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EXHIBIT 4.3
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CERTIFICATE OF DESIGNATION
of
SERIES A JUNIOR PARTICIPATING
PREFERRED STOCK
of
HARMAN INTERNATIONAL INDUSTRIES, INCORPORATED
(Pursuant to Section 151 of the
General Corporation Law of the State of Delaware)
Harman International Industries, Incorporated, a corporation organized
and existing under the General Corporation Law of the State of Delaware
(hereinafter called the "Company"), DOES HEREBY CERTIFY:
That, pursuant to authority vested in the Board of Directors of the
Company by its Certificate of Incorporation, and pursuant to the
provisions of Section 151 of the General Corporation Law, the Board of
Directors of the Company has adopted the following resolution providing
for the issuance of a series of Preferred Stock:
RESOLVED, that pursuant to the authority expressly granted to and
vested in the Board of Directors of the Company (hereinafter called the
"Board of Directors" or the "Board") by the Certificate of Incorporation of
the Company, a series of Preferred Stock, par value $.01 per share (the
"Preferred Stock"), of the Company be, and it hereby is, created, and that
the designation and amount thereof and the powers, designations, preferences
and relative, participating, optional and other special rights of the shares
of such series, and the qualifications, limitations or restrictions
thereof are as follows:
I. Designation and Amount
The shares of such series will be designated as Series A Junior
Participating Preferred Stock (the "Series A Preferred") and the number of
shares constituting the Series A Preferred is 500,000. Such number of
shares may be increased or decreased by resolution of the Board;
provided, however, that no decrease will reduce the number of shares of
Series A Preferred to a number less than the number of shares then
outstanding plus the number of shares reserved for issuance upon the
exercise of outstanding options, rights or warrants or upon the conversion
of any outstanding securities issued by the Company convertible into
Series A Preferred.
II. Dividends and Distributions
(a) Subject to the rights of the holders of any shares of any series of
Preferred Stock ranking prior to the Series A Preferred with respect to
dividends, the holders of shares of Series A Preferred, in preference to the
holders of Common Stock, par value $.01 per share (the
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"Common Stock"), of the Company, and of any other junior stock, will be
entitled to receive, when, as and if declared by the Board out of funds
legally available for the purpose, dividends payable in cash (except as other-
wise provided below) on such dates as are from time to time established
for the payment of dividends on the Common Stock (each such date being
referred to herein as a "Dividend Payment Date"), commencing on the
first Dividend Payment Date after the first issuance of a share or fraction
of a share of Series A Preferred (the "First Dividend Payment Date"), in
an amount per share (rounded to the nearest cent) equal to the greater of
(i) $1.00 or (ii) subject to the provision for adjustment hereinafter set
forth, one hundred times the aggregate per share amount of all cash
dividends, and one hundred times the aggregate per share amount (payable
in kind) of all non-cash dividends, other than a dividend payable in shares
of Common Stock or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared on the Common Stock
since the immediately preceding Dividend Payment Date or, with respect
to the First Dividend Payment Date, since the first issuance of any share or
fraction of a share of Series A Preferred. In the event that the Company at
any time (i) declares a dividend on the outstanding shares of Common
Stock payable in shares of Common Stock, (ii) subdivides the outstanding
shares of Common Stock, (iii) combines the outstanding shares of
Common Stock into a smaller number of shares, or (iv) issues any shares
of its capital stock in a reclassification of the outstanding shares of
Common Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing or
surviving corporation), then, in each such case and regardless of whether
any shares of Series A Preferred are then issued or outstanding, the
amount to which holders of shares of Series A Preferred would otherwise
be entitled immediately prior to such event under clause (ii) of the
preceding sentence will be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
(b) The Company will declare a dividend on the Series A Preferred as
provided in the immediately preceding paragraph immediately after it
declares a dividend on the Common Stock (other than a dividend payable
in shares of Common Stock). Each such dividend on the Series A
Preferred will be payable immediately prior to the time at which the
related dividend on the Common Stock is payable.
