EXHIBIT 3
CERTIFICATE OF DESIGNATIONS BY
BOARD OF DIRECTORS AS TO THE
DESIGNATIONS, PREFERENCES AND RIGHTS OF THE
SERIES C JUNIOR PARTICIPATING PREFERRED STOCK
OF
LABARGE, INC.
LaBarge, Inc., a corporation organized and existing under the laws of
the State of Delaware (the "Corporation"), the Restated Certificate of
Incorporation of which was filed in the Office of the Secretary of State of
Delaware on October 31, 1995, and which was amended by Certificate of Amendment
filed on November 13, 1997 (as amended, the "Restated Certificate of
Incorporation"), does by its President and Chief Executive Officer, and its
Secretary hereby certify as follows:
First: That the Restated Certificate of Incorporation provides that the
total number of shares which the Corporation may issue is as follows:
"The total number of shares of common stock which the
corporation shall have authority to issue is 40,000,000. The
par value of each of such shares of common stock is 1 cent.
The total number of shares of preferred stock which the
corporation shall have authority to issue is 2,000,000 shares.
The par value of each such share of preferred stock is $1.00
per share."
Second: That the Restated Certificate of Incorporation provides that
the Board of Directors of the Corporation is authorized to provide for the
issuance of the shares of Preferred Stock in one or more series, and by filing a
certificate pursuant to the applicable law of the State of Delaware, to
establish from time to time the number of shares to be included in each such
series, and to fix the designation, powers, preferences and rights of the shares
of each such series and the qualifications, limitations or restrictions thereof.
Third: That pursuant to the authority so vested in the Board of
Directors, at a meeting duly convened and held on the 8th day of November, 2001,
the Board of Directors adopted the following resolutions:
"RESOLVED, that there be created a Series C Junior Participating
Preferred Stock (the "Series C Preferred Stock"), the number of shares of such
Series C Preferred Stock to be 300,000 which the Corporation may issue, and
which shall have the following powers, preferences and relative, optional,
participating and other special rights and qualifications, limitations,
restrictions and other distinguishing characteristics:
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series C Junior Participating Preferred Stock" (the
"Series C Preferred Stock") and the number of shares constituting the
Series C Preferred Stock shall be 300,000. Such number of shares may be
increased or decreased by resolution of the Board of Directors;
provided that no decrease shall reduce the number of shares of Series C
Preferred Stock
to a number less than the number of shares then outstanding plus the
number of shares reserved for issuance upon the exercise of outstanding
options, rights or warrants or upon the conversion of any outstanding
securities issued by the Corporation convertible into Series C
Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any
series of Preferred Stock (or any similar stock) ranking prior and
superior to the Series C Preferred Stock with respect to dividends, the
holders of shares of Series C Preferred Stock, in preference to the
holders of Common Stock, $0.01 par value (the "Common Stock"), of the
Corporation, and of any other junior stock, 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 tenth 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 C
Preferred Stock, in an amount per full share (rounded to the nearest
cent) equal to the greater of (a) $1.00 or (b) subject to the provision
for adjustment hereinafter set forth, 1,000 times the aggregate per
share amount of all cash dividends, and 1,000 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 C Preferred Stock. In the
event the Corporation shall at any time declare or pay any dividend on
the 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 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 C Preferred Stock 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 C Preferred Stock 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 per share on the Series C Preferred
Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
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(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series C Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares,
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 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 C Preferred Stock 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 C Preferred Stock 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 C Preferred Stock
entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be not more than 60 days prior to the
date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series C Preferred
Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series C Preferred Stock shall entitle the holder
thereof to 1,000 votes on all matters submitted to a vote of the
stockholders of the Corporation. In the event the Corporation shall at
any time declare or pay any dividend on the 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 shares
of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the number of votes per share to which
holders of shares of Series C Preferred Stock were entitled immediately
prior to such event shall be adjusted by multiplying such number by a
fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
(B) Except as otherwise provided herein, in any other
Certificate of Designations or Certificate of Amendment creating a
series of Preferred Stock or any similar stock, or by law, the holders
of shares of Series C Preferred Stock and the holders of shares of
Common Stock and any other capital stock of the Corporation having
general voting rights shall vote together as one class on all matters
submitted to a vote of stockholders of the Corporation.
(C) Except as set forth herein, or as otherwise provided by
law, holders of Series C Preferred Stock shall have no special voting
rights and their consent shall not be required (except to the extent
they are entitled to vote with holders of Common Stock as set forth
herein) for taking any corporate action.
