EXHIBIT 3.2
CERTIFICATE OF DESIGNATION
OF
SERIES A CUMULATIVE REDEEMABLE PREFERRED STOCK
OF
CALCOMP TECHNOLOGY, INC.
CalComp Technology, Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware, (the "Corporation"), certifies
that the following resolution has been duly adopted by the Board of Directors of
the Corporation:
RESOLVED, that under the authority contained in Article 4(a) of the Fourth
Amended and Restated Certificate of Incorporation of the Corporation, the Board
of Directors of the Corporation hereby designates 1,000,000 unissued shares of
the Preferred Stock of the Corporation as 1,000,000 shares of "Series A
Cumulative Redeemable Preferred Stock" having the powers, designations,
preferences and relative, participating, optional or other special rights, and
the qualifications, limitations of such preferences and/or rights as set by the
Board of Directors of the Corporation as follows:
Section 1. Designation and Amount.
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The shares of such series shall be designated as Series A Cumulative
Redeemable Preferred Stock (the "Series A Preferred Stock"), par value $0.01 per
share, and the number of shares constituting such series shall be 1,000,000.
Section 2. Dividends.
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(A) Subject to the prior and superior rights of any shares of any series of
preferred stock ranking prior and superior to the Series A Preferred Stock in
respect of dividends, the holders of shares of the Series A Preferred Stock, in
preference to the holders
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of shares of Common Stock, par value $0.01, of the Corporation (the "Common
Stock") and any other stock of the Corporation ranking junior to the Series A
Preferred Stock as to dividends, shall be entitled to receive, when as and if
declared by the Board of Directors, out of funds legally available for the
payment of dividends, cumulative dividends payable at the annual rate of $4.80
per share, and, subject to the provisions of Section 3 below, no more, in equal
quarterly payments on March 31, June 30, September 30 and December 31 (or if any
of such days is not a Business Day, the next succeeding Business Day) in each
year (each such date being referred to herein as a "Quarterly Dividend Payment
Date"), commencing on the first Quarterly Dividend Payment Date that is at least
30 days after the date of original issue of the shares of Series A Preferred
Stock. A holder of Series A Preferred Stock shall be entitled to receive payment
of dividends by wire transfer by giving written instructions to the Corporation
at least two business days prior to the payment date.
(B) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the date of original issue of the
shares. Dividends shall accrue and be payable based on the number of days in
each year and the numbers of days actually elapsed. Accrued but unpaid dividends
payable under this Section 2 or any other Section of this Certificate of
Designation shall accrue additional dividends at the rate of 8% per annum on the
accrued but unpaid amount, and references in this Certificate of Designation to
accrued but unpaid dividends shall be deemed to include such additional
dividends. Dividends paid on the shares of Series A Preferred Stock in an amount
less than the total amount of dividends at the time accrued and payable on the
shares of Series A Preferred Stock shall be allocated pro rata on a share-by-
share basis among all the shares at the time outstanding. The Board of Directors
may fix a record date for the determination of holders of shares of Series A
Preferred Stock entitled to receive payment of a dividend declared thereon,
which record date shall be no more than 45 days and no less than 10 days prior
to the date fixed for the payment thereof.
Section 3. Increase in Dividend Rate On Change of Control.
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(A) Notwithstanding the provisions of Section 2, after the occurrence of a
Change of Control (as defined below), the dividend rate on shares of Series A
Preferred Stock then outstanding shall be increased to $9.00 per share per annum
plus 15% per annum on any accrued but unpaid dividends (and additional
dividends, if any) (the "Adjusted Dividend Rate"). The Adjusted Dividend Rate
shall apply until the earlier to occur of (i) the redemption by the Corporation
of the Series A Preferred Stock or (ii) the acquisition of shares of Series A
Preferred Stock by any Person (or group of Persons) who acquires more than 50%
of the combined voting power of the then outstanding voting stock of the
Corporation entitled to vote generally in the election of directors, if any, but
the Adjusted Dividend Rate shall only be terminated to the extent that such
Series A Preferred Stock is owned by such Person (or group of Persons).
(B) For purposes of this Certificate of Designation, "Change in Control"
shall mean a reduction in ownership by Lockheed Martin Corporation and its
subsidiaries to 50% or below in the combined voting power of the then
outstanding voting stock of the Corporation entitled to vote generally in the
election of directors.
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Section 4. Voting Rights.
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Subject to the right to consent in certain limited circumstances as set
forth in Section 5 below, the holders of shares of Series A Preferred Stock
shall have no voting rights.
