Attached files
file | filename |
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8-K - FORM 8-K - BREEZE-EASTERN CORP | y92062e8vk.htm |
EX-4.1 - EX-4.1 - BREEZE-EASTERN CORP | y92062exv4w1.htm |
EX-99.1 - EX-99.1 - BREEZE-EASTERN CORP | y92062exv99w1.htm |
Exhibit 3.1
CERTIFICATE OF DESIGNATION
OF
SERIES A JUNIOR PREFERRED STOCK
OF
BREEZE-EASTERN CORPORATION
OF
SERIES A JUNIOR PREFERRED STOCK
OF
BREEZE-EASTERN CORPORATION
Pursuant to Section 151 of the
General Corporation Law of
the State of Delaware
General Corporation Law of
the State of Delaware
Breeze-Eastern Corporation, a corporation duly organized and existing under the General
Corporation Law of the State of Delaware (the Corporation), DOES HEREBY CERTIFY:
That, pursuant to authority conferred by the Corporations Certificate of Incorporation, as
amended, and by the provisions of Section 151 of the General Corporation Law of the State of
Delaware, the Board of Directors of the Corporation (the Board), at a duly called meeting
held on July 18, 2011, at which a quorum was present and acted throughout, adopted the following
resolutions, which resolutions remain in full force and effect on the date hereof, creating a
series of Ten Thousand (10,000) shares of Preferred Stock, $0.01 par value, designated as Series A
Junior Participating Preferred Stock:
RESOLVED, that pursuant to the authority vested in the Board in accordance with the provisions
of the Certificate of Incorporation, as amended, of the Corporation and Section 151(g) of the
General Corporation Law of the State of Delaware, the Board does hereby create, authorize and
provide for the issuance of a series of Preferred Stock, $0.01 par value, of the Corporation,
designated as Series A Junior Participating Preferred Stock, having the voting powers,
designation, preferences and relative, participating, optional and other special rights, and
qualifications, limitations and restrictions thereof that are set forth as follows:
Section 1. Designation and Amount. The shares of such class shall be designated as
Series A Junior Participating Preferred Stock (the Series A Preferred Stock) and the number of
shares constituting such class shall be Ten Thousand (10,000). Such number of shares may be
increased or decreased by resolution of the Board of Directors, provided, however
that no such decrease shall reduce the number of shares of the Series A Preferred Stock to a number
less than the number of shares then outstanding, plus the number reserved for issuance upon the
exercise of options, rights or warrants, or upon conversion of any outstanding securities issued by
the Corporation convertible into Series A Preferred Stock.
Section 2. Dividends and Distributions. (A) Subject to the prior and superior rights
of the holders of any shares of any other class or series of Preferred Stock of the Corporation
ranking prior and superior to the shares of Series A Preferred Stock with respect to dividends,
each holder of a share (a Share) of Series A Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of Directors out of funds legally available for that
purpose, (i) quarterly dividends payable in cash on the last day of March, July, September, and
December in each year (each such date being a Quarterly Dividend Payment Date), commencing on the
first Quarterly Dividend Payment Date after the first issuance of such Share of Series A Preferred
Stock, in an amount per 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 declared on shares of 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 a Share of Series A Preferred Stock, and (ii) subject to the
provision for adjustment hereinafter set forth, quarterly distributions (payable in kind) on each
Quarterly Dividend Payment Date in an amount per Share equal to 1,000 times the aggregate per share
amount 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 shares of 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 a Share of Series A Preferred Stock. In the event that the Corporation shall at any
time after the Rights Dividend Declaration Date (as that term is defined in the Stockholders Rights
Agreement dated July 18, 2011 by and between the Corporation and Computershare Trust Company, N.A.)
