Exhibit 3
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CURTISS-WRIGHT CORPORATION
The original Certificate of Incorporation of Curtiss-Wright Corporation was
filed with the Secretary of State of the State of Delaware on August 9, 1929.
This Restated Certificate of Incorporation, which further amends and restates
the certificate of incorporation as heretofore amended and restated, was duly
adopted in accordance with the provisions of Sections 242 and 245 of the
General Corporation Law of the State of Delaware ("DGCL").
1. The name of the Corporation is CURTISS-WRIGHT CORPORATION.
2. The registered office of the Corporation in the State of Delaware is
1209 Orange Street, in the City of Wilmington and County of New Castle. The
registered agent at said address is the Corporation Trust Company.
3. The nature of the business and purposes to be conducted and promoted are
to engage in any lawful act or activity for which corporations may be organized
under the DGCL.
4. Authorized Stock. The Corporation is authorized to issue three classes
of stock. The total number of shares which the Corporation is authorized to
issue is Forty-Five Million Six Hundred Fifty Thousand (45,650,000) shares, of
which Thirty Three Million Seven Hundred Fifty Thousand (33,750,000) shares
shall be designated Common Stock, par value $1 per share (the "Common Stock"),
Eleven Million Two Hundred Fifty Thousand (11,250,000) shares shall be
designated Class B Common Stock, par value $1 per share (the "Class B Common
Stock" and, together with the Common Stock, the "Corporation Common Stock"), and
Six Hundred Fifty Thousand (650,000) shares shall be designated Preferred Stock,
par value $.01 per share (the "Preferred Stock"). The authorized number of
shares of any such class or classes of stock may be increased or decreased by
the affirmative vote of the holders of a majority of the stock of the
Corporation entitled to vote irrespective of Section 242(b)(2) of the DGCL or
any successor provision thereto.
5. Preferred Stock. The Board of Directors of the Corporation is hereby
authorized from time to time to provide by resolution for the issuance of shares
of Preferred Stock in one or more series and to determine with respect to each
such series the designation of and the number of shares comprising such series
and the powers, preferences and relative, participating, optional or other
rights, and the qualifications, limitations or restrictions, of such series.
6. Common Stock. The Common Stock and the Class B Common Stock shall be
identical in all respects, except as otherwise provided by law or expressly
provided herein. The relative powers, preferences, rights, qualifications,
limitations and restrictions of the shares of Common Stock and Class B Common
Stock shall be as follows:
(a) Cash Dividends. Subject to the rights and preferences of any
outstanding series of Preferred Stock, and except as otherwise provided for
herein, the holders of
Common Stock and Class B Common Stock are entitled to receive dividends out
of assets legally available therefor at such times and in such per share
amounts as the Board of Directors may from time to time determine; provided
that whenever a cash dividend is paid, the same amount shall be paid in
respect of each outstanding share of Common Stock and Class B Common Stock.
(b) Stock Dividends. If at any time a dividend is to be paid in shares
of Common Stock or shares of Class B Common Stock (a "stock dividend"),
such stock dividend may be declared and paid only as follows: only Common
Stock may be paid to holders of Common Stock and only Class B Common Stock
may be paid to holders of Class B Common Stock. Whenever a stock dividend
is paid, the same rate or ratio of shares shall be paid in respect of each
outstanding share of Common Stock and Class B Common Stock.
(c) Property Dividends. If at anytime a dividend is to be paid in
rights to purchase shares of the capital stock of the Corporation (a
"rights dividend"), then: (i) if the rights dividend is of rights that
entitle the holder thereof to purchase shares of Common Stock (or shares of
capital stock of the Corporation having voting rights equivalent to those
of the Common Stock ("Equivalent Shares")) or Class B Common Stock (or
shares of capital stock of the Corporation having voting rights equivalent
to those of the Class B Common Stock ("Equivalent Class B Shares"))
(whether initially or upon any adjustment thereunder), then only rights to
acquire Common Stock or Equivalent Shares may be paid to holders of Common
Stock and only rights to acquire Class B Common Stock or Equivalent Class B
Shares may be paid to holders of Class B Common Stock; and (ii) if the
rights dividend is of rights that entitle the holder thereof to purchase
shares of capital stock of the Corporation other than Common Stock (or
Equivalent Shares) or Class B Common Stock (or Equivalent Class B Shares)
(whether initially or upon any adjustment thereunder), then the Board of
Directors of the Corporation may pay such dividend of rights to the holders
of Common Stock and Class B Common Stock in such manner as the Board of
Directors may determine. Whenever any property dividend is paid, the same
rate or ratio of rights, securities or other property shall be paid in
respect of each outstanding share of Common Stock and Class B Common Stock.
