EXHIBIT 3.3
CERTIFICATE AMENDING THE RESTATED
CERTIFICATE OF INCORPORATION
BY ACTION OF
BOARD OF DIRECTORS AND SHAREHOLDERS
(Stock Corporation)
1. The name of the corporation is Bolt Technology Corporation.
2. The Restated Certificate of Incorporation is amended by the following
resolution of directors and shareholders.
RESOLVED, that the Restated Certificate of Incorporation of the
corporation be, and it hereby is, amended by adding paragraph 8 to read
in its entirety as follows:
8. a. The affirmative vote or consent of the holders of ninety-five per
cent (95%) of all shares of stock of the corporation unconditionally
entitled to vote in elections of directors, considered for the purposes
of this paragraph 8 as one class, shall be required for the adoption or
authorization of a business combination (as hereinafter defined) with
any other entity (as hereinafter defined) if, as of the record date for
the determination of stockholders entitled to notice thereof and to vote
thereon or consent thereto, such other entity is the beneficial owner,
directly or indirectly, of more than thirty per cent (30%) of the
outstanding shares of stock of the corporation unconditionally entitled
to vote in elections of directors considered for the purposes of this
paragraph 8 as one class; PROVIDED that such ninety-five per cent (95%)
voting requirement shall not be applicable if:
(i) The cash, or fair market value of other consideration, to be
received per share by common stockholders of the corporation in such
business combination bears the same or a greater percentage relationship
to the market price of the corporation's common stock immediately prior
to the public announcement of such business combination as the highest
per share price (including brokerage commissions and/or soliciting
dealers' fees) which such other entity has theretofore paid for any of
the shares of the corporation's common stock already owned by it bears
to the market price of the common stock of the corporation immediately
prior to the
commencement of acquisition of the corporation's common stock by such
other entity;
(ii) The cash, or fair market value of other consideration, to be
received per share by common stockholders of the corporation in such
business combination (a) is not less than the highest per share price
(including brokerage commissions and/or soliciting dealers' fees) paid
by such other entity in acquiring any of its holdings of the
corporation's common stock, and (b) is not less than the earnings per
share of common stock of the corporation for the four full consecutive
fiscal quarters immediately preceding the record date for solicitation
of votes on such business combination, multiplied by the then
price/earnings multiple (if any) of such other entity as customarily
computed and reported in the financial community;
(iii) After such other entity has acquired a thirty per cent (30%)
interest and prior to the consummation of such business combination: (a)
such other entity shall have taken steps to ensure that the
corporation's Board of Directors included at all times representation by
continuing director(s) (as hereinafter defined) proportionate to the
stockholdings of the corporation's common stockholders not affiliated
with such other entity (with a continuing director to occupy any
resulting fractional board position); (b) there shall have been no
reduction in the rate of dividends payable on the corporation's common
stock, if the corporation shall have established a policy of paying
periodic dividends, except as may have been approved by a unanimous vote
of the directors; (c) such other entity shall not have acquired any
newly issued shares of stock, directly or indirectly, from the
corporation (except upon conversion of convertible securities acquired
by it prior to obtaining a thirty per cent (30%) interest or as a result
of a pro rata stock dividend or stock split); and (d) such other entity
shall not have acquired any additional shares of the corporation's
outstanding common stock or securities convertible into common stock
except as a part of the transaction which results in such other
2
entity acquiring its thirty per cent (30%) interest;
(iv) Prior to the consummation of such business combination, such other
entity shall not have (a) received the benefit, directly or indirectly
(except proportionately as a stockholder), of any loans, advances,
guarantees, pledges or other financial assistance or tax credits
provided by the corporation, or (b) made any major change in the
corporation's business or equity capital structure without the unanimous
approval of the directors; and
(v) A proxy statement responsive to the requirements of the Securities
Exchange Act of 1934 shall be mailed to public stockholders of the
corporation for the purpose of soliciting stockholder approval of such
business combination and shall contain at the front thereof, in a
prominent place, any recommendation as to the advisability (or
inadvisability) of the business combination which the continuing
directors, or any of them, may choose to make and, if deemed advisable
by a majority of the continuing directors, an opinion of a reputable
investment banking firm as to the fairness (or not) of the terms of such
business combination, from the point of view of the remaining public
stockholders of the corporation (such investment banking firm to be
selected by a majority of the continuing directors and to be paid a
reasonable fee for their services by the corporation upon receipt of
such opinion).
