amendment to the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of the corporation for consideration thereof. SECOND: That thereafter, pursuant to resolution of its Board of Directors, the Annual Meeting of Stockholders of said corporation was duly called and held, upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware at which meeting the necessary number of shares as required by statute were voted in favor of the following amendment: RESOLVED, that the Certificate of Incorporation of this corporation be amended by adding Article "FOURTEENTH" so that, as amended, said Article shall be and read as follows: "FOURTEENTH: To the extent permitted by Section 102(b)(7) of the Delaware General Corporation Law, as the same may be supplemented and amended, 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 the foregoing shall not eliminate or limit the liability of such director (i) for any breach of such 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 General Corporation Law, or (iv) for any transaction from which such director derived an improper personal benefit." THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, said ARX, INC. has caused this certificate to be signed by Arthur J. Hendler, its Executive Vice President and attested by Richard Carey, its Secretary, this 1st day of December, 1986. ARX, INC. By: /s/ Arthur J Hendler ------------------------------------- Arthur J. Hendler Executive Vice President ATTEST: /s/ Richard Carey - --------------------------------- Richard Carey, Secretary PAGE 1 State of Delaware Office of the Secretary of State ------------------------------ I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF DESIGNATION OF "ARX, INC.", FILED IN THIS OFFICE ON THE TWENTY-THIRD DAY OF AUGUST, A.D. 1988, AT 10 O'CLOCK A.M. [SEAL OMITTED] /s/ Edward J. Freel [SEAL OMITTED] ----------------------------------- Edward J. Freel, Secretary of State 0561329 8100 AUTHENTICATION: 7276026 944200245 DATE: 10-20-94 CERTIFICATE OF DESIGNATION OF ARX, INC. SERIES A JUNIOR PARTICIPATING PREFERRED STOCK (UNDER SECTION 151(g) OF THE GENERAL CORPORATION LAW) * * * * * ARX, INC., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: That at a meeting of the Board of Directors of ARX, Inc. the following resolution was duly adopted creating a series of 150,000 shares of Preferred Stock, designated as Series A Junior Participating Preferred Stock. RESOLVED, that pursuant to the authority granted to and vested in the Board of Directors of this Corporation in accordance with the provisions of the Certificate of Incorporation, as amended, a series of Series A Junior Participating Preferred Stock, of the Corporation be, and it hereby is created, and that the designation and amount thereof and the relative rights, preferences and limitations thereof are as follows: (1) Designation and Amount. There is hereby established a series of Preferred Stock, par value $.10 per share, of the Corporation, which shall be designated as the "Series A Junior Participating Preferred Stock." The number of shares constituting such series shall be 150,000. (2) Dividends and Distributions. (A) Subject to any prior and superior rights of the holders of any series of Preferred Stock ranking prior and superior to the shares of Series A Junior Participating Preferred Stock with respect to dividends that may be authorized 1 by the Certificate of Incorporation, as amended, the holders of shares of Series A Junior Participating Preferred Stock shall be entitled prior to the payment of any dividends on shares ranking junior to the Series A Junior Participating Preferred Stock to receive, when, as and if declared by the Board of Directors out of funds legally available for the purpose, quarterly dividends payable in cash on the last day of March, June, September and December in each year (each such date being referred to herein as a "Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend Payment Date after the first issuance of a share or fraction of a share of Series A Junior Participating Preferred Stock, in an amount per share (rounded to the nearest cent) equal to the greater of (a)$1.00 or (b) subject to the provision for adjustment hereinafter set forth, 100 times the aggregate per share amount of all cash dividends, and 100 times the aggregate per share amount (payable in kind) of all non-cash dividends or other distributions other than a dividend payable in shares of Common Stock or a subdivision of the outstanding shares of Common Stock (by reclassification or otherwise), declared on the Common Stock, $.10 par value, of the Corporation (the "Common Stock") since the immediately preceding Quarterly Dividend Payment Date, or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a share of Series A Junior Participating Preferred Stock. In the event the Corporation shall at any time after August 19, 1988 (the "Rights Dividend Declaration Date") (i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case the amount to which holders of shares of Series A Junior Participating Preferred Stock were entitled immediately prior to such event under clause (b) of the preceding sentence shall be adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. (B) The Corporation shall declare a dividend or distribution on the Series A Junior Participating Preferred Stock as provided in subparagraph (A) above immediately after it declares a dividend or distribution on the Common Stock (other than a dividend payable in shares of Common Stock); provided that, in the event no dividend or distribution shall have been declared on the Common Stock during the period between any Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend Payment Date, a dividend of $1.00 per share on 2 the Series A Junior Participating Preferred Stock shall nevertheless be payable on such subsequent Quarterly Dividend Payment Date. (C) Dividends shall begin to accrue and be cumulative on outstanding shares of Series A Junior Participating Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of issue of such shares of Series A Junior Participating Preferred Stock, unless the date of issue of such shares is prior to the record date for the first Quarterly Dividend Payment Date, in which case dividends on such shares shall begin to accrue from the date of issue of such shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a date after the record date for the determination of holders of shares of Series A Junior Participating Preferred Stock entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either of which events such dividends shall begin to accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares of Series A Junior Participating Preferred Stock in an amount less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a share- by-share basis among all such shares at the time outstanding. The Board of Directors may fix a record date for the determination of holders of shares of Series A Junior Participating Preferred Stock entitled to receive payment of a dividend or distribution declared thereon, which record date shall be no more than 30 days prior to the date fixed for the payment thereof. (3) Voting Rights. The holders of shares of Series A Junior Participating Preferred Stock shall have the following voting rights: (A) Subject to the provision for adjustment hereinafter set forth, each share of Series A Junior Participating Preferred Stock shall entitle the holder thereof to 100 votes on all matters voted on at a meeting of the shareholders of the Corporation. In the event the Corporation shall at any time after the Rights Declaration Date (i) declare any dividend on Common Stock payable in shares of Common Stock, or (ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case the number of votes per share to which holders of shares of Series A Junior Participating Preferred Stock were entitled immediately prior to such event shall be adjusted by multiplying such number by a fraction the numerator of which is 3 the number of shares of Common Stack outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. (B) Except as otherwise provided herein or by law, the holders of shares of Series A Junior Participating Preferred Stock and the holders of shares of Common Stock shall vote together as one voting group on all matters voted on at a meeting of shareholders of the Corporation. (C) (i) If at any time dividends on any Series A Junior Participating Preferred Stock shall be in arrears in an amount equal to six (6) quarterly dividends thereon, the occurrence of such contingency shall mark the beginning of a period (herein called a "default period") which shall extend until such time when all accrued and unpaid dividends for all previous quarterly dividend periods and for the currently quarterly dividend period on all shares of Series A Junior Participating Preferred Stock then outstanding shall have been declared and paid or set apart for payment. During each default period, all holders of Preferred Stock (including holders of the Series A Junior Participating Preferred Stock) with dividends in arrears in an amount equal to six (6) quarterly dividends thereon, voting as a class, irrespective of series, shall have the right to elect two (2) Directors. (ii) During any default period, such voting right of the holders of Series A Junior Participating Preferred Stock may be exercised initially at a special meeting called pursuant to subparagraph (C)(iii) of this paragraph (3) or at any annual meeting of stockholders and thereafter at annual meetings of stockholders, provided that neither such voting right nor the right of the holders of any other series of Preferred Stock, if any, to increase, in certain cases, the authorized number of Directors shall be exercised unless the holders of ten percent (10%) in number of shares of Preferred Stock outstanding shall be present in person or by proxy. The absence of a quorum of the holders of Common Stock shall not affect the exercise by the holders of Preferred Stock of such voting right. At any meeting at which the holders of Preferred Stock shall exercise such voting right initially during an existing default period, they shall have the right, voting as a class, to elect Directors to fill such vacancies, if any, in the Board of Directors as may then exist up to two (2) Directors or, if such right is exercised at an annual meeting, to elect two (2) 4 Directors. If the number which may be so elected at any special meeting does not amount to the required number, the holders of the Preferred Stock shall have the right to make such increase in the number of Directors as shall be necessary to permit the election by them of the required number. After the holders of the Preferred Stock shall have exercised their right to elect Directors in any default period and during the continuance of such period, the number