SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
CURTISS-WRIGHT CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 1-134 13-0612970
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(State or Other Jurisdiction (Commission File (IRS Employer
of Incorporation) Number) Identification No.)
1200 Wall Street West 07071
Lyndhurst, New Jersey
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b)of the Act:
Title of each class to Name of each exchange on which
be so registered each class is to be registered
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Common Stock, Class B New York Stock Exchange
$1.00 Par Value
Securities to be registered pursuant to Section 12(g)of the Act:
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(None)
Item 1. Description of Registrant's Securities to be Registered
The stockholders having approved all matters submitted to the vote of
the stockholders at a Special Meeting of Stockholders held on October 26, 2001
(the "Special Meeting"), Curtiss-Wright Corporation (the "Corporation") has
authorized (i) an aggregate of 22,500,000 shares of common stock, consisting of
11,250,000 shares of Common Stock ("Common Stock") and 11,250,000 shares of
Class B Common Stock ("Class B Common Stock", and together with the Common
Stock, the "Company Common Stock"), and (ii) an aggregate of 650,000 shares of
preferred stock (the "Preferred Stock"). The par value of each share of Company
Common Stock shall be $1.00 and the par value of each share of Preferred Stock
shall be $0.01.
The relative rights, powers, preferences, qualifications, limitations
and restrictions of the Corporation's capital stock are as follows:
Company Common Stock
The Common Stock and Class B Common Stock are identical in all respects
except as otherwise expressly described below.
(a) Cash Dividends. Subject to the rights and preferences of any outstanding
series of Preferred Stock, the holders of Company Common Stock are entitled to
receive dividends out of assets legally available therefor at such times and in
such per share amounts as the Board of Directors may from time to time
determine. Whenever a cash dividend is paid on the Company Common Stock, the
same amount shall be paid in respect of each outstanding share of Common Stock
and Class B Common Stock.
(b) Stock Dividends. If at any time a dividend is to be paid in shares of
Company Common Stock, such stock dividend may be declared and paid only as
follows: only Common Stock may be paid to holders of Common Stock and only Class
B Common Stock may be paid to holders of Class B Common Stock. Whenever a stock
dividend is paid, the same rate or ratio of shares shall be paid in respect of
each outstanding share of Common Stock and Class B Common Stock.
(c) Property Dividends. If at any time a dividend is to be paid in rights to
purchase shares of the capital stock of the Corporation (a "rights dividend"),
then: (i) if the rights dividend is of rights that entitle the holder thereof to
purchase shares of Common Stock (or shares of capital stock of the Corporation
having voting rights equivalent to those of the Common Stock ("Equivalent
Shares")) or Class B Common Stock (or shares of capital stock of the Corporation
having voting rights equivalent to those of the Class B Common Stock
("Equivalent Class B Shares")) (whether initially or upon any adjustment
thereunder), then only rights to acquire Common Stock or Equivalent Shares may
be paid to holders of Common Stock and only rights to acquire Class B Common
Stock or Equivalent Class B Shares may be paid to holders of Class B Common
Stock; and (ii) if the rights dividend is of rights that entitle the holder
thereof to purchase shares of capital stock of the Corporation other than Common
Stock (or Equivalent Shares) or Class B Common Stock (or Equivalent Class B
Shares) (whether initially or upon any adjustment thereunder), then the Board of
Directors of the Corporation may pay such dividend of rights to the holders of
Common Stock and Class B Common Stock in such manner as the Board of Directors
may determine. Whenever any property dividend is paid, the same rate or ratio of
rights, securities or other property shall be paid in respect of each
outstanding share of Common Stock and Class B Common Stock.
(d) Stocks Splits, Subdivisions and Combinations. The Corporation will not
subdivide, reclassify or combine any class of Company Common Stock without at
the same time making a proportionate subdivision, reclassification or
combination of the other class.
(e) Voting. The holders of Common Stock and Class B Common Stock shall vote
together as a single class in all matters requiring the vote of holders of
Company Common Stock with each share of Common Stock and Class B Common Stock
having one vote, except that (i) the holders of each class shall vote as a
separate class when required by law to do so and (ii) the holders of Company
Common Stock shall vote in respect of directors as specified below.
With respect to the election of directors, the holders of Class B
Common Stock, voting separately as a class together with the holders of shares
of any other class or series of stock which by its terms is entitled to vote
with the Class B Common Stock for the election of directors (the Class B Common
Stock, together with such other shares, the "Voting B Shares"), will be entitled
to elect a number of directors that equals 80% of the authorized number of
members of the Board of Directors (or, if such 80% is not a whole number, then
the nearest higher whole number) (the "Class B Directors"). In the election of
Class B Directors, each share of Class B Common Stock shall have one vote. The
holders of Common Stock voting separately as a class together with the holders
of shares of any other class or series of stock which by its terms is entitled
to vote with the Common Stock for the election of directors (the Common Stock,
together with such other shares, the "Voting Shares") will be entitled to elect
the remaining members of the Board of Directors (the "Common Stock Directors").
In the election of Common Stock Directors, each share of Common Stock shall have
one vote. The term "Special Voting Rights" means the different voting rights of
the holders of Common Stock and the holders of Class B Common Stock with respect
to the election of the applicable percentage of the authorized number of members
of the Board of Directors as described above.
The initial Common Stock Director shall be designated by a majority of
the directors of the Corporation and the holders of Common Stock shall be
entitled to vote for the election or replacement of such Common Stock Director
at the next annual meeting.
The initial Class B Directors shall be designated by a majority of the
directors of the Corporation and the holders of Class B Common Stock shall be
entitled to vote for the election or replacement of such Class B Directors at
the next annual meeting.
Any vacancy in a Common Stock directorship created by the death,
resignation, retirement, disqualification, removal from office or other cause
may be filled by the vote of the majority of the remaining Common Stock
Directors, and any vacancy in a Class B directorship created by the death,
resignation, retirement, disqualification, removal from office or other cause
may be filled by the vote of majority of the remaining Class B Directors. If
there are no remaining directors in a particular class, the vacancy shall be
filled by the stockholders entitled to vote for such class. If the Special
Voting Rights have been eliminated, the vacancy shall be filled by the vote of
the majority of directors, regardless of any quorum requirements. A director
elected to fill a vacancy not resulting from an increase in the number of
directors will have the same remaining term as that of the predecessor director.
Unless the Special Voting Rights have been eliminated, all
newly-created directorships resulting from an increase in the authorized number
of directors shall be allocated between Common Stock Directors and Class B
Directors, such that at all times the number of Class B Directors shall be 80%
of the authorized number of directors (or, if such 80% is not a whole number,
then the nearest higher whole number of directors) and the remaining directors
shall be Common Stock Directors. Any director elected in accordance with the
preceding sentence shall hold office until the next annual meeting or until his
successor shall have been elected and qualified or until his earlier resignation
or removal. No decrease in the authorized number of directors shall shorten the
term of any incumbent director. Any newly-created Common Stock directorships
must be filled by the vote of the majority of existing Common Stock Directors
and any newly-created Class B directorship must be filled by the vote of the
majority of existing Class B Directors. If there are no directors in a
particular class, the vacancy shall be filled by the stockholders entitled to
vote for such class. If the Special Voting Rights have been eliminated, the
vacancy shall be filled by the vote of the majority of directors, regardless of
any quorum requirements.
(f) Merger or Consolidation. The Corporation shall not enter into any
consolidation, merger, reorganization or other combination, unless each holder
of Common Stock and Class B Common Stock is entitled to receive with respect to
each of their shares the identical kind and amount of consideration receivable
upon such consolidation, merger, reorganization or other combination as each
other holder of Common Stock and Class B Common Stock, except that in any such
transaction consummated prior to the elimination of the Special Voting Rights,
the holders of Common Stock and Class B Common Stock may each receive different
kinds of shares of stock that differ to the extent and only to the extent that
the Board of Directors determines in good faith that such shares differ with
respect to the rights of holders of such shares to the same extent as the Common
Stock and Class B Common Stock differ. (g) Liquidation. The holders of Common
Stock and Class B Common Stock will participate equally per share in any
liquidation, dissolution or winding up of the Corporation, without distinction
between classes.
Preferred Stock
The Board of Directors has the authority, without further stockholder
approval, to issue the Preferred Stock from time to time in one or more series,
and to determine with respect to each such series the designation of and the
number of shares comprising such series and the powers, preferences and
relative, participating, optional or other rights, and the qualifications,
limitations or restrictions, of such series.
Restated Certificate of Incorporation and By-laws
The provisions of the Corporation's Restated Certificate of
Incorporation and By-laws summarized below may have the effect of delaying,
deferring or preventing a change in control or acquisition of the Corporation by
means of a tender offer, a proxy contest or otherwise.
(a) Board of Directors. The Restated Certificate of Incorporation provides that
the Board of Directors shall consist of not less than five nor more than ten
directors. The exact number of directors will be fixed from time to time
exclusively by the Board of Directors pursuant to a resolution adopted by a
majority of the Board of Directors.
(b) Advance Notice Procedures. The Corporation's By-laws require that at any
annual meeting of stockholders, the only nominations of persons for election to
the board to be considered and business to be conducted will be the nominations
made or business brought before the meeting (i) pursuant to the Corporation's
notice of meeting, (ii) by or at the direction of the Corporation's Board of
Directors or (iii) by a stockholder of the Corporation who is a stockholder of
record at the time of giving of the notice provided for in the By-laws, who is
entitled to vote at the meeting and who complies with the advance notice
procedures. For nominations and other business to be properly brought before an
annual meeting of stockholders pursuant to clause (iii) above, the stockholder
must give written notice to the secretary of the Corporation not later than 90
days nor earlier than 120 days prior to the anniversary date of the immediately
preceding annual meeting. If the date of the annual meeting is more than 30 days
before or more than 70 days after the anniversary date of the immediately
preceding meeting, the stockholder must give written notice not earlier than 120
days prior to the annual meeting and not later than the close of business on the
later of the day that is 90 days prior to the annual meeting or 10 days
following the date on which public announcement of the annual meeting is first
given.
At any special meeting of the stockholders of Corporation, the
only business that may be brought before the special meeting is the business
specified in the notice of special meeting. Accordingly, the stockholders of the
Corporation may not raise any other matters for consideration at a special
meeting. With respect to an election of directors to be held at a special
meeting of the stockholders as determined by the Corporation's notice of special
meeting, a stockholder may make a nomination pursuant to notice given not
earlier than 120 days prior to the special meeting and not later than the close
of business on the later of the day that is 90 days prior to the special meeting
or 10 days following the date on which public announcement of the special
meeting is first made. The stockholder bringing a nomination or business must
appear at the annual or special meeting of stockholders to present the
nomination or business to be considered at the meeting.
