APPENDIX B
CERTIFICATE OF INCORPORATION
OF
KUHLMAN CORPORATION
First: The name of the corporation is Kuhlman Corporation
----- (the "Corporation").
Second: The address of the registered office of the
------ Corporation in the State of Delaware is Corporation
Trust Center, 1209 Orange Street in the City of Wilmington,
County of New Castle. The name of the registered agent of the
Corporation at that address is The Corporation Trust Company.
Third: The purpose of the Corporation is to engage in any
----- lawful act or activity for which corporations may be
organized under the Delaware General Corporation Law.
Fourth : The total number of shares of all classes of stock
------ which the Corporation shall have authority to issue
is as follows:
(A) 2,000,000 shares of Preferred Stock of the par value
of $1.00 per share (the "Preferred Stock"); and
(B) 10,000,000 shares of Common Stock of the par value
of $1.00 per share (the "Common Stock").
The designations, voting powers, preferences and relative,
participating, optional or other special rights, and
qualifications, limitations or restrictions of the above classes
of stock and other general provisions relating thereto shall be
as follows:
PART I
PREFERRED STOCK
1. The Board of Directors is expressly authorized at any
time, and from time to time, to provide for the issuance of
shares of Preferred Stock in one or more series, and for such
consideration or considerations as the Board of Directors may
determine, with such voting powers, full or limited, or without
voting powers, and with such designations, preferences and
relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, as shall be
stated and expressed in the resolution or resolutions providing
for the issue thereof adopted by the Board of Directors, all
except as otherwise required by law or this Certificate of
Incorporation, and including but without limiting the generality
of the foregoing, the following:
(a) The distinctive designation and number of shares
comprising such series, which number may (except where otherwise
provided by the Board of Directors in creating such series) be
increased or decreased (but not below the number of shares then
outstanding) from time to time by action of the Board of
Directors.
(b) The dividend rate or rates on the shares of such
series and the relation which such dividends shall bear to the
dividends payable on any other class of capital stock or on any
other series of Preferred Stock, the terms and conditions upon
which and the periods in respect of which dividends shall be
payable, whether and upon what conditions such dividends shall be
cumulative and, if cumulative, the date or dates from which
dividends shall accumulate.
(c) Whether the shares of such series shall be
redeemable, and, if redeemable, whether redeemable for cash,
property or rights, including securities of any other
corporation, at the option of either the holder or the
Corporation or upon the happening of a specified event, the
limitations and restrictions with respect to such redemption, the
time or times when, the price or prices or rate or rates at
which, the adjustments with which and the manner in which such
shares shall be redeemable, including the manner of selecting
shares of such series for redemption if less than all shares are
to be redeemed.
(d) The rights to which the holders of shares of such
series shall be entitled, and the preferences, if any, over any
other series (or of any other series over such series), upon the
voluntary or involuntary liquidation, dissolution, distribution
or winding up of the Corporation, which rights may vary depending
on whether such liquidation, dissolution, distribution or winding
up is voluntary or involuntary, and, if voluntary, may vary at
different dates.
(e) Whether the shares of such series shall be subject
to the operation of a purchase, retirement or sinking fund, and,
if so, whether and upon what conditions such purchase, retirement
or sinking fund shall be cumulative or noncumulative, the extent
to which and the manner in which such fund shall be applied to
the purchase or redemption of the shares of such series for
retirement or to other corporate purposes and the terms and
provisions relative to the operation thereof.
(f) Whether the shares of such series shall be
convertible into or exchangeable for shares of any other class or
of any other series of any class of capital stock or other
securities of the Corporation, or the securities of any other
corporation or entity, and, if so convertible or exchangeable,
the price or prices or the rate or rates of conversion or
exchange and the method, if any, of adjusting the same, and any
other terms and conditions of such conversion or exchange.
(g) The voting powers, full and/or limited, if any, of
the shares of such series, and whether and under what conditions
the shares of such series (alone or together with the shares of
one or more other series) shall be entitled to vote separately
as a single class, upon any merger or consolidation or other
transaction of the Corporation, or upon any other matter,
including without limitation the election of one or more
additional directors of the Corporation in case of dividend
arrearages or other specified events.
(h) Whether the issuance of any additional shares of
such series, or of any shares of any other series, shall be
subject to restrictions as to issuance, or as to the powers,
preferences or rights of any such other series.
(i) Any other preferences, privileges and powers and
relative, participating, optional or other special rights, and
qualifications, limitations or restrictions of such series, as
the Board of Directors may deem advisable and as shall not be
inconsistent with the provisions of this Certificate of
Incorporation.
