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AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF
KAMAN CORPORATION
Kaman Corporation hereby confirms that the following named
subscribers, Charles H. Kaman, Leon Herbert and Rose Worobel did
associate themselves as a body politic and corporate on
December 12, 1945, and:
FIRST
That the name of the corporation is Kaman Corporation.
SECOND
That said corporation is located in the Town of Bloomfield in
the State of Connecticut.
THIRD
That the nature of the business to be transacted, and the
purpose to be promoted or carried out, by said corporation are as
follows:
To manufacture, sell, purchase and deal in goods,
articles, supplies or devices of any and all kinds made wholly
or in part of metal, wood or other material including, but not
limited to, the manufacture, sale and purchase of and dealing
in aircraft of all types, aircraft accessories and components
thereof, aircraft equipment, either as principal or agent, or
otherwise;
To do a general manufacturing business and to sell at
wholesale or retail any goods, products, articles or supplies
manufactured, produced, held or owned by said corporation and
to buy, sell or deal in such other goods, products,
merchandise and raw materials as said corporation may deem
expedient;
To acquire, hold, sell, transfer or otherwise dispose of
inventions and processes, letters patent therefor and rights
in respect thereto, and to acquire, hold, sell, transfer,
license, rent, lease or otherwise dispose of licenses and
other rights thereunder, pertaining especially, but not
limited to, aircraft designs, structures, accessories,
processes, fabrication, construction, testing equipment,
computing equipment and servicing equipment, and to the
development generally of any and all types of machines to be
used in the processing, fabrication and construction of all
types of aircraft, components thereof and accessories, and
auxiliary testing services therefor;
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To engage in general development, engineering and
research in connection with inventions and manufacturing
processes of all kinds;
To engage generally in the service and repair of
aircraft, components thereof and accessories and equipment
therefor;
To purchase, lease and otherwise acquire, hold, enjoy,
sell, transfer and convey lands, buildings and appurtenances
thereto and personal property of every name and nature for any
lawful purpose;
To carry on any lawful trade or business incidental to
the foregoing;
In connection with said business to acquire, hold, sell,
pledge or otherwise dispose of stocks, bonds and other
securities of any individual or corporation, domestic or
foreign;
To transact business and to exercise any and all of the
foregoing powers in any and all the States, territories and
dependencies of the United States and in foreign countries;
And in carrying on its business or for the purpose of
attaining or furthering any of its purposes to make and issue
notes or other obligations, to make and perform contracts of
any kind and description and to do any and all other acts and
things and to exercise any and all other powers which a
natural person could do and exercise and which now or
hereafter may be permitted by law.
FOURTH
A. General Authorization.
That the authorized capital stock of the corporation is as
follows:
(1) 50,000,000 shares of the par value of One Dollar ($1.00)
each, all of which shall be common stock, divided into classes as
follows: 48,500,000 shares shall be Class A common stock which
shall be nonvoting stock having no voting rights whatsoever and
which shall be entitled to receive dividends when declared by the
Board of Directors from the unreserved and unrestricted earned
surplus of the corporation to the extent of 10 cents per share each
year, which dividend shall be noncumulative and shall be declared
and paid before any dividend is declared and paid on the Class B
common stock; and 1,500,000 shares of Class B common stock which
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shall be voting stock, each share being entitled to one vote.
After the declaration and payment of dividends of 10 cents per
share in any year on the Class A common stock, the Class B common
stock shall be entitled to receive noncumulative dividends when
declared by the Board of Directors, at the rate of 10 cents per
share in each year from the unreserved and unrestricted earned
surplus of the corporation, and after payment of any such dividends
to both the Class A and Class B common stock, both the Class A and
Class B common stock shall share equally in the declaration and
payment of any dividends;and
(2) 700,000 shares of Preferred Stock of the par value of $1
per share which class shall be entitled to vote only for the
election of directors, with each share being entitled to one vote
thereon, and such voting right of such class to be limited to the
election of such number of directors (subject to the further
limitations below) as may be established by application of the
following formula:
(a) If the number of issued and outstanding shares of
Preferred Stock is not more than one-fourth (1/4th) of the
total number of authorized shares of such class, such number
as will result in the election by such shares of one-tenth
(1/10th)(to next lowest whole number) of the total number of
directorships then fixed;
(b) If the number of issued and outstanding shares of
Preferred Stock is not more than one-half (1/2) of the total
number of authorized shares of such class, one-fifth (1/5th)
(to the next lowest whole number) of the total number of
directorships then fixed;
(c) If the number of issued and outstanding shares of
Preferred Stock is not more than three-fourths (3/4ths) of the
total number of authorized shares of such class, three-tenths
(3/10ths)(to the next lowest whole number) of the total number
of directorships then fixed;
(d) If the number of issued and outstanding shares of
Preferred Stock is more than three-fourths (3/4ths) of the
total number of authorized shares of such class, two-fifths
(2/5ths)(to the next lowest whole number) of the total number
of directorships then fixed;
provided, however, that notwithstanding anything herein to the
contrary, (i) such voting right of such class shall be applicable
only in the event that an arrearage in payment of dividends shall
exist with respect to any series of Preferred Stock equal to six
quarterly dividends on such series (or dividends otherwise payable
over a period of 18 months in the case of any series, dividends on
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which are payable other than on a quarterly basis), (ii) any such
right to elect directors shall cease upon the payment in full of
any such arrearage or arrearages, and (iii) such voting right of
such class, when applicable, shall not under any circumstances
entitle the Preferred Stock to elect less than one (1) nor more
than two (2) directors.
B. Preferred Stock
(1) The Board of Directors is authorized, subject to the
limitations prescribed by law and the provisions of this subsection
B, to provide for the issuance of a class of Preferred Stock in
series and by amending the Certificate of Incorporation of the
corporation by its own resolution solely, to establish the number
of shares to be included in each such series and to fix the
designation, terms, limitations, and relative rights and
preferences of the shares of each such series. The authority of
the Board of Directors with respect to each series shall include,
but not be limited to, determination of the following:
(a) The number of shares constituting that series and
the distinctive designation of that series;
(b) The dividend rate on the shares of that series and
the times of payment thereof, whether dividends shall be
cumulative and, if so, from which date or dates;
(c) Whether or not the shares of that series shall have
conversion privileges, and, if so, the terms and conditions of
such conversion, including provision for adjustment of the
conversion rate in such events as the Board of Directors shall
determine;
(d) Whether or not the shares of that series shall be
redeemable, and, if so, the terms and conditions of such
redemption, including the date or dates upon or after which
they shall be redeemable, and sinking fund provisions, if any,
providing for the redemption or purchase of shares of that
series and the amount per share payable in case of redemption
which amount may vary under different conditions and at
different redemption dates.
(2) Dividends on outstanding shares of the class of Preferred
Stock shall be declared and paid, or set apart for payment, before
any dividends shall be declared and paid, or set apart for payment,
on shares of Class A common stock and Class B common stock with
respect to the same dividend period.
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C. Convertibility.
(1) Shares of Class B common stock may be convertible into
the same or a different number of authorized shares of Class A
common stock as shall be determined by the Board of Directors.
(2) Shares of any series of the class of Preferred Stock may
be convertible into the same or a different number of authorized
shares of Class A common stock.
D. Preemptive Rights.
No stockholder shall be entitled as of right to purchase or
subscribe for any unissued stock of the corporation, whether now or
hereafter authorized or whether of a class now existing or of a
class hereafter created, or to purchase or subscribe for any bonds,
certificates of indebtedness, debentures or other obligations
convertible into stock of the corporation.
E. Second Series Of Preferred Stock.
This paragraph is set forth in Exhibit A attached and is
incorporated herein by reference.
FIFTH
That the amount of paid-in capital stock with which the
corporation commenced business was Seven Thousand Dollars ($7,000).
SIXTH
That the duration of this corporation is unlimited.
SEVENTH
The following provisions are for the regulation of the
business of the corporation and for the purpose of defining and
regulating the powers of the corporation and its officers,
directors and stockholders:
A. Issuance of Authorized Capital Stock.
The Board of Directors is hereby authorized and empowered to
issue from time to time all or any part of the shares of the
unissued authorized capital stock of the corporation, as then
constituted, for such consideration, not less than par, in money or
other property, as the Board of Directors may deem advisable; and
all shares of the capital stock of this corporation when issued
shall be deemed fully paid and nonassessable and the holders of
such shares shall not be liable thereunder to this corporation or
its creditors.
