As filed with the Securities and Exchange Commission on May 19, 1995
SECURITIES AND EXCHANGE COMMISSI0N
Washington, D.C. 20549
FORM 8-A
For Registration of Certain Classes of Securities
Pursuant to Section 12(b) or (g) of the
Securities Exchange Act of 1934
HARDINGE INC.
(formerly Hardinge Brothers, Inc.)
(Exact name of registrant as specified in its charter)
NEW YORK 16-0470200
(State of incorporation (I.R.S. Employer
or organization) Identification No.)
One Hardinge Drive
Elmira, New York 14902-1507
(Address of principal (Zip Code)
executive offices)
If this Form relates to the registration of a class of debt securities and is
effective upon filing pursuant to General Instruction A.(c)(1), please check the
following box. [ ]
If this Form relates to the registration of a class of debt securities and is to
become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A.(c)(2), please check the following box. [ ]
Securities to be registered pursuant to Section 12(b) of the Act:
Name of each exchange on
Title of each class which each class is
to be so registered to be registered
--- ---
Securities to be registered pursuant to Section 12 (g) of the Act:
Common Stock, par value $.01 per share
(Title of class)
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EXPLANATORY NOTE
The Registrant currently has the following two classes of common stock
registered pursuant to Section 12(g) of the Securities Exchange Act of 1934, as
amended:
1. Class A Common Stock, par value $5.00 per share (non-voting)
2. Class B Common Stock, par value $5.00 per share (voting)
On May 16, 1995, the stockholders of the Registrant approved, subject to the
approval by the Board of Directors of the Registrant of the final terms of an
underwriting agreement with respect to a public offering of the Registrant's
common stock, a reclassification of the Registrant's Class A and Class B
Common Stock into a single class of Common Stock, $0.01 par value, and an
increase in the total authorized shares of such common stock from 6,000,000
shares to 20,000,000 shares. This Form 8-A is filed with the Securities and
Exchange Commission to register the Common Stock, par value $.01 per share,
into which the Class A and Class B Common Stock will be reclassified.
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Item 1. Description of Registrant's Securities to be Registered
A description of the Registrant's Common Stock to be registered hereby is
contained in the "Description of Capital Stock" set forth in the prospectus to
be filed in connection with the Registrant's Registration Statement on Form S-2,
Registration Number 33-91644, pursuant to Rule 424(b) of the Securities Act of
1933, as amended, and such description is incorporated herein by this reference.
Item 2. Exhibits
1.1 Restated Certificate of Incorporation of Hardinge Brothers, Inc. is
incorporated by reference from Exhibit 4.1 of Amendment No. 1 to the
Registrant's Registration Statement on Form S-2, Registration Number
33-91644, filed under the Securities Act of 1933, as amended, on May 11,
1995.
1.2 Amendment to the Restated Certificate of Incorporation of Hardinge
Brothers, Inc. filed with the Secretary of State of the State of New York
on May 27, 1988 is incorporated by reference from Exhibit 4.2 of Amendment
No. 1 to the Registrant's Registration Statement on Form S-2, Registration
Number 33-91644, filed under the Securities Act of 1933, as amended, on
May 11, 1995.
1.3 Amendment to the Restated Certificate of Incorporation of Hardinge
Brothers, Inc. filed with the Secretary of State of the State of New York
on May 19, 1995.
1.4 Form of Amendment to the Restated Certificate of Incorporation of Hardinge
Inc. to be filed with the Secretary of State of the State of New York
prior to the effective date of the Registration Statement, Registration
Number 33-91644.
2 By-laws of Hardinge Inc. is incorporated by reference from Exhibit 4.4 of
Amendment No. 1 to the Registrant's Registration Statement on Form S-2,
Registration Number 33-91644, filed under the Securities Act of 1933, as
amended, on May 11, 1995.
3 Specimen of certificate for shares of Common Stock, par value $.01 per
share, of Hardinge Inc.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Registrant has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized.
HARDINGE INC.
Date: May 19, 1995
By: /s/ Malcolm L. Gibson
Malcolm L. Gibson
Senior Vice President and
Chief Financial Officer
<PAGE>
INDEX TO EXHIBITS
Item Description
1.1 Restated Certificate of Incorporation of Hardinge Brothers, Inc. is
incorporated by reference from Exhibit 4.1 of Amendment No. 1 to the
Registrant's Registration Statement on Form S-2, Registration Number
33-91644, filed under the Securities Act of 1933, as amended, on May 11,
1995.
1.2 Amendment to the Restated Certificate of Incorporation of Hardinge
Brothers, Inc. filed with the Secretary of State of the State of New York
on May 27, 1988 is incorporated by reference from Exhibit 4.2 of Amendment
No. 1 to the Registrant's Registration Statement on Form S-2, Registration
Number 33-91644, filed under the Securities Act of 1933, as amended, on
May 11, 1995.
1.3 Amendment to the Restated Certificate of Incorporation of Hardinge
Brothers, Inc. filed with the Secretary of State of the State of New York
on May 19, 1995.
1.4 Form of Amendment to the Restated Certificate of Incorporation of Hardinge
Inc. to be filed with the Secretary of State of the State of New York
prior to the effective date of the Registration Statement, Registration
Number 33-91644.