Section 5. Certain Restrictions.
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(A) For so long as any shares of Series A Preferred Stock are outstanding,
the Corporation shall not:
(i) declare or pay dividends on, make any other distributions on, or
redeem or purchase or otherwise acquire for consideration any shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Preferred Stock ("Junior Stock");
(ii) declare or pay dividends on or make any other distributions on
any shares of other stock ranking in parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred Stock
("Parity Stock"), except dividends paid ratably on the Series A 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; or
(iii) redeem or purchase or otherwise acquire for consideration any
shares of Parity Stock, provided that the Corporation may at any time redeem,
purchase or otherwise acquire shares of any such Parity Stock in exchange for
shares of any Junior Stock.
(B) Without the prior written consent of the holders of a majority of the
Series A Preferred Stock, the Corporation shall not issue any shares of capital
stock ranking senior with respect to dividends or other distributions or in the
event of dissolution, liquidation or winding up or in any way amend this
Certificate of Designation or the Fourth Amended and Restated Certificate of
Incorporation of the Corporation in any manner that would have an adverse effect
on the rights of holders of Series A Preferred Stock.
(C) The Corporation shall not permit any subsidiary of the Corporation or
any employee stock ownership plan (or related trust) or other employee benefit
plan (or related trust) for the employees of the Corporation or any subsidiary
(other than, with respect to any plans other than an employee stock ownership
plan, (i) in the normal operation of a plan qualified under Section 401(k) of
the Internal Revenue Code of 1986, as amended, (ii) any plan (or related trust)
in existence on the date of this Certificate of Designation or (iii) any plan
(or related trust) subsequently approved by the Corporation's stockholders), to
purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section 5,
purchase or otherwise acquire such shares at such time and in such manner.
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Section 6. Redemption.
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(A) Provided that there are no dividend arrearages on the Series A
Preferred Stock and the Corporation is in full compliance with the terms and
conditions of this Certificate of Designation, the Corporation shall have the
right, at its sole option and election, to redeem all or, subject to the
provisions of the following sentence, a portion of the outstanding shares of the
Series A Preferred Stock by paying therefor in cash $60 per share plus any
unpaid dividends to the date of redemption (the "Redemption Price"). In the
event that less than all of the outstanding shares of Series A Preferred Stock
are to be redeemed, the aggregate Redemption Price for any such redemption shall
be not less than $1,000,000.
(B) Notice of any redemption of any shares of Series A Preferred Stock
shall be given by mailing to each holder of shares of Series A Preferred Stock
to be redeemed, at the holder's address as it appears on the books of the
Corporation, written notice of redemption not less than 30 days and not more
than 90 days prior to the date fixed for redemption (the "Redemption Date"). To
facilitate the redemption of shares of Series A Preferred Stock, the Board of
Directors may fix a record date for the determination of shares of Series A
Preferred Stock to be redeemed and holders of shares of Series A Preferred Stock
entitled to notice of redemption, provided that the record date may not be less
than 30 days and may not be more than 60 days prior to the Redemption Date. Any
notice that is mailed in such manner shall be conclusively presumed to have been
duly given, whether or not any holder entitled to notice of redemption actually
receives the notice. The failure of the Corporation to give such notice to any
holder entitled to notice of redemption shall not affect the validity of the
proceedings for the redemption of any shares of Series A Preferred Stock from
any other holder of shares of Series A Preferred Stock.
(C) Notice of redemption shall specify (i) the number of shares of Series
A Preferred Stock shall be redeemed, (ii) the Redemption Date, (iii) the
redemption price (which price shall include accrued but unpaid dividends
thereon), and (iv) the place where payment of the redemption price is to be made
upon surrender of the certificates representing the shares of Series A Preferred
Stock.
(D) In respect of each share of Series A Preferred Stock called for
redemption in accordance with this Section 6, the Corporation shall be obligated
to pay to the registered holder thereof the Redemption Price, upon surrender of
the certificate or certificates representing the shares of Series A Preferred
Stock at the office of the Corporation or any transfer or paying agent specified
for that purpose, on or after the Redemption Date. In the event that less than
all of the outstanding shares of Series A Preferred Stock are redeemed, the
Corporation shall deliver a replacement certificate or certificates representing
any unredeemed shares to the holder tendering such certificates. Unless the
Corporation shall default in the payment of, or in providing for the payment of,
the Redemption Price, dividends on each share of Series A Preferred Stock called
for redemption, shall cease to accrue as of the Redemption Date. Except as
otherwise expressly
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provided in the preceding sentence, holders of shares of Series A Preferred
Stock called for redemption shall not be entitled to any interest on the
Redemption Price.
