Exhibit 4.1
CERTIFICATE OF INCORPORATION
OF
GRAHAM CORPORATION
* * * * * *
FIRST: The name of the Corporation is GRAHAM CORPORATION.
SECOND: The address of its registered office in the State of Delaware is
No. 100 West Tenth Street, in the City of Wilmington, County of New Castle. The
name of its registered agent at such address is The Corporation Trust Company.
THIRD: The nature of the business or purposes to be conducted or promoted
is:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 2,500,000 shares, of which 500,000
shares shall be shares of Preferred Stock having a par value of $1.00 each
(hereinafter called Preferred stock) and 2,000,000 shares shall be shares of
Common Stock having a par value of $0.10 each (hereinafter called Common Stock).
Authority is hereby expressly granted to the Board of Directors from time
to time to issue the Preferred Stock as
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Preferred Stock of one or more series and in connection with the creation of any
such series to fix by the resolution or resolutions providing for the issue of
shares thereof the designation, powers, preferences, and relative,
participating, optional, or other special rights of such series, and the
qualifications, limitations, or restrictions thereof. Such authority of the
Board of Directors with respect to each such series shall include, but not be
limited to, the determination of the following:
(a) the distinctive designation of, and the number of shares
comprising, such series, which number may be increased (except where
otherwise provided by the Board of Directors in creating such series) or
deceased (but not below the number of shares thereof then outstanding) from
time to time by like action of the Board of Directors;
(b) the dividend rate or amount of such series, the conditions and
dates upon which such dividends shall be payable, the relation which such
dividends shall bear to the dividends payable on any other class or classes
or any other series of any class or classes of stock, and whether such
dividends shall be cumulative, and if so, from which date or dates for such
series;
(c) whether or not the shares of such series shall be subject to
redemption by the Corporation and the times, prices, and other terms and
conditions of such redemption;
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(d) whether or not the shares of such series shall be subject to the
operation of a sinking fund or purchase fund to be applied to the purchase
or redemption of such shares and if such a fund be established, the amount
thereof and the terms and provisions relative to the application thereof;
(e) whether or not the shares of such series shall be convertible into
or exchangeable for shares of any other class or classes, or of any other
series of any class or classes of stock of the Corporation and if provision
be made for conversion or exchange, the times, prices, rates, adjustments,
and other terms and conditions of such conversion or exchange;
(f) whether or not the shares of such series shall have voting rights,
in addition to the voting rights provided by law, and if they are to have
such additional voting rights, the extent thereof;
(g) the rights of the shares of such series in the event of any
liquidation, dissolution, or winding up of the Corporation or upon any
distributions of its assets; and
(h) any other powers, preferences, and relative, participating,
optional, or other special rights of the shares of such series, and
qualifications, limitations, or restrictions thereof, to the full extent
now or
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hereafter permitted by law and not inconsistent with the provisions hereof.
All shares of any one series of preferred Stock shall be identical in all
respects except as to the dates from which dividends thereon shall be
cumulative. All series of the Preferred Stock shall rank equally and be
identical in all respects except as otherwise provided in the resolution or
resolutions providing for the issue of any series of Preferred Stock.
Whenever dividends upon the Preferred Stock at the time outstanding, to the
extent of the preference to which such stock is entitled, shall have been paid
in full or declared and set apart for payment for all past dividend periods, and
after the provisions for any sinking or purchase fund or funds for any series of
Preferred Stock shall have been complied with, the Board of Directors may
declare and pay dividends on the Common Stock, payable in cash, stock, or
otherwise, and the holders of shares of Preferred Stock shall not be entitled to
share therein, subject to the provisions of the resolution or resolutions
creating any series of Preferred stock.