2. All shares of Preferred Stock of any one series shall be
of equal rank and identical in all respects, except that shares
of any one series issued at different times may differ as to the
dates from which dividends thereon, if cumulative, shall be
cumulative.
PART II
SERIES A PREFERRED STOCK
1. Designation and Amount. There is hereby established a
----------------------- series of Preferred Stock of
the Corporation designated as "Junior Participating Preferred
Stock, Series A" (the "Series A Preferred") and the number of
shares constituting such series shall be 75,000.
2. Dividends and Distributions.
----------------------------
(A) Subject to the prior and superior rights of the
holders of any series of Preferred Stock ranking prior
and superior to the shares of Series A Preferred with
respect to dividends, the holders of shares of Series A
Preferred, in preference to the holders of Common Stock
of the Corporation and of any other shares ranking
junior as to dividends to the Series A Preferred, shall
be entitled to receive, when, as and if declared by the
Board of Directors out of funds legally available for
the purpose, quarterly dividends payable in cash on the
first day of March, June, September and December in each
year (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the
first quarterly Dividend Payment Date after the first
issuance of a share or fraction of a share of Series A
Preferred, in an amount per share (rounded to the
nearest cent) equal to the greater of (a) $10,00 or (b)
subject to the provision for adjustment hereinafter set
forth, 100 times the aggregate per share amount of all
cash dividends, and 100 times the aggregate per share
amount (payable in kind) of all non-cash dividends or
other distributions other than a dividend payable in
shares of Common Stock or a subdivision of the
outstanding shares of Common Stock (by reclassification
or otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date
or, with respect to the first Quarterly Dividend Payment
Date, since the first issuance of any share or fraction
of a share of Series A Preferred. In the event the
Corporation shall at any time declare or pay any
dividend on Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or
consolidation of the outstanding Common Stock (by
reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each
such case the amount to which holders of shares of
Series A Preferred were entitled immediately prior to
such event under clause (b) of the preceding sentence
shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares
of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to
such event.
(B) The Corporation shall declare a dividend or
distribution on the Series A Preferred as provided in
paragraph (A) of this Section immediately after it
declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common
Stock); provided that, in the event no dividend or
distribution shall have been declared on the Common
Stock during the period between any Quarterly Dividend
Payment Date, and the next subsequent Quarterly Dividend
Payment Date, a dividend of $10.00 per share on the
Series A Preferred shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be
cumulative on outstanding shares of Series A Preferred
from the Quarterly Dividend Payment Date next preceding
the date of issue of such shares of Series A Preferred,
unless the date of issue of such shares is prior to the
record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin
to accrue and be cumulative from the date of issue of
such shares, or unless the date of issue is a Quarterly
Dividend Payment Date or is a date after the record date
for the determination of holders of shares of Series A
Preferred entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date, in either
of which events such dividends shall begin to accrue and
be cumulative from such Quarterly Dividend Payment Date,
Accrued but unpaid dividends shall not bear interest.
Dividends paid on the shares of Series A Preferred in an
amount less than the total amount of such dividends at
the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all
such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of
holders of shares of Series A Preferred entitled to
receive payment of a dividend or distribution declared
thereon, which record date shall not be more than 60
days prior to the date fixed for the payment thereof.
3. Voting Rights. The holders of shares of Series A
-------------- Preferred shall have the following
voting rights:
(A) Each one-hundredth of a share of Series A
Preferred shall entitle the holder thereof to one vote
on all matters submitted to a vote of the stockholders
of the Corporation.
(B) Except as otherwise provided herein or by law,
the Holders of shares of Series A Preferred and the
holders of shares of Common Stock shall vote together as
one class on all matters submitted to a vote of
stockholders of the Corporation.
4. Certain Restrictions.
---------------------
(A) Whenever quarterly dividends or other dividends
or distributions payable on the Series A Preferred as
provided in Section 2 are in arrears, thereafter and
until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of
Series A Preferred outstanding shall have been paid in
full, the Corporation shall not:
(i) declare or pay dividends on, or make any
other distributions on, any shares ranking junior
(either as to dividends or upon liquidation,
dissolution or winding up) to the Series A
Preferred;
(ii) declare or pay dividends on or make any
other distributions On any shares ranking on a
parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A
Preferred, except dividends paid ratably on the
Series A Preferred and all such parity stock on
which dividends are payable or in arrears in
proportion to the total amounts to which the holders
of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire
for consideration shares ranking junior (either as
to dividends or upon liquidation, dissolution or
winding up) to the Series A Preferred, provided that
the Corporation may at any time redeem, purchase or
otherwise acquire any such junior shares in exchange
for any shares of the Corporation ranking junior
(either as to dividends or upon dissolution,
liquidation or winding up) to the Series A
Preferred; or
(iv) purchase or otherwise acquire for
consideration any shares of Series A Preferred, or
any shares ranking on a parity with the Series A
Preferred, except in accordance with a purchase
offer made in writing or by publication (as
determined by the Board of Directors) to all holders
of such shares upon such terms as the Board of
Directors, after consideration of the respective
annual dividend rates and other relative rights and
preferences of the respective series and classes,
shall determine in good faith will result in fair
and equitable treatment among the respective series
or classes.