(c) Special Meetings. The Restated Certificate of Incorporation and By-laws
provide that special meetings of the stockholders of the Corporation may be
called only by the Chairman, or in his absence by the President, by the Board of
Directors, or by the Secretary at the request in writing of a majority of the
Board of Directors and may not be called by the stockholders of the Corporation.
Only such business shall be conducted at a special meeting of stockholders as
shall have been brought before the meeting pursuant to the Corporation's notice
of meeting.
(d) Action by Stockholders. The Restated Certificate of Incorporation and
By-laws provide that any action required to be taken or which may be taken by
the stockholders of the Corporation must be effected at a duly called annual or
special meeting of such holders and may not be taken by written consent in lieu
of a meeting.
(e) Supermajority Voting. The Restated Certificate of Incorporation and By-laws
provide that the affirmative vote of the holders of record of at least 66 2/3%
of the combined voting power of all of the outstanding stock of the company
entitled to vote, voting together as a single class, shall be required to alter,
amend, rescind or repeal any of the Corporation's By-laws or to alter, amend,
rescind or repeal or to adopt any provision inconsistent with:
the provision concerning the size of the board and the filling of
board vacancies and newly created directorships;
the provision concerning the inability of stockholders to call
special meetings;
the provision concerning the inability of stockholders to act by
written consent; and
the provision requiring a 66 2/3% vote of stockholders to amend
the By-laws or to amend the provisions of the Restated
Certificate of Incorporation described above.
Delaware Business Combination Statute
Under the business combination statute of the Delaware General
Corporation Law ("DGCL"), a corporation is generally restricted from engaging in
a business combination with an interested stockholder for a three-year period
following the time the stockholder became an interested stockholder. An
interested stockholder is defined as a stockholder who, together with its
affiliates or associates, owns, or who is an affiliate or associate of the
corporation and within the prior three-year period did own, 15% or more of the
corporation's voting stock. This restriction applies, unless:
prior to the time the stockholder became an interested
stockholder, the board of directors of the corporation approved
either the business combination or the transaction which resulted
in the stockholder becoming an interested stockholder;
the interested stockholder owned at least 85% of the voting stock
of the corporation, excluding specified shares, upon completion
of the transaction which resulted in the stockholder becoming an
interested stockholder; or
at or subsequent to the time the stockholder became an interested
stockholder, the business combination was approved by the board
of directors of the corporation and authorized by the affirmative
vote, at an annual or special meeting, and not by written
consent, of at least 66 2/3% of the outstanding voting shares of
the corporation, excluding shares held by that interested
stockholder.
A business combination generally includes:
mergers, consolidations and sales or other dispositions of 10% or
more of the assets of a corporation to or with an interested
stockholders;
transactions resulting in the issuance or transfer to an
interested stockholder of any capital stock of the corporation or
its subsidiaries, subject to certain exceptions;
transactions having the effect of increasing the proportionate
share of the interested stockholder in the capital stock of the
corporation or its subsidiaries, subject to certain exceptions;
and
other transactions resulting in a disproportionate financial
benefit to an interested stockholder.
The provisions of the Delaware business combination statute do not
apply to a corporation if, subject to certain requirements, the certificate of
incorporation or by-laws of the corporation contain a provision expressly
electing not to be governed by the provisions of the statute or the corporation
does not have voting stock listed on a national securities exchange, authorized
for quotation on the NASDAQ stock market or held of record by more than 2,000
stockholders.
The Corporation has not adopted any provision in the Restated
Certificate of Incorporation or By-laws electing not to be governed by this
section of the Delaware business combination statute. As a result, the statute
is applicable to business combinations involving the Corporation.
Limitations on Directors' Liability
The Restated Certificate of Incorporation provides that, to the fullest
extent permitted by the DGCL, no director of the Corporation shall be liable to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director. The Restated Certificate of Incorporation also provides that
each current or former director, officer or employee of the Corporation, or each
such person who is or was serving or who had agreed to serve at the request of
the Corporation as a director, officer, employee or representative of another
corporation, or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, will be indemnified by
the Corporation to the full extent permitted by the DGCL, as the same exists or
may in the future be amended.
Listing
The Class B Common Stock has been approved for listing on the New York
Stock Exchange, subject to official notice of issuance, under the symbol "CWB".
Item 2. Exhibits
A. Proposed Restated Certificate of Incorporation (as approved at the
Special Meeting).
B. Proposed Restated Bylaws of the Corporation (as approved at the
Special Meeting).
C. Form of stock certificate for Class B Common Stock.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
CURTISS-WRIGHT CORPORATION
DATED: November 2, 2001 By: /s/ Robert A. Bosi
Name: Robert A. Bosi
Title: Vice President - Finance
Exhibit A
PROPOSED RESTATED
CERTIFICATE OF INCORPORATION
OF
CURTISS-WRIGHT CORPORATION
The original Certificate of Incorporation of Curtiss-Wright
Corporation was filed with the Secretary of State of the State of Delaware on
August 9, 1929. This Restated Certificate of Incorporation, which further amends
and restates the certificate of incorporation as heretofore amended and
restated, was duly adopted in accordance with the provisions of Sections 242 and
245 of the General Corporation Law of the State of Delaware ("DGCL").
1. The name of the Corporation is CURTISS-WRIGHT CORPORATION.
2. The registered office of the Corporation in the State of Delaware is 1209
Orange Street, in the City of Wilmington and County of New Castle. The
registered agent at said address is the Corporation Trust Company.
3. The nature of the business and purposes to be conducted and promoted are to
engage in any lawful act or activity for which corporations may be organized
under the DGCL.
4. Authorized Stock. The Corporation is authorized to issue three classes of
stock. The total number of shares which the Corporation is authorized to issue
is Twenty-Three Million One Hundred Fifty Thousand (23,150,000) shares, of which
Eleven Million Two Hundred Fifty Thousand (11,250,000) shares shall be
designated Common Stock, par value $1 per share (the "Common Stock"), Eleven
Million Two Hundred Fifty Thousand (11,250,000) shares shall be designated Class
B Common Stock, par value $1 per share (the "Class B Common Stock" and, together
with the Common Stock, the "Corporation Common Stock"), and Six Hundred Fifty
Thousand (650,000) shares shall be designated Preferred Stock, par value $.01
per share (the "Preferred Stock"). The authorized number of shares of any such
class or classes of stock may be increased or decreased by the affirmative vote
of the holders of a majority of the stock of the Corporation entitled to vote
irrespective of Section 242(b)(2) of the DGCL or any successor provision
thereto.
5. Preferred Stock. The Board of Directors of the Corporation is hereby
authorized from time to time to provide by resolution for the issuance of shares
of Preferred Stock in one or more series and to determine with respect to each
such series the designation of and the number of shares comprising such series
and the powers, preferences and relative, participating, optional or other
rights, and the qualifications, limitations or restrictions, of such series.
6. Common Stock. The Common Stock and the Class B Common Stock shall be
identical in all respects, except as otherwise provided by law or expressly
provided herein. The relative powers, preferences, rights, qualifications,
limitations and restrictions of the shares of Common Stock and Class B Common
Stock shall be as follows:
(a) Cash Dividends. Subject to the rights and preferences of any
outstanding series of Preferred Stock, and except as otherwise provided for
herein, the holders of Common Stock and Class B Common Stock are entitled to
receive dividends out of assets legally available therefor at such times and in
such per share amounts as the Board of Directors may from time to time
determine; provided that whenever a cash dividend is paid, the same amount shall
be paid in respect of each outstanding share of Common Stock and Class B Common
Stock.
(b) Stock Dividends. If at any time a dividend is to be paid in shares of
Common Stock or shares of Class B Common Stock (a "stock dividend"), such stock
dividend may be declared and paid only as follows: only Common Stock may be paid
to holders of Common Stock and only Class B Common Stock may be paid to holders
of Class B Common Stock. Whenever a stock dividend is paid, the same rate or
ratio of shares shall be paid in respect of each outstanding share of Common
Stock and Class B Common Stock.
(c) Property Dividends. If at any time a dividend is to be paid in rights
to purchase shares of the capital stock of the Corporation (a "rights
dividend"), then: (i) if the rights dividend is of rights that entitle the
holder thereof to purchase shares of Common Stock (or shares of capital stock of
the Corporation having voting rights equivalent to those of the Common Stock
("Equivalent Shares")) or Class B Common Stock (or shares of capital stock of
the Corporation having voting rights equivalent to those of the Class B Common
Stock ("Equivalent Class B Shares")) (whether initially or upon any adjustment
thereunder), then only rights to acquire Common Stock or Equivalent Shares may
be paid to holders of Common Stock and only rights to acquire Class B Common
Stock or Equivalent Class B Shares may be paid to holders of Class B Common
Stock; and (ii) if the rights dividend is of rights that entitle the holder
thereof to purchase shares of capital stock of the Corporation other than Common
Stock (or Equivalent Shares) or Class B Common Stock (or Equivalent Class B
Shares) (whether initially or upon any adjustment thereunder), then the Board of
Directors of the Corporation may pay such dividend of rights to the holders of
Common Stock and Class B Common Stock in such manner as the Board of Directors
may determine. Whenever any property dividend is paid, the same rate or ratio of
rights, securities or other property shall be paid in respect of each
outstanding share of Common Stock and Class B Common Stock.
(d) Stock Subdivisions and Combinations. The Corporation shall not
subdivide, reclassify or combine stock of any class of Corporation Common Stock
without at the same time making a proportionate subdivision, reclassification or
combination of shares of the other class.