In the event of any liquidation, dissolution, or winding up of the
Corporation or upon the distribution of the assets of the Corporation, all
assets and funds of the Corporation remaining, after the payment to the holders
of the Preferred Stock of the full preferential amounts to which they shall be
entitled as provided in the resolution or resolutions creating any series
thereof, shall be divided and distributed among the
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holders of the Common Stock ratably, except as may otherwise be provided in any
such resolution or resolutions. Neither the merger or consolidation of the
Corporation with another corporation nor the sale or lease of all or
substantially all the assets of the Corporation shall be deemed to be a
liquidation, dissolution, or winding up of the Corporation or a distribution of
its assets.
Except as otherwise required by law or provided by a resolution or
resolutions of the Board of Directors creating any series of Preferred Stock,
the holders of Common Stock shall have the exclusive power to vote and shall
have one vote in respect of each share of such stock held and the holders of
Preferred Stock shall have no voting power whatsoever. Except as otherwise
provided in such a resolution or resolutions, the authorized shares of any class
or classes may be increased or decreased by the affirmative vote of the holders
of a majority of the outstanding shares of stock of the Corporation entitled to
vote.
FIFTH: The name and mailing address of each incorporator is as follows:
NAME MAILING ADDRESS
---- ---------------
Cornelius S. Van Rees 40 Wall Street, New York, NY 10005
Edward A. Bacon, Jr. 40 Wall Street, New York, NY 10005
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SIXTH: Elections of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
SEVENTH: The books of the corporations may be kept (subject to any
provision contained in the statutes) outside the State of Delaware at such place
or places as may be designated from time to time by the board of directors or in
the by-laws of the corporation.
EIGHTH: Any or all of the Directors may be removed at any time, but only
for cause, by the Shareholders at any meeting of Shareholders, called for the
purpose, by the affirmative vote of 75% of the shares of the Corporation
entitled to vote and, if a corporation, person or other entity owns more than
50% of the shares of the Corporation entitled to vote, by the affirmative vote
of the holders of a majority of the shares of the Corporation entitled to vote
and not owned by the majority shareholder.
NINTH: The percentage of the votes cast at any meeting of shareholders that
shall be necessary for the transaction of any business shall be as required by
law and by the following provisions, and any purported shareholder action not in
compliance herewith and any purported transaction not in compliance herewith,
shall be void.
(a) Except as set forth in paragraph (b) of this Article NINTH:
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(i) any merger or consolidation of the Corporation with or into any
other corporation;
(ii) any sale, lease, exchange or other disposition of all or
substantially all of the assets of the Corporation to or with any
other corporation, person or other entity; or
(iii) the issuance or disposition by the Corporation of any of its
securities to any other corporation, person or other entity in
exchange for cash, securities or other assets, or a combination
thereof
shall require the affirmative vote of the holders of
(iv) 75% of the shares of the Corporation entitled to vote, and
(v) a majority of the shares of the Corporation entitled to vote
which are not owned by such other corporation, person or entity,
if, as of the record date for the determination of shareholders entitled to
notice thereof and to vote thereon, such other corporation, person or entity
which is a party to such transaction is the owner of 5% or more of the shares of
the Corporation entitled to vote. Such affirmative vote shall be required
notwithstanding the fact that no vote may be required or that some lesser
percentage may be specified by law or in any agreement with any national
securities exchange.
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(b) The provisions of paragraph (a) of this Article NINTH shall not
apply to any transaction in which the Corporation and one or more
subsidiaries of the Corporation are the only parties, nor to any other
transaction described in clauses (i), (ii) or (iii) of paragraph (a) of
this Article if
(i) the Board of Directors of the Corporation shall have approved the
transaction between the Corporation and the other corporation,
person or entity with whom the transaction is proposed prior to
the time such other corporation, person or entity shall have
become the owner of 5% of the shares of the Corporation entitled
to vote; or
(ii) the transaction is approved prior to its consummation by the
affirmative vote of two-thirds of the Directors who are not
involved with or representing the corporation, person or entity
with whom the transaction is proposed.