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B. Indemnification of Directors and Officers.
Each director and officer of the corporation shall be
indemnified by the corporation against expenses reasonably incurred
by him in connection with any action, suit or proceeding instituted
or threatened to which he may be made a party by reason of being or
having been a director or officer of the corporation, except as to
matters as to which he shall be adjudged in such action, suit or
proceeding to have been neglectful of his duty as such director or
officer. The foregoing right of indemnification shall not be
exclusive of other rights to which he may be entitled.
C. Limitation of Personal Liability.
The personal liability of a director to the corporation or its
shareholders for monetary damages for breach of duty as a director
shall be limited to an amount equal to the amount of compensation
received by the director for serving the corporation during the
calendar year in which the violation occurred (and if the director
received no such compensation from the corporation during the
calendar year of the violation, such director shall have no
liability to the corporation or its shareholders for breach of
duty) if such breach did not:
(1) involve a knowing and culpable violation of law by the
director;
(2) enable the director or an Associate, as defined in
subdivision (3) of Section 33-374d of the Connecticut
Stock Corporation Act as in effect at the time of the
violation, to receive an improper personal economic gain;
(3) show a lack of good faith and a conscious disregard for
the duty of the director to the corporation under
circumstances in which the director was aware that his
conduct or omission created an unjustifiable risk of
serious injury to the corporation;
(4) constitute a sustained and unexcused pattern of
inattention that amounted to an abdication of the
director's duty to the corporation; or
(5) create liability under Section 33-321 of the Connecticut
Stock Corporation Act as in effect at the time of the
violation.
Any repeal or modification of this Paragraph C shall not
adversely affect any right or protection of a director of the
corporation existing at the time of such repeal or modification.
Nothing contained in this Paragraph C shall be construed to
deny to the directors of the corporation any of the benefits
provided by Subsection (e) of Section 33-313 of the Connecticut
Stock Corporation Act, as in effect at the time of the violation.
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EXHIBIT A
TO AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF
KAMAN CORPORATION
E. SECOND SERIES OF PREFERRED STOCK.
(1) There is hereby created a series of the Preferred Stock
consisting of 500,000 shares having the designation, voting powers,
preferences, relative, participating, optional and other special
rights and the qualifications, limitations and restrictions thereof
as are set forth in Paragraphs A through D above and in this
Paragraph E. This series is designated "Series 2 Preferred Stock,
par value $1" (hereinafter called "Series 2 Stock");
(2) CASH DIVIDEND.
(a) The record holders of Series 2 Stock shall be
entitled to receive cash dividends when and as declared by the
Board of Directors at the rate of six and one-half percent (6 1/2%)
per annum, on the Liquidation Preference, as defined below, payable
quarterly on the first calendar day of March, June, September and
December (a "Dividend Payment Date," the period between any two
consecutive Dividend Payment Dates being hereinafter called a
"Dividend Period"). Such cash dividends shall be cumulative so
that if for any Dividend Period cash dividends shall not have been
declared and paid or set apart for payment on the outstanding
shares of the Series 2 Stock, the deficiency shall be declared and
paid or set apart for payment prior to the making of any dividend
or other distribution on the Class A common stock or Class B common
stock. Dividends will accrue from the date of original issuance to
the next Dividend Payment Date (the "Initial Dividend Period"), the
computation of dividends for the Initial Dividend Period and for
any other period which is less than a full Dividend Period to be
computed on the basis of a 360-day year consisting of twelve 30-day
months.
(b) Upon the payment or setting apart for payment of all
dividends, current or accumulated, upon the outstanding shares of
Series 2 Stock, the Board of Directors may declare and pay
dividends upon the Class A common stock and Class B common stock.
(3) REDEMPTION. The Board of Directors may, at its option,
at any time on or after October 15, 1996, redeem, in whole, or from
time to time in part, the then outstanding Series 2 Stock at the
redemption prices set forth herein, plus an amount equal to accrued
and unpaid dividends (whether or not declared) to the date fixed
for redemption, subject to the
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rights of conversion to the extent set forth in subparagraph (6) of
this Paragraph E. Partial redemptions shall be effected by lot or
pro rata (as nearly as may be practicable without creating
fractional shares) or by any other equitable method determined by
the Board of Directors. Not less than thirty (30) nor more than
sixty (60) days' previous notice by mail, postage prepaid, shall be
given to the holders of record of the Series 2 Stock to be
redeemed, such notice to be addressed to each such shareholder at
his mailing address as shown by the records of this corporation.
On or after the date fixed for redemption and stated in such
notice, such holder of Series 2 Stock called for redemption shall
surrender his certificate evidencing such shares to this
corporation at the place designated in such notice and shall
thereupon be entitled to receive payment of the redemption price
determined as a percentage of the Liquidation Preference as
follows, together with any accrued but unpaid dividends:
If redeemed on or after October 15, 1996 and on or before
October 14, 1997: 104.55%; if redeemed during the twelve-month
period beginning October 15 of each year indicated below:
Year Redemption Price
---- ----------------
1997 103.90%
1998 103.25%
1999 102.60%
2000 101.95%
2001 101.30%
2002 100.65%
and if redeemed at any time on or after October 15, 2003: 100%.
Notwithstanding the foregoing, the Board of Directors may not
redeem any shares of Series 2 Stock unless the corporation is
advised in advance of any such redemption by either Moody's
Investors Services, Inc. or Standard & Poor's Corporation (or in
the event that neither of them is available, by any similar service
entity of similar standing) that the proposed redemption would not
result in an immediate lowering of the corporation's credit rating
on its senior unsecured debt from its then existing level, except
that the Board of Directors may in any event exercise the
redemption option provided herein if the corporation shall have
received from the issuance of common stock, during the two-year
period immediately prior to the proposed redemption date, net
proceeds in an aggregate amount at least equal to the aggregate
Liquidation Preference of the shares of Series 2 Stock proposed to
be redeemed.
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(4) DISSOLUTION.
(a) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the corporation, the
record holders of the outstanding shares of Series 2 Stock shall be
entitled to be paid an amount equal to all accumulated dividends
thereon remaining unpaid up to the date of such liquidation,
dissolution or winding up, whether or not at such times the
corporation shall have surplus available for the payment of divi-
dends.
(b) After payment to the record holders of the
outstanding shares of Series 2 Stock of the amounts payable under
subpart (a) above, the record holders of said shares shall be
entitled to be paid as a liquidating distribution Two Hundred
Dollars ($200) per share (the "Liquidation Preference") prior to
any liquidating distribution to the holders of the Class A common
stock or Class B common stock but shall not participate further in
any liquidating distributions to such holders of Class A common
stock or Class B common stock.
(5) VOTING RIGHTS. The voting rights of the Series 2 Stock
shall be as set forth in subparagraph (2) of Paragraph A above.
(6) CONVERSION PRIVILEGE.
(a) RIGHT OF CONVERSION. After the initial issuance of
the Series 2 Stock, each share of Series 2 Stock shall be
convertible at the option of the holder thereof, at any time prior
to the close of business on the fifth (5th) business day prior to
the date fixed for redemption of such shares as herein provided,
into fully paid and nonassessable shares of Class A common stock,
at the rate of that number of shares of Class A common stock for
each full share of Series 2 Stock that is equal to $200.00 divided
by the conversion price applicable per share of Class A common
stock, or into such additional or other securities, cash or
property and at such other rates as required in accordance with the
provisions of this subparagraph 6. For purposes of this
subparagraph 6, the "conversion price" applicable per share of
Class A common stock shall initially be equal to $12.56 and shall
be adjusted from time to time in accordance with the provisions of
this subparagraph 6.
