Pre-Effective Amendment to Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4/A Amendment No. 1 to Form S-4 141 745K
2: EX-3.1 Articles of Incorporation of the Company 10 36K
3: EX-3.2 By-Laws of the Company 9 42K
4: EX-3.3 Articles of Incorporation of Kilovac 75 142K
5: EX-3.4 By-Laws of Kilovac 20 76K
6: EX-3.5 Articles of Incorporation of Kilovac International 2 14K
7: EX-3.6 By-Laws of Kilovac International 19 76K
8: EX-4.1 Indenture, Dated September 18, 1997 147 467K
9: EX-4.2 Purchase Agreement, Dated September 12, 1997 40 132K
10: EX-4.3 Registration Rights Agreement 33 121K
11: EX-10.1 Ramzi A. Dabbagh Employment Agreement 8 34K
19: EX-10.10 Security Agreement, Dated September 18, 1997 53 154K
20: EX-10.11 Stock Subscription & Purchase Agreement 29 161K
21: EX-10.13 Environmental Remediation & Escrow Agreement 16 45K
22: EX-10.14 Lease Agreement, Dated July 2, 1996 31 116K
23: EX-10.15 2nd Amend. to Stock Subscription & Purchase Agrmt 8 36K
24: EX-10.17 Amend. to the Recapitalization Agreement 61 280K
25: EX-10.18 Indemnification & Escrow Agreement 12 57K
26: EX-10.19 Stockholders Agreement, Dated September 18, 1997 27 98K
12: EX-10.2 G. Daniel Taylor Employment Agreement 8 34K
27: EX-10.20 Registration Agreement, Dated September 18, 1997 27 98K
28: EX-10.21 Form of Junior Subordinated 10 47K
29: EX-10.22 Kilovac & Dan McAllister Employment Agreement 4 26K
30: EX-10.23 Kilovac & McPherson Employment Agreement 4 27K
31: EX-10.24 Kilovac & Rick Danchuk Employment Agreement 4 27K
32: EX-10.25 Kilovac & Robert A. Helman Employment Agreement 4 27K
13: EX-10.3 Michael A. Steinback Employment Agreement 4 25K
14: EX-10.4 David Henning Employment Agreement 3 21K
15: EX-10.5 Management Agreement, Dated September 18, 1997 5 25K
16: EX-10.6 Tax Sharing Agreement 4 21K
17: EX-10.8 Pledge Agreements, Dated September 18, 1997 17 62K
18: EX-10.9 Subsidiary Guarantee, Dated September 18, 1997 14 55K
33: EX-12.1 Statement of Computation of Ratios 1 15K
34: EX-21.1 Subsidiaries of the Company, Kilovac & Kilovac Int 1 12K
35: EX-23.1 Consent of Deloitte & Touche LLP 1 13K
36: EX-23.2 Consent of Deloitte & Touche 1 13K
37: EX-23.3 Consent of Deloitte & Touche LLP 1 13K
38: EX-99.1 Form of Letter of Transmittal 11 57K
39: EX-99.2 Form of Notice of Guaranteed Delivery 4 24K
40: EX-99.3 Form of Tender Instructions 2± 16K
EX-3.3 — Articles of Incorporation of Kilovac
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ARTICLES OF INCORPORATION
OF
HIGH VACUUM ELECTRONICS, INC.
KNOW ALL MEN BY THESE PRESENTS:
That we, the undersigned, have this day voluntarily associated
ourselves together for the purpose of forming a corporation under the laws of
the State of California, and for that purpose do hereby adopt Articles of
Incorporation as follows:
ARTICLE I
The name of this corporation is
HIGH VACUUM ELECTRONICS, INC.
-----------------------------
ARTICLE II
The principal office for the transaction of business of the
corporation is to be located in the County of Los Angeles, State of California.
ARTICLE III
The specific business in which the corporation proposes primarily and
initially to engage is the business of designing, engineering, manufacturing and
selling high vacuum electronics products.
The general purposes for which the corporation is formed are as
follows:
(a) To engage in the business of designing, engineering, buying,
manufacturing, using, leasing, selling, distributing and marketing,
including acting as a distributor, wholesaler or retailer, and to
engage in any business
related or unrelated to those purposes described above, and to engage
in any business from time to time authorized or approved by the Board
of Directors of this corporation.
(b) To carry on any other lawful business whatsoever, which the
corporation may deem proper or convenient or capable of being carried
on in connection with the foregoing, or otherwise, or which may be
calculated, directly or indirectly, to promote the interests of the
corporation or to enhance the value of its property and to have, enjoy
and exercise all the rights, powers and privilege, which are now or
which may hereafter be conferred upon corporations by the laws of the
State of California, including the right to enter into partnerships
and joint ventures and to do any and all of the things hereinbefore
set forth as principal and agent to the same extent as natural persons
might or could do, and in any part of the world.
ARTICLE IV
The total number of shares which the corporation is authorized to
issue is 4,000. The aggregate par value of said shares shall be One Hundred
Thousand Dollars ($100,000.00) and the par value of each share shall be Twenty
Five Dollars ($25.00). No distinction shall exist between shares of the
corporation or the holders thereof.
ARTICLE V
(a) The directors of the corporation shall be three (3) in number.
This number shall constitute the Board of Directors of the corporation
until changed by an amendment to these Articles of Incorporation or by
an amendment to the By-Laws of the corporation duly adopted by the
shareholders. Authority is hereby
given for the adoption by the shareholders of a provision in the By-
Laws concerning the number of directors of the corporation and changes
therein.
(b) The names and addresses of the persons who are appointed to act
as the first directors are:
Name of Director Address
---------------- -------
Harry B. Boller 1300 Milan Avenue
South Pasadena, California
Clyde C. Chivens 2273 Queensbury Road
Pasadena, California
Foster H. Campbell 1217 Linda Vista
Pasadena, California
ARTICLE VI
The directors shall adopt By-Laws which shall remain in effect until
the same or other By-Laws are adopted by the shareholders of the corporation.
IN WITNESS WHEREOF, we, the undersigned, constituting the
incorporators of the corporation and the persons above-named as the first
directors of the corporation, have executed these Articles of Incorporation on
this 7th day of February, 1964.
__________________________________
Harry B. Roller
__________________________________
Clyde C. Chivens
__________________________________
Foster H. Campbell
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On _____________________, 1964, before me, __________________, a
Notary Public in and for said County and State, personally appeared Harry B.
Boller, Clyde C. Chivens and Foster H. Campbell, known to me to be the persons
whose names are subscribed to the foregoing Articles of Incorporation, and
acknowledged to me that they executed the same.
WITNESS my hand and official seal.
_____________________________________
Notary Public in and for said County and State
CERTIFICATE OF DETERMINATION OF PREFERENCES
PREFERRED STOCK OF HIGH VACUUM ELECTRONICS, INC.
F. H. Campbell and Marge E. Casten certify that:
1. They are the President and the Assistant Secretary, respectively,
of HIGH VACUUM ELECTRONICS, INC., a California corporation.
-----------------------------
2. The By-Laws of said corporation authorize the directors to adopt
any resolutions by unanimous written consent without a meeting. Pursuant to
authority conferred upon the Board of Directors of said corporation by its
Articles of Incorporation and pursuant to the provisions of Section 1102 of the
California Corporations Code, by unanimous written consent of the Board of
Directors of said corporation dated December 3, 1969, the following resolution
was adopted:
"RESOLVED, that this Board of Directors does hereby provide for
the issue of an initial series of Preferred Stock of this corporation and does
hereby fix and determine the rights, preferences, restrictions and other matters
relating to said initial series of Preferred Stock as follows:
1. Designation and Number of Shares: This initial series of
--------------------------------
Preferred Stock shall be designated and known as the 4% Cumulative
Convertible Preferred Series, $100 par value (the "4% Preferred Series"),
and the number of shares constituting the 4% Preferred Series shall be 750
shares.
2. Dividend Rights. The holders of the outstanding shares of
---------------
the 4% Preferred Series shall be entitled to receive when and as declared
by the Board of Directors, out of funds legally available therefor,
dividends at the rate of four percent
(4%) per annum of the par value thereof, and no more, payable in cash
quarterly to the shareholders of record on the fifteenth day of each
February, May, August and November in each year. Such dividends shall
accrue on each share from the date of its original issuance and shall
accrue from day to day, whether or not earned or declared. Such dividends
shall be cumulative so that if such dividends in respect of any previous
quarterly dividend period and for the current quarterly dividend period at
the rate of four percent (4%) per annum shall not have been paid on or
declared and set apart for shares of the 4% Preferred Series at the time
outstanding, the deficiency shall be fully paid on or declared and set
apart for such shares before any dividend or other distribution shall be
paid on or declared or set apart for the Common Stock of this corporation.
3. Liquidation Preference. In the event of a voluntary or
----------------------
involuntary liquidation, dissolution or winding up of this corporation,
each holder of a share of the 4% Preferred Series shall be entitled to
receive out of the assets of this corporation, whether such assets are
capital or surplus of any nature, an amount equal to $100 per share and any
accrued and unpaid dividends, and no more, before any payment shall be made
or any assets distributed to the holders of the Common Stock of this
corporation.
If upon such liquidation, dissolution or winding up, whether
voluntary or involuntary, the assets available for such distribution among
the holders of the 4% Preferred Series shall be insufficient to permit the
payment to such holders of the full preferential amounts aforesaid, then
the entire assets of this corporation to be distributed shall be
distributed ratably among such holders on the basis of their respective
ownership of shares of the 4% Preferred Series.
A consolidation or merger of this corporation with or into any
other corporation or corporations, or a sale of all or substantially all of
the assets of this corporation, shall not be deemed to be a liquidation,
dissolution or winding up within the meaning of this paragraph.
4. Voting Rights. The holders of shares of the 4% Preferred
-------------
Series shall be entitled to cast one vote for each share held for the
election of directors and on all other matters to be voted on by the
shareholders of this corporation.
5. Conversion Rights. The 4% Preferred Series shall be
-----------------
convertible, at the option of the respective holders thereof, into shares
of the $.10 par value Common Stock of this corporation from and after such
time as the Securities and Exchange Commission declares effective a
Registration Statement of this corporation filed pursuant to the Securities
Act of 1933 for the purpose of offering such Common Stock for sale to the
public through and underwriter. From and after such time as the Securities
and Exchange Commission declares effective such a Registration Statement,
each share of the 4% Preferred Series shall be convertible into a number of
shares of $.10 par value Common Stock of this corporation determined by
dividing into $100 the price per share at which such Common Stock is
initially offered by the underwriter to the public. At such time as this
corporation files with the Securities and Exchange Commission a
Registration Statement for the purpose of offering such Common Stock to the
public through an underwriter, notice of such filing, by mail, postage
prepaid, shall be given to the holders of record of the 4% Preferred
Series, such notice to be addressed to each such shareholder at his post
office address shown by the records of this corporation.
6. Sinking Fund. On or before August 1, 1979, this corporation
------------
shall create with funds of the corporation a sinking fund (the "Fund") for
the purchase or redemption of the 4% Preferred Series. The amount of the
Fund shall be equal to the amount sufficient to redeem all the shares of 4%
Preferred Series then outstanding (the amount of the Fund is sometimes
referred to as the "Redemption Amount"). In the event sufficient funds are
not available on or before August 1, 1979 to purchase or redeem all of the
outstanding shares of the 4% Preferred Series, additional funds of the
corporation shall be set aside in the Fund, as such funds become available,
until all the outstanding share of the 4% Preferred Series shall have been
purchased or redeemed. The Fund shall be applied in accordance with the
provisions of paragraph 7 below and shall continue in existence until such
time as all shares of the 4% Preferred Series shall have been redeemed or
purchased by the corporation or converted into shares of Common Stock, at
which time the Fund shall terminate and all sums remaining in the Fund
shall become part of the general funds of the corporation.