TENTH: The By-laws of the Corporation may not be amended except (a) by the
Board of Directors, (b) by the Shareholders voting upon a proposal recommended
by the affirmative vote of 75% of the entire Board of Directors, or (c) by the
affirmative vote of (i) the holders of 75% of the shares of the
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Corporation entitled to vote and (ii) if any corporation, person, or other
entity owns more than 50% of the shares of the Corporation entitled to vote, the
holders of a majority of the shares of the Corporation entitled to vote and not
owned by the majority shareholder.
ELEVENTH: Unless recommended to the Shareholders by the affirmative vote of
75% of the entire Board of Directors, the affirmative vote of the holders of 75%
of the shares of the Corporation entitled to vote shall be required for any
amendment of this Certificate of Incorporation by the Shareholders, and, if a
corporation, person or other entity owns more than 50% of the shares of the
Corporation entitled to vote, such amendment shall also require the affirmative
vote of the holders of a majority of the shares of the Corporation entitled to
vote and not owned by the majority shareholder.
TWELFTH:
(a) The Board of Directors of the Corporation shall have the power and
duty to determine, on the basis of information then known to it, (i)
whether any corporation, person or other entity owns 5% or more of the
shares of the Corporation entitled to vote, or is an "affiliate" or an
"associate" (as defined below) of another, (ii) whether any proposed sale,
lease, exchange, or other disposition of part of the assets of the
Corporation involves substantially all of the assets of the Corporation,
and (iii) whether any approval by Shareholders or Directors of the
Corporation, purporting to comply with the requirements of
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this Certificate of Incorporation, the By-Laws of the Corporation, or applicable
law, is substantially consistent with the transaction to which it relates. Any
such determination by the Board of Directors shall be conclusive and binding for
all purposes of this Certificate of Incorporation.
(b) For purposes of determining ownership of the Corporation's shares
under Articles EIGHTH through TWELFTH of this Certificate of Incorporation,
(i) a corporation, person or other entity shall be deemed to be the
owner of any shares of the Corporation registered in its name on
the books of the Corporation and of any shares of the Corporation
(1) which it has the right to acquire pursuant to any agreements,
or upon exercise of conversion rights, warrants or options or
otherwise, or (2) which are beneficially owned, directly, or
indirectly (including shares deemed owned through application of
clause (1) above), by any other corporation, person or other
entity (x) with which it or its "affiliate" or "associate" (as
defined below) has any agreement, arrangement or understanding
for the purpose of acquiring, holding, voting or disposing of
shares of the Corporation or (y) which is its "affiliate" or
"associate" as those terms
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were defined in rule 12b-2 of the General Rules and Regulations
of the Securities Exchange Act of 1934 as in effect on March 25,
1976,
(ii) "shares of the Corporation entitled to vote" shall mean such
shares as are entitled to vote generally in the election of
Directors, considered as one class, and
(iii) the shares of the Corporation entitled to vote shall include any
shares deemed owned through the application of clauses (1) and
(2) of paragraph (i) above but shall not include any other shares
that may be issuable by the Corporation pursuant to any
agreement, or upon the exercise of conversion rights, warrants,
options, or otherwise.
THIRTEENTH: 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
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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 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.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore named,
for the purpose of forming a corporation pursuant to the General Corporation Law
of the State of Delaware, do make this certificate, hereby declaring and
certifying that
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this is our act and deed and the facts herein stated are true, and accordingly
have hereunto set our hands this 4th day of March, 1983.
INCORPORATOR:
/s/ Cornelius S. Van Rees
----------------------------------------
(Signature)
Cornelius S. Van Rees
40 Wall Street
New York, New York 10005
INCORPORATOR:
/s/ Edward A. Bacon, Jr.
----------------------------------------
(Signature)
Edward A. Bacon, Jr.