of Directors shall not be increased or decreased except by vote of the holders of Preferred Stock as herein provided or pursuant to the rights of any equity securities ranking senior to or pari passu with the Series A Junior Participating Preferred Stock. (iii) Unless the holders of Preferred Stock shall, during an existing default period, have previously exercised their right to elect Directors, the Board of Directors may order, or any shareholders or shareholders owning in the aggregate not less than ten percent (10%) of the total number of shares of Preferred Stock outstanding, irrespective of series, may request, the calling of a special meeting of the holders of Preferred Stock, which meeting shall thereupon be called by the President, a Vice President or the Secretary of the Corporation. The only matter which may be voted on at such meeting shall be the election of Directors. Notice of such meeting and of any annual meeting at which holders of Preferred Stock are entitled to vote pursuant to this subparagraph (C)(iii) shall be given to each holder of record of Preferred Stock by mailing a copy of such notice to him at his last address as the same appears on the books of the Corporation. Such meeting shall be called for a time not earlier than 20 days and not later than 60 days after such order or request or in default of the calling of such meeting within 60 days after such order or request, such meeting may be called on similar notice by any stockholders or shareholders owning in the aggregate not less than ten percent (10%) of the total number of shares of Preferred Stock outstanding. Notwithstanding the provisions of this subparagraph (C)(iii), no such special meeting shall be called during the period within 60 days immediately preceding the date fixed for the next annual meeting of the shareholders. (iv) In any default period, the holders of Common Stock, and other classes of stock of the Corporation if applicable, shall continue to be entitled to elect the whole number of Directors until the holders of Preferred 5 Stock shall have exercised their right to elect two (2) Directors voting as a class, after the exercise of which right, (x) the Directors so elected by the holders of Preferred Stock shall continue in office until their successors shall have been elected by such holders or until the expiration of the default period and (y) any vacancy in the Board of Directors may (except as provided in subparagraph (C)(ii) of this Paragraph (3)) be filled by vote of a majority of the remaining Directors theretofore elected by the holders of the class of stock which elected the Director whose office shall have become vacant. References in this paragraph (C) to Directors elected by the holders of a particular class of stock shall include Directors elected by such Directors to fill vacancies as provided in clause (y) of the foregoing sentence. (v) Immediately upon the expiration of a default period (x) the right of the holders of Preferred Stock as a class to elect Directors shall cease, (y) the term of any Directors elected by the holders of Preferred Stock as a class shall terminate, and (z) the number of Directors shall be such number as may be provided for in the Restated Certificate of Incorporation or By--Laws irrespective of any increase made pursuant to the provisions of subparagraph (C)(ii) of this Paragraph (3) (such number being subject, however, to change thereafter in any manner provided by law or in the certificate of incorporation or by-laws). Any vacancies in the Board of Directors effected by the provisions of clauses (y) and (z) in the preceding sentence may be filled by a majority of the remaining Directors. (D) Except as set forth herein, holders of Series A Junior Participating Preferred Stock shall have no special voting rights and their consent shall not be required (except to the extent they are entitled to vote with holders of Common Stock as set forth herein) for taking any corporate action. (4) Certain Restrictions. (A) Whenever quarterly dividends or other dividends or distributions payable on the Series A Junior Participating Preferred Stock as provided in Paragraph (2) are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or not declared, on shares of Series A Junior Participating Preferred Stock outstanding shall have been paid in full, the Corporation shall not 6 (i) declare or pay dividends on, make any other distributions on, or redeem or purchase or otherwise acquire for consideration any shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Junior Participating Preferred Stock; (ii) declare or pay dividends on or make any other distributions on any shares or stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Junior Participating Preferred Stock, except dividends paid ratably on the Series A Junior Participating Preferred Stock and all such parity stock on which dividends are payable or in arrears in proportion to the total amounts to which the holders of all such shares are then entitled; (iii) redeem or purchase or otherwise acquire for consideration shares of any stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Junior Participating Preferred Stock, provided that the Corporation may at any time redeem, purchase or otherwise acquire shares of any such parity stock in exchange for shares of any stock of the corporation ranking junior (either as to dividends or upon dissolution, liquidation or winding up) to the Series A Junior Participating Preferred Stock; (iv) purchase or otherwise acquire for consideration any shares of Series A Junior Participating Preferred Stock or any shares of stock ranking on a parity with the Series A Junior Participating Preferred Stock, except in accordance with a purchase offer made in writing or by publication (as determined by the Board of Directors) to all holders of such shares upon such terms as the Board of Directors, after consideration of the respective annual dividend rates and other relative rights and preferences of the respective series and classes, shall determine in good faith will result in fair and equitable treatment among the respective series or classes. (B) The Corporation shall not permit any subsidiary of the Corporation to purchase or otherwise acquire for consideration any shares of stock of the Corporation unless the Corporation could, under subparagraph (A) of this Paragraph (4), purchase or otherwise acquire such shares at such time and in such manner. 7 (5) Reacquired Shares. Any shares of Series A Junior Participating Preferred Stock purchased or otherwise acquired by the Corporation in any manner whatsoever shall be retired and cancelled promptly after the acquisition thereof. All such shares shall upon their cancellation become authorized but unissued shares of Preferred Stock and may be reissued as part of a new series of Preferred Stock to be created by resolution or resolutions of the Board of Directors, subject to the conditions and restrictions on issuance set forth herein. (6) Liquidation, Dissolution or Winding Up. (A) Upon any liquidation, dissolution or winding up of the Corporation, no distribution shall be made to the holders of shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Junior Participating Preferred Stock unless, prior thereto, the holders of shares of Series A Junior Participating Preferred Stock shall have received $2,500 per share, plus an amount equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the date of such payment (the "Series A Junior Participating Liquidation Preference"). Following the payment of the full amount of the Series A Junior Participating Liquidation Preference, no additional distributions shall be made to the holders of shares of Series A Junior Participating Preferred Stock unless, prior thereto, the holders of shares of Common Stock shall have received an amount per share (the "Common Adjustment") equal to the quotient obtained by dividing (i) the Series A Junior Participating Liquidation Preference by (ii) 100 (as appropriately adjusted as set forth in subparagraph (C) below to reflect such events as stocks splits, stock dividends and recapitalizations with respect to the Common Stock) (such number in clause (ii), the "Adjustment Number"). Following the payment of the full amount of the Series A Junior Participating Liquidation Preference and the Common Adjustment in respect of all outstanding shares of Series A Junior Participating Preferred Stock and Common Stock, respectively, holders of Series A Junior Participating Preferred Stock and holders of shares of Common Stock shall receive their ratable and proportionate share of the remaining assets to be distributed in the ratio of the Adjustment Number to 1 with respect to such Preferred Stock and Common Stock, on a per share basis, respectively. (B) In the event, however, that there are not sufficient assets available to permit payment in full of the 8 Series A Junior Participating Liquidation Preference and the liquidation preferences of all other series of Preferred Stock, if any, which rank on a parity with the Series A Junior Participating Preferred Stock, then such remaining assets shall be distributed ratably to the holders of such parity shares in proportion to their respective liquidation preferences. In the event, however, that there are not sufficient assets available to permit payment in full of the Common Adjustment, then such remaining assets shall be distributed ratably to the holders of Common Stock. (C) In the event the Corporation shall at any time after the Rights Dividend Declaration Date (i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case the Adjustment Number in effect immediately prior to such event shall be adjusted by multiplying such Adjustment Number by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. (7) Merger, Consolidation, etc. In case the Corporation shall enter into any merger, consolidation, combination or other transaction in which the shares of Common Stock are exchanged or changed into other stock or securities, cash and/or any other property, then in any such case each share of Series A Junior Participating Preferred Stock shall at the same time be similarly exchanged or changed in an amount per share (subject to the provision for adjustment hereinafter set forth) equal to 100 times the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, into which or for which each share of Common Stock is changed or exchanged. in the event the Corporation shall at any time after the Rights Dividend Declaration Date (i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case the amount set forth in the preceding sentence with respect to the exchange or change of shares of Series A Junior Participating Preferred Stock shall be adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of 9 Common Stock that were outstanding immediately prior to such event. (8) Redemption. The shares of Series A Junior Participating Preferred Stock shall not be redeemable. (9) Ranking. The Series A Junior Participating Preferred Stock shall rank junior to all other series of the Corporation's Preferred Stock as to the payment of dividends and other distribution of assets, unless, in accordance with authorization in the Certificate of Incorporation, as amended, and any Certificate of Designation, the terms of any such series shall provide otherwise. (10) Amendment. The Certificate of Incorporation of the Corporation, as amended, including the Certificate of Designation establishing the rights and preferences of the Series A Junior Participating Preferred Stock shall not be further amended in any manner which would alter or change the powers, references or special rights of the Series A Junior Participating Preferred Stock so as to affect them adversely without the affirmative vote of the holders of a majority of the outstanding shares of Series A Junior Participating Preferred Stock, voting separately as one voting group. (11) Fractional Shares. Series A Junior Participating Preferred Stock may be issued in fractions of a share which shall entitle the holder, in proportion to such holder's fractional shares, to exercise voting rights, receive dividends, participate in distributions and to have the benefit of all other rights of holders of Series A Junior Participating Preferred Stock. 