7. Redemption Rights. On September 1, 1979, this corporation
-----------------
shall, to the extent the Redemption Amount is legally available therefor,
redeem all the then outstanding shares of the 4% Preferred Series (or such
lesser number as may be legally permitted) by paying in cash therefor, upon
surrender of such shares, $100 for each share so redeemed, plus an amount
equal to all dividends on the 4% Preferred Series, unpaid and accumulated
as provided for above, to and including the date fixed for redemption. If
such redemption involves less than all of the outstanding shares of 4%
Preferred Series, the Board of Directors shall determine the specific
shares to be redeemed by lot or pro-rata, as deemed appropriate by the
Board of Directors.
On August 1, 1979, this corporation shall mail, postage prepaid,
written notice to the holders of record of the 4% Preferred Series to be
redeemed, and each holder of shares of 4% Preferred Series to be so
redeemed shall surrender the certificates evidencing such shares to the
corporation at the place designated in such notice and shall thereupon be
entitled to receive such cash payment. If such notice of redemption shall
have been duly given and if on September 1, 1979 the Redemption Amount is
legally available for such redemption, all rights with respect to all
shares of 4% Preferred Series noticed for redemption shall cease,
notwithstanding the failure to surrender any certificates therefor, except
the right to receive such cash payment, without interest, upon surrender of
the certificates evidencing such shares. If less than all of the
outstanding shares of 4% Preferred Series shall have been purchased or
redeemed by the corporation on or before September 1, 1979 by reason of the
Redemption Amount being insufficient or legally unavailable to purchase or
redeem all such shares, the corporation shall, on January 1, 1980, and
subsequently on the first day of July and January of each succeeding year
until such time as all outstanding shares of 4% Preferred Series shall have
been redeemed or purchased by the corporation or converted into shares of
Common Stock of the corporation, apply the entire amount of the Fund
legally available therefor to the purchase or redemption of outstanding
shares of 4% Preferred Series."
3. The authorized number of shares of Preferred Stock of this
corporation is 5,000 shares constituting the 4% Cumulative Convertible Preferred
Series, $100 par value, which this corporation is authorized to issue is 750
shares, and none of such shares has been issued.
Executed this 4th day of December, 1969, at Santa Barbara, California.
_________________________________________
F. H. Campbell, President
_________________________________________
Margie E. Casten, Assistant Secretary
VERIFICATION
F. H. Campbell and Margie E. Casten each declare under penalty of
perjury that they are the President and Assistant Secretary, respectively, of
High Vacuum Electronics, Inc., a California corporation, and that the matters
set forth in the foregoing Certificate of Determination are true and correct.
Executed at Santa Barbara, California, on December 4, 1969.
_________________________________________
F. H. Campbell, President
_________________________________________
Margie E. Casten, Assistant Secretary
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION OF HIGH VACUUM ELECTRONICS, INC.
F. H. Campbell and Margie E. Casten certify that:
1. They are the President and the Assistant Secretary, respectively
of HIGH VACUUM ELECTRONICS, INC., a California corporation.
2. The By-Laws of said corporation authorize the directors to amend
the Articles of Incorporation of said corporation by unanimous written consent;
by unanimous written consent of the Board of Directors of said corporation dated
December 3, 1969, the following resolutions were adopted:
"RESOLVED: That Article I of the Articles of Incorporation of
this corporation be amended to read as follows:
`The name of this corporation is KILOVAC CORPORATION.'"
"RESOLVED FURTHER: That Article IV of the Articles of
Incorporation of this corporation be amended to read as follows:
`This corporation is authorized to issue two classes of stock
which shall be designed Preferred Stock and Common Stock,
respectively. The total number of shares which this corporation is
authorized to issue is 305,000 shares of two classes, consisting of
300,000 shares of Common Stock without series and with a par value of
$.10 per share, and 5,000 shares of Preferred Stock, $100 par value.
The aggregate par value of all shares of stock that are to have a par
value shall be $530,000.
`Upon the amendment of this Article IV to read as herein set
forth, each outstanding share of a par value of $25.00 is hereby
classified and converted into 500 shares of Common Stock of a par
value of $.10 per share.
`The shares of Preferred Stock may be issued from time to time in
one or more series. The Board of Directors of the corporation may, in
their unlimited and unrestricted discretion, fix or alter the dividend
rights, dividend rate, conversion rights, voting rights, rights and
terms of redemption (including sinking fund provisions), the
redemption price or prices and the liquidation preferences of any
wholly unissued series of shares of Preferred Stock and the number of
shares constituting any series and the designations of such series;
and increase or decrease the number of shares of any series subsequent
to the issue of shares of that series, but not below the number of
shares of such series then outstanding. Incase the number of shares of
any series shall be so decreased, the shares constituting such
decrease shall resume the status which they had prior to the
resolution originally fixing the number of such series.'"
3. The shareholders have adopted said amendment by unanimous written
consent. The wording of the amended article, as set forth in the shareholders'
written consent, is the same as that set forth in the directors' resolution in
paragraph 2 above.
4. The total number of shares represented by written consent is 200,
the total number of shares entitled to vote on or consent to the amendment is
200.
______________________________________
F. H. Campbell, President
______________________________________
Margie E. Casten, Assistant Secretary
VERIFICATION
Each of the undersigned declares under penalty of perjury that the
matters set forth in the foregoing certificate are true and correct. Executed
at Santa Barbara, California, on December 4, 1969.
_____________________________________
_____________________________________
CERTIFICATE OF OWNERSHIP
KILOVAC CORPORATION
KILOVAC CORPORATION, a California corporation, does hereby certify
that:
1. Kilovac Corporation owns all of the issued and outstanding shares
of the capital stock of Penta Laboratories, Inc., a California corporation.
2. By a Written Consent to Action, dated May 5, 1970, executed by
each member of the Board of Directors of Kilovac Corporation pursuant to the
Corporations Code of the State of California and the By-Laws of said
corporation, the following resolutions were adopted:
"WHEREAS, this corporation owns all of the issued and outstanding
shares of the capital stock of Penta Laboratories, Inc.; and
"WHEREAS, it is deemed to be in the best interests of this
corporation and its shareholders that Penta Laboratories, Inc. be
merged into this corporation;
"NOW, THEREFORE, BE IT RESOLVED, that this corporation merge
Penta Laboratories, Inc., its wholly owned subsidiary, into itself and
assume all of the obligations of said subsidiary pursuant to Section
4124 of the Corporations Code of California; and
"RESOLVED FURTHER, that the President and the Secretary of an
Assistant Secretary of this corporation be and they hereby are
authorized and directed to execute and file a Certificate of Ownership
pursuant to Section 4124 of the Corporations Code of California, and
to do any and all things and to execute any and all documents which
they consider necessary and proper in order to consummate said merger.
IN WITNESS WHEREOF, Kilovac Corporation has executed this Certificate
this 14th day of January, 1971.
KILOVAC CORPORATION
By _______________________________________
Foster H. Campbell, President
By _______________________________________
Margie E. Casten, Assistant Secretary
Each of the undersigned declares under penalty of perjury that the
matters set forth in the foregoing Certificate are true and correct.
Executed at Santa Barbara, California, January 14th, 1971.
_______________________________________
Foster H. Campbell, President
_______________________________________
Margie E. Casten, Assistant Secretary
CERTIFICATE OF OWNERSHIP
KILOVAC CORPORATION
KILOVAC CORPORATION, a California corporation, does hereby certify
that:
1. Kilovac Corporation owns all of the issued and outstanding shares
of the capital stock of Penta Laboratories, Inc., a California corporation.
2. By a Written Consent to Action, dated May 5, 1970, executed by
each member of the Board of Directors of Kilovac Corporation pursuant to the
Corporations Code of the State of California and the By-Laws of said
corporation, the following resolutions were adopted:
"WHEREAS, this corporation owns all of the issued and outstanding
shares of the capital stock of Penta Laboratories, Inc.; and
"WHEREAS, it is deemed to be in the best interests of this
corporation and its shareholders that Penta Laboratories, Inc. be
merged into this corporation;
"NOW, THEREFORE, BE IT RESOLVED, that this corporation merge
Penta Laboratories, Inc., its wholly owned subsidiary, into itself and
assume all of the obligations of said subsidiary pursuant to Section
4124 of the Corporations Code of California; and
"RESOLVED FURTHER, that the President and the Secretary of an
Assistant Secretary of this corporation be and they hereby are
authorized and directed to execute and file a Certificate of Ownership
pursuant to Section 4124 of the Corporations Code of California, and
to do any and all things and to execute any and all documents which
they consider necessary and proper in order to consummate said merger.
IN WITNESS WHEREOF, Kilovac Corporation has executed this Certificate
this 14th day of January, 1971.
KILOVAC CORPORATION
By _______________________________________
Foster H. Campbell, President
By _______________________________________
Margie E. Casten, Assistant Secretary
Each of the undersigned declares under penalty of perjury that the
matters set forth in the foregoing Certificate are true and correct.
Executed at Santa Barbara, California, January 14th, 1971.
_______________________________________
Foster H. Campbell, President
_______________________________________
Margie E. Casten, Assistant Secretary
CERTIFICATE OF DETERMINATION OF PREFERENCES
OF
PREFERRED STOCK OF KILOVAC CORPORATION
F. H. Campbell and Margie E. Casten certify that:
1. They are the President and the Assistant Secretary, respectively,
of KILOVAC CORPORATION, a California corporation.
2. The Articles of Incorporation of said corporation, as amended,
authorize the issuance of 5,000 shares of preferred stock, par value $100 per
share, from time to time, in one or more series, and authorize the Board of
Directors by resolution to fix the rights, privileges and preferences thereof
and the number of shares constituting any unissued series of preferred stock and
the designation of such series, and that pursuant thereto the Board of Directors
of said corporation, at a meeting duly held on January 31, 1971, in Santa
Barbara, California, at which meeting a quorum was present and acting
throughout, did duly adopt the following resolution:
"RESOLVED, that this Board of Directors does hereby provide for
the issuance of an additional series of Preferred Stock of this corporation and
does hereby fix and determine the rights, preferences, restrictions and other
matters relating to said additional series of Preferred Stock as follows:
1. Designation and Number of Shares. This series of Preferred Stock
--------------------------------
shall be designated and known as the 7% Class C Convertible Preferred Stock,
$100 par value (the "Class C Stock"), and the number of shares constituting the
Class C Stock shall be 1,000 shares.
2. Class C Stock Dividends. The holders of Class C Stock shall be
-----------------------
entitled to receive dividends at the rate of 7% per annum on the par value
thereof, payable in cash. Dividend payments shall be made quarterly on March
31, June 30, September 30 and December 31 of each
year, or at such lesser intervals as the Board of Directors may from time to
time determine. Such dividends shall accrue from the date of issuance of the
respective shares of Class C Stock and shall be deemed to accrued from day to
day whether or not earned or declared. Such dividends shall be payable before
any dividends shall be declared or paid or set apart for the Common Stock, and
shall be cumulative so that if in any year or years dividends upon the
outstanding Class C Stock at the rate of 7% per annum of the par value thereof
shall not have been paid thereon or set apart therefor, the amount of the
deficiency shall be fully paid or declared and set apart for payment, but
without interest, before any distribution, whether by way of dividend or
otherwise, shall be declared or paid upon or set apart for the Common Stock.
3. Liquidation Preferences.
-----------------------
(a) In the event of a voluntary or involuntary liquidation,
dissolution or winding up of this corporation, the holders of Class C Stock
shall be entitled to receive out of the assets of this corporation, whether
such assets are capital or surplus of any nature, an amount equal to the
par value of the Class C Stock; and, in addition to such amount, a further
amount equal to the dividends unpaid and accumulated thereon, as provided
in Section 2 above to the date of such distribution, whether earned or
declared, or not, all on a parity with the shares of the Company's 4%
Preferred Series then outstanding and with the shares of any other series
of Preferred Stock that by its terms is entitled to participate on a parity
with the 4% Preferred Series.