The provisions of this paragraph 8 shall also apply to a business
combination with any other entity which at any time has been the
beneficial owner, directly or indirectly, of more than thirty per cent
(30%) of the outstanding shares of stock of the corporation
unconditionally entitled to vote in elections of directors considered
for the purposes of this paragraph 8 as one class, notwithstanding the
fact that such other entity has reduced its shareholdings below thirty
per cent (30%) if, as of the record date for the determination of
stockholders entitled to notice of and to vote on or consent to the
3
business combination, such other entity is an "affiliate" of the
corporation (as hereinafter defined).
b. As used in this paragraph 8, (i) the term "other entity" shall
include any corporation, person or other entity and any other entity
with which it or its "affiliate" or "associate" (as defined below) has
any agreement, arrangement or understanding, directly or indirectly, for
the purpose of acquiring, holding, voting or disposing of stock of the
corporation, or which is its "affiliate" or "associate" as those terms
are defined in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934 as in effect on April 1, 1978, together
with the successors and assigns of such persons in any transaction or
series of transactions not involving a public offering of the
corporation's stock within the meaning of the Securities Act of 1933;
(ii) an other entity (as defined above) shall be deemed to be the
beneficial owner of any shares of stock of the corporation which it has
the right to acquire pursuant to any agreement, or upon exercise of
conversion rights, warrants or options, or otherwise; (iii) the
outstanding shares of any class of stock of the corporation shall
include shares deemed owned through application of clause (ii) above but
shall not include any other shares which may be issuable pursuant to any
agreement, or upon exercise of conversion rights, warrants or options,
or otherwise; (iv) the term "business combination" shall include any
merger or consolidation of the corporation with or into any other
corporation, or the sale or lease of all or any substantial part of the
assets of the corporation to, or any sale or lease to the corporation or
any subsidiary thereof in exchange for securities of the corporation of
any asset, (except assets having an aggregate fair market value of less
than $5 million) of any other entity; (v) the term "continuing
director" shall mean a person who was a member of the Board of
Directors of the corporation elected by the public stockholders prior to
the time that such other entity acquired in excess of ten per cent (10%)
of the stock of the corporation unconditionally entitled to vote in the
election of directors, or a person
4
recommended to succeed a continuing director by a majority of the
remaining continuing directors; and (vi) for the purposes of paragraphs
(i) and (ii) of Section a of this paragraph 8 the term "other
consideration to be received" shall include common stock of the
corporation retained by its existing public stockholders in the event of
a business combination with such other entity in which the corporation
is the surviving corporation.
c. A majority of the continuing directors shall have the power and duty
to determine for the purposes of this paragraph 8, on the basis of
information known to them, whether (i) such other entity beneficially
owns more than thirty per cent (30%) of the outstanding shares of stock
of the corporation unconditionally entitled to vote in election of
directors, (ii) any entity is an "affiliate" or "associate" (as defined
above) of an other entity, (iii) an other entity has an agreement,
arrangement or understanding with another, or (iv) the assets being
acquired by the corporation, or any subsidiary thereof, have an
aggregate fair market value of less than $5,000,000.
d. No amendment to the Certificate of Incorporation of the corporation
shall amend, alter, change or repeal any of the provisions of this
paragraph 8, unless the amendment effecting such amendment, alteration,
change or repeal shall receive the affirmative vote or consent of the
holders of ninety-five per cent (95%) of all shares of stock of the
corporation unconditionally entitled to vote in election of directors,
considered for the purposes of this paragraph 8 as one class; provided
that this paragraph d shall not apply to, and such ninety-five per cent
(95%) vote or consent shall not be required for, any amendment,
alteration, change or repeal unanimously recommended to the stockholders
by the Board of Directors of the corporation if all of such directors
are persons who would be eligible to serve as "continuing directors"
within the meaning of Section b of this paragraph 8.
e. Nothing contained in this paragraph 8 shall be construed to relieve
any other entity
5
from any fiduciary obligation imposed by law.
3. (a) The above resolution changes the provisions of the Restated
Certificate of Incorporation by increasing the voting requirement to ninety-five
percent (95%) of all shares entitled to vote to effect certain business
combinations subject to certain exceptions.
(b) Other than as indicated in paragraph 3(a), there is no discrepancy
between the provisions of the Restated Certificate of Incorporation as
supplemented and amended to date, and the provisions of this Certificate
Amending the Restated Certificate of Incorporation.
4. The above resolution was adopted by the board of directors on
September 7, 1983 and by shareholders on October 25, 1983.
5. The corporation has at least one hundred recordholders.
6. The holders of shares of common stock outstanding on September 9, 1983
were entitled to vote upon the above resolution since there was no other class
of stock then outstanding:
Designation of Class,
Number of Shares Outstanding Vote Required Vote Favoring
and Entitled to Vote For Adoption Adoption
- ---------------------------- ------------- -------------
4,459,455 Shares of 2,229,728 2,337,133
Common Stock
Dated at Norwalk, Connecticut this 7th day of August, 1996.
We hereby declare, under penalties of false statement that the statements
made in the foregoing certificate are true.
/s/ Raymond M. Soto
--------------------------
Raymond M. Soto, President
/s/ Alan Levy
--------------------------
Alan Levy, Secretary
6