10 IN WITNESS WHEREOF, this Certificate of Designation is executed on behalf of the Corporation by its Vice President-Finance and attested by its Secretary this 23rd day of August, 1988. ARX, INC. By /s/ Michael Gorin ---------------------- Vice President-Finance Attest: By /s/ Richard Carey - ---------------------- Secretary 11 PAGE 1 State of Delaware Office of the Secretary of State ------------------------------ I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF "ARX, INC.", FILED IN THIS OFFICE ON THE FOURTH DAY OF NOVEMBER, A.D. 1988, AT 10 O'CLOCK A.M. [SEAL OMITTED] /s/ Edward J. Freel [SEAL OMITTED] ----------------------------------- Edward J. Freel, Secretary of State 0561329 8100 AUTHENTICATION: 7276027 944200245 DATE: 10-20-94 CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF ARX, INC. ARX, 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 at a meeting of the Board of Directors of ARX, INC., resolutions were adopted setting forth a proposed amendment to the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of the corporation for consideration thereof. SECOND: That thereafter, pursuant to resolution of the Board of Directors, the Annual Meeting of Stockholders of said Corporation was duly called and held, upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware at which meeting the necessary number of shares as required by statute were voted in favor of the following amendment: RESOLVED, that the Certificate of Incorporation of this Corporation be amended by adding ARTICLE "FIFTEENTH" to read as follows: "FIFTEENTH: No action required to be taken or which may be taken at any annual or special meeting of stockholders of the corporation may be taken without a meeting, and the power of stockholders to consent in writing to the taking of any action is specifically denied. Notwithstanding anything contained in this Certificate of Incorporation to the contrary, the affirmative vote of the holders of not less than 80% of the outstanding shares of capital stock of the corporation entitled to vote generally in the election of directors (considered for this purpose as one class) shall be required to amend, alter, change or repeal this Article FIFTEENTH or to adopt any provision inconsistent herewith." THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, said ARX, INC. has caused this certificate to be signed by Michael Gorin, its President and Richard Carey, its Secretary, this 27th day of October, 1988. ARX, INC. By:/s/ Michael Gorin ----------------------- Michael Gorin President ATTEST: /s/ Richard Carey - ------------------------- Richard Carey, Secretary PAGE 1 State of Delaware Office of the Secretary of State ------------------------------ I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF "ARX, INC.", FILED IN THIS OFFICE ON THE TWENTY-THIRD DAY OF NOVEMBER, A.D. 1992, AT 10 O'CLOCK A.M. [SEAL OMITTED] /s/ Edward J. Freel [SEAL OMITTED] ----------------------------------- Edward J. Freel, Secretary of State 0561329 8100 AUTHENTICATION: 7276027 944200245 DATE: 10-20-94 CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF ARX, INC. ARX, INC., a corporation organized and existing under and by virtue of the Central Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That at a meeting of the Board of Directors of ARX, INC., resolutions were adopted setting forth a proposed amendment to the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of the corporation for consideration thereof. SECOND: That thereafter, pursuant to resolution of its Board of Directors, the Annual Meeting of Stockholders of said corporation was duly called and held, upon notice in accordance with section 222 of the General Corporation Law of the State of Delaware at which meeting the necessary number of shares as required by statute were voted in favor of the following amendment: STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 10:00 AM 11/23/1992 722328033 - 561329 RESOLVED, that the certificate of incorporation be amended by changing the Article thereof numbered "FOURTH" so that, as amended, said Article shall be and read as follows: "FOURTH: The total number of shares of all classes of stock which the corporation shall have the authority to issue is TWENTY SIX MILLION (26,000,000) shares, of which TWENTY FIVE MILLION (25,000,000) shares shall be shares of Common Stock of the par value of Ten Cents ($.10) per share and ONE MILLION (1,000,000) shares shall be shares of Preferred Stock of the par value of Ten Cents ($.10) per share. The Preferred Stock may be issued in series and the number, designation, relative rights, preferences and limitations of shares of each series of Preferred Stock, Ten Cents ($.10) per share par value shall be fixed by the Board of Directors." THIRD: That said amendment was duly adopted in accordance with the provisions of section 242 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, said ARX, INC. has caused this certificate to be signed by MICHAEL GORIN, its President and attested by RICHARD G. SATIN, its Secretary, this 11th day of November, 1992. ARX, INC. By:/s/ Michael Gorin ------------------------ MICHAEL GORIN, PRESIDENT ATTEST: /s/ Richard G. Satin - ---------------------------- RICHARD G. SATIN SECRETARY PAGE 1 State of Delaware Office of the Secretary of State ------------------------------ I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF "ARX, INC.", CHANGING ITS NAME FROM "ARX, INC." TO "AEROFLEX INCORPORATED" FILED IN THIS OFFICE ON THE NINTH DAY OF NOVEMBER, A.D. 1994, AT 12 O'CLOCK P.M. [SEAL OMITTED] /s/ Edward J. Freel [SEAL OMITTED] ----------------------------------- Edward J. Freel, Secretary of State 0561329 8100 AUTHENTICATION: 7295908 944215514 DATE: 11-09-94 CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF ARX, INC ********* ARX, Inc., corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That at a meeting of the Board of Directors of ARX, Inc, resolutions were adopted setting forth a proposed amendment to the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of the corporation for consideration thereof. SECOND: That thereafter, pursuant to resolution of its Board of Directors, the Annual Meeting of Stockholders of said corporation was duly called and held, upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware at which meeting the necessary number of shares as required by statute were voted in favor of the following amendment: RESOLVED, that the Certificate of Incorporation of this Corporation be amended by changing the Article thereof numbered "FIRST" so that, as amended, said Article shall be and read as follows: "FIRST: The name of the corporation is: AEROFLEX INCORPORATED" THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law. IN WITNESS WHEREOF, said ARX, Inc. has caused this certificate to be signed by Michael Gorin, its President and attested by Leonard Borow, its Secretary, this 9th day of November, 1994. ARX, INC. By:/s/ Michael Gorin ------------------------ Michael Gorin, President ATTEST: /s/ Leonard Borow - ------------------------ Leonard Borow, Secretary State of Delaware Office of the Secretary of State -------------------------------- I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF DESIGNATION OF "AEROFLEX INCORPORATED", FILED IN THIS OFFICE ON THE THIRTY-FIRST DAY OF AUGUST, A.D., 1998, AT 8:30 O'CLOCK A.M. A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF DEEDS. [SEAL OMITTED] /s/ Edward J. Freel ----------------------------------- [SEAL OMITTED] Edward J. Freel, Secretary of State 0561329 8100 AUTHENTICATION: 9279902 981340007 DATE: 8-31-98 AMENDED CERTIFICATE OF DESIGNATION of SERIES A JUNIOR PARTICIPATING PREFERRED STOCK of AEROFLEX INCORPORATED (Pursuant to Section 151 of the Delaware General Corporation Law) - -------------------------------------------------------------------------------- Aeroflex Incorporated, a corporation organized and existing under the General Corporation Law of the State of Delaware (hereinafter called the "Corporation"), hereby certifies that the following resolution was adopted by the Board of Directors of the Corporation as required by Section 151 of the General Corporation Law at a meeting duly called and held on August 13, 1998: RESOLVED, that pursuant to the authority granted to and vested in the Board of Directors of this Corporation (hereinafter called the "Board of Directors" or the "Board") in accordance with the provisions of the Certificate of Incorporation, as amended, the Board of Directors hereby amends, effective as of August 31, 1998, the Certificate of Designation establishing the Series A Junior Participating Preferred Stock, filed on August 23, 1988 (the "Certificate") by amending and restating the designation and number of shares, and the relative rights, preferences, and limitations of such Series A Junior Participating Preferred Stock, no shares of which have been issued, as follows: Series A Junior Participating Preferred Stock: Section 1. Designation and Amount. The shares of such series shall be designated as "Series A Junior Participating Preferred Stock" (the "Series A Preferred Stock") and the number of shares constituting the Series A Preferred Stock shall be 25,000. Such number of shares may be increased or decreased by resolution of the Board of Directors; provided, that no decrease shall reduce the number of shares of Series A Preferred Stock to a number less than