(i) declare any dividend on outstanding shares of Common Stock payable in shares of Common Stock,
(ii) subdivide outstanding shares of Common Stock or (iii) combine outstanding shares of Common
Stock into a smaller number of shares, then in each such case the amount to which the holder of a
Share of Series A Preferred Stock was entitled immediately prior to such event pursuant to the
preceding sentence shall be adjusted by multiplying such amount by a fraction the numerator of
which shall be the number of shares of Common Stock that are outstanding immediately after such
event and the denominator of which shall be 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 Shares of Series A Preferred
Stock as provided in paragraph (A) above immediately after it declares a dividend or distribution
on the shares of Common Stock (other than a dividend or distribution payable in shares of Common
Stock); provided, however, 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 Date, a dividend of $1.00 per Share on the Series A
Preferred Stock shall nevertheless be payable on such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and shall be cumulative on each outstanding Share of
Series A Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of
issuance of such Share of Series A Preferred Stock, unless the date of issuance of such Share is
prior to the record date for the first Quarterly Dividend Payment Date, in which case, dividends on
such Share shall begin to accrue from the date of issuance of such
Share, or unless the date of issuance is a Quarterly Dividend Payment Date or is a date after the
record date for the determination of holders of Shares of Series A 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 Shares of Series A
Preferred Stock in an amount less than the aggregate amount of all such dividends at the time
accrued and payable on such Shares shall be allocated pro rata on a share-by-share basis among all
Shares of Series A Preferred Stock 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 or distribution declared thereon, which record date shall be no more
than 30 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of Shares of Series A Preferred Stock shall
have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each Share of Series A
Preferred Stock shall entitle the holder thereof to 1,000 votes on all matters submitted to a vote
of the holders of Common Stock of the Corporation. In the event the Corporation shall at any time
after the Rights Dividend Declaration Date (i) declare any dividend on outstanding shares of Common
Stock payable in shares of Common Stock, (ii) subdivide outstanding shares of Common Stock or (iii)
combine the outstanding shares of Common Stock into a small number of shares, then in each such
case the number of votes per Share to which holders of Shares of Series A Preferred Stock were
entitled immediately prior to such event shall be adjusted by multiplying such number by a
fraction, the numerator of which shall be the number of shares of Common Stock outstanding
immediately after such event and the denominator of which shall be the number of shares of Common
Stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein or in any other Certificate of Designation creating a
series of preferred stock, or any similar stock, or by law, the holders of Shares of Series A
Preferred Stock, the holders of shares of Common Stock, and the holders of any other class or
series of capital stock of the Corporation entitled to vote generally, together with the Common
Stock, shall vote together as one class on all matters submitted to a vote of the holders of such
stock.
(C) (i) If at any time dividends on any Shares of Series A Preferred Stock shall be in arrears
in an amount equal to six quarterly dividends thereon, then during the period (a default period)
from the occurrence of such event until such time as all accrued and unpaid dividends for all
previous quarterly dividend periods and for the current quarterly dividend period on all Shares of
Series A Preferred Stock then outstanding shall have been declared and paid or set apart for
payment, the holders of the outstanding Shares of Series A Preferred Stock, together with the
holders of outstanding shares of any one or more other classes or series of stock of the
Corporation upon which like voting rights have been conferred and are exercisable (voting together
as a class), shall have the right to elect two Directors to the Board of Directors of the
Corporation at the Corporations next annual meeting of stockholders, and so long as such default
period continues, shall have the right to elect a successor to each of the two Directors so elected
upon the expiration of their respective terms, such right to be exercised at the subsequent
annual meeting or meetings at which the respective terms of such Directors expire. Any Director
who shall have been so elected pursuant to this paragraph may be removed only for cause. If the
office of any Director elected by the holders of Shares of Series A Preferred Stock pursuant to
this paragraph becomes vacant for any reason, the remaining Director elected pursuant to this
paragraph may choose a successor who shall hold office for the unexpired term in respect of which
such vacancy occurred, and if the offices of both such Directors elected by the holders of Shares
of Series A Preferred Stock pursuant to this paragraph become vacant for any reason, such vacancies
may be filled for the unexpired term in respect of which such vacancy occurred only by the
affirmative vote of the holders of the outstanding Shares of Series A Preferred Stock, together
with the holders of the outstanding shares of any other class or series of stock upon which like
voting rights have been conferred and are exercisable (voting together as a class).