2 By-laws of Hardinge Inc. is incorporated by reference from Exhibit 4.4 of
Amendment No. 1 to the Registrant's Registration Statement on Form S-2,
Registration Number 33-91644, filed under the Securities Act of 1933, as
amended, on May 11, 1995.
3 Specimen of certificate for shares of Common Stock, par value $.01 per
share, of Hardinge Inc.
Exhibit 1.3
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
HARDINGE BROTHERS, INC.
Under Section 805 of the
Business Corporation Law
We, Robert E. Agan and J. Philip Hunter, President and Chief
Executive Officer and Secretary, respectively, of Hardinge Brothers, Inc., a
corporation organized and existing under the Business Corporation Law of the
State of New York (the "Corporation"), DO HEREBY CERTIFY:
1. The name of the Corporation is Hardinge Brothers, Inc.
2. The Corporation is a consolidation of Morrison Machine Products,
Inc., whose Certificate of Incorporation was filed by the Department of State of
the State of New York on December 14, 1925, and Hardinge Brothers, Inc., whose
Certificate of Incorporation was filed by the Department of State of the State
of New York on March 3, 1931. The Certificate of Consolidation, pursuant to
Section 86 of the New York Stock Corporation Law, was filed by the Department of
State of the State of New York on December 24, 1937. A Restated Certificate of
Incorporation of the Corporation was filed by the Department of State of the
State of New York on May 19, 1987. A Certificate of Amendment of the Certificate
of Incorporation of the Corporation was filed by the Department of State of the
State of New York on June 21, 1988.
3. The Certificate of Incorporation of the Corporation is hereby
amended to effect a change in the name of the Corporation.
4. To effect the foregoing, Article 1 thereof, relating to the name
of the Corporation, is hereby amended and restated to read in its entirety as
follows:
"1. The name of the corporation is Hardinge Inc."
5. The amendment to the Certificate of Incorporation relating to the
change of name of the Corporation was authorized by a vote of the Board of
Directors, followed by vote of the holders of a majority of the Class A Common
Stock and the Class B Common Stock, voting as a single class, entitled to vote
thereon at a meeting of shareholders.
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2
6. The Certificate of Incorporation of the Corporation is hereby
amended to reclassify the Board of Directors of the Corporation to consist of
three classes rather than the present two classes.
7. To effect the foregoing, Article 7 thereof, relating to the
classification of the Board of Directors of the Corporation, is hereby amended
and restated to read in its entirety as follows:
"7. Subject to the other provisions of this Certificate of
Incorporation, the business of the Corporation shall be managed under the
direction of its Board of Directors. The number of Directors constituting
the Board shall be nine subject to increase or decrease from time to time
as provided in the By-laws of the Corporation. The By-laws may be amended
only by the affirmative vote of at least 75% of the entire Board of
Directors or by the affirmative vote of the holders of at least 75% of the
outstanding shares of stock of the Corporation entitled to vote generally
in the election of directors, voting together as a single class. The
Directors shall be classified, with respect to the period for which they
shall severally hold office into three classes as nearly equal in number
as possible each holding office, subject to the transitional provisions
described below, for a period expiring at the third annual meeting of
stockholders following the first annual meeting of stockholders of the
Corporation at which Directors of such class have been elected. For
transitional purposes the Directorships held by the 9 Directors holding
office following the 1995 Annual Meeting shall be classified as follows:
Class I Directorships- Messrs. Agan, Cole and Gibson
will be considered to hold Class I
Directorships. The Class I Directorships
held by Messrs. Agan and Cole will expire at
the Annual Meeting of Stockholders in 1996
and 1998 and at the Annual Meetings held in
every third year thereafter and the Class I
Directorship held by Mr. Gibson will expire
at the Annual Meeting of Stockholders in
1995, 1997 and 1998 and at the Annual
Meetings held in every third year
thereafter;
Class II Directorships- Dr. Menger and Messrs. Powers and
Hunter will be considered to hold Class II
Directorships. The Class II Directorships
held by Dr. Menger and Mr. Hunter will
expire at the Annual Meeting of
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3
Stockholders in 1995, 1997 and 1999 and at
the Annual Meetings held in every third year
thereafter and the Class II Directorship
held by Mr. Powers will expire at the Annual
Meeting of Stockholders held in 1996, 1997
and 1999 and at the Annual Meetings held in
every third year thereafter; and
Class III Directorships- Messrs. Bennett, Flynn and
Greenlee will be considered to hold Class
III Directorships. The Class III
Directorships held by Messrs. Bennett and
Flynn will expire at the Annual Meeting of
Stockholders in 1995 and 1997 and at the
Annual Meetings of Stockholders held in
every third year thereafter and the Class
III Directorship held by Mr. Greenlee will
expire at the Annual Meeting of Stockholders
held in 1996 and 1997 and at the Annual
Meetings held in every third year
thereafter.
Newly created Directorships resulting from any increase in the
number of directors and any vacancies on the Board of Directors resulting
from death, resignation, retirement, disqualification, removal or other
cause shall be filled only by the affirmative vote of a majority of the
remaining Directors then in office, even though less than a quorum of the
Board of Directors. Any Director elected in accordance with the preceding
sentence shall hold office until the next meeting of stockholders at which
the election of Directors is in the regular order of business and until
such Director's successor shall have been elected and qualified. No
decrease in the number of directors constituting the Board of Directors or
change in the restrictions and qualifications for Directors shall shorten
the term of any incumbent director.