(c) Dividends will accrue on outstanding shares of Series A Preferred
from the Dividend Payment Date next preceding the date of issue of such
shares, unless (i) the date of issue of such shares is prior to the record date
for the First Dividend Payment Date, in which case dividends on such
shares will accrue from the date of the first issuance of a share of Series A
Preferred or (ii) the date of issue is a Dividend Payment Date or is a date
after the record date for the determination of holders of shares of Series A
Preferred entitled to receive a dividend and before such Dividend Payment
Date, in either of which events such dividends will accrue from such
Dividend Payment Date. Accrued but unpaid dividends will cumulate
from the applicable Dividend Payment Date but will not bear interest.
Dividends paid on the shares of Series A Preferred in an amount less than
the total amount of such dividends at the time accrued and payable on
such shares will be allocated pro rata on a share-by-share basis among all
such shares at the time outstanding. The Board may fix a record date for
the determination of holders of shares of Series A Preferred entitled to
receive payment of a dividend or distribution declared
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thereon, which record date will not be more than 60 calendar days
prior to the date fixed for the payment thereof.
III. Voting Rights
The holders of shares of Series A Preferred will have the following voting
rights:
(a) Subject to the provision for adjustment hereinafter set forth, each
share of Series A Preferred will entitle the holder thereof to one hundred
votes on all matters submitted to a vote of the stockholders of the
Company. In the event the Company at any time (i) declares a dividend
on the outstanding shares of Common Stock payable in shares of Common
Stock, (ii) subdivides the outstanding shares of Common Stock, (iii)
combines the outstanding shares of Common Stock into a smaller number
of shares, or (iv) issues any shares of its capital stock in a reclassification
of the outstanding shares of Common Stock (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation), then, in each such
case and regardless of whether any shares of Series A Preferred are then
issued or outstanding, the number of votes per share to which holders of
shares of Series A Preferred would otherwise be entitled immediately prior
to such event will be adjusted by multiplying such number by a fraction,
the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding
immediately prior to such event.
(b) Except as otherwise provided herein, in any other Preferred Stock
Designation creating a series of Preferred Stock or any similar stock, or by
law, the holders of shares of Series A Preferred and the holders of shares
of Common Stock and any other capital stock of the Company having
general voting rights will vote together as one class on all matters
submitted to a vote of stockholders of the Company.
(c) Except as set forth in the Certificate of Incorporation or herein, or as
otherwise provided by law, holders of shares of Series A Preferred will
have no voting rights.
IV. Certain Restrictions
(a) Whenever dividends or other dividends or distributions payable on
the Series A Preferred are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on shares of
Series A Preferred outstanding have been paid in full, the Company will
not:
(i) Declare or pay dividends, or make any other distributions, on any
shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the shares of Series A Preferred;
(ii) Declare or pay dividends, or make any other distributions, on any
shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the shares of Series A
Preferred, except dividends paid ratably on the
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shares of Series A Preferred and all such parity stock on which
dividends are payable or in arrears in proportion to the total amounts
to which the holders of all such shares are then entitled;
(iii) Redeem, purchase or otherwise acquire for consideration shares of
any stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the shares of Series A Preferred; provided,
however, that the Company may at any time redeem, purchase or
otherwise acquire shares of any such junior stock in exchange for shares of
any stock of the Company ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the shares of Series A Preferred;
or
(iv) Redeem, purchase or otherwise acquire for consideration any
shares of Series A Preferred, or any shares of stock ranking on a parity
with the shares of Series A Preferred, except in accordance with a
purchase offer made in writing or by publication (as determined by the
Board) to all holders of such shares upon such terms as the Board, after
consideration of the respective annual dividend rates and other relative
rights and preferences of the respective series and classes, may determine
in good faith will result in fair and equitable treatment among the
respective series or classes.
(b) The Company will not permit any majority-owned subsidiary of the
Company to purchase or otherwise acquire for consideration any shares of
stock of the Company unless the Company could, under paragraph (a) of
this Article IV, purchase or otherwise acquire such shares at such time and
in such manner.
V. Reacquired Shares
Any shares of Series A Preferred purchased or otherwise acquired by the
Company in any manner whatsoever will be retired and cancelled
promptly after the acquisition thereof. All such shares will upon their
cancellation become authorized but unissued shares of Preferred Stock and
may be reissued as part of a new series of Preferred Stock subject to the
conditions and restrictions on issuance set forth herein, in the Certificate
of Incorporation of the Company, or in any other Preferred Stock
Designation creating a series of Preferred Stock or any similar stock or as
otherwise required by law.