(e) Voting. Voting power shall be divided between the classes of stock as
follows:
(i) Subject to Article 6(e)(ii), in the election of directors holders
of Class B Common Stock, voting separately as a class together with the holders
of shares of any other class or series of stock which by its terms is entitled
to vote with the Class B Common Stock for the election of directors (the Class B
Common Stock, together with such other shares, the "Voting B Shares"), shall be
entitled to elect that number of directors which constitutes 80% of the
authorized number of members of the Board of Directors (or, if such 80% is not a
whole number, then the nearest higher whole number) (the "Class B Common Stock
Directors"). Each share of Class B Common Stock shall have one vote in the
election of the Class B Common Stock Directors. Subject to Article 6(e)(ii),
holders of Common Stock, voting separately as a class together with the holders
of shares of any other class or series of stock which by its terms is entitled
to vote with the Common Stock for the election of directors (the Common Stock,
together with such other shares, the "Voting Shares"), shall be entitled to
elect the remaining directors (the "Common Stock Directors"). Each share of
Common Stock shall have one vote in the election of such directors. The initial
Common Stock Director shall be designated by a majority of the directors of the
Corporation as of the effectiveness of this Restated Certificate of
Incorporation, and the holders of Voting Shares, voting separately as a class,
shall be entitled to vote for the election or replacement of such Common Stock
Director at the next annual meeting of stockholders. The initial Class B
Directors shall be designated by a majority of the directors of the Corporation
as of the effectiveness of this Restated Certificate of Incorporation, and the
holders of the Voting B Shares, voting separately as a class, shall be entitled
to vote for the election or replacement of such Class B Directors at the next
annual meeting of stockholders. For purposes of this Article 6(e)(i), references
to the authorized number of members of the Board of Directors shall not include
any directors which the holders of any shares of any series of Preferred Stock
have the right to elect voting separately as one or more series.
(ii) For purposes of this Article 6(e)(ii), "Special Voting Rights"
means the different voting rights of the holders of Common Stock, on the one
hand, and the holders of Class B Common Stock, on the other hand, with respect
to the election of the applicable percentage of the authorized number of members
of the Board of Directors as described in Article 6(e)(i). If approved by the
Board of Directors, at any annual or special meeting of stockholders of the
Corporation, a majority of the outstanding shares of the Common Stock and Class
B Common Stock, voting together as a class, may vote to eliminate the Special
Voting Rights (the "Elimination Vote"), in which case the Special Voting Rights
provided for in Article 6(e)(i) shall have no further force or effect, and
thereafter holders of the Corporation Common Stock shall have equal voting
rights in all respects, except as otherwise required by law, and shall be
entitled to elect the total authorized number of members of the Board of
Directors voting together (along with the holders of any other Voting Stock (as
defined below)) as a single class. "Voting Stock" shall mean the Common Stock,
the Class B Common Stock and the shares of any class or series of stock which by
its terms is entitled to vote with the Common Stock or the Class B Common Stock
for the election of directors.
(iii) Unless the Special Voting Rights have been eliminated in
accordance with Article 6(e)(ii), all newly-created directorships resulting from
an increase in the authorized number of directors shall be allocated between
Common Stock Directors and Class B Directors such that at all times the number
of Class B Common Stock directorships shall be 80% of the authorized number of
members of the Board of Directors (or, if such 80% is not a whole number, then
the nearest higher whole number) and the remaining directorships shall be Common
Stock directorships.
(iv) Except as otherwise specified herein or required by law, the
holders of Common Stock and Class B Common Stock shall in all matters not
otherwise specified in this Article 6(e) vote together as one class, with each
share of Common Stock and Class B Common Stock having one vote.
(f) Merger or Consolidation. The Corporation shall not enter into any
consolidation of the Corporation with one or more other corporations, a merger
of the Corporation with another corporation, a reorganization of the Corporation
or other similar combination of the Corporation with one or more third parties,
unless each holder of a share of Common Stock or Class B Common Stock is
entitled to receive with respect to such share the same kind and amount of
shares of stock and other securities and property (including cash) receivable
upon such consolidation, merger, reorganization or other combination as each
other holder of a share of Common Stock and Class B Common Stock; provided that,
in any such transaction consummated prior to the Elimination Vote, the holders
of shares of Common Stock and Class B Common Stock may each receive different
kinds of shares of stock that differ to the extent and only to the extent that
the Board of Directors determines in good faith that such shares differ with
respect to the rights of holders of such shares to the same extent as the Common
Stock and Class B Common Stock differ as provided herein.
(g) Liquidation. In the event of any liquidation, dissolution or winding up
of the Corporation, the holders of the Common Stock and Class B Common Stock
shall participate equally per share in any distribution to stockholders, without
distinction between classes.
7. The following provisions are inserted for the management of the business and
for the conduct of the affairs of the Corporation, and for the purpose of
creating, defining, limiting and regulating the powers of the Corporation and
its directors and stockholders:
(a) Except as otherwise fixed pursuant to Article 5 of this Restated
Certificate of Incorporation relating to the rights of the holders of any one or
more series of Preferred Stock issued by the Corporation acting separately as
one or more series to elect, under specified circumstances, directors at an
annual or special meeting of stockholders, the Board of Directors shall consist
of not less than five nor more than ten persons, the exact number to be fixed
from time to time exclusively by the Board of Directors pursuant to a resolution
adopted by a majority of the Board of Directors. A director need not be a
stockholder. The election of directors of the Corporation need not be by ballot
unless the By-Laws so require.
(b) Subject to Articles 7(d) and 7(e), any vacancy on the Board of
Directors that results from an increase in the number of directors may be filled
by a majority of the directors then in office and any other vacancy occurring in
the Board of Directors may be filled by a majority of the Board of Directors
then in office, even if less than a quorum, or by a sole remaining director. Any
director elected to fill a vacancy not resulting from an increase in the number
of directors shall have the same remaining term as that of his predecessor.
Whenever the holders of any one or more series of Preferred Stock issued by
the Corporation shall have the right, voting separately as a series or together
as series, to elect directors at an annual or special meeting of stockholders,
the election, term of office, filling of vacancies and other features of such
directorships shall be governed by the terms of this Restated Certificate of
Incorporation applicable thereto.
(c) The Board of Directors may, by resolution or resolutions, passed by a
majority of the whole Board, designate one or more committees, each committee to
consist of two or more of the directors of the Corporation, which to the extent
permitted by law and provided in said resolution or resolutions or in the
By-Laws of the Corporation shall have and may exercise the powers of the Board
of Directors in the management of the business and affairs of the Corporation
and may have the power to authorize the seal of the Corporation to be affixed to
all papers which require it. Such committee or committees shall have such name
or names as may be stated in the By-Laws of the Corporation, or as may be
determined from time to time by resolution adopted by the Board of Directors.
(d) Any vacancy in the office of a director created by the death,
resignation, retirement, disqualification, removal from office of a director or
other cause, elected by (or appointed on behalf of) the holders of the Voting B
Shares, on the one hand, or the holders of the Voting Shares, on the other hand,
as the case may be, shall be filled by the vote of the majority of the directors
(or the sole remaining director) elected by (or appointed on behalf of) such
holders of Voting B Shares, on the one hand, or Voting Shares, on the other
hand, as the case may be, unless there are no such directors in such class, in
which case such vacancy shall be filled by the holders of the Voting B Shares or
Voting Shares, respectively, or unless the Elimination Vote shall have occurred,
in which case such vacancy shall be filled by the vote of the majority of the
directors (or the sole remaining director) then in office, even if less than a
quorum, regardless of any quorum requirements set out in the By-Laws.
(e) Unless the Elimination Vote shall have occurred, all newly-created
directorships resulting from an increase in the authorized number of directors
shall be allocated pursuant to Article 6(e)(iii). Once such newly-created
directorships have been allocated as Common Stock Directors or Class B
Directors, such newly-created directorships shall be filled by the vote of the
majority of the directors in such class (or the sole remaining director in such
class), as the case may be, unless there are no such directors in such class, in
which case such vacancy shall be filled by the holders of the Voting Shares or
Voting B Shares, respectively, or unless the Elimination Vote shall have
occurred, in which case such vacancy shall be filled by the vote of the majority
of the directors (or the sole remaining director) then in office, even if less
than a quorum, regardless of any quorum requirements set out in the By-Laws. Any
director elected in accordance with the preceding sentence shall hold office
until the next annual meeting or until his successor shall have been elected and
qualified or until his earlier resignation or removal. No decrease in the number
of authorized directors constituting the entire Board of Directors shall shorten
the term of any incumbent director.
8. To the fullest extent permitted by the DGCL as it presently exists or may
hereafter be amended, no director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director. Neither the amendment nor repeal of this Article 8, nor the
adoption of any provision of the Restated Certificate of Incorporation of the
Corporation inconsistent with this Article 8, shall eliminate or reduce the
effect of this Article 8 in respect of any act or omission of any director of
the Corporation or any matter occurring, or any cause of action, suit or claim
that, but for this Article 8, would accrue or arise, prior to such amendment,
repeal or adoption of an inconsistent provision.
9. (a) Each person who was or is made a party or is threatened to be made a
party to or is involved in any claim, action, suit or proceeding, whether civil,
criminal, administrative, investigative or other (hereinafter a "proceeding"),
by reason of the fact that such person, or a person of whom such person is the
legal representative, is or was a director, officer or employee of the
Corporation or is or was serving in the course of such employment, or at the
request of the Corporation, as a director, officer, employee or representative
of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether
the basis of such proceeding is alleged action or inaction in an official
capacity as such a director, officer, employee or representative or in any other
capacity while serving as such a director, officer, employee or representative,
shall be indemnified and held harmless by the Corporation to the fullest extent
authorized by the DGCL, as it presently exists or may hereafter be amended,
against all expense, liability and loss (including attorneys' fees, judgments,
fines, excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee or representative and shall inure to the benefit of such
person's heirs, executors, administrators and other legal representatives;
provided, however that, except as provided in paragraph (b) of this Article 9,
the Corporation shall indemnify any such person seeking indemnification in
connection with such a proceeding (or part thereof) initiated by such person
only if such proceeding (or part thereof), or the initiation thereof, was
authorized or approved by the Corporation. The Corporation shall pay the
expenses (including attorneys' fees) incurred by such a person described in the
preceding sentence (but subject to the proviso thereto) in defending any
proceeding in advance of its final disposition, provided, that, to the extent
required by law, such payment of expenses in advance of the final disposition of
the proceeding shall be made only upon receipt of an undertaking by such person
to repay all amounts advanced if it should be ultimately determined that such
person is not entitled to be indemnified under this Article 9 or otherwise.
(b) If a claim under paragraph (a) of this Article 9 is not paid in full by
the Corporation within thirty (30) days after a written claim has been received
by the Corporation, the claimant may at any time thereafter bring suit against
the Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the requirements of the
Delaware General Corporation Law have been complied with by the claimant) that
the claimant has not met the standards of conduct which make it permissible
under the Delaware General Corporation Law for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation (including its Board
of Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because the claimant has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant has
not met such applicable standard or conduct, shall be a defense to the action or
create the presumption that the claimant has not met the applicable standard of
conduct.
(c) The rights conferred by this Article 9 shall not be exclusive of any
other right which any person may have or hereafter acquire under any statute,
provision of this Restated Certificate of Incorporation of the Corporation,
By-Law, Agreement, vote of stockholders or disinterested directors or otherwise.