(d) Stock Subdivisions and Combinations. The Corporation shall not
subdivide, reclassify or combine stock of any class of Corporation Common
Stock without at the same time making a proportionate subdivision,
reclassification or combination of shares of the other class.
(e) Voting. Voting power shall be divided between the classes of stock
as follows:
(i) Subject to Article 6(e)(ii), in the election of directors
holders of Class B Common Stock, voting separately as a class together with
the holders of shares of any other class or series of stock which by its
terms is entitled to vote with the Class B Common Stock for the election of
directors (the Class B Common Stock, together with such other shares, the
"Voting B Shares"), shall be entitled to elect that number of
directors which constitutes 80% of the authorized number of members of the
Board of Directors (or, if such 80% is not a whole number, then the nearest
higher whole number) (the "Class B Common Stock Directors"). Each share of
Class B Common Stock shall have one vote in the election of the Class B
Common Stock Directors. Subject to Article 6(e)(ii), holders of Common
Stock, voting separately as a class together with the holders of shares of
any other class or series of stock which by its terms is entitled to vote
with the Common Stock for the election of directors (the Common Stock,
together with such other shares, the "Voting Shares"), shall be entitled to
elect the remaining directors (the "Common Stock Directors"). Each share of
Common Stock shall have one vote in the election of such directors. The
initial Common Stock Director shall be designated by a majority of the
directors of the Corporation as of the effectiveness of this Restated
Certificate of Incorporation, and the holders of Voting Shares, voting
separately as a class, shall be entitled to vote for the election or
replacement of such Common Stock Director at the next annual meeting of
stockholders. The initial Class B Directors shall be designated by a
majority of the directors of the Corporation as of the effectiveness of
this Restated Certificate of Incorporation, and the holders of the Voting B
Shares, voting separately as a class, shall be entitled to vote for the
election or replacement of such Class B Directors at the next annual
meeting of stockholders. For purposes of this Article 6(e)(i), references
to the authorized number of members of the Board of Directors shall not
include any directors which the holders of any shares of any series of
Preferred Stock have the right to elect voting separately as one or more
series.
(ii) For purposes of this Article 6(e)(ii), "Special Voting
Rights" means the different voting rights of the holders of Common Stock,
on the one hand, and the holders of Class B Common Stock, on the other
hand, with respect to the election of the applicable percentage of the
authorized number of members of the Board of Directors as described in
Article 6(e)(i). If approved by the Board of Directors, at any annual or
special meeting of stockholders of the Corporation, a majority of the
outstanding shares of the Common Stock and Class B Common Stock, voting
together as a class, may vote to eliminate the Special Voting Rights(the
"Elimination Vote"), in which case the Special Voting Rights provided for
in Article 6(e)(i) shall have no further force or effect, and thereafter
holders of the Corporation Common Stock shall have equal voting rights in
all respects, except as otherwise required by law, and shall be entitled to
elect the total authorized number of members of the Board of Directors
voting together (along with the holders of any other Voting Stock(as
defined below)) as a single class. "Voting Stock" shall mean the Common
Stock, the Class B Common Stock and the shares of any class or series of
stock which by its terms is entitled to vote with the Common Stock or the
Class B Common Stock for the election of directors.
(iii) Unless the Special Voting Rights have been eliminated in
accordance with Article 6(e)(ii), all newly-created directorships resulting
from an increase in the authorized number of directors shall be allocated
between Common Stock Directors and Class B Directors such that at all times
the number of Class B Common Stock directorships shall be 80% of the
authorized number of members of the Board of Directors (or, if such 80% is
not a whole number, then the nearest higher whole number) and the remaining
directorships shall be Common Stock directorships.
(iv) Except as otherwise specified herein or required by law, the
holders of Common Stock and Class B Common Stock shall in all matters not
otherwise specified in this Article 6(e) vote together as one class, with
each share of Common Stock and Class B Common Stock having one vote.
(f) Merger or Consolidation. The Corporation shall not enter into any
consolidation of the Corporation with one or more other corporations, a
merger of the Corporation with another corporation, are organization of the
Corporation or other similar combination of the Corporation with one or
more third parties, unless each holder of a share of Common Stock or Class
B Common Stock is entitled to receive with respect to such share the same
kind and amount of shares of stock and other securities and property
(including cash) receivable upon such consolidation, merger, reorganization
or other combination as each other holder of a share of Common Stock and
Class B Common Stock; provided that, in any such transaction consummated
prior to the Elimination Vote, the holders of shares of Common Stock and
Class B Common Stock may each receive different kinds of shares of stock
that differ to the extent and only to the extent that the Board of
Directors determines in good faith that such shares differ with respect to
the rights of holders of such shares to the same extent as the Common Stock
and Class B Common Stock differ as provided herein.