40 Wall Street
New York, New York 10005
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
Graham Corporation, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: That a meeting of the Board of Directors of Graham Corporation held
on March 14, 1986, resolutions were duly adopted setting forth a proposed
amendment to the Restated Certificate of Incorporation of said corporation,
declaring said amendment to be advisable and calling a meeting of the
stockholders of said corporation for consideration thereof. The resolution
setting forth the proposed amendment is as follows:
RESOLVED, that the Restated Certificate of Incorporation of this
corporation be amended by changing Article 4, paragraph 1 thereof so that,
as amended said Article shall be and read as follows:
"The total number of shares of all classes of stock which the corporation
shall have authority to issue is 3,500,000 shares, of which 500,000 shares
shall be shares of Preferred Stock having a par value of $1.00 each
(hereinafter called Preferred Stock) and 3,000,000 shares shall be shares
of Common Stock having a par value of $0.10 each (hereinafter called Common
Stock)."
SECOND: That thereafter, pursuant to resolution of its Board of Directors,
an annual meeting of the stockholders of said corporation was duly called and
held on May 27, 1986, upon notice in accordance with Section 222 of the General
Corporation Law of
the State of Delaware at which meeting the necessary number of shares as
required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said Graham Corporation has caused this certificate to
be signed by Frederick D. Berkeley its Chairman of the Board of Directors, and
attested by Cornelius S. Van Rees, its Secretary, this 1st day of July, 1986.
By: /s/ Frederick D. Berkeley
------------------------------------
Chairman of the Board of Directors
ATTEST:
By: /s/ Cornelius S. Van Rees
---------------------------------
Secretary
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
Graham Corporation, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: That a meeting of the Board of Directors of Graham Corporation held
on February 26, 1987, resolutions were duly adopted setting forth a proposed
amendment to the Restated Certificate of Incorporation of said corporation,
declaring said amendment to be advisable and calling a meeting of the
stockholders of said corporation for consideration thereof. The resolution
setting forth the proposed amendment is as follows:
RESOLVED, that the Restated Certificate of Incorporation of this
corporation be amended by adding an Article Fourteen, said Article to be as
follows:
"FOURTEENTH
Section 1. To the fullest extent permitted by the Delaware General
Corporation Law as the same exists or may hereafter be amended, a director
of this corporation shall not be liable to the corporation or to any of its
stockholders for monetary damages for breach of fiduciary duty as a
director.
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.
Section 2. A director or officer of this corporation shall be indemnified
by the corporation against any liabilities incurred in his capacity as a
director or officer, such indemnification to include payment by the
corporation of expenses incurred in defending a proceeding in advance of
its final disposition, to the fullest extent permitted by the Delaware
General Corporation Law or as may be provided by written agreement with the
corporation.
The right to indemnification conferred in this Section, including the
payment of expenses incurred in defending a proceeding in advance of its
final disposition, shall not be exclusive of any other right which a
director or officer may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, by-law, agreement, vote of
stockholders or disinterested directors or otherwise.
SECOND: That thereafter, pursuant to resolution of its Board of Directors,
an annual meeting of the stockholders of said corporation was duly called and
held on June 29, 1987, upon notice in accordance with Section 222 of the General
Corporation Law of the State of Delaware at which meeting the necessary number
of shares as required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
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IN WITNESS WHEREOF, said Graham Corporation has caused this certificate to
be signed by Frederick D. Berkeley, its Chairman of the Board of Directors, and
attested by Cornelius S. Van Rees, its Secretary, this 20th day of July, 1987.
GRAHAM CORPORATION
By /s/ Frederick D. Berkeley
-------------------------------------
Frederick D. Berkeley
Chairman of the Board of Directors
ATTEST:
By: /s/ Cornelius S. Van Rees
---------------------------------
Cornelius S. Van Rees
Secretary
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CERTIFICATE FOR RENEWAL AND REVIVAL
OF
CERTIFICATE OF INCORPORATION
OF
GRAHAM CORPORATION
* * * * *
GRAHAM CORPORATION, a corporation organized under the laws of Delaware, the
Certificate of Incorporation of which was filed in the office of the Secretary
of State on the 7th day of March, 1983, the Certificate of Incorporation of
which was voided for non-payment of taxes, now desires to procure a restoration,
renewal and revival of its Certificate of Incorporation, and hereby certifies as
follows:
1. The name of this corporation is GRAHAM CORPORATION
2. Its registered office in the State of Delaware is located at
Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New
Castle and the name of its registered agent at such address is The Corporation
Trust Company.