(d) The Corporation may maintain insurance, at its expense, to protect
itself, its subsidiary and affiliated corporations, and any such director,
officer, employee or representative of the Corporation or other corporation,
partnership, joint venture, trust or other enterprise against any such expense,
liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the Delaware
General Corporation Law.
10. Except as otherwise fixed pursuant to the provisions of Article 5 of this
Restated Certificate of Incorporation relating to the rights of the holders of
any one or more series of Preferred Stock issued by the Corporation to call an
annual or special meeting of stockholders, special meetings of the stockholders
of the Corporation may be called only by the Chairman, or in his absence by the
President, by the Board of Directors, or by the Secretary at the request in
writing of a majority of the Board of Directors and may not be called by the
stockholders of the Corporation.
11. Any action required to be taken or which may be taken by the holders of the
Corporation Common Stock must be effected at a duly called annual or special
meeting of such holders and may not be taken by written consent in lieu of a
meeting.
12. The Board of Directors shall have the power to adopt, alter, amend and
repeal the By-Laws of the Corporation, in any manner not inconsistent with the
laws of the State of Delaware, subject to the power of the stockholders to
adopt, amend or repeal the By-Laws. Notwithstanding anything else contained in
this Restated Certificate of Incorporation or the By-Laws to the contrary, the
affirmative vote of the holders of record of at least 66 2/3% of the combined
voting power of all of the outstanding stock of the company entitled to vote in
respect thereof, voting together as a single class, shall be required (A) to
alter, amend, rescind or repeal Article 7, Article 10, Article 11 or this
Article 12 of this Restated Certificate of Incorporation or to adopt any
provision inconsistent therewith or (B) in order for the stockholders to adopt,
alter, amend, rescind or repeal any By-Laws of the Corporation.
13. Whenever a compromise or arrangement is proposed between this Corporation
and its creditors or any class of them and/or between this Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of this
Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for this Corporation under the provisions of
Section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this Corporation under
the provisions of Section 279 of Title 8 of the Delaware Code order a meeting of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing three
fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
Corporation as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this Corporation, as the case may be, and also on this
Corporation.
Exhibit B
PROPOSED BY - LAWS
OF
CURTISS-WRIGHT CORPORATION
ARTICLE I.
OFFICES.
SECTION 1. Registered Office. The registered office of
Curtiss-Wright Corporation (hereinafter called the Corporation) in the State of
Delaware, shall be in the City of Wilmington, County of New Castle.
SECTION 2. Other Offices. The Corporation may also have an
office or offices at such other place or places either within or without the
State of Delaware as the Board of Directors may from time to time determine or
the business of the Corporation require.
ARTICLE II.
MEETING OF STOCKHOLDERS.
SECTION 1. Place of Meetings. All meetings of the stockholders
for the election of directors or for any other purpose shall be held at such
place either within or without the State of Delaware as shall be designated from
time to time by the Board of Directors and stated in the notice of the meeting
or in a duly executed waiver of notice thereof.
SECTION 2. Annual Meetings. The annual meeting of the
stockholders for the election of directors and for the transaction of such other
proper business as may come before the meeting shall be held on a date and at a
time as may be designated from time to time by the Board of Directors and stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
SECTION 3. Special Meetings. A special meeting of the
stockholders for any purpose or purposes, unless otherwise prescribed by
statute, may be called only by the Chairman, or in his absence by the President,
by the Board of Directors, or by the Secretary at the request in writing of a
majority of the Board of Directors and may not be called by the stockholders of
the Corporation.
SECTION 4. Notice of Meetings. Except as otherwise provided by
statute, notice of each meeting of the stockholders, whether annual or special,
shall be given not less than ten days nor more than sixty days before the day on
which the meeting is to be held, to each stockholder of record entitled to vote
at such meeting by delivering a written or printed notice thereof to him
personally, or by mailing such notice in a postage prepaid envelope addressed to
him at his post office address furnished by him to the Secretary of the
Corporation for such purpose, or, if he shall not have furnished to the
Secretary of the Corporation his address for such purpose, then at his post
office address as it appears on the records of the Corporation, or by
transmitting a notice thereof to him as otherwise permitted by law. Except where
expressly required by law, no publication of any notice of a meeting of
stockholders shall be required. Every such notice shall state the place, date
and hour of the meeting and, in the case of special meetings, the purpose or
purposes for which the meeting is called. Notice of any meeting of stockholders
shall not be required to be given to any stockholder who shall attend such
meeting in person or by proxy except as otherwise provided by statute; and if
any stockholder shall in person or by attorney thereunto authorized, waive
notice of any meeting, whether before or after such meeting be held, notice
thereof need not be given to him. Notice of any adjourned meeting of the
stockholders shall not be required to be given, except when expressly required
by law. Notice of any meeting of stockholders as herein provided shall not be
required to be given to any stockholder where the giving of such notice is
prohibited or is rendered impossible by the laws of the United States of
America.
SECTION 5. List of Stockholders. It shall be the duty of the
Secretary or other officer who shall have charge of the stock ledger either
directly or through a transfer agent appointed by the Board of Directors, to
prepare and make, at least ten days before every meeting of stockholders,
complete lists of the stockholders entitled to vote thereat, arranged in
alphabetical order, and showing the address of each stockholder, the holders of
each class of stock appearing separately, and indicating the number of shares
held by each, certified by the Secretary or Transfer Agent. Such lists shall be
open to the examination of any stockholder for any purpose germane to the
meeting as required by the Delaware General Corporation Law, and shall be
produced and kept at the time and place of the meeting during the whole time
thereof, and subject to the inspection of any stockholder who may be present.
Upon the willful neglect or refusal of the directors to produce such lists at
any meeting, they shall be ineligible to any office at such meeting. The
original or a duplicate stock ledger shall be the only evidence as to who are
the stockholders entitled to examine the stock ledger, such lists, or the books
of the Corporation or to vote in person or by proxy at such meeting.
SECTION 6. Quorum. At each meeting of the stockholders, the
holders of not less than a majority of the issued and outstanding stock of the
Corporation present either in person or by proxy and entitled to vote at such
meeting shall constitute a quorum except where otherwise provided by law or by
the Restated Certificate of Incorporation or these by-laws. In the absence of a
quorum, the stockholders of the Corporation present in person or by proxy and
entitled to vote, by majority vote, or, in the absence of any stockholders, any
officer entitled to preside or act as Secretary at such meeting, shall have the
power to adjourn the meeting from time to time, until stockholders holding the
requisite amount of stock shall be present or represented. At any such adjourned
meeting at which a quorum may be present any business may be transacted which
might have been transacted at the meeting as originally called. The absence from
any meeting of the number required by the laws of the State of Delaware or by
the Restated Certificate of Incorporation of the Corporation or by these by-laws
for action upon any given matter shall not prevent action at such meetings upon
any other matter or matters which may properly come before the meeting, and if
the holders of not less than a majority of the issued and outstanding stock of
the Corporation entitled to vote at that time upon such other matter or matters
shall be present either in person or by proxy at such meeting, a quorum for the
consideration of such other matter or matters shall be present and the meeting
may proceed forthwith and take action upon such other matter or matters.
SECTION 7. Organization. The Chairman or, in his absence, the
President, or, in the absence of both of them, any Vice President present, shall
call meetings of the stockholders to order and shall act as Chairman thereof. In
the absence of all of the foregoing officers, the holders of a majority in
interest of the stock present in person or by proxy and entitled to vote may
elect any stockholder of record present and entitled to vote to act as Chairman
of the meeting until such time as any one of the foregoing officers shall
arrive, whereupon he shall act as Chairman of the meeting. The Secretary or, in
his absence, an Assistant Secretary shall act as secretary at all meetings of
the stockholders. In the absence from any such meeting of the Secretary and the
Assistant Secretary or Secretaries, the Chairman may appoint any person present
to act as secretary of the meeting. Such person shall be sworn to the faithful
discharge of his duties as such secretary of the meeting before entering
thereon.
SECTION 8. Notice of Stockholder Business and Nominations.
(a) Annual Meetings of Stockholders.
(i) Nominations of persons for election to the Board of
Directors of the Corporation and the proposal of business to be considered by
the stockholders may be made at an annual meeting of stockholders only (A)
pursuant to the Corporation's notice of meeting (or any supplement thereto), (B)
by or at the direction of the Board of Directors or (C) by any stockholder of
the Corporation who was a stockholder of record of the Corporation at the time
the notice provided for in this Section 8 is delivered to the Secretary of the
Corporation, who is entitled to vote at a meeting and who complies with the
notice procedures set forth in this Section 8.
(ii) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (C) of paragraph
(i) of this Section 8, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation and any such proposed business other
than the nominations of persons for election to the Board of Directors must
constitute a proper matter for stockholder action. To be timely, a stockholder's
notice shall be delivered to the Secretary at the principal executive offices of
the Corporation not later than the close of business on the ninetieth day nor
earlier than the close of business on the one hundred twentieth day prior to the
first anniversary of the preceding year's annual meeting (provided, however,
that in the event that the date of the annual meeting is more than thirty days
before or more than seventy days after such anniversary date, notice by the
stockholder must be so delivered not earlier than the close of business on the
one hundred twentieth day prior to such annual meeting and not later than the
close of business on the later of the ninetieth day prior to such annual meeting
or the tenth day following the day on which public announcement of the date of
such meeting is first made by the Corporation). In no event shall the public
announcement of an adjournment or postponement of an annual meeting commence a
new time period (or extend any time period) for the giving of a stockholder's
notice as described above. Such stockholder's notice shall set forth: (A) as to
each person whom the stockholder proposes to nominate for election as a director
all information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors in an election contest, or is
otherwise required, in each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") (and such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected); (B) as to any other business that the stockholder proposes
to bring before the meeting, a brief description of the business desired to be
brought before the meeting, the text of the proposal or business (including the
text of any resolutions proposed for consideration and in the event that such
business includes a proposal to amend the by-laws of the Corporation, the
language of the proposed amendment), the reasons for conducting such business at
the meeting and any material interest in such business of such stockholder and
the beneficial owner, if any, on whose behalf the proposal is made; and (C) as
to the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made the name and address of such
stockholder, as they appear on the Corporation's books, and of such beneficial
owner, the class and number of shares of capital stock of the Corporation which
are owned beneficially and of record by such stockholder and such beneficial
owner, a representation that the stockholder is a holder of record of stock of
the Corporation entitled to vote at such meeting and intends to appear in person
or by proxy at the meeting to propose such business or nomination, and a
representation whether the stockholder or the beneficial owner, if any, intends
or is part of a group which intends (x) to deliver a proxy statement and/or form
of proxy to holders of at least the percentage of the Corporation's outstanding
capital stock required to approve or adopt the proposal or elect the nominee
and/or (y) otherwise to solicit proxies from stockholders in support of such
proposal or nomination. The foregoing notice requirements shall be deemed
satisfied by a stockholder if the stockholder has notified the Corporation of
his or her intention to present a proposal at an annual meeting in compliance
with Rule 14a-8 (or any successor thereof) promulgated under the Exchange Act
and such stockholder's proposal has been included in a proxy statement that has
been prepared by the Corporation to solicit proxies for such annual meeting. The
Corporation may require any proposed nominee to furnish such other information
as it may reasonably require to determine the eligibility of such proposed
nominee to serve as a director of the Corporation.