(g) Liquidation. In the event of any liquidation, dissolution or
winding up of the Corporation, the holders of the Common Stock and Class B
Common Stock shall participate equally per share in any distribution to
stockholders, without distinction between classes.
7. The following provisions are inserted for the management of the
business and for the conduct of the affairs of the Corporation, and for the
purpose of creating, defining, limiting and regulating the powers of the
Corporation and its directors and stockholders:
(a) Except as otherwise fixed pursuant to Article 5 of this Restated
Certificate of Incorporation relating to the rights of the holders of
anyone 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 are solution adopted by a majority of the Board of
Directors. A director need not be a stockholder. The election of directors
of the Corporation need not be by ballot unless the By-Laws so require.
(b) Subject to Articles 7(d) and 7(e), any vacancy on the Board of
Directors that results from an increase in the number of directors may be
filled by a majority of the directors then in office and any other vacancy
occurring in the Board of Directors may be filled by a majority of the
Board of Directors then in office, even if less than a quorum, or by a
sole remaining director. Any director elected to fill a vacancy not
resulting from an increase in the number of directors shall have the same
remaining term as that of his predecessor.
Whenever the holders of any one or more series of Preferred Stock
issued by the Corporation shall have the right, voting separately as a
series or together as series, to elect directors at an annual or special
meeting of stockholders, the election, term of office, filling of vacancies
and other features of such directorships shall be governed by the terms of
this Restated Certificate of Incorporation applicable thereto.
(c) The Board of Directors may, by resolution or resolutions, passed
by a majority of the whole Board, designate one or more committees,
each committee to consist of two or more of the directors of the
Corporation, which to the extent permitted by law and provided in said
resolution or resolutions or in the By-Laws of the Corporation shall have
and may exercise the powers of the Board of Directors in the management of
the business and affairs of the Corporation and may have the power to
authorize the seal of the Corporation to be affixed to all papers which
require it. Such committee or committees shall have such name or names as
may be stated in the By-Laws of the Corporation, or as may be determined
from time to time by resolution adopted by the Board of Directors.
(d) Any vacancy in the office of a director created by the death,
resignation, retirement, disqualification, removal from office of a
director or other cause, elected by (or appointed on behalf of) the holders
of the Voting B Shares, on the one hand, or the holders of the Voting
Shares, on the other hand, as the case may be, shall be filled by the vote
of the majority of the directors (or the sole remaining director) elected
by (or appointed on behalf of) such holders of Voting B Shares, on the one
hand, or Voting Shares, on the other hand, as the case may be, unless there
are no such directors in such class, in which case such vacancy shall be
filled by the holders of the Voting B Shares or Voting Shares,
respectively, or unless the Elimination Vote shall have occurred, in which
case such vacancy shall be filled by the vote of the majority of the
directors (or the sole remaining director) then in office, even if less
than a quorum, regardless of any quorum requirements set out in the
By-Laws.
(e) Unless the Elimination Vote shall have occurred, all newly-created
directorships resulting from an increase in the authorized number of
directors shall be allocated pursuant to Article 6(e)(iii). Once such
newly-created directorships have been allocated as Common Stock Directors
or Class B Directors, such newly-created directorships shall be filled by
the vote of the majority of the directors in such class (or the sole
remaining director in such class), as the case may be, unless there are no
such directors in such class, in which case such vacancy shall be filled by
the holders of the Voting Shares or Voting B Shares, respectively, or
unless the Elimination Vote shall have occurred, in which case such vacancy
shall be filled by the vote of the majority of the directors (or the sole
remaining director) then in office, even if less than a quorum, regardless
of any quorum requirements set out in the By-Laws. Any director elected in
accordance with the preceding sentence shall hold office until the next
annual meeting or until his successor shall have been elected and qualified
or until his earlier resignation or removal. No decrease in the number of
authorized directors constituting the entire Board of Directors shall
shorten the term of any incumbent director.
8. To the fullest extent permitted by the DGCL as it presently exists
or may hereafter be amended, no director of the Corporation shall be liable to
the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director. Neither the
amendment nor repeal of this Article 8, nor the adoption of any provision of the
Restated Certificate of Incorporation of the Corporation inconsistent with this
Article 8, shall eliminate or reduce the effect of this Article 8 in respect of
any act or omission of any director of the Corporation or any matter occurring,
or any cause of action, suit or claim that, but for this Article 8, would accrue
or arise, prior to such amendment, repeal or adoption of an inconsistent
provision.
