(A) | | | | | | | | | | | | | | | | | | Name | Company Matching Contribution to 401(k) Plan | Company Matching Contribution to Benefits Restoration Plan- Savings Plan | Matching Gift by the Aerojet Rocketdyne Foundation | Perquisites And Other Personal Benefits(A) | Total | Executive Officers as of November 30, 2015 | Eileen P. Drake | $ | 11,123 |
| $ | — |
| $ | — |
| $ | 65,462 |
| $ | 76,585 |
| Kathleen E. Redd | 11,925 |
| — |
| — |
| — |
| 11,925 |
| Mark A. Tucker | 10,921 |
| — |
| — |
| — |
| 10,921 |
| John D. Schumacher | 11,925 |
| 9,007 |
| 2,600 |
| — |
| 23,532 |
| Christopher C. Cambria | 11,664 |
| — |
| — |
| — |
| 11,664 |
| Former Executive Officers as of November 30, 2015 | Scott J. Seymour | 11,925 |
| — |
| 3,000 |
| — |
| 14,925 |
|
(A) This column includes items paid by the Company or reimbursed to the employee for relocation expenses.
| | (5) | Ms. Drake received a one-time bonus of $200,000 per the employment agreement entered into on November 23, 2015. A further description of the agreement can be found on page 35 under the section entitled Employment Agreement, Transition Agreement and Plan Provisions. |
(5) | The total compensation shown for Ms. Redd and Mr. Bregard in fiscal 2011 does not reflect the Change in Pension Value as previously disclosed because the Company’s defined benefit pension and BRP have been frozen and not accruing benefits for three years. Changes in pension value previously reported are as follows: |
| | | | | | | | | Name | | Year | | | Change in Pension Value | | Kathleen E. Redd | | | 2011 | | | $ | 26,199 | | Richard W. Bregard | | | 2011 | | | | 311 | |
Because the plans are frozen, these amounts represent changes in actuarial assumptions, primarily the decrease in the discount rate and a change in mortality assumption used to measure the present value of benefits accrued up until the freeze date, which is the same for all plan participants. There is no further accrual of pension benefits for service. Information regarding these pension plans is set forth in further detail under the section entitled2013Pension Benefits on page 49.
(6) | Mr. Seymour’s stock awards compensation consistsThe amounts reported for fiscal 2015 Stock Awards consist of $300,803 for a service-based restricted stock grant and $902,426 for a performance-based restricted stock grant that vests based on EVArevenue, EBITDAP, ROIC, cumulative CIP Phase I investments, and cumulative Phase I savings metrics for fiscal 2015.2017 (“Performance Grant A”). Ms. Drake’s amount reported for fiscal 2015 Stock Awards also contains a second performance-based restricted stock grant that vests based on environmental remediation reimbursement advancement agreements, competitive improvement program restructuring execution, and AR1 program achievement (“Performance Grant B”) and service-based grants. The grant date fair value of the performance-based restricted stockand service-based grants based on the current estimated vesting of 100% and the value of the performance-based grant at the maximum 200% vesting of 125% would be $1,128,033.is as follows: |
| | | | | | | Name | Grant Date Fair Value of Performance-Based and Service-Based Grants at 100% Target Vesting | Grant Date Fair Value of Performance-Based Grant at 200% Maximum Vesting | Eileen P. Drake Service-Based Grants | 1,627,359 |
| N/A |
| Eileen P. Drake Performance Grant A | 374,979 |
| $ | 749,957 |
| Eileen P. Drake Performance Grant B | 1,914,000 |
| N/A |
| Eileen P. Drake Total | 3,916,338 |
| N/A |
| Kathleen E. Redd | 418,340 |
| 836,682 |
| Mark A. Tucker | 264,614 |
| 529,227 |
| John D. Schumacher | 243,929 |
| 487,857 |
| Christopher C. Cambria | 286,941 |
| 573,881 |
|
| | (7) | Ms. Redd’s stock awards compensation consists of $613,925 for service-based restricted stock grants and $341,774 for a performance-based restricted stock grant that vests based on EVA metrics for fiscal 2015. The grant date fair value of the performance-based restricted stock grant at the maximum vesting of 125% would be $427,213. |
(8) | Mr. Boley started hisDrake commenced her employment with the Company on July 23, 2012, and assumed full responsibility as President, Aerojet Rocketdyne on August 20, 2012.March 2, 2015. |
(9) | | (8) | Mr. Boley’s stock awards compensation consists of $117,439 for a service-based restricted stock grant and $352,335 for a performance-based restricted stock grant that vests basedTucker was appointed COO on non-EVA metrics for fiscalJune 25, 2015. The grant date fair value of this performance-based restricted stock grant at the maximum vesting of 125% would be $440,423. |
(10) | Mr. Cambria started his employment with the Company on September 12, 2011. |
(11) | Mr. Cambria’s stock awards compensation consists of $55,505 for a service-based restricted stock grant and $166,499 for a performance-based restricted stock grant that vests based on EVA metrics for fiscal 2015. The grant date fair value of the performance-based restricted stock grant at the maximum vesting of 125% would be $208,123. |
44
(12) | Mr. Cambria received a $25,000 sign-on bonus upon commencement of his employment with the Company. A further description of this bonus can be found on page 41 under the section entitledOther of the Compensation Discussion and Analysis. |
(13)(9) | Mr. Schumacher commenced his employment with the Company on April 29, 2013. |
(14) | Mr. Schumacher’s stock awards compensation consists of $60,009 for a service-based restricted stock grant and $180,008 for a performance-based restricted stock grant that vests based on EVA metrics for fiscal 2015. The grant date fair value of the performance-based restricted stock grant at the maximum vesting of 125% would be $225,006. |
(15) | Effective February 6, 2012, to ensure a successful transition to Mr. Bregard’s retirement, the Company entered into a retention agreement with Mr. Bregard pursuant to which he was to receive a payment equal to his annual base salary in effect at November 30, 2012 if he was employed by the Company through that date. On February 12, 2013, this agreement was amended to provide that Mr. Bregard would receive an additional payment of $200,000 if he remains with Aerojet Rocketdyne assisting in completion of closing conditions and integration planning for the acquisition of the Rocketdyne Business through at least May 31, 2013. The terms of the agreement and amendment were met and the retention payments were made December 13, 2012 and June 27, 2013, respectively. For more details on this agreement see page 40. |
2013
2015 GRANTS OF PLAN-BASED AWARDS The following table provides information for each of the Named Executive Officersnamed executive officers for fiscal 20132015 annual and long-term incentive award opportunities, including the range of possible payments under non-equity incentive plans. | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Name | | Grant | | | Estimated Possible Payouts Under Non-Equity Incentive Plan Awards ($)(1) | | | Estimated Future Payouts Under Equity Incentive Plan Awards(#) | | | Other Stock Awards: Number of Shares of Stock or | | | All Other Option Awards: Number of Securities Underlying | | | Exercise or Base Price of Options/ SARs | | | Grant Date Fair Value of Stock and Option/SARs | | | Date | | | Threshold (2) | | | Target | | | Maximum | | | Threshold | | | Target | | | Maximum | | | Units(#) | | | Options(#) | | | ($/Sh) | | | Awards($) | | Executive Officers as of November 30, 2013 | | Scott J. Seymour | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Annual Incentive Award | | | | | | $ | — | | | $ | 800,025 | | | $ | 1,480,046 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Restricted Stock | | | 11-22-13 | | | | | | | | | | | | | | | | | | | | | | | | | | | | 17,033 | | | | | | | | | | | $ | 300,803 | | Restricted Stock | | | 11-22-13 | | | | | | | | | | | | | | | | 25,550 | | | | 51,100 | | | | 63,875 | | | | | | | | | | | | | | | | 902,426 | (3) | Kathleen E. Redd | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Annual Incentive Award | | | | | | | — | | | | 193,088 | | | | 357,212 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Restricted Stock | | | 11-22-13 | | | | | | | | | | | | | | | | | | | | | | | | | | | | 6,451 | | | | | | | | | | | | 113,925 | | Restricted Stock | | | 11-22-13 | | | | | | | | | | | | | | | | 9,677 | | | | 19,353 | | | | 24,191 | | | | | | | | | | | | | | | | 341,774 | (3) | Restricted Stock | | | 05-09-13 | | | | | | | | | | | | | | | | | | | | | | | | | | | | 36,523 | | | | | | | | | | | | 500,000 | | Warren M. Boley, Jr. | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Annual Incentive Award | | | | | | | — | | | | 216,825 | | | | 401,126 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Restricted Stock | | | 11-22-13 | | | | | | | | | | | | | | | | | | | | | | | | | | | | 6,650 | | | | | | | | | | | | 117,439 | | Restricted Stock | | | 11-22-13 | | | | | | | | | | | | | | | | 9,976 | | | | 19,951 | | | | 24,939 | | | | | | | | | | | | | | | | 352,335 | (3) | Christopher C. Cambria | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Annual Incentive Award | | | | | | | — | | | | 163,239 | | | | 301,991 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Restricted Stock | | | 11-22-13 | | | | | | | | | | | | | | | | | | | | | | | | | | | | 3,143 | | | | | | | | | | | | 55,505 | | Restricted Stock | | | 11-22-13 | | | | | | | | | | | | | | | | 4,714 | | | | 9,428 | | | | 11,785 | | | | | | | | | | | | | | | | 166,499 | (3) | John D. Schumacher | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Annual Incentive Award | | | | | | | — | | | | 78,750 | | | | 145,688 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Restricted Stock | | | 11-22-13 | | | | | | | | | | | | | | | | | | | | | | | | | | | | 3,398 | | | | | | | | | | | | 60,009 | | Restricted Stock | | | 11-22-13 | | | | | | | | | | | | | | | | 5,097 | | | | 10,193 | | | | 12,741 | | | | | | | | | | | | | | | | 180,008 | (3) | SARs | | | 04-29-13 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 20,000 | | | | 13.01 | | | | 152,564 | (4) | Former Executive Officers as of November 30, 2013 | | Richard W. Bregard | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Annual Incentive Award | | | | | | | — | | | | 80,494 | | | | 148,914 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
45
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | Name | Grant Date | Estimated Possible Payouts Under Non-Equity Incentive Plan Awards ($) (1) | Estimated Future Payouts Under Equity Incentive Plan Awards (#) | Other Stock Awards: Number of Shares of Stock or Units (#) | All Other Option Awards: Number of Securities Underlying Options (#) | Exercise or Base Price of Options/SARs ($/Sh) | Grant Date Fair Value of Stock and Option/SARs Awards ($) | Threshold (2) | Target | Maximum | Threshold | Target | Maximum | Executive Officers as of November 30, 2015 | Eileen P. Drake | | | | | | | | | | | | | Annual Incentive Award | | $ | — |
| $ | 537,500 |
| $ | 1,007,813 |
| | | | | | | | | Restricted Stock | 03/02/2015 | | | |
|
|
| 25,667 |
|
|
| $ | 499,993 |
| | Restricted Stock | 03/02/2015 | | | |
|
|
| 57,873 |
|
|
| 1,127,366 |
| | Restricted Stock | 03/30/2015 | | | | 8,131 |
| 16,261 |
| 32,522 |
|
|
|
| 374,979 |
| (3) | Restricted Stock | 11/18/2015 | | | |
| 120,000 |
|
|
|
|
| 1,914,000 |
| (5) | Stock Options | 03/30/2015 | | | | | | |
| 17,848 |
| $ | 23.06 |
| 241,662 |
| | Kathleen E. Redd | | | | | | | | | | | | | Annual Incentive Award | | — |
| 270,825 |
| 507,797 |
| | | | | | | | | Restricted Stock | 03/30/2015 | | | | 8,469 |
| 16,938 |
| 33,876 |
|
|
|
| 390,590 |
| (3) | Restricted Stock | 04/17/2015 | | | | 678 |
| 1,355 |
| 2,710 |
|
|
|
|
| 27,750 |
| (4) | Stock Options | 03/30/2015 | | | |
|
|
|
|
| 18,591 |
| 23.06 |
| 251,722 |
| | Stock Options | 04/17/2015 | | | |
|
|
|
|
| 1,487 |
| 20.48 |
| 17,881 |
| | Mark A. Tucker | | | | | | | | | | | | | Annual Incentive Award | | — |
| 252,000 |
| 472,501 |
| | | | | | | | | Restricted Stock | 03/30/2015 | | | | 5,738 |
| 11,475 |
| 22,950 |
| | | | 264,614 |
| (3) | Stock Options | 03/30/2015 | | | | | | | | 12,594 |
| 23.06 |
| 170,523 |
|
| John D. Schumacher | | | | | | | | | | | | | Annual Incentive Award | | — |
| 178,893 |
| 335,424 |
| | | | | | | | | Restricted Stock | 03/30/2015 | | | | 5,289 |
| 10,578 |
| 21,156 |
| | | | 243,929 |
| (3) | Stock Options | 03/30/2015 | | | |
| |
| | 11,610 |
| 23.06 |
| 157,199 |
|
| Christopher C. Cambria | | | | | | | | | | | | | Annual Incentive Award | | — |
| 193,280 |
| 362,401 |
| | | | | | | | | Restricted Stock | 03/30/2015 | | | | 5,715 |
| 11,429 |
| 22,858 |
| | | | 263,553 |
| (3) | Restricted Stock | 04/17/2015 | | | | 571 |
| 1,142 |
| 2,284 |
| | | | 23,388 |
| (4) | Stock Options | 03/30/2015 | | | | | | | | 12,544 |
| 23.06 |
| 169,846 |
| | Stock Options | 04/17/2015 | | | | | | | | 1,254 |
| 20.48 |
| 15,079 |
| | Former Executive Officers as of November 30, 2015 | Scott J. Seymour | | | | | | | | | | | | | Stock options Modification | 01/06/2010 | | | | | | | | | | 7,135 |
| (6) | Stock options Modification | 11/30/2010 | | | | | | | | | | 762 |
| (6) | Stock options Modification | 03/30/2011 | | | | | | | | | | 11,494 |
| (6) | Stock options Modification | 02/05/2014 | | | | | | | | | | 97,725 |
| (6) |
| | (1) | Reflects the possible payout amounts of non-equity incentive plan awards that could have been earned in fiscal 2013.2015. See theSummary Compensation Table on page 4339 for the amounts actually earned in fiscal 20132015 and paid out in the first quarter of fiscal 2014.2016. |
| | (2) | If targetsall financial metrics are not met at the threshold level, the annual incentive award will not be earned. |
| | (3) | Vesting of this performance-based restricted stock grant is based on financial performance for fiscal 2015.2017. The grant date fair value at the maximum of 125%200% vesting would be $1,128,033$749,957 for Mr. Seymour, $427,213Ms. Drake, $781,181 for Ms. Redd, $440,423 for Mr. Boley, $208,123$527,105 for Mr. Cambria, and $225,006$487,857 for Mr. Schumacher.Schumacher, and $529,227 for Mr. Tucker. |
| | (4) | Vesting of this performance-based restricted stock grant is based on financial performance for fiscal 2017. The grant date fair value at the maximum of 200% vesting would be $55,501 for Ms. Redd and $46,776 for Mr. Cambria. |
| | (5) | Vesting of this SARperformance-based restricted stock grant is based on environmental remediation reimbursement advancement agreements, competitive improvement program restructuring execution, and AR1 program achievement with a vesting year term of fiscal 2015 through fiscal 2018. A portion of the AR1 program achievement was estimated using the Black-Scholes Model with the following weighted average assumptions at theattained and 20,000 shares of this grant date: Expected life – seven years; volatility – 58.60%; risk-free interest rate – 1.62%; dividend yield – 00.0%.vested on December 25, 2015. |
46
| | (6) | These stock option grants were modified pursuant to the Transition Agreement wherein Mr. Seymour has retired. Therefore his vested stock options remain exercisable until the end of their ten year life. |
OUTSTANDING EQUITY AWARDS AT 20132015 FISCAL YEAR END The following table provides information for each of the Named Executive Officersnamed executive officers regarding outstanding stock options, SARs, and stock awards held by the officers as of November 30, 2013. | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Name | | Option/SARs Awards | | | Stock Awards | | | Number of Securities Underlying Unexercised Options/SARs (#) Exercisable | | | Number of Securities Underlying Unexercised Options/SARs (#) Unexercisable | | | Equity Incentive Plan Awards: Number of Securities Underlying Unexercised Unearned Option/SARs (#) | | | Option/ SARs Exercise Price ($) | | | Option/ SARs Expiration Year | | | Service-Based Equity Awards | | | Equity Incentive Plan Awards | | | | | | | | Number of Shares or Units of Stock That Have Not Vested (#) | | | Market Value of Shares or Units of Stock That Have Not Vested ($)(1) | | | Number of Unearned Shares, Units or Other Rights That Have Not Vested (#) | | | Market or Payout Value of Unearned Shares, Units or Other Rights That Have Not Vested ($)(1) | | Executive Officers as of November 30, 2013 | | Scott J. Seymour | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Restricted Stock | | | | | | | | | | | | | | | | | | | | | | | 17,033 | (2) | | $ | 312,385 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 63,875 | (3) | | $ | 1,171,468 | | | | | | | | | | | | | | | | | | | | | | | | | 30,242 | (4) | | | 554,638 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 113,407 | (5) | | | 2,079,884 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 115,907 | (6) | | | 2,125,734 | | Stock Options | | | — | | | | — | | | | 82,026 | (6) | | $ | 6.01 | | | | 2018 | | | | | | | | | | | | | | | | | | | | | 188,697 | | | | — | | | | — | | | | 4.91 | | | | 2017 | | | | | | | | | | | | | | | | | | | | | 100,000 | | | | — | | | | — | | | | 7.14 | | | | 2017 | | | | | | | | | | | | | | | | | | Kathleen E. Redd | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Restricted Stock | | | | | | | | | | | | | | | | | | | | | | | 6,451 | (2) | | | 118,311 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 24,191 | (3) | | | 443,663 | | | | | | | | | | | | | | | | | | | | | | | | | 36,523 | (7) | | | 669,832 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 10,940 | (4) | | | 200,640 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 41,026 | (5) | | | 752,417 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 39,653 | (6) | | | 727,236 | | SARs | | | 20,000 | | | | — | | | | — | | | | 4.25 | | | | 2018 | | | | | | | | | | | | | | | | | | | | | 1,500 | | | | — | | | | — | | | | 13.75 | | | | 2017 | | | | | | | | | | | | | | | | | | | | | 2,560 | | | | — | | | | — | | | | 13.19 | | | | 2016 | | | | | | | | | | | | | | | | | | | | | 2,500 | | | | — | | | | — | | | | 18.71 | | | | 2015 | | | | | | | | | | | | | | | | | | Stock Options | | | 1,750 | | | | | | | | | | | | 6.00 | | | | 2019 | | | | | | | | | | | | | | | | | | | | | — | | | | — | | | | 28,061 | (6) | | | 6.01 | | | | 2018 | | | | | | | | | | | | | | | | | | | | | 64,555 | | | | — | | | | | | | | 4.91 | | | | 2017 | | | | | | | | | | | | | | | | | | | | | 35,000 | | | | — | | | | | | | | 4.54 | | | | 2019 | | | | | | | | | | | | | | | | | | Warren M. Boley, Jr. | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Restricted Stock | | | | | | | | | | | | | | | | | | | | | | | 6,650 | (2) | | | 121,961 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 24,939 | (3) | | | 457,381 | | | | | | | | | | | | | | | | | | | | | | | | | 50,000 | (8) | | | 917,000 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 10,000 | (5) | | | 183,400 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 10,000 | (6) | | | 183,400 | | Christopher C. Cambria | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Restricted Stock | | | | | | | | | | | | | | | | | | | | | | | 3,143 | (2) | | | 57,643 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 11,785 | (3) | | | 216,137 | | | | | | | | | | | | | | | | | | | | | | | | | 6,818 | (4) | | | 125,042 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 25,568 | (5) | | | 468,917 | | SARs | | | 13,333 | | | | 6,667 | (9) | | | | | | | 4.00 | | | | 2018 | | | | | | | | | | | | | | | | | | John D. Schumacher | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Restricted Stock | | | | | | | | | | | | | | | | | | | | | | | 3,398 | (2) | | | 62,319 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 12,741 | (3) | | | 233,670 | | SARs | | | | | | | 20,000 | (10) | | | | | | | 13.01 | | | | 2020 | | | | | | | | | | | | | | | | | | Former Executive Officers as of November 30, 2013 | | Richard W. Bregard | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | SARs | | | 1,500 | | | | | | | | | | | | 13.75 | | | | 2017 | | | | | | | | | | | | | | | | | | | | | 4,256 | | | | | | | | | | | | 13.19 | | | | 2016 | | | | | | | | | | | | | | | | | | Stock Options | | | 10,000 | | | | | | | | | | | | 4.54 | | | | 2019 | | | | | | | | | | | | | | | | | | | | | 500 | | | | | | | | | | | | 6.00 | | | | 2019 | | | | | | | | | | | | | | | | | |
2015. | | | | | | | | | | | | | | | | | | | | | | | | | | Name | Option/SARs Awards | Stock Awards | Number of Securities Underlying Unexercised Options/SARs (#) Exercisable | Number of Securities Underlying Unexercised Options/SARs (#) Unexercisable | Equity Incentive Plan Awards: Number of Securities Underlying Unexercised Unearned Option/SARs (#) | Option/ SARs Exercise Price ($) | Option/ SARs Expiration Year | Service-Based Equity Awards | Equity Incentive Plan Awards | Number of Shares or Units of Stock That Have Not Vested (#) | Market Value of Shares or Units of Stock That Have Not Vested ($)(1) | Number of Unearned Shares, Units or Other Rights That Have Not Vested (#) | Market or Payout Value of Unearned Shares, Units or Other Rights That Have Not Vested ($)(1) | Executive Officers as of November 30, 2015 | Eileen P. Drake | | | | | | | | | | | | | Restricted Stock | | | | | | | — |
|
| $ | — |
| 120,000 |
| (2) | $ | 2,104,800 |
| | | | | | | | — |
|
| — |
| 16,261 |
| (3) | 285,218 |
| | | | | | | | 57,873 |
| (4) | 1,015,092 |
| — |
|
| — |
| | | | | | | | 25,667 |
| (5) | 450,199 |
| — |
|
| — |
| Stock Options | — |
| 17,848 |
| (12 | ) | — |
| $ | 23.06 |
| 2022 | | | | | | | Kathleen E. Redd | | | | | | | | | | | | | Restricted Stock | | | | | | | — |
|
| — |
| 1,355 |
| (3) | 23,767 |
| | | | | | | | — |
| | — |
| 16,938 |
| (3) | 297,093 |
| | | | | | | | 6,988 |
| (6) | 122,570 |
| — |
|
| — |
| | | | | | | | — |
|
| — |
| 20,964 |
| (7) | 367,709 |
| | | | | | | | 6,451 |
| (8) | 113,151 |
| — |
| | — |
| | | | | | | | — |
|
| — |
| 12,096 |
| (9) | 212,164 |
| | | | | | | | 36,523 |
| (10) | 640,613 |
| — |
|
| — |
| SARs | 20,000 |
| — |
|
|
| — |
| 4.25 |
| 2018 | | | | | | | Stock Options | — |
| 1,487 |
| (11 | ) | — |
| 20.48 |
| 2022 | | | | | | | | — |
| 18,591 |
| (12 | ) | — |
| 23.06 |
| 2022 | | | | | | | | 5,612 |
| — |
|
|
| — |
| 16.59 |
| 2021 | | | | | | | | 1,750 |
| — |
|
|
| — |
| 6.00 |
| 2019 | | | | | | | | 22,449 |
| — |
|
|
| — |
| 6.01 |
| 2018 | | | | | | | | 64,555 |
| — |
|
|
| — |
| 4.91 |
| 2017 | | | | | | | | 35,000 |
| — |
|
|
| — |
| 4.54 |
| 2019 | | | | | | | Mark A. Tucker | | | | | | | | | | | | | Restricted Stock | | | | | | | — |
|
| — |
| 11,475 |
| (3) | 201,272 |
| | | | | | | | 4,777 |
| (6) | 83,789 |
| — |
|
| — |
| | | | | | | | — |
|
| — |
| 14,331 |
| (7) | 251,366 |
| | | | | | | | 5,833 |
| (14) | 102,311 |
| — |
|
| — |
| Stock Options | — |
| 12,594 |
| (12 | ) | — |
| 23.06 |
| 2022 | | | | | | | John D. Schumacher | | | | | | | |
| | | |
| | | Restricted Stock | | | | | | | — |
|
| — |
| 10,578 |
| (3) | 185,538 |
| | | | | | | | 4,343 |
| (6) | 76,176 |
| — |
|
| — |
| | | | | | | | — |
|
| — |
| 13,029 |
| (7) | 228,529 |
| | | | | | | | 3,398 |
| (8) | 59,601 |
| — |
|
| — |
| | | | | | | | — |
| | — |
| 6,371 |
| (9) | 111,747 |
| SARs | 13,333 |
| 6,667 |
| (13) | — |
| 13.01 |
| 2020 | |
| | | |
| | | Stock Options | — |
| 11,610 |
| (12) | — |
| 23.06 |
| 2022 | | | | | | | Christopher C. Cambria | | | | | | | |
| | | |
| | | Restricted Stock | | | | | | | — |
|
| — |
| 1,142 |
| (3) | 20,031 |
| | | | | | | | — |