Any Director, an entire class of Directors or the entire Board
of Directors may be removed from office, only for cause, and only by the
affirmative vote of the holders of at least 75% of the outstanding shares
of stock of the Corporation entitled to vote generally in the election of
directors, voting together as a single class.
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4
Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at
least 75% of the outstanding shares of stock of the Corporation entitled
to vote generally in the election of directors, voting together as a
single class, shall be required to alter, amend, or adopt any provision
inconsistent with or to repeal this Article 7, provided, however, that the
vote of only a majority of the outstanding shares of stock of the
Corporation entitled to vote generally in the election of directors voting
together as a single class shall be required if such alteration,
amendment, inconsistent provision or repeal was approved by at least 75%
of the entire Board of Directors."
8. The amendment to the Certificate of Incorporation relating to the
reclassification of the Directorships of the Corporation was authorized by a
vote of the Board of Directors, followed by vote of the holders of a majority of
the Class A Common Stock and the Class B Common Stock, voting as a single class,
entitled to vote thereon at a meeting of shareholders.
9. The Certificate of Incorporation of the Corporation is hereby
amended to authorize the issuance of Preferred Stock.
10. To effect the foregoing, Articles 3 and 4 thereof, relating to
the capitalization of the Corporation, are amended and restated to read in their
entirety as follows:
"3. The total number of shares which the Corporation may
henceforth have is 8,000,000, which shares shall be classified as follows:
2,000,000 shares of the par value of $0.01 each are to be
Preferred Stock; and
6,000,000 shares of the par value of $5.00 each are to be
Common Stock.
The Common Stock shall be divided into two classes, one to be
known as "Class A Common" and to consist of 3,000,000 shares and the other
to be known as "Class B Common" and to consist of 3,000,000 shares.
4. The relative voting, dividend, liquidation and other
rights, preferences and limitations of the shares of each class are as
follows:
I. The Preferred Stock may be issued from time to time in one
or more series, each such series to have the number of shares and
designation, and the shares of each such series to have such
relative rights, preferences or
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5
limitations, as the Board of Directors, subject to the limitations
prescribed by law or provided herein, may from time to time fix,
before issuance, by delivering an appropriate certificate of
amendment to the Department of State pursuant to the Business
Corporation Law of the State of New York. The authority of the Board
of Directors with respect to each series shall include, but not be
limited to, the fixing of the following:
(a) The number of shares to constitute the series and
the distinctive designation thereof;
(b) The dividend rate on the shares of the series;
whether dividends shall be cumulative, and, if so, from what
date or dates;
(c) Whether or not the shares of the series shall be
redeemable and, if redeemable, the terms upon which the shares
of the series may be redeemed and the premium, if any, over
and above the par value thereof and any dividends accrued
thereon which the shares of the series shall be entitled to
receive upon the redemption thereof;
(d) Whether or not the shares of the series shall be
subject to the operation of a retirement or sinking fund to be
applied to the purchase or redemption of such shares for
retirement and, if such retirement or sinking fund be
established, the annual amount thereof and the terms and
provisions relative to the operation thereof;
(e) Whether or not the shares of the series shall be
convertible into shares of any class or classes of stock of
the Corporation, with or without par value, or of any other
series of the same class and, if convertible, the conversion
price or prices or the rate at which such conversion may be
made and the method, if any, of adjusting the same;
(f) The rights of the shares of the series in the event
of voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation;
(g) The restrictions, if any, on the payment of
dividends upon, and the making of the distributions to any
class of stock ranking junior to the shares of the series, and
the restrictions, if any, on the purchase or redemption of the
shares of any such junior class;
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6
(h) Whether the series shall have voting rights, in
addition to the voting rights provided by law, and, if so, the
terms of such voting rights; and
(i) Any other relative rights, preferences and
limitations of the series.
II. Holders of shares of Preferred Stock shall be entitled to
receive, when and as declared by the Board of Directors, out of
funds legally available for the payment of dividends, dividends at
the rates fixed by the Board of Directors for the respective series,
before any dividends shall be declared and paid, or set apart for
payment, on any other class of stock of the Corporation ranking
junior to the Preferred Stock either as to dividends or assets, with
respect to the same dividend period.
III. Whenever, at any time, dividends on the then outstanding
Preferred Stock as may be required by the terms of the certificate
creating the series representing the shares outstanding shall have
been paid or declared and set apart for payment on the then
outstanding Preferred Stock and after complying with all the
provisions with respect to any retirement or sinking fund or funds
for any series of Preferred Stock, the Board of Directors may,
subject to the provisions of any certificate creating any series of
Preferred Stock with respect to the payment of dividends on any
other class or classes of stock, declare and pay dividends on the
Common Stock, and the Preferred Stock shall not be entitled to share
therein.
IV. Upon any liquidation, dissolution or winding-up of the
Corporation, after payment, if any is required, shall have been made
in full to the Preferred Stock as provided in any certificate
creating any series thereof, but not prior thereto, the Common Stock
shall, subject to the respective terms and provisions, if any, of
any such certificate, be entitled to receive any and all assets
remaining to be paid or distributed, and the Preferred Stock shall
not be entitled to share therein.