(B) The Corporation shall not permit any subsidiary
of the Corporation to purchase or otherwise acquire for
consideration any shares of the Corporation unless the
Corporation could, under paragraph (A) of this Section
4, purchase or otherwise acquire such shares at such
time and in such manner.
5. Reacquired Shares. Any shares of Series A Preferred
------------------ purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and
cancelled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but
unissued shares of Preferred Stock and may be reissued as part of
a new series of Preferred Stock to be created by resolution or
resolutions of the Board of Directors, subject to the conditions
and restrictions on issuance set forth herein.
6. Liquidation, Dissolution or Winding Up. Upon any
--------------------------------------- liquidation,
dissolution or winding up of the Corporation, no distribution
shall be made (1) to the holders of shares ranking junior (either
as to dividends or upon liquidation, dissolution or winding up)
to the Series A Preferred unless, prior thereto, the holders of
shares of Series A Preferred shall have received $100.00 per
share, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of
such payment, provided that the holders of shares of Series A
Preferred shall be entitled to receive an aggregate amount per
share, subject to the provision for adjustment hereinafter set
forth, equal to 100 times the aggregate amount to be distributed
per share to holders of Common Stock, or (2) to the holders of
shares ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A
Preferred, except distributions made ratably on the Series A
Preferred and all other such parity stock in proportion to the
total amounts to which the holders of all such shares are
entitled upon such liquidation, dissolution or winding up. In
the event the Corporation shall at any time declare or pay any
dividend on Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in Common Stock) into a
greater or lesser number of shares of Common Stock, then in each
such case the aggregate amount to which holders of shares of
Series A Preferred were entitled immediately prior to such event
under the proviso in clause (1) of the preceding sentence shall
be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
7. Consolidation, Merger, etc. In case the Corporation
--------------------------- shall enter into any
consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into
other shares or securities, cash and/or any other property, then
in any such case the shares of Series A Preferred then
outstanding shall at the same time be similarly exchanged or
changed in an amount per share (subject to the provision for
adjustment hereinafter set forth) equal to 100 times the
aggregate amount of shares, securities, cash and/or any other
property (payable in kind), as the case may be, into which or for
which each share of Common Stock is changed or exchanged. In the
event the Corporation shall at any time declare or pay any
dividend on Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the
outstanding Common Stock (by reclassification or otherwise) into
a greater or lesser number of shares of Common Stock, then in
each such case the amount set forth in the preceding sentence
with respect to the exchange or change of shares of Series A
Preferred shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
8. No Redemption. The shares of Series A Preferred shall
-------------- not be redeemable. However, the
Corporation may acquire shares of Series A Preferred in any
manner permitted by law, the provisions hereof and the
Certificate of Incorporation of the Corporation.
9. Rank. The Series A Preferred shall rank junior to all
----- other series of the Corporation's Preferred Stock
as to the payment of dividends and the distribution of assets,
unless the terms of such other series specify to the contrary,
10. Amendment. The Certificate of Incorporation of the
---------- Corporation shall not be amended in any manner
which would materially alter or change the powers, preferences or
special rights of the Series A Preferred so as to affect them
adversely without the affirmative vote of the holders of two-
thirds of the outstanding shares of Series A Preferred, voting
together as a single class.
PART III
COMMON STOCK
1. Except as otherwise required by law or by this
Certificate of Incorporation, each holder of Common Stock shall
have one vote for each share of Common Stock held by a holder on
all matters voted upon by the holders of Common Stock.
2. Subject to the preferential dividend rights, if any,
applicable to shares of Preferred Stock and subject to applicable
requirements, if any, with respect to the setting aside of sums
for purchase, retirement or sinking funds for Preferred Stock,
the holders of Common Stock shall be entitled to receive, to the
extent permitted by law, such dividends as may be declared from
time to time by the Board of Directors.
3. In the event of any liquidation, dissolution or winding
up of the Corporation, the holders of Common Stock shall be
entitled, after payment or provision for payment of the debts and
other liabilities of the Corporation and the amounts to which the
holders of any Preferred Stock shall be entitled, to share
ratably in the remaining net assets of the Corporation.