3. The date when the restoration, renewal, and revival of the
Certificate of Incorporation of this company is to commence is the 29th day of
February, 1988, same being prior to
the date of the expiration of the Certificate of Incorporation. This renewal and
revival of the Certificate of Incorporation of this corporation is to be
perpetual.
4. This corporation was duly organized under the Laws of the State of
Delaware and carried on the business authorized by its Certificate of
Incorporation until the 1st day of March, 1988, at which time its Certificate of
Incorporation became inoperative and void for non-payment of taxes and this
Certificate for Renewal and Revival is filed by authority of the duly elected
directors of the corporation in accordance with the laws of the State of
Delaware.
IN WITNESS WHEREOF, said GRAHAM CORPORATION, in compliance with Section 312
of Title 8 of the Delaware Code, has caused this Certificate to be signed by
Alvin L. Snyder, its last and acting Vice President, and attested by Cornelius
S. Van Rees, its last and acting Secretary, this thirtieth day of August, 1988.
GRAHAM CORPORATION
By /s/ Alvin L. Snyder
-------------------------------------
Its Last and Acting
Vice President
ATTEST:
By: /s/ Cornelius S. Van Rees
---------------------------------
Its Last and Acting
Secretary
CERTIFICATE OF AMENDMENT
OF RESTATED CERTIFICATE OF INCORPORATION OF
GRAHAM CORPORATION
----------
Graham Corporation, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: That a meeting of the Board of Directors of Graham Corporation held
on February 23, 1990, resolutions were duly adopted setting forth a proposed
amendment to the Restated Certificate of Incorporation of said corporation,
declaring said amendment to be advisable and calling a meeting of the
stockholders of said corporation for consideration thereof. The resolution
setting forth the proposed amendment is as follows:
RESOLVED, that the Restated Certificate of Incorporation of this
corporation be amended by changing Article 4, paragraph 1 thereof so that,
as amended said Article shall be and read as follows:
"The total number of shares of all classes of stock which the corporation
shall have authority to issue is 6,500,000 shares, of which 500,000 shares
shall be shares of Preferred Stock having a par value of $1.00 each
(hereafter called Preferred Stock) and 6,000,000 shares shall be shares of
Common Stock having a par value of $0.10 each (hereinafter called Common
Stock)."
SECOND: That thereafter, pursuant to resolution of its Board of Directors,
an annual meeting of the stockholders of said corporation was duly called and
held on May 17, 1990 upon
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notice in accordance with Section 222 of the General Corporation Law of the
State of Delaware at which meeting the necessary number of shares as required by
statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said Graham Corporation has caused this certificate to
be signed by Frederick D. Berkeley, its Chairman of the Board of Directors, and
attested by Cornelius S. Van Rees, its Secretary, this 17th day of May, 1990.
GRAHAM CORPORATION
By /s/ Frederick D. Berkeley
-------------------------------------
Frederick D. Berkeley
Chairman of the Board of Directors
ATTEST:
By: /s/ Cornelius S. Van Rees
---------------------------------
Secretary
CERTIFICATE OF MERGER
OF
GRAHAM MANUFACTURING CO., INC.
INTO
GRAHAM CORPORATION
The undersigned corporation DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the constituent
corporations of the merger is as follows:
NAME STATE OF INCORPORATION
- ---- ----------------------
GRAHAM MANUFACTURING CO., INC. New York
GRAHAM CORPORATION Delaware
SECOND: That an Agreement of Merger between the parties to the merger has
been approved, adopted, certified, executed and acknowledged by each of the
constituent corporations in accordance with the requirements of section 252 of
the General Corporation Law of Delaware.