V. No holder of Common Stock or any series of Preferred Stock
shall, as such holder, have any preemptive or preferential right of
subscription to any stock of any class of the Corporation or to any
obligations convertible into any such stock or to any right of
subscription to, or to any warrant or option for, the purchase of
any stock, other than such, if any, as the Board of Directors of the
Corporation in its discretion may determine from time to time.
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7
VI. The holders of the Common Stock shall have the right to
vote on all questions to the exclusion of all other classes of
stock, except as by law expressly provided or as otherwise expressly
provided with respect to the holders of any other class or classes
of stock.
4A. The designations, privileges, voting powers or
restrictions or qualifications of the Common Stock are as
follows:
(a) The entire voting powers for the election of Directors of
the corporation shall be vested in the Class B Common
stock. On all other matters except as otherwise provided
by law or this Certificate of Incorporation, each holder
of Class A Common stock and Class B Common stock shall
have equal voting powers of one vote for each share then
standing in his name on the books of the Corporation and
shall vote together as a single class.
(b) Both classes of Common stock shall share equally in all
dividends and each share of Class A and Class B Common
stock outstanding at the time of dissolution shall share
equally in the distribution of the assets.
(c) No holder of stock of the corporation, of whatever class,
shall have any preferential or prescriptive right of
subscription to any shares of the capital stock of the
corporation, of any class issued or sold, nor any right
of subscription to any thereof other than such, if any,
as the Board of Directors in its discretion may
determine."
10. The amendment to the Certificate of Incorporation relating to
the authorization of Preferred Stock was authorized by a vote of the Board of
Directors, followed by vote of the holders of a majority of the Class A Common
Stock and the Class B Common Stock, voting as separate classes, entitled to vote
thereon at a meeting of shareholders.
11. The Certificate of Incorporation of the Corporation is hereby
amended by the addition of the following provisions stating the number,
designation, relative rights, preferences, and limitations of a series of
preferred stock of the Corporation designated as "Series A Preferred Stock".
12. To effect the foregoing, a new subdivision VII is hereby added
to Article 4 thereof, which subdivision VII reads in its entirety as follows:
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8
"VII. Series A Preferred Stock. The designation and amount,
relative rights, preferences and limitations of the shares of
Series A Preferred Stock, par value $.01 per share, as fixed by the
Board of Directors of the Corporation, are as follows:
(1) Designation and Amount. The shares of such series
shall be designated as "Series A Preferred Stock" and the
number of shares constituting such series shall be 250,000.
Such number of shares may be increased or decreased by
resolution of the Board of Directors; provided, however, that
no decrease shall reduce the number of shares of Series A
Preferred Stock to a number less than that of the shares then
outstanding plus the number of shares issuable upon exercise
of outstanding rights, options, or warrants or upon conversion
of outstanding securities issued by the Company.
(2) Dividends and Distributions. (A) Subject to the
prior and superior rights of the holders of any shares of any
other series of Preferred Stock or any other shares of
preferred stock of the Corporation ranking prior and superior
to the shares of Series A Preferred Stock with respect to
dividends, each holder of one one-hundredth (1/100) of a
share (a "Unit") of Series A Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for that purpose,
(i) quarterly dividends payable in cash on the last day of
March, June, September and December in each year (each such
date being a "Quarterly Dividend Payment Date"), commencing
on the first Quarterly Dividend Payment Date after the first
issuance of such Unit of Series A Preferred Stock, in an
amount per Unit (rounded to the nearest cent) equal to the
greater of (a) $.01 or (b) subject to the provision for
adjustment hereinafter set forth, the aggregate per share
amount of all cash dividends declared on shares of 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 a Unit of
Series A Preferred Stock, and (ii) subject to the provision
for adjustment hereinafter set forth, quarterly distributions
(payable in kind) on each Quarterly Dividend Payment Date in
an amount per Unit equal to the aggregate per share amount of
all non-cash
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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 shares of
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 a Unit of Series A Preferred Stock. In the
event that the Corporation shall at any time after May
16, 1995 (the "Rights Declaration Date") (i) declare
any dividend on outstanding shares of Common Stock
payable in shares of Common Stock, (ii) subdivide
outstanding shares of Common Stock or (iii) combine
outstanding shares of Common Stock into a smaller
number of shares, then in each such case the amount to
which the holder of a Unit of Series A Preferred Stock
was entitled immediately prior to such event pursuant
to the preceding sentence shall be adjusted by
multiplying such amount by a fraction the numerator of
which shall be the number of shares of Common Stock
that are outstanding immediately after such event and
the denominator of which shall be 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 Units of Series A Preferred Stock as provided
in paragraph (A) above immediately after it declares a
dividend or distribution on the shares of Common Stock (other
than a dividend payable in shares of Common Stock); provided,
however, 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 $.01
per Unit on the Series A Preferred Stock shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and shall be
cumulative on each outstanding Unit of Series A Preferred
Stock from the Quarterly Dividend Payment Date next preceding
the date of issuance of such Unit of Series A Preferred Stock,
unless the date of issuance of such Unit is prior to the
record
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10
date for the first Quarterly Dividend Payment Date, in which
case, dividends on such Unit shall begin to accrue from the
date of issuance of such Unit, or unless the date of issuance
is a Quarterly Dividend Payment Date or is a date after the
record date for the determination of holders of Units 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 Units of Series A Preferred Stock in an
amount less than the aggregate amount of all such dividends at
the time accrued and payable on such Units shall be allocated
pro rata on a unit-by-unit basis among all Units of Series A
Preferred Stock at the time outstanding. The Board of
Directors may fix a record date for the determination of
holders of Units of Series A 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 Units of Series A
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter
set forth, each Unit of Series A Preferred Stock shall entitle
the holder thereof to one vote on all matters submitted to a
vote of the stockholders of the Corporation. In the event the
Corporation shall at any time after the Rights Declaration
Date (i) declare any dividend on outstanding shares of Common
Stock payable in shares of Common Stock, (ii) subdivide
outstanding shares of Common Stock or (iii) combine the
outstanding shares of Common Stock into a smaller number of
shares, then in each such case the number of votes per Unit to
which holders of Units 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
shall be the number of shares of Common Stock outstanding
immediately after such event and the denominator of which
shall be the number of shares of Common Stock that were
outstanding immediately prior to such event.