9. (a) Each person who was or is made a party or is threatened to be made a
party to or is involved in any claim, action, suit or proceeding, whether civil,
criminal, administrative, investigative or other (hereinafter a "proceeding"),
by reason of the fact that such person, or a person of whom such person is the
legal representative, is or was a director, officer or employee of the
Corporation or is or was serving in the course of such employment, or at the
request of the Corporation, as a director, officer, employee or representative
of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether
the basis of such proceeding is alleged action or inaction in an official
capacity as such a director, officer, employee or representative or in any other
capacity while serving as such a director, officer, employee or representative,
shall be indemnified and held harmless by the Corporation to the fullest extent
authorized by the DGCL, as it presently exists or may hereafter be amended,
against all expense, liability and loss (including attorneys' fees, judgments,
fines, excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection there with and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee or representative and shall inure to the benefit of such
person's heirs, executors, administrators and other legal representatives;
provided, however that, except as provided in paragraph (b) of this Article 9,
the Corporation shall indemnify any such person seeking indemnification in
connection with such a proceeding (or part thereof) initiated by such person
only if such proceeding (or part thereof), or the initiation thereof, was
authorized or approved by the Corporation. The Corporation shall pay the
expenses (including attorneys' fees) incurred by such a person described in the
preceding sentence (but subject to the proviso thereto) in defending any
proceeding in advance of its final disposition, provided, that, to the extent
required by law, such payment of expenses in advance of the final disposition of
the proceeding shall be made only upon receipt of an undertaking by such person
to repay all amounts advanced if it should be ultimately determined that such
person is not entitled to be indemnified under this Article 9 or otherwise.
(b) If a claim under paragraph (a) of this Article 9 is not paid in
full by the Corporation within thirty (30) days after a written claim has
been received by the Corporation, the claimant may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of the
claim and, if successful in whole or in part, the claimant shall be
entitled to be paid also the expense of prosecuting such claim. It shall be
a defense to any such action (other than an action brought to enforce a
claim for expenses incurred in defending any proceeding in advance of its
final disposition where the requirements of the Delaware General
Corporation Law have been complied with by the claimant) that the claimant
has not met the standards of conduct which make it permissible under the
Delaware General Corporation Law for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense
shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination
prior to the commencement of such action that indemnification of the
claimant is proper in the circumstances because the claimant has met the
applicable standard of conduct set forth in the Delaware General
Corporation Law, nor an actual determination by the Corporation (including
its Board of Directors, independent legal counsel, or its stockholders)
that the claimant has not met such applicable standard or conduct, shall be
a defense to the action or create the presumption that the claimant has not
met the applicable standard of conduct.
(c) The rights conferred by this Article 9 shall not be exclusive of
any other right which any person may have or hereafter acquire under any
statute, provision of this Restated Certificate of Incorporation of the
Corporation, By-Law, Agreement, vote of stockholders or disinterested
directors or otherwise.
(d) The Corporation may maintain insurance, at its expense, to protect
itself, its subsidiary and affiliated corporations, and any such director,
officer, employee or representative of the Corporation or other
corporation, partnership, joint venture, trust or other enterprise against
any such expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or
loss under the Delaware General Corporation Law.
10. Except as otherwise fixed pursuant to the provisions of Article 5 of
this Restated Certificate of Incorporation relating to the rights of the holders
of any one or more series of Preferred Stock issued by the Corporation to call
an annual or special meeting of stockholders, special meetings of the
stockholders of the Corporation may be called only by the Chairman, or in his
absence by the President, by the Board of Directors, or by the Secretary at the
request in writing of a majority of the Board of Directors and may not be called
by the stockholders of the Corporation.
11. Any action required to be taken or which may be taken by the holders of
the Corporation Common Stock must be effected at a duly called annual or special
meeting of such holders and may not be taken by written consent in lieu of a
meeting.
12. The Board of Directors shall have the power to adopt, alter, amend and
repeal the By-Laws of the Corporation, in any manner not in consistent with the
laws of the State of Delaware, subject to the power of the stockholders to
adopt, amend or repeal the By-Laws. Notwithstanding anything else contained in
this Restated Certificate of Incorporation or the By-Laws to the contrary, the
affirmative vote of the holders of record of at least 66 2/3% of the combined
voting power of all of the outstanding stock of the company entitled to vote in
respect thereof, voting together as a single class, shall be required (A) to
alter, amend, rescind or repeal Article 7, Article 10, Article 11 or this
Article 12 of this Restated Certificate of Incorporation or to adopt any
provision inconsistent therewith or (B) in order for the stockholders to adopt,
alter, amend, rescind or repeal any By-Laws of the Corporation.
13. Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this Corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as the case may be,
and also on this Corporation.
IN WITNESS WHEREOF, Curtiss-Wright Corporation has caused this Amended
and Restated Certificate of Incorporation to be executed by its duly
authorized officer this 21st day of July 2003.
CURTISS-WRIGHT CORPORATION
By:
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Name: Paul J. Ferdenzi
Title: Assistant Secretary