|
| — |
| 11,429 |
| (3) | 200,465 |
| | | | | | | | 4,726 |
| (6) | 82,894 |
| — |
|
| — |
| | | | | | | | — |
| | — |
| 14,178 |
| (7) | 248,682 |
| | | | | | | | 3,143 |
| (8) | 55,128 |
| — |
| | — |
| | | | | | | | — |
| | — |
| 5,893 |
| (9) | 103,363 |
| SARs | 20,000 |
| — |
|
|
| — |
| 4.00 |
| 2018 | |
| | | |
| | | Stock Options | — |
| 12,544 |
| (12 | ) | — |
| 23.06 |
| 2022 | | | | | | | | — |
| 1,254 |
| (11 | ) | — |
| 20.48 |
| 2022 | | | | | | | Former Executive Officers as of November 30, 2015 | Scott J. Seymour | | | | | | | | | | | | | Restricted Stock | | | | | | | — |
|
| $ | — |
| 31,938 |
| (9) | $ | 560,193 |
| Stock Options | 16,405 |
| — |
|
| — |
| $ | 16.59 |
| 2021 | | | | | | | | 65,621 |
| — |
|
| — |
| 6.01 |
| 2018 | | | | | | | | 100,000 |
| — |
|
| — |
| 7.14 |
| 2017 | | | | | | |
| | (1) | The market value was calculated by multiplying the number of shares by the closing market price of the Company’s Common Stock of $18.34$17.54 on November 29, 2013.30, 2015. |
| | (2) | The vesting date for these service-based restricted stock awards isThese shares will vest when the individual performance goals are met, if met before November 22, 2016.18, 2018. A portion of the AR1 program achievement was attained and 20,000 shares of this grant vested on December 25, 2015. |
| | (3) | The vesting date for these performance-based restricted stock awards is on or about January 31, 2016,2018, subject to approval by the Organization & Compensation Committee. These awards will only vest if performance targets are met through November 30, 2015.2017. |
| | (4) | This service-based restricted stock award vests in 50% increments on January 3, 2016 and January 3, 2017. |
| | (5) | The vesting date for this service-based restricted stock award is March 2, 2018. |
| | (6) | The vesting date for these service-based restricted stock awards is March 28, 2015.April 7, 2017. |
47
(5) | | (7) | The vesting date for these performance-based restricted stock awards is on or about January 31, 2015,2017, subject to approval by the Organization & Compensation Committee. These awards will only vest if performance targets are met through November 30, 2014.2016. |
(6) | | (8) | The vesting date for these service-based restricted stock awards is November 22, 2016. |
| | (9) | The vesting date for these performance-based stock option and restricted stock awards is on or about January 29, 2014, subject to approval by the Organization & Compensation Committee. These awards will only vest if performancewas February 18, 2016. EVA Performance targets arewere not met through November 30, 2013.2015 resulting in EVA grants not vesting. Corporate financial targets were met through November 30, 2015 resulting in grants vesting at 66.8%. As a result, the named executive officers did not have any shares vest from this grant. |
(7) | | (10) | The vesting date for this service-based restricted stock award for Ms. Redd is on May 9, 2016. |
(8) | The vesting date for this | (11) | These service-based restricted stock award for Mr. Boley is on July 23, 2015. |
(9) | Mr. Cambria’s unvested SARsoptions vest in one-third increments on September 12th ofApril 17th each year, becoming fully vested in 2014.2018. |
(10) | | (12) | These service-based stock options vest in one-third increments on March 30th each year, becoming fully vested in 2018. |
| | (13) | Mr. Schumacher’s unvested SARs vest in one-third increments on April 29th of29th each year, becoming fully vested in 2016. |
2013
| | (14) | Mr. Tucker’s service-based restricted stock award vests in one-third increments on October 7th each year, becoming fully vested in 2016. |
2015 OPTION/SAR EXERCISES AND STOCK VESTED The following table provides information for each of the Named Executive Officersnamed executive officers regarding stock option and SARs exercises and stock award vestings during fiscal 2013. | | | | | | | | | | | | | | | | | Name | | Option/SARs Awards | | | Stock Awards | | | Number of Shares Acquired on Exercise (#) | | | Value Realized on Exercise ($)(1) | | | Number of Shares Acquired on Vesting (#)(2) | | | Value Realized on Vesting ($)(3) | | Executive Officers as of November 30, 2013 | | | | | | | | | | | | | | | | | Scott J. Seymour | | | — | | | $ | — | | | | 40,000 | | | $ | 387,200 | | Kathleen E. Redd | | | — | | | | — | | | | — | | | | — | | Warren M. Boley, Jr. | | | — | | | | — | | | | — | | | | — | | Christopher C. Cambria | | | — | | | | — | | | | — | | | | — | | John D. Schumacher | | | — | | | | — | | | | — | | | | — | | Former Executive Officers as of November 30, 2013 | | | | | | | | | | | | | | | | | Richard W. Bregard | | | — | | | $ | — | | | | 40,031 | (4) | | $ | 615,529 | |
2015. | | | | | | | | | | | | | Name | Option/SARs Awards | Stock Awards | Number of Shares Acquired on Exercise (#) | Value Realized on Exercise ($)(1) | Number of Shares Acquired on Vesting (#)(2) | Value Realized on Vesting ($)(3) | Executive Officers as of November 30, 2015 | Eileen P. Drake | — |
| $ | — |
| — |
| | $ | — |
| Kathleen E. Redd | 6,560 |
| 34,888 |
| 51,966 |
| | 964,597 |
| Mark A. Tucker | — |
| — |
| 19,875 |
| | 344,717 |
| John D. Schumacher | — |
| — |
| — |
| | — |
| Christopher C. Cambria | — |
| — |
| 32,386 |
| | 601,152 |
| Former Executive Officers as of November 30, 2015 | Scott J. Seymour | 188,697 |
| $ | 3,547,504 |
| 160,682 |
| | $ | 3,019,523 |
|
| | (1) | The value realized on vesting represents the difference between the closing market price of the Company’s Common Stock on the exercise date and the exercise price multiplied by the number of shares underlying each option exercised. |
| | (2) | The amounts reported in this column reflect restricted stock awards that vested during fiscal 2013.2015. |
| | (3) | The value realized on vesting is calculated by multiplying the number of shares vested by the closing market price of the Company’s Common Stock on the vesting date. |
(4) | On June 26, 2013, the Board of Directors approved accelerated vesting of Mr. Bregard’s outstanding unvested restricted stock awards in recognition of his service to the Company. The accelerated vesting included: 9,455 shares of restricted stock scheduled to vest on November 30, 2013; 12,174 shares of restricted stock scheduled to vest on March 30, 2014; and 12,174 shares of restricted stock scheduled to vest upon meeting Non-EVA metrics for fiscal 2013. Also included in this number are 6,228 shares of restricted stock that vested on schedule. |
48
2013
The Company’s defined benefit pension and BRP are frozen and no longer accruing benefits. Effective February 1, 2009 and July 31, 2009, future benefit accruals for all non-collective bargaining unitbargaining-unit employees, including the Named Executive Officersnamed executive officers and collective bargaining unitbargaining-unit employees respectively, were discontinued. Also, Effective November 30, 2014 and December 31, 2014, the Company discontinued benefit accruals for certain Rocketdyne’s bargaining unit employees. No employees lost their previously earned pension benefits. The Qualified Pension Plan is a tax-qualified defined benefit plan covering substantially all collectively bargaining unitcollective bargaining-unit and non-collectively bargaining unitnon-collective bargaining-unit employees hired before the freeze date. In general, normal retirement age is 65, with certain plan provisions allowing for earlier retirement. Before the freeze date, pension benefits were calculated under formulas based on compensation and length of service for salaried employees and under negotiated non-wage based formulas for bargaining unitbargaining-unit and hourly employees. Participants will receive the highest benefit calculated under any of the formulas for which they were eligible to participate through the freeze date. Total pension benefits for the Named Executive Officersnamed executive officers and certain other highly compensated employees were determined under a combination of the 2009 Pension BRP Plan, which is a non-qualified plan, and the Qualified Pension Plan. As set forth above, the Qualified Pension Plan is a qualified pension plan that provides pension benefits for employees, the amount of which is limited under Section 401(a)(17) or 415 of the Code (or any successor provisions). The 2009 Pension BRP Plan restored the pension plan benefits which executives and their beneficiaries would otherwise lose as a result of the limitations under Section 401(a)(17) or 415 of the Code (or any successor provisions). Eligibility to participate in the 2009 Pension BRP Plan was designated by the Organization & Compensation Committee. The following table provides information regarding the actuarial present values of accumulated benefits under the Qualified Pension Plan and the 2009 Pension BRP Plan of the Named Executive Officersnamed executive officers who were eligible for pension benefits prior to the freeze date of the plans as of November 30, 2013.2015. Ms. Drake and Messrs. Cambria, Seymour Boley, and CambriaTucker are not participants in either of the pension plans as their employment with the Company commenced after the freeze date. | | | | | | | | | | | | | | | Name | | Plan Name | | Number of Years Credited Service (#)(1) | | | Present Value of Accumulated Benefit ($)(2) | | | Payments During Fiscal 2013 ($) | | Executive Officers as of November 30, 2013 | | | | | | | | | | Kathleen E. Redd | | Qualified Pension Plan | | | 6.50 | | | $ | 238,158 | | | $ | — | | | | 2009 Pension BRP Plan | | | 6.50 | | | | 62,815 | | | | — | | John D. Schumacher(3) | | Qualified Pension Plan | | | 2.58 | | | | 124,261 | | | | — | | | | 2009 Pension BRP Plan | | | 2.58 | | | | 7,535 | | | | — | | Former Executive Officers as of November 30, 2013 | | | | | | | | | | Richard W. Bregard | | Qualified Pension Plan | | | 4.50 | | | | 247,131 | | | | 12,956 | | | | 2009 Pension BRP Plan | | | 4.50 | | | | 24,749 | | | | — | |
| | | | | | | | | Name | Plan Name | Number of Years Credited Service (#)(1) | Present Value of Accumulated Benefit ($)(2) | Payments During Fiscal 2015 ($) | Kathleen E. Redd | Qualified Pension Plan | 6.50 | $ | 305,831 |
| $ — |
| | 2009 Pension BRP Plan | 6.50 | 81,458 |
| — |
| John D. Schumacher(3) | Qualified Pension Plan | 2.58 | 149,008 |
| — |
| | 2009 Pension BRP Plan | 2.58 | 9,207 |
| — |
|
| | (1) | Credited service under the Qualified Pension Plan and the 2009 Pension BRP Plan is determined for all participants in accordance with such plans and is through February 1, 2009, the freeze date for these plans in which the Company discontinued future benefit accruals for all non-collectively bargaining unitnon-collective bargaining-unit employees, including the Named Executive Officers.named executive officers. This number is being presented unrounded. |
49
| | (2) | The amounts reported in this column were calculated based on the accrued benefit as of February 1, 2009, the date benefit accruals were frozen for non-collectively bargaining unitnon-collective bargaining-unit employees. Present values were calculated assuming no pre-retirement mortality or termination. The values under the Qualified Pension Plan and the 2009 Pension BRP Plan are the actuarial present values as of November 30, 20132015 of the benefits earned as of the freeze date and payable at the earliest age eligible for unreduced benefits for the Qualified Pension Plan (the earlier of age 65, or age 62 with 10 years of service) and the current benefit election date on record for the 2009 Pension BRP Plan. The change in the present values this year compared to last year is primarily the result of an increase in the discount rate due to higher market interest rates used to determine the Company’s pension obligation. |
The discount rate assumption is 4.54%4.26% for the Qualified Pension Plan and 4.65%4.32% for the 2009 Pension BRP Plan. The post-retirement mortality assumption of the two pension plans is RP 2000 no-collar,2014 no collar projected back to 2021.2011 with Scale MP-2014 then forward generationally using a customized Scale MP-2014. The assumptions reflected in this footnote are the same as the ones used for the Qualified
Pension Plan and the 2009 Pension BRP Plan for financial reporting purposes with the exception of assumed retirement age and the absence of pre-retirement mortality and termination assumptions. | | (3) | Mr. Schumacher’s pension benefits were earned from his previous employment with the Company beginning June 12, 2006 through the pension freeze date for non-collective bargaining unitbargaining-unit employees of February 1, 2009. He has not accrued any additional benefit for his current employment with the Company that began on April 29, 2013. |
2013
2015 NON-QUALIFIED DEFERRED COMPENSATION Benefits Restoration Plan — 2009 401(k) BRP Plan The 2009 401(k) BRP Plan is a non-qualified, unfunded plan designed to enable participants to defer their compensation on a pre-tax basis. Under the 2009 401(k) BRP Plan, a select group of employees approved by the Organization & Compensation Committee, elect to defer compensation earned in the current year such as salary and certain other incentive compensation that would otherwise be paid in the current year. Effective January 1, 2009, obligations with respect to benefits that were earned or vested under the Prior Pension BRP after December 31, 2004, and were related to the restoration of 401(k) benefits which such employees and their beneficiaries would otherwise have lost as a result of Code limitations upon accrual and/or payment of benefits from the GenCorpAerojet Rocketdyne Retirement Savings Plan, along with all associated earnings, were transferred to, and will be maintained under and paid from the 2009 401(k) BRP Plan. Accordingly, only benefits that are exempt from Section 409A of the Code will be maintained under and paid from the Prior Pension BRP, in accordance with the terms of the Prior Pension BRP. The Company matches contributions in an amount equal to 100% of the participant’s contribution up to the first 3% of the participant’s eligible compensation and 50% up to the next 3% of the participant’s eligible compensation if the participant has reached the 402(g) limit in the 401(k) Savings Plan. The maximum company match is 4.5%. Participants indicate how they wish their deferred compensation and the company matching contributions to be notionally invested among the same investment options available through the GenCorpAerojet Rocketdyne Retirement Savings Plan. Non-qualified benefits may be paid out of either the grantor trust (pre-funded) or the Company’s general assets. 50
The following table provides information for each of the Named Executive Officersnamed executive officers regarding aggregate officer and Company contributions and aggregate earnings for fiscal 20132015 and fiscal year-end account balances under the 2009 401(k) BRP Plan. | | | | | | | | | | | | | | | | | | | | | Name | | Executive Contributions in fiscal 2013 ($)(1) | | | Company Contributions in fiscal 2013 ($)(2) | | | Aggregate Earnings in fiscal 2013 ($)(3) | | | Aggregate Withdrawals/ Distributions ($) | | | Aggregate Balance at November 30, 2013 ($) | | Executive Officers as of November 30, 2013 | | Scott J. Seymour | | $ | — | | | $ | — | | | $ | 5,625 | | | $ | — | | | $ | 518,807 | | Kathleen E. Redd | | | — | | | | — | | | | 9,606 | | | | — | | | | 55,592 | | Warren M. Boley, Jr. | | | — | | | | — | | | | — | | | | — | | | | — | | Christopher C. Cambria | | | — | | | | — | | | | — | | | | — | | | | — | | John D. Schumacher | | | — | | | | — | | | | — | | | | — | | | | — | | Former Executive Officers as of November 30, 2013 | | | | | | | | | | | | | | | | | | | | | Richard W. Bregard | | | — | | | | — | | | | — | | | | — | | | | — | |
| | | | | | | | | | | | | | | | | Name | Executive Contributions in fiscal 2015 ($)(1) | Company Contributions in fiscal 2015 ($)(2) | Aggregate Earnings in fiscal 2015 ($)(3) | Aggregate Withdrawals/ Distributions ($) | Aggregate Balance at November 30, 2015 ($) | Executive Officers as of November 30, 2015 | Eileen P. Drake | $ | — |
| $ | — |
| $ | — |
| $ | — |
| $ | — |
| Kathleen E. Redd | — |
| — |
| (2,664 | ) | — |
| 59,996 |
| Mark A. Tucker | — |
| — |
| — |
| — |
| — |
| John D. Schumacher | 46,888 |
| 9,007 |
| (211 | ) | — |
| 55,684 |
| Christopher C. Cambria | — |
| — |
| — |
| — |
| — |
| Former Executive Officers as of November 30, 2015 | Scott J. Seymour (4) | $ | — |
| $ | — |
| $ | 7,145 |
| $ | — |
| $ | 531,890 |
|
| | (1) | The amounts reported in this column reflect compensation earned in fiscal 20132015 and deferred under the 2009 401(k) BRP Plan. These amounts are also included in the “Salary” column in theSummary Compensation Table on page 43.39. |
| | (2) | The amounts reported in this column reflect company matches under the 2009 401(k) BRP Plan earned in fiscal 2013.2015. These amounts are also included in the “All Other Compensation” column in theSummary Compensation Table on page 43.39. |
| | (3) | The amounts reported in this column reflect interest credited on account holdings and the change in value of other investment holdings. |
| | (4) | Mr. Seymour’s balance will be distributed to him in July 2016. |
Employment Agreement and Indemnity Agreements On January 6, 2010,November 23, 2015, the Company entered into an employment agreement with Mr. SeymourMs. Drake in connection with her promotion to serve as the Company’s PresidentCEO and CEO,President, which is described under the section entitledSeveranceEmployment Agreement, EmploymentTransition Agreement and Plan Provisions—Scott J. SeymourProvisions - Eileen P. Drake Employment Agreementon page 40.On February 6, 2012, the Company’s subsidiary, Aerojet Rocketdyne, entered into a Retention Agreement with Mr. Bregard to ensure that Mr. Bregard remained with Aerojet Rocketdyne through at least November 30, 2012 and to encourage a successful transition to Mr. Bregard’s retirement, as described under the section entitledSeverance Agreement, Employment Agreement and Plan Provisions—Richard W. Bregard Retention Agreement on page 40.
35. The Company has entered into indemnification agreements with each of its Directors and the Named Executive Officers, with the exception of Mr. Schumacher,named executive officers pursuant to which the Company is required to defend and indemnify such individuals if or when they are party or threatened to be made a party to any action, suit, proceeding or claim, whether civil, criminal, administrative or investigative, by reason of the fact that such individual is or was a Director and/or Named Executive Officernamed executive officer of the Company or any of its subsidiaries. Potential Payments upon Termination of Employment or Change in Control
Termination Benefits for Scott J. SeymourEileen P. Drake According to the employment agreement entered into between the Company and Mr. SeymourMs. Drake as discussed in the section above, in the event that the Company terminates Mr. Seymour’sMs. Drake’s employment for Cause or Mr. SeymourMs. Drake resigns other than for Good Reason (as such terms are defined in his employmentthe agreement), the Company’s obligations will generally be limited to paying Mr. Seymour his annual base salary through the termination date. Accrued Obligations as defined on page 35. If Mr. Seymour’sMs. Drake’s employment is terminated at his or the Company’s election at any time due to 51
his death her Death or disability, or for reasons other than Cause or Voluntary ResignationDisability (as such terms are defined in his employmentthe agreement), Mr. Seymour willMs. Drake shall be entitled to receive the Accrued Obligations and severance payments and benefits equal to the following, subject to certain limitations:following: (i) one yeartwelve (12) months of his annualher base salary paid in installments; (ii) an incentive payment based uponany bonuses earned and paid by the amountdate of termination; (iii) other than the previous year’s incentive, prorated based on the number of months of the year that Mr. Seymour worked for the Company priorPromotion Award which shall not vest, to the extent unvested at the time of Ms. Drake’s termination paid in a lump sum; (iii)of employment, immediate full vesting of any sharesall of Ms. Drake’s equity awards under the Company’s restricted common stock and options that are scheduled to vest within one year2009 Incentive Plan (at target performance, if applicable); (iv) outplacement services provided by the Company-designated outplacement firm for a period of eighteen (18) months starting no later than ninety (90) days from the date of termination with a maximum value of employment$25,000; (v) in the case of Death, life insurance benefits paid in accordance with the terms of the policy and (iv) incentives earned but unpaid with respect to the fiscal year ending on or precedingcoverage in which Ms. Drake was enrolled before the date of Death; and (vi) in the case of termination pursuantdue to Disability, the Company shall pay for the premiums associated with a six (6) month continuation, without any required contributions from Ms. Drake (but subject to all other plan and policy terms) in Ms. Drake’s Company provided life insurance policy in which she is enrolled before the date of termination; and (vii) provided Ms. Drake timely elects and is eligible for COBRA coverage, the Company shall pay for the premiums associated with six (6) months of Ms. Drake’s continued participation, without any required contributions from Ms. Drake (but subject to all other plan terms, including co-payments and deductibles) in the Aerojet Rocketdyne Medical Plan, Aerojet Rocketdyne Dental Plan, and the Aerojet Rocketdyne Vision Plan (the “Benefit Plans”) in which she is enrolled before the date of termination.
If Ms. Drake’s employment is terminated at the Company’s Annual Incentive Plan.Also under this employment agreementelection at any time for a terminationreasons other than Cause, or by Ms. Drake for Good Reason (and not for Death or Disability or in connection with a change in controlcontrol), then Ms. Drake shall be entitled to receive the Accrued Obligations and severance payments and benefits equal to the following: (i) twelve (12) months of her base salary paid in installments; (ii) other than the Promotion Award which shall not vest, to the extent unvested at the time of Ms. Drake’s termination of employment, immediate full vesting of all of Ms. Drake’s equity awards under the 2009 Incentive Plan (at target performance, if applicable); (iii) Ms. Drake will have the opportunity to continue to participate in the Company provided life insurance policy in which Mr. Seymour’sshe is enrolled before the date of termination at an amount of 1x Base Salary for a period of twelve (12) months following the date of termination; (iv) provided Ms. Drake timely elects and is eligible for COBRA coverage, the Company shall pay for the premiums associated with eighteen (18) months of Ms. Drake’s continued participation, without any required contributions from Ms. Drake (but subject to all other plan terms, including co-payments and deductibles) in the Benefit Plans in which Executive is enrolled prior to the date of termination; and (v) outplacement services provided by the Company-designated outplacement firm for a period of eighteen (18) months starting no later than ninety (90) days from the date of termination with a maximum value of $25,000.