VI. Liquidation, Dissolution or Winding Up
Upon any liquidation, dissolution or winding up of the Company, no
distribution will be made (a) to the holders of shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding
up) to the shares of Series A Preferred unless, prior thereto, the holders of
shares of Series A Preferred have received $100 per share, plus an amount
equal to accrued and unpaid dividends and distributions thereon, whether
or not declared, to the date of such payment; provided, however, that the
holders of shares of Series A Preferred will be entitled to receive an
aggregate amount per share, subject to the provision for adjustment
hereinafter set forth, equal to one hundred times the aggregate amount to
be distributed per share to holders of shares of Common Stock or (b) to the
holders of shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the shares of Series A
Preferred, except distributions made ratably on the shares of Series A
Preferred and all such
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parity stock in proportion to the total amounts to which the
holders of all such shares are entitled upon such liquidation,
dissolution or winding up. In the event the Company at any time (i)
declares a dividend on the outstanding shares of Common Stock payable
in shares of Common Stock, (ii) subdivides the outstanding shares of
Common Stock, (iii) combines the outstanding shares of Common Stock
into a smaller number of shares, or (iv) issues any shares of its capital
stock in a reclassification of the outstanding shares of Common Stock
(including any such reclassification in connection with a consolidation or
merger in which the Company is the continuing or surviving corporation),
then, in each such case and regardless of whether any shares of Series A
Preferred are then issued or outstanding, the aggregate amount to which
each holder of shares of Series A Preferred would otherwise be entitled
immediately prior to such event under the proviso in clause (a) of the
preceding sentence will be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
VII. Consolidation, Merger, Etc.
In the event that the Company enters into any consolidation, merger,
combination or other transaction in which the shares of Common Stock
are exchanged for or changed into other stock or securities, cash and/or
any other property, then, in each such case, each share of Series A
Preferred will at the same time be similarly exchanged for or changed into
an amount per share, subject to the provision for adjustment hereinafter set
forth, equal to one hundred times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case
may be, into which or for which each share of Common Stock is changed
or exchanged. In the event the Company at any time (a) declares a
dividend on the outstanding shares of Common Stock payable in shares of
Common Stock, (b) subdivides the outstanding shares of Common Stock,
(c) combines the outstanding shares of Common Stock in a smaller
number of shares, or (d) issues any shares of its capital stock in a
reclassification of the outstanding shares of Common Stock (including any
such reclassification in connection with a consolidation or merger in
which the Company is the continuing or surviving corporation), then, in
each such case and regardless of whether any shares of Series A Preferred
are then issued or outstanding, the amount set forth in the preceding
sentence with respect to the exchange or change of shares of Series A
Preferred will be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number
of shares of Common Stock that were outstanding immediately prior to
such event.
VIII. Redemption
The shares of Series A Preferred are not redeemable.
IX. Rank
The Series A Preferred rank, with respect to the payment of dividends and
the distribution of assets, junior to all other series of the Company's
Preferred Stock.
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X. Amendment
Notwithstanding anything contained in the Certificate of Incorporation of
the Company to the contrary and in addition to any other vote required by
applicable law, the Certificate of Incorporation of the Company may not
be amended in any manner that would materially alter or change the
powers, preferences or special rights of the Series A Preferred so as to
affect them adversely without the affirmative vote of the holders of at least
80% of the outstanding shares of Series A Preferred, voting together as a
single series.
IN WITNESS WHEREOF, this Certificate of Designation is executed on
behalf of the Company by its Secretary and attested by its Chief Executive
Officer this 11th day of January, 2000.
HARMAN INTERNATIONAL
INDUSTRIES, INCORPORATED
/s/Frank Meredith
----------------------
Frank Meredith
Vice President - Finance and
Administration, Chief Financial Officer and
Secretary
Attest:
/s/Bernard A. Girod
-------------------------
Bernard A. Girod
Chief Executive Officer
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