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0000950117-05-002097.txt : 20050524
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20050524171932
ACCESSION NUMBER: 0000950117-05-002097
CONFORMED SUBMISSION TYPE: 8-A12B/A
PUBLIC DOCUMENT COUNT: 4
FILED AS OF DATE: 20050524
DATE AS OF CHANGE: 20050524
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: CURTISS WRIGHT CORP
CENTRAL INDEX KEY: 0000026324
STANDARD INDUSTRIAL CLASSIFICATION: MISC INDUSTRIAL & COMMERCIAL MACHINERY & EQUIPMENT [3590]
IRS NUMBER: 130612970
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: 8-A12B/A
SEC ACT: 1934 Act
SEC FILE NUMBER: 001-00134
FILM NUMBER: 05854963
BUSINESS ADDRESS:
STREET 1: 1200 WALL ST W
CITY: LYNDHURST
STATE: NJ
ZIP: 07071
BUSINESS PHONE: 2018968400
MAIL ADDRESS:
STREET 1: 1200 WALL ST W
CITY: LYNDHURST
STATE: NJ
ZIP: 07071
8-A12B/A
1
a39904.htm
CURTISS-WRIGHT CORPORATION
Untitled Document
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
________________
FORM
8-A/A
Amendment
No. 1
FOR
REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT
TO SECTION 12(b) OR (g) OF THE
SECURITIES
EXCHANGE ACT OF 1934
CURTISS-WRIGHT
CORPORATION
(Exact
name of registrant as specified in its charter)
Delaware |
|
1-134 |
|
13-0612970 |
(State
or Other Jurisdiction of Incorporation) |
|
(Commission
File Number) |
|
(IRS
Employer Identification No.) |
|
|
|
|
|
4
Becker Farm Road
Roseland, New Jersey |
|
07068 |
(Address
of principal executive offices)
|
|
(Zip
Code)
|
|
|
|
|
|
|
Securities
to be registered pursuant to Section 12(b) of the Act:
Title
of each class to be so registered |
Name
of each exchange on which each class is to be registered |
|
|
Common
Stock, $1.00 Par Value |
New
York Stock Exchange |
If
this form relates to the registration of a class of securities pursuant to Section 12(b) of
the Exchange Act and is effective pursuant to: General Instruction A.(c), please
check the following box. T
If
this form relates to the registration of a class of securities pursuant to Section 12(g) of
the Exchange Act and is effective pursuant to: General Instruction A.(d), please
check the following box. ¨
Securities
Act registration statement file number to which this form relates: ________
(If applicable)
Securities
to be registered pursuant to Section 12(g) of the Act:
(None)
Item
1. Description of Registrants Securities to be Registered
The
description of the Common Stock (as defined below) registered hereunder is set
forth under the heading Description of the Amended and Restated Certificate
of Incorporation, By-laws and the New Common Stock in the Definitive Proxy
Statement (the Proxy Statement)
filed by Curtiss-Wright Corporation, a Delaware corporation (the Company),
with the Securities and Exchange Commission on April 5, 2005. Such description
is hereby incorporated herein by reference.
The
Proxy Statement was used by the Company to solicit proxies in connection with
the annual meeting of stockholders held on May 19, 2005 to vote on the merger
and amendments to the Restated Certificate of Incorporation as contemplated
by the Agreement and Plan of Merger and Recapitalization, dated as of February
1, 2005 (the Merger Agreement),
by and between the Company and CW Merger Sub, Inc., a Delaware corporation and
a wholly owned subsidiary of the Company (Merger
Sub). Pursuant to the terms of the Merger Agreement,
(i) Merger Sub will merge with and into the Company (the Merger)
upon the filing of a certificate of merger with the Secretary of State of the
State of Delaware (the Effective Time)
and (ii) as of the Effective Time of the Merger all the issued and outstanding
shares of common stock, par value $1.00 per share and Class B common stock,
par value $1.00 per share, will be converted into shares of Common Stock, par
value $1.00 per share (the Common Stock),
of the Company. The stockholders of the Company have adopted the Merger Agreement
and the Restated Certificate of Incorporation.