(b) If upon such liquidation, dissolution or winding up, whether
voluntary or involuntary, the assets thus distributed among the holders of
the Class C Stock shall be insufficient to permit the payment to such
shareholders of the full preferential amounts
-2-
aforesaid, then the entire assets of this corporation to be distributed
shall be distributed ratably among the holders of the 4% Preferred Series,
the Class C Stock and any other series of Preferred Stock that by its terms
is to share in such distribution with the 4% Preferred Series.
(c) A consolidation or merger of this corporation with or into
any other corporation or corporations shall not be deemed to be a
liquidation, dissolution or winding up within the meaning of this
paragraph.
4. Voting Rights. Except as otherwise provided hereinafter, the
-------------
holders of the shares of Class C Stock shall be entitled to one vote per share
and to vote on all matters on which holders of common stock of the Corporation
are entitled to vote. If, however: (i) all quarterly dividends cumulated on
the Class C Stock as of March 31, 1973, shall not have been paid in full by
April 15, 1973; or (ii) any cumulated dividends payable on the Class C Stock for
any year subsequent to March 31,1973 shall not have been paid in full as of
April 15 of any year subsequent to 1973; or (iii) the corporation shall fail to
create a Sinking Fund at the times and to the extent provided for in Section 6
hereof; or (iv) the corporation issues any further shares of Class C Stock
(except as provided in Section 8 hereof) or declares a dividend on its Common
Stock without the prior written consent of the holders of the Class C Stock; or
(v) the holders of any class of stock of the corporation (other than common
stock) are entitled, pursuant to the terms of the instrument creating such
class, to elect a majority of the Board of Directors, then the holders of the
Class C Stock as a class shall be entitled to elect one director to the Board of
Directors (subject only to the prior right of the corporation's Class B Stock to
elect two-thirds of the members thereof in such events) until all defaults
giving rise to the special voting rights of the holders of Class C Stock have
-3-
been cured or waived, at which time the voting rights shall revert to their
status prior to the occurrence of such defaults. Any officer, director, or
shareholder may call a special meeting of all shareholders of the corporation in
the manner prescribed in the By-Laws for the purpose of electing a director
pursuant to this Section, and for such purpose shall have access to the records
of the corporation upon such defaults. Upon restoration of full voting rights to
their previous status, the term of the director elected by the holders of the
Class C Stock shall expire and a special meeting of all shareholders may be
called to elect a number of directors sufficient to fill all existing positions,
or the Board of Directors, if permitted by the By-Laws, may fill such vacancy.
5. Redemption. The corporation may at any time, at the option of
----------
the Board of Directors, redeem the whole or from time to time any part of the
Class C Stock, by paying in cash for each share an amount equal to the par value
of each share plus an amount equal to all dividends accrued, unpaid and
accumulated thereon as provided in Section 2 hereof to and including the date
fixed for redemption, the total of such amounts being hereinafter referred to as
the "redemption price". Should only a part of the Class C Stock outstanding be
redeemed, such redemption shall be effected by lot as prescribed by the Board of
Directors or pro rata. No Class C Stock may be redeemed unless all accrued
dividends as provided for in Section 2 hereof on all outstanding shares of Class
C Stock shall have been paid for all past dividend periods and full dividends as
provided for in Section 2 hereof for the current period declared upon all Class
C Stock, except the shares to be redeemed. At least sixty (60) days prior
notice by mail, postage prepaid, shall be given to each holder of record of the
shares of Class C Stock to be redeemed, at his last known address shown on the
records of the corporation. On or before the date fixed for redemption, each
holder of Class C Stock called for redemption shall, unless he shall have
previously exercised his option to convert
-4-
his Class C Stock as provided in Section 7 hereof, surrender his certificate for
such shares to the corporation at the place designated in the notice of
redemption and shall thereupon be entitled to receive payment of the redemption
price. In case less than all the shares represented by any such surrendered
certificate are redeemed, a new certificate shall be issued representing the
unredeemed shares. If such redemption notice shall have been duly given and if
on the date fixed for redemption, funds necessary for the redemption shall be
legally available therefor, then all rights with respect to such shares so
called for redemption, whether or not surrendered, shall terminate except for
the right of interest upon surrender of such certificates therefor to the date
fixed for redemption.
6. Sinking Fund.
------------
(a) On or before March 31, 1982 the corporation shall create from
the net earnings of the corporation for any preceding fiscal year or years,
after full payment or provision of repayment of dividends on the Class C
Stock and all other shares of the corporation ranking prior to or on a
parity with the Class C Stock for all prior fiscal years through the end of
the last preceding dividend period for such shares, as a sinking fund for
the purchase or redemption of the Class C Stock (hereinafter called the
"Sinking Fund"), cash, bonds or other certificates of indebtedness of the
United States of America or corporate bonds, rated A or better by any of
the standard bond rating services and listed on the New York Stock
Exchange, in a sum equal to 33-1/3% of the par value of the total number of
shares of Class C Stock originally outstanding. On or before each of March
31, 1983 and March 31, 1984, the corporation shall add to the Sinking Fund,
from net earnings as aforesaid, an additional sum in each case equal to 33-
13/% of the par value of the total number of shares of Class C Stock
originally outstanding. if on any March 31 referred to
-5-
above the net earnings after such payment or provision for payment of
dividends shall be insufficient to discharge the applicable Sinking Fund
requirement in full, then the net earnings shall be set aside for the
Sinking Fund. The Sinking Fund requirements shall be cumulative so that if
for any year or years the requirements shall not be fully discharged the
net earnings, after payment or provisions for dividends, for each fiscal
year thereafter shall be applied thereto until the requirements are fully
discharged.
(b) On or before June 30 in each of the years 1982, 1983 and
1984, respectively, the cash or bonds in the Sinking Fund as of such date
shall be used to acquire one-third of the total number of shares of Class C
Stock originally outstanding to the extent of the amount then in the
Sinking Fund, by purchase, at a price or prices not exceeding the par value
thereof, or by redemption, at the par value thereof, in the manner provided
in Section 5 hereof, in each case plus accrued dividends thereon to the
date of such purchase or redemption which shall be paid from the general
funds of the corporation and not from the Sinking Fund, or by both such
purchase and such redemption. Upon retirement of all Class C Stock, any
cash or bonds remaining in the Sinking Fund in excess of that required to
complete payment for any shares purchased or agreed to be purchased, or to
redeem shares called for redemption through the operation of the Sinking
Fund, shall become a part of the general funds of the corporation.
7. Conversion Rights.
-----------------
(a) The holder of any share or shares of Class C Stock shall have
the right, at this option, at any time after December 31, 1971, subject to
the terms and provisions of this Section 7, to convert any such share or
shares of Class C Stock (valuing each Class C
-6-
share at $100 for the purpose of such conversion) into shares of Common
Stock of the corporation, initially at the price of $3.354 per share of
Common Stock, or in case an adjustment of such amount has taken place
pursuant to the provisions of this Section 7 hereof, then at the amount as
last adjusted (said initial or adjusted price being referred to herein as
the "conversion price"), upon surrender of the certificate or certificates
for such share or shares of Class C Stock to the corporation at any time
during usual business hours at the office of the corporation or at the
office of any transfer agent for the shares of Class C Stock or at such
other place, if any, as the Board of Directors shall determine, together
with written notice (hereinafter referred to as the "conversion notice"),
that the holder elects to convert such share or shares of Class C Stock
into Common Stock in accordance with the provisions hereof, and specifying
the name or names in which the shares of stock issuable upon such
conversion shall be registered, together with the addresses of the persons
so named, and accompanied by a written instrument or instruments of
transfer in form satisfactory to the corporation duly executed by the
holder or his attorney duly authorized in writing. In the event the names
so specified are different from the name of the registered holder of the
Class C Stock so converted, the holder shall also furnish the corporation
with evidence satisfactory to it that registration of such shares is not
required under the Securities Act of 1933, as then in effect, and, if the
corporation's counsel shall advise it to do so, the corporation shall have
the right to place on the certificates evidencing such shares an
appropriate legend restricting the transfer thereof.
(b) As promptly as practicable after the surrender, as herein
provided, of any certificate or certificates for such share or shares of
Class C Stock for conversion, and
-7-
the receipt of the conversion notice relating thereto, the corporation
shall deliver or cause to be delivered at said office to or upon the
written order of the person for whose account such share or shares of Class
C Stock were so surrendered, certificates representing the number of fully-
paid and non-assessable shares of Common Stock of the corporation to which
he shall be entitled, imprinted with a legend restricting the transfer
thereof, if appropriate, together with a cash adjustment for any fraction
of a share as hereinafter stated if not evenly convertible plus all
dividends accrued and unpaid thereon to the date of conversion. Subject to
the following provisions of this paragraph 7 hereof, such conversion shall
be deemed to have been made at the close of business on the date of such
surrender of the share or shares of Class C Stock to be converted and the
person or persons entitled to receive the shares of Common Stock upon
conversion of such share of Class C Stock shall be treated for all purposes
as having become the record holder or holders of such shares of Common
Stock at such time and such conversion shall be at the conversion price in
effect at such time.
(c) Adjustments to conversion price shall be made as follows:
(i) Subject to the exceptions referred to below, in case the
corporation shall at any time or from time to time after the date
hereof issue any additional shares of Common Stock for a consideration
per share less than the conversion price in effect immediately prior
to the issuance of such additional shares, or without consideration,
then, and thereafter successively upon each such issuance, the
conversion price in effect immediately prior to the issuance of such
additional shares shall forthwith be reduced to a price determined by
dividing an amount equal to
-8-
(x) the total number of shares of Common Stock outstanding immediately
prior to such issuance, multiplied by the conversion price in effect
immediately prior to such issuance, plus (y) the consideration, if
any, received by the corporation upon such issuance, by the total
number of shares of common stock outstanding immediately after the
issuance of such additional shares.
For the purposes of any adjustment as provided in this Section
7(c), the following provisions shall also be applicable:
(A) In case of the issuance of additional shares of Common
Stock solely for cash, the consideration received by the corporation
therefor shall be deemed to be the net cash proceeds received by the
corporation for such shares before deducting any commissions or other
expenses paid or incurred by the corporation for any underwriting of,
or otherwise in connection with, the issuance of such shares.
(B) In case of the issuance by the corporation of (i) any
security that is convertible into shares of Common Stock of the
corporation (other than the Class C Stock, the corporation's 7% Class
B Convertible Preferred Stock and any other shares of convertible
preferred stock outstanding on March 1, 1971, or (ii) any rights or
options to purchase shares of Common Stock of the corporation (except
as stated below), the corporation shall be deemed to have issued the
maximum number of shares of Common Stock into which such convertible
security may be converted, or the maximum number of shares of Common
Stock deliverable upon the exercise of such rights or options, for the
consideration received by the corporation for such
-9-
convertible securities or for such rights or options, as the case may
be, before deducting any commissions or other expenses paid or
incurred by the corporation for any underwriting of, or otherwise in
connection with, the issuance of such convertible security or rights
or options plus (i) any consideration or adjustment payment to be
received by the corporation in connection with such conversion, or
(ii) the minimum aggregate price at which shares of Common Stock of
the corporation are to be delivered upon the exercise of such rights
or options or, if no minimum price is specified and such shares are to
be delivered at an option price related to the market value of the
subject shares, an aggregate option price bearing the same relation to
the market value of the subject shares at the time such rights or
options were granted; provided that as to such options such further
adjustments as shall be necessary on the basis of the actual option
price at the time of exercise shall be made at such time if the actual
option price is less than the aforesaid assumed option price. No
further adjustment of the conversion price shall be made as a result
of the actual issuance of shares of Common Stock of the corporation
referred to in this Clause (B). On the expiration of such rights or
options, or the termination of such right to convert, the conversion
price hereunder shall be readjusted to such conversion price as would
have obtained had the adjustments made upon the issuance of such
rights, options, or convertible securities been made upon the basis of
the delivery of only the number of shares of Common Stock actually
delivered upon the exercise of such rights or options or upon the
conversion of any such securities.