the number of shares then outstanding plus the number of shares reserved for issuance upon the exercise of outstanding options, rights or warrants or upon the conversion of any outstanding securities issued by the Corporation convertible into Series A Preferred Stock. Section 2. Dividends and Distributions. (A) Subject to the rights of the holders of any shares of any series of Preferred Stock, par value $.10 per share (the "Preferred Stock"), of the Corporation (or any similar stock) ranking prior and superior to the Series A Preferred Stock with respect to dividends, the holders of shares of Series A Preferred Stock, in preference to the holders of Common Stock, par value $.10 per share (the "Common Stock"), of the Corporation, and of any other junior stock, shall be entitled to receive, when, as and if declared by the Board of Directors out of funds legally available for the purpose, quarterly dividends payable in cash on the first day of March, June, September and December in each year (each such date being referred to herein as a "Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend Payment Date after the first issuance of a share or fraction of a share of Series A Preferred Stock, in an amount per share (rounded to the nearest cent) equal to the greater of (a) $1 or (b) subject to the provision for adjustment hereinafter set forth, 1,000 times the aggregate per share amount of all cash dividends, and 1,000 times the aggregate per share amount (payable in kind) of all non-cash dividends or other distributions, other than a dividend payable in shares of Common Stock or a subdivision of the outstanding shares of Common Stock (by reclassification or otherwise), declared on the Common Stock since the immediately preceding Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a share of Series A Preferred Stock. In the event the Corporation shall at any time after the date hereof declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the amount to which holders of shares of Series A Preferred Stock were entitled immediately prior to such event under clause (b) of the preceding sentence shall be adjusted by multiplying such amount by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. (B) The Corporation shall declare a dividend or distribution on the Series A Preferred Stock as provided in paragraph (A) of this Section immediately after it declares a dividend or distribution on the Common Stock (other than a dividend payable in shares of Common Stock); provided that, in the event no dividend or distribution shall have been declared on the Common Stock during the period between any Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend Payment Date, a dividend of $1 per share on the Series A Preferred Stock shall nevertheless be payable on such subsequent Quarterly Dividend Payment Date. (C) Dividends shall begin to accrue and be cumulative on outstanding shares of Series A Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of issue of such shares, unless the date of issue of such shares is prior to the record date for the first Quarterly Dividend Payment Date, in which case dividends on such shares shall begin to accrue from the date of issue of such shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a date after the record date for the determination of holders of shares of Series A Preferred Stock entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either of which events such dividends shall begin to accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares of Series A Preferred Stock in an amount less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares at the time outstanding. The Board of Directors may fix a record date for the determination of holders of shares of Series A Preferred Stock entitled to receive payment of a dividend or distribution declared thereon, which record date shall be not more than 60 days prior to the date fixed for the payment thereof. Section 3. Voting Rights. The holders of shares of Series A Preferred Stock shall have the following voting rights: (A) Subject to the provision for adjustment hereinafter set forth, each share of Series A Preferred Stock shall entitle the holder thereof to 1,000 votes on all matters submitted to a vote of the stockholders of the Corporation. In the event the Corporation shall at any time after the date hereof declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the number of votes per share to which holders of shares of Series A Preferred Stock were entitled immediately prior to such event shall be adjusted by multiplying such number by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. (B) Except as otherwise provided herein, in any other Certificate of Designation creating a series of Preferred Stock or any similar stock, or by law, the holders of shares of Series A Preferred Stock and the holders of shares of Common Stock and any other capital stock of the Corporation having general voting rights shall vote together as one class on all matters submitted to a vote of stockholders of the Corporation. (C) Except as set forth herein, or as otherwise provided by law, holders of Series A Preferred Stock shall have no special voting rights and their consent shall not be required (except to the extent they are entitled to vote with holders of Common Stock as set forth herein) for taking any corporate action. Section 4. Certain Restrictions. (A) Whenever quarterly dividends or other dividends or distributions payable on the Series A Preferred Stock as provided in Section 2 are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or not declared, on shares of Series A Preferred Stock outstanding shall have been paid in full, the Corporation shall not: (i) declare or pay dividends, or make any other distributions, on any shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred Stock; (ii) declare or pay dividends, or make any other distributions, on any shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Preferred Stock, except dividends paid ratably on the Series A Preferred Stock and all such parity stock on which dividends are payable or in arrears in proportion to the total amounts to which the holders of all such shares are then entitled; (iii) redeem or purchase or otherwise acquire for consideration shares of any stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred Stock, provided that the Corporation may at any time redeem, purchase or otherwise acquire shares of any such junior stock in exchange for shares of any stock of the Corporation ranking junior (either as to dividends or upon dissolution, liquidation or winding up) to the Series A Preferred Stock; or (iv) redeem or purchase or otherwise acquire for consideration any shares of Series A Preferred Stock, or any shares of stock ranking on a parity with the Series A Preferred Stock, except in accordance with a purchase offer made in writing or by publication (as determined by the Board of Directors) to all holders of such shares upon such terms as the Board of Directors, after consideration of the respective annual dividend rates and other relative rights and preferences of the respective series and classes, shall determine in good faith will result in fair and equitable treatment among the respective series or classes. (B) The Corporation shall not permit any subsidiary of the Corporation to purchase or otherwise acquire for consideration any shares of stock of the Corporation unless the Corporation could, under paragraph (A) of this Section 4, purchase or otherwise acquire such shares at such time and in such manner. Section 5. Reacquired Shares. Any shares of Series A Preferred Stock purchased or otherwise acquired by the Corporation in any manner whatsoever shall be retired and cancelled promptly after the acquisition thereof. All such shares shall upon their cancellation become authorized but unissued shares of Preferred Stock and may be reissued as part of a new series of Preferred Stock subject to the conditions and restrictions on issuance set forth herein, in the Certificate of Incorporation, as amended, or in any other Certificate of Designation creating a series of Preferred Stock or any similar stock or as otherwise required by law. Section 6. Liquidation, Dissolution or Winding Up. Upon any liquidation, dissolution or winding up of the Corporation, no distribution shall be made (1) to the holders of shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred Stock unless, prior thereto, the holders of shares of Series A Preferred Stock shall have received $1,000 per share, plus an amount equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the date of such payment, provided that the holders of shares of Series A Preferred Stock shall be entitled to receive an aggregate amount per share, subject to the provision for adjustment hereinafter set forth, equal to 1,000 times the aggregate amount to be distributed per share to holders of shares of Common Stock, or (2) to the holders of shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Preferred Stock, except distributions made ratably on the Series A Preferred Stock and all such parity stock in proportion to the total amounts to which the holders of all such shares are entitled upon such liquidation, dissolution or winding up. In the event the Corporation shall at any time after the date hereof declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the aggregate amount to which holders of shares of Series A Preferred Stock were entitled immediately prior to such event under the proviso in clause (1) of the preceding sentence shall be adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstading immediately prior to such event. Section 7. Consolidation, Merger, etc. In case the Corporation shall enter into any consolidation, merger, combination or other transaction in which the shares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then in any such case each share of Series A Preferred Stock shall at the same time be similarly exchanged or changed into an amount per share, subject to the provision for adjustment hereinafter set forth, equal to 1,000 times the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, into which or for which each share of Common Stock is changed or exchanged. In the event the Corporation shall at any time after the date hereof declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the amount set forth in the preceding sentence with respect to the exchange or change of shares of Series A Preferred Stock shall be adjusted by multiplying such amount by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. Section 8. No Redemption. The shares of Series A Preferred Stock shall not be redeemable. Section 9. Rank. The Series A Preferred Stock shall rank, with respect to the payment of dividends and the distribution of assets, junior to all