The
description of the Common Stock and related rights is qualified in its entirety
by reference to the Restated Certificate of Incorporation and the Amended and
Restated By-laws, which are filed as exhibits hereto and are incorporated herein
by reference.
Item
2. Exhibits
3.1 |
Restated
Certificate of Incorporation of the Company (as approved at the Annual
Meeting). |
3.2 |
Amended
and Restated By-laws of the Company (to become effective at the effective
time of the Merger). |
4.1 |
Form
of stock certificate for Common Stock. |
|
4.2 |
Second
Amended and Restated Rights Agreement, dated as of May 24, 2005, between
Curtiss-Wright Corporation and American Stock Transfer & Trust Company
(incorporated by reference to Exhibit 4.1 to Registrants Registration
Statement on Form 8-A/A filed May 24, 2005). |
2
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:
May 24, 2005 |
By:
/s/ Glenn E. Tynan
Name: Glenn
E. Tynan
Title: Vice
President Finance, Treasurer and Chief Financial Officer |
EXHIBIT
INDEX
Exhibit |
Description |
|
|
3.1 |
Restated
Certificate of Incorporation of the Company (as approved at the Annual
Meeting). |
|
3.2 |
Proposed
Amended and Restated By-laws of the Company (to become effective at the
effective time of the Merger). |
|
4.1 |
Form
of stock certificate for Common Stock. |
|
|
4.2 |
Second
Amended and Restated Rights Agreement, dated as of May 24, 2005, between
Curtiss-Wright Corporation and American Stock Transfer & Trust Company
(incorporated by reference to Exhibit 4.1 to Registrants Registration
Statement on Form 8-A/A filed May 24, 2005). |
|
|
|
|
|
|
EX-3
2
ex3-1.htm
EXHIBIT 3.1
Untitled Document
Exhibit
3.1
RESTATED
CERTIFICATE
OF INCORPORATION
OF
CURTISS-WRIGHT
CORPORATION
1. The
name of the Corporation is CURTISS-WRIGHT CORPORATION.
2. The
registered office of the Corporation is The Corporation Trust Company, Corporation
Trust Center, 1209 Orange Street, in the City of Wilmington and County of New
Castle in the State of Delaware, 19801. 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 total number of shares which the Corporation
is authorized to issue is One Hundred Million Six Hundred Fifty Thousand (100,650,000)
shares, of which One Hundred Million (100,000,000) shares shall be designated
Common Stock, par value $1.00 per share (the Common Stock) and Six
Hundred Fifty Thousand (650,000) shares shall be designated Preferred Stock,
par value $0.01 per share (the Preferred Stock). The authorized
number of shares of any 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 shall be subject to the prior
rights of the Preferred Stock, as expressed herein or in a certificate of designation
providing for the issue of such stock adopted by the Board of Directors in accordance
with the provisions hereof.
(a) Voting.
Each holder of Common Stock shall be entitled to one vote for each share of
Common Stock held of record on all matters on which the holders of shares of
Common Stock are entitled to vote. Except as otherwise required by law or provided
in a certificate of designation with respect to any series of Preferred Stock,
the holders of shares of Common Stock will possess all voting power, and holders
of shares of Preferred Stock shall not be entitled to vote or to receive notice
of any meeting of stockholders at which they are not entitled to vote.
(b) Dividends.
Subject to the rights and preferences of any outstanding series of Preferred
Stock, the holders of the Common Stock shall be entitled to receive dividends
1
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.
(c) Liquidation.
Subject to the rights of any series of Preferred Stock, in the event of any
liquidation, dissolution or winding up, whether voluntary or involuntary, of
the Corporation, all assets and funds of the Corporation available for distribution
to stockholders shall be distributed and paid to the holders of the Common Stock
pro rata according to the number of shares respectively held by them.