(b) CONVERSION PROCEDURES. Any holder of shares of
Series 2 Stock desiring to convert such shares into Class A common
stock shall surrender the certificate or certificates evidencing
such shares of Series 2 Stock at the office of the transfer agent
for the Series 2 Stock, which certificate or certificates, if the
corporation shall so require, shall be duly endorsed to the
corporation or in blank, or accompanied by proper instruments of
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transfer to the corporation or in blank, accompanied by irrevocable
written notice to the corporation that the holder elects so to
convert such shares of Series 2 Stock and specifying the name or
names (with address or addresses) in which a certificate or
certificates evidencing shares of Class A common stock are to be
issued.
Subject to subparagraph 6(c) hereof, no payments or
adjustments in respect of dividends on shares of Series 2 Stock
surrendered for conversion or on account of any dividend on the
Class A common stock issued upon conversion shall be made upon the
conversion of any shares of Series 2 Stock.
The corporation shall, as soon as practicable after such
deposit of certificates evidencing shares of Series 2 Stock
accompanied by the written notice and compliance with any other
conditions herein contained, deliver at such office of such
transfer agent to the person for whose account such shares of
Series 2 Stock were so surrendered, or to the nominee or nominees
of such person, certificates evidencing the number of full shares
of Class A common stock to which such person shall be entitled as
aforesaid, together with a cash adjustment in respect of any
fraction of a share of Class A common stock as provided in
subparagraph 6(d). Such conversion shall be deemed to have been
made as of the date of such surrender of the shares of Series 2
Stock to be converted, and the person or persons entitled to
receive the Class A common stock deliverable upon conversion of
such Series 2 Stock shall be treated for all purposes as the record
holder or holders of such Class A common stock on such date.
(c) ADJUSTMENT OF CONVERSION PRICE. The conversion
price at which a share of Series 2 Stock is convertible into Class
A common stock shall be subject to adjustment from time to time as
follows:
(i) In case the corporation shall pay or make a dividend
or other distribution on its Class A common stock exclusively in
Class A common stock or shall pay or make a dividend or other
distribution on any other class or series of capital stock of the
corporation which dividend or distribution includes Class A common
stock, the conversion price in effect at the opening of business on
the date following the date fixed for the determination of stock-
holders entitled to receive such dividend or other distribution
shall be reduced by multiplying such conversion price by a fraction
of which the numerator shall be the number of shares of Class A
common stock outstanding at the close of business on the date fixed
for such determination and the denominator shall be the sum of such
number of shares and the total number of shares constituting such
dividend or other distribution, such reduction to become effective
immediately after the opening of business on the day following the
date fixed for such determination. For the purposes of this clause
(i), the number of shares of Class A common stock at any time
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outstanding shall not include shares held in the treasury of the
corporation. The corporation shall not pay any dividend or make
any distribution on shares of Class A common stock held in the
treasury of the corporation.
(ii) In case the corporation shall pay or make a
dividend or other distribution on its Class A common stock con-
sisting exclusively of, or shall otherwise issue to all holders of
its Class A common stock, rights or warrants entitling the holders
thereof to subscribe for or purchase shares of Class A common stock
at a price per share less than the current market price per share
(determined as provided in clause (vii) of this subparagraph 6(c))
of the Class A common stock on the date fixed for the determination
of stockholders entitled to receive such rights or warrants, the
conversion price in effect at the opening of business on the day
following the date fixed for such determination shall be reduced by
multiplying such conversion price by a fraction of which the
numerator shall be the number of shares of Class A common stock
outstanding at the close of business on the date fixed for such
determination plus the number of shares of Class A common stock
which the aggregate of the offering price of the total number of
shares of Class A common stock so offered for subscription or
purchase would purchase at such current market price and the
denominator shall be the number of shares of Class A common stock
outstanding at the close of business on the date fixed for such
determination plus the number of shares of Class A common stock so
offered for subscription or purchase, such reduction to become
effective immediately after the opening of business on the day
following the date fixed for such determination. For the purposes
of this clause (ii), the number of shares of Class A common stock
at any time outstanding shall not include shares held in the
treasury of the corporation. The corporation shall not issue any
rights or warrants in respect of shares of Class A common stock
held in the treasury of the corporation. In case any rights or
warrants referred to in this clause (ii) in respect of which an
adjustment shall have been made shall expire unexercised within 45
days after the same shall have been distributed or issued by the
corporation, the conversion price shall be readjusted at the time
of such expiration to the conversion price that would have been in
effect if no adjustment had been made on account of the
distribution or issuance of such expired rights or warrants.
(iii) In case outstanding shares of Class A common stock
shall be subdivided into a greater number of shares of Class A
common stock, the conversion price in effect at the opening of
business on the day following the day upon which such subdivision
becomes effective shall be proportionately reduced, and conversely,
in case outstanding shares of Class A common stock shall each be
combined into a smaller number of shares of Class A common stock,
the conversion price in effect at the opening of business on the
day following the day upon which such combination becomes effective
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shall be proportionately increased, such reduction or increase, as
the case may be, to become effective immediately after the opening
of business on the day following the day upon which such sub-
division or combination becomes effective.
(iv) Subject to the last sentence of this clause (iv),
in case the corporation shall, by dividend or otherwise, distribute
to all holders of its Class A common stock evidences of its
indebtedness, shares of any class or series of capital stock, cash
or assets (including securities, but excluding any rights or
warrants referred to in clause (ii) of this subparagraph 6(c), any
dividend or distribution paid exclusively in cash and any dividend
or distribution referred to in clause (i) of this subparagraph
6(c)), the conversion price shall be reduced so that the same shall
equal the price determined by multiplying the conversion price in
effect immediately prior to the effectiveness of the conversion
price reduction contemplated by this clause (iv) by a fraction of
which the numerator shall be the current market price per share
(determined as provided in clause (vii) of this subparagraph 6(c))
of the Class A common stock on the date fixed for the payment of
such distribution (the "Reference Date") less the fair market value
(as determined in good faith by the Board of Directors, whose
determination shall be conclusive and described in a resolution of
the Board of Directors), on the Reference Date, of the portion of
the evidences of indebtedness, shares of capital stock, cash and
assets so distributed applicable to one share of Class A common
stock and the denominator shall be such current market price per
share of the Class A common stock, such reduction to become
effective immediately prior to the opening of business on the day
following the Reference Date. If the Board of Directors determines
the fair market value of any distribution for purposes of this
clause (iv) by reference to the actual or when issued trading
market for any securities comprising such distribution, it must in
doing so consider the prices in such market over the same period
used in computing the current market price per share of Class A
common stock pursuant to clause (vii) of this subparagraph 6(c).
For purposes of this clause (iv), any dividend or distribution that
includes shares of Class A common stock or rights or warrants to
subscribe for or purchase shares of Class A common stock shall be
deemed instead to be (1) a dividend or distribution of the
evidences of indebtedness, cash, assets or shares of capital stock
other than such shares of Class A common stock or such rights or
warrants (making any conversion price reduction required by this
clause (iv)) immediately followed by (2) a dividend or distribution
of such shares of Class A common stock or such rights or warrants
(making any further conversion price reduction required by clause
(i) or (ii) of this subparagraph 6(c), except (A) the Reference
Date of such dividend or distribution as defined in this clause
(iv) shall be substituted as "the date fixed for the determination
of stockholders entitled to receive such dividend or other
distribution," "the date fixed for the determination of
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stockholders entitled to receive such rights or warrants" and "the
date fixed for the determination" within the meaning of clauses (i)
and (ii) of this subparagraph 6(c) and (B) any shares of Class A
common stock included in such dividend or distribution shall not be
deemed "outstanding at the close of business on the date fixed for
such determination" within the meaning of clause (i) of this
subparagraph 6(c)).
(v) In case the corporation shall pay or make a dividend
or other distribution on its Class A common stock exclusively in
cash (excluding, in the case of any quarterly cash dividend on the
Class A common stock, the portion thereof that does not exceed the
per share amount of the next preceding quarterly cash dividend on
the Class A common stock (as adjusted to appropriately reflect any
of the events referred to in clauses (i), (ii), (iii), (iv), (v)
and (vi) of this subparagraph 6(c)), or all of such quarterly cash
dividend if the amount thereof per share of Class A common stock
multiplied by four does not exceed 15% of the current market price
per share (determined as provided in clause (vii) of this sub-
paragraph 6(c)) of the Class A common stock on the Trading Day (as
defined in subparagraph 6(i)) next preceding the date of declara-
tion of such dividend), the conversion price shall be reduced so
that the same shall equal the price determined by multiplying the
conversion price in effect immediately prior to the effectiveness
of the conversion price reduction contemplated by this clause (v)
by a fraction of which the numerator shall be the current market
price per share (determined as provided in clause (vii) of this
subparagraph 6(c)) of the Class A common stock on the date fixed
for the payment of such distribution less the amount of cash so
distributed and not excluded as provided above applicable to one
share of Class A common stock and the denominator shall be such
current market price per share of the Class A common stock, such
reduction to become effective immediately prior to the opening of
business on the day following the date fixed for the payment of
such distribution.