(ii) The voting rights vested pursuant to paragraph (C)(i) hereof in the holders of the
outstanding Shares of Series A Preferred Stock, together with the holders of outstanding shares of
any one or more other classes or series of stock of the Corporation upon which like voting rights
have been conferred and are exercisable (voting together as a class), may not be exercised at any
annual meeting unless one-third of the outstanding shares of stock of the corporation upon which
such voting rights have been conferred shall be present at such meeting in person or by proxy. The
absence of a quorum of the holders of Common Stock shall not affect the exercise by the holders of
Shares of Series A Preferred Stock of such rights. In connection with the election of Directors
pursuant to paragraph (C)(i) hereof, each holder of Shares of Series A Preferred Stock shall be
entitled to one vote for each one one-thousandth of a Share held (the holders of shares of any
other class or series of preferred stock having like voting rights being entitled to such number of
votes, if any, for each share of such stock held as may be granted to them).
(iii) During any default period, the holders of shares of Common Stock and Shares of Series A
Preferred Stock, and other classes or series of stock of the Corporation, if applicable, shall
continue to be entitled to elect (voting together as a class) all the Directors other than the two
Directors to be elected pursuant to paragraph (C)(i) hereof by the holders of the outstanding
shares of Series A Preferred Stock, together with the holders of outstanding shares of any one or
more other classes or series of stock of the Corporation upon which like voting rights have been
conferred and are exercisable (voting together as a class).
(iv) Immediately upon the expiration of a default period, (x) the right of the holders of
Shares of Series A Preferred Stock to elect Directors pursuant to paragraph (C)(i) hereof shall
cease (subject to re-vesting in the event of each and every subsequent default of the character
mentioned in paragraph (C)(i) above), and (y) the term of any Directors elected by the holders of
Shares of Series A Preferred Stock pursuant to paragraph (C)(i) hereof shall terminate.
(D) Except as set forth herein, holders of Shares of Series A Preferred Stock shall have no
special voting rights and their consents shall not be required (except to the extent they are
entitled to vote with holders of share 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 Shares of Series A 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 outstanding Shares of Series A Preferred Stock shall have been paid in full, the
Corporation shall not
(i) declare or pay dividends on, or make any other distributions on, any shares
of Junior Stock;
(ii) declare or pay dividends on or make any other distributions on any shares
of Parity Stock, except dividends paid ratably on Shares of Series A Preferred Stock
and shares of all such Parity Stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of such Shares and all such
shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares of any
Junior Stock, provided, however, that the Corporation may at any
time redeem, purchase or otherwise acquire shares of any such Junior Stock in
exchange for shares of any Junior Stock;
(iv) redeem or purchase or otherwise acquire for consideration any Shares of
Series A Preferred Stock, or any Parity 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 an 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 Preferred Stock purchased or
otherwise acquired by the Corporation in any manner whatsoever shall be retired and cancelled
promptly after the acquisition thereof. All such shares shall upon their cancellation become
authorized but unissued shares of Preferred Stock, $0.01 par value, 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, or in any other Certificate of Designation creating series of Preferred
Stock, $0.01 par value, or any similar stock, or as otherwise restricted by law.
Section 6. Liquidation, Dissolution or Winding Up. (A) Upon any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation no distribution shall be made
(i) to the holders of shares of Junior Stock unless the holders of Shares of Series A Preferred
Stock shall have received, subject to adjustment as hereinafter provided in paragraph
(B), the greater of either (a) $1.00 per Share plus an amount equal to accrued and unpaid dividends
and distributions thereon, whether or not earned or declared, to the date of such payment, or (b)
the amount equal to 1,000 times the aggregate per share amount to be distributed to holders of
shares of Common Stock, or (ii) to the holders of shares of Parity Stock, unless simultaneously
therewith distributions are made ratably on Shares of Series A Preferred Stock and all other shares
of such Parity Stock in proportion to the total amounts to which the holders of Shares of Series A
Preferred Stock are entitled under clause (i)(a) of this sentence and to which the holders of
shares of such Parity Stock are entitled, in each case upon such liquidation, dissolution or
winding up.