-10-
(C) The consideration for any additional shares of Common
Stock (or securities convertible into Common Stock) issued as a stock
dividend shall be deemed to be nothing.
(D) In the event that any shares of Common Stock or any
warrants, rights or options to purchase any shares of Common Stock or
any securities convertible into or exchangeable for shares of Common
Stock shall be issued by the corporation for a consideration only a
portion of which is cash or none of which is cash, the Board of
Directors of the corporation shall determine the fair value of such
consideration other than cash and the shares, warrants, rights,
options or convertible or exchangeable securities shall be deemed to
be issued for an amount of cash equal to the cash portion of the
consideration, if any, plus the value so determined by the Board of
Directors.
(E) The number of shares of stock of any class at the time
outstanding shall include all shares of stock of that class then owned
or held by or for the account of the corporation and shall include the
aggregate number of shares deliverable in respect of the convertible
securities, rights and options referred to in Clause (B) of this
Section 7; provided that to the extent that such options, rights or
conversion privileges are not exercised, such shares shall be deemed
to be outstanding only until the expiration dates of the rights,
options or conversion privileges or the prior cancellation thereof.
If at any time or from time to time the corporation shall by
subdivision, consolidation or reclassification of shares, or
otherwise, change as a whole, the
-11-
outstanding shares of Common Stock into a different number or class of
shares, the outstanding shares issuable upon conversion of each share
of Class C Stock and the conversion price per share shall be
proportionately and correspondingly adjusted.
Irrespective of any adjustments or changes in the conversion
price, the shares of Class C Stock heretofore and hereafter issued
shall continue to express the conversion price per share when
initially issued.
No adjustment of the conversion price shall be made as a result
of or in connection with the issuance of shares of Common Stock (or
securities convertible into Common Stock) pursuant to (i) restricted
or qualified stock options outstanding on November 30, 1970, or
pursuant to stock options intended to qualify as restricted or
qualified stock options as defined in Sections 422 or 424 of the
Internal Revenue Code (or successor provisions), assumed or granted by
the Corporation after November 30, 1970, (ii) the conversion of the
Class C Stock, or (iii) the conversion of convertible securities
outstanding on March 1, 1971, or issued pursuant to an agreement
between the corporation and the former shareholders of Penta
Laboratories, Inc. (the "Penta Shareholders"), dated August 1, 1969,
as amended by letter agreements dated August 1, 1969 and December 4,
1969 (the "Penta Agreements").
Whenever the conversion price is adjusted as provided in this
Section 7(c), the corporation will promptly obtain a certificate of a
firm of independent public accountants of recognized standing selected
by the Board of Directors (who may be regular auditors of the
corporation) setting forth the conversion price and shares as
-12-
so adjusted and a brief statement of the facts accounting for such
adjustment, and will promptly file the same with the Secretary of the
corporation and will cause to be mailed a brief summary thereof to the
registered holders of the Class C Stock at their last addresses as
they appear on the registry books of the corporation.
(ii) If, prior to the redemption or repurchase in full or
conversion in full of the Class C Stock, the corporation shall at any
time consolidate with or merge into another corporation, the holder of
each share of Class C Stock will thereafter receive, upon the
conversion thereof, the securities or property to which a holder of
the number of shares of Common Stock then issuable upon the conversion
of such Class C Stock would have been entitled upon such consolidation
or merger, and the corporation shall take such steps in connection
with such consolidation or merger as may be necessary to assure that
the provisions of the Class C Stock shall thereafter be applicable, as
nearly as reasonably may be, in relation to any securities or property
thereafter issuable upon the conversion of the Class C Stock. A sale
of all or substantially all the assets of the corporation for a
consideration (apart from the assumption of obligations) consisting
principally of securities shall be deemed a consolidation or merger
for the foregoing purposes.
(iii) No fractional shares shall be issued upon the conversion
of any shares of Class C Stock, but in lieu thereof the corporation
shall pay therefor in cash in proportion to the conversion price.
-13-
(iv) In case:
(a) The corporation shall declare a dividend on Common Stock
payable otherwise than in cash out of its earned surplus or payable in
Common Stock; or
(b) The corporation shall authorize the granting to the
holders of Common Stock of rights to subscribe for or purchase any
shares of capital stock of any class or of any other rights; or
(c) of any reclassification of the Common Stock (other than
a subdivision or combination of outstanding shares of Common Stock),
or of any consolidation or merger to which the corporation is a party
and for which approval of any shareholders of the corporation is
required, or the sale or transfer of all or substantially all of the
assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of the corporation; then the corporation shall cause to
be mailed to the registered holders of the Class C Stock, first class,
postage prepaid, at least 30 days prior to the applicable record date
hereinafter specified, a notice summarizing such action or event and
stating the record date for any such dividend or rights, or, if a
record is not to be taken, the date as of which the holders of Common
Stock of record to be entitled to such dividend or rights are to be
determined, the date on which any such reclassification, or
consolidation, merger, sale, transfer, dissolution, liquidation or
winding up is expected to become effective, and the date as of which
it is expected the holders of Common Stock of record shall be entitled
to effect any
-14-
exchange of their shares of Common Stock for securities or other
property deliverable upon any such reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up.
(v) The issuance of certificate for shares of Common Stock upon
the conversion of shares of Class C Stock shall be made without charge
to the converting Class C Stock shareholders for any tax in respect to
the issuance of such certificates, and such certificates shall be
issued in the respective names of, or in such names as may be directed
by, the holders of the shares of Class C Stock converted; provided,
however, that (a) the corporation shall not be required to pay any tax
which may be payable in respect of any transfer involved in the
issuance and delivery of any such certificate in a name other than
that of the holder of the shares of Class C Stock converted, (b) the
corporation shall not be required to issue or deliver such
certificates unless or until the person or persons requesting the
issuance thereof shall have paid to the corporation the amount of such
tax or shall have established to the satisfaction of the corporation
that such tax has been paid and (c) the corporation may refuse to
effect any such transfer until evidence satisfactory to it is
presented that such transfer does not violate the provisions of the
Securities Act of 1933, as then in effect. The corporation may also
require the printing on any certificate the legend provided for in
Section 7(a) above.
(vi) The corporation shall at all times reserve and keep
available out of its authorized but unissued shares of Common Stock,
and shall obtain and keep in force such permits or other
authorizations as may be required, and shall comply with all
-15-
requirements as to registration or other qualification, in order to
enable the corporation lawfully to issue and deliver solely for the
purpose of effecting the conversion of the preferred shares, such
number of common shares as shall from time to time be sufficient to
effect the conversion of all shares of Class C Stock from time to time
outstanding. The corporation shall from time to time in accordance
with the laws of the State of California increase the authorized
amount of its Common Stock if at any time the number of shares of
Common Stock remaining unissued and available for issuance upon
conversion of Class C Stock shall not be sufficient to permit
conversion of all the then outstanding Class B Stock.
(vii) Shares of Class C Stock converted pursuant hereto shall
not be reissued.
(viii) Notwithstanding any other provisions of this Section 7, if
the corporation has given notice pursuant to Section 5 or Section 6(b)
hereof that any share of Class C Stock is to be redeemed, then the
holder thereof shall have no right to convert such share during the 5
days prior to the date fixed for redemption, unless the corporation
shall be unable to effect a redemption on the date so fixed, in which
event the right to convert such share shall again exist as provided
herein.
8. Restrictions. So long as any shares of Class C Stock are issued
------------
and outstanding, the corporation shall not, without the affirmative vote or
written consent of at least two-thirds of the shares of Class C Stock then
outstanding:
(a) Alter or amend any of the rights, privileges or preferences
thereof; or
(b) Increase the authorized number of shares of Preferred Stock;
or
-16-
(c) Create any other class of Preferred Stock on a parity with or
superior to the shares of the corporation's 4% Preferred Series, Class B
Stock or the Class C Stock; or
(d) Subdivide or combine the outstanding shares of Common Stock;
or
(e) Enter into a merger or consolidation with any other
corporation; or
(f) Effect a voluntary winding up, dissolution or liquidation of
the corporation."
3. The authorized number of shares of Preferred Stock of this
corporation is 5,000 shares of the par value of $100, of which 750 shares,
designated 4% Cumulative Convertible Preferred Series, are authorized and 748
thereof are issued and outstanding, 2,500 shares, designated 7% Class B
Convertible Preferred Stock are authorized, none of which is issued and
outstanding, and the number of shares constituting the 7% Class C Convertible
Preferred Stock which this corporation is authorized to issue is 1,000 shares,
and none of which shares has been issued.
Executed this 20th day of April, 1971, at Carpinteria, California.
_________________________________________
F. H. Campbell, President
_________________________________________
Margie E. Casten, Assistant Secretary
-17-
VERIFICATION
F. H. Campbell and Margie E. Casten each declare under penalty of
perjury that they are the President and Assistant Secretary, respectively, of
Kilovac Corporation, a California corporation, and that the matters set forth in
the foregoing Certificate of Determination of Preferences are true and correct.
Executed at Carpinteria, California, on April 20th, 1971.
_________________________________________
F. H. Campbell
_________________________________________
Margie E. Casten
-18-
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION OF KILOVAC
F. H. CAMPBELL and MARGIE E. CASTEN certify that:
1. They are the President and the Assistant Secretary, respectively,
of KILOVAC CORPORATION, a California corporation.
2. The By-Laws of said corporation authorize the directors to amend
the Articles of Incorporation of said corporation by unanimous written consent;
by unanimous written consent of the Board of Directors of said corporation date
August 12, 1971, the following resolution was adopted:
"RESOLVED, that Article II of the Articles of
Incorporation is hereby amended to read in full as follows:
The principal office for the transaction of business of
the corporation is to be located in the County of Santa
Barbara, State of California.
RESOLVED FURTHER, that the proper officers of this
corporation are hereby authorized and directed to obtain the
necessary approval of the stockholders of this corporation
and, upon approval by the stockholders, to take all other
steps necessary to amend the Articles of Incorporation of
this corporation to reflect said change of said principal
offices."
3. The shareholders have adopted the amendment by written consent.
The wording of the amended article, as set forth in the shareholders'
resolution, is the same as that set forth in the directors' resolution in
Paragraph 2 above.
4. That the number of shares which consented to the adoption of said
resolution is 105,820, and that the total number of shares entitled to consent
to said amendment is 105,820.
___________________________________________
F.H. Campbell, President
___________________________________________
Margie E. Casten, Assistant Secretary
Each of the undersigned declares, under penalty of perjury, that the
matters set forth in the foregoing certificate are true and correct.
Executed at Carpenteria, California, on October __, 1971.
___________________________________________
F.H. Campbell, President
___________________________________________
Margie E. Casten, Assistant Secretary
-2-
CERTIFICATE OF OWNERSHIP
OF
KILOVAC CORPORATION
RE MERGER OF THE
DOW-KEY COMPANY
Kilovac Corporation, a California corporation, does hereby certify:
1. Kilovac Corporation owns all of the issued and outstanding shares
of the common stock of The Dow-Key Company, a Minnesota corporation ("Dow-Key
Company").
2. The resolutions attached hereto as Exhibit "A" were adopted by
unanimous written consent of the board of directors of Kilovac Corporation
without a meeting.