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(B) Except as otherwise provided herein or by law, the
holders of Units of Series A Preferred Stock and the holders
of shares of Common Stock shall vote together as one class on
all matters submitted to a vote of stockholders of the
Corporation.
(C) (i) If at any time dividends on any Units of Series
A Preferred Stock shall be in arrears in an amount equal to
six quarterly dividends thereon, then during the period (a
"default period") from the occurrence of such event until such
time as all accrued and unpaid dividends for all previous
quarterly dividend periods and for the current quarterly
dividend period on all Units of Series A Preferred Stock then
outstanding shall have been declared and paid or set apart for
payment, all holders of Units of Series A Preferred Stock,
voting separately as a class, shall have the right to elect
two Directors.
(ii) During any default period, such voting rights of
the holders of Units of Series A Preferred Stock may be
exercised initially at a special meeting called pursuant to
subparagraph (iii) of this Section 3(C) or at any annual
meeting of stockholders, and thereafter at annual meetings of
stockholders, provided that neither such voting rights nor any
right of the holders of Units of Series A Preferred Stock to
increase, in certain cases, the authorized number of Directors
may be exercised at any meeting unless one-third or more of
the outstanding Units of Preferred Stock shall be present at
such meeting 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 Units of Series A Preferred Stock of such
rights. At any meeting at which the holders of Units of Series
A Preferred Stock shall exercise such voting rights initially
during an existing default period, they shall have the right,
voting separately as a class, to elect Directors to fill up to
two vacancies in the Board of Directors, if any such vacancies
may then exist, or, if such right is exercised at an annual
meeting, to elect two Directors. If the number which may be so
elected to fill vacancies at any special meeting does not
amount to the required number, proper provision shall be made
so that the number of Directors constituting the entire Board
of Directors shall be increased by that number of Directors
necessary to permit the election by the holders of the Series
A Preferred
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Stock of the required number. After the holders of Units of
Series A Preferred Stock shall have exercised their right to
elect Directors during any default period, the number of
Directors shall not be increased or decreased except as
approved by a vote of the holders of Units of Series A
Preferred Stock as herein provided or pursuant to the rights
of any equity securities ranking senior to the Series A
Preferred Stock.
(iii) Unless the holders of Series A Preferred Stock
shall, during an existing default period, have previously
exercised their right to elect Directors, the Board of
Directors may order, or any stockholder or stockholders owning
in the aggregate not less than 25% of the total number of the
Units of Series A Preferred Stock outstanding may request, the
calling of a special meeting of the holders of Units of Series
A Preferred Stock, which meeting shall thereupon be called by
the Secretary of the Corporation. Notice of such meeting and
of any annual meeting at which holders of Units of Series A
Preferred Stock are entitled to vote pursuant to this
paragraph (C)(iii) shall be given to each holder of record of
Units of Series A 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 then 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 stockholder or
stockholders owning in the aggregate not less than 25% of the
total number of outstanding Units of Series A Preferred Stock.
Notwithstanding the provisions of this paragraph (C)(iii), no
such special meeting shall be called during the 60 days
immediately preceding the date fixed for the next annual
meeting of the stockholders.
(iv) During any default period, the holders of shares of
Common Stock and Units of Series A Preferred Stock, and other
classes or series of stock of the Corporation, if applicable,
shall continue to be entitled to elect all the Directors until
holders of the Units of Series A Preferred Stock shall have
exercised their right to elect two Directors voting as a
separate class, after the exercise of which right (x) the
Directors so elected by the holders of Units of Series A
Preferred Stock shall continue in office until their
successors shall have been elected
<PAGE>
13
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 paragraph (C)(ii) of this Section 3) be filled by
vote of a majority of the remaining Directors theretofore
elected by the holders of the class of capital 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 capital 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 Units of Series A Preferred
Stock as a separate class to elect Directors shall cease, (y)
the term of any Directors elected by the holders of Units of
Series A Preferred Stock as a separate class shall terminate,
and (z) the number of Directors shall be such number as may be
provided for in the Certificate or by-laws irrespective of any
increase made pursuant to the provisions of paragraph (C)(ii)
of this Section 3 (such number being subject, however, to
change thereafter in any manner provided by law or in the
Certificate 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.
(vi) The provisions of this paragraph (C) shall govern
the election of Directors by holders of Units of Preferred
Stock during any default period notwithstanding any provisions
of the Certificate to the contrary.