(E) If, after notice of redemption has been given pursuant to paragraph
(B) of this Section 5, on or prior to the Redemption Date in respect of any
shares of Series A Preferred Stock, the Corporation deposits with a bank or
trust company in the United States that, as of the date of the most recent
available financial statements of the bank or trust company, has a capital and
surplus of at least $50,000,000, a sum sufficient to redeem, on the Redemption
Date, the shares called for redemption, with instructions to the bank or trust
company to pay on or after the Redemption Date the redemption price to the
respective holders of shares of Series A Preferred Stock upon surrender of the
certificate or certificates representing the shares of Series A Preferred Stock,
then from and after the date on which such moneys are deposited the deposit
shall be deemed to constitute full payment to the holders for such shares of
Series A Preferred Stock, and the holders shall have no rights in respect of the
shares of Series A Preferred Stock called for redemption except the right to
receive payment of the redemption price from the bank or trust company. Any
moneys or, if applicable, other property held by any such bank or trust company
that shall remain unclaimed by the holders of Series A Preferred Stock at the
end of six years after the Redemption Date shall become the property of and be
paid to the Corporation.
Section 7. Conversion.
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The shares of Series A Preferred Stock shall have no conversion rights.
Section 8. Reacquired Shares.
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Any shares of Series A Preferred Stock redeemed, 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 to be created by
resolution or resolutions of the Board of Directors, subject to the conditions
and restrictions on issuance set forth herein.
Section 9. Rank.
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The Series A Preferred Stock shall rank, with respect to voting powers,
preferences and relative, participating, optional and other special rights of
the shares of such series and the qualifications, limitations and restrictions
thereof, including, without limitation, with respect to the payment of dividends
and the distribution of assets, whether upon liquidation or otherwise, (i)
equally with respect to all shares of Parity Stock, (ii) prior to all shares of
Junior Stock and to all shares of the Common Stock and (iii) prior to all shares
of any other class or series of preferred stock of the Corporation, unless such
other class or series by its terms ranks equally with or senior to the Series A
Preferred Stock.
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Section 10. Liquidation, Dissolution, Winding Up and Other Events.
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Upon the liquidation (voluntary or otherwise), dissolution, reorganization,
sale of all or any substantial portion of the assets or winding up of the
Corporation, no distribution shall be made to the holders of the Common Stock
unless, prior thereto, the holders of shares of the Series A Preferred Stock
shall have received the product of $60 times any unredeemed shares of the Series
A Preferred Stock, plus any accrued but unpaid dividends to the date of payment
(the "Series A Liquidation Preference"). Following payment of the full amount of
the Series A Liquidation Preference, no additional distributions shall be made
to the holders of the Series A Preferred Stock. In the event there are not
sufficient assets available to permit payment in full of the Series A
Liquidation Preference, then such remaining assets shall be distributed ratably
to the holders of the Series A Preferred Stock.
Section 11. Definitions.
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For the purposes of the provisions governing the shares of Series A
Preferred Stock, the following terms have the meanings set forth below:
"Business Day" shall mean any day other than a Saturday, Sunday or a day on
which banking institutions in the State of New York are authorized or obligated
by law or executive order to close.
"Person" shall mean any person or entity of any nature whatsoever,
specifically including an individual, a firm, a company, a corporation, a
partnership, a trust or other entity. A Person, together with such person's
Affiliates and Associates (as those terms are defined in Rule 12b-2 under the
Securities Exchange Act of 1934), and any Persons acting as a partnership,
limited partnership, joint venture, association, syndicate or other group
(whether or not formally organized), or otherwise acting jointly or in concert
or in a coordinated or consciously parallel manner (whether or not pursuant to
any express agreement), for the purpose of acquiring, holding, voting or
disposing of securities of the Corporation with such Person, shall be deemed a
single "Person."
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IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designation to be signed in its name and on its behalf on this 14th day of July
1998, by its President who acknowledges that this Certificate of Designation is
the act of the Corporation and that to the best of his knowledge, information
and belief and under penalties for perjury, all matters and facts contained in
this Certificate of Designation are true in all material respects.
ATTEST: CALCOMP TECHNOLOGY, INC.
____________________________ By:_______________________(SEAL)
William F. Porter, Jr. John C. Batterton
Secretary President and Chief Executive Officer
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