If Ms. Drake’s employment is terminated by the Company without causeCause (excluding due to a death or disability) or by the executiveMs. Drake for good reasonGood Reason within two yearseighteen (18) months following a changeChange in control, Mr. Seymour willControl (as defined in the Plan) then Ms. Drake shall be entitled to receivethe following payments and benefits: (i) the Accrued Obligations; (ii) annual target
bonus for the pro-rated portion of the fiscal year prior to the Change in Control paid in a lump sum; (iii) a severance payment equal to eighteen (18) months of (y) Ms. Drake’s base salary and benefits as follows: (i)(z) annual target bonus paid in a lump sum payment equalsum; (iv) other than the Promotion Award which shall not vest, to two times the sumextent unvested at the time of his base salary plus the target incentive amount for the year in which theMs. Drake’s termination takes place; (ii)of employment, immediate full vesting of outstanding restricted shares and options; (iii) and paymentall of any accrued incentive throughMs. Drake’s equity awards under the 2009 Incentive Plan (at target performance, if applicable); (v) Ms. Drake will have the opportunity to continue to participate in the Company provided life insurance policy in which she is enrolled before the date of termination.termination at an amount of 1x Base Salary for a period of twelve (12) months following the date of termination; (vi) provided Ms. Drake timely elects and is eligible for COBRA coverage, the Company shall pay for the premiums associated with eighteen (18) months of Ms. Drake’s continued participation, without any required contributions from Ms. Drake (but subject to all other plan terms, including co-payments and deductibles) in certain health-related benefit plans in which Ms. Drake is enrolled prior to the date of termination; and (vii) outplacement services provided by the Company-designated outplacement firm for a period of eighteen (18) months starting no later than ninety (90) days from Ms. Drake’s date of termination with a maximum value of $25,000. Termination Benefits for Scott J. Seymour On July 7, 2015 the Company and Mr. Seymour entered into the Transition Agreement . Under the terms of the Transition Agreement for the Transition Term, in exchange for assisting with the transition and a general release of all claims, the Company: (i) paid and will continue to pay Mr. Seymour his regular base salary per bi-weekly pay period, less required withholding and other required deductions, for fifteen (15) pay periods; and (ii) continued Mr. Seymour’s enrollment in the Company’s insurance benefits through December 31, 2015. Mr. Seymour was not eligible for any incentive pay under the Company’s Short-term Incentive Plan, vacation accrual or pay, bonus or other form of compensation in relation to the services he performs during the Transition Term. In addition, the Company: (i) amended the 17,033 time-based shares granted to Mr. Seymour on November 22, 2013 under the Company’s 2013 LTIP that were scheduled to vest on November 22, 2016 so as to accelerate the vesting to the effective date of the Transition Agreement; and (ii) vested the 63,875 performance-based shares granted under the Company’s 2013 LTIP on November 22, 2013 on schedule and according to actual performance achieved as determined by the Company’s Board or the Organization & Compensation Committee as a result of Mr. Seymour re-executing his agreement in January 2016. Mr. Seymour will forfeit all of his other unvested equity awards, including but not limited to grants made on April 7, 2014 and March 30, 2015, and will be treated as retired for the purpose of any options that already vested on June 1, 2015. The Transition Agreement also provides that for a period of eighteen (18) months following Mr. Seymour’s retirement date, he will not: (i) solicit or encourage any employee or consultant of the Company or any of its parent, subsidiary, or affiliated entities to terminate his/her employment agreement has a five year term beginning January 6, 2010.or contractual relationship or accept any other employment; or (ii) provide any information regarding any employee or consultant of the Company or any of its parent, subsidiary, or affiliated entities, and any predecessor thereto, to any person, including, but not limited to, recruiters and prospective employers. In addition, for the Transition Term, Mr. Seymour will not compete with the business of the Company or any of its parent, subsidiary, or affiliated entities, directly or indirectly, including, without limitation, managing, being employed by, controlling, or operating any competing business. Termination Benefits for Other Named Executive Officers The Company does not have a severance plan in place for the Named Executive Officerscurrent named executive officers with the exception of Ms. Drake and Mr. Seymour discussed above.Seymour. The Company does havehas a policy for a reduction in force, pursuant to which Ms. Redd and Messrs. Boley, Cambria, Schumacher, and Schumacher (and Mr. Bregard, prior to his departure)Tucker, as well as all other employees of the Company would beare eligible to participate. The policy provides for employees to continue participating in health, welfare, and retirement benefit plans for a period of sixty (60)60 days per the terms of the applicable plans and subject to all conditions thereof. Upon execution of a release, the Named Executive Officernamed executive officer is eligible to receive separation pay of five (5) weeks’ pay plus one additional week’s pay for each full or partial year of service, with the maximum amount of separation pay being thirty (30)30 weeks’ pay. In addition, with an executed release, the Named Executive Officernamed executive officer is eligible to continue participation in certain health and welfare benefits for a total period of 180 days from the date of reduction in force. Overlapping benefits under both the standard and enhanced benefits provisions will be inclusive in this six month period.
Treatment of Equity Awards Equity awards made to employees, including the Named Executive Officersnamed executive officers, generally provide for the immediate accelerated vesting of the award, including stock options, performance-based stock options, SARs, time-based restricted stock and performance-based restricted stock (regardless of whether or not the performance target is ultimately met) upon a change in control of the Company regardless of whether a termination occurs.
Estimated Cost of Termination Benefits The amounts of estimated incremental compensation and benefits payable to the Named Executive Officersnamed executive officers assuming a qualifying termination of employment as of November 30, 2013,2015, are shown in the following table. | | | | | Name
| | Cash
Severance | | Scott J. Seymour Termination without Cause
| | $ | 2,557,545 | (1) | Scott J. Seymour Termination with Change in Control
| | | 3,680,115 | (1) | Kathleen E. Redd
| | | — | | Warren M. Boley, Jr.
| | | — | | Christopher C. Cambria
| | | — | | John D. Schumacher
| | | — | |
(1) | Mr. Seymour’s termination benefits were calculated using target achievement of the annual short-term cash incentive award. Actual achievement, if any, will be determined at the next meeting of the Organization & Compensation Committee scheduled for January 2014. |
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As of November 30, 2013, there are no other scenarios other than what is discussed in this section in which a Named Executive Officer would get benefits above and beyond normal employee policy.
| | | | | Name | Cash Severance | Eileen P. Drake without Cause | $ | 736,822 |
| Eileen P. Drake Death or Disability | 729,038 |
| Eileen P. Drake with Change in Control | 1,624,322 |
| Kathleen E. Redd | — |
| Christopher C. Cambria | — |
| John D. Schumacher | — |
| Mark A. Tucker | — |
|
Security Ownership of Certain Beneficial Owners The Company believes that the following table is an accurate representation of beneficial owners of more than 5% of the 61,272,79664,451,783 shares of the Common Stock outstanding as of December 31, 2013.March 1, 2016. The table is based on reports of Schedule 13D and Schedule 13G filed with the SEC on or prior to January 3, 2014.March 1, 2016. | | | | | | | | Beneficial Owner | Amount and Nature of Beneficial Ownership | Percent of Class | GAMCO Investors, Inc. One Corporate Center Rye, NY 10580 | 9,243,916 |
| (1) | 14.3 | % | | BlackRock, Inc. 40 East 52nd Street New York, NY 10022 | 7,050,694 |
| (2) | 10.9 | % | | BlueMountain Capital Management, LLC 280 Park Avenue 12th Floor New York, NY 10017 | 4,776,982 |
| (3) | 7.4 | % | | FMR LLC 245 Summer Street Boston, MA 02210 | 4,404,701 |
| (4) | 6.8 | % | | NewSouth Capital Management, Inc. 999 S. Shady Grove Road Suite 501 Memphis, TN 38120 | 4,171,740 |
| (5) | 6.5 | % | | Steel Partners Holdings L.P. 590 Madison Avenue 32nd Floor New York, NY 10022 | 4,180,997 |
| (6) | 6.5 | % | | Victory Capital Management, Inc. 4900 Tiedeman Rd 4th Floor Brooklyn, OH 44144 | 3,500,633 |
| (7) | 5.4 | % | |
| | | | | | | | | Beneficial Owner
| | Amount and Nature of
Beneficial Ownership | | | Percent of
Class | | GAMCO Investors, Inc.
One Corporate Center
Rye, NY 10580
| | | 9,526,231 | (1) | | | 15.4 | % | Marcato Capital Management LLC
One Montgomery Street
Suite 3250
San Francisco, CA 94104
| | | 5,764,669 | (2) | | | 9.4 | % | BlackRock, Inc.
40 East 52nd Street
New York, NY 10022
| | | 4,764,991 | (3) | | | 7.8 | % | Steel Partners Holdings L.P.
590 Madison Avenue
32nd Floor
New York, NY 10022
| | | 4,180,997 | (4) | | | 6.8 | % | Highbridge International LLC
c/o Highbridge Capital Management, LLC
40 West 57th Street, 33rd Floor
New York, NY 10019
| | | 3,210,354 | (5) | | | 5.0 | % | GenCorp Retirement Savings Plan
c/o Fidelity Management Trust Company
82 Devonshire Street
Boston, MA 02109
| | | 3,204,262 | (6) | | | 5.2 | % | The Vanguard Group, Inc.
100 Vanguard Boulevard
Malvern, PA 19355
| | | 3,122,498 | (7) | | | 5.1 | % |
(1) | Includes shares beneficially owned by Mario J. Gabelli and various affiliated entities, including Gabelli Funds, LLC, GAMCO Asset Management Inc., Teton Advisors, Inc., Gabelli Securities, Inc., GGCP, Inc., and GAMCO Investors, Inc. Gabelli Funds, LLC reported sole voting power and sole dispositive power with respect to 2,980,7442,896,598 shares. GAMCO Asset Management |
Inc. reported sole voting power with respect to 4,773,919 shares and sole dispositive power with respect to 5,114,418 shares. Teton Advisors, Inc. reported sole voting power and sole dispositive power with respect to 1,218,900 shares. GGCP, Inc. reported sole voting power and sole dispositive power with respect to 14,000 shares. GAMCO Investors, Inc. reported sole voting power and sole dispositive power with respect to 0 shares. Includes 316,612 shares with respect to which the reporting persons have the right to acquire beneficial ownership upon conversion of the Company’s 4 1/16% and 2 1/4% convertible subordinated debentures. All of the foregoing information is according to Amendment No. 51 to a Schedule 13D dated August 5, 2015 and filed with the SEC on August 6, 2015. | | (2) | BlackRock, Inc. reported sole voting power with respect to 5,228,1876,935,897 shares and sole dispositive power with respect to 5,281,187the 7,050694 shares. Teton Advisors, Inc. reported sole voting power and sole dispositive power with respect to 1,208,800 shares. Gabelli Securities, Inc. reported sole voting power and sole dispositive power with respect to 35,500 shares. GGCP, Inc. reported sole voting power and sole dispositive power with respect to 20,000 shares. GAMCO Investors, Inc. reported sole voting power and sole dispositive power with respect to 0 shares. Includes 472,140 shares with respect to which the reporting persons have the right to acquire beneficial ownership upon conversion of the Company’s 41/16% and 21/4% convertible subordinated debentures. All of theThe foregoing information is according to Amendment No. 506 to a Schedule 13D13G dated February 19, 2013December 31, 2015 and filed with the SEC on February 19, 2013.January 8, 2016. |
(2) | Marcato | (3) | BlueMountain Capital Management, LLC and Richard T. McGuire III reported shared voting power and shared dispositive power with respect to 5,764,669the 4,776,982 shares. Mr. McGuire is the managing member of Marcato Capital Management LLC. The foregoing information is according to Amendment No. 1 to a Schedule 13G dated February 14, 2013December 31, 2015 and filed with the SEC on February 14, 2013.2, 2016. |
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(3) | BlackRock, Inc. | (4) | FMR LLC reported sole voting power with respect to 119,769 shares and sole dispositive power with respect to the 4,764,9914,404,701 shares. The foregoing information is according to Amendment No. 3 to a Schedule 13G dated February 4, 2013December 31, 2015 and filed with the SEC on February 8, 2013.12, 2016. |
(4) | | (5) | NewSouth Capital Management, Inc. reported sole voting power with respect to 3,425,945 shares and sole dispositive power with respect to the 4,171,740 shares. The foregoing information is according to an Amendment No. 2 to a Schedule 13G dated December 31, 2015 and filed with the SEC on February 12, 2016. |
| | (6) | Consists of shares owned directly by SPH Group Holdings LLC (“SPHG Holdings”). Steel Partners Holdings L.P. (“Steel Holdings”) owns 99% of the membership interests of SPH Group LLC (“SPHG”). SPHG is the sole member of SPHG Holdings. Steel Partners Holdings GP Inc. (“Steel Partners GP”) is the general partner of Steel Holdings, the managing member of SPHG and the manager of SPHG Holdings. By virtue of these relationships, each of Steel Holdings, SPHG and Steel Holdings GP may be deemed to beneficially own the shares owned directly by SPHG Holdings. Each of the foregoing may be deemed to have shared voting and dispositive power with respect to such shares. All of the foregoing information is according to Amendment No. 22 to a Schedule 13D dated October 28, 2013 and filed with the SEC on October 28, 2013. |
(5) | Includes 3,210,354 shares with respect to which the reporting persons have the right to acquire beneficial ownership upon conversion of the Company’s 4 1/16% convertible subordinated debentures. Highbridge International LLC, Highbridge Capital Management, LLC and Glenn Dubin reported shared voting power and shared dispositive power with respect to 3,210,354 shares issuable upon conversion of the Company’s 4 1/16% convertible subordinated debentures. All of the foregoing information is according to a Schedule 13G dated April 2, 2013 and filed with the SEC on April 10, 2013. |
(6) | Shares held as of December 31, 2012 by Fidelity Management Trust Company, the Trustee for the GenCorp Retirement Savings Plan. |
(7) | The Vanguard Group,Victory Capital Management Inc. reported sole voting power with respect to 95,7053,303,809 shares and sole dispositive power with respect to 3,030,393 shares and shared dispositive power with respect to 92,105the 3,500,633 shares. The foregoing information is according to a Schedule 13G dated February 7, 2013December 31, 2015 and filed with the SEC on February 13, 2013.12, 2016. |
Section 16(a) Beneficial Ownership Reporting Compliance Section 16(a) of the Exchange Act requires the Company’s Directors and certain officers and persons who own more than 10% of the outstanding Common Stock to file reports of ownership and changes in ownership on Forms 3, 4 and 5 with the SEC and the NYSE. The SEC also requires such persons to furnish the Company with copies of the Forms 3, 4 and 5 they file. Based solely on our review of the copies of such forms that the Company has received, the Company believes that all of its Directors, executive officers and greater than 10% beneficial owners complied with all filing requirements applicable to them with respect to transactions during fiscal 2013, with the exception of a late Form 4 filing for Mr. Bregard. When Mr. Bregard reached the age of 70 1⁄2, a mandatory distribution and an automatic liquidation was triggered regarding the GenCorp shares held by Mr. Bregard in the 401(k) account he had maintained at a prior employer. The liquidation occurred on February 26, 2013. Mr. Bregard and GenCorp were made aware of this transaction and filed the necessary Form 4 on March 13, 2013.54
2015.
PROPOSAL 2 APPROVAL OF THE REINCORPORATION OF THE COMPANY FROM
THE STATE OF OHIO TO THE STATE OF DELAWARE
In this section of the Proxy Statement, we sometimes refer to the Company as an Ohio corporation before reincorporation as “GenCorp (Ohio)” and the Company as a Delaware corporation after the Reincorporation as “GenCorp (Delaware).”
The Board has unanimously approved and recommends to our shareholders this proposal to change the Company’s state of incorporation from Ohio to Delaware. If our shareholders approve this proposal, we will accomplish the Reincorporation by domesticating in Delaware as provided in the OGCL and converting to a Delaware corporation as provided in the DGCL.
Summary
Assuming that shareholder approval of this proposal is obtained and the Reincorporation becomes effective:
the affairs of the Company will cease to be governed by Ohio corporation laws, the affairs of the Company will become subject to Delaware corporation laws, and the Company’s existing Articles of Incorporation and existing Code of Regulations will be replaced by a new certificate of incorporation and new bylaws, as more fully described below;
GenCorp (Delaware) will (i) be deemed to be the same entity as GenCorp (Ohio) for all purposes under the laws of Delaware, (ii) continue to have all of the rights, privileges and powers of GenCorp (Ohio), except for such changes that result from being subject to Delaware law and becoming subject to the Delaware certificate of incorporation and Delaware bylaws, (iii) continue to possess all of the properties of and debts owed to GenCorp (Ohio) and (iv) continue to have all of the debts, liabilities and obligations of GenCorp (Ohio);
each outstanding share of GenCorp (Ohio) Common Stock will continue as an outstanding share of GenCorp (Delaware) common stock, and each outstanding option, warrant or other right to acquire shares of GenCorp (Ohio) Common Stock will continue as an outstanding option, warrant or other right to acquire shares of GenCorp (Delaware) common stock;
each employee benefit plan, incentive compensation plan or other similar plan of GenCorp (Ohio) will continue as an employee benefit plan, incentive compensation plan or other similar plan of GenCorp (Delaware); and
each director or officer of GenCorp (Ohio) will continue to hold his or her respective office with GenCorp (Delaware).
General Information
The Board has adopted a plan of conversion substantially in the form attached as Appendix A to this Proxy Statement (the “Plan of Conversion”) to accomplish the Reincorporation. This proposal will require the approval of with the affirmative vote of holders of two-thirds of the outstanding shares of the Company. Those shares present in person or represented by proxy, representing common stock outstanding at the close of business on the record date, will be entitled to vote on the proposal. Assuming that shareholder approval of this proposal is obtained, the Company intends to file with the Ohio Secretary of State a certificate of conversion (the “Ohio Certificate of Conversion”) and intends to file with the Delaware Secretary of State (i) a certificate of conversion (the “Delaware Certificate of Conversion”) and (ii) a certificate of incorporation, which will govern the Company as a Delaware corporation, substantially in the form attached as Exhibit A to the Plan of Conversion (the “Delaware Certificate of Incorporation”). In addition, assuming that shareholder approval of this proposal is obtained and the Ohio Certificate of Conversion, Delaware Certificate of Conversion and Delaware Certificate of Incorporation are filed, the bylaws
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substantially in the form of Exhibit B to the Plan of Conversion will be the bylaws for GenCorp (Delaware) (the “Delaware Bylaws”), and the Company will enter into a new indemnification agreement with each director and executive officer of GenCorp (Delaware), based upon provisions of Delaware law, substantially in the form attached as Exhibit C to the Plan of Conversion (the “Delaware Indemnification Agreement”). Approval of this proposal by our shareholders will constitute approval of the Reincorporation and the Plan of Conversion. Upon approval of the Reincorporation and the filing and effectiveness of the appropriate documents with the State of Ohio and the State of Delaware, the Company will be a Delaware corporation governed by the Delaware Certificate of Incorporation and the Delaware Bylaws.
There will be no interruption in trading of the shares of the Company’s Common Stock as a result of the Reincorporation. GenCorp (Ohio)’s Common Stock will continue to trade on the New York Stock Exchange under the same symbol, “GY,” and the Chicago Stock Exchange under the same symbol, “GY.” GenCorp (Delaware) will continue to file periodic reports and other documents as and to the extent required by the rules and regulations of the SEC. Shareholders who own shares of GenCorp (Ohio) Common Stock that are freely tradable prior to the Reincorporation will continue to have freely tradable shares in GenCorp (Delaware) after the Reincorporation, and shareholders holding restricted shares of GenCorp (Ohio) Common Stock prior to the Reincorporation will continue to hold shares in GenCorp (Delaware) after the Reincorporation subject to the same restrictions on transfer. In summary, the Reincorporation will not change the respective positions under federal securities laws or stock exchange rules of the Company or its shareholders.
Reasons for the Reincorporation
For many years, Delaware has followed a policy of encouraging incorporation in that state and, in furtherance of that policy, has been a leader in adopting, construing, and implementing comprehensive, flexible corporate laws responsive to the legal and business needs of corporations organized under its laws. Many corporations have initially chosen Delaware, or chosen to reincorporate in Delaware, in a manner similar to that proposed by the Company. We believe the principal reasons for considering the Reincorporation are:
the development in Delaware over the last century of a well-established body of case law construing the DGCL, which provides businesses with a greater measure of predictability than exists in any other jurisdiction; the certainty afforded by the well-established principles of corporate governance under Delaware law are of benefit to GenCorp (Ohio) and its shareholders and should assist GenCorp (Ohio) in its ability to continue to attract and retain outstanding directors and officers;
the DGCL itself, which is generally acknowledged to be the most advanced and flexible corporate statute in the country;
the Delaware Court of Chancery, which brings to its handling of complex corporate issues a level of experience, a speed of decision and a degree of sophistication and understanding unmatched by any other court in the country, and the Delaware Supreme Court, the only appeals court, which is highly regarded and currently consists primarily of former Vice Chancellors and corporate practitioners; and
the Delaware General Assembly, which each year considers and adopts statutory amendments that have been proposed by the Corporation Law Section of the Delaware bar to meet changing business needs.
Changes as a Result of Reincorporation
If this proposal is approved, the Reincorporation will effect a change in the legal domicile of the Company and other changes of a legal nature, the most significant of which are described below in the section entitled “Rights of our Shareholders Prior to and After the Reincorporation from Ohio to Delaware.” The Reincorporation is not expected to affect any of the Company’s material contracts with any third parties, and the Company’s rights and obligations under such material contracts will continue as rights and obligations of GenCorp (Delaware). The Reincorporation itself will not result in any change in the Company’s business, jobs, management, number of employees, assets, liabilities or net worth (other than transaction costs incident to the Reincorporation). Further, the
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directors and officers of GenCorp (Ohio) immediately prior to the Reincorporation will continue as the directors and officers of GenCorp (Delaware) immediately after the Reincorporation, and the subsidiaries of GenCorp (Ohio) immediately prior to the Reincorporation will continue as the subsidiaries of GenCorp (Delaware) immediately after the Reincorporation.
The Plan of Conversion
The Reincorporation will be effected pursuant to the Plan of Conversion to be adopted by GenCorp (Ohio). The Plan of Conversion provides that the Company will convert into a Delaware corporation and will be subject to all of the provisions of the DGCL. By virtue of the conversion, all of the rights, privileges and powers of GenCorp (Ohio), all property owned by GenCorp (Ohio), all debts due to GenCorp (Ohio) and all causes of action belonging to GenCorp (Ohio) immediately prior to the conversion will remain vested in GenCorp (Delaware) following the conversion. In addition, by virtue of the conversion, all debts, liabilities and duties of the Company immediately prior to the conversion will remain attached to GenCorp (Delaware) following the conversion. Each director and officer of GenCorp (Ohio) will continue to hold his or her respective office with GenCorp (Delaware).
If this proposal is approved by our shareholders, the Reincorporation would become effective upon the filing (and acceptance thereof by the Ohio Secretary of State and the Delaware Secretary of State, as applicable) and effectiveness of the Ohio Certificate of Conversion, the Delaware Certificate of Conversion and the Delaware Certificate of Incorporation. If this proposal is approved, it is anticipated that the Board will cause the Reincorporation to be effected as soon as practicable thereafter. However, the Reincorporation may be delayed by the Board or the Plan of Conversion may be terminated and abandoned by action of the Board of Directors at any time prior to the effective time of the Reincorporation, whether before or after approval by the Company’s shareholders, if the Board determines for any reason that such delay or termination would be in the best interests of the Company and its shareholders.
Company shareholders will not be required to exchange their GenCorp (Ohio) stock certificates for new GenCorp (Delaware) stock certificates. Following the effective time of the Reincorporation, any GenCorp (Ohio) stock certificates submitted to the Company for transfer, whether pursuant to a sale or otherwise, will automatically be exchanged for GenCorp (Delaware) stock certificates. Shareholders of the Company should not destroy any stock certificate(s) and should not submit any certificate(s) to the Company unless and until requested to do so.
Effect of Vote for the Reincorporation
A vote in favor of the Reincorporation is a vote in favor of the Plan of Conversion, the Ohio Certificate of Conversion, the Delaware Certificate of Conversion, the Delaware Certificate of Incorporation, the Delaware Bylaws and the Delaware Indemnification Agreement.
Effect of Not Obtaining the Required Vote for Approval
If we fail to obtain the requisite vote of shareholders for approval of this proposal, the Reincorporation will not be consummated and the Company will continue to be incorporated in Ohio and governed by the OGCL, the Company’s existing Articles of Incorporation and the Company’s existing Code of Regulations.
Description of the Company’s Capital Stock Upon the Effectiveness of the Reincorporation
Assuming that this proposal is approved by our shareholders and the Reincorporation becomes effective, the Company will convert into GenCorp (Delaware), which will be a corporation incorporated in the State of Delaware. The rights of shareholders of GenCorp (Delaware) will generally be governed by Delaware law, the Delaware Certificate of Incorporation and the Delaware Bylaws. The following is a description of the capital stock of GenCorp (Delaware) upon the effectiveness of the Reincorporation. This description is not intended to be complete and is qualified in its entirety by reference to Delaware law, including the DGCL, and the full texts of the Delaware Certificate of Incorporation and the Delaware Bylaws, copies of which are attached as Exhibits A and B, respectively, to the Plan of Conversion, which is attached as Appendix A to this Proxy Statement.