(vi) In case a tender or exchange offer made by the
corporation or any subsidiary of the corporation for all or any
portion of the corporation's Class A common stock shall expire and
such tender or exchange offer shall involve the payment by the
corporation or such subsidiary of consideration per share of Class
A common stock having a fair market value (as determined in good
faith by the Board of Directors, whose determination shall be
conclusive and described in a resolution of the Board of Directors)
at the last time (the "Expiration Time") tenders or exchanges may
be made pursuant to such tender or exchange offer (as it shall have
been amended) that exceeds the current market price per share
(determined as provided in clause (vii) of this subparagraph 6(c))
of the Class A common stock on the Trading Day (as defined in
subparagraph 6(i)) next succeeding the Expiration Time, the
conversion price shall be reduced so that the same shall equal the
price determined by multiplying the conversion price in effect
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immediately prior to the effectiveness of the conversion price
reduction contemplated by this clause (vi) by a fraction of which
the numerator shall be the number of shares of all classes of
common stock outstanding (including any tendered or exchanged
shares) at the Expiration Time multiplied by the current market
price per share (determined as provided in clause (vii) of this
subparagraph 6(c)) of the Class A common stock on the Trading Day
next succeeding the Expiration Time and the denominator shall be
the sum of (x) the fair market value (determined as aforesaid) of
the aggregate consideration payable to stockholders based on the
acceptance (up to any maximum specified in the terms of the tender
or exchange offer) of all shares validly tendered or exchanged and
not withdrawn as of the Expiration Time (the shares deemed so
accepted, up to any such maximum, being referred to as the
"Purchased Shares") and (y) the product of the number of shares of
all classes of common stock outstanding (less any Purchased Shares)
at the Expiration Time and the current market price per share
(determined as provided in clause (vii) of this subparagraph 6(c))
of the Class A common stock on the Trading Day next succeeding the
Expiration Time, such reduction to become effective immediately
prior to the opening of business on the day following the
Expiration Time.
(vii) For the purpose of any computation under clause
(ii), (iv) and (v) of this subparagraph 6(c), the current market
price per share of Class A common stock on any date in question
shall be deemed to be the average of the daily Closing Price (as
defined in subparagraph 6(i)) for the five consecutive Trading Days
prior to and including the date in question; provided, however,
that (1) if the "ex" date (as hereinafter defined) for any event
(other than the issuance or distribution requiring such computa-
tion) that requires an adjustment to the conversion price pursuant
to clause (i), (ii), (iii), (iv), (v) or (vi) above ("Other Event")
occurs after the fifth (5th) Trading Day prior to the day in ques-
tion and prior to the "ex" date for the issuance or distribution
requiring such computation (the "Current Event"), the Closing Price
for each Trading Day prior to the "ex" date for such Other Event
shall be adjusted by multiplying such Closing Price by the same
fraction by which the conversion price is so required to be
adjusted as a result of such Other Event, (2) if the "ex" date for
any Other Event occurs after the "ex" date for the Current Event
and on or prior to the date in question, the Closing Price for each
Trading Day on and after the "ex" date for such Other Event shall
be adjusted by multiplying such Closing Price by the reciprocal of
the fraction by which the conversion price is so required to be
adjusted as a result of such Other Event, (3) if the "ex" date of
any Other Event occurs on the "ex" date for the Current Event, one
of those events shall be deemed for purposes of clauses (1) and (2)
of this proviso to have an "ex" date occurring prior to the "ex"
date for the other event, and (4) if the "ex" date for the Current
Event is on or prior to the date in question, after taking into
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account any adjustment required pursuant to clause (2) of this
proviso, the Closing Price for each Trading Day on or after such
"ex" date shall be adjusted by adding thereto the amount of any
cash and the fair market value on the date in question (as
determined in good faith by the Board of Directors in a manner
consistent with any determination of such value for purposes of
clause (iv) or (v) of this subparagraph 6(c), whose determination
shall be conclusive and described in a resolution of the Board of
Directors) of the portion of the rights, warrants, evidences of
indebtedness, shares of capital stock or assets being distributed
applicable to one share of Class A common stock. For the purposes
of any computation under clause (vi) of this subparagraph 6(c), the
current market price per share of Class A common stock on any date
in question shall be deemed to be the average of the daily Closing
Prices for such date in question and the next two succeeding
Trading Days; provided, however, that if the "ex" date for any
event (other than the tender or exchange offer requiring such
computation) that requires an adjustment to the conversion price
pursuant to clause (i), (ii), (iii), (iv), (v) or (vi) above occurs
after the Expiration Time for the tender or exchange offer
requiring such computation and prior to the second Trading Day
following the date in question, the Closing Price for each Trading
Day on and after the "ex" date for such other event shall be
adjusted by multiplying such Closing Price by the reciprocal of the
fraction by which the conversion price is so required to be
adjusted as a result of such other event. For purposes of this
clause (vii), the term "ex" date, (1) when used with respect to any
issuance or distribution, means the first date on which the Class A
common stock trades regular way on the relevant exchange or in the
relevant market from which the Closing Price was obtained without
the right to receive such issuance or distribution, (2) when used
with respect to any subdivision or combination of shares of Class A
common stock, means the first date on which the Class A common
stock trades regular way on such exchange or in such market after
the time at which such subdivision or combination becomes
effective, and (3) when used with respect to any tender or exchange
offer means the first date on which the Class A common stock trades
regular way on such exchange or in such market after the Expiration
Time of such offer.
(viii) The corporation may make such reductions in the
conversion price, in addition to those required by clauses (i),
(ii), (iii), (iv), (v) and (vi) of this subparagraph 6(c), as it
considers to be advisable to avoid or diminish an income tax to
holders of Class A common stock or rights to purchase Class A
common stock resulting from any dividend or distribution of stock
(or rights to acquire stock) or from any event treated as such for
income tax purposes. The corporation from time to time may reduce
the conversion price by any amount for any period of time if the
period is at least twenty days, the reduction is irrevocable during
the period, and the Board of Directors of the corporation shall
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have made a determination that such reduction would be in the best
interest of the corporation, which determination shall be
conclusive. Whenever the conversion price is reduced pursuant to
the preceding sentence, the corporation shall mail to holders of
record of the Series 2 Stock a notice of the reduction at least
fifteen (15) days prior to the date the reduced conversion price
takes effect, and such notice shall state the reduced conversion
price and the period it will be in effect.
(ix) No adjustment in the conversion price shall be
required unless such adjustment would require an increase or
decrease of at least 1% in the conversion price; provided, however,
that any adjustments which by reason of this clause (ix) are not
required to be made shall be carried forward and taken into account
in any subsequent adjustment.
(x) Whenever the conversion price is adjusted as herein
provided:
(1) the corporation shall compute the adjusted
conversion price and shall prepare a certificate signed by the
Treasurer of the corporation setting forth the adjusted conversion
price and showing in reasonable detail the facts upon which such
adjustment is based, and such certificate shall forthwith be filed
with the transfer agent for the Series 2 Stock; and
(2) a notice stating the conversion price has been
adjusted and setting forth the adjusted conversion price shall
forthwith be required, and as soon as practicable after it is
required such notice shall be mailed by the corporation to all
record holders of shares of Series 2 Stock at their last addresses
as they shall appear upon the stock transfer books of the
corporation.
(d) NO FRACTIONAL SHARES. No fractional shares of Class
A common stock shall be issued upon conversion of Series 2 Stock.