3. The By-Laws of Kilovac Corporation authorize any action required
or permitted to be taken by the board of directors of said corporation under any
provision of the California General Corporation Law to be taken without a
meeting if all of the directors of the corporation consent in writing to such
action.
4. The merger of Dow-Key Company into Kilovac Corporation is
permitted by the laws of the State of Minnesota, the state of incorporation of
Dow-Key Company, and is in compliance therewith.
IN WITNESS WHEREOF, Kilovac Corporation has executed this Certificate of
Ownership this ____ day of October, 1971.
KILOVAC CORPORATION
By:_______________________________
President
By:_______________________________
Assistant Secretary
Foster H. Campbell and Margie Casten, being, respectively, the President
and Assistant Secretary of Kilovac Corporation, declare under penalty of perjury
that the matters set forth in the foregoing Certificate of Ownership are true
and correct. Executed at Los Angeles, California, on October __, 1971.
_______________________ _____________________________
President Assistant Secretary
-2-
EXHIBIT "A"
WHEREAS, this corporation owns all of the issued and
outstanding shares of the common stock of The Dow-Key
Company, a Minnesota corporation ("Dow-Key Company"); and
WHEREAS it is deemed advisable and in the best
interests of this corporation that Dow-Key Company be merged
into this corporation and that this corporation be possessed
of all of the estate, property, rights, privileges and
franchises of said Dow-Key Company, subject to all of its
liabilities and obligations and the rights of its creditors;
NOW, THEREFORE, BE IT RESOLVED, that this corporation,
in its capacity as the sole shareholder of Dow-Key Company,
does hereby ratify, confirm and approve the plan of complete
liquidation heretofore adopted by the Board of Directors of
Dow-Key Company and that this corporation does further
hereby adopt said plan;
RESOLVED FURTHER, that in pursuance of said plan of
complete liquidation, this corporation merge Dow-Key
Company, its wholly owned subsidiary, into itself and assume
all of the liabilities and obligations of said subsidiary,
pursuant to Section 391,421 the Minnesota Business
Corporation Act and Section 4124 of the Corporations Code of
the State of California;
RESOLVED FURTHER, that the President or any Vice
President and the Secretary or any Assistant Secretary of
this corporation be, and they hereby are, authorized and
directed to execute, verify and file or cause to be filed in
the office of the Secretary of State of the State of
California, for the purpose of effecting said merger, a
Certificate of Ownership in the form and manner contemplated
by Section 4124 of the Corporations Code of the State of
California.
RESOLVED FURTHER, that the President or any Vice
President and the Secretary or any Assistant Secretary of
the corporation be, and they hereby are, authorized and
directed to execute, verify and file or cause to be filed in
the office of the Secretary of State of the State of
Minnesota, for the purpose of effecting said merger, a
Certificate of Ownership in the form and manner contemplated
by Section 301.421 of the Minnesota Business Corporation
Act;
RESOLVED FURTHER, that the officers of this corporation
be, and they hereby are, authorized and directed to do any
and all things and to execute any and all documents which
they shall deem necessary and proper in order to consummate
the plan of complete liquidation and merger contemplated by
the foregoing resolutions;
RESOLVED FURTHER, that the foregoing plan of complete
liquidation and merger contemplated thereby shall be fully
consummated within the current taxable year of said
subsidiary.
-2-
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION OF KILOVAC CORPORATION
F. H. Campbell and Jerry L. Dysart certify that:
1. They are the President and the Secretary, respectively, of
KILOVAC CORPORATION, a California corporation.
2. Article IV of the Articles of Incorporation of this
corporation is amended to read as follows:
"This corporation is authorized to issue three classes
of stock, which shall be designated Common Stock, Preferred
Stock, and Preference Stock, respectively. The total number
of shares which this corporation is authorized to issue is
310,000 shares of three classes, consisting of 300,000
shares of Common Stock without series and with a par value
of $.10 per share, 5,000 shares of Preferred Stock, $100 par
value, and 5,000 shares of Preference Stock, without par
value. The aggregate par value of all shares of stock that
are to have a par value shall be $530,000.
The shares of Preferred Stock and Preference Stock may
be issued from time to time in one or more series. The Board
of Directors of the corporation may, in their unlimited and
unrestricted discretion, fix or alter the dividend rights,
dividend rate, conversion rights, voting rights, rights and
terms of redemption (including sinking fund provisions), the
redemption price or prices and the liquidation preferences
of any wholly unissued series of shares of Preferred Stock
and Preference Stock and the number of shares constituting
any series and the designation of such series; and increase
or decrease the number of shares of any series subsequent to
the issue of shares of that series, but not below the number
of shares of such series then outstanding. In case the
number of shares of any series shall be so decreased, the
shares constituting such decrease shall resume the status
which they had prior to the resolution originally fixing the
number of such series."
3. The foregoing amendment of Articles of Incorporation has been
duly approved by the Board of Directors.
4. The foregoing amendment of Articles of Incorporation has been
duly approved by the required vote of shareholders in accordance with Section
902 of the Corporations Code. The total number of outstanding shares of the
corporation is 105,820 shares of Common Stock, 748 shares of 4% Preferred
Series, 2,500 shares of Class B Preferred Stock and 1,000 shares of Class C
Preferred Stock. The number of shares voting in favor of the amendment equaled
or exceeded the vote required. The percentage vote required in the case of the
Common Stock and the 4% Preferred Series was more than 50% and, in the case of
the Class B Preferred Stock and Class C Preferred Stock, the vote required was
more than two-thirds.
____________________________________________
F.H. Campbell, President
____________________________________________
Jerry E. Dysart, Secretary
-2-
VERIFICATION
Each of the undersigned declares under penalty of perjury that the
matters set forth in the foregoing certificate are true and correct of his own
knowledge. Executed at Carpinteria, California, on September 13, 1980.
____________________________________________
F.H. Campbell, President
____________________________________________
Jerry L. Dysart, Secretary
-3-
CERTIFICATE OF DETERMINATION
OF
KILOVAC CORPORATION
F. H. Campbell and Jerry L. Dysart certify that:
1. They are the President and Secretary, respectively, of KILOVAC
CORPORATION, a California corporation.
2. The Articles of Incorporation of said corporation, as amended.
authorize the issuance of 5,000 shares of Preference Stock, without par value,
from time to time, in one or more series, and authorize the Board of Directors
by resolution to fix the rights, privileges and references thereof and the
number of shares constituting any unissued series of Preference Stock and the
designation of such series, and that pursuant thereto the Board of Directors of
said corporation, did duly adopt the following resolution by unanimous written
consent:
"RESOLVED, that this Board of Directors does hereby
provide for the issuance of a series of Preference Stock of
this corporation and does hereby fix and determine the
rights, preferences, restrictions and other matters relating
to said additional series of Preference Stock as follows:
1. Designation and Number of Shares. This series
shall be designated and known as the 14% Preference Stock,
Second Series, (the "Second Series Stock"), and the number
of shares constituting the Second Series Stock small be 49
shares.
2. Second Series Stock Dividends. The holders of
-----------------------------
Second Series Stock shall be entitled to receive dividends
at the rate of $140 per annum on each share thereof,
payable, at the Discretion of the Board of Directors of the
Corporation, in cash or other property determined by the
Board of Directors of the Corporation in good faith to have
an equivalent fair market value. Dividend payments shall be
made quarterly on March 31, June 30, September 30 and
December 31 of each year, or at such lesser intervals as the
Board of Directors may from time to time determine. Such
dividends shall accrue from the date of issuance of the
respective shares of Second Series Stock and shall be deemed
to
accrue from day to day whether or not earned or declared.
Such dividends shall be payable before any dividends shall
be declared, paid upon or set apart for the Common Stock,
and shall be cumulative so that if in any year or years
dividends upon the outstanding Second Series Stock at the
rate of $140 per annum for coach share thereof shall not
have been paid hereon or set apart therefor, the amount of
the deficiency shall be fully paid or declared and set apart
for payment, but without interest, before any distribution,
whether by day of dividend or otherwise, shall be declared,
paid upon or set apart for the Common Stock. In addition to
the foregoing, if at any time there shall be paid a dividend
upon the Common Stock, there also shall be declared and paid
a dividend upon the Second Series Stock in a substantially
equivalent amount, treating each share of Second Series
Stock as being such number of shares of Common Stock as
would result from dividing the liquidation preference of
such share of Second Series Stock by the then fair market
value of a share of Common Stock and multiplying the
quotient thus obtained by the per share dividend declared on
the Common Stock. The determination of the amount of
dividend allocable to each share of Second Series Stock
shall be made by the Board of Directors of the Corporation,
in good faith, and shall be payable, at the discretion of
the Board of Directors of the Corporation, in cash or other
property determined by the Board of Directors of the
Corporation in good faith to have an equivalent fair market
value.
3. Liquidation Preferences.
-----------------------
(a) In the event of a voluntary or involuntary
liquidation, dissolution or winding up of this corporation,
the holders of Second Series Stock shall be entitled to
receive out of the assets of this Corporation, whether such
assets are capital or surplus of any nature, an amount equal
to $1,000 per share, and, in addition to such amount, a
further amount equal to the dividends accrued, unpaid and
accumulated thereon, as provided in Section 2 above, to the
date of such distribution, whether earned or declared, or
not, all on a parity with the shares of the Corporation's 4%
Preferred Stock and 14% Preference Stock, First Series there
outstanding and with the shares of any other series of
Preferred Stock or Preference Stock that by its terms is
entitled to participate on a parity with the 4% Preferred
Stock or 14% Preference Stock, First Series.
(b) if upon such liquidation, dissolution or
winding up, whether voluntary or involuntary, the assets
thus distributed among the holders of the Second Series
Stock shall be insufficient to permit the payment to such
shareholders of the full
-2-
preferential amounts aforesaid, then the entire assets of
this Corporation to be distributed shall be distributed
ratably among the holders of the 4% Preferred Stock and the
14% Preference Stock, First Series, the Second Series Stock
and any other series of Preferred Stock or Preference Stock
that by its terms is entitled to participate on a parity
with the 4% Preferred Stock or the 14% Preference Stock,
First Series.
(c) A consolidation or merger of this Corporation
with or into any other corporation or corporations shall not
be deemed to be a liquidation, dissolution or winding up
within the meaning of this paragraph.
4. Voting Rights. Except as otherwise provided
-------------
hereinafter, or as may be required by law, the holders of
the shares of the Second Series Stock shall not be entitled
to vote. If, however, any five consecutive quarterly
dividends on the Second Series Stock shall not have been
paid in full, the holders of the shares of Second Series
Stock shall be entitled to one vote per share and to vote on
all matters on which holders of Common Stock of the
Corporation are entitled to vote. Such voting rights shall
cease when all accrued and unpaid dividends are paid in fall
as provided in Section 2 above.
5. Redemption. The Corporation may at any time,
----------
on or after June 30, 1986, at the option of the Board of
Directors, redeem the whole or from time to time any part of
the Second Series Stock, by paying in cash for each share an
amount equal to $1,000 per share plus an amount equal to all
dividends accrued, unpaid and accumulated thereon, as
provided in Section 2 hereof, to and including the date
fixed for redemption the total amount of such amounts being
hereinafter referred to as the redemption price." Should
only a part of the Second Series Stock outstanding be
redeemed, such redemption shall be effected by lot as
prescribed by the Board of Directors or pro rata. No Second
Series Stock may be redeemed unless all accrued dividends,
as provided in Section 2 hereof, on all outstanding shares
of Second Series Stock (whether or not such shares are then
being redeemed) shall have been paid. At least thirty (30)
days prior notice by mail, postage prepaid, shall be given
to each holder of record of the shares of Second Series
Stock to be redeemed, at his last known address shown on the
records of the Corporation. On or before the date fixed for
redemption, each holder of Second Series Stock called for
redemption shall surrender its certificate for such shares
to the Corporation at the place designated in the notice of
redemption and shall thereupon be redemption entitled to
receive payment of the price. In case less than all the
-3-
shares represented by any such surrendered certificate are
redeemed, a new certificate shall be issued representing the
unredeemed shares. If such redemption notice shall have been
duly given and if on the date fixed for redemption, funds
necessary for the redemption shall be legally available
therefor, then all rights with respect to such shares so
called for redemption, whether or not surrendered, shall
terminate except for the right payment as herein provided
upon surrender of such certificates therefor to the date
fixed for redemption.