(D) Except as set forth herein, holders of Units of
Series A Preferred Stock shall have no special voting rights
and their consents shall not be required (except to the extent
they are entitled to vote with holders of shares 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 Units
of 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 outstanding
Units of
<PAGE>
14
Series A Preferred Stock shall have been paid in full, the
Corporation shall not
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire
for consideration any shares of junior stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of parity stock, except dividends
paid ratably on Units of Series A Preferred Stock and shares
of all such parity stock on which dividends are payable or in
arrears in proportion to the total amounts to which the
holders of such Units and all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any parity stock, provided, however,
that the Corporation may at any time redeem, purchase or
otherwise acquire shares of any such parity stock in exchange
for shares of any junior stock;
(iv) purchase or otherwise acquire for consideration any
Units of 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
Units.
(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.
(5) Reacquired Shares. Any Units 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 Units shall, upon
their cancellation, become authorized but unissued Units 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.
<PAGE>
15
(6) Liquidation, Dissolution or Winding Up. (A) Upon any
voluntary or involuntary liquidation, dissolution or winding
up of the Corporation, no distribution shall be made (i) to
the holders of shares of junior stock unless the holders of
Units of Series A Preferred Stock shall have received, subject
to adjustment as hereinafter provided in paragraph (B), the
greater of either (a) $.01 per Unit plus an amount equal to
accrued and unpaid dividends and distributions thereon,
whether or not earned or declared, to the date of such
payment, or (b) the amount equal to the aggregate per share
amount to be distributed to holders of shares of Common Stock,
or (ii) to the holders of shares of parity stock, unless
simultaneously therewith distributions are made ratably on
Units of Series A Preferred Stock and all other shares of such
parity stock in proportion to the total amounts to which the
holders of Units of Series A Preferred Stock are entitled
under clause (i)(a) of this sentence and to which the holders
of shares of such parity stock are entitled, in each case upon
such liquidation, dissolution or winding up.
(B) In the event the Corporation shall at any time after
the Rights Declaration Date (i) declare any dividend on
outstanding shares of Common Stock payable in shares of Common
Stock, (ii) subdivide outstanding shares of Common Stock, or
(iii) combine outstanding shares of Common Stock into a
smaller number of shares, then in each such case the aggregate
amount to which holders of Units of Series A Preferred Stock
were entitled immediately prior to such event pursuant to
clause (i)(b) of paragraph (A) of this Section 6 shall be
adjusted by multiplying such amount by a fraction the
numerator of which shall be the number of shares of Common
Stock that are outstanding immediately after such event and
the denominator of which shall be the number of shares of
Common Stock that were outstanding immediately prior to such
event.
(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 converted into other stock or securities,
cash and/or any other property, then in any such case Units of
Series A Preferred Stock shall at the same time be similarly
exchanged for or converted into an amount per Unit
<PAGE>
16
(subject to the provision for adjustment hereinafter set
forth) equal to 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
converted or exchanged. In the event the Corporation shall at
any time after the Rights Declaration Date (i) declare any
dividend on outstanding shares of Common Stock payable in
shares of Common Stock, (ii) subdivide outstanding shares of
Common Stock, or (iii) combine outstanding Common Stock into a
smaller number of shares, then in each such case the amount
set forth in the immediately preceding sentence with respect
to the exchange or conversion of Units of Series A Preferred
Stock shall be adjusted by multiplying such amount by a
fraction the numerator of which shall be the number of shares
of Common Stock that are outstanding immediately after such
event and the denominator of which shall be the number of
shares of Common Stock that were outstanding immediately prior
to such event.
(8) Redemption. The Units of Series A Preferred
Stock shall not be redeemable.
(9) Ranking. The Units of Series A Preferred Stock shall
rank junior to all other series of the Preferred Stock and to
any other class of preferred stock that hereafter may be
issued by the Corporation as to the payment of dividends and
the distribution of assets, unless the terms of any such
series or class shall provide otherwise.
(10) Amendment. The Certificate, including, without
limitation, this resolution, shall not hereafter be amended,
either directly or indirectly, or through merger or
consolidation with another corporation in any manner that
would 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 a
majority or more of the outstanding Units of Series A
Preferred Stock, voting separately as a class.
(11) Fractional Shares. The Series A Preferred Stock
may be issued in Units or other fractions of a share, which
Units or fractions shall entitle the holder, in proportion to
such holder's fractional shares, to exercise voting rights,
receive
<PAGE>
17
dividends, participate in distributions and to have the
benefit of all other rights of holders of Series A Preferred
Stock.
(12) Certain Definitions. As used herein with respect
to the Series A Preferred Stock, the following terms shall
have the following meanings:
(A) The term "Common Stock" shall mean the class of
stock designated as the Series Common Stock, par value $.01
per share, of the Corporation at the date hereof or any other
class of stock resulting from successive changes or
reclassification of the common stock.
(B) The term "junior stock" (i) as used in Section 4
shall mean the Common Stock and any other class or series of
capital stock of the Corporation hereafter authorized or
issued over which the Series A Preferred Stock has preference
or priority as to the payment of dividends and (ii) as used in
Section 6, shall mean the Common Stock and any other class or
series of capital stock of the Corporation over which the
Series A Preferred Stock has preference or priority in the
distribution of assets on any liquidation, dissolution or
winding up of the Corporation.