series of any other class of the Corporation's Preferred Stock. Section 10. Amendment. The Certificate of Incorporation of the Corporation, as amended, shall not be amended in any manner which would materially alter or change the powers, preferences or special rights of the Series A Preferred Stock so as to affect them adversely without the affirmative vote of the holders of at least two-thirds of the outstanding shares of Series A Preferred Stock, voting together as a single class. IN WITNESS WHEREOF, this Amended Certificate of Designation is executed on behalf of the Corporation by its President and attested by its Treasurer and Assistant Secretary this 31st day of August, 1998. /s/ Michael Gorin -------------------------------------- Name: Michael Gorin Title: President Attest: /s/ Charles Badlato - ---------------------------------------- Name: Charles Badlato Title: Treasurer and Assistant Secretary State of Delaware Page 1 Office of the Secretary of State --------------------------- I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF "AEROFLEX INCORPORATED", FILED IN THIS OFFICE ON THE TENTH DAY OF FEBRUARY, A.D. 1999, AT 12:29 O'CLOCK P.M. A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF DEEDS. /s/ Edward J. Freel ----------------------------------- Edward J. Freel, Secretary of State 0561329 8100 AUTHENTICATION: 9569416 991052804 DATE: 02-10-99 CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF AEROFLEX INCORPORATED AEROFLEX INCORPORATED, a corporation organized and existing under the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That at a meeting of the Board of Directors, Inc. of AEROFLEX INCORPORATED, resolutions were adopted setting forth a proposed amendment to the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of the corporation for consideration thereof. SECOND: That thereafter, pursuant to resolution of its Board of Directors, the Annual Meeting of Stockholders of said corporation was duly called and held, upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware at which meeting the necessary number of shares as required by statute were voted in favor of the following amendment: RESOLVED, that the Certificate of Incorporation of this corporation be amended by changing Article FOURTH of the Company's Certificate of Incorporation, so that, as amended said Article shall be and read as follows: "FOURTH: The total number of shares of all classes of stock which the corporation shall have the authority to issue is FORTY ONE MILLION (41,000,000) shares, of which FORTY MILLION (40,000,000) shares shall be shares of Common Stock of the par value of Ten Cents ($.10) per share and ONE MILLION (1,000,000) shares shall be shares of Preferred Stock of the par value of Ten Cents ($.10) per share. The Preferred Stock may be issued in series and the number, designation, relative rights, preferences and limitations of shares of each series of Preferred Stock, Ten Cents ($.10) per share par value shall be fixed by the Board of Directors." THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, said AEROFLEX INCORPORATED has caused this certificate to be signed by MICHAEL GORIN, its President and LEONARD BOROW, its Secretary, this 29th day of January, 1999. AEROFLEX INCORPORATED By:/s/ Michael Gorin Michael Gorin, President ATTEST: By: /s/ Leonard Borow Leonard Borow, Secretary State of Delaware Page 1 Office of the Secretary of State --------------------------- I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF DESIGNATION OF "AEROFLEX INCORPORATED", FILED IN THIS OFFICE ON THE TENTH DAY OF FEBRUARY, A.D. 1999, AT 12:30 O'CLOCK P.M. A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF DEEDS. /s/ Edward J. Freel ----------------------------------- Edward J. Freel, Secretary of State 0561329 8100 AUTHENTICATION: 9569510 991052809 DATE: 02-10-99 AMENDMENT TO CERTIFICATE OF DESIGNATION of SERIES A JUNIOR PARTICIPATING PREFERRED STOCK of AEROFLEX INCORPORATED (Pursuant to Section 151 of the Delaware General Corporation Law) Aeroflex Incorporated, a corporation organized and existing under the General Corporation Law of the State of Delaware (hereinafter called the "Corporation"), hereby certifies that the following resolution was adopted by the Board of Directors of the Corporation as required by Section 151 of the General Corporation Law at a meeting duly called and held on November 17, 1998: RESOLVED, that pursuant to the authority granted to and vested in the Board of Directors of this Corporation (hereinafter called the "Board of Directors" or the "Board") in accordance with the provisions of the Certificate of Incorporation, as amended, the Board of Directors hereby amends, effective as of the date of filing hereof, the Certificate of Designation establishing the Series A Junior Participating Preferred Stock, filed on August 23, 1988 and amended and restated effective August 31, 1998 (the "Certificate") by amending and restating Section 1 of the Certificate establishing the designation and number of such Series A Junior Participating Preferred Stock, no shares of which have been issued, so that, as amended, such Section 1 shall read as follows: "Section 1. Designation and Amount. The shares of such series shall be designated as "Series A Junior Participating Preferred Stock" (the "Series A Preferred Stock") and the number of shares constituting the Series A Preferred Stock shall be 40,000. Such number of shares may be increased or decreased by resolution of the Board of Directors; provided, that no decrease shall reduce the number of shares of Series A Preferred Stock to a number less than the number of shares then outstanding plus the number of shares reserved for issuance upon the exercise of outstanding options, rights or warrants or upon the conversion of any outstanding securities issued by the Corporation convertible into Series A Preferred Stock." IN WITNESS WHEREOF, this Amended Certificate of Designation is executed on behalf of the Corporation by its President and attested by its Treasurer and Assistant Secretary this 28th day of January, 1999. /s/ Michael Gorin Name: Michael Gorin Title: President Attest: /s/ Charles Badlato Name: Charles Badlato Title: Treasurer and Assistant Secretary PAGE 1 State of Delaware Office of the Secretary of State ------------------------------ I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF "AEROFLEX INCORPORATED", FILED IN THIS OFFICE ON THE SIXTH DAY OF NOVEMBER, A.D. 2000, AT 12:59 O'CLOCK P.M. A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF DEEDS. [SEAL OMITTED] /s/ Edward J. Freel [SEAL OMITTED] ----------------------------------------- Edward J. Freel, Secretary of State 0561329 8100 AUTHENTICATION: 0780076 001559387 DATE: 11-08-00 CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF AEROFLEX INCORPORATED AEROFLEX INCORPORATED, a corporation organized and existing under the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That at a meeting of the Board of Directors, Inc. of AEROFLEX INCORPORATED, resolutions were adopted setting forth a proposed amendment to the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of the corporation for consideration thereof. SECOND: That thereafter, pursuant to resolution of its Board of Directors, the Annual Meeting of Stockholders of said corporation was duly called and held, upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware at which meeting the necessary number of shares as required by statute were voted in favor of the following amendment: RESOLVED, that the Certificate of Incorporation of this corporation be amended by changing Article FOURTH of the Company's Certificate of Incorporation, so that, as amended said Article shall be and read as follows: "FOURTH: The total number of shares of all classes of stock which the corporation shall have the authority to issue is EIGHTY ONE MILLION (81,000,000) shares, of which EIGHTY MILLION (80,000,000) shares shall be shares of Common Stock of the par value of Ten Cents ($.10) per share and ONE MILLION (1,000,000) shares shall be shares of Preferred Stock of the par value of Ten Cents ($.10) per share. The Preferred Stock may be issued in series and the number, designation, relative rights, preferences and limitations of shares of each series of Preferred Stock, Ten Cents ($.10) per share par value shall be fixed by the Board of Directors." THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, said AEROFLEX INCORPORATED has caused this certificate to be signed by MICHAEL GORIN, its President and LEONARD BOROW, its Secretary, this 3rd day of November, 2000. AEROFLEX INCORPORATED By: /s/ Michael Gorin Michael Gorin, President ATTEST: By: /s/ Leonard Borow Leonard Borow, Secretary PAGE 1 State of Delaware Office of the Secretary of State ------------------------------ I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF DESIGNATION OF "AEROFLEX INCORPORATED", FILED IN THIS OFFICE ON THE SIXTH DAY OF NOVEMBER, A.D. 2000, AT 1:00 O'CLOCK P.M. A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF DEEDS. [SEAL OMITTED] /s/ Edward J. Freel [SEAL OMITTED] ----------------------------------------- Edward J. Freel, Secretary of State 0561329 8100 AUTHENTICATION: 0781061 001559388 DATE: 11-08-00 AMENDED CERTIFICATE OF DESIGNATION of SERIES A JUNIOR PARTICIPATING PREFERRED STOCK of AEROFLEX INCORPORATED (Pursuant to Section 151 of the Delaware General Corporation Law) - -------------------------------------------------------------------------------- Aeroflex Incorporated, a corporation organized and existing under the General Corporation Law of the State of Delaware (hereinafter called the "Corporation"), hereby certifies that the following resolution was adopted by the Board of Directors of the Corporation as required by Section 151 of the General Corporation Law at a meeting duly called and held on November 2, 2000: RESOLVED, that pursuant to the authority granted to and vested in the Board of Directors of this Corporation (hereinafter called the "Board of Directors" or the "Board") in accordance with the provisions of the Certificate of Incorporation, as amended, the Board of Directors hereby amends, effective as of the date of filing hereof, the Certificate of Designation establishing the Series A Junior Participating Preferred Stock, filed on August 23, 1988, amended and restated effective August 31, 1998 and amended February 10, 1999 (the "Certificate") by amending and restating Section 1 of the Certificate establishing the designation and number of such Series A Junior Participating Preferred Stock, no shares of which have been issued, so that, as amended, such Section 1 shall read as follows: "Section 1. Designation and Amount. The shares of such series shall be designated as "Series A Junior Participating Preferred Stock" (the "Series A Preferred Stock") and the number of shares constituting