6. Conversion. The Second Series Stock shall not be
----------
convertible into any other shares of stock of the
Corporation."
3. The authorized number of shares of Preference Stock of this
Corporation is 5,000 shares, without par value, of which 211 shares designated
and known as the 14% Preference Stock, First Series, is issued and outstanding,
and the number of shares constituting the 14% Preference Stock, Second Series,
which this Corporation is authorized to issue is 49 shares, none of which shares
has been issued.
Executed this ____ day of _________, 1981, at Carpinteria, California.
___________________________________________
F. H. CAMPBELL, PRESIDENT
__________________________________________
JERRY L. DYSART, SECRETARY
-4-
VERIFICATION
Each of the undersigned declares under penalty of perjury that the
matters set forth in the foregoing certificate are true and correct of his own
knowledge. Executed at Carpinteria, California, on September 13, 1980.
__________________________________________
F.H. Campbell
___________________________________________
Jerry L. Dysart
-5-
CERTIFICATE OF DETERMINATION
OF
KILOVAC CORPORATION
F. H. Campbell and Jerry L. Dysart certify that:
1. They are the President and Secretary, respectively, of KILOVAC
CORPORATION, a California corporation.
2. The Articles of Incorporation of said corporation, as amended,
authorize the issuance of 5,000 shares of Preference Stock, without par value,
from time to time, in one or more series, and authorize the Board of Directors
by resolution to fix the rights, privileges and preferences thereof and the
number of shares constituting any unissued series of Preference Stock and the
designation of such series, and that pursuant thereto the Board of Directors of
said corporation, did duly adopt the following resolution by unanimous written
consent:
"RESOLVED, that this Board of Directors does hereby
provide for the issuance of a series of Preference Stock of
this corporation and does hereby fix and determine the
rights, preferences, restrictions and other matters relating
to said additional series of Preference Stock as follows:
1. Designation and Number of Shares. This series of
--------------------------------
Preference Stock shall be designated and known as the 14%
Preference Stock, First Series, (the "First Series Stock"),
and the number of shares constituting the First Series Stock
shall be 211 shares.
2. First Series Stock Dividends. The holders of First
----------------------------
Series Stock shall be entitled to receive dividends at the
rate of $140 per annum on each share thereof, payable, at
the discretion of the Board of Directors of the Corporation,
in cash or other property determined by the Board of
Directors of the Corporation in good faith to have an
equivalent fair market value. Dividend payments shall be
made quarterly on March 31, June 30, September 30 and
December 31 of each year, or at such lesser intervals as the
Board of Directors may from time to time determine. Such
dividends shall accrue from the date of issuance of the
respective shares of First
Series Stock and shall be deemed to accrue from day to day
whether or not earned or declared. Such dividends shall be
payable before any dividends shall be declared, paid upon or
set apart for the Common Stock, and shall be cumulative so
that if in any year or years dividends upon the outstanding
First Series Stock at the rate of $140 per annum for each
share thereof shall not have been paid thereon or set apart
therefor, the amount of the deficiency shall be fully paid
or declared and set apart for payment, but without interest,
before any distribution, whether by way of dividend or
otherwise, shall be declared, paid upon or set apart for the
Common Stock. In addition to the foregoing, if at any time
there shall be paid a dividend upon the Common Stock, there
also shall be declared and paid a dividend upon the First
Series Stock in a substantially equivalent amount, treating
each share of First Series Stock as being such number of
shares of Common Stock as would result from dividing the
liquidation preference of such share of First Series Stock
by the then fair market value of a share of Common Stock and
multiplying the quotient thus obtained by the per share
dividend declared on the Common Stock. The determination of
the amount of dividend allocable to each share of First
Series Stock shall be made by the Board of Directors of the
Corporation in good faith, and shall be payable, at the
discretion of the Board of Directors of the Corporation, in
cash or other property determined by the Board of Directors
of the Corporation in good faith to have an equivalent fair
market value.
3. Liquidation Preferences.
-----------------------
(a) In the event of a voluntary or involuntary
liquidation, dissolution or winding up of this Corporation,
the holders of First Series Stock shall be entitled to
receive out of the assets of this Corporation, whether such
assets are capital or surplus of any nature, an amount equal
to $1,000 per share, and, in addition to such amount, a
further Amount equal to the dividends accrued, unpaid and
accumulated thereon, as provided in Section 2 above, to the
date of such distribution, whether earned or declared, or
not, all on a parity with the shares of the corporation's 4%
Preferred Stock then outstanding and with the shares of any
other series of Preferred Stock or Preference Stock that by
its terms is entitled to participate on a parity with the 4%
Preferred Stock.
(b) If upon such liquidation, dissolution or winding
up, whether voluntary or involuntary, the assets thus
distributed among the holders of the First Series Stock
shall be insufficient to permit the payment to such
shareholders of the full preferential amounts
-2-
aforesaid, than the entire assets of this corporation to be
distributed shall be distributed ratably among the holders
of the 4% Preferred Stock, the First Series Stock and any
other series of Preferred Stock or Preference Stock that by
its terms is entitled to participate on a parity with the 4%
Preferred Stock.
(c) A consolidation or merger of this Corporation with
or into any other corporation or corporations shall not be
deemed to be a liquidation, dissolution or winding up within
the meaning of this paragraph.
4. Voting Rights. Except as otherwise provided
-------------
hereinafter, or as may be required by law, the holders of
the shares of the First Series Stock shall not be entitled
to vote. If, however, any five consecutive quarterly
dividends on the First Series Stock shall not have been paid
in full, the holders of the shares of First Series Stock
shall be entitled to one vote per share and to vote on all
matters on which holders of Common Stock of the Corporation
are entitled to vote. Such voting rights shall cease when
all accrued and unpaid dividends are paid in full as
provided in Section 2 above.
5. Redemption. The Corporation way at any time, on or
----------
after June 30, 1985, at the option of the Board of
Directors, redeem the whole or from time to time any part of
the First Series Stock, by paying in cash for each share an
amount equal to $1,000 per share plus an amount equal to all
dividends accrued, unpaid and accumulated thereon, as
provided in Section 2 hereof, to and including the date
fixed for redemption, the total of such amounts being
hereinafter referred to as the "redemption price". Should
only a part of the First Series Stock outstanding be
redeemed, such redemption shall be effected by lot as
prescribed by the Board of Directors or pro rata. No First
Series Stock may be redeemed unless all accrued dividends,
as provided in Section 2 hereof, on all outstanding shares
of First Series Stock (whether or not such shares are then
being redeemed) shall have been paid. At least thirty (30)
days prior notice by mail, post-age prepaid, shall be given
to each holder of record of the shares of First Series Stock
to be redeemed, at his last known address shown on the
records of the Corporation. On or before the date fixed for
redemption, each holder of First Series Stock called for
redemption shall surrender his certificate for such shares
to the Corporation at the place designated in the notice of
redemption and shall thereupon be entitled to receive
payment of the redemption price. In case less than all the
shares represented by any such surrendered certificate are
redeemed, a new certificate shall be issued representing the
unredeemed shares. If such redemption
-3-
notice shall have been duly given and if on the date fixed
for redemption, funds necessary for the redemption shall be
early available therefor, then all rights with respect to
such shares so called for redemption, whether or not
surrendered, shall terminate except for the right of payment
as herein provided upon surrender of such certificates
therefor to the date fixed for redemption.
6. Conversion. The First Series Stock shall not be
----------
convertible into any other shares of stock of the
Corporation."
3. The authorized number of shares of Preference Stock of this
Corporation is 5,000 shares, without par value, none of which is issued and
outstanding, and the number of shares constituting the 14% Preference Stock,
First Series, which this Corporation is authorized to issue is 211 shares, none
of which shares has been issued.
Executed this 13th day of September, 1980, at Carpinteria, California.
___________________________________________
F.H. Campbell, President
___________________________________________
Jerry L. Dysart, Secretary
-4-
VERIFICATION
Each of the undersigned declares under penalty of perjury that the
matters set forth in the foregoing certificate are true and correct of his own
knowledge. Executed at Carpinteria, California, on September 13, 1980.
___________________________________________
F.H. Campbell, President
___________________________________________
Jerry L. Dysart, Secretary
-5-
CERTIFICATE OF DETERMINATION OF
OF
PREFERRED STOCK OF KILOVAC CORPORATION
F.H. Campbell and Margie E. Casten certify that:
1. They are the President and the Assistant Secretary, respectively,
of KILOVAC CORPORATION, a California corporation.
2. The Articles of Incorporation of said corporation, as amended,
authorize the issuance of 5,000 shares of preferred stock, par value $100 per
share, from time to time, in one or more series, and authorize the Board of
Directors by resolution to fix the rights, privileges and preferences thereof
and the number of shares constituting any unissued series of preferred stock and
the designation of such series, and that pursuant thereto the Board of Directors
of said corporation, at a meeting duly held on January 31, 1971, in Santa
Barbara, California, at which meeting a quorum was present and acting
throughout, did duly adopt the following resolution:
"RESOLVED, that this Board of Directors does hereby provide for
the issuance of an additional shares of Preferred Stock of this corporation
and does hereby fix and determine the rights, preferences, restrictions and
other matters relating to said additional series of Preferred Stock as
follows:
1. Designation and Number of Shares. This series of Preferred
--------------------------------
Stock shall be designated and known as the 7% Class B Convertible Preferred
Stock, $100 par value (the "Class B Stock"), and the number of shares
constituting the Class B Stock shall be 2,500 shares.
2. Class B Stock Dividends. The holders of Class B Stock shall
-----------------------
be entitled to receive dividends at the rate of 7% per annum on the par
value thereof, payable
in cash. Dividend payments shall be made quarterly on March 31, June 30,
September 30 and December 31 of each year, or at such lesser intervals as
the Board of Directors may from time to time determine. Such dividends
shall accrue from the date of issuance of the respective shares of Class B
Stock and shall be deemed to accrue from day to day whether or not earned
or declared. Such dividends shall be payable before any dividends shall be
declared or paid or set apart for the Common Stock, and shall be cumulative
so that if in any year or years dividends upon the outstanding Class B
Stock at the rate of 7% per annum of the par value thereof shall not have
been paid thereon or set apart therefor, the amount of the deficiency shall
be fully paid or declared and set apart for payment, but without interest,
before any distribution, whether by way of dividend or otherwise, shall be
declared or paid upon or set apart for the Common Stock.
3. Liquidation Preferences.
-----------------------
(a) Except as provided in paragraph (b) of this Section 3, in
the event of a voluntary or involuntary liquidation, dissolution or winding
up of this corporation, the holders of Class B Stock shall be entitled to
receive out of the assets of this corporation, whether such assets are
capital or surplus of any nature, an amount equal to the par value of the
Class B Stock; and, in addition to such amount, a further amount equal to
the dividends unpaid and accumulated thereon, as provided in Section 2
above to the date of such distribution, whether earned or declared, or not,
all on a parity with the shares of the Company's 4% Preferred Series then
outstanding and with the shares of any other series of Preferred Stock that
by its terms is entitled to participate on a parity with the 400 Preferred
Series.