(C) The term "parity stock" (i) as used in Section 4,
shall mean any class or series of stock of the Corporation
hereafter authorized or issued ranking pari passu with the
Series A Preferred Stock as to dividends and (ii) as used in
Section 6, shall mean any class or series of capital stock
ranking pari passu with the Series A Preferred Stock in the
distribution of assets on any liquidation, dissolution or
winding up."
<PAGE>
18
13. The amendment to the Certificate of Incorporation of the
Corporation was authorized by vote of the Board of Directors of the Corporation
under the authority vested in the Board under the Certificate of Incorporation
of the Corporation and of Section 502 of the Business Corporation Law.
<PAGE>
19
IN WITNESS WHEREOF, we have subscribed this document on the date
hereof and do hereby affirm, under the penalties of perjury, that the statements
contained herein have been examined by us and are true and correct.
DATE: May 16, 1995
/s/ Robert E. Agan
Robert E. Agan
President and Chief Executive Officer
/s/ J. Philip Hunter
J. Philip Hunter
Secretary
Exhibit 1.4
<PAGE>
[FORM OF}
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
HARDINGE INC.
------------------------
Under Section 805 of the
Business Corporation Law
------------------------
We, Robert E. Agan and J. Philip Hunter, President and Chief
Executive Officer and Secretary, respectively, of Hardinge Inc., a corporation
organized and existing under the Business Corporation Law of the State of New
York (the "Corporation"), DO HEREBY CERTIFY:
1. The name of the Corporation is Hardinge Inc. The name under
which the Corporation was formed was Hardinge Brothers, Inc.
2. The Corporation is a consolidation of Morrison Machine
Products, Inc., whose Certificate of Incorporation was filed by the Department
of State of the State of New York on December 14, 1925, and Hardinge Brothers,
Inc., whose Certificate of Incorporation was filed by the Department of State
of the State of New York on March 3, 1931. The Certificate of Consolidation,
pursuant to Section 86 of the New York Stock Corporation Law, was filed by the
Department of State of the State of New York on December 24, 1937. A Restated
Certificate of Incorporation of the Corporation was filed by the Department of
State of the State of New York on May 19, 1987. A Certificate of Amendment of
the Certificate of Incorporation of the Corporation was filed by the
Department of State of the State of New York on each of June 21, 1988 and May
19, 1995.
3. (a) The Certificate of Incorporation is amended to change the
3,000,000 presently authorized Class A Common shares with a par value of $5.00
each, 990,917 of which are issued and outstanding, into 6,000,000 shares of a
single class of common shares with a par value of $.01 each and to change the
3,000,000 presently authorized Class B Common shares with a par value of $5.00
each, 916,057 of which are
<PAGE>
2
issued and outstanding, into 6,150,000 shares of the same single class of
common shares with a par value of $.01 each.
(b) Article 4A of the Certificate of Incorporation which refers to
the designations, privileges, voting powers or restrictions and qualifications
of the Class A Common Stock and the Class B Common Stock is hereby deleted.
(c) The Certificate of Incorporation is amended to increase the
total number of authorized shares of Common Stock from 6,000,000 shares to
20,000,000 shares and to reduce the par value of such shares from $5.00 per
share to $.01 per share. The Certificate of Incorporation is also amended to
make conforming changes in Article 9.1.8 to delete the references to "Class A
Common" and "Class B Common" to reflect the change from two classes of common
stock into a single class.
(d) To effect the foregoing, Article 3 of the Certificate of
Incorporation relating to the capitalization of the Corporation and the
conforming changes to Article 9.1.8 of the Certificate of Incorporation as a
result of the reclassification of the Common Stock, are amended and restated
to read in their entirety as follows:
Restated Article 3 of the Certificate of Incorporation:
"3. The total number of shares which the Corporation may
henceforth have is 22,000,000, all of which are to have a par value of $0.01
each, which shares shall be classified as follows:
2,000,000 shares of the par value of $0.01 each are to be Preferred
Stock; and
20,000,000 shares of the par value of $0.01 each are to be a single
class of common stock (the "Common Stock")."
Restated Article 9.1.8 of the Certificate of Incorporation:
"8. The term "Voting Stock" shall mean the Common Stock and any
other securities entitled to vote upon any action to be taken in connection
with any Business Combination including stock or other securities convertible
into Voting Stock."
<PAGE>
3
4. (a) The amendment to and deletion from the Certificate of
Incorporation relating to the reclassification of the Common Stock into a
single class and the conforming amendment resulting therefrom were authorized
by vote of the Board of Directors, followed by vote of the holders of a
majority of all outstanding shares of Class A Common Stock and Class B Common
Stock, voting as separate classes, entitled to vote thereon at a meeting of
shareholders.
(b) The amendments to the Certificate of Incorporation to reduce
the par value of the Common Stock and to increase the number of authorized
shares of Common Stock was authorized by vote of the Board of Directors,
followed by vote of the holders of a majority of the Class A Common Stock and
the Class B Common Stock, voting as a single class, entitled to vote thereon
at a meeting of shareholders.
<PAGE>
4
IN WITNESS WHEREOF, we have subscribed this document on the date
hereof and do hereby affirm, under the penalties of perjury, that the
statements contained herein have been examined by us and are true and correct.