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) Any
vacancy in the office of a director created by death, resignation, retirement,
disqualification, removal from office or other cause, and any newly-created
directorships resulting from an increase in the number of directors, may be
filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director. Any director elected in accordance with the
preceding sentence shall hold office until the next annual meeting of stockholders
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.
In case all the directors shall die or resign or be removed or disqualified,
any officer or any stockholder having voting power may call a special meeting
of the stockholders, upon notice given as herein provided for meetings of the
stockholders, at which directors for the unexpired term may be elected.
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
2
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.
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 persons 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
3
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. Subject
to Article 7(b) hereof and 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 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 Corporation 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
4
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.
5
EX-3
3
ex3-2.htm
EXHIBIT 3.2
Untitled Document
Exhibit
3.2
AMENDED
AND RESTATED
BYLAWS
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
1
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, if
any, 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 by applicable
law.
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, or on a
reasonably accessible electronic network if the meeting is to be held solely
by means of remote communication, 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 lists 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 voting power 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
2
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 of the outstanding voting power 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 Corporations
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 stockholders 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 years 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
3
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 stockholders notice as described above.
Such stockholders 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 persons 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 (1) the name and address
of such stockholder, as they appear on the Corporations books, and of
such beneficial owner, (2) 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, (3) 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 (4) 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 Corporations
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 applicable rules and regulations promulgated under the Exchange Act and
such stockholders 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
4
announcement
by the Corporation naming the nominees for the additional directorships at least
one hundred days prior to the first anniversary of the preceding years
annual meeting, and a stockholders 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 Corporations 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 Corporations 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 Corporations notice of meeting, if the stockholders
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 stockholders notice as described above.
(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 stockholders nominee or
5
proposal
in compliance with such stockholders 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. For purposes of this
Section 8, to be considered a qualified representative of the stockholder, a
person must be authorized by a writing executed by such stockholder or an electronic
transmission delivered by such stockholder to act for such stockholder as proxy
at the meeting of stockholders and such person must produce such writing or
electronic transmission, or a reliable reproduction of the writing or electronic
transmission, at the meeting of stockholders.
(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 Corporations proxy statement
pursuant to applicable rules and regulations promulgated 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 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,
the rules and regulations of any
6
stock
exchange applicable to the Corporation or any regulation applicable to the Corporation
or its securities, and except as otherwise provided in the Restated Certificate
of Incorporation) shall be decided by the vote of a majority of the voting power
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
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.
7
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
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 does not object at the beginning of the meeting to the transaction of business
because the meeting is not lawfully called or convened; and, except as otherwise
provided by law, any
8
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 and does
not object at the beginning of the meeting to the transaction of business because
the meeting is not lawfully called or convened.
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.
(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.
9
SECTION
16. Telephonic Meeting.
Unless restricted by the Restated 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
10
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
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.
11
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 stockholders 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
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,
12
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
13
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.
14
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
15
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.
16
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
17
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
18
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
19
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.
20
EX-4
4
ex4-1.htm
EXHIBIT 4.1
Exhibit 4.1
Number |
|
Shares |
|
|
|
COMMON |
|
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
_________________________
FULL-PAID AND NON-ASSESSABLE SHARES OF THE PAR VALUE OF $1.00 EACH OF THE 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:
__________________ |
_______________________________ |
|
Secretary |
Chairman and Chief Executive Officer |
|
|
|
|
|
Countersigned and registered:
AMERICAN STOCK TRANSFER &
TRUST COMPANY
Transfer Agent and Registrar,
_____________________________
Authorized Signature.
[REVERSE]
This
certificate also evidences and entitles the holder hereof to certain rights
as set forth in the Second Amended and Restated Rights Agreement between
Curtiss-Wright Corporation and American Stock Transfer & Trust Company,
as successor to Mellon Investor Services LLC (f/k/a
1
ChaseMellon
Shareholder Services, LLC), as Rights Agent, dated as of November 6, 2000,
as amended and restated as of November 20, 2001, as further amended as of
February 1, 2002, as further amended and restated as of May 24, 2005, 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)
Please
Print or Typewrite Name and Address Including Postal Zip Code of Assignee.
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. |
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