-2-
(b) In the event of an involuntary liquidation, dissolution or
winding up of this corporation, the holders of Class B Stock, but only
while they retain conversion rights pursuant to the provisions of Section 7
hereof, shall be entitled to receive out of the assets of this corporation
an amount equal to the greater of the amount receivable pursuant to
provisions of paragraph (a) of this Section 3 or that amount which they
would receive as holders of the Common Stock had they converted their Class
B Stock into Common Stock pursuant to the provisions of Section 7 hereof
immediately prior to such liquidation, dissolution or winding up of the
corporation.
(c) If upon such liquidation, dissolution or winding up, whether
voluntary or involuntary, the assets thus distributed among the holders of
the Class B Stock shall be insufficient to permit the payment to such
shareholders of the full preferential amounts aforesaid, then the entire
assets of this corporation to be distributed shall be distributed ratably
among the holders of the 4% Preferred Series, the Class B Stock and any
other series of Preferred Stock that by its terms is to share in such
distribution with the 4% Preferred Series.
(d) A consolidation or merger of this corporation with or into
any other corporation or corporations shall not be deemed to be a
liquidation, dissolution or winding up within the meaning of this
paragraph.
4. Voting Rights. Except as otherwise provided hereinafter, the
-------------
holders of the shares of Class B Stock as a class shall be entitled to
elect one director. If, however: (i) all quarterly dividends cumulated on
the Class B Stock as of March 31, 1973., shall not have been paid in full
by April 15, 1973; or (ii) any cumulated dividends payable on the Class B
Stock for any year subsequent to March 31, 1973 shall not have been paid in
full as of
-3-
April 15 of any year subsequent to 1973; or (iii) the corporation shall
fail to create a Sinking Fund at the times and to the extent provided for
in Section 6 hereof; or (iv) the corporation at any tine is in default
under that certain agreement by and among the corporation and Wells Fargo
Investment Company dated March 31, 1971 and fails to cure any such default
within 15 days of the giving of written notice thereof by Wells Fargo
Investment Company; or (v) the corporation issues any further shares of
Class B Stock (except as provided in Section 8 hereof) or declares a
dividend on its Common Stock without the prior written consent of the
holders of the Class B Stock, then the holders of the Class B Stock as a
class shall be entitled to elect the smallest number of directors
constituting two-thirds of the Board of Directors and the holders of the
remaining voting stock of the corporation shall retain the right to elect
only the remaining director or directors until all defaults giving rise to
the special voting rights of the holders of Class B Stock have been cured
or waived, at which time the voting rights shall revert to their status
prior to the occurrence of such defaults. Any officer, director, or
shareholder may call a special meeting of all shareholders of the
corporation in the manner prescribed in the By-Laws for the purpose of
electing directors pursuant to this Section, and for such purpose shall
have access to the records of the corporation upon such defaults. Upon
restoration of full voting rights to their previous status, the term of the
additional directors elected by the holders of the Class B stock shall
expire and a special meeting of all shareholders may be called to elect a
number of directors sufficient to fill all existing positions, or the Board
of Directors, if permitted by the By-Laws, may fill such vacancies,
5. Redemption. The corporation may, at the option of the Board of
----------
Directors, redeem the whole or from time to time any part of the Class B
Stock on and after
-4-
December 31, 1978, by paying in cash for each share an
amount equal to the par value of each share plus an amount equal to all
dividends accrued, unpaid and accumulated thereon as provided in Section 2
hereof to and including the date fixed for redemption, the total of such
amounts being hereinafter referred to as the "redemption price". Should
only a part of the Class B Stock outstanding be redeemed, such redemption
shall be effected by lot as prescribed by the Board of Directors or pro
rata. No Class B Stock may be redeemed unless all accrued dividends as
provided for in Section 2 hereof on all outstanding shares of Class B Stock
shall have been paid for all past dividend periods and full dividends as
provided for in Section 2 hereof for the current period declared upon all
Class B Stock, except the shares to be redeemed. At least twenty (20) days
prior notice by mail, postage prepaid, shall be given to each holder of
record of the shares of Class B Stock to be redeemed, at his last known
address shown on the records of the corporation. On or before the date
fixed for redemption, each holder of Class B Stock called for redemption
shall, unless he shall have previously exercised his option to convert his
Class B Stock as provided in Section 7 hereof, surrender his certificate
for such shares to the corporation at the place designated in the notice of
redemption and shall thereupon be entitled to receive payment of the
redemption price. In case less than all the shares represented by any such
surrendered certificate are redeemed, a new certificate shall be issued
representing the unredeemed shares. If such redemption notice shall have
been duly given and if on the date fixed for redemption, funds necessary
for the redemption shall be legally available therefor, when all rights
with respect to such shares so called for redemption, whether or not
surrendered, shall terminate except for the right of interest upon
Surrender of such certificates therefor to the date fixed for redemption.
-5-
6. Sinking Fund.
------------
(a) On or before March 31, 1979 the corporation shall create from
the net earnings of the corporation for any preceding fiscal year or years,
after full payment or provision for payment of dividends on the Class B
Stock and all other shares of the corporation ranking prior to or on a
parity with the Class B Stock for all prior fiscal years through the end of
the last preceding dividend period for such shares, as a sinking fund for
the purchase or redemption of the Class B Stock (hereinafter called the
"Sinking Fund"), cash, bonds or other certificates of indebtedness of the
United State of America or corporate bonds, rated A or better by any of the
standard bond rating services and listed on the New York Stock exchange, in
a sum equal to 33% of the par value of the total number of shares of Class
B Stock originally outstanding. On or before each of March 31, 1980 and
March 31, 81, the corporation shall add to Sinking Fund, from net earnings
as aforesaid, an additional sum in each case equal to 33% of the par value
of the total number of shares of Class B Stock originally outstanding. If
on any March 31 referred to above the net earnings after such payment or
provision for payment of dividends shall be insufficient to discharge the
applicable Sinking Fund requirement in full, then the net earnings shall be
set aside for the Sinking Fund. The Sinking Fund requirements shall be
cumulative so that if for any year or years the requirements shall not be
fully discharged the net earnings, after payment or provisions for
dividends, for each fiscal year thereafter shall be applied thereto until
the requirements are fully discharged.
(b) On or before June 30 in each of the years 1979, 1980 and
1981, respectively the cash or bonds in the Sinking Fund as of such date
shall be used to acquire one-third of the total number of shares of Class B
Stock originally outstanding to the extent
-6-
of the amount then in the Sinking Fund, by purchase, at a price or prices
not exceeding the par value thereof, or by redemption, at the par value
thereof, in the manner provided in Section 5 hereof, in each case plus
accrued dividends thereon to the date of such purchase or redemption which
shall be paid from the general funds of the corporation and not from the
Sinking Fund, or by both such purchase and such redemption. Upon retirement
of all Class B Stock, any cash or bonds remaining in the Sinking Fund in
excess of that required to complete payment for any shares purchased or
agreed to be purchased, or to redeem shares called for redemption through
the operation of the Sinking Fund, shall become a part of the general funds
of the corporation.
7. Conversion Rights.
-----------------
(a) The holder of any share or shares of Class B Stock shall have
the right, at his option, at any time after December 31, 1971, subject to
the terms and provisions of this Section 7, to convert any such share or
shares of Class Stock (valuing each Class B share at $100 for the purpose
of such conversion) into shares of Common Stock of the corporation,
initially at the price of $3.354 per share of Common Stock, or, in case an
adjustment of such amount has taken place pursuant to the provisions of
this Section 7 hereof, then at the amount as last adjusted (said initial or
adjusted price being referred to herein as the "conversion price"), upon
surrender of the certificate or certificates for such share or shares of
Class B Stock to the corporation at any time during usual business hours at
the office of the corporation or at the office of any transfer agent for
the shares of Class B Stock or at such other place, if any, as the Board of
Directors shall determine, together with written notice (hereinafter
referred to as the "conversion notice"), that the holder elects to convert
such share or shares of Class B Stock into Common Stock in accordance with
the
-7-
provisions hereof, and specifying the name or names in which the shares
of stock issuable upon such conversion shall be registered, together with
the addresses of the persons so named, and accompanied by a written
instrument or instruments of transfer in form satisfactory to the
corporation duly executed by the holder or his attorney duly authorized in
writing; provided, however, that notwithstanding any other provision of
this Section 7, if the corporation has given notice pursuant to Section 5
or Section 6(b) hereof that any share of Class B Stock is to be redeemed,
then the holder thereof shall have no right to convert such share during
the 5 days prior to the date fixed for redemption, unless the corporation
shall be unable to effect a redemption on the date so fixed, in which event
the right to convert such share shall again exist as provided herein. In
the event the names so specified are different from the name of the
registered holder of the Class B Stock so converted, the holder shall also
furnish the corporation with evidence satisfactory to it that registration
of such shares is not required under the Securities Act of 1933, as then in
effect, and, if the corporation's counsel shall advise it to do so, the
corporation shall have the right to place on the certificates evidencing
such shares an appropriate legend restricting the transfer thereof.
(b) As promptly as practicable after the surrender, as herein
provided, of any certificate or certificates for such share or shares of
Class B Stock for conversion and the receipt of the conversion notice
relating thereto, the corporation shall deliver or caused to be delivered
at said office to or upon the written order of the person for whose account
such share or shares of Class B Stock were so surrendered, certificates
representing the number of fully-paid and non-assessable shares of Common
Stock of the corporation to which he shall be entitled, imprinted with a
legend restricting the transfer thereof, if appropriate, together with a
cash adjustment for any fraction of a share as hereinafter stated
-8-
if not evenly convertible plus all dividends accrued and unpaid thereon to
the date of conversion. Subject to the following provisions of this
paragraph 7 hereof, such conversion shall be deemed to have been made at
the close of business on the date of such surrender of the share or shares
of Class B Stock to be converted and the person or persons entitled to
receive the shares of Common Stock upon conversion of such share of Class B
Stock shall be treated for all purposes as having become the record holder
or holders of such shares of Common stock at such time and such conversion
shall be at the conversion price in effect at such time.
(c) Adjustments to conversion price shall be made as follows:
(i) Subject to the exceptions referred to below, in case the
corporation shall at any time or from time to time after the date hereof
issue any additional shares of Common Stock for a consideration per share
less than the conversion price in effect immediately prior to the issuance
of such additional shares, or without consideration, then, and thereafter
successively upon each such issuance, the conversion price in effect
immediately prior to the issuance of such additional shares shall forthwith
be reduced to a price determined by dividing an amount equal to (x) the
total number of shares of common stock outstanding immediately prior to
such issuance, multiplied by the conversion price in effect immediately
prior to such issuance, plus (y) the consideration, if any, received by the
corporation upon such issuance, by the total number of shares of
corporation stock outstanding immediately after the issuance of such
additional shares.
For the purposes of any adjustment as provided in this Section 7(c),
the following provisions shall also be applicable:
-9-
(A) In case of the issuance of additional shares of
Common Stock solely for cash, the consideration received by the
corporation therefor shall be deemed to be the net cash proceeds
received by the corporation for such shares before deducting any
commissions or other expenses paid or incurred by the corporation for
any underwriting of, or otherwise in connection with, the issuance of
such shares,
(B) In case of the issuance by the corporation of (i)
any security that is convertible into shares of Common Stock of the
corporation (other than the Class B Stock and shares of Class C
preferred stock initially convertible into not more than 29,815 shares
of Common Stock), or (ii) any rights or options to purchase shares of
Common Stock of the corporation (except as stated below), the
corporation shall be deemed to have issued the maximum number of
shares of Common Stock into which such convertible security may be
converted, or the maximum number of shares of Common Stock deliverable
upon the exercise of such rights or options, for the consideration
received by the corporation for such convertible securities or for
such rights or options, as the case may be, before deducting any
commissions or other expenses paid or incurred by the corporation for
any underwriting of, or otherwise in connection with, the issuance of
such convertible security or rights or options plus (i) any
consideration or adjustment payment to be received by the corporation
in connection with such conversion, or (ii) the minimum aggregate
price at which shares of Common Stock of the Corporation are to be
delivered upon the exercise of such rights or options or, if no
minimum price is specified and such shares are to be delivered at an
option price
-10-
related to the market value of the subject shares, an
aggregate option price bearing the same relation to the market value
of the subject shares at the time such rights or options were granted;
provided that as to such options such further adjustments as shall be
necessary on the basis of the actual option price at the time of
exercise shall be made at such time if the actual option price is less
than the aforesaid assisted option price. No further adjustment of
the conversion price shall be made as a result of the actual issuance
of shares of Common Stock of the corporation referred to in this
Clause (B). On the expiration of such rights or options, or the
termination of such right to convert, the conversion price hereunder
shall be readjusted to such conversion price as would have obtained
the adjustments made upon the issuance of such rights, options, or
convertible securities been made upon the basis of the delivery of
only the number of shares of Common Stock actually delivered upon the
exercise of such rights or options or upon the conversion of any such
securities.