If more than one certificate evidencing shares of Series 2 Stock
shall be surrendered for conversion at one time by the same holder,
the number of full shares issuable upon conversion thereof shall be
computed on the basis of the aggregate number of shares of Series 2
Stock so surrendered. Instead of any fractional share of Class A
common stock that would otherwise be issuable to a holder upon
conversion of any shares of Series 2 Stock, the corporation shall
pay a cash adjustment in respect of such fractional share in an
amount equal to the same fraction of the market price per share of
Class A common stock (as determined by the Board of Directors or in
any manner prescribed by the Board of Directors, which, so long as
the Class A common stock is quoted on the National Association of
Securities Dealers, Inc. ("NASDAQ") National Market System, shall
be the reported last sale price regular way on the NASDAQ National
Market System) at the close of business on the day of conversion.
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(e) RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE OF
ASSETS. In the event that the corporation shall be a party to any
transaction (including without limitation any recapitalization or
reclassification of the Class A common stock (other than a change
in par value, or from par value to no par value, or from no par
value to par value, or as a result of a subdivision or combination
of the Common Stock), any consolidation of the corporation with, or
merger of the corporation into, any other person, any merger of
another person into the corporation (other than a merger which does
not result in a reclassification, conversion, exchange or
cancellation of outstanding shares of Class A common stock of the
corporation), any sale or transfer of all or substantially all of
the assets of the corporation or any compulsory share exchange)
pursuant to which the Class A common stock is converted into the
right to receive other securities, cash or other property, then
lawful provisions shall be made as part of the terms of such
transaction whereby the holder of each share of Series 2 Stock then
outstanding shall have the right thereafter, to convert such share
only into (i) in the case of any such transaction other than a
Common Stock Fundamental Change and subject to funds being legally
available for such purpose under applicable law at the time of such
conversion, the kind and amount of securities, cash and other
property receivable upon such transaction by a holder of the number
of shares of Class A common stock of the corporation into which
such share of Series 2 Stock could have been converted immediately
prior to such transaction, after giving effect, in the case of any
Non-Stock Fundamental Change, to any adjustment in the conversion
price required by the provisions of subparagraph 6(h) and (ii) in
the case of a Common Stock Fundamental Change, common stock of the
kind received by holders of Class A common stock as a result of
such Common Stock Fundamental Change at a conversion price
determined pursuant to the provisions of subparagraph 6(h). The
corporation or the person formed by such consolidation or resulting
from such merger or which acquires such assets or which acquires
the corporation's shares, as the case may be, shall make provisions
in its certificate or articles of incorporation or other
constituent document to establish such right. Such certificate or
articles of incorporation or other constituent document shall
provide for adjustments which, for events subsequent to the
effective date of such certificate or articles of incorporation or
other constituent document, shall be as nearly equivalent as may be
practicable to the adjustments provided for in this subparagraph 6.
The above provisions shall similarly apply to successive
transactions of the foregoing type.
(f) RESERVATION OF SHARES; ETC. The corporation shall
at all times reserve and keep available, free from preemptive
rights out of its authorized and unissued stock, solely for the
purpose of effecting the conversion of the Series 2 Stock, such
number of shares of its Class A common stock as shall from time to
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time be sufficient to effect the conversion of all shares of
Series 2 Stock from time to time outstanding. The corporation
shall from time to time, in accordance with the laws of the State
of Connecticut, increase the authorized number of shares of Class A
common stock if at any time the number of shares of authorized and
unissued Class A common stock shall not be sufficient to permit the
conversion of all the then-outstanding shares of Series 2 Stock.
If any shares of Class A common stock required to be
reserved for purposes of conversion of the Series 2 Stock hereunder
require registration with or approval of any governmental authority
under any federal or state law before such shares may be issued
upon conversion, and an exemption under Section 3(a)(9) of the
Securities Act of 1933, as amended (the "Securities Act"), or
similar exemption is not available, the corporation will in good
faith and as expeditiously as possible endeavor to cause such
shares to be duly registered or approved as the case may be. If
the Class A common stock is quoted on the NASDAQ National Market
System or any other U.S. national securities exchange, the
corporation will, if permitted by the rules of such exchange, list
and keep listed on such exchange, upon official notice of issuance,
all shares of Class A common stock issuable upon conversion of the
Series 2 Stock. The second sentence of this paragraph shall apply
only if the shares of Class A common stock issuable upon conversion
are exempt from the registration requirements of the Securities Act
by operation of an exemption referred to in the first sentence of
this paragraph.
(g) PRIOR NOTICE OF CERTAIN EVENTS. In case:
(i) the corporation shall (1) declare any dividend (or
other distribution) on its Class A common stock, other than (A) a
dividend payable in shares of Class A common stock or (B) a
dividend payable in cash out of its retained earnings other than
any special or nonrecurring or other extraordinary dividend or (2)
declare or authorize a redemption or repurchase of in excess of 10%
of the then-outstanding shares of Class A common stock; or
(ii) the corporation shall authorize the granting to all
holders of Class A common stock of rights or warrants to subscribe
for or purchase any shares of stock of any class or series or of
any other rights or warrants; or
(iii) of any reclassification of Class A common stock
(other than a subdivision or combination of the outstanding Class A
common stock, or a change in par value, or from par value to no par
value, or from no par value to par value), or of any consolidation
or merger to which the corporation is a party and for which
approval of any stockholders of the corporation shall be required,
or of the sale or transfer of all or substantially all of the
assets of the corporation or of any compulsory share exchange
whereby the Class A common stock is converted into other
securities, cash or other property; or
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(iv) of the voluntary or involuntary dissolution,
liquidation or winding up of the corporation;
then the corporation shall cause to be filed with the transfer
agent for the Series 2 Stock, and shall cause to be mailed to the
holders of record of the Series 2 Stock, at their last addresses as
they shall appear upon the stock transfer books of the corporation,
at least fifteen (15) days prior to the applicable record or
effective date hereinafter specified, a notice stating (x) the date
on which a record (if any) is to be taken for the purpose of such
dividend, distribution, redemption, repurchase, rights or warrants
or, if a record is not to be taken, the date as of which the
holders of Class A common stock of record to be entitled to such
dividend, distribution, redemption, rights or warrants are to be
determined or (y) the date on which such reclassification,
consolidation, merger, sale, transfer, share exchange, dissolution,
liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of Class A common
stock of record shall be entitled to exchange their shares of Class
A common stock for securities, cash or other property deliverable
upon such reclassification, consolidation, merger, sale, transfer,
share exchange, dissolution, liquidation or winding up (but no
failure to mail such notice or any defect therein or in the mailing
thereof shall affect the validity of the corporate action required
to be specified in such notice).
(h) ADJUSTMENTS IN CASE OF FUNDAMENTAL CHANGES.
Notwithstanding any other provision in this subparagraph 6 to the
contrary, if any Fundamental Change (as defined in subparagraph
6(i)) occurs, then the conversion price in effect will be adjusted
immediately after such Fundamental Change as described below. In
addition, in the event of a Common Stock Fundamental Change (as
defined in subparagraph 6(i)), each share of Series 2 Stock shall
be convertible solely into common stock of the kind and amount
received by holders of Class A common stock as the result of such
Common Stock Fundamental Change as more specifically provided in
clause (ii) below.