DATE:
____________________________
Robert E. Agan
President and Chief Executive Officer
_____________________________
J. Philip Hunter
Secretary
Exhibit 3
<PAGE>
[FACE OF NOTE]
[HARDINGE LOGO]
HARDINGE INC.
Common Stock, Par Value $.01 Per Share
NUMBER _______ SHARES ________
INCORPORATED UNDER THE LAWS CUSIP 412324 30 3
OF THE STATE OF NEW YORK
THIS CERTIFIES that __________________________________________________________
is the owner of ________________________________ FULLY PAID AND NON- ASSESSABLE
SHARES OF THE COMMON STOCK OF HARDINGE INC. (herein called the "Corporation")
transferable on the books of the Corporation by the holder hereof in person or
by his duly authorized attorney upon surrender of this Certificate properly
endorsed.
This Certificate is not valid unless countersigned by the Transfer Agent
and registered by the Registrar.
IN WITNESS WHEREOF, the said Corporation has caused this Certificate to be
signed by its duly authorized officers and to be sealed with the seal of the
Corporation.
Dated:
/s/ Malcolm L. Gibson [CORPORATE SEAL] /s/ Robert E. Agan
SENIOR VICE PRESIDENT PRESIDENT
[FORM OF TRANSFER AGENT'S CERTIFICATE OF AUTHENTICATION]
COUNTERSIGNED AND REGISTERED
AMERICAN STOCK TRANSFER & TRUST COMPANY
(NEW YORK, N.Y.)
TRANSFER AGENT AND REGISTRAR
By______________________
AUTHORIZED SIGNATURE
<PAGE>
[REVERSE OF NOTE]
HARDINGE INC.
HARDINGE INC. WILL FURNISH TO ANY SHAREHOLDER UPON REQUEST AND WITHOUT
CHARGE, A FULL STATEMENT OF THE DESIGNATION, RELATIVE RIGHTS, PREFERENCES AND
LIMITATIONS OF THE SHARES OF EACH CLASS WHICH IT IS AUTHORIZED TO ISSUE, AND THE
DESIGNATION, RELATIVE RIGHTS, PREFERENCES AND LIMITATIONS OF EACH SERIES OF ANY
CLASS OF PREFERRED STOCK WHICH IT IS AUTHORIZED TO ISSUE. SUCH REQUEST SHOULD
BE ADDRESSED TO THE SECRETARY OF HARDINGE INC. OR TO THE TRANSFER AGENT.
------------------
The following abbreviations when used in the inscription on the face of
this Certificate shall be construed as though they were written in full
according to applicable laws or regulations:
<TABLE>
<S> <C> <C> <C> <C> <C>
ADM Administrator(s) EX Executors TEN ENT As tenants by
administratrix(ices) executrix(ices) the entireties
COMM Committee(s) FBO For the benefit of TR Trustee(s)
CONS Conervator(s) GDN Guardian UA Under
CUST Custodian JT TEN As joint tenants with Agreement
EST Estate right of survivorship UNIF GIFT MIN ACT Uniform Gift
and not as tenants in to Minors Act
common UW Under last will
TEN COM As tenants in and testament
common
<CAPTION>
Additional abbreviations may also be used though not in the above list.
</TABLE>
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED, __________ hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- - ----------------------------
- - --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
- - --------------------------------------------------------------------------------
______________________________________________________________________ Shares of
the capital stock represented by the within Certificate, and do hereby
irrevocable constitute and appoint _____________________ Attorney to transfer
the said stock on the books of the within named Corporation with full power of
substitution in the premises.
Dated ____________________
--------------------------------------------------------------
--------------------------------------------------------------
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH
THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE
IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT
OR ANY CHANGE WHATSOEVER, AND MUST BE GUARANTEED BY AN
ELIGIBLE INSTITUTION (AS DEFINED IN RULE 17Ad-15 UNDER
THE SECURITIES EXCHANGE ACT OF 1934) WHICH MAY INCLUDE
A COMMERCIAL BANK, TRUST COMPANY OR SAVINGS
ASSOCIATION, CREDIT UNION OR MEMBER FIRM OF THE
AMERICAN STOCK EXCHANGE, NEW YORK STOCK EXCHANGE,
PACIFIC STOCK EXCHANGE OR MIDWEST STOCK EXCHANGE.
This Certificate also evidences and entitles the holder hereof to
certain Rights as set forth in the Rights Agreement between Hardinge Inc. and
American Stock Transfer and Trust Company (the "Rights Agent") dated as of May
16, 1995 (the "Rights Agreement"), the terms of which are incorporated herein
by reference and a copy of which is on file at the principal office of the
Rights Agent. Under certain circumstances, as set forth in the Rights
Agreement, such Rights will be evidenced by separate certificates and will no
longer be evidenced by this Certificate. Hardinge Inc. will mail to the holder
of this Certificate a copy of the Rights Agreement, as in effect on the date
of mailing, without charge promptly after receipt of a written request
therefor. Under certain circumstances set forth in the Rights Agreement,
Rights issued to, or held by, any Person who is, was or becomes an Acquiring
Person or any Affiliate or Associate thereof (as such terms are defined in the
Rights Agreement), whether currently held by or on behalf of such Person or by
any subsequent holder, may become null and void.