(iii) Notwithstanding anything in the second sentence of
paragraph (a)(ii) of this Section 8 to the contrary, in the event that the
number of directors to be elected to the Board of Directors of the Corporation
at an annual meeting is increased and the stockholders of the Corporation are
entitled to fill such vacancies in accordance with the Restated Certificate of
Incorporation and these by-laws and there is no public announcement by the
Corporation naming the nominees for the additional directorships at least one
hundred days prior to the first anniversary of the preceding year's annual
meeting, and a stockholder's notice required by this Section 8 shall also be
considered timely, but only with respect to nominees for the additional
directorships, if it shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on the
tenth day following the day on which such public announcement is first made by
the Corporation.
(b) Special Meetings of Stockholders.
Only such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting. Nominations of persons for election to the
Board of Directors may be made at a special meeting of stockholders at which
directors are to be elected pursuant to the Corporation's notice of meeting (x)
by or at the direction of the Board of Directors or (y) provided that the Board
of Directors has determined that directors shall be elected at such meeting, by
any stockholder of the Corporation who is a stockholder of record at the time
the notice provided for in this Section 8 is delivered to the Secretary of the
Corporation, who is entitled to vote at the meeting and upon such election and
who complies with the notice procedures set forth in this Section 8. In the
event the Corporation calls a special meeting of stockholders for the purpose of
electing one or more directors to the Board of Directors, any such stockholder
entitled to vote in such election of directors may nominate a person or persons
(as the case may be) for election to such position(s) as specified in the
Corporation's notice of meeting, if the stockholder's notice required by
paragraph (a)(ii) of this Section 8 shall be delivered to the Secretary at the
principal executive offices of the Corporation not earlier than the close of
business on the one hundred twentieth day prior to such special meeting and not
later than the close of business on the later of the ninetieth day prior to such
special meeting or the tenth day following the day on which public announcement
is first made of the date of the special meeting and of the nominees proposed by
the Board of Directors to be elected at such meeting. In no event shall the
public announcement of an adjournment or postponement of a special meeting
commence a new time period (or extend any time period) for the giving of a
stockholder's notice as described above.
(c) General.
(i) Only such persons who are nominated in accordance with the
procedures set forth in this Section 8 shall be eligible to be elected at an
annual or special meeting of stockholders of the Corporation to serve as
directors and only such business shall be conducted at a meeting of stockholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this Section 8. Except as otherwise provided by law, the chairman
of the meeting shall have the power and duty (A) to determine whether a
nomination or any business proposed to be brought before the meeting was made or
proposed, as the case may be, in accordance with the procedures set forth in
this Section 8 (including whether the stockholder or beneficial owner, if any,
on whose behalf the nomination or proposal is made solicited (or is part of a
group which solicited) or did not so solicit, as the case may be, proxies in
support of such stockholder's nominee or proposal in compliance with such
stockholder's representation as required by clause (a)(ii)(C)(4) of this Section
8 and (B) if any proposed nomination or business was not made or proposed in
compliance with this Section 8, to declare that such nomination shall be
disregarded or that such proposed business shall not be transacted.
Notwithstanding the foregoing provisions of this Section 8, if the stockholder
(or a qualified representative of the stockholder) does not appear at the annual
or special meeting of stockholders of the Corporation to present a nomination or
business, such nomination shall be disregarded and such proposed business shall
not be transacted, notwithstanding that proxies in respect of such vote may have
been received by the Corporation.
(ii) For purposes of this Section 8, "public announcement"
shall include disclosure in a press release reported by the Dow Jones News
Service, Associated Press or comparable national news service or in a document
publicly filed by the Corporation with the Securities and Exchange Commission
pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(iii) Notwithstanding the foregoing provisions of this Section
8, a stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Section 8. Nothing in this Section 8 shall be deemed
to affect any rights (A) of stockholders to request inclusion of proposals in
the Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act
or (B) of the holders of any series of Preferred Stock to elect directors
pursuant to any applicable provisions of the Restated certificate of
incorporation.
SECTION 9. Voting. Each stockholder of the Corporation shall,
except as otherwise provided by statute or in these by-laws or in the Restated
Certificate of Incorporation of the Corporation, at every meeting of the
stockholders be entitled to one vote in person or by proxy for each share of the
capital stock of the Corporation registered in his name on the books of the
Corporation on the date fixed pursuant to Section 6 of Article VII of these
by-laws as the record date for the determination of stockholders entitled to
vote at such meeting. Persons holding in a fiduciary capacity stock having
voting rights shall be entitled to vote the shares so held, and persons whose
stock having voting rights is pledged shall be entitled to vote, unless in the
transfer by the pledgor on the books he shall have expressly empowered the
pledgee to vote thereon, in which case only the pledgee, or his proxy, may
represent said stock and vote thereon. Any vote on stock may be given by the
stockholder entitled thereto in person or by his proxy; provided, however, that
no proxy shall be voted on after three years from its date unless said proxy
provides for a longer period. At all meetings of the stockholders, all matters
(except those specified in Section 4 of Article III and Article XI of these
by-laws, and except also in special cases where other provision is made by
statute, and except as otherwise provided in the Restated Certificate of
Incorporation) shall be decided by the vote of a majority in interest of the
stockholders present in person or by proxy and entitled to vote thereat, a
quorum being present. Except as otherwise provided by statute, the vote on any
question need not be by ballot. On a vote by ballot each ballot shall be signed
by the stockholder voting, or in his name by his proxy if there be such proxy,
and shall state the number of shares voted by him.
SECTION 10. Inspectors of Election. On each matter or election
at each meeting of the stockholders where a vote by ballot is taken, the proxies
and ballots shall be received and be taken in charge, and all questions touching
the qualification of voters and the validity of proxies and the acceptance or
rejection of votes, shall be decided by two inspectors of election who shall be
appointed by the Chairman of such meeting. The inspectors of election need not
be stockholders. No candidate for the office of director shall act as inspector
at any election of directors. Inspectors shall count and ascertain the number of
shares voted; and shall declare the result of the election or of the voting as
the case may be; and shall make out a certificate accordingly, stating the
number of shares issued and outstanding and entitled to vote at such election or
on such matters and the number of shares voted and how voted. Inspectors shall
be sworn to faithfully perform their duties and shall certify to the returns in
writing. They shall hold office from the date of their appointment until their
successors shall have been appointed and qualified.
ARTICLE III.
BOARD OF DIRECTORS.
SECTION 1. General Powers. The property, affairs and business
of the Corporation shall be managed by or under the direction of the Board of
Directors.
SECTION 2. Number, Qualifications and Terms of Office. The
Board of Directors shall consist of not less than five nor more than ten
persons, the exact number to be fixed from time to time exclusively by the Board
of Directors pursuant to a resolution adopted by a majority of the Board of
Directors. Directors need not be stockholders. The directors shall be elected as
provided in the Restated Certificate of Incorporation and each director shall
hold office until his successor shall have been elected and shall qualify, or
until his death or until he shall resign or shall have been removed.
SECTION 3. [RESERVED]
SECTION 4. Election of Directors. Except as otherwise provided
in the Restated Certificate of Incorporation, directors shall be elected by a
plurality of the votes cast by the stockholders entitled to vote for the
election of such directors.
SECTION 5. Quorum and Manner of Acting. Except as otherwise
provided by statute, the Restated Certificate of Incorporation or these by-laws,
one-third of the whole Board of Directors (but not less than three) shall be
required to constitute a quorum for the transaction of business at any meeting,
and the act of a majority of the directors present at any meeting at which a
quorum is present shall be the act of the Board of Directors. In the absence of
a quorum, a majority of the directors present may adjourn any meeting from time
to time until a quorum be had. Notice of any adjourned meeting need be given
only to those directors who were not present at any meeting at which the
adjournment was taken, provided the time and place of the adjourned meeting were
announced at the meeting at which the adjournment was taken. The directors shall
act only as a board and the individual directors shall have no power as such.
SECTION 6. Place of Meeting, etc. The Board of Directors may
hold its meetings, at such place or places within or without the State of
Delaware as the Board of Directors may from time to time determine or as shall
be specified or fixed in the respective notices or waivers of notice thereof.
SECTION 7. First Meeting. After each annual election of
directors and within a reasonable time thereafter, the Board of Directors shall
meet for the purpose of organization, the election of officers and the
transaction of other business at such hours and place as shall be convenient.
Notice of such meeting shall be given as hereinafter provided for special
meetings of the Board of Directors or in a consent and waiver of notice thereof
signed by all the directors.
SECTION 8. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such place and at such times as the Board of
Directors shall from time to time by resolution determine or as shall be
specified in the Notice of Meeting. If any day fixed for a regular meeting shall
be a legal holiday at the place where the meeting is to be held, then the
meeting which would otherwise be held on that day shall be held at the same hour
on the next succeeding business day not a legal holiday. Notice of the regular
meetings need not be given.
SECTION 9. Special Meetings; Notice. Special meetings of the
Board of Directors shall be held whenever called by the Chairman, the President
or by one of the directors. Notice of each such meeting shall be mailed to each
director, addressed to him at his residence or usual place of business, at least
two days before the day on which the meeting is to be held, or shall be sent to
him at such place by telegraph, cable, telex, facsimile transmitter, e-mail or
other electronic transmission, or be delivered personally or by telephone, not
later than the day before the day on which the meeting is to be held. Every such
notice shall state the time and place of the meeting but need not state the
purpose thereof except as otherwise in these by-laws or by statute expressly
provided. Notice of any meeting of the Board of Directors need not be given to
any director, however, if waived by him in writing or by telegraph, cable,
telex, facsimile transmitter, e-mail or other electronic transmission, whether
before or after such meeting be held or, except as otherwise provided by law, if
he shall be present at the meeting; and, except as otherwise provided by law,
any meeting of the Board of Directors shall be a legal meeting without any
notice thereof having been given if all of the directors shall be present
thereat.