For purposes of calculating any adjustment to be
made pursuant to this subparagraph 6(h) in the event of a
Fundamental Change, immediately after such Fundamental Change:
(i) in the case of a Non-Stock Fundamental Change
(as defined in subparagraph 6(i)), the conversion price of the
Series 2 Stock shall thereupon become the lower of (A) the
conversion price in effect immediately prior to such Non-Stock
Fundamental Change, but after giving effect to any other prior
adjustments effected pursuant to this subparagraph 6, and (B) the
result obtained by multiplying the greater of the Applicable Price
(as defined in subparagraph 6(i)) or the then applicable Reference
Market Price (as defined in subparagraph 6(i)) by a fraction of
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which the numerator shall be $200.00 and the denominator shall be
(x) the then-current Redemption Price per share of Series 2 Stock
or (y) for any Non-Stock Fundamental Change that occurs before the
Series 2 Stock becomes redeemable by the corporation pursuant to
subparagraph 3 of this Paragraph E, the applicable price per share
set forth for the date of such Non-Stock Fundamental Change in the
following table:
Date of Non-Stock Fundamental Change Price
------------------------------------ -----
After date of original issuance of Series 2 $213.00
Stock and on or before October 15, 1994
After October 15, 1994, and on or before 211.70
October 15, 1995
After October 15, 1995, and on or before 210.40
October 15, 1996
plus, in any case referred to in this clause (y), an amount equal
to all per share dividends on the Series 2 Stock accrued and unpaid
thereon, whether or not declared, to but excluding the date of such
Non-Stock Fundamental Change; and
(ii) in the case of a Common Stock Fundamental
Change, the conversion price of the Series 2 Stock in effect
immediately prior to such Common Stock Fundamental Change, but
after giving effect to any other prior adjustments effected
pursuant to this subparagraph 6, shall thereupon be adjusted by
multiplying such conversion price by a fraction of which the
numerator shall be the Purchaser Stock Price (as defined in
subparagraph 6(i)) and the denominator shall be the Applicable
Price; provided, however, that in the event of a Common Stock
Fundamental Change in which (A) 100% by value of the consideration
received by a holder of Class A common stock is common stock of the
successor, acquiror or other third party (and cash, if any, is paid
with respect to any fractional interests in such common stock
resulting from such Common Stock Fundamental Change) and (B) all of
the Class A common stock shall have been exchanged for, converted
into or acquired for common stock (and cash with respect to
fractional interests) of the successor, acquiror or other third
party, the conversion price of the Series 2 Stock in effect
immediately prior to such Common Stock Fundamental Change shall
thereupon be adjusted by multiplying such conversion price by a
fraction of which the numerator shall be one (1) and the
denominator shall be the number of shares of common stock of the
successor, acquiror, or other third party received by a stockholder
for one share of Class A common stock as a result of such Common
Stock Fundamental Change.
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(i) DEFINITIONS. The following definitions shall apply
to terms used in this subparagraph 6:
(1) "Applicable Price" shall mean (i) in the event of a
Non-Stock Fundamental Change in which the holders of the Class A
common stock receive only cash, the amount of cash received by a
stockholder for one share of Class A common stock, and (ii) in the
event of any other Non-Stock Fundamental Change or any Common Stock
Fundamental Change, the average of the daily Closing Prices of the
Class A common stock for the ten (10) consecutive Trading Days
prior to and including the record date for the determination of the
holders of Class A common stock entitled to receive securities,
cash or other property in connection with such Non-Stock
Fundamental Change or Common Stock Fundamental Change, or, if there
is no such record date, the date upon which the holders of the
Class A common stock shall have the right to receive such
securities, cash or other property, in each case, as adjusted in
good faith by the Board of Directors of the corporation to
appropriately reflect any of the events referred to in clauses (i),
(ii), (iii), (iv), (v) and (vi) of subparagraph 6(c).
(2) "Closing Price" of any common stock on any day shall
mean the last reported sale price regular way on such day or, in
case no such sale takes place on such day, the average of the
reported closing bid and asked prices regular way of the common
stock in each case on the NASDAQ National Market System, or, if the
common stock is not quoted or admitted to trading on such quotation
system, on the principal national securities exchange or quotation
system on which the common stock is listed or admitted to trading
or quoted, or, if not listed or admitted to trading or quoted on
any national securities exchange or quotation system, the average
of the closing bid and asked prices of the common stock in the
over-the-counter market on the day in question as reported by the
National Quotation Bureau Incorporated, or a similarly generally
accepted reporting service, or, if not so available in such manner,
as furnished by any New York Stock Exchange member firm selected
from time to time by the Board of Directors of the corporation for
that purpose, or if not so available in such manner, as otherwise
determined in good faith by the Board of Directors.
(3) "Common Stock Fundamental Change" shall mean any
Fundamental Change in which more than 50% by value (as determined
in good faith by the Board of Directors of the corporation) of the
consideration received by holders of Class A common stock consists
of common stock that for each of the ten (10) consecutive Trading
Days referred to with respect to such Fundamental Change in
subparagraph 6(i)(1) above has been admitted for listing or
admitted for listing subject to notice of issuance on a national
securities exchange or quoted on the NASDAQ National Market System;
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provided, however, that a Fundamental Change shall not be a Common
Stock Fundamental Change unless either (i) the corporation
continues to exist after the occurrence of such Fundamental Change
and the outstanding shares of Series 2 Stock continue to exist as
outstanding shares of Series 2 Stock, or (ii) not later than the
occurrence of such Fundamental Change, the outstanding shares of
Series 2 Stock are converted into or exchanged for shares of
convertible preferred stock of a corporation succeeding to the
business of the corporation, which convertible preferred stock has
powers, preferences and relative, participating, optional or other
rights, and qualifications, limitations and restrictions,
substantially similar to those of the Series 2 Stock.
(4) "Fundamental Change" shall mean the occurrence of
any transaction or event in connection with a plan pursuant to
which all or substantially all of the Class A common stock shall be
exchanged for, converted into, acquired for or constitute solely
the right to receive securities, cash or other property (whether by
means of an exchange offer, liquidation, tender offer,
consolidation, merger, combination, reclassification,
recapitalization or otherwise); provided, however, in the case of a
plan involving more than one such transaction or event, for
purposes of adjustment of the conversion price, such Fundamental
Change shall be deemed to have occurred when substantially all of
the Class A common stock of the corporation shall be exchanged for,
converted into, or acquired for or constitute solely the right to
receive cash, securities, property or other assets, but the
adjustment shall be based upon the highest weighted average of
consideration per share which a holder of Class A common stock
could have received in such transactions or events as a result of
which more than 50% of the Class A common stock of the corporation
shall have been exchanged for, converted into, or acquired for or
constitute solely the right to receive cash, securities, property
or other assets.
(5) "Non-Stock Fundamental Change" shall mean any
Fundamental Change other than a Common Stock Fundamental Change.
(6) "Purchaser Stock Price" shall mean, with respect to
any Common Stock Fundamental Change, the average of the daily
Closing Prices of the common stock received in such Common Stock
Fundamental Change for the ten consecutive Trading Days prior to
and including the record date for the determination of the holders
of Class A common stock entitled to receive such common stock, or,
if there is no such record date, the date upon which the holders of
the Class A common stock shall have the right to receive such
common stock, in each case, as adjusted in good faith by the Board
of Directors of the corporation to appropriately reflect any of the
events referred to in clauses (i), (ii), (iii), (iv), (v) and (vi)
of subparagraph 6(c); provided, however, if no such Closing Prices
of the common stock for such Trading Days exist, then the Purchaser
Stock Price shall be set at a price determined in good faith by the
Board of Directors of the corporation.
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(7) "Reference Market Price" shall initially mean $6.83
(which is an amount equal to 66-2/3% of the reported last sale
price for the Class A common stock on the NASDAQ National Market
System on September 14, 1993), and in the event of any adjustment
to the conversion price other than as a result of a Non-Stock
Fundamental Change, the Reference Market Price shall also be
adjusted so that the ratio of the Reference Market Price to the
conversion price after giving effect to any such adjustment shall
always be the same as the ratio of $6.83 to the initial conversion
price per share set forth in the last sentence of subparagraph
6(a).
(8) "Trading Day" shall mean a day on which securities
are traded on the national securities exchange or quotation system
or in the over-the-counter market used to determined the Closing
Price.
(j) DIVIDEND OR INTEREST REVINVESTMENT PLANS.
Notwithstanding the foregoing provisions, the issuance of any
shares of Class A common stock pursuant to any plan providing for
the reinvestment of dividends or interest payable on securities of
the corporation and the investment of additional optional amounts
in shares of Class A common stock under any such plan, and the
issuance of any shares of Class A common stock or options or rights
to purchase such shares pursuant to any employee benefit plan or
program of the corporation or pursuant to any option, warrant,
right or exercisable, exchangeable or convertible security
outstanding as of the date the Series 2 Stock was first designated,
shall not be deemed to constitute an issuance of Class A common
stock or exercisable, exchangeable or convertible securities by the
corporation to which any of the adjustment provisions described
above applies. There shall be no adjustment of the conversion
price in case of the issuance of any stock (or securities
convertible into or exchangeable for stock) of the corporation
except as specifically described in this subparagraph 6. If any
action would require adjustment of the conversion price pursuant to
more than one of the provisions described above, only one
adjustment shall be made and such adjustment shall be the amount of
adjustment which has the highest absolute value to holders of
Series 2 Stock.