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Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series C Preferred Stock 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 C Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series
C Preferred Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series C Preferred Stock, except dividends paid ratably on the Series C
Preferred Stock 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 of any stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series
C Preferred Stock, provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any such junior stock
in exchange for shares of any stock of the Corporation ranking junior
(either as to dividends or upon dissolution, liquidation or winding up)
to the Series C Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series C Preferred Stock, or any shares of
stock ranking on a parity with the Series C Preferred Stock, 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 stock 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.
Section 5. Reacquired Shares. Any shares of Series C Preferred Stock
purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled 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 subject to the conditions
and restrictions on issuance set forth herein, in the Certificate of
Incorporation, or in any other
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Certificate of Designations or Certificate of Amendment creating a
series of Preferred Stock or any similar stock or as otherwise required
by law.
Section 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 of stock
ranking junior (either as to dividends or upon liquidation, dissolution
or winding up) to the Series C Preferred Stock unless, prior thereto,
the holders of shares of Series C Preferred Stock shall have received
the greater of (i) $1.00 per full share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment, or (ii) an aggregate amount per
share, subject to the provision for adjustment hereinafter set forth,
equal to 1,000 times the aggregate amount to be distributed per share
to holders of shares of Common Stock, or (2) to the holders of shares
of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series C Preferred
Stock, except distributions made ratably on the Series C Preferred
Stock and all 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 the 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
shares of 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 C Preferred Stock 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.
Section 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 stock or securities, cash and/or any other property, then in any
such case each share of Series C Preferred Stock shall at the same time
be similarly exchanged or changed into an amount per share, subject to
the provision for adjustment hereinafter set forth, equal to 1,000
times the aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, into which or for which
each share of Common Stock is changed or exchanged. In the event the
Corporation shall at any time declare or pay any dividend on the 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
shares of Common Stock) 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 C Preferred Stock 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.
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Section 8. No Redemption. The shares of Series C Preferred Stock shall
not be redeemable.
Section 9. Rank. The Series C Preferred Stock shall rank, with respect
to the payment of dividends and the distribution of assets, junior to
all series of any other class of the Corporation's Preferred Stock.
Section 10. Amendment. The Restated Certificate of Incorporation of the
Corporation, as heretofore amended, shall not be amended in any manner
which would materially alter or change the powers, preferences or
special rights of the Series C Preferred Stock so as to affect them
adversely without the affirmative vote of the holders of at least
two-thirds of the outstanding shares of Series C Preferred Stock,
voting together as a single class.
Section 11. Expiration of Rights Agreement. In the event that the
Rights Agreement dated as of November 8, 2001 between the Corporation
and UMB Bank, N. A. is terminated or expires prior to the issuance of
any shares of Series C Preferred Stock, all shares of Series C
Preferred Stock shall become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of
Preferred Stock subject to the conditions and restrictions on issuance
set forth in the Restated Certificate of Incorporation, as amended, or
in any other Certificate of Designations creating a series of Preferred
Stock or any similar stock or as otherwise required by law.
FURTHER RESOLVED, that the statements contained in the foregoing
resolution creating and designating the Series C Preferred Stock and fixing the
number, powers, preferences and relative, optional, participating and other
special rights and qualifications, limitations, restrictions and other
distinguishing characteristics thereof shall be deemed to be included in and be
a part of the Restated Certificate of Incorporation pursuant to the provisions
of Sections 104 and 151 of the General Corporation Law of the State of
Delaware."
Fourth: That the said resolutions of the Board of Directors, and the
creation and authorization of issuance thereby of the Series C Preferred Stock
and the determination thereby of the provisions applicable to such series as
described in the resolution contained in the Third article hereof, were duly
adopted by the Board of Directors in accordance with Section 151 of the general
Corporation Law of the State of Delaware.
[Signature Page Follows]
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IN WITNESS WHEREOF, LaBarge, Inc. has caused its corporate seal to be
hereunto affixed and this Certificate to be signed by Craig E. LaBarge, its
President and Chief Executive Officer, this 8th day of November, 2001.
LABARGE, INC.
By
--------------------------------------
Craig E. LaBarge
President and Chief Executive Officer
ATTEST:
- --------------------------------------
Donald H. Nonnenkamp
Vice President, Chief Financial Officer
and Secretary
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