PART IV
GENERAL PROVISIONS
1. Subject to the power of the Board of Directors to
provide to the contrary with respect to any one or more series of
Preferred Stock at any time authorized, no holder of stock of any
class of the Corporation shall be entitled as a matter of right
to purchase or subscribe for any part of any unissued stock of
any class, or of any additional stock of any class of capital
stock of the Corporation, or of the bonds, certificates of
indebtedness debentures, or other securities, whether or not
convertible into other securities, but any such stock or other
securities may be issued and disposed of pursuant to resolution
by the Board of Directors to such persons, firms, corporations or
associations and upon such terms and for such consideration (not
less than the par value or stated value thereof) as the Board of
Directors in the exercise of its discretion may determine and as
may be permitted by law without action by the stockholders. The
Board of Directors may provide for payment therefor to be
received by the Corporation in cash, personal property, real
property (or leases thereof) or services. Any and all shares of
stock so issued for which the consideration so fixed has been
paid or delivered, shall be deemed fully paid and not liable to
any further call or assessment.
2. Shares of any class or series of capital stock redeemed,
converted, exchanged, purchased, retired or surrendered to the
Corporation, or which have been issued and reacquired in any
manner may, upon compliance with any applicable provisions of the
Delaware General Corporation Law, be given the status of
authorized and unissued shares of the same class.
Fifth: The following provisions are inserted for the
----- management of the business and the conduct of the
affairs of the Corporation, and for further definition,
limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
(A) The business and affairs of the Corporation
shall be managed by or under the direction of the Board
of Directors. In addition to the powers and authority
expressly conferred upon them by statute or by this
Certificate of Incorporation or the by-laws of the
Corporation, the directors are hereby empowered to
exercise all such powers and do all such acts and things
as may be exercised or done by the Corporation.
(B) The directors of the Corporation need not be
elected by written ballot unless the by-laws so provide.
(C) Any action required or permitted to be taken by
the stockholders of the Corporation must be effected at
a duly called annual or special meeting of stockholders
of the Corporation and may not be effected by any
consent in writing by such stockholders.
(D) Special meetings of stockholders of the
Corporation may be called only by the Chief Executive
Officer or by the Board of Directors acting pursuant to
a resolution adopted by a majority of the Whole Board.
For purposes of this Certificate of Incorporation, the
term "Whole Board" shall mean the total number of
authorized directors whether or not there exist any
vacancies in previously authorized directorships.
Sixth: The Board of Directors is expressly empowered to
----- adopt, amend or repeal by-laws of the Corporation.
Any adoption, amendment or repeal of the by-laws of the Corporation
by the Board of Directors shall require the approval of a
majority of the Whole Board. The stockholders shall also have
power to adopt, amend or repeal the by-laws of the Corporation;
provided, however, that, in addition to any vote of the holders
of any class or series of stock of the Corporation required by
law or by this Certificate of Incorporation, the affirmative vote
of the holders of at least seventy percent (70%) of the voting
power of all of the outstanding shares of stock of the
Corporation entitled to vote generally in elections of directors,
voting together as a single class, shall be required to adopt,
amend or repeal any provision of the by-laws of the Corporation.
Seventh: A director of the Corporation shall not be
------- personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as
a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived
an improper personal benefit. If the Delaware General
Corporation Law is amended to authorize corporate action further
eliminating or limiting the personal liability of directors, then
the liability of a director of the Corporation shall be elimi-
nated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any
right or protection of a director of the Corporation existing at
the time of such repeal or modification.
Eighth: 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 juris-
diction 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.
Ninth: Subject to the by-laws of the Corporation, the
----- Corporation shall, to the full extent permitted by
Section 145 of the Delaware General Corporation Law, as amended
from time to time, indemnify all persons whom it may indemnify
pursuant thereto.
Tenth: The Corporation reserves the right to amend or
----- repeal any provision contained in this Certificate of
Incorporation in the manner prescribed by the laws of the State
of Delaware and all rights conferred upon stockholders are
granted subject to this reservation.
Eleventh: The incorporator is Kuhlman Corporation, a
-------- Michigan corporation, whose mailing address is
2343 Alexandria Drive, Suite 200, Lexington, Kentucky 40504.
THE UNDERSIGNED incorporator hereby acknowledges that this
Certificate of Incorporation is its act and deed and that the
facts herein stated are true.
KUHLMAN CORPORATION,
a Michigan corporation
Dated: March 1, 1993
By: /s/ ROBERT S. JEPSON, JR.
--------------------------------
Robert S. Jepson, Jr.
President and Chief
Financial Officer