(k) CERTAIN ADDITIONAL RIGHTS. In case the corporation
shall, by dividend or otherwise, declare or make a distribution on
its Class A common stock referred to in subparagraph 6(c)(iv) or
6(c)(v) (including, without limitation, dividends or distributions
referred to in the last sentence of subparagraph 6(c)(iv)), the
holder of each share of Series 2 Stock, upon the conversion thereof
subsequent to the close of business on the date fixed for the
determination of stockholders entitled to receive such distribution
and prior to the effectiveness of the conversion price adjustment
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in respect of such distribution, shall also be entitled to receive
for each share of Class A common stock into which such share of
Series 2 Stock is converted, the portion of the shares of Class A
common stock, rights, warrants, evidences of indebtedness, shares
of capital stock, cash and assets so distributed applicable to one
share of Class A common stock; provided, however, that, at the
election of the corporation (whose election shall be evidenced by a
resolution of the Board of Directors) with respect to all holders
so converting, the corporation may, in lieu of distributing to such
holder any portion of such distribution not consisting of cash or
securities of the corporation, pay such holder an amount in cash
equal to the fair market value thereof (as determined in good faith
by the Board of Directors, whose determination shall be conclusive
and described in a resolution of the Board of Directors). If any
conversion of a share of Series 2 Stock described in the
immediately preceding sentence occurs prior to the payment date for
a distribution to holders of Class A common stock which the holder
of the share of Series 2 Stock so converted is entitled to receive
in accordance with the immediately preceding sentence, the
corporation may elect (such election to be evidenced by a
resolution of the Board of Directors) to distribute to such holder
a due bill for the shares of Class A common stock, rights,
warrants, evidences of indebtedness, shares of capital stock, cash
or assets to which such holder is so entitled, provided that such
due bill (i) meets any applicable requirements of the principal
national securities exchange or other market on which the Class A
common stock is then traded, and (ii) requires payment or delivery
of such shares of Class A common stock, rights, warrants, evidences
of indebtedness, shares of capital stock, cash or assets no later
than the date of payment or delivery thereof to holders of shares
of Class A common stock receiving such distribution.
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KAMAN CORPORATION
BY-LAWS
ARTICLE I
Offices
-------
1. The principal office of this corporation shall be at such
place in the Town of Bloomfield in the State of Connecticut as the
directors shall from time to time designate. The corporation may
have such other offices within or without the State of Connecticut
as the directors may from time to time determine.
ARTICLE II
Meetings of Stockholders
------------------------
1. PLACE OF MEETINGS. All meetings of the stockholders shall be
held at the principal office or place of business of the
corporation, or at such place within or without the State of
Connecticut as from time to time may be designated by resolution of
the Board of Directors.
2. ANNUAL MEETINGS. The annual meetings of the stockholders
shall be held on such day, other than a legal holiday, in the month
of March or April of each year and at such time and place as may be
designated by the Board of Directors. The purpose of such meeting
shall be the election of a Board of Directors by ballot and the
transaction of such other business as may properly come before such
meeting. If the annual meeting of the stockholders be not held as
herein prescribed, the election of directors may be held at any
meeting thereafter called pursuant to these by-laws or otherwise
lawfully held.
3. NOTICE OF ANNUAL MEETING. A notice setting out the day, hour
and place of such annual meeting shall be mailed, postage prepaid,
to each stockholder of record at his address as the same appears on
the stock book of the corporation, or if no such address appears,
at his last known address, not less than seven (7) days nor more
than fifty (50) days before such annual meeting. Such notice shall
also state any proposed amendment or repeal of the by-laws of the
corporation and any other proposed matter other than the election
of directors which, under the Connecticut Stock Corporation Law,
expressly requires the vote of stockholders.
4. ADJOURNMENT OF STOCKHOLDERS' MEETING. If a quorum is not
present at any meeting of the stockholders, the stockholders
present, in person or by proxy, may adjourn such meeting to such
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future time as shall be agreed upon by them, and notice of such
adjournment shall be given to the stockholders not present or
represented at the meeting; but if a quorum be present, the
stockholders present may adjourn from day to day as they see fit,
and no notice of such adjournment need be given.
5. SPECIAL MEETINGS. Special Meetings of the stockholders may
be called at any time by the President or by resolution of the
Board of Directors. A special meeting of the stockholders shall be
called by the President upon the request of any two (2) directors
or upon the written request of one (1) or more stockholders holding
in the aggregate at least one-tenth (1/10) of the total number of
shares entitled to vote at such meeting. The Secretary shall mail
a notice of such meeting to each stockholder of record not less
than seven (7) days nor more than fifty (50) days before such
meeting, and such notice shall state the day, hour and place of
such meeting and the purpose thereof.
6. WAIVER OF NOTICE. Notice of any stockholders' meeting may be
waived in writing by all the stockholders, and if any stockholder
present at a stockholders' meeting does not protest the lack of
proper notice prior to or at the commencement of the meeting, he
shall be deemed to have waived notice of such meeting.
7. SHAREHOLDERS' CONSENT. Any resolution in writing approved
and signed by all the stockholders or their proxies or attorneys
shall have the same force and effect as if it were a vote passed by
all the stockholders at a meeting duly called and held for that
purpose. In addition, actions taken at any meeting of stockholders
however called and with whatever notice given, if any, shall be as
valid as though taken at a meeting duly called and held on notice,
if:
(1) All stockholders entitled to vote were present in
person or by proxy and no objection to holding the meeting was
made by any stockholder; or
(2) A quorum was present, either in person or by proxy,
and no objection to holding the meeting was made by any
stockholder entitled to vote so present, and if, either before or
after the meeting, each of the persons entitled to vote not
present in person or by proxy signs a written waiver of notice,
or a consent to the holding of the meeting or an approval of the
action. The Secretary shall record all such resolutions,
waivers, consents and approvals in the minute book of the
corporation.
8. QUORUM. A majority of the stock issued and outstanding,
either in person or by proxy, shall constitute a quorum for the
transaction of business at any meeting of the stockholders; except
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that if no quorum be present, a majority of the stockholders
present in person or by proxy may adjourn the meeting to such time
as they may determine. Notice of any such adjournment shall be
given to the stockholders not present or represented at such
meeting.
9. PROXIES. At all meetings of the stockholders any stockholder
entitled to vote may vote either in person or by proxy. Such proxy
shall be in writing, but need not be sealed, witnessed or
acknowledged, and shall be filed with the Secretary before the
meeting or before being voted.
10. NUMBER OF VOTES OF EACH STOCKHOLDER. Each stockholder,
whether represented in person or by proxy, shall be entitled to one
(1) vote for each share of stock standing in his own name on the
books of this corporation on the record date.
11. VOTING. In the election of directors and in voting on any
question on which a vote by ballot is required by law or is
demanded by any stockholder, the voting shall be by ballot; on all
other questions it may be viva voce.
12. RECORD DATE. For the purpose of determining which
stockholders are entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or which stockholders are
entitled to receive payment of any dividend or for any other proper
purpose, the Board of Directors, and in the absence of their
action the Secretary of the corporation or any other person
lawfully acting, shall set a record date which shall not be any
earlier than the date on which the Board of Directors, the
Secretary or such other authorized party acts to set such record
date, no more than seventy (70) nor less than ten (10) days before
the particular event requiring such determination of stockholders
is to occur.
ARTICLE III
Directors
---------
1. NUMBER, ELECTION AND TERM OF OFFICE. The property, business
and affairs of the corporation shall be managed by a Board of
Directors composed of not less than three nor more than fifteen
directorships in number, which directorships need not be filled by
persons who are stockholders. The actual number of directorships
shall be fixed by the incorporators and subscribers
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at their first meeting, and thereafter as the Board of Directors
may determine. The first Board of Directors shall be elected at
the organizational meeting of the corporation. Thereafter the
directors shall be elected by ballot by the stockholders at their
annual meeting and shall hold office until the next annual meeting
and until their successors shall be chosen and qualified in their
stead. (Amended Effective 4/18/94)
2. VACANCIES. Any vacancy in the Board of Directors by reason
of death, resignation or other cause may be filled for the
unexpired portion of the term by a concurring vote of a majority of
the remaining directors in office, or by action of the sole
remaining director in office, though such remaining directors are
less than a quorum, though the number of directors at the meeting
to fill such vacancy are less than a quorum and though such
majority is less than a quorum.