SECTION 10. Organization. At each meeting of the Board of
Directors, the Chairman or, in his absence, the President, or, in the absence of
both of them, a director chosen by a majority of the directors present shall act
as Chairman. The Secretary or, in his absence, an Assistant Secretary or, in the
absence of both the Secretary and Assistant Secretaries, any person appointed by
the Chairman shall act as secretary of the meeting.
SECTION 11. Order of Business. At all meetings of the Board of
Directors business shall be transacted in the order determined by the Board of
Directors.
SECTION 12. Resignations. Any director of the Corporation may
resign at any time by giving notice in writing or by electronic transmission to
the Chairman, the President or to the Secretary of the Corporation. The
resignation of any director shall take effect at the time of the receipt of such
notice or at any later time specified therein; and, unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
SECTION 13. Vacancies.
(a) Vacancies in the Board of Directors shall be filled in
accordance with the Restated Certificate of Incorporation.
(b) A director who resigns, retires, or does not stand for
reelection may, in the discretion of the Board of Directors, be elected a
Director Emeritus. A Director Emeritus shall receive reimbursement for
reasonable expenses for attendance at meetings of the Board to which he is
invited. Such attendance shall be in a consulting capacity and he shall not be
entitled to vote or have any duties or powers of a Director of the Corporation.
SECTION 14. Regular Stipulated Compensation and Fees. Each
director shall be paid such regular stipulated compensation, if any, as shall be
fixed by the Board of Directors and/or such fee, if any, for each meeting of the
Board of Directors which he shall attend as shall be fixed by the Board of
Directors and in addition such transportation and other expenses actually
incurred by him in connection with services to the Corporation.
SECTION 15. Action by Consent. Any action required or
permitted to be taken by the Board of Directors or any Committee thereof may be
taken without a meeting if all members of the Board of Directors or such
Committee, as the case may be, consent thereto in writing, or by electronic
transmission and the writing or writings or electronic transmission or
transmissions are filed with the minutes of the proceedings of the Board of
Directors or such Committee, as the case may be.
SECTION 16. Telephonic Meeting. Unless restricted by the
Certificate of Incorporation, any one or more members of the Board of Directors
or any Committee thereof may participate in a meeting of the Board of Directors
or such Committee by means of a conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other. Participation by such means shall constitute presence in person at a
meeting.
ARTICLE IV.
COMMITTEES.
SECTION 1. Committees. The Board of Directors may by
resolution or resolutions, passed by a majority of the whole Board, designate
one or more Committees, each Committee to consist of two or more of the
directors of the Corporation, which, to the extent permitted by law and provided
for in said resolution or resolutions or in these by-laws, shall have and may
exercise the powers of the Board in the management of the business and affairs
of the Corporation. Such committees shall have such name or names as may be
stated in these by-laws, or as may be determined from time to time by resolution
adopted by the Board. The Committee or Committees appointed by the Board shall
be subject to the supervision and direction of the Board of Directors.
In the absence or disqualification of a member of a committee,
the member or members present at any meeting and not disqualified from voting,
whether or not such member or members constitute a quorum, may unanimously
appoint another member of the board of directors to act at the meeting in the
place of any such absent or disqualified member.
SECTION 2. Term of Office and Vacancies. Each member of a
Committee shall continue in office until a director to succeed him shall have
been elected and shall have qualified, or until his death or until he shall have
resigned or shall have been removed. Any vacancy in a Committee shall be filled
by the vote of a majority of the whole Board of Directors at any regular or
special meeting thereof.
SECTION 3. Organization. Except as otherwise provided in these
by-laws, the Chairman of each Committee shall be designated by the Board of
Directors. The Chairman of each Committee may designate a secretary of each such
Committee. In the absence from any meeting of any Committee of its Chairman or
its secretary such Committee shall appoint a temporary Chairman or secretary, as
the case may be, of the meeting unless otherwise provided in these by-laws. Each
Committee shall keep a record of its acts and proceedings and report the same
from time to time to the Board of Directors.
SECTION 4. Resignations. Any member of a Committee may resign
at any time by giving notice in writing or by electronic transmission to the
Chairman, President or Secretary of the Corporation. Such resignation shall take
effect at the time of the receipt of such notice or at any later time specified
therein, and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
SECTION 5. Removal. Any member of a Committee may be removed
from such Committee with or without cause at any time by the affirmative vote of
a majority of the whole Board of Directors given at any regular meeting or at
any special meeting called for the purpose.
SECTION 6. Meetings. Regular meetings of each Committee, of
which no notice shall be necessary, shall be held on such days and at such place
as shall be fixed by a resolution adopted by the vote of a majority of all the
members of such Committee. Special meetings of each Committee may be called by
the Chairman of such Committee or by the Chairman, President or Secretary of the
Corporation. Notice of each special meeting of the Committee shall be sent by
mail to each member thereof, addressed to him at his residence or usual place of
business, not later than the day before the day on which the meeting is to be
held, or shall be sent to each such member by telegraph, cable, telex, facsimile
transmitter, e-mail or other electronic transmission, or delivered to him
personally or by telephone, not less than three (3) hours before the time set
for the meeting. Every such notice shall state the time and place, but need not
state the purposes, of the meeting except as otherwise in these by laws or by
statute expressly provided. Notice of any such meeting need not be given to any
member of a Committee, however, if waived by him in writing or by telegraph,
cable, telex, facsimile transmitter, e-mail or other electronic transmission,
whether before or after such meeting be held, or except as otherwise provided by
law, if he shall attend such meeting in person, and, except as otherwise
provided by law, any meeting of a Committee shall be a legal meeting without any
notice thereof having been given if all of the members of the Committee shall be
present thereat.
SECTION 7. Quorum and Manner of Acting. Unless otherwise
provided by resolution of the Board of Directors, a number of Directors equal to
one less than a majority of the number of Directors serving on any Committee,
but not less than two Directors, shall constitute a quorum for the transaction
of business and the act of a majority of those present at a meeting at which a
quorum is present shall be the act of such Committee. The members of each
Committee shall act only as a Committee and the individual members shall have no
power as such.
SECTION 8. [RESERVED]
SECTION 9. Fees. Each member of a Committee shall be paid such
fee, if any, as shall be fixed by the Board of Directors, for each meeting of
such Committee which he shall attend, and in addition such transportation and
other expenses actually incurred by him in connection with his services as such
member.
ARTICLE V.
OFFICERS, EMPLOYEES AND AGENTS: POWERS AND DUTIES.
SECTION 1. Officers. The elected officers of the Corporation
shall be a Chairman and a President (each of whom shall be a director), a Chief
Executive Officer, a Chief Operating Officer, such Executive Vice Presidents,
such Senior Vice Presidents and other Vice Presidents as the Board may elect, a
Controller, a Treasurer, and a Secretary. The Board of Directors or any
Committee constituted pursuant to Article IV of these by-laws with power for the
purpose may also appoint one or more Assistant Controllers, one or more
Assistant Treasurers, one or more Assistant Secretaries, and such other officers
and agents as, from time to time, may appear to be necessary or advisable in the
conduct of the affairs of the Corporation. Any number of offices may be held by
the same person, except that any person serving as Chairman or President shall
not also serve as Secretary.
SECTION 2. Term of Office: Vacancies. All elected officers
shall serve for a term of one year measured by the length of time between the
organizational meeting of the Board of Directors following the annual meeting of
shareholders at which the officer is elected and the organizational meeting in
the succeeding year, unless the officer is elected after the organizational
meeting, in which case the term of the officer shall also expire at the next
organizational meeting of the Board of Directors. If such election shall not
occur at the organizational meeting, such election shall occur as soon as
practicable thereafter. Each officer shall hold office only until the expiration
of his or her one-year term or until his or her earlier resignation or removal
by the Board of Directors. If any vacancy occurs in any office, the Board of
Directors, or, in the case of an appointive office, any Committee constituted
pursuant to Article IV of these by-laws with power for that purpose, may elect
or appoint a successor to fill such vacancy for the remainder of the one-year
term.
SECTION 3. Removal of Elected Officers. Any elected officer
may be removed at any time, either for or without cause, by affirmative vote of
a majority of the whole Board of Directors, at any meeting called for the
purpose.
SECTION 4. Chairman. The Chairman shall function under the
general supervision of the Board of Directors and shall perform such duties and
exercise such powers as from time to time may be assigned to him by the Board.
During any period in which there is a vacancy in the office of the President,
the Chairman shall, pending action by the Board, perform the duties and exercise
the powers of the President. The Chairman shall preside, when present, at all
meetings of the stockholders and of the Board of Directors and shall see to it
that appropriate agendas are developed for such meetings.
SECTION 5. President. The President shall perform such duties
and exercise such powers as from time to time may be assigned to him by the
Board or the Chairman. At the request of the Chairman or in case of the
Chairman's absence or inability to act, the President shall perform the duties
of the Chairman and, when so acting, shall have the powers of, and shall be
subject to the restrictions upon, the Chairman.
SECTION 6. Chief Executive Officer. The Chief Executive
Officer shall be designated from time to time by a resolution adopted by the
Board of Directors and shall be either the Chairman or the President. He shall
have, subject to the direction and control of the Board, general and active
supervision over the business and affairs of the Corporation and over its
several officers. He shall perform all duties incident to his position and such
other duties as may from time to time be assigned to him by the Board. He shall
see that all orders of the Board shall be carried into effect. He may sign,
execute and deliver all deeds, mortgages, contracts, stock certificates and
other instruments in the name of the Corporation, except in cases where the
signing, execution or delivery thereof shall be expressly delegated by the Board
or by a duly authorized Committee of the Board or by these by-laws to some other
officer or agent of the Corporation or where any of them shall be required by
law otherwise to be signed, executed or delivered. He may cause the seal of the
Corporation to be affixed to any documents the execution of which on behalf of
the Corporation shall have been duly authorized. He shall have authority to
cause the employment or appointment of such employees and agents of the
Corporation as the proper conduct of operations may require, to fix their
compensation, subject to the provisions of these by-laws, to remove or suspend
any employee or agent under authority of an officer to him, to suspend for
cause, pending final action by the authority which shall have elected or
appointed him, any officer subordinate to him, and to have all the duties and
exercise all the powers usually pertaining to the office held by the Chief
Executive Officer of a Corporation, except as otherwise provided in these
by-laws.