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General
Upon the effectiveness of the Reincorporation, the authorized capital of GenCorp (Delaware) will continue to be 150,000,000 shares of common stock, par value $0.10 per share and 15,000,000 shares of preference stock, par value $1.00.
Description of Capital Stock
Upon the effectiveness of the Reincorporation, GenCorp (Delaware) will continue to be authorized to issue 150,000,000 shares of common stock, and all of the issued and outstanding shares of Common Stock at that time will remain issued and outstanding. GenCorp (Ohio) is authorized to issue 15,000,000 shares of preference stock, none of which are issued and outstanding. A series of the preference stock has been designated “Series A Cumulative Preference Stock” and is comprised of 1,500,000 shares of preference stock. No series of preference stock is designated in the Delaware Certificate of Incorporation. The Delaware Certificate of Incorporation will authorize 15,000,000 shares of preference stock, par value $1.00 per share.
Upon the effectiveness of the Reincorporation, the holders of outstanding shares of GenCorp (Delaware) common stock will continue to be entitled to receive dividends and other distributions out of assets legally available at times and in amounts as the Board may determine from time to time. All shares of GenCorp (Delaware) common stock will be entitled to participate ratably with respect to dividends or other distributions after the payment in full of any preferential amounts to which holders of GenCorp (Delaware) preference stock may be entitled from time to time.
If GenCorp (Delaware) is liquidated, dissolved or wound up, voluntarily or involuntarily, holders of GenCorp (Delaware) common stock will be entitled to share ratably in all assets of GenCorp (Delaware) available for distribution to GenCorp (Delaware) shareholders after the payment in full of any preferential amounts to which holders of GenCorp (Delaware) preference stock may be entitled from time to time.
Holders of GenCorp (Delaware) common stock will continue to be entitled to one vote per share on all matters to be voted upon by shareholders, subject to any class or series voting rights to which holders of GenCorp (Delaware) preference stock may be entitled from time to time. Shareholders will continue to not be entitled to cumulate votes in voting for directors.
There will be no preemption, redemption, sinking fund or conversion rights applicable to GenCorp (Delaware) common stock under the Delaware Certificate of Incorporation or the Delaware Bylaws.
Under both the Company’s existing Articles of Incorporation and the Delaware Certificate of Incorporation, the Board has the authority to issue shares of preference stock in one or more series and to establish the designations, preferences and rights, including voting rights, of each series. The authority of the Board to issue preferred shares without the additional approval of the shareholders could have a possible anti-takeover effect, which we describe in more detail below in the section entitled “Possible Anti-Takeover Effect of Provisions – Authorized Preferred Stock.”
The Charters and Bylaws and Code of Regulations of GenCorp (Delaware) and GenCorp (Ohio)
The provisions of the Delaware Certificate of Incorporation and the Delaware Bylaws are similar in substance to those of the Company’s existing Articles of Incorporation and Code of Regulations in most respects. The differences include but are not limited to: (i) the elimination of the ability of shareholders to amend the provisions of the Delaware Certificate of Incorporation without appropriate action being taken first by the Board; (ii) the empowerment of the Board to amend the Delaware Bylaws (whereas the power to amend the existing Code of Regulations is vested solely in the shareholders of GenCorp (Ohio)); and (iii) the elimination of the requirement that action without a meeting by shareholders must be approved by the unanimous vote of shareholders (Delaware law provides for action to be taken without a meeting by the written consent of the holders of that number of shares necessary to authorize the proposed action being taken if it were voted on at a meeting of stockholders at which all shares entitled to vote were present and voted).
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In addition, the proposed Reincorporation includes the implementation of certain other provisions in the Delaware Certificate of Incorporation and the Delaware Bylaws that are different from the Company’s existing Articles of Incorporation and Code of Regulations. For a discussion of such changes, see “Rights of our Shareholders Prior to and After the Reincorporation from Ohio to Delaware.” This discussion of the Delaware Certificate of Incorporation and the Delaware Bylaws is qualified by reference to Exhibits A and B, respectively, to the Plan of Conversion, which is attached as Appendix A to this Proxy Statement. In addition, GenCorp (Delaware) could implement certain other changes by amending the Delaware Certificate of Incorporation or the Delaware Bylaws in the future.
Limitation of Director Liability and Indemnification
The Company’s existing Code of Regulations requires that GenCorp (Ohio) indemnify the directors and officers of GenCorp (Ohio) to the fullest extent permitted or authorized under the laws of Ohio. Through the OGCL, Ohio has codified the directors’ common law duty of care and, in part, their common law duty of loyalty. Because of this codification, Ohio law is generally more protective of directors and officers than Delaware law.
Under Section 1701.59 of the OGCL, a director of an Ohio corporation would be liable in damages for actions taken or not taken as a director only if the plaintiff proves by clear and convincing evidence that the director’s action or failure to act was undertaken with deliberate intent to cause injury to, or with reckless disregard for the best interests of, the corporation or if the director approved (i) an illegal dividend, distribution or share repurchase by the corporation, (ii) a distribution to shareholders during the winding up of the corporation’s affairs without paying or making provision for the payment of all known obligations of the corporation or (iii) the making of a loan, other than in the usual course of business, to an officer, director or shareholder of the corporation. Each officer and director of GenCorp (Ohio) is entitled to advancement of expenses incurred in connection with lawsuits or proceedings arising out of his or her service to the fullest extent permitted or authorized by the laws of Ohio. The officers and directors of GenCorp (Ohio) are also entitled to a broad scope of indemnification against not only expenses but also costs, liability, judgments, fines, excise taxes assessed with respect to employee benefit plans, penalties and amounts paid in settlement to the fullest extent permitted or authorized by the laws of Ohio.
The Delaware Certificate of Incorporation provides that, to the fullest extent permitted by Delaware law, no director of GenCorp (Delaware) will be personally liable to GenCorp (Delaware) or its shareholders for monetary damages for breach of fiduciary duty as a director. Delaware law currently provides that this limitation of liability does not apply to liability:
for any breach of the director’s duty of loyalty to GenCorp (Delaware) or its shareholders;
for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;
under Section 174 of the DGCL (imposing liability for unlawful distributions to shareholders and unlawful repurchases of shares); or
for any transaction from which the director derived any improper personal benefit.
However, in the event the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of our directors will be eliminated or limited to the fullest extent permitted by the DGCL, as so amended. The Delaware Bylaws further provide that GenCorp (Delaware) will indemnify each of its directors, officers and employees to the fullest extent authorized by the DGCL and may indemnify other persons as authorized by the DGCL. These provisions do not eliminate any monetary liability of directors under the federal securities laws. If this proposal is approved and the Reincorporation is consummated, GenCorp (Delaware) expects to enter into the Delaware Indemnification Agreement with each of its executive officers and directors.
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Changes to Employee Benefit Plans
All of GenCorp (Ohio)’s employee benefit plans (including stock option and other equity-based plans) would be continued by GenCorp (Delaware), and each stock option and other equity-based award issued and outstanding pursuant to such plans would automatically be converted into a stock option or other equity-based award with respect to the same number of shares of GenCorp (Delaware), upon the same terms and subject to the same conditions as set forth in the applicable plan under which the award was granted and in the agreement reflecting the award. Approval of the Reincorporation would constitute approval of the assumption of these plans by GenCorp (Delaware). Assuming the Reincorporation is approved, GenCorp (Delaware) would continue GenCorp (Ohio)’s other employee benefit arrangements upon the terms and subject to the conditions currently in effect.
Dissenters’ or Appraisal Rights
Under Ohio law, shareholders will not be entitled to dissenters’ rights or appraisal rights as a result of the Reincorporation.
Certain Federal Income Tax Consequences
THE FOLLOWING DISCUSSION IS INTENDED ONLY AS A SUMMARY OF CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES OF THE REINCORPORATION AND DOES NOT PURPORT TO BE A COMPLETE ANALYSIS OR DISCUSSION OF ALL OF THE REINCORPORATION’S POTENTIAL TAX EFFECTS. HOLDERS OF OUR COMMON STOCK ARE URGED TO CONSULT THEIR OWN TAX ADVISORS AS TO THE SPECIFIC TAX CONSEQUENCES TO THEM OF THE REINCORPORATION AND THE APPLICABILITY AND EFFECT OF FEDERAL, STATE, LOCAL AND OTHER APPLICABLE TAX LAWS.
The Company believes that the Reincorporation from Ohio to Delaware will constitute a reorganization within the meaning of Section 368(a)(1)(F) of the Code. Assuming that the Reincorporation will be treated for U.S. federal income tax purposes as a reorganization within the meaning of Section 368(a)(1)(F) of the Code, and subject to the qualifications and assumptions described in this Proxy Statement:
| (i) | holders of GenCorp (Ohio) Common Stock will not recognize any gain or loss as a result of the consummation of the Reincorporation; |
| (ii) | the aggregate tax basis of shares of GenCorp (Delaware)’s common stock received in the Reincorporation will be equal to the aggregate tax basis of the shares of the Common Stock converted therefor; and |
| (iii) | the holding period of the shares of GenCorp (Delaware)’s common stock received in the Reincorporation will include the holding period of the shares of the Common Stock converted therefor. |
The Company does not intend to request a ruling from the Internal Revenue Service regarding the federal income tax consequences of the Reincorporation.
If the Reincorporation fails to qualify as a reorganization within the meaning of Section 368(a)(1)(F) of the Code or otherwise as a tax-free reorganization, shareholders of GenCorp (Delaware) would recognize gain or loss with respect to each share of GenCorp (Ohio) capital stock deemed to have been exchanged pursuant to the Reincorporation equal to the difference between the shareholder’s basis in such share and the fair market value of the GenCorp (Delaware) capital stock received in exchange therefor. A shareholder’s aggregate basis in the GenCorp (Delaware) capital stock so received would equal the stock’s fair market value, and the shareholder’s holding period for such stock would begin the day of the Reincorporation.
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Accounting Treatment
We expect that the Reincorporation will have no effect from an accounting perspective because there is no change in the entity as a result of the Reincorporation. As such, the financial statements of GenCorp (Ohio) previously filed with the SEC will remain the financial statements of GenCorp (Delaware) following the Reincorporation.
Rights of our Shareholders Prior to and After the Reincorporation from Ohio to Delaware
Summarized below are the most significant provisions of the OGCL and DGCL, along with the differences between the rights of the shareholders of the Company immediately before and immediately after the Reincorporation that will result from the differences between the OGCL and the DGCL and related differences between the Company’s existing Articles of Incorporation and the Company’s existing Code of Regulations, on the one hand, and the Delaware Certificate of Incorporation and the Delaware Bylaws, on the other hand. The summary below is not an exhaustive list of all differences or a complete description of the differences described, and is qualified in its entirety by reference to the OGCL, the DGCL, the Company’s existing Articles of Incorporation, the Company’s existing Code of Regulations, the Delaware Certificate of Incorporation and the Delaware Bylaws. Copies of the Company’s existing Articles of Incorporation and the Company’s existing Code of Regulations have been filed as Exhibit 3.3 to the Company’s Annual Report on Form 10-K for the fiscal year ended November 30, 2010 and Exhibit 3.2 to the Company’s Annual Report on Form 10-K for the fiscal year ended November 30, 2007, respectively.
| | | Before the Reincorporation: Provisions Applicable to GenCorp (Ohio) Under the Ohio General Corporation Law and the Articles and Regulations
| | After the Reincorporation: Provisions Applicable to GenCorp (Delaware) Under the Delaware General Corporation Law and the Certificate and Bylaws
| Term of Directors. All directors serve until the first annual meeting following the annual meeting at which they were elected or their earlier removal, resignation or death. | | Term of Directors. All directors serve until the first annual meeting following the annual meeting at which they were elected and until their successors are elected and qualified, or their earlier removal, resignation or death. | | | Number of Directors. The Board or shareholders holding at least 80% of GenCorp (Ohio)’s voting power may set the number of directors from time to time, provided that the Board must consist of no less than seven (7), and no more than seventeen (17), directors. | | Number of Directors. The Board may set the number of directors from time to time. | | | Vacancies. Any vacancy in the Board may be filled by the vote of a majority of the remaining directors. | | Vacancies. Any vacancy in the Board may be filled by the vote of a majority of the remaining directors. | | | Special Meetings. Shareholders holding at least 25% of the outstanding shares of Common Stock may call special meetings of shareholders. | | Special Meetings. Under Delaware law, a corporation is not required to call a special meeting at the request of stockholders. The Delaware Bylaws, however, provide that special meetings may be called by the President or the Secretary upon the written request of stockholders representing at least 25% in voting power of the stock entitled to vote on the matter. |
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| | | Amendment of Articles of Incorporation. Holders of a majority of the outstanding shares of GenCorp (Ohio) Common Stock and preference stock may amend the Articles. However, any amendment to the Articles affecting the right to cumulate votes in an election of directors (which right currently does not exist) must be adopted by the affirmative vote of the holders of 80% of the outstanding shares of GenCorp (Ohio) Common Stock and preference stock. | | Amendment of Delaware Certificate of Incorporation. Holders of a majority of the outstanding shares of Common Stock and preference stock may not amend the provisions of the Certificate without appropriate action taken by the Board. Amendments to the Certificate generally require a Board resolution setting forth the amendment, declaring its advisability and submitting it to a vote of stockholders. The Certificate does not vary from the Delaware statutory rule above, which means that it will not include the 80% voting requirement in the Ohio Articles. | | | Amendment of Code of Regulations. Holders of a majority of the voting power of GenCorp (Ohio) may amend the Regulations at any meeting of shareholders; holders of at least two-thirds of the voting power may amend the Code of Regulations without a meeting by written consent. However, the affirmative vote of at least 80% of GenCorp (Ohio)’s voting power is required to amend (i) Sections 1, 2, 3, 4 and 11 of Article 2 (relating to vacancies in the Board and the number and election of directors, their qualification, removal and respective terms of office) or (ii) Section 2 of Article 7 (relating to amendments of provisions related to matters enumerated in (i) above). | | Amendment of Delaware Bylaws. The Certificate empowers the Board to amend the Bylaws. Under Delaware law, holders of a majority of the outstanding shares of Common Stock may amend the Bylaws. However, the affirmative vote of at least 80% of GenCorp (Delaware)’s voting power is required to amend those sections of the Bylaws relating to Sections 3.1 and 3.3 of the Bylaws (relating to the number of directors and vacancies on the Board). | | | Action Without a Meeting. Shareholders may take action by written consent without a meeting to the extent permitted by Ohio law (currently must be unanimous except in the case of an amendment to the Regulations). | | Action Without a Meeting. Stockholders may take action without a meeting by written consent of the holders of that number of shares necessary to authorize the proposed corporate action being taken if it were voted on at a meeting of stockholders at which all shares entitled to vote were present and voted. | | | Cumulative Voting. Shareholders have no right of cumulative voting in the election of directors. | | Cumulative Voting. Stockholders have no right of cumulative voting in the election of directors. | | | Quorum. The presence of the holders of at least a majority of the voting power of GenCorp (Ohio) constitutes a quorum for all shareholder meetings. | | Quorum. The presence of the holders of at least a majority of the voting power of GenCorp (Delaware) constitutes a quorum for all stockholder meetings. | | | Removal of Directors. The holders of at least 80% of the voting power of GenCorp (Ohio) may remove any director from office without assigning any cause. | | Removal of Directors. The holders of at least a majority of the voting power of GenCorp (Delaware) may remove any director from office with or without cause at any annual or special meeting of the stockholders or by written consent. | | | Takeover Statutes. Chapter 1704 of the Ohio Revised Code, known as the Merger Moratorium Statute, prohibits business combinations and certain other business transactions between GenCorp (Ohio) and a 10% shareholder for a period of three years after the shareholder becomes a 10% shareholder, unless certain conditions are satisfied. After the three-year period, the transaction must be approved by two-thirds of the voting power of the corporation in the election of directors and a majority of the disinterested shares or must satisfy certain other conditions. GenCorp (Ohio) has opted out in the Articles from the coverage of the Merger Moratorium Statute. | | Takeover Statutes. Section 203 of the DGCL prohibits business combinations between GenCorp (Delaware) and any “interested stockholder” for a period of three years after the stockholder becomes such, unless certain conditions are satisfied. “Interested stockholder” is defined under Section 203 of the DGCL as, among other things, any person that directly or indirectly owns 15% or more of the outstanding voting stock of the corporation. GenCorp (Delaware) will opt out of Section 203 of the DGCL. |
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| | | Section 1701.831 of the OGCL, known as the Control Share Acquisition Statute, requires shareholder approval of any acquisition of shares of an Ohio public corporation that would entitle the acquiring person to exercise more than one-fifth, one-third or one-half of the total voting power of the corporation in the election of directors. The required shareholder approval is a majority of the voting power of the corporation in the election of directors represented at the meeting in person or by proxy and a majority of the disinterested shares represented at the meeting in person or by proxy. GenCorp (Ohio) has opted out from the coverage of the Control Share Acquisition Statute. | | | | | Shareholder Approval of Material Transactions. The affirmative vote of a majority of the outstanding voting power of GenCorp (Ohio) is required to approve mergers and consolidations involving GenCorp (Ohio), the dissolution of GenCorp (Ohio) and the sale, lease, exchange, transfer or other disposition of all or substantially all of the property, assets or business of GenCorp (Ohio). | | Stockholder Approval of Material Transactions. Delaware law generally provides, subject to certain exceptions that are discussed elsewhere herein, that the affirmative vote of at least a majority of the outstanding voting power of GenCorp (Delaware) is required to approve those actions enumerated under the equivalent section of the Ohio Articles. The Certificate does not vary from this statutory rule. | | | Personal Liability of Directors. Personal liability of directors for monetary damages for breach of fiduciary duty eliminated unless the plaintiff proves by clear and convincing evidence that the director’s action or failure to act was undertaken with deliberate intent to cause injury to, or with reckless disregard for the best interests of, the corporation or, subject to certain limitations, if the director approved:
• an illegal dividend, distribution or share repurchase by the corporation;
• a distribution to shareholders during the winding up of affairs without paying or making provision for the payment of all known obligations of the corporation; or
• the making of a loan, other than in the usual course of business, to an officer, director or shareholder of the corporation.
| | Personal Liability of Directors. Personal liability of directors for monetary damages for breach of fiduciary duty eliminated except in the instance of:
• a breach of the director’s duty of loyalty to GenCorp (Delaware) or its stockholders;
• acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
• an unlawful distribution to stockholders or repurchase of shares, for which directors would be liable under Section 174 of the DGCL; or
• any transaction from which the director derived an improper personal benefit.
| | | Indemnification of Directors and Officers. Broad mandatory indemnification of directors and officers consistent with the OGCL is provided. | | Indemnification of Directors and Officers. Broad mandatory indemnification of directors and officers consistent with the DGCL is provided. | | | Authorized Capital Stock. The Articles authorize 150,000,000 shares of Common Stock and 15,000,000 shares of preference stock. | | Authorized Capital Stock. The Certificate authorizes 150,000,000 shares of Common Stock and 15,000,000 shares of preference stock. |
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Significant Provisions to be Carried Over
Authorized Shares
As previously noted, upon the effectiveness of the Reincorporation, GenCorp (Delaware) will continue to be authorized to issue 150,000,000 shares of common stock, and all of the issued and outstanding shares of Common Stock at that time will remain issued and outstanding. GenCorp (Ohio) is authorized to issue 15,000,000 shares of preference stock, none of which are issued and outstanding. For more information, see the section above entitled “Description of the Company’s Capital Stock Upon the Effectiveness of the Reincorporation – Description of Capital Stock.”
Size of Board
The existing Code of Regulations authorizes the directors to fix or change the number of directors, provided, that the Board must consist of no less than seven (7), and no more than seventeen (17), directors. The Delaware Bylaws provide that the Board shall consist of such number of directors (not less than one (1)) as set from time to time by the Board.
Term and Election of Directors
The Company’s existing Articles of Incorporation and the Delaware Certificate of Incorporation both provide that directors serve until the first annual meeting following the annual meeting at which they were elected and until their successors are elected and qualified, or their earlier removal, resignation or death.
The Company’s existing Code of Regulations provides for majority voting in uncontested elections of directors. The Delaware Bylaws provide for plurality voting in all elections of directors.
Filling of Vacancies on the Board
Both the Company’s existing Code of Regulations and the Delaware Bylaws authorize a majority of the remaining directors to fill any vacancy in the Board.
Special Meeting of Shareholders
The existing Code of Regulations authorizes the Chairman of the Board, the President, a Vice President and the majority of the Board to call special meetings of shareholders. The Delaware Bylaws authorize the Board to call special meetings of shareholders. The Code of Regulations provides that shareholders holding at least 25% of the outstanding shares entitled to vote thereat may call special meetings of shareholders. The DGCL does not require a corporation to call a special meeting at the request of stockholders. The Delaware Bylaws, however, provide that special meetings shall be called by the President or the Secretary upon the written request of stockholders representing at least 25% in voting power of the stock entitled to vote on the matter.
No Cumulative Voting
The shareholders of GenCorp (Ohio) do not, and the stockholders of GenCorp (Delaware) will not, have the right of cumulative voting in the election of directors.
No Preemptive Rights
The shareholders of GenCorp (Ohio) do not, and the stockholders of GenCorp (Delaware) will not, have preemptive rights to acquire newly issued capital stock.
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Amendments to the Articles of Incorporation and the Delaware Certificate of Incorporation
Under the OGCL, an amendment to a corporation’s articles of incorporation must be adopted by the affirmative vote of the holders of at least two-thirds of the voting power of the corporation, or a different proportion, but not less than a majority of the voting power, as provided in the articles. Rather than adopting Ohio’s default two-thirds’ approval requirement, the existing Articles of Incorporation require the affirmative vote of a majority of the voting power of GenCorp (Ohio) to approve any amendment thereto, except where an amendment would affect the right to cumulate votes in an election of directors (which right currently does not exist), in which case such an amendment must be adopted by the affirmative vote of the holders of 80% of the outstanding shares of GenCorp (Ohio) Common Stock and preference stock.
To amend a corporation’s certificate of incorporation, the DGCL requires the directors of the corporation to adopt a resolution that sets forth and declares the advisability of the proposed amendment and either calls a special meeting of the stockholders to consider and vote on the proposed amendment or directs that the proposed amendment be considered and voted on at the next annual meeting of stockholders. The DGCL further provides that an amendment to the certificate of incorporation must be adopted by the affirmative vote of the holders of a majority of the outstanding voting shares of the corporation, or by a greater vote as provided in the certificate of incorporation. The Delaware Certificate of Incorporation does not vary from the statutory rule provided by the DGCL, which means that it will not include the 80% voting requirement in the existing Articles of Incorporation.
Amendments to the Code of Regulations and the Delaware Bylaws
The holders of at least a majority of the voting power of GenCorp (Ohio) may amend the Code of Regulations at a meeting of shareholders held for such purpose; the holders of at least two-thirds of the voting power of GenCorp (Ohio) may amend the Code of Regulations without a meeting by written consent. However, the affirmative vote of at least 80% of GenCorp (Ohio)’s voting power is required to amend (i) Sections 1, 2, 3, 4 and 11 of Article 2 (relating to vacancies in the Board and the number and election of directors, their qualification, removal and respective terms of office) or (ii) Section 2 of Article 7 (relating to amendments of provisions related to matters enumerated in (i) above).
The holders of at least a majority of the voting power of GenCorp (Delaware) would be permitted to amend the Delaware Bylaws at a meeting of stockholders held for such or without a meeting by written consent. However, the affirmative vote of at least 80% of GenCorp (Delaware)’s voting power is required to amend those sections of the Bylaws relating to Sections 3.1 and 3.3 of the Bylaws (relating to the number of directors and vacancies on the Board).
In addition, the Delaware Certificate of Incorporation empowers the Board to amend the Delaware Bylaws.
Certain Other Effects of the Reincorporation
The rights of stockholders of GenCorp (Delaware) will be governed by the DGCL and the Delaware Certificate of Incorporation and the Delaware Bylaws rather than the OGCL and the Company’s existing Articles of Incorporation and Code of Regulations. It is not practical to summarize in this Proxy Statement all of the differences between the DGCL and the OGCL or between the Delaware Certificate of Incorporation and the Delaware Bylaws, on the one hand, and the Company’s existing Articles of Incorporation and Code of Regulations, on the other. Instead, this section summarizes some of the significant differences and describes how those differences may affect the rights and interests of stockholders of GenCorp (Ohio).