(B) In the event the Corporation shall at any time after the Rights Dividend Declaration Date
(i) declare any dividend on outstanding shares of Common Stock payable in shares of Common Stock,
(ii) subdivide outstanding shares of Common Stock, or (iii) combine outstanding shares of Common
Stock into a smaller number of shares, then in each such case the aggregate amount to which holders
of Shares of Series A Preferred Stock were entitled immediately prior to such event pursuant to
clause (i)(b) of paragraph (A) of this Section 6 shall be adjusted by multiplying such amount by a
fraction the numerator of which shall be the number of shares of Common Stock that are outstanding
immediately after such event and the denominator of which shall be 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 converted into other stock, securities, cash, and/or any other property, then in
any such case Shares of Series A Preferred Stock shall at the same time be similarly exchanged for
or converted 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 other property
(payable in kind), as the case may be, into which or for which each share of Common Stock is
converted or exchanged. In the event the Corporation shall at any time after the Rights Dividend
Declaration Date (i) declare any dividend on outstanding shares of Common Stock payable in shares
of Common Stock, (ii) subdivide outstanding shares of Common Stock, or (iii) combine outstanding
Common Stock into a smaller number of shares, then in each such case the amount set forth in the
immediately preceding sentence with respect to the exchange or conversion of Shares of Series A
Preferred Stock shall be adjusted by multiplying such amount by a fraction the numerator of which
shall be the number of shares of Common Stock that are outstanding immediately after such event and
the denominator of which shall be the number of shares of Common Stock that were outstanding
immediately prior to such event.
Section 8. Redemption. The Shares of Series A Preferred Stock shall not be
redeemable.
Section 9. Ranking. Except as provided below, the Series A Preferred Stock shall
rank junior to all other series of Preferred Stock, $0.01 par value, and to any other class of
preferred stock that hereafter may be issued by the Corporation as to the payment of dividends and
the distribution of assets, unless the terms of any such series or class shall provide otherwise.
The Series A Preferred Stock shall rank prior, as to dividends and upon liquidation, dissolution,
or winding up, to the Common Stock.
Section 10. Amendment. Except as set forth in Section 1 hereof, the Certificate,
including, without limitation, this Certificate of Designation shall not hereafter be amended,
either directly or indirectly, or through merger or consolidation with another corporation in any
manner that would alter or change the powers, preferences or special rights of the Series A
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 A Preferred Stock, voting separately as a
class.
Section 11. Fractional Shares. The Series A Preferred Stock may be issued in
fractions of one one-thousandth of a Share or other fractions of a share, which fractions shall
entitle the holder, in proportion to such holders 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 Preferred Stock.
Section 12. Definitions. All capitalized terms used herein have the meanings ascribed
to them in the Certificate of Incorporation of the Corporation, as amended (the Certificate),
unless otherwise defined herein. In addition, for purposes hereof, the following terms shall have
the meanings set forth below:
(A) The term Common Stock shall mean the class of stock designated as the Common
Stock, $0.01 par value, of the Corporation at the date hereof or any other class of stock resulting
from successive changes or reclassification of such Common Stock.
(B) The term Junior Stock (i) as used in Section 4, shall mean the Common Stock and
any other class or series of capital stock of the Corporation hereafter authorized or issued over
which the Series A Preferred Stock has preference or priority as to the payment of dividends and
(ii) as used in Section 6, shall mean the Common Stock and any other class or series of capital
stock of the Corporation over which the Series A Preferred Stock has preference or priority in the
distribution of assets on any liquidation, dissolution or winding up of the Corporation.
(C) The term Parity Stock (i) as used in Section 4, shall mean any class or series
of stock of the Corporation hereafter authorized or issued ranking pari passu with
the Series A Preferred Stock as to the payment of dividends and (ii) as used in Section 6, shall
mean any class or series of stock of the Corporation hereinafter authorized or issued and ranking
pari passu with the Series A Preferred Stock as to the distribution of assets on
any liquidation, dissolution, or winding up of the Corporation.
IN WITNESS WHEREOF, Breeze-Eastern Corporation has caused this Certificate of Designation to be signed by its
authorized officer this 19th day of July, 2011.
BREEZE-EASTERN CORPORATION |
||||
By: | /s/ Mark D. Mishler | |||
Name: | Mark D. Mishler | |||
Title: | Chief Financial Officer | |||