the Series A Preferred Stock shall be 80,000. Such number of shares may be increased or decreased by resolution of the Board of Directors; provided, that no decrease shall reduce the number of shares of Series A Preferred Stock to a number less than the number of shares then outstanding plus the number of shares reserved for issuance upon the exercise of outstanding options, rights or warrants or upon the conversion of any outstanding securities issued by the Corporation convertible into Series A Preferred Stock." IN WITNESS WHEREOF, this Amended Certificate of Designation is executed on behalf of the Corporation by its President and attested by its Treasurer and Assistant Secretary this 3rd day of November, 2000. /s/ Michael Gorin Name: Michael Gorin Title: President Attest: /s/ Charles Badlato Name: Charles Badlato Title: Treasurer and Assistant Secretary CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF AEROFLEX INCORPORATED AEROFLEX INCORPORATED, a corporation organized and existing under the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That at a meeting of the Board of Directors, Inc. of AEROFLEX INCORPORATED, resolutions were adopted setting forth a proposed amendment to the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of the corporation for consideration thereof. SECOND: That thereafter, pursuant to resolution of its Board of Directors, the Annual Meeting of Stockholders of said corporation was duly called and held, upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware at which meeting the necessary number of shares as required by statute were voted in favor of the following amendment: RESOLVED, that the Certificate of Incorporation of this corporation be amended by changing Article FOURTH of the Company's Certificate of Incorporation, so that, as amended said Article shall be and read as follows: "FOURTH: The total number of shares of all classes of stock which the corporation shall have the authority to issue is ONE HUNDRED ELEVEN MILLION (111,000,000) shares, of which ONE HUNDRED TEN MILLION (110,000,000) shares shall be shares of Common Stock of the par value of Ten Cents ($.10) per share and ONE MILLION (1,000,000) shares shall be shares of Preferred Stock of the par value of Ten Cents ($.10) per share. The Preferred Stock may be issued in series and the number, designation, relative rights, preferences and limitations of shares of each series of Preferred Stock, Ten Cents ($.10) per share par value shall be fixed by the Board of Directors." THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, said AEROFLEX INCORPORATED has caused this certificate to be signed by MICHAEL GORIN, its President and LEONARD BOROW, its Secretary, this 8th day of November, 2001. AEROFLEX INCORPORATED By: /s/ Michael Gorin Michael Gorin, President ATTEST: By: /s/ Leonard Borow Leonard Borow, Secretary AMENDED CERTIFICATE OF DESIGNATION of SERIES A JUNIOR PARTICIPATING PREFERRED STOCK of AEROFLEX INCORPORATED (Pursuant to Section 151 of the Delaware General Corporation Law) Aeroflex Incorporated, a corporation organized and existing under the General Corporation Law of the State of Delaware (hereinafter called the "Corporation"), hereby certifies that the following resolution was adopted by the Board of Directors of the Corporation as required by Section 151 of the General Corporation Law at a meeting duly called and held on November 2, 2000: RESOLVED, that pursuant to the authority granted to and vested in the Board of Directors of this Corporation (hereinafter called the "Board of Directors" or the "Board") in accordance with the provisions of the Certificate of Incorporation, as amended, the Board of Directors hereby amends, effective as of the date of filing hereof, the Certificate of Designation establishing the Series A Junior Participating Preferred Stock, filed on August 23, 1988, amended and restated effective August 31, 1998 and amended February 10, 1999 and November 6, 2000 (the "Certificate") by amending and restating Section 1 of the Certificate establishing the designation and number of such Series A Junior Participating Preferred Stock, no shares of which have been issued, so that, as amended, such Section 1 shall read as follows: "Section 1. Designation and Amount. The shares of such series shall be designated as "Series A Junior Participating Preferred Stock" (the "Series A Preferred Stock") and the number of shares constituting the Series A Preferred Stock shall be 110,000. Such number of shares may be increased or decreased by resolution of the Board of Directors; provided, that no decrease shall reduce the number of shares of Series A Preferred Stock to a number less than the number of shares then outstanding plus the number of shares reserved for issuance upon the exercise of outstanding options, rights or warrants or upon the conversion of any outstanding securities issued by the Corporation convertible into Series A Preferred Stock." IN WITNESS WHEREOF, this Amended Certificate of Designation is executed on behalf of the Corporation by its President and attested by its Treasurer and Assistant Secretary this 8th day of November, 2001. /s/ Michael Gorin Name: Michael Gorin Title: President Attest: /s/ Charles Badlato Name: Charles Badlato Title: Treasurer and Assistant Secretary EX-3.2 4 arxex3-2live.txt Exhibit 3.2 Amended as of November 2001 AEROFLEX INCORPORATED (Formerly: ARX, INC. and AEROFLEX LABORATORIES INCORPORATED) * * * * * * AMENDED BY-LAWS * * * * * * ARTICLE I OFFICES Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETING OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of directors shall be held in the City of Wilmington, State of Delaware, at such place as may be fixed from time to time by the board of directors, or at such other place either within or without the State of Delaware as shall be designated from time to time by the board of directors and stated in the notice of the meeting. Meetings of stockholders for any other purpose may be held at such time and 1 place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders shall be held on the second Wednesday of December if not a legal holiday, and if a legal holiday, then on the next secular day following, at 10:00 a.m., or at such other date and time as shall be designated from time to time by the board of directors and stated in the notice of the meeting, at which they shall elect by a plurality vote those directors whose terms have expired pursuant to the provisions of the certificate of incorporation, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. 2 Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or the certificate of incorporation, may be called by the president or secretary and shall be called by the president or secretary at the written request of stockholders owning at least sixty-six and two-thirds (66-2/3%) percent of the entire capital stock of the corporation issued and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose for which the meeting is called, shall be given not less than ten nor more than fifty days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. No business may be transacted at an annual meeting of stockholders, other than business that is either (a) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the board of directors (or any duly authorized committee thereof), (b) otherwise properly brought before the annual meeting by or at the direction of the board of directors (or any duly authorized committee thereof) or (c) otherwise properly brought before the annual meeting by any stockholder of the corporation (i) who is a stockholder of record on the date of the giving of the notice provided for in this By-law and on the record date for the determination of stockholders entitled to vote at such annual meeting and (ii) who complies with the notice procedures set forth in this By-law. In addition to any other applicable requirements, for business to be properly brought before an annual meeting by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the corporation. 3 To be timely, a stockholder's notice to the Secretary must be delivered to or mailed and received at the principal executive offices of the corporation not less than ninety (90) days nor more than one hundred-twenty (120) days prior to the anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that in the event that the annual meeting is called for a date that is not within twenty-five (25) days before or after such anniversary date, notice by the stockholder in order to be timely must be so received not later than the close of business on the tenth (10th) day following the day on which such notice of the date of the annual meeting was mailed or such public disclosure of the date of the annual meeting was made, whichever first occurs. To be in proper written form, a stockholder's notice to the Secretary must set forth as to each matter such stockholder proposes to bring before the annual meeting (i) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (ii) the name and record address of such stockholder, (iii) the class and series and number of shares of each class and series of capital stock of the corporation which are owned beneficially or of record by such stockholder, (iv) a description of all arrangements or understandings between such stockholder and any other person or persons (including their names) in connection with the proposal of such business by such stockholder and any material interest of such stockholder in such business and (v) a representation that such stockholder is a holder of record of stock of the corporation entitled to vote at such meeting and that such stockholder intends to appear in person or by proxy at the annual meeting to bring such business before the meeting. 4 In addition, notwithstanding anything in this By-law to the contrary, a stockholder intending to nominate one or more persons for election as a director at an annual or special meeting of stockholders must comply with Article II, Section 8 of these By-laws for such nominations to be properly brought before such meeting. No business shall be conducted at the annual meeting of stockholders except business brought before the annual meeting in accordance with the procedures set forth in this By-law; provided, however, that, once business has been properly brought before the annual meeting in accordance with such procedures, nothing in this By-law shall be deemed to preclude discussion by any stockholder of any such business. If the Chairman of an annual meeting determines that business was not properly brought before the annual meeting in accordance with the foregoing procedures, the Chairman shall declare to the meeting that the business was not properly brought before the meeting and such business shall not be transacted. No business shall be conducted at a special meeting of stockholders except for such business as shall have been brought before the meeting pursuant to the corporation's notice of meeting. Section 8. Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors of the corporation, 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 to elect directors under specified circumstances. Nominations of persons for election to the board of directors may be made at any annual meeting of stockholders, or at any special meeting of stockholders called for the purpose of electing directors, (a) by or at the direction of the board of directors (or any duly authorized committee thereof) or (b) by any stockholder of the corporation (i) 5 who is a stockholder of record on the date of the giving of the notice provided for in this By-law and on the record date for the determination of stockholders entitled to vote at such meeting and (ii) who complies with the notice procedures set forth in this By-law. In addition to any other applicable requirements, for a nomination to be made by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the corporation. To be timely, a stockholder's notice to the Secretary must be delivered to or mailed and received at the principal executive offices of the corporation (a) in the case of an annual meeting, not less than ninety (90) days nor more than one hundred-twenty (120) days prior to the anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that in the event that the annual meeting is called for a date that is not within twenty-five (25) days before or after such anniversary date, notice by the stockholder in order to be timely must be so received not later than the close of business on the tenth (10th) day following the day on which such notice of the date of the annual meeting was mailed or such public disclosure of the date of the annual meeting was made, whichever first occurs; and (b) in the case of a special meeting of stockholders called for the purpose of electing directors, not later than the close of business on the tenth (10th) day following the day on which notice of the date of the special meeting was mailed or public disclosure of the date of the special meeting was made, whichever first occurs. To be in proper written form, a stockholder's notice to the Secretary must set forth (a) as to each person whom the stockholder proposes to nominate for election as a director (i) the name, age, business address and residence address of the person, (ii) the principal occupation and employment of the person, (iii) 6 the class and series and number of shares of each class and series of capital stock of the corporation which are owned beneficially or of record by the person and (iv) any other information relating to the person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Securities Exchange Act of 1934, as amended (the "Exchange Act") (or in any law or statute replacing such section), and the rules and regulations promulgated thereunder; and (b) as to the stockholder giving the notice (i) the name and record address of such stockholder, (ii) the class and series and number of shares of each class and series of capital stock of the corporation which are owned beneficially or of record by such stockholder, (iii) a description of all arrangements or understandings between such stockholder and each proposed nominee and any other person or persons (including their names) pursuant to which the nomination(s) are to be made by such stockholder, (iv) a representation that such stockholder is a holder of record of stock of the corporation entitled to vote at such meeting and that such stockholder intends to appear in person or by proxy at the meeting to nominate the person or persons named in its notice and (v) any other information relating to such stockholder that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange Act (or in any law or statute replacing such section) and the rules and regulations promulgated thereunder. Such notice must be accompanied by a written consent of each proposed nominee to being named as a nominee and to serve as a director if elected. No person shall be eligible for election as a director of the corporation unless nominated in accordance with the procedures set forth in this By-law. If 7 the Chairman of the meeting determines that a nomination was not made in accordance with the foregoing procedures, the Chairman shall declare to the meeting that the nomination was defective and such defective nomination shall be disregarded. Section 9. Except as otherwise provided by law or by the certificate of incorporation, the holders of a majority of the outstanding shares of the corporation entitled to vote generally in the election of directors (the "Voting Stock"), represented in person or by proxy, shall constitute a quorum at a meeting of stockholders, except that when specified business is to be voted on by a class or series of stock voting as a class, the holders of a majority of the shares of such class or series shall constitute a quorum of such class or series for the transaction of such business. The Chairman of the meeting or a majority of the shares so represented may adjourn the meeting from time to time, whether or not there is such a quorum. No notice of the time and place of adjourned meetings need by given except as required by law. The stockholders present at a duly called meeting at which a quorum is present may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. The Chairman of the meeting shall fix and announce at the meeting the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting. Section 10. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. 8 Section 11. Unless otherwise provided in the certificate of incorporation or certificates of designations, and preferences, each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be not less than three nor more than twelve. No director need be a stockholder of the corporation. Any director may be removed from office with cause at any time by the affirmative vote of stockholders of record holding a majority of the outstanding shares of stock of the corporation entitled to vote, given at a meeting of the stockholders called for that purpose. Section 2. The board of directors shall be divided into three classes as nearly equal in number as possible. The terms of office of the directors initially classified shall be as follows: that of Class I shall expire at the next annual meeting of stockholders in 1981, Class II at the second succeeding annual meeting of stockholders in 1982 and Class III at the third succeeding annual meeting of stockholders in 1983. At each annual meeting of stockholders after such initial classification, directors chosen to succeed those whose terms than expire at such annual meeting shall be elected for a term of office expiring at the third succeeding annual meeting of shareholders after their election. When the number of directors is increased by the board of directors and any newly created directorships are filled by the board of directors, there shall be no classification of the additional directors until the next annual 9 meeting of stockholders. Directors elected, whether by the board of directors or by the stockholders, to fill a vacancy, subject to the foregoing, shall hold office for a term expiring at the annual meeting at which the term of the Class to which they have been elected expires. The foregoing notwithstanding, each director shall serve until his successor shall have been duly elected and qualified, unless he shall resign, become disqualified, disabled or shall otherwise be removed. Whenever a vacancy occurs on the board of directors, a majority of the remaining directors have the power to fill the vacancy by electing a successor director to fill that portion of the unexpired term resulting from the vacancy. Section 3. The business of the corporation shall be managed by its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. Section 4. The board of directors shall choose a chairman of the board of directors who shall preside at all meetings of stockholders and directors. MEETINGS OF THE BOARD OF DIRECTORS Section 5. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 6. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided that a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of the first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the 10 stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all the directors. Section 7. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board. Section 8. Special meetings of the board may be called by the chairman of the board or president on three days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the chairman of the board or the president or secretary in like manner and on like notice on the written request of two directors. Section 9. At all meetings of the board a majority of the board of directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 10. Unless otherwise restricted by the certificate of incorporation or these by- laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. COMMITTEES OF DIRECTORS 11 Section 11. The board of directors, may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member of any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Section 12. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. 12 COMPENSATION OF DIRECTORS Section 13. Unless otherwise restricted by the certificate of incorporation, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by-laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V 13 OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a chairman of the board of directors, a president, one or more vice-presidents, a secretary and a treasurer. The board of directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. Any number of offices may be held by the same person, unless the certificate of incorporation or these by-laws otherwise provide. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose a chairman of the board of directors, a president, one or more vice- presidents, a secretary and a treasurer. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE CHAIRMAN OF THE BOARD Section 6. The chairman of the board of directors shall be the chief executive officer of the corporation. He shall preside at all meetings of stockholders and directors. Except where by law the signature of the president is required, the chairman of the board of directors shall possess the same power 14 as the president to sign all certificates, contracts, and other instruments of the corporation which may be authorized by the board of directors. During the absence or disability of the president, he shall exercise all powers and discharge all the duties of the president. THE PRESIDENT Section 7. The president shall be the chief financial officer of the corporation. In the event that the board of directors shall not appoint an executive vice president of the corporation, or in the event of his resignation or inability to serve, the president shall be the chief operating officer of the corporation. In the absence of the chairman of the board of directors, the president shall preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. The president shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE PRESIDENTS Section 8. The executive vice president, if any, shall be the chief operating officer of the corporation. In the absence of the chairman of the board of directors or the president or in the event of his inability or refusal to act, the executive vice president shall perform the duties of the chairman of the board of directors or the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the chairman of the board of directors or the president. The executive vice president shall perform such 15 other duties and shall have other powers as the board of directors may from time to time prescribe. Section 9. In the absence of the chairman of the board of directors or the president or the executive vice president or in the event of his inability or refusal to act, the vice president (or in the event there be more than one vice president, the vice presidents in the order designated, or in the absence of any designation, then in the order of their election) shall perform the duties of the chairman of the board of directors or the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the chairman of the board of directors or the president. The vice presidents shall perform such other duties and shall have other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARIES Section 10. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors, the chairman of the board of directors or the president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. 16 Section 11. The assistant secretary, or if there be more than one, the assistant secretaries, in the order determined by the board of directors (or if there be no such determination, then in the order of their election), shall, in the absence of the secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 12. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all monies and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 13. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the chairman of the board of directors and the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 14. If required by the board of directors, he shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. 17 Section 15. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there be no such determination, then in the order of their election), shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. INDEMNIFICATION PROVISION Section 16. 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 by reason of the fact that he is or was a director, officer, employee or an 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 all expenses (including attorney's fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with the defense or settlement of such action, suit or proceeding, to the fullest extent and in the manner set forth in and permitted by the General Corporation Law of the State of Delaware, as from time to time in effect, and any other applicable law, as from time to time in effect. Such right of indemnification shall not be deemed exclusive of any other rights to which such director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of each such person. The foregoing provisions of this Article shall be deemed to be a contract between the corporation and each director, officer, employee or agent who serves in such capacity at any time while this Article, and the relevant provisions of the General Corporation Law of the State of Delaware and other applicable law, 18 if any, are in effect, and any repeal or modification thereof shall not affect any rights or obligations then existing with respect to any state of facts then or theretofore existing or any action, suit or proceeding theretofore or thereafter brought or threatened based in whole or in part upon any such state of facts. ARTICLE VI CERTIFICATES OF STOCK Section 1. Every holder of stock in the corporation shall be entitled to have a certificate, signed by, or in the name of the corporation by the chairman of the board of directors, the president or a vice president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation, certifying the number of shares owned by him in the corporation. Certificates may be issued for partly paid shares and in such case upon the face or back of the certificates issued to represent any such partly paid shares, the total amount of the consideration to be paid therefor, and the amount paid thereon shall be specified. If the corporation shall be authorized to issue more than one class of stock or more than one series of any class, the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of the certificate which the corporation shall issue to represent such class or series of stock, provided that, except as 19 otherwise provided in Section 202 of the General Corporation Law of Delaware, in lieu of the foregoing requirements, there may be set forth on the face or back of the certificate which the corporation shall issue to represent such class or series or stock, provided that, except as otherwise provided in Section 202 of the General Corporation Law of Delaware, in lieu of the foregoing requirements, there may be set forth on the face or back of the certificate which the corporation shall issue to represent such class or series of stock, a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Section 2. Where a certificate is countersigned (1) by a transfer agent other than the corporation or its employee, or (2) by a registrar other than the corporation or its employee, any other signature on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. 20 LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. TRANSFERS OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in 21 respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting, provided, however, that the board of directors may fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. 22 Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 5. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words, "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. 23 ARTICLE VIII AMENDMENTS Section 1. These by-laws may be altered, amended, repealed, or new by-laws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation, at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by-laws be contained in the notice of such special meeting; provided, however, that the provision set forth in Article III hereof may not be altered, amended or repealed in any respect unless such alteration, amendment or repeal is approved by the affirmative vote of the holders of not less than sixty-six and two-thirds (66 2/3%) percent of the total voting power of all outstanding shares of capital stock of the company. 24 EX-10.1 5 arxex10-1live.txt Exhibit 10.1 AMENDMENT NO. 3 TO EMPLOYMENT AGREEMENT AMENDMENT NO. 3 TO EMPLOYMENT AGREEMENT made as of the 8th day of November, 2001 by and between AEROFLEX INCORPORATED, a Delaware corporation (hereinafter the "Company") and HARVEY R. BLAU (hereinafter the "Executive"). W I T N E S S E T H: WHEREAS, the Company and Executive entered into an Employment Agreement dated March 1, 1999, as amended subsequently by Amendment Agreements dated September 1, 1999 and August 13, 2001(hereinafter the "Employment Agreement"); and WHEREAS, the Company and Executive desire to further modify the said Employment Agreement. NOW, THEREFORE, the parties hereto agree as follows: 1. Paragraph 2(b) shall be amended and restated as follows, effective as of the date hereof: "(b) Employment Term. The Employment Term shall commence on the Effective Date and shall terminate on June 30, 2007." 2. Except as specifically provided in this Amendment, the Employment Agreement is in all other respects hereby ratified and confirmed without amendment. IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the day and year first above written. AEROFLEX INCORPORATED By: /s/ Michael Gorin Michael Gorin, President /s/ Harvey R. Blau Harvey R. Blau EX-10.2 6 arxex10-2live.txt Exhibit 10.2 AMENDMENT NO. 3 TO EMPLOYMENT AGREEMENT AMENDMENT NO. 3 TO EMPLOYMENT AGREEMENT made as of the 8th day of November, 2001 by and between AEROFLEX INCORPORATED, a Delaware corporation (hereinafter the "Company") and MICHAEL GORIN (hereinafter the "Executive"). W I T N E S S E T H: WHEREAS, the Company and Executive entered into an Employment Agreement dated March 1, 1999, as amended subsequently by Amendment Agreements dated September 1, 1999 and August 13, 2001(hereinafter the "Employment Agreement"); and WHEREAS, the Company and Executive desire to further modify the said Employment Agreement. NOW, THEREFORE, the parties hereto agree as follows: 1. Paragraph 2(b) shall be amended and restated as follows, effective as of the date hereof: "(b) Employment Term. The Employment Term shall commence on the Effective Date and shall terminate on June 30, 2007." 2. Except as specifically provided in this Amendment, the Employment Agreement is in all other respects hereby ratified and confirmed without amendment. IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the day and year first above written. AEROFLEX INCORPORATED By: /s/ Leonard Borow Leonard Borow Executive Vice President /s/ Michael Gorin Michael Gorin EX-10.3 7 arxex10-3live.txt Exhibit 10.3 AMENDMENT NO. 3 TO EMPLOYMENT AGREEMENT AMENDMENT NO. 3 TO EMPLOYMENT AGREEMENT made as of the 8th day of November, 2001 by and between AEROFLEX INCORPORATED, a Delaware corporation (hereinafter the "Company") and LEONARD BOROW (hereinafter the "Executive"). W I T N E S S E T H: WHEREAS, the Company and Executive entered into an Employment Agreement dated March 1, 1999, as amended subsequently by Amendment Agreements dated September 1, 1999 and August 13, 2001(hereinafter the "Employment Agreement"); and WHEREAS, the Company and Executive desire to further modify the said Employment Agreement. NOW, THEREFORE, the parties hereto agree as follows: 1. Paragraph 2(b) shall be amended and restated as follows, effective as of the date hereof: "(b) Employment Term. The Employment Term shall commence on the Effective Date and shall terminate on June 30, 2007." 2. Except as specifically provided in this Amendment, the Employment Agreement is in all other respects hereby ratified and confirmed without amendment. IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the day and year first above written. AEROFLEX INCORPORATED By: /s/ Michael Gorin Michael Gorin, President /s/ Leonard Borow Leonard Borow -----END PRIVACY-ENHANCED MESSAGE-----