Transfer Restrictions
The existing Articles of Incorporation contain certain restrictions on the transfer of GenCorp (Ohio)’s stock in order to reduce the risk of a potential adverse effect on its ability to utilize its net operating loss carryforwards. The Company, however, no longer has significant net operating loss carryforwards. As a result, the Delaware Certificate of Incorporation does not contain restrictions on the transfer of GenCorp (Delaware)’s stock.
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Removal of Directors
The existing Code of Regulations provides that the holders of at least 80% of the voting power of GenCorp (Ohio) entitling them to elect directors in place of those to be removed may remove any director from office without assigning any cause. The Delaware Bylaws provides that the holders of at least a majority of the voting power of GenCorp (Delaware) may remove any director with or without cause at any annual or special meeting of the stockholders.
Quorum
The existing Code of Regulations provides that, at any meeting of the shareholders, the presence in person or by proxy of the holders of at least a majority of the voting power of GenCorp (Ohio) constitutes a quorum for such meeting. The Delaware Bylaws would provide that at any meeting of stockholders, the presence in person or by proxy of the holders of at least a majority of the voting power of GenCorp (Delaware) constitutes a quorum for such meeting.
Advance Notice of Stockholder Business and Nominations
The existing Code of Regulations does not provide for advance notice with respect shareholder business proposals and director nominations. The Delaware Bylaws add advance notice provisions that a stockholder must follow if he, she or it intends to bring business proposals or director nominations, as applicable, before a meeting of stockholders. These advance notice provisions, among other things:
Provide that for an annual meeting of stockholders, written notice of a stockholder’s intention to make business proposals or nominate persons for election to the Board must be delivered to GenCorp (Delaware) not later than the ninetieth (90th) day or earlier than the one hundred twentieth (120th) day prior to the first anniversary of the preceding year’s annual meeting. If an annual meeting of stockholders is held more than thirty (30) days before or more than seventy (70) days after the first anniversary of the preceding year’s annual meeting, notice by the stockholder must be delivered (i) not earlier than one hundred twenty (120) days prior to such annual meeting and (ii) not later than the close of business on the later of the 90th day prior to such annual meeting or the 10th day following the day on which public announcement is first made of the date of the annual meeting.
Provide that if GenCorp (Delaware) has called a special meeting for the purpose of electing one or more directors to the Board, written notice of a stockholder’s intention to nominate persons for election to the Board before such special meeting must be delivered to GenCorp (Delaware) (i) not earlier than the 120th day and (ii) not later than the close of business on the later of the 90th day prior to such special meeting or the 10th day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board to be elected at such meeting.
With respect to persons that the stockholder proposes to directly nominate as a director, provide that the stockholder’s notice must set forth (i) as to each individual whom the stockholder proposes to nominate, all information relating to the person that is required to be disclosed in solicitations of proxies for the election of directors or is otherwise required, pursuant to Section 14(a) of the Exchange Act, and (ii) such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected.
With respect to any other business (other than the nomination of persons for the election of directors), provide that the stockholder’s notice must set forth (i) a brief description of the business desired to be brought before the meeting, (ii) the text of the proposal or business (including the text of any resolutions proposed for consideration or, in the case of a proposed amendment to the Delaware Bylaws, the language of the proposed amendment), (iii) the reasons for conducting such business at the meeting, and (iv) any material interest in such business of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made.
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Provide other specifications for the content of the stockholder notice, including the name and address of the stockholder, the number of shares of GenCorp (Delaware)’s capital stock beneficially owned by such stockholder, a description of all arrangements or understandings between the stockholder and any other person with respect to the business proposal or nomination, any derivative security or other arrangement in GenCorp (Delaware)’s capital stock and statements on whether the stockholder intends to deliver a proxy statement to holders of GenCorp (Delaware)’s outstanding capital stock or solicit proxies in support of its proposal or nomination.
Approval Requirements Applicable to Certain Transactions
Under the OGCL, an agreement of merger or consolidation must be approved by the directors of each constituent corporation and adopted by the affirmative vote of the shareholders of each constituent Ohio corporation (other than the surviving corporation in the case of a merger) holding at least two-thirds of the corporation’s voting power, or a different proportion, but not less than a majority of the voting power, as provided in the articles of incorporation. In the case of a merger, the OGCL also requires the adoption of the agreement of merger by the shareholders of the surviving corporation by similar vote, if one or more of the following conditions exist:
the articles of incorporation or regulations of the surviving corporation then in effect require that the agreement be adopted by the shareholders or by the holders of a particular class of shares of that corporation;
the agreement of merger conflicts with the articles of incorporation or the code of regulations of the surviving corporation then in effect, or changes the articles of incorporation or the code of regulations, or authorizes any action that, if it were being made or authorized apart from the merger, would otherwise require adoption by the shareholders or by the holders of a particular class of shares of that corporation;
the merger involves the issuance or transfer by the surviving corporation to the shareholders of the other constituent corporation or corporations of shares of the surviving corporation that would entitle the holders of the shares immediately after the consummation of the merger to exercise one-sixth or more of the voting power of that corporation in the election of directors; or
the agreement of merger makes a change in the directors of the surviving corporation that would otherwise require action by the shareholders or by the holders of a particular class of shares of that corporation.
Under the OGCL, the merger of a 90%-owned subsidiary into its parent corporation only needs to be approved by the board of directors of each constituent Ohio corporation.
Subject to limited exceptions, the OGCL requires the approval of two-thirds of the voting power of the corporation, or a different proportion as provided in the articles of incorporation (not less than a majority of the corporation’s voting power), for:
the consummation of combinations or majority share acquisitions involving the transfer or issuance by the acquiring corporation of shares that would entitle the holders to exercise at least one-sixth of the voting power of the corporation in the election of directors immediately after the consummation of the transaction;
the disposition of all or substantially all of the corporation’s assets other than in the usual and regular course of business; and
voluntary dissolutions.
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GenCorp (Ohio) has not adopted Ohio’s default two-thirds’ approval requirement for mergers and consolidations, dissolutions and asset sales; instead, the Article of Incorporation only require the affirmative vote of a majority of the outstanding voting power of GenCorp (Ohio) to approve such transactions.
Under the DGCL, an agreement of merger or consolidation must be approved and declared advisable by the board of directors of each constituent corporation and adopted by the affirmative vote of the stockholders of each constituent corporation holding at least a majority of the outstanding voting power, or by a greater vote as provided in the certificate of incorporation. Additionally, the DGCL provides that, unless its certificate of incorporation provides otherwise, no vote of the stockholders of the surviving corporation is required to approve a merger if:
the agreement of merger does not amend in any respect the corporation’s certificate of incorporation;
each share of stock of such surviving corporation outstanding immediately prior to the effective date of the merger is to be an identical outstanding or treasury share of the surviving corporation after the effective date of the merger; and
either no shares of common stock of the surviving corporation and no shares, securities or obligations convertible into such stock are to be issued or delivered in the merger or the number of shares of common stock of the surviving corporation to be issued or delivered in the merger plus the number of shares of common stock into which any other shares, securities or obligations to be issued or delivered in the merger are initially convertible does not exceed 20% of the shares of common stock of the corporation outstanding immediately prior to the effective date of the merger.
Under the DGCL, the merger of a 90%-owned subsidiary into its parent corporation only needs to be approved by the board of directors of the parent corporation. In addition, under the DGCL, unless the corporation’s certificate of incorporation provides otherwise, a corporation may engage in a merger without a stockholder vote where the merger causes the corporation’s stockholders to become stockholders in a holding company of which the corporation becomes a direct or indirect wholly owned subsidiary, provided that the holding company shares received by the corporation’s stockholders have the same rights as the shares formerly held by such stockholders, the certificate of incorporation and bylaws of the holding company have the same provisions as the certificate of incorporation and bylaws of the corporation, and the other requirements set forth in Section 251(g) of the DGCL are complied with.
The DGCL does not require stockholder approval in the case of combinations (other than business combinations coming within Section 203 of the DGCL) and majority share acquisitions. The DGCL requires the approval by the holders of a majority of the outstanding voting stock of the corporation of (i) the disposition of all or substantially all of a corporation’s property and assets and (ii) the dissolution of the corporation, unless a greater vote is provided for in the certificate of incorporation. The Delaware Certificate of Incorporation would not change the effect of Delaware law with respect to such voting requirements.
Actions by Shareholders without a Meeting
Under the OGCL, unless the articles of incorporation or the code of regulations adopted by the shareholders prohibit the authorization or taking of any action of the shareholders without a meeting, any action which may be authorized or taken at a meeting of the shareholders may be authorized or taken without such meeting by the written approval of all the shareholders entitled to notice of the meeting. However, in the case of an amendment to or adoption or repeal of a corporation’s code of regulations, the OGCL only requires the written approval of two-thirds of all outstanding shares entitled to vote, or a different proportion but not less than a majority of the voting power, as provided in the articles of incorporation or the code of regulations. GenCorp (Ohio)’s existing Articles of Incorporation and the Code of Regulations do not prohibit shareholders from taking actions by written consent without a meeting and the Code of Regulations permit the holders of at least two-thirds of the voting power of GenCorp (Ohio) to amend the Code of Regulations by written consent without a meeting.
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Under the DGCL, unless the certificate of incorporation provides otherwise, any action which may be authorized or taken at a meeting of the stockholders may be authorized or taken without a meeting, without prior notice and without a vote, by written consent of the holders of shares of outstanding stock having the votes necessary to authorize or take the action at a meeting at which all shares entitled to vote thereon were present and voted. The Delaware Certificate of Incorporation does not vary from the Delaware statutory default rule.
Class Voting
Under the OGCL, holders of a particular class of shares are entitled to vote as a separate class if the rights of such class are affected by mergers, consolidations or amendments to the articles of incorporation, and as otherwise provided in the articles of incorporation. The DGCL requires voting by separate classes only with respect to amendments to the certificate of incorporation which adversely affect the holders of such classes or which increase or decrease the aggregate number of authorized shares or the par value of the shares of any such classes, and as otherwise provided in the certificate of incorporation.
Appraisal and Dissenters’ Rights
Under the OGCL, dissenting shareholders are entitled to dissenters’ rights in connection with (i) the lease, sale, exchange, transfer or other disposition of all or substantially all of the assets of a corporation and (ii) amendments to a corporation’s articles of incorporation that change either the rights of shareholders in a substantially prejudicial manner, the purpose of the corporation substantially or the corporation into a nonprofit corporation. In addition, the following shareholders of Ohio corporations are also entitled to appraisal rights:
shareholders of a corporation being merged, consolidated or converted into a surviving or new entity;
shareholders of a corporation that survives a merger who are entitled to vote on the adoption of an agreement of merger;
shareholders of the acquiring corporation in a combination or a majority share acquisition who are entitled to vote on the adoption of the transaction; and
shareholders of a subsidiary corporation (at least 90%-owned by its parent corporation) into which the parent corporation is merged.
Under the DGCL, appraisal rights are available only in connection with statutory mergers or consolidations, or amendment of a corporation’s certificate of incorporation to cause it to become a public benefit corporation. In addition, in the case of mergers other than mergers causing a corporation to become a public benefit corporation, unless the certificate of incorporation provides otherwise (and the Delaware Certificate of Incorporation does not so provide), the DGCL does not provide appraisal rights for any class or series of stock (i) listed on a national securities exchange or (ii) held of record by more than 2,000 stockholders, except that appraisal rights are available for stockholders who, by the terms of the agreement of merger or consolidation, are required to accept anything other than:
shares of the corporation surviving or resulting from the merger or consolidation;
shares of any other corporation which at the effective time of the merger or consolidation are either listed on a national securities exchange or held of record by more than 2,000 shareholders;
cash in lieu of fractional shares; or
any combination of the foregoing shares and cash in lieu of fractional shares.
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Dividends
The directors of an Ohio corporation may declare and pay dividends on outstanding shares of the corporation in an amount that does not exceed the surplus of the corporation (the excess of its assets over the sum of its liabilities and stated capital). An Ohio corporation may not pay any dividend to the holders of shares of any class in violation of the rights of the holders of shares of any other class, or when a corporation is insolvent or there is reasonable ground to believe that by such payment it would be rendered insolvent. An Ohio corporation must notify its shareholders if a dividend is paid out of capital surplus.
The directors of a Delaware corporation may declare and pay dividends upon the shares of its capital stock out of any surplus of the corporation (the excess of its assets over the sum of its liabilities and capital) and, if it has no surplus, out of any net profits for the fiscal year in which the dividend is declared and/or the preceding fiscal year, provided that such payment will not reduce capital below the amount of capital represented by all classes of shares having a preference upon the distribution of assets.
Repurchases
Under the OGCL, a corporation may repurchase its own shares if authorized to do so by its articles of incorporation or under certain additional limited circumstances but may not do so if immediately thereafter its assets would be less than its liabilities plus its stated capital, if any, or if the corporation is insolvent or would be rendered insolvent by such a purchase. The existing Articles of Incorporation permit GenCorp (Ohio) to repurchase its shares.
Under the DGCL, a corporation may not repurchase its stock if its capital is impaired or the repurchase would cause its capital to be impaired, except that a corporation may purchase out of capital shares of preferred stock (or, if no shares of preferred stock are outstanding, shares of common stock), if such stock will be retired upon its acquisition and if the capital of the corporation will be reduced in accordance with the applicable provisions of the DGCL. Otherwise, shares of common stock must be purchased out of surplus, if any. One of the advantages to reincorporating into Delaware is that there is a well-established body of case law construing the DGCL, including with respect to the criteria for a corporation to repurchase its securities.
Revocability of Proxies
Under the OGCL, a duly executed proxy is revocable unless the appointment is coupled with an interest, except that proxies given in connection with the shareholder authorization of a control share acquisition are revocable at all times prior to obtaining shareholder authorization, whether or not coupled with an interest. Under the DGCL, a duly executed proxy is irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power.
Comparison of Director and Officer Liability and Indemnification Under Ohio and Delaware Law
Ohio
Section 1701.13(E) of the OGCL authorizes corporations to indemnify or agree to indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action, suit or proceeding (other than derivative actions) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, trustee, officer, employee, member, manager or agent of another entity, against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding, if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, if the person had no reasonable cause to believe the person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement or conviction, or upon a plea ofnolo contendere or its equivalent, will not, of itself, create a presumption that the person did not act in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, the person had reasonable cause to believe that the person’s conduct was unlawful. An Ohio corporation may also provide indemnification in derivative actions for expenses and attorneys’ fees actually and reasonably incurred in connection with the defense or settlement of an action if the officer, director, employee or agent acted in good faith and in a manner such person reasonably believed to be in, or not opposed to, the best interests of the corporation. Ohio law does not expressly authorize indemnification against judgments, fines and
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amounts paid in settlement in such actions. An Ohio corporation may not indemnify a director, officer, employee or agent in derivative actions for expenses and attorneys’ fees if such person is adjudged to be liable to the corporation for negligence or misconduct in the performance of such person’s duties to the corporation, unless and only to the extent that a court determines that, despite the adjudication of liability, such person is fairly and reasonably entitled to indemnity.
Section 1701.13(E) of the OGCL provides directors, officers, employees and agents of Ohio corporations with an absolute right to indemnification for expenses (including attorneys’ fees) actually and reasonably incurred by them to the extent they are successful in defense of any action, suit or proceeding, including derivative actions, brought against them, or in defense of any claim, issue or matter asserted in any such proceeding. A director, officer, employee or agent is entitled to such indemnification if such person’s success is “on the merits or otherwise,” thus mandating indemnification if the indemnitee is successful on the merits or if the indemnitee is successful, for example, in asserting a procedural defense, such as a claim that the action is barred by the applicable statute of limitations, or if the indemnitee is released pursuant to a negotiated settlement without making payment or providing other consideration.
Unless otherwise provided in the corporation’s articles of incorporation or regulations, directors (but not officers, employees or agents) of Ohio corporations are entitled to mandatory payment of expenses by the corporation as they are incurred, in advance of the final disposition of the action, suit or proceeding, provided the director agrees to cooperate with the corporation concerning the matter and to repay the amount advanced if it is proved by clear and convincing evidence that the director’s act or failure to act was done with deliberate intent to cause injury to the corporation or with reckless disregard for the corporation’s best interests.
Section 1701.13(E) of the OGCL states that the indemnification provided thereby is not exclusive of any other rights granted to those persons seeking indemnification under the articles of incorporation, the regulations, any agreement, a vote of the shareholders or disinterested directors or otherwise.
The OGCL authorizes Ohio corporations to purchase and maintain insurance or furnish similar protection, including, but not limited to, trust funds, letters of credit and self-insurance, for director, officer, employee or agent liability, regardless of whether that individual is otherwise eligible for indemnification by the corporation.
The existing Code of Regulations provides directors and officers with the broadest indemnification permitted under Section 1701.13(E) of the OGCL. The Code of Regulations require GenCorp (Ohio) to indemnify and hold harmless any person who is or was a director or officer of GenCorp (Ohio) and who is or was a party or is threatened to be made a party to, or is or was involved or threatened to be involved in, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that the person is or was a director or officer of GenCorp (Ohio), or is or was serving at the request of GenCorp (Ohio) as a director, trustee, officer, employee or agent of another corporation, limited liability company, partnership, joint venture, trust or other enterprise, from and against any expenses (including attorneys’ fees) incurred by a director in defending any such action, suit or proceeding as they are incurred, in advance of the final disposition thereof, and may pay, in the same manner and to the full extent them permitted by the OGCL, such expenses incurred by any other person.
The existing Code of Regulations states that the indemnification provided thereby is not exclusive of any other rights to which any person seeking indemnification may be entitled. Additionally, the Code of Regulations provides that GenCorp (Ohio) may purchase and maintain insurance, or furnish similar protection, including, but not limited to, trust funds, letters of credit or self-insurance, for or on behalf of any person who is or was a director, officer, employee or agent of GenCorp (Ohio), or is or was serving at the request of GenCorp (Ohio) as a director, trustee, officer, employee or agent of another corporation, limited liability company, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not GenCorp (Ohio) would have the power to indemnify such person against such liability under the Code of Regulations.
Ohio has codified the directors’ common law duty of care and, in part, their common law duty of loyalty. Section 1701.59(B) of the OGCL provides in pertinent part:
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A director shall perform the director’s duties as a director, including the duties as a member of any committee of the directors upon which the director may serve, in good faith, in a manner the director reasonably believes to be in or not opposed to the best interests of the corporation, and with the care that an ordinarily prudent person in a like position would use under similar circumstances.
Under Ohio law, unless otherwise provided in a corporation’s articles of incorporation or regulations, a director of the corporation is not liable for damages for any action that the director takes or fails to take as a director of the corporation unless it is proved by clear and convincing evidence that such director’s action or failure to act was undertaken with deliberate intent to cause injury to the corporation or with reckless disregard for the best interests of the corporation. This higher standard of proof must be met in any action brought against a director for breach of such director’s duties, including any action involving or affecting: (i) a change or potential change in control of the corporation; (ii) a termination or potential termination of the director’s service to the corporation as a director; or (iii) the director’s service in any other position or relationship with the corporation. The higher standard of proof, however, does not affect the liability of directors for unlawful loans, dividends or distributions under Section 1701.95 of the OGCL. There is no comparable provision limiting the liability of officers, employees or agents of Ohio corporations.
Ohio law provides specific statutory authority for directors to consider, in addition to the interests of the corporation’s shareholders, each of the following in determining what the directors reasonably believe to be in the best interests of the corporation:
the interests of the corporation’s employees, suppliers, creditors and customers;
the economy of the state and nation;
community and societal considerations; and
the long-term and the short-term interests of the corporation and its shareholders and the possibility that these interests may be best served by the continued independence of the corporation.
Delaware law contains no similar specific statutory authority.
Delaware
Section 102(b)(7) of the DGCL permits a Delaware corporation to limit or eliminate a director’s personal liability to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except with respect to:
a breach of the director’s duty of loyalty to the corporation or its stockholders;
acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
an unlawful distribution to stockholders or repurchase of shares for which directors would be liable under Section 174 of the DGCL; or
any transaction from which the director derived an improper personal benefit.
The Delaware Certificate of Incorporation eliminates the personal liability of the directors of GenCorp (Delaware) to the fullest extent permitted by Section 102(b)(7) of the DGCL.
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Section 145 of the DGCL authorizes corporations to indemnify any person who was or is a party or is threatened to be made a party to any action, suit or proceeding by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another entity, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful. This indemnification does not apply to an action by or in the right of the corporation — a “derivative action.” The standard differs in the case of derivative actions, in that indemnification only extends to attorneys’ fees and other expenses actually and reasonably incurred in connection with the defense or settlement of such actions. The DGCL requires court approval before a corporation may indemnify a person who has been found liable to the corporation. To the extent that a present or former director or officer of a corporation is successful on the merits or otherwise in defense of any action, suit or proceeding, including derivative actions, brought against such person or in defense of any claim, issue or matter asserted in any such proceeding, indemnification for attorneys’ fees and other expenses is mandated by the DGCL. Advancement of expenses incurred by a director or officer is permissive only and the indemnified person must repay such expenses if it is ultimately determined that he or she is not entitled to indemnification. Section 145 of the DGCL, like Section 1701.13(E) of the OGCL, states that the indemnification and advancement of expenses provided thereby is not exclusive of any other rights to which any person seeking indemnification may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise.
The Delaware Bylaws require GenCorp (Delaware) to indemnify and hold harmless any person who was or is a party or is threatened to be made a party to, or is involved in, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that the person is or was a director or officer of GenCorp (Delaware), or is or was serving at the request of GenCorp (Delaware) as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, or as a member of any committee or similar body, to the fullest extent permitted by the laws of Delaware as they may exist from time to time. The right to indemnification conferred in the Delaware Bylaws also includes the right to be paid by GenCorp (Delaware) for the expenses incurred in connection with any such proceeding in advance of its final disposition to the fullest extent permitted by the laws of Delaware as they may exist from time to time. However, the Delaware Bylaws provide that no indemnification or advancement of expenses will be available for any action initiated by the indemnitee (other than an action to enforce indemnification or advancement rights under the Delaware Bylaws) unless such action is approved by the Board.
Section 145 of the DGCL authorizes Delaware corporations to purchase liability insurance for their directors, officers, employees and agents, regardless of whether any such individual is otherwise eligible for indemnification by the corporation. Similarly, the Delaware Bylaws permit GenCorp (Delaware) to purchase and maintain liability insurance on behalf of any person who is or was a director, officer, employee or agent of GenCorp (Delaware), or is or was serving at the request of GenCorp (Delaware) as a director, officer, employee or agent for another corporation, partnership, joint venture, trust or other enterprise against any expense, liability, or loss.
Possible Anti-Takeover Effect of Provisions
Both the existing Articles of Incorporation and Code of Regulations, as well as Ohio law, and the Delaware Certificate of Incorporation and Delaware Bylaws, as well as Delaware law, contain some provisions that may be viewed as having a possible anti-takeover effect.
Authorized Preferred Shares
Under both the Article of Incorporation and the Delaware Certificate of Incorporation, the Board is authorized to issue 15,000,000 preferred shares. In each case, the Board may issue these preferred shares in one or more series and may establish the designations, preferences and rights, including voting rights, of each series. These preferred shares of GenCorp (Ohio) are, and the shares of preferred stock of GenCorp (Delaware) would be (upon the filing of a certificate of designations with the Delaware Secretary of State pursuant to a Board resolution), available for issuance from time to time to any person for such consideration as the Board may determine without the requirement of further action by our shareholders, except as required by the New York Stock Exchange or other exchange on which our shares are then listed. These preferred shares may be issued for any proper corporate purpose. Some potential corporate purposes include the issuance in a public or private sale for cash as a means of obtaining additional capital for use in our business and operations, issuance as part or all of the consideration required to be paid for acquisitions of other business properties and issuance as a share dividend to equity holders.
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The Board does not intend to issue any preferred stock except on terms that the Board deems to be in the best interests of GenCorp (Delaware) and its stockholders. Depending on its terms, the issuance of preferred stock may or may not have a dilutive effect on the equity interest or voting power of the then current shareholders of GenCorp (Ohio).