SECTION 7. Chief Operating Officer. A Chief Operating Officer
may be designated from time to time by a resolution adopted by the Board of
Directors, and shall be subject to the direction and control of the Board, and
the Chief Executive Officer. He shall directly report to and assist the Chief
Executive Officer in the general and active supervision over the business and
affairs of the Corporation and over its several officers, and shall perform all
duties incident to his position and such other duties as may from time to time
be assigned to him by the Board, or the Chief Executive Officer.
SECTION 8. Vice Presidents. Under the direction of the Chief
Executive Officer or the Chief Operating Officer, the Executive Vice Presidents,
Senior Vice Presidents, and Vice Presidents of the Corporation shall perform all
such duties and exercise all such powers as may be provided by these by-laws or
as may from time to time be determined by the Board of Directors, any Committee
constituted pursuant to Article IV of these by-laws with power for the purpose,
the Chief Executive Officer, or the Chief Operating Officer.
SECTION 9. Controller. The Controller shall be the chief
accounting officer of the Corporation and shall see that the accounts of the
Corporation and its subsidiary corporations are maintained in accordance with
generally accepted accounting principles; and all decisions affecting the
accounts shall be subject to his approval or concurrence. He shall supervise the
manner of keeping all vouchers for payments by the Corporation and its
subsidiary corporations and all other documents relating to such payments, shall
receive and consolidate all operating and financial statements of the
Corporation, its various departments, divisions and subsidiary corporations;
shall have supervision of the books of account of the Corporation and its
subsidiary corporations, their arrangement and classification; shall supervise
the accounting practices of the Corporation and its subsidiary corporations and
shall have charge of all matters relating to taxation.
SECTION 10. Assistant Controllers. At the request of the
Controller or in his absence or disability the Assistant Controller designated
by him or (failing such request or designation) the Assistant Controller or
other officer designated by the President shall perform all the duties of the
Controller and, when so acting, shall have all the powers of, and be subject to
all the restrictions upon, the Controller.
SECTION 11. Treasurer. The Treasurer shall be the fiscal
officer of the Corporation. He shall have the care and custody of all moneys,
funds and securities of the Corporation, and shall cause the same to be
deposited in such bank or banks or depositories as from time to time may be
designated, pursuant to Section 4 and Section 5 of Article VI of these by-laws;
shall advise upon all terms of credit granted by the Corporation and its
subsidiary corporations, respectively; shall be responsible for the collection
of their accounts, and shall cause to be recorded, daily, a statement of all
receipts and disbursements of the Corporation and its subsidiary corporations,
in order that proper entries may be made in the books of account; and shall have
power to give proper receipts or discharges for all payments to the Corporation.
He shall also have power to sign any or all certificates of stock of the
Corporation.
SECTION 12. Assistant Treasurers. At the request of the
Treasurer or in his absence or disability the Assistant Treasurer designated by
him or (failing such request or designation) the Assistant Treasurer or other
officer designated by the President shall perform all the duties of the
Treasurer and, when so acting, shall have the powers of, and be subject to all
the restrictions upon, the Treasurer.
SECTION 13. Secretary. The Secretary shall attend to the
giving of notice of all meetings of stockholders and of the Board of Directors
and shall record all the proceedings of the meetings thereof in books to be kept
for that purpose. He shall have charge of the corporate seal and have authority
to attest any and all instruments or writings to which the same may be affixed.
He shall be custodian of all books, documents, papers and records of the
Corporation, except those for which some other officer or agent is properly
accountable. He shall have authority to sign any or all certificates of stock of
the Corporation, and, in general, shall have all the duties and powers usually
appertaining to the office of secretary of a corporation.
SECTION 14. Assistant Secretaries. At the request of the
Secretary or in his absence or disability the Assistant Secretary designated by
him or (failing such request or designation) the Assistant Secretary or other
officer designated by the President shall perform all the duties of the
Secretary and, when so acting, shall have all the powers of, and be subject to
all the restrictions upon, the Secretary.
SECTION 15. Additional Duties and Powers. In addition to the
foregoing especially enumerated duties and powers, the several officers of the
Corporation shall perform such other duties and exercise such further powers as
may be provided in these by-laws or as may from time to time be determined by
the Board of Directors, or any Committee constituted pursuant to Article IV of
these by-laws with power for the purpose, or by any competent superior officer.
SECTION 16. Compensation. The compensation of all officers,
except assistant officers, of the Corporation shall be fixed, from time to time
by the Board of Directors, or any Committee constituted pursuant to Article IV
of these by-laws with power for the purpose.
SECTION 17. Resignations. Any officer may resign at any time
by giving written notice to the Board of Directors, the Chairman, the President,
the Chief Executive Officer, the Chief Operating Officer, or the Secretary. Any
such resignation shall take effect at the date of receipt of such notice or at
any later time specified therein; and unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
ARTICLE VI.
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
SECTION 1. Contracts, etc., How Executed. The Board of
Directors, or any Committee constituted pursuant to Article IV of these by-laws
with power for the purpose, except as in these by-laws otherwise provided, may
authorize any officer or officers, agent or agents, of the Corporation to enter
into any contract or execute and deliver any instrument in the name of and on
behalf of the Corporation, and such authority may be general or confined to
specific instances; and, unless so authorized by the Board of Directors or by
such Committee or by these by-laws, no officer, agent, or employee shall have
any power or authority to bind the Corporation by any contract or agreement or
to pledge its credit or to render it liable pecuniarily for any purpose or to
any amount.
SECTION 2. Loans. No loan shall be contracted on behalf of the
Corporation, and no negotiable paper shall be issued in its name, unless
authorized by the Board of Directors or by any Committee constituted pursuant to
Article IV of these by-laws with power for the purpose. When so authorized, the
Chairman, President, Chief Executive Officer, Chief Operating Officer, or a Vice
President or the Secretary or the Treasurer or the Assistant Treasurer of the
Corporation may effect loans and advances at any time for the Corporation from
any bank, trust company or other institution, or from any firm, corporation or
individual and for such loans and advances may make, execute and deliver
promissory notes or other evidences of indebtedness of the Corporation and, when
authorized as aforesaid, as security for the payment of any and all loans,
advances, indebtedness and liabilities of the Corporation, may mortgage, pledge,
hypothecate or transfer any real or personal property at any time held by the
Corporation and to that end execute instruments of mortgage or pledge or
otherwise transfer such property. Such authority may be general or confined to
specific instances.
SECTION 3. Checks, Drafts, etc. All checks, drafts or other
orders for the payment of money, notes, or other evidences of indebtedness
issued in the name of the Corporation, shall be signed by such officer or
officers, employee or employees, of the Corporation as shall from time to time
be determined by resolution of the Board of Directors or by any Committee
constituted pursuant to Article IV of these by-laws with power for the purpose,
or by any officer or officers authorized pursuant to Section 4 or Section 5 of
this Article to designate depositaries or to open bank accounts.
SECTION 4. Deposits. All funds of the Corporation shall be
deposited from time to time to the credit of the Corporation in such banks,
trust companies or other depositories as the Board of Directors or any Committee
constituted pursuant to Article IV of these by-laws with power for the purpose
may from time to time designate, or as may be designated by an officer or
officers of the Corporation to whom such power may be delegated by the Board of
Directors, or by such Committee, and for the purpose of such deposit, the
President, the Chief Executive Officer, the Chief Operating Officer, or a Vice
President, or the Treasurer, or an Assistant Treasurer, or the Secretary, or an
Assistant Secretary, may endorse, assign and deliver checks, drafts and other
orders for the payment of money which are payable to the order of the
Corporation.
SECTION 5. General and Special Bank Accounts. The Board of
Directors or any Committee constituted pursuant to Article IV of these by-laws
with power for the purpose, or any officer or officers of the Corporation to
whom such powers may be delegated by the Board of Directors, or by such
Committee, may from time to time authorize the opening and keeping with such
banks, trust companies or other depositaries as it, or they, may designate of
general and special bank accounts, and may make such special rules and
regulations with respect thereto, not inconsistent with the provisions of these
by-laws, as it, or they, may deem expedient.
SECTION 6. Proxies. Except as otherwise in these by-laws or in
the Restated Certificate of Incorporation of the Corporation provided, and
unless otherwise provided by resolution of the Board of Directors, or of any
Committee constituted pursuant to Article IV of these by-laws with power for the
purpose, the Chairman or President or Chief Executive Officer may from time to
time appoint an attorney or attorneys or agent or agents, of the Corporation, in
the name and on behalf of the Corporation to cast the votes which the
Corporation may be entitled to cast as a stockholder or otherwise in any other
corporation any of whose stock or other securities may be held by the
Corporation, at meetings of the holders of the stock or other securities of such
other corporation, or to consent in writing to any action by such other
corporation, and may instruct the person or persons so appointed as to the
manner of casting such votes or giving such consent, and may execute or cause to
be executed in the name and on behalf of the Corporation and under its corporate
seal, or otherwise, all such written proxies or other instruments as he may deem
necessary or proper in the premises.
SECTION 7. Independent Public Accountants. The stockholders of
the Corporation shall, at each annual meeting, appoint independent public
accountants for the purpose of auditing and certifying the annual financial
statements of the Corporation for its current fiscal year as sent to
stockholders or otherwise published by the Corporation. If the stockholders
shall fail to appoint such independent public accountants or if the independent
public accountants so appointed by the stockholders shall decline to act or
resign, or for some other reason be unable to perform their duties, the Board of
Directors shall appoint other independent public accountants to perform the
duties herein provided.
ARTICLE VII.
SHARES AND THEIR TRANSFER.
SECTION 1. Shares. The shares of the Corporation shall be
represented by certificates or, if so resolved by the Board of Directors in
accordance with these by-laws, shall be uncertificated. Each registered holder
of shares, upon request to the Corporation, shall be provided with a certificate
of stock, representing the number of shares owned by such holder. Absent a
specific request for such a certificate by the registered owner or transferee
thereof, all shares shall be uncertificated upon the original issuance thereof
by the Corporation or upon the surrender of the certificate representing such
shares to the Corporation. Certificates for shares of the capital stock of the
Corporation shall be in such form as shall be approved by the Board of Directors
or by any Committee constituted pursuant to Article IV of these by-laws with
power for the purpose. They shall be numbered, shall certify the number of
shares held by the holder thereof and shall be signed by the Chairman,
President, or a Vice President and by the Treasurer or an Assistant Treasurer or
the Secretary or an Assistant Secretary of the Corporation, and the seal of the
Corporation shall be affixed thereto. Where any such certificate is
countersigned by a transfer agent, other than the Corporation or its employee,
or by a registrar, other than the Corporation or its employee, any other
signature and the seal of the Corporation on such certificate may be a
facsimile, engraved, stamped or printed. In any case any such officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed
upon any such certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if such officer, transfer agent, or
registrar were such officer, transfer agent or registrar at the date of its
issue.