THIRD: That the name of the surviving corporation of the merger is GRAHAM
CORPORATION, a Delaware corporation.
FOURTH: That the Certification of Incorporation of GRAHAM CORPORATION, a
Delaware corporation which is surviving the merger, shall be the Certificate of
Incorporation of the surviving corporation.
FIFTH: That the executed Agreement of Merger is on file at an office of the
surviving corporation, the address of which is 20 Florence Avenue, Batavia, New
York 14020.
SIXTH: That a copy of the Agreement of Merger will be furnished by the
surviving corporation, on request and without cost, to any stockholder of any
constituent corporation.
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SEVENTH: The authorized capital stock of each foreign corporation which is
a party to the merger is as follows:
PAR VALUE PER SHARE OR
STATEMENT THAT SHARES ARE
CORPORATION CLASS NUMBER OF SHARES WITHOUT PAR VALUE
----------- ------ ---------------- -------------------------
Graham Manufacturing Co., Inc. Common 1,000 $0.10
EIGHTH: That this Certificate of Merger shall be effective on January
1,1999.
Dated: December 22, 1998
GRAHAM CORPORATION
By /s/ A. Cadena
-------------------------------------
A. Cadena
President & Chief Executive Officer
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS OF SERIES A
JUNIOR PARTICIPATING PREFERRED STOCK OF GRAHAM CORPORATION
Pursuant to Section 151 of the General Corporation Law of the State of
Delaware
We, Alvaro Cadena, and Cornelius S. Van Rees, being the President and Chief
Executive Officer and the Secretary, respectively, of GRAHAM CORPORATION, a
corporation organized and existing under the General Corporation Law of the
State of Delaware (the "CORPORATION"), in accordance with the provisions of
Sections 103 and 151 thereof, DO HEREBY CERTIFY:
That, pursuant to the authority conferred upon the board of directors of
the Corporation (the "BOARD") by the Certificate of Incorporation of the
Corporation, the Board at a meeting duly called and held on July 27, 2000, at
which a quorum was present and acting throughout, duly adopted the following
resolution creating a series of sixty thousand (60,000) shares of Preferred
Stock, par value ONE DOLLAR ($1.00) per share, designated "Series A Junior
Participating Preferred Stock":
RESOLVED, that, pursuant to the authority vested in the Board in
accordance with the provisions of its Certificate of Incorporation, a
series of preferred stock of the Corporation to be designated "Series A
Junior Participating Preferred Stock," par value ONE DOLLAR ($1.00) per
share (the "PREFERRED STOCK"), be, and it hereby is, created, the
designations and amount thereof and the voting powers, preferences and
relative, participating, optional and other special rights of the shares of
such series, and the qualifications, limitations and restrictions thereof,
to be as follows:
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
SECTION 1. Designation and Amount. The shares of such series shall be
designated as "Series A Junior Participating Preferred Stock," par value ONE
DOLLAR ($1.00) per share, and the number of shares constituting such series
shall be sixty thousand (60,000). Such number of shares may be increased or
decreased by resolution of the Board; provided, that no decrease shall reduce
the number of shares of Series A Junior Participating 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 A Junior Participating 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
A Junior Participating Preferred Stock with respect to dividends, the holders of
shares of Series A Junior Participating Preferred Stock, in preference to the
holders of Common Stock, par value TEN CENTS ($0.10) per share (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 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 Junior Participating
Preferred Stock, in an amount per share (rounded to the nearest cent) equal to
the greater of (a) ONE DOLLAR ($1.00) or (b) subject to the provision for
adjustment hereinafter set forth, one hundred (100) times the aggregate per
share amount of all cash dividends, and one hundred (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 Junior Participating 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 A Junior Participating 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
A Junior Participating 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 ONE DOLLAR ($1.00) per
share on the Series A Junior Participating Preferred Stock 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 Junior Participating 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 ease 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 A Junior Participating 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
A Junior Participating 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 may fix a record date for the determination of holders of
shares of Series A Junior Participating Preferred Stock entitled to receive
payment of a dividend or distribution declared thereon, which record date shall
be not more than sixty (60) days prior to the date fixed for the payment
thereof.