Although our Board has no present intention to do so, authorized but unissued and undesignated preferred shares may also be issued as a defense to an attempted takeover. For example, the Board could, to the extent consistent with the directors’ fiduciary duties, sell a block of preferred stock to a “white knight” or to persons who are loyal to current management, thereby diluting the share ownership of persons seeking to obtain control. The Board could utilize the authorized but unissued and undesignated preferred stock to fund a new rights plan or “poison pill.”
Actions by Shareholders Without a Meeting
For a discussion of actions by shareholders without a meeting under GenCorp (Ohio)’s constitutive documents, the OGCL, GenCorp (Delaware)’s constitutive documents and the DGCL, see “—Certain Other Effects of the Reincorporation – Actions by Shareholders without a Meeting.” The Ohio requirement that actions by written consent without a meeting be unanimous (subject to the exceptions applicable to an amendment to or adoption or repeal of a corporation’s regulations) may have the effect of delaying, deferring or preventing a tender offer or takeover attempt that a shareholder may consider to be in its best interest.
Special Meetings of Shareholders
Limits on the rights of shareholders to call special meetings of shareholders could have an anti-takeover effect as a potential acquirer may wish to call a special meeting of shareholders for the purpose of considering the removal of directors or an acquisition offer. The Code of Regulations provides that shareholders of GenCorp (Ohio) holding at least 25% of the outstanding shares entitled to vote thereat may call special meetings of shareholders. The DGCL does not require a corporation to call a special meeting at the request of stockholders. The Delaware Bylaws, however, provide that special meetings may be called by the President or the Secretary upon the written request of stockholders representing at least 25% in voting power of the stock entitled to vote on the matter
Vote Required and Board Recommendation
The affirmative vote of the holders of at least two-thirds of the outstanding shares is necessary to approve this proposal. Abstentions and broker non-votes will have the effect of negative votes with respect to this proposal.
The Board unanimously recommends a vote FOR the Reincorporation
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PROPOSAL 3
ADVISORY VOTE ON GENCORP’SAEROJET ROCKETDYNE’S EXECUTIVE COMPENSATION PROGRAM Pursuant
As we do each year, pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, or the Dodd-Frank Act, the Company is providing its shareholdersstockholders the opportunity to vote to approve, on an advisory, non-binding basis, the compensation of the Named Executive Officersnamed executive officers as disclosed in this Proxy Statement in accordance with the SEC’s rules. As described in the Compensation Discussion and Analysis, the Company’s executive compensation program is designed to support our business goals and promote both short-term and long-term growth and directly link pay to performance. The compensation program for executive officers has historically consisted of the following principal elements: short-term compensation, including base salaries and annual cash incentive awards; long-term compensation equity incentive awards, including restricted stock, stock options and cash-settled SARs; and in-service and post-retirement/employment benefits. We are asking shareholdersstockholders to indicate their support for the compensation of the executive officers named in the “Summary Compensation Table” included in this Proxy Statement (referred to as the “Named Executive Officers”“named executive officers”). This proposal, commonly known as a “say-on-pay” proposal, gives shareholdersstockholders the opportunity to express their views on the Named Executive Officers’named executive officers’ compensation. Accordingly, we will ask shareholdersstockholders to vote “FOR” the following resolution at the Meeting: “RESOLVED, that the Company’s shareholdersstockholders approve, on an advisory basis, the compensation of the Named Executive Officers,named executive officers, as disclosed in the Company’s Proxy Statement for the 20142016 Annual Meeting of ShareholdersStockholders pursuant to the compensation disclosure rules of the Securities and Exchange Commission, including the Compensation Discussion and Analysis, the 20132015 Summary Compensation Table and the other related tables and disclosure.” The say-on-pay vote is advisory, and therefore not binding on the Company, the Organization & Compensation Committee or our Board of Directors.Board. The Board of Directors and the Organization & Compensation Committee value the opinions of our shareholdersstockholders and to the extent there is any significant vote against the Named Executive Officernamed executive officer compensation as disclosed in this proxy statement, we will consider our shareholders’stockholders’ concerns and the Organization & Compensation Committee will evaluate whether any actions are necessary to address those concerns. The approval of this resolution requires the affirmative vote of the holders of at least a majority of the shares present in person or represented by proxy and entitled to vote is necessary to approve this proposal. Broker non-votes will not be counted as votes cast atand will have no effect on the Annual Meeting.outcome of the vote. Abstentions will have the same effect as a vote against this proposal. While this vote is required by law, it will neither be binding on the Company or the Board, nor will it create or imply any change in the fiduciary duties of, or impose any additional fiduciary duty on, the Company or the Board. The Board unanimously recommends a vote FOR the advisory approval of GenCorp’s Executive Compensation Program.75
Aerojet Rocketdyne’s executive compensation.
RATIFICATION OF THE APPOINTMENT OF INDEPENDENT AUDITORS
The Audit Committee has appointed PwC, an independent registered public accounting firm, to serve as the Company’s independent auditors for fiscal 2014.2016. The Audit Committee is submitting Proposal 43 to shareholdersstockholders for ratification as a corporate governance practice. Ultimately, the Audit Committee retains full discretion and will make all determinations with respect to the appointment of the independent auditors, whether or not the Company’s shareholdersstockholders ratify the appointment. Representatives of PwC are expected to be present at the Annual Meeting to answer questions. They also will have the opportunity to make a statement if they desire to do so and respond to appropriate questions. The affirmative vote of the holders of at least a majority of the votes cast at the Annual Meetingshares present in person or represented by proxy and entitled to vote is necessary to approve Proposal 4, the ratification of the appointment of the Company’s independent auditors. Abstentions and brokerthis proposal. Broker non-votes will not be counted as votes cast and will have no effect on the outcome of the vote on Proposal 4.3. Abstentions will have the same effect as a vote against this proposal. The persons named in the accompanying form of proxy intend to vote such proxies to ratify the appointment of PwC unless a contrary choice is indicated. The Board unanimously recommends a vote FOR the ratification of the appointment of PwC as the Company’s independent auditors for fiscal 2014.2016. Audit fees billed for professional services rendered by them for the audit of the Company’s annual financial statements including the integrated audit of internal control over financial reporting, the review of financial statements included in the Company’s quarterly reports on Form 10-Q, or services that are normally provided in connection with statutory audits were: | | | | | | | | | | | | | Fiscal Year Ended | | | 2013 | | 2012 | | | In Thousands | Legacy Aerojet | | | $ | 2,740 | | | | $ | 2,660 | | Rocketdyne Business Acquisition | | | | 550 | | | | | — | | Rocketdyne Business Post Acquisition | | | | 1,750 | | | | | — | | All Other | | | | 560 | | | | | 238 | | Total Audit fees | | | $ | 5,600 | | | | $ | 2,898 | |
| | | | | | | | | | | | Fiscal Year Ended | | | 2015 | | 2014 | | | In Thousands | Audit fees | | $ | 4,776 |
| | $ | 6,359 |
|
Audit-Related Fees Audit related
Audit-related fees billed for assurance and related services that are reasonably related to the performance of the audit or review of the Company’s financial statements, and are not reported under “Audit Fees” above were: | | | | | | | | | | | | | Fiscal Year Ended | | | 2013 | | 2012 | | | In Thousands | Rocketdyne Business Acquisition | | | $ | — | | | | $ | 309 | | Department of Energy | | | | 25 | | | | | — | | Total Audit-related fees | | | $ | 25 | | | | $ | 309 | |
| | | | | | | | | | | | Fiscal Year Ended | | | 2015 | | 2014 | | | In Thousands | Audit-related fees | | $ | 78 |
| | $ | 100 |
|
Audit-related fees consisted of Department of Energy audits performed on certain contracts. Tax fees billed for professional services rendered by them for tax compliance, tax advice and tax planning were: | | | | | | | | | | | | | Fiscal Year Ended | | | 2013 | | 2012 | | | In Thousands | All Other | | | $ | 43 | | | | $ | 19 | | Total Tax fees | | | $ | 43 | | | | $ | 19 | |
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| | | | | | | | | | | | Fiscal Year Ended | | | 2015 | | 2014 | | | In Thousands | Tax fees | | $ | 17 |
| | $ | 36 |
|
All other fees billed for products and services provided by them, other than those reported under “Audit Fees,” “Audit-Related Fees” and “Tax Fees,” were: | | | | | | | | | | | | | Fiscal Year Ended | | | 2013 | | 2012 | | | In Thousands | Oracle ERP Implementation | | | $ | 299 | | | | $ | 230 | | All Other | | | | 4 | | | | | 7 | | Total All other fees | | | $ | 303 | | | | $ | 237 | |
| | | | | | | | | | | | Fiscal Year Ended | | | 2015 | | 2014 | | | In Thousands | All other fees | | $ | 4 |
| | $ | 4 |
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Audit fees relating to audits of the Company’s Pension Plan and Retirement Savings Plan (the “Plans”) are not included in the above amounts as they are paid out of the assets of the Plans.amounts. Policy on Audit Committee Pre-Approval of Audit and Permissible Non-Audit Services of the Company’s Independent Auditors Consistent with SEC policies regarding auditor independence, the Audit Committee has responsibility for appointing, setting compensation and overseeing the work of the independent auditors. In recognition of this responsibility, the Audit Committee has established a policy to pre-approve all audit and permissible non-audit services provided by the independent auditors. Prior to engagement of the independent auditors for the next year’s audit, management will submit an aggregate of services expected to be rendered during the year for Audit, Audit-Related, Tax and Other Fees for approval. Prior to engagement, the Audit Committee pre-approves these services by category of service. The fees are budgeted and the Audit Committee requires the independent auditors and management to report actual fees versus the budget periodically throughout the year by category of service. During the fiscal year, circumstances may arise when it may become necessary to engage the independent auditors for additional services not contemplated in the original pre-approval. In those instances, the Audit Committee requires specific pre-approval before engaging the independent auditors. The Audit Committee may delegate pre-approval authority to one or more of its members. The member to whom such authority is delegated must report, for informational purposes only, any pre-approval decisions to the Audit Committee at its next scheduled meeting. None of the services described above was approved by the Audit Committee under the de minimus exception provided by Rule 2-01(c)(7)(i)(C) under Regulation S-X. As of the time this Proxy Statement was printed, the Company was unaware of any proposals to be presented for consideration at the Annual Meeting other than those set forth herein, but, if other matters do properly come before the Annual Meeting, it is the intention of the persons named in the accompanying form of proxy pursuant to discretionary authority conferred thereby, to vote the proxy in accordance with their best judgment on such matters. Submission of ShareholderStockholder Proposals Shareholders
Stockholders who intend to have their proposals considered for inclusion in the Company’s proxy materials related to the 20152017 annual meeting of shareholdersstockholders must submit their proposals to the Company no later than October 10, 2014. Shareholdersby November 18, 2016. Stockholders who intend to present a proposal at the 20152017 annual meeting of shareholdersstockholders without inclusion of that proposal in the Company’s proxy materials are required to provide notice of their proposal to the Company no later than the close of business on January 27, 2017 nor earlier than the close of business on December 24, 2014.28, 2016. The Company’s Proxy Statement for the 20152017 annual meeting of shareholdersstockholders will grant authority to the persons named in the proxy card to exercise their voting discretion with respect to any proposal of which the Company does not receive notice by December 24, 2014.January 27, 2017. All proposals for inclusion in the Company’s proxy materials and notices of proposals should be sent to Chairman of the Corporate Governance & Nominating Committee, c/o Secretary, GenCorpAerojet Rocketdyne Holdings, Inc., 2001 Aerojet Road, Rancho Cordova, CA 95742.77
P.O. Box 537012, Sacramento, California 95853-7012.
It is important that proxies be voted promptly; therefore, shareholdersstockholders who do not expect to attend in person are urged to vote by either (a) using the toll-free telephone number shown on your proxy card, (b) casting your vote electronically at the web sitewebsite listed on your proxy card, or (c) if you have requested a full set of proxy materials to be sent to you, completing, signing, dating and promptly returning the accompanying proxy card in the enclosed envelope, which requires no postage if mailed in the United States. By Order of the Board of Directors, /s/ Kathleen E. Redd Chief Financial Officer and Assistant Secretary February 7, 2014
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APPENDIX A
FORM OF PLAN OF CONVERSION
OF
GENCORP INC., an Ohio corporation
TO
GENCORP INC., a Delaware corporation
This PLAN OF CONVERSION, dated as of [ ], 2014 (including all of the Exhibits attached hereto, this “Plan”), is hereby adopted by GenCorp Inc., an Ohio corporation (the “Company”), in order to set forth the terms, conditions and procedures governing the conversion of the Company from an Ohio corporation to a Delaware corporation pursuant to Section 265 of the General Corporation Law of the State of Delaware, as amended (the “DGCL”), and Section 1701.792 of the Ohio General Corporation Law, as amended (the “OGCL”).
RECITALS
WHEREAS, the Company is a corporation established and existing under the laws of the State of Ohio;
WHEREAS, conversion of an Ohio corporation into a Delaware corporation is permitted under Section 265 of the DGCL and Section 1701.792 of the OGCL;
WHEREAS, the Board of Directors of the Company has determined that it would be advisable and in the best interests of the Company and its shareholders for the Company to convert from an Ohio corporation to a Delaware corporation pursuant to Section 265 of the DGCL and Section 1701.792 of the OGCL; and
WHEREAS, the form, terms and provisions of this Plan have been authorized, approved and adopted by the Board of Directors of the Company and the Company’s shareholders.
NOW, THEREFORE, the Company hereby adopts this Plan as follows:
1.Conversion; Effect of Conversion.
(a) At the Effective Time (as defined in Section 3 below), the Company shall be converted from an Ohio corporation to a Delaware corporation pursuant to Section 265 of the DGCL and Section 1701.792 of the OGCL (the “Conversion”) and the Company, as converted to a Delaware corporation (the “Converted Company”), shall thereafter be subject to all of the provisions of the DGCL, except that notwithstanding Section 106 of the DGCL, the existence of the Converted Company shall be deemed to have commenced on the date the Company commenced its existence in the State of Ohio. The Company shall not be required to wind up its affairs or pay its liabilities and distribute its assets, and the Conversion shall not be deemed a dissolution of the Company. The Conversion otherwise shall have the effects specified in the DGCL and OGCL.
(b) At the Effective Time, by virtue of the Conversion and without any further action on the part of the Company or its shareholders, the Converted Company shall, for all purposes of the laws of the State of Delaware, be deemed to be the same entity as the Company. At the Effective Time, by virtue of the Conversion and without any further action on the part of the Company or its shareholders, for all purposes of the laws of the State of Delaware, all of the rights, privileges and powers of the Company, and all property, real, personal and mixed, and all debts due to the Company, as well as all other things and causes of action belonging to the Company, shall remain vested in the Converted Company and shall be the property of the Converted Company and the title to any real property vested by deed or otherwise in the Company shall not revert or be in any way impaired by reason of the Conversion; but all rights of creditors and all liens upon any property of the Company shall be preserved unimpaired, and all debts, liabilities and duties of the Company shall remain attached to the Converted Company at the Effective Time, and may be enforced against the Converted Company to the same extent as if said debts, liabilities and duties had originally been incurred or contracted by the Converted Company in its capacity as a corporation of the
A-1
State of Delaware. The rights, privileges, powers and interests in property of the Company, as well as the debts, liabilities and duties of the Company, shall not be deemed, as a consequence of the Conversion, to have been transferred to the Converted Company at the Effective Time for any purpose of the laws of the State of Delaware.
(c) The Conversion shall not be deemed to affect any obligations or liabilities of the Company incurred prior to the Conversion or the personal liability of any person incurred prior to the Conversion.
(d) At the Effective Time, the name of the Converted Company shall be:
GenCorp Inc.
(e) The Company intends for the Conversion to constitute a reorganization within the meaning of Section 368(a)(1)(F) of the Internal Revenue Code of 1986, as amended, and for this Plan to constitute a “plan of reorganization” within the meaning of Treasury Regulation Section 1.368-2(g).
2.Filings. As promptly as practicable following the date hereof, the Company shall cause the Conversion to be effective by:
(a) executing and filing (or causing to be executed and filed) a Certificate of Conversion pursuant to Section 1701.811 of the OGCL in a form reasonably acceptable to any officer of the Company (the “Ohio Certificate of Conversion”) with the Ohio Secretary of State;
(b) executing and filing (or causing to be executed and filed) a Certificate of Conversion pursuant to Sections 103 and 265 of the DGCL in a form reasonably acceptable to any officer of the Company (the “Delaware Certificate of Conversion”) with the Delaware Secretary of State; and
(c) executing, acknowledging and filing (or causing to be executed, acknowledged and filed) a Certificate of Incorporation of GenCorp Inc. substantially in the form set forth onExhibit A hereto (the “Delaware Certificate of Incorporation”) with the Delaware Secretary of State.
3.Effective Time. The Conversion shall become effective upon the filing and effectiveness of the Ohio Certificate of Conversion, the Delaware Certificate of Conversion and the Delaware Certificate of Incorporation with the applicable secretary of state (the time of the effectiveness of the Conversion, the “Effective Time”).
4.Effect of Conversion on Common Stock. Upon the terms and subject to the conditions of this Plan, at the Effective Time, by virtue of the Conversion and without any further action on the part of the Company or its shareholders, each share of issued common stock, $0.10 par value per share, of the Company (“Company Common Stock”) shall convert into one validly issued, fully paid and nonassessable share of common stock, $0.10 par value per share, of the Converted Company (“Converted Company Common Stock”).
5.Effect of Conversion on Outstanding Stock Options. Upon the terms and subject to the conditions of this Plan, at the Effective Time, by virtue of the Conversion and without any further action on the part of the Company or its shareholders, each option to acquire shares of Company Common Stock outstanding immediately prior to the Effective Time shall convert into an equivalent option to acquire, upon the same terms and conditions (including the exercise price per share applicable to each such option) as were in effect immediately prior to the Effective Time, the same number of shares of Converted Company Common Stock.
6.Effect of Conversion on Outstanding Warrants or Other Rights. Upon the terms and subject to the conditions of this Plan, at the Effective Time, by virtue of the Conversion and without any further action on the part of the Company or its shareholders, each warrant or other right to acquire shares of Company Common Stock outstanding immediately prior to the Effective Time shall convert into an equivalent warrant or other right to acquire, upon the same terms and conditions (including the exercise price per share applicable to each such warrant or other right) as were in effect immediately prior to the Effective Time, the same number of shares of Converted Company Common Stock.
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7.Effect of Conversion on Stock Certificates. Upon the terms and subject to the conditions of this Plan, at the Effective Time, all of the outstanding certificates that immediately prior to the Effective Time represented shares of Company Common Stock immediately prior to the Effective Time shall be deemed for all purposes to continue to evidence ownership of and to represent the same number of shares of Converted Company Common Stock.
8.Effect of Conversion on Employee Benefit, Incentive Compensation or Other Similar Plans. Upon the terms and subject to the conditions of this Plan, at the Effective Time, by virtue of the Conversion and without any further action on the part of the Company or its shareholders, each employee benefit plan, incentive compensation plan or other similar plan to which the Company is a party shall continue to be a plan of the Converted Company. To the extent that any such plan provides for the issuance of Company Common Stock, at the Effective Time, such plan shall be deemed to provide for the issuance of Converted Company Common Stock. A number of shares of Converted Company Common Stock shall be reserved for issuance under such plan or plans equal to the number of shares of Company Common Stock so reserved immediately prior to the effective date of the Conversion.
9.Further Assurances. If, at any time after the Effective Time, the Converted Company shall determine or be advised that any deeds, bills of sale, assignments, agreements, documents or assurances or any other acts or things are necessary, desirable or proper, consistent with the terms of this Plan, (a) to vest, perfect or confirm, of record or otherwise, in the Converted Company its right, title or interest in, to or under any of the rights, privileges, immunities, powers, purposes, franchises, properties or assets of the Company, or (b) to otherwise carry out the purposes of this Plan, the Converted Company, its officers and directors and the designees of its officers and directors, are hereby authorized to solicit in the name of the Converted Company any third-party consents or other documents required to be delivered by any third-party, to execute and deliver, in the name and on behalf of the Converted Company all such deeds, bills of sale, assignments, agreements, documents and assurances and do, in the name and on behalf of the Converted Company, all such other acts and things necessary, desirable or proper to vest, perfect or confirm its right, title or interest in, to or under any of the rights, privileges, immunities, powers, purposes, franchises, properties or assets of the Company and otherwise to carry out the purposes of this Plan.
10.Effect of Conversion on Directors and Officers. The members of the Board of Directors and the officers of the Converted Company immediately after the Effective Time shall be those individuals who were serving as directors and officers, respectively, of the Company.
11.Delaware Bylaws. To the fullest extent permitted by law, at the Effective Time, the bylaws of the Converted Company shall be substantially in the form set forth onExhibit B hereto (the “Delaware Bylaws”), and the Board of Directors of the Converted Company shall approve and ratify the Delaware Bylaws as promptly as practicable following the Effective Time.
12.Delaware Indemnification Agreements. As promptly as practicable following the Effective Time, the Converted Company shall enter into an Indemnification Agreement substantially in the form set forth onExhibit C hereto with each member of the Board of Directors of the Converted Company, and each officer of the Converted Company, that is currently a party to an indemnification agreement with the Company.
13.Termination. At any time prior to the Effective Time, this Plan may be terminated and the transactions contemplated hereby may be abandoned by action of the Board of Directors of the Company if, in the opinion of the Board of Directors of the Company, such action would be in the best interests of the Company and its shareholders. In the event of termination of this Plan, this Plan shall become void and of no effect.
14.Third Party Beneficiaries. This Plan shall not confer any rights or remedies upon any person other than as expressly provided herein.
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15.Severability. Whenever possible, each provision of this Plan will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Plan is held to be prohibited by or invalid under applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Plan.
16.Governing Law. This Plan shall be construed in accordance with and governed by the law of the State of Delaware, without regard to the conflict of laws provisions thereof.
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Exhibit A to Appendix A
CERTIFICATE OF INCORPORATION
OF
GENCORP INC.
FIRST: The name of this corporation is GenCorp Inc. (the “Corporation”).
SECOND: The registered office of the Corporation in the State of Delaware is to be located at 1209 Orange Street, Wilmington, New Castle County, Delaware, 19801. The registered agent at such address in charge thereof shall be The Corporation Trust Company, Corporation Trust Center.
THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the “DGCL”).
FOURTH: (A) The aggregate number of shares of stock that the Corporation is authorized to issue is One Hundred Sixty-Five Million (165,000,000), of which One Hundred Fifty Million (150,000,000) shares are common stock having a par value of Ten Cents ($0.10) per share (“Common Stock”), and Fifteen Million (15,000,000) shares are preferred stock having a par value of One Dollar ($1.00) per share (“Preferred Stock”).
(B) Preferred Stock may be issued from time to time in one or more series. The board of directors of the Corporation (the “Board”) is hereby authorized to provide for the issuance of shares of Preferred Stock in one or more series and, by filing a certificate pursuant to the applicable law of the State of Delaware (any such certificate, a “Preferred Stock Designation”), to establish from time to time the number of shares to be included in each such series and to fix the designation, powers, preferences, and rights of the shares of each such series and the qualifications, limitations, and restrictions thereof. The authority of the Board with respect to each series shall include, but shall not be limited to and shall not require (unless otherwise required by applicable law), determination of the following:
(i) The designation of the series, which may be by distinguishing number, letter, or title;
(ii) The number of shares of the series, which number the Board may thereafter (except where otherwise provided in the applicable Preferred Stock Designation) increase or decrease (but not below the number of shares thereof then outstanding);
(iii) The amounts payable on, and the preferences, if any, of, shares of the series in respect of dividends, and whether such dividends, if any, shall be cumulative or noncumulative;
(iv) The dates on which dividends, if any, shall be payable;
(v) The redemption rights and price or prices, if any, for shares of the series;
(vi) The terms and amount of any sinking fund provided for the purchase or redemption of shares of the series;
(vii) The amounts payable on, and the preferences, if any, of, shares of the series in the event of any voluntary or involuntary liquidation, dissolution, or winding up of the affairs of the Corporation;
Ex. A-1
(viii) Whether the shares of the series shall be convertible into or exchangeable for shares of any other class or series, or any other security, of the Corporation or any other corporation, and, if so, the specification of such other class or series or such other security, the conversion or exchange price or prices or rate or rates, any adjustments thereto, the date or dates at which such shares shall be convertible or exchangeable, and all other terms and conditions upon which such conversion or exchange may be made;
(ix) Restrictions on the issuance of shares of the same series or of any other class or series;
(x) The voting rights, if any, of the holders of shares of the series.