SECTION 2. Transfer of Stock. Transfers of shares of the
capital stock of the Corporation shall be made only on the books of the
Corporation by the holder thereof, or by his attorney thereunto authorized by a
power of attorney duly executed and filed with the Secretary of the Corporation,
or a transfer agent of the Corporation, if any, and on surrender of the
certificate or certificates for such shares, properly endorsed, or upon receipt
of proper transfer instructions from the owner of uncertificated shares, or upon
the escheat of said shares under the laws of any state of the United States. A
person in whose name shares of stock stand on the books of the Corporation shall
be deemed the owner thereof as regards the Corporation, provided that whenever
any transfer of shares shall be made for collateral security, and not
absolutely, such fact, if known to the Secretary or to said transfer agent,
shall be so expressed in the entry of transfer.
SECTION 3. Addresses of Stockholders. Each stockholder shall
designate to the Secretary of the Corporation an address at which notices of
meetings and all other corporate notices may be served or mailed to him, and if
any stockholder shall fail to designate such address, corporate notices may be
served upon him by mail directed to him at his last known post office address as
it appears on the records of the Corporation.
SECTION 4. Lost, Stolen, Destroyed and Mutilated Certificates.
To deal with the eventuality of lost, stolen, destroyed and mutilated
certificates of stock the Board of Directors or any Committee constituted
pursuant to Article IV of these by-laws with power for the purpose may establish
by appropriate resolutions such rules and regulations as they deem expedient
concerning the issue to such holder of uncertificated shares or, if requested by
such holder, a new certificate or certificates of stock, including, without
limiting the generality of the foregoing, such rules and regulations as they may
deem expedient with respect to the proof of loss, theft or destruction and the
surrender of mutilated certificates and the requirements as to the giving of a
bond or bonds to indemnify the Corporation against any claim which may be made
against it on account of the alleged loss, theft or destruction of any such
certificate. The holder of any stock of the Corporation shall immediately notify
the Corporation and/or the appropriate transfer agent of such stock of any loss,
theft, destruction or mutilation of the certificate therefor.
SECTION 5. Transfer Agent and Registrar: Regulations. The
Corporation shall, if and whenever the Board of Directors or any Committee
constituted pursuant to Article IV of these by-laws with power for the purpose
shall so determine, maintain one or more transfer offices or agencies, each in
charge of a transfer agent designated by the Board of Directors or by such
Committee, where the shares of the capital stock of the Corporation shall be
directly transferable, and also one or more registry offices, each in charge of
a registrar designated by the Board of Directors or by such Committee, where
such shares of stock shall be registered, and no certificate for shares of the
capital stock of the Corporation, in respect of which a registrar and transfer
agent shall have been designated, shall be valid unless countersigned by such
transfer agent and registered by such registrar. A firm may act at the same time
as both transfer agent and registrar of the Corporation. The Board of Directors
or any such Committee may also make such additional rules and regulations as it
may deem expedient concerning the issue, transfer and registration of
uncertificated shares or certificates for shares of the capital stock of the
Corporation.
SECTION 6. Fixing Record Date. (a) In order that the
Corporation may determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, the Board of Directors
may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the Board of Directors, and
which record date shall not be more than sixty nor less than ten days before the
date of such meeting. If no record date is fixed by the Board of Directors, the
record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held. A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
(b) In order that the Corporation may determine the
stockholders entitled to receive payment of any dividend or other distribution
or allotment of any rights or the stockholders entitled to exercise any rights
in respect of any change, conversion or exchange of stock, or for the purpose of
any other lawful action, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted, and which record date shall be not more than sixty days
prior to such action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of business
on the day on which the board of directors adopts the resolution relating
thereto.
SECTION 7. Examination of Books by Stockholders. The Board of
Directors or any Committee constituted pursuant to Article IV of these by-laws
with power for the purpose shall, subject to the laws of the State of Delaware,
have power to determine, from time to time, whether and to what extent and under
what conditions and regulations the accounts and books of the Corporation, or
any of them, shall be open to the inspection of the stockholders; and no
stockholder shall have any right to inspect any account, book or document of the
Corporation, except as conferred by the laws of the State of Delaware, unless
and until authorized so to do by resolution of the Board of Directors or any
Committee constituted pursuant to Article IV of these by-laws with power for the
purpose or of the stockholders of the Corporation.
ARTICLE VIII.
DIVIDENDS, SURPLUS, ETC.
Subject to the provisions of the Restated Certificate of
Incorporation and any restrictions imposed by statute, the Board of Directors
may declare dividends from the surplus of the Corporation or from the net
profits arising from its business, whenever, and in such amounts as, in its
opinion, the condition of the affairs of the Corporation shall render advisable.
If the date appointed for the payment of any dividend shall in any year fall on
a legal holiday then the dividend payable on such date shall be payable on the
next succeeding business day. The Board of Directors in its discretion may from
time to time set aside from such surplus or net profits such sum or sums as it,
in its absolute discretion, may think proper as a working capital or as a
reserve fund to meet contingencies, or for the purpose of maintaining or
increasing the property or business of the Corporation, or for any other purpose
it may think conducive to the best interests of the Corporation. All such
surplus or net profits, until actually declared in dividends, or used and
applied as aforesaid, shall be deemed to have been so set aside by the Board for
one or more of said purposes.
ARTICLE IX.
SEAL.
The corporate seal of the Corporation shall consist of a
metallic stamp, circular in form, bearing in its center the figures and word
"1929, Delaware", and at the outer edge the name of the Corporation.
ARTICLE X.
FISCAL YEAR.
The fiscal year of the Corporation shall begin on the first
day of January in each year.
ARTICLE XI.
AMENDMENTS.
All by-laws of the Corporation shall be subject to alteration
or repeal, and new by-laws not inconsistent with any provision of the Restated
Certificate of Incorporation of the Corporation or any provision of law, may be
made, by the Board of Directors at any regular or special meeting or by the
stockholders of the Corporation in accordance with these by-laws.
Notwithstanding anything else contained in these by-laws to the contrary, the
affirmative vote of the holders of record of at least 66 2/3% of the combined
voting power of all the outstanding stock of the Corporation entitled to vote in
respect thereof, voting together as a single class, shall be required in order
for the stockholders to adopt, alter, amend, rescind or repeal any by-laws of
the Corporation.
Exhibit C - Form of Stock Certificate
Number Shares
B
CLASS B COMMON CLASS B COMMON
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
CURTISS-WRIGHT CORPORATION
This certificate is transferable in New York, NY and Ridgefield Park, NJ
CUSIP 231561 40 8
See Reverse For Certain Definitions
This Certifies that _____________________________ is the owner of
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FULL-PAID AND NON-ASSESSABLE SHARES OF THE PAR VALUE OF $1.00 EACH OF THE CLASS
B COMMON STOCK of Curtiss-Wright Corporation (hereinafter referred to as the
"Corporation") transferable on the books of the Corporation by the holder hereof
in person or by duly authorized attorney upon surrender of this certificate
properly endorsed. This certificate and the shares represented hereby are issued
and shall be held subject to all of the provisions of the Certificate of
Incorporation, as amended, of the Corporation (a copy of which certificate is on
file with the Transfer Agent), to all of which the holder by acceptance hereof
assents. This certificate is not valid until countersigned by the Transfer Agent
and registered by the Registrar.
Witness the seal of the Corporation and the signatures of its duly
authorized officers.
Dated:
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Secretary Chairman and Chief Executive Officer
Countersigned and registered:
MELLON INVESTOR SERVICES LLC
Transfer Agent and Registrar,
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Authorized Signature.
[REVERSE]
This certificate also evidences and entitles the holder hereof to certain rights
as set forth in an Amended and Restated Rights Agreement between Curtiss-Wright
Corporation and Mellon Investor Services LLC (f/k/a ChaseMellon Shareholder
Services, L.L.C.), as Rights Agent, dated as of November 6, 2000, as amended and
restated as of November [ ], 2001, and as further amended from time to time (the
"Rights Agreement"), the terms of which are hereby incorporated herein by
reference and a copy of which is on file at the principal executive offices of
Curtiss-Wright Corporation. Under certain circumstances, as set forth in the
Rights Agreement, such Rights will be evidenced by separate certificates and
will no longer be evidenced by this certificate. Curtiss-Wright Corporation will
mail to the holder of this certificate a copy of the Rights Agreement without
charge after receipt of a written request therefor. Under certain circumstances,
as set forth in the Rights Agreement, Rights owned by or transferred to any
Person who becomes an Acquiring Person (as defined in the Rights Agreement) and
certain transferees thereof will become null and void and will no longer be
transferable.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM-- as tenants in common UNIF GIFT MIN ACT-- _______Custodian_________
(Cust) (Minor)
TEN ENT -- as tenants by the entireties under Uniform Gifts to Minors
JT TEN -- as joint tenants with right of Act _________
survivorship and not as tenants (State)
in common
Additional abbreviations may also be used though not in the above list.
CURTISS-WRIGHT CORPORATION
--------------------------
CURTISS-WRIGHT CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH
STOCKHOLDER WHO SO REQUESTS A STATEMENT OF THE POWERS, DESIGNATIONS, PREFERENCES
AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF
STOCK WHICH CURTISS-WRIGHT CORPORATION IS AUTHORIZED TO ISSUE AND THE
QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS.
ANY SUCH REQUEST IS TO BE ADDRESSED TO THE SECRETARY OF CURTISS-WRIGHT
CORPORATION OR TO THE TRANSFER AGENT NAMED ON THE FACE OF THIS CERTIFICATE.
For value received, ______________________ hereby sell, assign and
transfer unto _________________ (Please Insert Social Security or Other
Identifying Number of Assignee)
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Please Print or Typewrite Name and Address Including Postal Zip Code of
Assignee.
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___________________________________________________ Shares of the capital stock
represented by the within Certificate, and do hereby irrevocably constitute and
appoint ________________________________________________________________________
____________Attorney to transfer the said stock on the books of the within-named
Corporation with the full power of substitution in the premises.
Dated, _________________________
NOTICE:The signature(s) to this assignment must
correspond with the name(s) as written upon the
face of the certificate in every particular,
without alteration or enlargement or any change
whatever.
SIGNATURE(S) GUARANTEED:
_________________________________________________ The
signature(s) should be guaranteed by an eligible
guarantor institution (banks, stockbrokers, savings
and loan associations and credit unions with
membership in an approved signature guarantee
medallion program), pursuant to S.E.C. Rule 17Ad-15.