3. POWERS OF DIRECTORS. The directors shall have the general
management and control of the property, business and affairs of
this corporation and shall exercise all the powers that may be
exercised or performed by this corporation under the statutes, its
certificate of incorporation, and these by-laws.
4. PLACE OF MEETINGS. The directors may hold their meetings at
such place or places within or without the State of Connecticut as
the Board may from time to time determine.
5. REGULAR MEETINGS. A meeting of the directors for the
election of officers and the transaction of any other business that
may come before such meeting shall be held without other notice
immediately following the organization meeting of the corporation
and each annual meeting of the stockholders at the place designated
therefor.
6. OTHER MEETINGS. Other meetings of the directors may be held
whenever the President or a majority of the directors may deem it
advisable, notice thereof to be mailed or given orally to each
director at least two (2) days prior to such meeting. (Amended
Effective 4/26/88)
7. WAIVER OF NOTICE. Notice of any directors' meeting may be
waived in writing by all the directors and, if any director present
at a directors' meeting does not protest prior to or at the
commencement of the meeting the lack of proper notice, he shall be
deemed to have waived notice of such meeting.
8. DIRECTORS' CONSENT. Any resolution in writing, approved and
signed by all the directors, shall have the same force and effect
as if the same were a vote passed by all the directors at a meeting
duly called and held for that purpose, and such resolution shall be
recorded by the Secretary in the minute book of the corporation.
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9. QUORUM. A majority of the directorships shall constitute a
quorum for the transaction of business at all meetings of the Board
of Directors, but any number less than a quorum may adjourn such
meeting to a specified date. The act of a majority of the
directors present at a meeting at which a quorum is present at the
time of the act shall be the act of the Board of Directors.
10. COMPENSATION OF DIRECTORS. Directors as such shall not
receive any stated compensation or salary for their services but,
by resolution of the Board, a fixed sum and expenses of attendance
may be allowed for attendance at each regular or special meeting of
the Board, provided, however, that nothing herein contained shall
be construed to preclude any director from serving the corporation
in any other capacity and receiving compensation therefor.
11. COMMITTEES. The Board of Directors may, by resolution
adopted by the affirmative vote of directors holding a majority of
the directorships, create one or more committees, such as an
Executive Committee, comprising in each case two or more directors,
which committee or committees shall have and may exercise all such
authority of the Board of Directors as may be delegated to it in
such resolution or thereafter by similar resolution.
12. DIRECTOR EMERITUS. The Board of Directors may, from time to
time, appoint any former director of the corporation who shall have
retired from the Board for reasons of age, health or similar
reasons, as Director Emeritus of the corporation. A Director
Emeritus shall be entitled to attend such meetings of the directors
and be compensated therefor as the Board may determine. (Amended
Effective 4/18/94)
ARTICLE IV
(Amended in its entirety effective 4/24/90)
Officers
--------
1. The directors shall elect a Chairman, a President, one or
more Vice Presidents, a Treasurer and a Secretary, and may from
time to time appoint such other officers as they, the directors,
deem expedient. Any two or more offices may be held by the same
person except the offices of President and Secretary. The duties
of officers of the corporation shall be such as are prescribed by
these by-laws and as may be prescribed by the directors.
2. CHAIRMAN. The Chairman shall preside at all meetings of the
directors and of the stockholders and unless the directors
otherwise determine, he shall be the chief executive officer of the
corporation. As chief executive officer, he shall have general
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control and management of the corporation's business and affairs,
subject to the direction of the Board of Directors. He shall
consult with and advise the President concerning the operations of
the corporation. The Chairman shall perform such additional duties
as may be assigned to him from time to time by the Board of
Directors.
3. PRESIDENT. The President shall perform all duties incident
to the office of President and shall have full authority and
responsibility for the operation of the business of the
corporation, subject to the direction of the Board of Directors and
the chief executive officer. In the event of the absence or
disability of the Chairman, the President shall perform the duties
and have the power of the Chairman. The President shall perform
such additional duties as may be assigned to him from time to time
by the Board of Directors or the chief executive officer.
4. VICE PRESIDENT. Any Vice President shall have the powers and
perform such duties as may be assigned to him by the Board of
Directors or the chief executive officer.
5. SECRETARY. The Secretary shall keep a record of the minutes
of the proceedings of all meetings of stockholders and directors
and shall issue all notices required by law or by these by-laws,
and he shall discharge all other duties required of such officer by
law or designated from time to time by the Board of Directors or by
the chief executive officer or as are incident to the office of
Secretary. He shall have the custody of the seal of this
corporation and all books, records and papers of this corporation,
except such as shall be in the charge of the Treasurer or of some
other person authorized to have custody and possession thereof by a
resolution of the Board of Directors.
6. TREASURER. The Treasurer shall have charge and custody of
and be responsible for all funds and securities of the corporation,
keep full and accurate accounts of receipts and disbursements and
books belonging to the corporation, deposit all moneys and valuable
effects in the name and to the credit of the corporation in
depositaries designated by the Board of Directors, and, in general,
perform such other duties as may from time to time be assigned to
him by the Board of Directors or by the chief executive officer or
as are incident to the office of Treasurer.
7. TERMS OF OFFICE. Each of such officers shall serve for the
term of one year and until his successor is duly appointed and
qualified, but any officer may be removed by the Board of Directors
at any time with or without cause and with or without notice of
hearing. Vacancies among the officers by reason of death,
resignation or other causes shall be filled by the Board of
Directors.
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8. COMPENSATION. The compensation of all officers shall be
fixed by the Board of Directors, and may be changed from time to
time by a majority vote of the Board.
ARTICLE V
Issue and Transfer of Stock
---------------------------
1. CERTIFICATES. Certificates of stock shall be in form
authorized or adopted by the Board of Directors and shall be
consecutively numbered, provided that each certificate shall set
forth upon its face as at the time of issue: the name of this
corporation, a statement that this corporation is organized under
the laws of the State of Connecticut, the name of the person to
whom issued, the number of shares represented thereby and the par
value of each such share; and provided that each certificate shall
be signed by the President or a Vice President and by the Secretary
or an Assistant Secretary or the Treasurer or an Assistant
Treasurer, and shall be sealed with the seal of this corporation.
2. TRANSFER. The stock of the corporation shall be transferred
only upon the books of the corporation either by the stockholder in
person, or by power of attorney executed by him for that purpose,
upon the surrender for cancellation of the old stock certificate.
Prior to due presentment for registration of transfer of a
security, the corporation shall treat the registered owner of a
security as the person exclusively entitled to vote, receive
notifications and dividends, and otherwise to exercise all the
rights and powers of the shares represented by such security.
The form of transfer shall be as follows:
For value received ____________________ hereby sell,
assign and transfer unto _____________________ shares of the
capital stock represented by the within certificate and do
hereby irrevocably constitute and appoint __________________
to transfer the said stock on the books of the within named
corporation with full power of substitution in the premises.
Dated _________________________, 19____.
In the presence of:
___________________________________ _________________________
New certificates shall thereupon be issued to the purchaser or
assignee.
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ARTICLE VI
Seal
----
1. The seal of this corporation shall have inscribed thereon the
name of this corporation, the word "Seal" and the word
"Connecticut", and shall be in the custody of the Secretary.
ARTICLE VII
Fiscal Year
-----------
1. The fiscal year of the corporation shall commence on
January 1.
ARTICLE VIII
Amendments
----------
1. The bylaws of the corporation may be adopted, amended or
repealed at any validly called and convened meeting of the Board
of Directors by the affirmative vote of directors holding a
majority of the number of directorships at the time or by the
unanimous written consent of the Board of Directors as provided
in Article III, Section 8 of these bylaws. Any notice of a meeting
of the Board of Directors at which bylaws are to be adopted,
amended or repealed shall include notice of such proposed action.
(Amended Effective 4/18/94)
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