(C) Common Stock shall be subject to the express terms of any series of Preferred Stock. Except as may otherwise be provided in this Certificate of Incorporation, in a Preferred Stock Designation, or by applicable law, (i) each holder of shares of Common Stock shall be entitled to one vote for each share of Common Stock so held upon all questions presented to the stockholders of the Corporation, (ii) only shares of Common Stock shall be voted in elections of directors and for all other purposes, and (iii) shares of Preferred Stock shall not entitle the holder thereof to vote at or receive notice of any meeting of the stockholders of the Corporation.
(D) No share of Common Stock or Preferred Stock shall give any holder thereof any preemptive right to subscribe for any shares of any class or series of stock of the Corporation whether now or hereafter authorized.
FIFTH: The name and mailing address of the incorporator is [Name of a GenCorp officer], [business street address, city, state, zip code].
SIXTH: Provisions for the management of the business and for the conduct of the affairs of the Corporation and provisions creating, defining, limiting, and regulating the powers of the Corporation, the Board, and the stockholders are as follows:
(A) The Board shall have the power to make, adopt, alter, amend, and repeal the bylaws of the Corporation without the assent or vote of the stockholders, including without limitation the power to fix, from time to time, the number of directors that shall constitute the whole Board, subject to the right of the stockholders to alter, amend, and repeal the bylaws made by the Board.
(B) Election of directors of the Corporation need not be by written ballot unless the bylaws so provide.
(C) The Board in its discretion may submit any contract or act for approval or ratification at any annual meeting of the stockholders or at any meeting of the stockholders called for the purpose of considering any such contract or act, and any contract or act that shall be approved or be ratified by the vote of the holders of a majority of the stock of the Corporation that is represented in person or by proxy at such meeting and entitled to vote thereat (provided that a lawful quorum of stockholders be there represented in person or by proxy) shall be as valid and as binding upon the Corporation and upon all the stockholders as though it had been approved or ratified by every stockholder of the Corporation, whether or not the contract or act would otherwise be open to legal attack because of directors’ interest or for any other reason.
(D) In addition to the powers and authority herein or by statute expressly conferred upon it, the Board is hereby expressly empowered to exercise all such powers and to do all such acts and things as may be exercised or done by the Corporation; subject, nevertheless, to the provisions of the statutes of the State of Delaware and of this Certificate of Incorporation as they may be amended, altered, or changed from time to time, and to any bylaws from time to time made by the Board or stockholders;provided, however, that no bylaw so made shall invalidate any prior act of the Board that would have been valid if such bylaw had not been made.
Ex. A-2
(E) The holders of shares of stock of the Corporation of any class that is not otherwise entitled to voting power shall not be entitled to vote upon the increase or decrease in the number of authorized shares of such class.
SEVENTH: To the fullest extent permitted by the DGCL, including, without limitation, as provided in Section 102(b)(7) of the DGCL, as the same exists or may hereafter be amended, a director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. If the DGCL is amended after the effective date hereof to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL as so amended. Any repeal or modification of this Article SEVENTH by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification or with respect to events occurring prior to such time.
EIGHTH: (A) Each person who was or is made a party to, or is threatened to be made a party to, or is involved in any action, suit, or proceeding, whether civil, criminal, administrative, or investigative (hereinafter a “proceeding”), by reason of the fact that he or she is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee, or agent of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as such director, officer, employee, or agent, or in any other capacity while serving as such director, officer, employee, or agent, shall be indemnified and held harmless by the Corporation to the fullest extent permitted by the DGCL, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than the DGCL permitted the Corporation to provide prior to such amendment), against all expense, liability, and loss (including attorneys’ fees, judgments, fines, other expenses and losses, amounts paid or to be paid in settlement, and excise taxes or penalties arising under the Employee Retirement Income Security Act of 1974) reasonably incurred or suffered by such person in connection therewith, and such indemnification shall continue as to a person who has ceased to be a director, officer, employee, or agent, and shall inure to the benefit of his or her heirs, executors, and administrators;provided, however, that, except as provided in paragraph (B) hereof, the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board. The right to indemnification conferred in this Article EIGHTH shall be a contract right and shall include the right of a director or officer to be paid by the Corporation the expenses (including attorneys’ fees) incurred in defending any such proceeding in advance of its final disposition;provided, however, that the payment of such expenses incurred by a director or officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding shall be made only upon delivery to the Corporation of an undertaking, which undertaking shall itself be sufficient without the need for further evaluation of any credit aspects of the undertaking or with respect to such advancement, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined by a final, non-appealable order of a court of competent jurisdiction that such director or officer is not entitled to be indemnified under this Article EIGHTH or otherwise.
(B) If a claim under paragraph (A) of this Article EIGHTH is not paid in full by the Corporation within sixty (60) days after a written claim, together with reasonable evidence as to the amount of such claim, has been received by the Corporation, except in the case of a claim for advancement of expenses (including attorneys’ fees), in which case the applicable period shall be twenty (20) days, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim, and, if successful in whole or in part, the claimant shall also be entitled to be paid the expense, including attorneys’ fees, of prosecuting such suit. It shall be a defense to any such suit, other than a suit brought to enforce a claim for expenses (including attorneys’ fees) incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the Corporation, that the claimant has not met the standards of conduct that make it permissible under the DGCL for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving
Ex. A-3
such defense shall be on the Corporation. Neither the failure of the Corporation (including the Board or a committee thereof, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the DGCL, nor an actual determination by the Corporation (including the Board or a committee thereof, independent legal counsel, or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the suit or create a presumption that the claimant has not met the applicable standard of conduct. In any suit brought by an indemnitee to enforce a right to indemnification or to advancement of expenses hereunder, or by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to such indemnification, or to such advancement of expenses, under this Article EIGHTH or otherwise shall be on the Corporation.
(C) The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article EIGHTH shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, provision of the certificate of incorporation, bylaw, agreement, or vote of stockholders or disinterested directors, or otherwise.
(D) The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee, or agent of the Corporation or another corporation, partnership, joint venture, trust, or other enterprise against any such expense, liability, or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability, or loss under the DGCL.
(E) In the case of a claim for indemnification or advancement of expenses against the Corporation under this Article EIGHTH arising out of acts, events, or circumstances for which the claimant, who was at the relevant time serving as a director, officer, employee, or agent of any other entity at the request of the Corporation, may be entitled to indemnification or advancement of expenses pursuant to such other entity’s certificate of incorporation, bylaws, or other governing document, or a contractual agreement between the claimant and such entity, the claimant seeking indemnification or advancement of expenses hereunder shall first seek indemnification or advancement of expenses pursuant to any such governing document or agreement. To the extent that amounts to be paid in indemnification or advancement to a claimant hereunder are paid by such other entity, the claimant’s right to indemnification and advancement of expenses hereunder shall be reduced.
NINTH: Whenever a compromise or arrangement is proposed between this corporation and its creditors or any class of them and/or between this corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this corporation under § 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this corporation under § 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this corporation, as the case may be, and also on this corporation.
TENTH: Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (A) any derivative action or proceeding brought on behalf of the Corporation, (B) any action asserting a claim of breach of a fiduciary duty owed by any director, officer, or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (C) any action asserting a claim arising pursuant to any provision of the DGCL, or (D) any action asserting a claim governed by the internal affairs doctrine as such doctrine exists under the law of the State of Delaware.
Ex. A-4
ELEVENTH: The Corporation hereby expressly elects not to be governed by Section 203 of the DGCL.
TWELFTH: The Corporation reserves the right to restate this Certificate of Incorporation and to amend, alter, change, or repeal any provision contained in this Certificate of Incorporation in the manner now or hereafter prescribed by law, and all rights and powers conferred herein on stockholders, directors, and officers are subject to this reserved power.
THE UNDERSIGNED, being the sole incorporator, for the purpose of forming a corporation pursuant to the DGCL and the Acts amendatory thereof and supplemental thereto, does make and file this Certificate of Incorporation, hereby declaring and certifying that the facts stated herein are true, and accordingly hereunto has set my hand and seal this , 2014.
Ex. A-5
Exhibit B to Appendix A
GENCORP INC.
BYLAWS
| | | ARTICLE 1. OFFICES | | | Section 1.1.
| | Registered Office | Section 1.2.
| | Other Offices | | ARTICLE 2. STOCKHOLDERS’ MEETINGS | | | Section 2.1.
| | Annual Meeting | Section 2.2.
| | Special Meetings | Section 2.3.
| | Notice of Stockholder Business and Nominations | Section 2.4.
| | Time and Place of Special Meetings | Section 2.5.
| | Notice of Meetings | Section 2.6.
| | Record Date | Section 2.7.
| | List of Stockholders | Section 2.8.
| | Voting | Section 2.9.
| | Proxies | Section 2.10.
| | Quorum | Section 2.11.
| | Adjournment | Section 2.12.
| | Organization of Meetings | Section 2.13.
| | Conduct of Meetings | | ARTICLE 3. BOARD OF DIRECTORS | | | Section 3.1.
| | Number | Section 3.2.
| | Term and Qualification | Section 3.3.
| | Vacancies | Section 3.4.
| | Meetings | Section 3.5.
| | Action Without a Meeting | Section 3.6.
| | Quorum | Section 3.7.
| | Vote Necessary to Act and Participation by Conference Telephone | Section 3.8.
| | Executive and Other Committees | Section 3.9.
| | Indemnification | Section 3.10.
| | Removal | Section 3.11.
| | Chairman |
Ex. B-1
| | | | ARTICLE 4. OFFICERS | | | Section 4.1.
| | Officers | Section 4.2.
| | President | Section 4.3.
| | Vice President | Section 4.4.
| | Secretary | Section 4.5.
| | Treasurer | Section 4.6.
| | Assistant Secretary | Section 4.7.
| | Assistant Treasurer | Section 4.8.
| | Other Officers | Section 4.9.
| | Authority to Sign | | ARTICLE 5. STOCK | | | Section 5.1.
| | Certificates | Section 5.2.
| | Lost, Stolen, or Destroyed Stock Certificates; Issuance of New Certificates | | ARTICLE 6. MISCELLANEOUS | | | Section 6.1.
| | Seal | Section 6.2.
| | Fiscal Year | Section 6.3.
| | Waiver of Notice Meetings of Stockholders, Directors, and Committees | | ARTICLE 7. CONSTRUCTION AND DEFINED TERMS | | | Section 7.1.
| | Construction | Section 7.2.
| | Defined Terms |
Ex. B-2
GENCORP INC.
BYLAWS
ARTICLE 1. OFFICES
Section 1.1.Registered Office. The address of the registered office of the Corporation in Delaware shall be 1209 Orange Street, Wilmington, New Castle County, Delaware, 19801. The registered agent at such address in charge thereof shall be The Corporation Trust Company, Corporation Trust Center, all of which shall be subject to change from time to time as permitted by law.
Section 1.2.Other Offices. The Corporation may also have an office or offices or place or places of business within or without the State of Delaware as the Board may from time to time designate.
ARTICLE 2. STOCKHOLDERS’ MEETINGS
Section 2.1.Annual Meeting. The annual meeting of the Stockholders shall be held at the principal place of business of the Corporation or at such other place as shall be designated in the notice of such meeting on such date and at such hour during the month of
March as may be fixed by resolution of the Board, for the purpose of electing Directors and for transacting other proper business.Section 2.2.Special Meetings. Special meetings of the Stockholders for any purpose or purposes may be called at any time by the Board and shall be called upon written request by Stockholders holding shares of Stock entitling such Stockholders to cast at least twenty-five percent (25%) of the votes that would be cast if all issued and outstanding shares of Stock entitled to vote at such meeting were present and voted. Such written request shall be delivered to the President or Secretary, and upon delivery thereof, it shall be the duty of the President or Secretary to give notice of such meeting in the manner hereinafter provided. If such written request be refused, the Stockholders making such request may call such meeting by giving notice thereof in the manner hereinafter provided.
Section 2.3.Notice of Stockholder Business and Nominations.
(a)Annual Meetings of Stockholders.
(1) Nominations of persons for election to the Board of the Corporation and the proposal of other business to be considered by the Stockholders may be made at an annual meeting of Stockholders only (A) pursuant to the Corporation’s notice of meeting (or any supplement thereto), (B) by or at the direction of the Board or any committee thereof, or (C) by any Stockholder who was a Stockholder at the time the notice provided for in this Section 2.3 is delivered to the Secretary of the Corporation, who is entitled to vote at the meeting, and who complies with the notice procedures set forth in this Section 2.3.
(2) For any nominations or other business to be properly brought before an annual meeting by a Stockholder pursuant to clause (C) of paragraph (a)(1) of this Section 2.3, the Stockholder must have given timely notice thereof in writing to the Secretary of the Corporation, and any such proposed business (other than the nominations of persons for election to the Board) must constitute a proper matter for Stockholder action. To be timely, a Stockholder’s notice shall be delivered to the Secretary at the principal executive offices of the Corporation
Ex. B-3
18, 2016
not later than the close of business on the ninetieth (90th) day, nor earlier than the close of business on the one hundred twentieth (120th) day, prior to the first anniversary of the preceding year’s annual meeting (provided, however, that in the event that the date of the annual meeting is more than thirty (30) days before or more than seventy (70) days after such anniversary date, notice by the Stockholder must be so delivered not earlier than the close of business on the one hundred twentieth (120th) day prior to such annual meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such annual meeting or the tenth (10th) day following the day on which public announcement of the date of such meeting is first made by the Corporation). In no event shall the public announcement of an adjournment or postponement of an annual meeting commence a new time period (or extend any time period) for the giving of a Stockholder’s notice as described above. Such Stockholder’s notice shall set forth (A) as to each person whom the Stockholder proposes to nominate for election as a Director (i) all information relating to such person that is required to be disclosed in solicitations of proxies for election of Directors in an election contest, or is otherwise required, in each case pursuant to and in accordance with Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder, and (ii) such person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected; (B) as to any other business that the Stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration and, in the event that such business includes a proposal to amend the Bylaws of the Corporation, the language of the proposed amendment), the reasons for conducting such business at the meeting, and any material interest in such business of such Stockholder and the beneficial owner, if any, on whose behalf the proposal is made; and (C) as to the Stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (i) the name and address of such Stockholder, as they appear on the Corporation’s books, and of such beneficial owner, (ii) the class or series and number of shares of Stock that are owned beneficially and of record by such Stockholder and such beneficial owner, (iii) a description of any agreement, arrangement, or understanding with respect to the nomination or proposal between or among such Stockholder and/or such beneficial owner, any of their respective affiliates or associates, and any others acting in concert with any of the foregoing, including, in the case of a nomination, the nominee, (iv) a description of any agreement, arrangement, or understanding (including any derivative or short positions, profit interests, options, warrants, convertible securities, stock appreciation or similar rights, hedging transactions, and borrowed or loaned shares) that has been entered into as of the date of the Stockholder’s notice by, or on behalf of, such Stockholder and such beneficial owners, whether or not such instrument or right shall be subject to settlement in underlying shares of Stock, the effect or intent of which is to mitigate loss to, manage risk or benefit of share price changes for, or increase or decrease the voting power of, such Stockholder or such beneficial owner, with respect to securities of the Corporation, (v) a representation that the Stockholder is a holder of record of Stock entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to propose such business or nomination, (vi) a representation whether the Stockholder or the beneficial owner, if any, intends or is part of a group that intends (I) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the outstanding Stock required to approve or adopt the proposal or elect the nominee and/or (II) otherwise to solicit proxies or votes from Stockholders in support of such proposal or nomination, and (vii) any other information relating to such Stockholder and beneficial owner, if any, required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of Directors in an election contest pursuant to and in accordance with Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder. The foregoing notice requirements of this Section 2.3 shall be deemed satisfied by a Stockholder with respect to business other than a nomination if the Stockholder has notified the Corporation of his, her, or its intention to present a proposal at an
Ex. B-4
annual meeting in compliance with applicable rules and regulations promulgated under the Exchange Act and such Stockholder’s proposal has been included in a proxy statement that has been prepared by the Corporation to solicit proxies for such annual meeting. The Corporation may require any proposed nominee to furnish such other information as the Corporation may reasonably require to determine the eligibility of such proposed nominee to serve as a Director.
(3) Notwithstanding anything in the second sentence of paragraph (a)(2) of this Section 2.3 to the contrary, in the event that the number of Directors to be elected to the Board of the Corporation at the annual meeting is increased effective after the time period for which nominations would otherwise be due under paragraph (a)(2) of this Section 2.3, and there is no public announcement by the Corporation naming the nominees for the additional directorships at least one hundred (100) days prior to the first anniversary of the preceding year’s annual meeting, a Stockholder’s notice required by this Section 2.3 shall also be considered timely, but only with respect to nominees for the additional directorships, if it shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the tenth (10th) day following the day on which such public announcement is first made by the Corporation.
(b)Special Meetings of Stockholders. Only such business shall be conducted at a special meeting of Stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting. Nominations of persons for election to the Board may be made at a special meeting of Stockholders at which Directors are to be elected pursuant to the Corporation’s notice of meeting (1) by or at the direction of the Board or any committee thereof or Stockholders pursuant to Section 2.2 hereof, or (2) provided that the Board or Stockholders pursuant to Section 2.2 hereof has determined that Directors shall be elected at such meeting, by any Stockholder of the Corporation who is a Stockholder at the time the notice provided for in this Section 2.3 is delivered to the Secretary of the Corporation, who is entitled to vote at the meeting and upon such election and who complies with the notice procedures set forth in this Section 2.3. In the event the Corporation calls a special meeting of Stockholders for the purpose of electing one or more Directors, any such Stockholder entitled to vote in such election of Directors may nominate a person or persons (as the case may be) for election to such position(s) as specified in the Corporation’s notice of meeting, if the Stockholder’s notice required by paragraph (a)(2) of this Section 2.3 shall be delivered to the Secretary at the principal executive offices of the Corporation not earlier than the close of business on the one hundred twentieth (120th) day prior to such special meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such special meeting or the tenth (10th) day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board to be elected at such meeting. In no event shall the public announcement of an adjournment or postponement of a special meeting commence a new time period (or extend any time period) for the giving of a Stockholder’s notice as described above.
(c)General.
(1) Except as otherwise expressly provided in any applicable rule or regulation promulgated under the Exchange Act, only such persons who are nominated in accordance with the procedures set forth in this Section 2.3 shall be eligible to be elected at an annual or special meeting of Stockholders to serve as Directors, and only such business shall be conducted at a meeting of Stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 2.3. Except as otherwise provided by law, the chairman of the meeting shall have the power and duty (A) to determine whether a nomination or any business proposed to be
Ex. B-5
brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in this Section 2.3 (including whether the Stockholder or beneficial owner, if any, on whose behalf the nomination or proposal is made solicited (or is part of a group that solicited) or did not so solicit, as the case may be, proxies or votes in support of such Stockholder’s nominee or proposal in compliance with such Stockholder’s representation as required by clause (a)(2)(C)(vi) of this Section 2.3), and (B) if any proposed nomination or business was not made or proposed in compliance with this Section 2.3, to declare that such nomination shall be disregarded or that such proposed business shall not be transacted. Notwithstanding the foregoing provisions of this Section 2.3, unless otherwise required by law, if the Stockholder (or a qualified representative of the Stockholder) does not appear at the annual or special meeting of Stockholders to present a nomination or proposed business, such nomination shall be disregarded and such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 2.3, to be considered a qualified representative of the Stockholder, a person must be a duly authorized officer, manager or partner of such Stockholder or must be authorized by a writing executed by such Stockholder or an electronic transmission delivered by such Stockholder to act for such Stockholder as proxy at the meeting of Stockholders, and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of Stockholders.
(2) For purposes of this Section 2.3, “public announcement” shall include disclosure in a press release reported by the Dow Jones News Service, Associated Press, or other national news service, or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act and the rules and regulations promulgated thereunder.
(3) Notwithstanding the foregoing provisions of this Section 2.3, a Stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations promulgated thereunder with respect to the matters set forth in this Section 2.3;provided, however, that any references in these Bylaws to the Exchange Act or the rules and regulations promulgated thereunder are not intended to and shall not limit any requirements applicable to nominations or proposals as to any other business to be considered pursuant to this Section 2.3 (including paragraphs (a)(1)(C) and (b) hereof), and compliance with paragraphs (a)(1)(C) and (b) of this Section 2.3 shall be the exclusive means for a Stockholder to make nominations or submit other business (other than, as provided in the penultimate sentence of (a)(2), business other than nominations brought properly under and in compliance with Rule 14a-8 of the Exchange Act, as may be amended from time to time). Nothing in this Section 2.3 shall be deemed to affect any rights (A) of Stockholders to request inclusion of proposals or nominations in the Corporation’s proxy statement pursuant to applicable rules and regulations promulgated under the Exchange Act, or (B) of the holders of any series of Preferred Stock to elect Directors pursuant to any applicable provisions of the certificate of incorporation.
Section 2.4.Time and Place of Special Meetings. Special meetings of the Stockholders shall be held at such times and at such places as shall be designated in the notices of such meetings.
Section 2.5.Notice of Meetings. Notice of all Stockholders’ meetings shall be given in writing (a) by the President or Secretary or another officer of the Corporation authorized to give such notice, or (b) in case of a special meeting duly requested by Stockholders pursuant to Section 2.2 and for which the President or Secretary has refused to give notice, by the Stockholders entitled to call such meeting. Notice of any Stockholders’ meeting shall state the date and hour when and the place where it is to be held, the record date for determining the Stockholders entitled to
Ex. B-6
vote at such meeting if such date is different from the record date for determining the Stockholders entitled to notice of such meeting, and, in the case of a special meeting, the purpose or purposes for which such meeting is called. Subject to Section 6.3, and unless otherwise required by law, not more than sixty (60) nor less than ten (10) days prior to any such meeting, such notice shall be given to each Stockholder entitled to vote at such meeting as of the record date for determining the Stockholders entitled to notice of the meeting, directed by United States mail, postage prepaid, to such Stockholder’s address as it appears upon the records of the Corporation.
Section 2.6.Record Date. The Board may fix a date, which date shall not precede the date upon which the resolution fixing such date is adopted by the Board and shall not be more than sixty (60) nor less than ten (10) days preceding any meeting of Stockholders, as the record date for the determination of the Stockholders entitled to notice of such meeting. If the Board so fixes a date, such date shall also be the record date for determining the Stockholders entitled to vote at such meeting unless the Board determines, at the time it fixes such record date, that a later date on or before the date of such meeting shall be the date for making such determination. If no record date is fixed by the Board, the record date for determining Stockholders entitled to notice of and to vote at a meeting of Stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which such meeting is held.
Section 2.7.List of Stockholders. The officer who has charge of the Stock ledger of the Corporation shall prepare and make, at least ten (10) days before every meeting of Stockholders, a complete list of the Stockholders entitled to vote at the meeting;provided, however, that if the record date for determining the Stockholders entitled to vote is less than ten (10) days before the meeting date, the list shall reflect the Stockholders entitled to vote as of the tenth (10th) day before the meeting date, arranged in alphabetical order, and showing the address of each Stockholder and the number of shares of Stock registered in the name of each Stockholder. Such list shall be open to the examination of any Stockholder for any purpose germane to the meeting for a period of at least ten (10) days prior to the meeting, during ordinary business hours, at the principal place of business of the Corporation. A list of Stockholders entitled to vote at the meeting shall be produced and kept at the time and place of the meeting during the whole time thereof and may be examined by any Stockholder who is present. The stock ledger shall be the only evidence as to who are the Stockholders entitled to vote in person or by proxy at any meeting of Stockholders.
Section 2.8.Voting. Except as may be otherwise required by law, the Certificate of Incorporation, or these Bylaws, (a) every Stockholder shall be entitled to one (1) vote for each share of Stock held of record by such Stockholder on the record date for determining the Stockholders entitled to vote or act by written consent; (b) in all matters other than the election of Directors, the affirmative vote of the majority of shares of Stock present in person or represented by proxy at a Stockholders’ meeting having a quorum and entitled to vote on the subject matter shall be the act of the Stockholders; and (c) Directors shall be elected by a plurality of the votes of the shares of Stock present in person or represented by proxy at a Stockholders’ meeting having a quorum and entitled to vote on the election of Directors.