(C) The consideration for any additional shares of
Common Stock (or securities convertible into Common Stock) issued as a
stock dividend shall be deemed to be nothing.
(D) In the event that any shares of Common Stock or any
warrants, rights or options to purchase any shares of Common Stock or
any securities convertible into or exchangeable for shares of Common
Stock shall be issued by the corporation for a consideration only a
portion of which is cash or none of which is cash, the Board of
Directors of the corporation shall determine the fair value of such
consideration other than cash and the shares, warrants, rights,
options or convertible or exchangeable securities shall be deemed to
be issued for an amount of cash equal
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to the cash portion of the consideration, if any, plus the value so
determined by the Board of Directors.
(E) The number of shares of stock of any class at the
time outstanding shall include all shares of stock of that class then
owned or held by or for the account of the corporation and shall
include the aggregate number of shares deliverable in respect of the
convertible securities, rights and options referred to in Clause (B)
of this Section 7; provided that to the extent that such options,
rights or conversion privileges are not exercised, such shares shall
be deemed to be outstanding only until the expiration dates of the
rights, options or conversion privileges or the prior cancellation
thereof.
If at any time or from time to time the corporation shall by
subdivision, consolidation or reclassification of shares, or
otherwise, change as a whole, the outstanding shares of Common Stock
into a different number or class of shares, the outstanding shares
issuable upon conversion of each share of Class B Stock and the
conversion price per share shall be proportionately and
correspondingly adjusted.
Irrespective of any adjustments or changes in the conversion
price, the shares of Class B Stock heretofore and hereafter issued
shall continue to express the conversion price per share when
initially issued.
No adjustment of the conversion price shall be made as a result
of or in connection with the issuance of shares of Common Stock (or
securities convertible into Common Stock) pursuant to (i) restricted
or qualified stock options outstanding on November 30, 1970, or
pursuant to stock options intended to qualify as restricted or
qualified stock options as defined in Sections 422 or 424 of the
Internal Revenue
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Code (or successor provisions) assured or granted by the Corporation
after November 30, 1970, (ii) the conversion of the Class B Stock, or
(iii) the conversion of convertible securities outstanding on November
30, 1970, or issued pursuant to an agreement between the corporation
and the former shareholders of Penta Laboratories, Inc. (the "Penta
Shareholders"), dated August 1, 1969, as amended by letter agreements
dated August 1, 1969 and December 4, 1969 (the "Penta Agreement"). In
the event the corporation should be required to issue pursuant to the
Penta Agreement and employment agreements executed in connection
therewith in excess of 18,927 shares of Common Stock, the issuance of
any such shares in excess of 18,927 shares shall be deemed to be
issued without consideration for the purposes of this Section 7(c) and
appropriate adjustments shall be made in the conversion price.
Whenever the conversion price is adjusted as provided in this
Section 7(c), the corporation will promptly obtain a certificate of a
firm of independent public accountants of recognized standing selected
by the Board of Directors (who may be regular auditors of the
corporation) setting forth the conversion price and shares as so
adjusted and a brief statement of the facts accounting for such
adjustment, and will promptly file the same with the Secretary of the
corporation and will cause to be mailed a brief summary thereof to the
registered holders of the Class B Stock at their last addresses as
they appear on the registry books of the corporation.
(ii) If, prior to the redemption or repurchase in full or
conversion in full of the Class B Stock, the corporation shall at any tire
consolidate with or merge into another corporation, the holder of each
share of Class B Stock will thereafter receive, upon the
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conversion thereof, the securities or property to which a holder of the
number of shares of Common Stock then issuable upon the conversion of such
Class B Stock would have been entitled upon such consolidation or merger,
and the corporation shall take such steps in connection with such
consolidation or merger as may be necessary to assure that the provisions
of the Class B Stock shall thereafter be applicable, as nearly as
reasonably may be, in relation to any securities or property thereafter
issuable upon the conversion of the Class B Stock. A sale of all or
substantially all the assets of the corporation for a consideration (apart
from the assumption of obligations) consisting principally of securities
shall be deemed a consolidation or merger for the foregoing purposes.
(iii) No fractional shares shall be issued upon the conversion
of any shares of Class B Stock, but in lieu thereof the corporation shall
pay therefor in cash in proportion to the conversion price.
(iv) In case:
(a) The corporation shall declare a dividend on Common
Stock payable otherwise than in cash out of its earned surplus or
payable in Common Stock; or
(b) The corporation shall authorize the granting to the
holders of Common Stock of rights to subscribe for or purchase
any shares of capital stock of any class or of any other rights;
or
(c) of any reclassification of the Common Stock (other
than a subdivision or combination of outstanding shares of Common
Stock), or of any consolidation or merger to which the
corporation is a party and for which
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approval of any shareholders of the corporation is required, or
the sale or transfer of all or substantially all of the assets of
the Company; or
(d) of the voluntary or involuntary dissolution,
liquidation or winding up of the corporation; then the
corporation shall cause to be mailed to the registered holders of
the Class B Stock, first class, postage prepaid, at least 30 days
prior to the applicable record date hereinafter specified, a
notice summarizing such action or event and stating the record
date for any such dividend or rights, or, if a record is not to
be taken, the date as of which the holders of Common Stock of
record to be entitled to such dividend or rights are to be
determined, the date on which any such reclassification, or
consolidation merger, sale, transfer, dissolution, liquidation or
winding up is expected to become effective, and the date as of
which it is expected the holders of Common stock of record shall
be entitled to effect any exchange of their shares of Common
Stock for securities or other property deliverable upon any such
reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up.
(v) The issuance of certificate for shares of Common Stock upon
the conversion of shares of Class B Stock shall be made without charge to
the converting Class B Stock shareholders for any tax in respect to the
issuance of such certificates, and such certificates shall be issued in the
respective names of, or in such names as may be directed by, the holders of
the shares of Class B Stock converted; provided, however, that (a) the
corporation shall not be required to pay any tax which may be payable in
respect of any transfer involved in the issuance and delivery of any such
certificate in a name other
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than that of the holder of the shares of Class B Stock converted, (b) the
corporation shall not be required to issue or deliver such certificates
unless or until the person or persons requesting the issuance thereof shall
have paid to the corporation the amount of such tax or shall have
established to the satisfaction of the corporation that such tax has been
paid and (c) the corporation may refuse to effect any such transfer until
evidence satisfactory to it is presented that such transfer does not
violate the provisions of the Securities Act of 1933, as then in effect.
The corporation may also require the printing on any certificate the legend
provided for in Section 7(a) above.
(vi) The corporation shall at all times reserve and keep
available out of its authorized but unissued shares of Common Stock, and
shall obtain and keep in force such permits or other authorizations as may
be required, and shall comply with all requirements as to registration or
other qualification, in order to enable the corporation lawfully to issue
and deliver solely for the purpose of effecting the conversion of the
preferred shares, such number of common shares as shall from time to time
be sufficient to effect the conversion of all shares of Class B Stock from
time to time outstanding. The corporation shall from time to time in
accordance with the laws of the State of California increase the authorized
amount of its Common Stock if at any time the number of shares of Common
Stock remaining unissued and available for issuance upon conversion of
Class B Stock shall not be sufficient to permit conversion of all the then
outstanding Class B stock.
(vii) Shares of Class B Stock converted pursuant hereto shall
not be reissued.
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8. Restrictions. So long as any shares of Class B Stock are issued
------------
and outstanding, the corporation shall not, without the affirmative vote or
written consent of at least two-thirds of the shares of Class B Stock then
outstanding:
(a) Alter or amend any of the rights, privileges or references
thereof; or
(b) Increase the authorized number of shares of Preferred Stock;
or
(c) Create any other class of Preferred Stock on a parity with or
superior to the shares of the 4% Preferred Series, the Class B Stock or not
to exceed 1,000 shares of Class C Preferred Stock (which Class C Preferred
Stock shall not be superior to the 4% Preferred Stock or the Class B
Stock); or
(d) Subdivide or combine the outstanding shares of Common Stock;
or
(e) Enter into a merger or consolidation with any other
corporation; or
(f) Effect a voluntary winding up, dissolution or liquidation of
the corporation."
3. The authorized number of shares of Preferred Stock of this
corporation is 5,000 shares of the par value of $100, of which 750 shares,
designated 4% Cumulative Convertible Preferred Series, are authorized and 748
thereof are issued and outstanding, 1,000 shares, designated 7% Class C
Convertible Preferred Stock, are authorized and none of which is issued and
outstanding, and the number of shares constituting the 7% Class B Convertible
Preferred Stock which this corporation is authorized to issue is 2,500 shares,
and none of which shares has been issued.
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Executed this _____ day of April, 1971, at Carpinteria, California.
_______________________________________________
F. H. Campbell, President
_______________________________________________
Margie E. Casten, Assistant Secretary
-18-
VERIFICATION
F. H. Campbell and Margie E. Casten each declare under penalty of
perjury that they are the President and Assistant Secretary, respectively, of
Kilovac Corporation, a California corporation, and that the matters set forth in
the foregoing Certificate of Determination of Preferences are true and correct.
Executed at Carpinteria, California, on April __, 1971.
______________________________________________
______________________________________________
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CERTIFICATE OF AMENDMENT
OF
ARTICLE OF INCORPORATION
OF
KILOVAC CORPORATION
PHILIP L. SMITH and RICHARD A. EDICK certify that:
1. They are the president and the secretary, respectively, of
Kilovac Corporation, a California corporation.
2. Article IV of the articles of incorporation of this corporation
is amended to read as follows:
"The corporation is authorized to issue two classes of shares to be
designated 'Class A,' and 'Class B', herein referred to as 'Class A Common
Shares' and Class B Common Shares', respectively. Upon the amendment of this
article to read as herein set forth, each outstanding share of common stock is
hereby reclassified and reconstituted as one share of Class A Common Shares.
The holders of the Class A Common Shares shall have and possess 10
votes per each share of Class A Common Shares, and the holders of the Class B
Common Shares shall have and possess 1 vote per each share of Class B Common
Shares.
The total number of Class A Common Shares authorized is 200,000, and
the total number of Class B Common Shares authorized is 200,000."
3. The foregoing amendment of articles of incorporation has been
duly approved by the board of directors.
4. The foregoing amendment of articles of incorporation has been
duly approved by the required vote of shareholders in accordance with Section
902 of the Corporations Code. The total number of outstanding shares of the
corporation is 53,379. The number of shares voting in favor of the amendment
equalled or exceeded the vote required. The percentage vote required was more
than 50%.
We further declare under penalty of perjury under the laws of the State of
California that the matters set forth in this certificate are true and correct
of our own knowledge.
Date:___________________, 1991
____________________________________
Philip L. Smith, President
____________________________________
Richard A. Edick, Secretary
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