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SECTION 3. Voting Rights. The holders of shares of Series A Junior
Participating Preferred Stock shall have the following voting rights:
(a) Subject to the provision for adjustment hereinafter set forth, each
share of Series A Junior Participating Preferred Stock shall entitle the holder
thereof to one hundred (100) 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 A Junior Participating 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 resolution creating a
series of preferred stock or any similar stock, in any amendment to the
Certificate of Incorporation of the Corporation or bylaw, the holders of shares
of Series A Junior Participating 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 A Junior Participating 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.
SECTION 4. Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Junior Participating 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 A Junior
Participating 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 A Junior Participating 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 A Junior Participating Preferred
Stock, except dividends paid ratably on the Series A Junior Participating
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;
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(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 A Junior Participating 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 A Junior Participating Preferred Stock;
or
(iv) redeem or purchase or otherwise acquire for consideration any
shares of Series A Junior Participating Preferred Stock, or any shares of stock
ranking on a parity with the Series A Junior Participating Preferred Stock,
except in accordance with a purchase offer made in writing or by publication (as
determined by the Board) to all holders of such shares upon such terms as the
Board, 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 A Junior Participating
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 a resolution of the Board, in the Certificate of Incorporation of the
Corporation, or in any other 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 (a)
to the holders of shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Junior Participating
Preferred Stock unless, prior thereto, the holders of shares of Series A Junior
Participating Preferred Stock shall have received the greater of (i) ONE HUNDRED
DOLLARS ($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, or (ii) an aggregate amount per share, subject to the provision
for adjustment hereinafter set forth, equal to one hundred (100) times the
aggregate amount to be distributed per share to holders of shares of Common
Stock, or (b) 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 A
Junior Participating Preferred Stock, except distributions made ratably on the
Series A Junior Participating 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
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of shares of Common Stock, then in each such case the aggregate amount to which
holders of shares of Series A Junior Participating Preferred Stock were entitled
immediately prior to such event under the proviso in clause (a) 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 A Junior Participating 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 one hundred (100) 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 A
Junior Participating 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.
SECTION 8. No Redemption. The shares of Series A Junior Participating
Preferred Stock shall not be redeemable, except as otherwise provided herein.
SECTION 9. Rank. The Series A Junior Participating Preferred Stock shall
rank, with respect to the payment of dividends and the distribution of assets,
junior to all other series of the Corporation's preferred stock.
SECTION 10. Amendment. At any time that any shares of Series A Preferred
Stock are outstanding, the Certificate of Incorporation of the Corporation shall
not be amended in any manner, nor shall the Board take any action, which would
materially alter or change the powers, preferences or special rights of the
Series A Junior Participating Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of at least three-fourths (3/4) of
the outstanding shares of Series A Junior Participating Preferred Stock, voting
together as a single class.
SECTION 11. Fractional Shares. Series A Junior Participating Preferred
Stock may be issued in fractions of a share, which shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have the benefit of all
other rights of holders of Series A Junior Participating Preferred Stock.
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IN WITNESS WHEREOF, Graham Corporation has caused this certificate to be
executed by its President and Chief Executive Officer and by its Secretary this
29th day of August, 2000.
GRAHAM CORPORATION
By: /s/ Alvaro Cadena
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Name: Alvaro Cadena
Title: President and Chief Executive Officer
By: /s/ Cornelius S. Van Rees
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Name: Cornelius S. Van Rees
Title: Secretary
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