Section 2.9.Proxies. At any meeting of the Stockholders, any Stockholder entitled to vote thereat may be represented and may vote by duly authorized proxy or proxies. In the event that a Stockholder shall authorize three (3) or more persons to act as proxies, a majority of such persons present at the meeting, or if only one (1) such person shall be present, then that one (1), shall have and may exercise all of the powers conferred by such authorization upon all of the persons so authorized unless the authorization shall otherwise provide.
Ex. B-7
Section 2.10.Quorum. Except as may be otherwise required by law or the Certificate of Incorporation, at any meeting of the Stockholders, the presence in person or by proxy of the holders of record of shares of Stock that would constitute a majority of the votes if all outstanding shares of Stock entitled to vote at such meeting were present and voted shall be necessary to constitute a quorum;provided, however, that, where a separate vote by a class or series of Stock is required, a quorum shall consist of the presence in person or by proxy of the holders of record of shares of Stock that would constitute a majority of the votes of such class or series if all outstanding shares of Stock of such class or series entitled to vote at such meeting were present and voted. In the absence of a quorum and until a quorum is secured, either the chairman of the meeting or a majority of the votes cast at the meeting by Stockholders who are present in person or by proxy may adjourn the meeting, from time to time, without further notice if the time and place of the adjourned meeting are announced at the meeting at which the adjournment is taken. No business shall be transacted at any such adjourned meeting except such as might have been lawfully transacted at the original meeting.
Section 2.11.Adjournment. Any meeting of Stockholders may be adjourned at the meeting from time to time, either by the chairman of the meeting, for an announced proper purpose, or by the Stockholders, for any purpose, to reconvene at a later time and at the same or some other place, and, unless otherwise required by law, notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. No business shall be transacted at any such adjourned meeting except such as might have been lawfully transacted at the original meeting.
Section 2.12.Organization of Meetings. Meetings of Stockholders shall be presided over by the chairman of the meeting, who shall be one of the following, here listed in the order of preference: (a) the Chairman; or (b) in the Chairman’s absence, the President; or (c) in the President’s absence, a Vice President; or (d) in the absence of the foregoing officers, a chairman chosen by the Stockholders at the meeting. The Secretary shall act as secretary of the meeting, but in such officer’s absence, the chairman of the meeting shall appoint a secretary of the meeting.
Section 2.13.Conduct of Meetings. Subject to and to the extent permitted by law, the Board may adopt by resolution such rules and regulations for the conduct of meetings of Stockholders as it shall deem appropriate. Except to the extent inconsistent with law or such rules and regulations as adopted by the Board, the chairman of any meeting of Stockholders shall have the right and authority to prescribe such rules, regulations, and procedures, and to do all such acts, as in the judgment of such chairman are appropriate for the proper conduct of the meeting. Such rules, regulations, or procedures, whether adopted by the Board or prescribed by the chairman of the meeting, may include, without limitation, the following: (a) the establishment of an agenda or order of business for the meeting and announcement of the date and time of the opening and closing of the polls for each matter upon which the Stockholders will vote at the meeting; (b) rules and procedures for maintaining order at the meeting and the safety of those present; (c) limitations on attendance at or participation in the meeting to Stockholders, their duly authorized proxies, or such other persons as the chairman of the meeting shall determine; (d) restrictions on entry to the meeting after the time fixed for the commencement thereof; (e) limitations on the time allotted to questions or comments by participants; and (f) appointment of inspectors of election and other voting procedures, including those procedures set out in Section 231 of the DGCL. Unless and to the extent determined otherwise by the Board or the chairman of the meeting, meetings of Stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.
Ex. B-8
ARTICLE 3. BOARD OF DIRECTORS
Section 3.1.Number. Except as may be otherwise provided in the Certificate of Incorporation with respect to the rights of holders of any class or series of Stock having a preference over the Common Stock, the entire Board shall consist of one (1) or more Directors, the total number thereof to be authorized first by the incorporator of the Corporation and thereafter from time to time by resolution of the Board. This Section 3.1 shall not be amended except pursuant to (a) the affirmative vote of a majority of the total number of Directors, or (b) the affirmative vote of the holders of record of shares of Stock entitled to at least eighty percent (80%) of the total voting power of the issued and outstanding shares of Stock.
Section 3.2.Term and Qualification. Directors shall hold office until the next annual election and until their successors are elected and qualified, or until their earlier death, resignation, or removal. Directors need not be Stockholders.
Section 3.3.Vacancies. If there be a vacancy on the Board by reason of death, resignation, or otherwise, or if there be any newly created directorships resulting from an increase in the authorized number of Directors, such vacancy or directorship shall be filled by the affirmative vote of a majority of the Directors then in office, although less than a quorum. Any Director chosen by reason of such vacancy or such newly created directorship shall hold office until the next annual meeting and until such Director’s successor is elected and qualified, or until such Director’s earlier death, resignation, or removal. This Section 3.3 shall not be amended except pursuant to (a) the affirmative vote of a majority of the total number of Directors, or (b) the affirmative vote of the holders of record of shares of Stock entitled to at least eighty percent (80%) of the total voting power of the issued and outstanding shares of Stock.
Section 3.4.Meetings. The Board may by resolution provide for regular meetings to be held at such times and places as it may determine, and such meetings may be held without further notice. Special meetings of the Board may be called by the Chairman or by the President, or by not less than one-third (1/3) of the Directors then in office. Subject to Section 6.3, notice of the time and place of such meeting shall be given by or at the direction of the person or persons calling the meeting, and shall be delivered personally or telephoned to each Director at least twenty-four (24) hours prior to the time of the meeting, or sent by First Class United States mail, postage prepaid, to each Director at such Director’s address as shown on the records of the Corporation, in which case such notice shall be deposited in the United States mail no later than the fourth (4th) business day preceding the day of the meeting. Unless otherwise specified in the notice of a special meeting, any and all business may be transacted at such meeting.
Section 3.5.Action Without a Meeting. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all the Directors or all members of the committee, as the case may be, consent thereto in writing or by electronic transmission, and such writings or electronic transmissions are filed with the minutes of proceedings of the Board or committee, as the case may be.
Section 3.6.Quorum. At any meeting of the Board, the presence of (a) a majority of the Directors then in office or (b) one-third (1/3) of the total number of Directors, whichever is greater, shall be necessary to constitute a quorum for the transaction of business. Notwithstanding the foregoing, if at any meeting of the Board there shall be less than a quorum present, a majority of those present may adjourn the meeting from time to time without further notice if the time and place of the adjourned meeting are announced at the meeting at which the adjournment is taken.
Ex. B-9
Section 3.7.Vote Necessary to Act and Participation by Conference Telephone. The vote of the majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board, except as may otherwise be provided by law, the Certificate of Incorporation, or these Bylaws. Participation in a meeting by conference telephone or similar means by which all participating Directors can hear each other shall constitute presence in person at such meeting.
Section 3.8.Executive and Other Committees.
(a) The Board may by resolution designate an Executive Committee and/or one or more other committees, each committee to consist of two (2) or more Directors, except that the Executive Committee, if any, shall consist of not less than (3) Directors. Any such committee, to the extent provided in such resolution or in these Bylaws, shall have and may exercise the powers and authority of the Board in the management of the business and affairs of the Corporation, except in reference to powers or authority expressly forbidden such committee by law, and may authorize the seal of the corporation to be fixed to all papers that may require it.
(b) During the intervals between meetings of the Board, the Executive Committee, unless restricted by resolution of the Board, shall possess and may exercise, under the control and direction of the Board, all of the powers of the Board in the management and control of the business of the Corporation to the fullest extent permitted by law. All action taken by the Executive Committee shall be reported to the Board at its first meeting thereafter and shall be subject to revision or rescission by the Board;provided, however, that rights of third parties shall not be affected by any such action by the Board.
(c) If any member of any such committee other than the Executive Committee is absent or disqualified, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another Director to act at the meeting in the place of any such absent or disqualified member.
(d) Any such committee shall meet at stated times or on notice to all of its own number. It shall fix its own rules of procedure. A majority shall constitute a quorum, but the affirmative vote of a majority of the whole committee shall be necessary to act in every case.
Section 3.9.Indemnification.
(a) Each person who was or is made a party to, or is threatened to be made a party to, or is involved in any action, suit, or proceeding, whether civil, criminal, administrative, or investigative (hereinafter a “proceeding”), by reason of the fact that he or she is or was a Director or officer of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee, or agent of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as such director, officer, employee, or agent, or in any other capacity while serving as such director, officer, employee, or agent, shall be indemnified and held harmless by the Corporation to the fullest extent permitted by the DGCL, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation
Ex. B-10
to provide broader indemnification rights than the DGCL permitted the Corporation to provide prior to such amendment), against all expense, liability, and loss (including attorneys’ fees, judgments, fines, other expenses and losses, amounts paid or to be paid in settlement, and excise taxes or penalties arising under the Employee Retirement Income Security Act of 1974) reasonably incurred or suffered by such person in connection therewith, and such indemnification shall continue as to a person who has ceased to be a Director, officer, employee, or agent, and shall inure to the benefit of his or her heirs, executors, and administrators;provided, however, that, except as provided in paragraph (b) hereof, the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board. The right to indemnification conferred in this Section 3.9 shall be a contract right and shall include the right of a Director or officer to be paid by the Corporation the expenses (including attorneys’ fees) incurred in defending any such proceeding in advance of its final disposition;provided, however, that the payment of such expenses incurred by a Director or officer in his or her capacity as a Director or officer (and not in any other capacity in which service was or is rendered by such person while a Director or officer including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding shall be made only upon delivery to the Corporation of an undertaking, which undertaking shall itself be sufficient without the need for further evaluation of any credit aspects of the undertaking or with respect to such advancement, by or on behalf of such Director or officer, to repay all amounts so advanced if it shall ultimately be determined by a final, non-appealable order of a court of competent jurisdiction that such Director or officer is not entitled to be indemnified under this Section 3.9 or otherwise.
(b) If a claim under Section 3.9(a) is not paid in full by the Corporation within sixty (60) days after a written claim, together with reasonable evidence as to the amount of such claim, has been received by the Corporation, except in the case of a claim for advancement of expenses (including attorneys’ fees), in which case the applicable period shall be twenty (20) days, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim, and, if successful in whole or in part, the claimant shall also be entitled to be paid the expense, including attorneys’ fees, of prosecuting such suit. It shall be a defense to any such suit, other than a suit brought to enforce a claim for expenses (including attorneys’ fees) incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the Corporation, that the claimant has not met the standards of conduct that make it permissible under the DGCL for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including the Board or a committee thereof, independent legal counsel, or the Stockholders) to have made a determination prior to the commencement of such suit that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the DGCL, nor an actual determination by the Corporation (including the Board or a committee thereof, independent legal counsel, or the Stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the suit or create a presumption that the claimant has not met the applicable standard of conduct. In any suit brought by an indemnitee to enforce a right to indemnification or to advancement of expenses hereunder, or by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to such indemnification, or to such advancement of expenses, under this Section 3.9 or otherwise shall be on the Corporation.
Ex. B-11
(c) The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Section 3.9 shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, Bylaw, agreement, or vote of Stockholders or disinterested Directors, or otherwise.
(d) The Corporation may maintain insurance, at its expense, to protect itself and any Director, officer, employee, or agent of the Corporation or another corporation, partnership, joint venture, trust, or other enterprise against any such expense, liability, or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability, or loss under the DGCL.
(e) In the case of a claim for indemnification or advancement of expenses against the Corporation under this Section 3.9 arising out of acts, events, or circumstances for which the claimant, who was at the relevant time serving as a director, officer, employee, or agent of any other entity at the request of the Corporation, may be entitled to indemnification or advancement of expenses pursuant to such other entity’s certificate of incorporation, bylaws, or other governing document, or a contractual agreement between the claimant and such entity, the claimant seeking indemnification or advancement of expenses hereunder shall first seek indemnification or advancement of expenses pursuant to any such governing document or agreement. To the extent that amounts to be paid in indemnification or advancement to a claimant hereunder are paid by such other entity, the claimant’s right to indemnification and advancement of expenses hereunder shall be reduced.
Section 3.10.Removal. Except as may be otherwise provided in the Certificate of Incorporation with respect to the rights of holders of any class or series of Stock having a preference over the Common Stock, Directors may be removed from office at any time, with or without cause, by the affirmative vote of the holders of record of shares of Stock that would constitute a majority of the votes if all outstanding shares entitled to vote thereon were voted.
Section 3.11.Chairman. The Board shall elect a Chairman from among the Directors. The Chairman shall preside at all meetings of the Board and shall perform such other duties as may be directed by resolution of the Board or as otherwise set forth in these Bylaws.
ARTICLE 4. OFFICERS
Section 4.1.Officers. The Corporation shall have a President, a Secretary, and a Treasurer, all of whom shall be chosen by the Board. The Corporation may also have one or more Vice Presidents, Assistant Secretaries, Assistant Treasurers, and other officers as the Board may deem advisable, all of whom shall be chosen by the Board. Any two (2) or more offices may be held by the same person. All officers shall hold office for one (1) year and until their successors are selected and qualified, unless otherwise specified by the Board;provided, however, that any officer shall be subject to removal at any time by the affirmative vote of a majority of the total number of Directors. The officers shall have such powers and shall perform such duties, executive or otherwise, as from time to time may be assigned to them by the Board and, to the extent not so assigned, as generally pertain to their respective offices, subject to the control of the Board.
Section 4.2.President. The President shall be the chief executive officer of the Corporation and shall have such other powers and shall perform such other duties as may be assigned by the Board.
Ex. B-12
Section 4.3.Vice President. The Vice President, or, if there be more than one (1), the Vice Presidents, in order of their seniority by designation (or if not designated, in order of their seniority of election), shall perform the duties of the President during the President’s absence or disability to act. The Vice Presidents shall have such other powers and shall perform such other duties as may be assigned by the Board or the Executive Committee.
Section 4.4.Secretary. The Secretary shall issue notices of all meetings for which notice is required to be given, shall keep the minutes thereof, shall have charge of the corporate seal and corporate record books, shall cause to be prepared for each meeting of Stockholders the list of Stockholders referred to in Section 2.7, and shall have such other powers and shall perform such other duties as may be assigned by the Board or the Executive Committee.
Section 4.5.Treasurer. The Treasurer shall have the custody of all moneys and securities of the Corporation, and shall keep adequate and correct accounts of the Corporation’s business transactions, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, statutory capital, and shares. The funds of the Corporation shall be deposited in the name of the Corporation by the Treasurer in such depositories as the Board may from time to time designate. The Treasurer shall have such other powers and shall perform such other duties as may be assigned by the Board or the Executive Committee.
Section 4.6.Assistant Secretary. The Assistant Secretary shall perform all the duties of the Secretary in case of the absence or disability of the Secretary, and shall have such other powers and shall perform such other duties as may be assigned by the Board or the Executive Committee.
Section 4.7.Assistant Treasurer. The Assistant Treasurer shall perform all the duties of the Treasurer in case of the absence or disability of the Treasurer, and shall have such other powers and shall perform such other duties as may be assigned by the Board or the Executive Committee.
Section 4.8.Other Officers. Other officers of the Corporation shall have such powers and shall perform such duties as may be assigned by the Board or the Executive Committee.
Section 4.9.Authority to Sign. Except as otherwise specifically provided by the Board or the Executive Committee, checks, notes, drafts, contracts, and other instruments authorized by the Board or the Executive Committee may be executed and delivered in the name and on behalf of the Corporation by the Chairman, the President, a Vice President, the Secretary, an Assistant Secretary, the Treasurer, or an Assistant Treasurer.
ARTICLE 5. STOCK
Section 5.1. Certificates. Shares of Stock shall be represented by certificates,provided that the Board may provide by resolution that some or all of any or all classes or series of Stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation. Every holder of record of Stock represented by certificates shall be entitled to have a certificate signed by or in the name of the Corporation by the Chairman or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, certifying the number of shares of Stock owned by such holder. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.
Ex. B-13
Section 5.2.Lost, Stolen, or Destroyed Stock Certificates; Issuance of New Certificates. The Corporation may issue a new certificate of Stock in the place of any certificate theretofore issued by it and alleged to have been lost, stolen, or destroyed, and the Corporation may require the owner of the lost, stolen, or destroyed certificate, or such owner’s legal representative, to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft, or destruction of any such certificate or the issuance of such new certificate.
ARTICLE 6. MISCELLANEOUS
Section 6.1.Seal. The corporate seal shall have the name of the Corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board.
Section 6.2.Fiscal Year. The fiscal year of the Corporation shall be determined by resolution of the Board.
Section 6.3.Waiver of Notice of Meetings of Stockholders, Directors, and Committees. Any waiver of notice given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, and does object, at the beginning of such meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the Stockholders, Directors, or members of a committee of the Board need be specified in a waiver of notice.
ARTICLE 7. CONSTRUCTION AND DEFINED TERMS
Section 7.1.Construction. As appropriate in context, whenever the singular number is used in these Bylaws, the same includes the plural, and whenever the plural number is used in these Bylaws, the same includes the singular. As used in these Bylaws, each of the neuter, masculine, and feminine genders includes the other two genders. As used in these Bylaws, “include,” “includes,” and “including” shall be deemed to be followed by “without limitation”.
Section 7.2.Defined Terms. As used in these Bylaws,
“Board” means the board of directors of the Corporation.
“Bylaws” means these bylaws of the Corporation, as the same may be amended from time to time.
“Certificate of Incorporation” means the Certificate of Incorporation of the Corporation, as the same may be amended from time to time.
“Common Stock” means the common stock of the Corporation, par value Ten Cents ($0.10) per share.
Ex. B-14
“Corporation” means GenCorp Inc.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“DGCL” means the General Corporation Law of the State of Delaware, as the same may be amended from time to time.
“Director” means a member of the Board.
“Stock” means the authorized capital stock of the Corporation.
“Stockholder” means a holder of record of shares of Stock. For the avoidance of doubt, the existence of treasury shares of Stock shall not cause the Corporation to be a Stockholder.
Ex. B-15
Exhibit C to Appendix A
INDEMNIFICATION AGREEMENT
THIS AGREEMENT (the “Agreement”) is made this day of 2014 by and between GenCorp, Inc., a Delaware corporation (“GenCorp”), and (“Indemnitee”).
RECITALS
WHEREAS, Indemnitee is a [director/officer] of GenCorp; and
WHEREAS, it is in the best interests of GenCorp and its stockholders that Indemnitee continue in Indemnitee’s service to GenCorp as such [director/officer], and that Indemnitee be insulated from the litigation risks associated with such service as permitted under Delaware law and the Certificate of Incorporation of GenCorp (the “Certificate of Incorporation”); and
WHEREAS, to induce Indemnitee to continue in such service, GenCorp wishes to provide, pursuant to Section 145(f) of the General Corporation Law of the State of Delaware (the “DGCL”) and Paragraph (C) of Article Eighth of the Certificate of Incorporation, the indemnification and other rights set forth herein, in addition to and independent of any such rights that Indemnitee may have under the DGCL, the Certificate of Incorporation, the Bylaws of GenCorp (the “Bylaws”), or otherwise (subject, however, to Section 14 of this Agreement),
NOW, THEREFORE, GenCorp and Indemnitee, for and in consideration of the mutual promises and covenants set forth herein and intending to be legally bound hereby, agree as follows:
1.Indemnification. If Indemnitee was or is made a party to, threatened to be made a party to, or involved as a party, witness, or otherwise in any action, suit, or proceeding, whether civil, criminal, administrative, or investigative, by reason of the fact that Indemnitee is or was a director or officer of GenCorp (any such action, suit, or proceeding, a “Proceeding”), Indemnitee shall be indemnified and held harmless by GenCorp against all expense, liability, and loss (including attorneys’ fees, judgments, fines, other expenses and losses, amounts paid or to be paid in settlement, and excise taxes or penalties arising under the Employee Retirement Income Security Act of 1974) (all such expense, liability, and loss, “Losses”) reasonably incurred or suffered by Indemnitee in connection therewith, and such indemnification shall continue as to Indemnitee after Indemnitee shall have ceased to be such director or officer of GenCorp, and shall inure to the benefit of Indemnitee’s heirs, executors, and administrators.
2.Advance Indemnification. GenCorp shall pay to or on behalf of Indemnitee the expenses (including attorneys’ fees) incurred by Indemnitee in any Proceeding, in advance of its final disposition, upon GenCorp’s receipt from or on behalf of Indemnitee of reasonable evidence of such expenses, together with a written undertaking by Indemnitee to repay all amounts so advanced if it shall ultimately be determined by a final, non-appealable order of a court of competent jurisdiction that Indemnitee is not entitled to be indemnified under this Agreement. If, and to the extent that, such ultimate determination is made, GenCorp shall be entitled to reimbursement by Indemnitee of any amounts paid in advance toward such indemnification pursuant to this Section 2.
3.Limitation. The indemnification rights afforded by this Agreement are intended to provide for indemnification, including advance indemnification, of Indemnitee by GenCorp to the fullest extent permitted by the DGCL;provided, however, that except as provided in Section 5 of this Agreement, GenCorp shall indemnify Indemnitee in connection with a proceeding (or part thereof) initiated by Indemnitee only if such proceeding (or part thereof) was authorized by the board of directors of GenCorp.
4.Subrogation. In the event and to the extent that Indemnitee receives indemnification or advance indemnification hereunder, (a) GenCorp shall be subrogated, to the fullest extent permitted by Delaware law, to any right of action that Indemnitee may have against any third person respecting the loss so indemnified or the expenses so advanced, and (b) Indemnitee shall hold in trust for, and pay to, GenCorp any amounts that Indemnitee may recover in damages or settlement from any third person respecting the loss so indemnified or the expenses so advanced.
Ex. C-1
5.Right to Bring Action. If an amount due under Section 1 or 2 of this Agreement is not paid in full by GenCorp within sixty (60) days (or, in the case of an amount due under Section 2, within twenty (20) days) after a written claim, together with reasonable evidence as to the amount of such claim and the written undertaking required under Section 2, if applicable, has been received by GenCorp, Indemnitee may at any time thereafter bring suit against GenCorp to recover the unpaid amount of the claim, and Indemnitee shall also be entitled to be paid the expense, including reasonable attorneys’ fees, of prosecuting such suit. In any suit brought by Indemnitee to enforce a right to indemnification or to advance indemnification under this Agreement, or by GenCorp to enforce a right to reimbursement of advanced amounts under this Agreement, the burden of proving that Indemnitee is not entitled to such indemnification or advance indemnification shall be on GenCorp.
6.Non-Exclusivity. The rights provided to Indemnitee in Sections 1, 2, and 3 of this Agreement shall supplement, and not supersede or supplant, (a) any insurance that GenCorp may have heretofore purchased and maintained on behalf of Indemnitee or may later purchase and maintain on behalf of Indemnitee, or (b) any right to indemnification or advance indemnification under the Certificate of Incorporation or Bylaws, or any statute or agreement, or otherwise, but only insofar as the Certificate of Incorporation, the Bylaws, such statute or agreement, or such other source may provide broader indemnification or advance indemnification rights than are provided herein.
7.Non-Assignment. This Agreement and the parties’ obligations hereunder are non-assignable and non-transferable by either party without the prior written consent of the other party.
8.Governing Law. This Agreement shall be construed and enforced in accordance with, and governed by, the laws of the State of Delaware without regard to principles of conflict of laws to the extent that such principles would cause the laws of any other jurisdiction to apply.
9.Consent to Jurisdiction; Service of Process. Each of the parties consents to the personal jurisdiction of, and the laying of venue in, the courts of the State of Delaware, as to any action or proceeding relating to the enforcement, interpretation, or validity of this Agreement. Each of the parties hereby consents that, in any such action or proceeding, process may be validly served upon such party by delivery in person, by certified mail, return receipt requested, or by Federal Express or a comparable overnight delivery service providing a record of receipt, in each case to the address set forth in Section 10 of this Agreement.
10.Notices.
(a) Any written notice, offer, demand, claim, undertaking, invoice, or communication required or permitted to be given or submitted under any provision of this Agreement shall be deemed to have been given or submitted only if (i) personally delivered; (ii) mailed by certified mail, return receipt requested; or (iii) sent by Federal Express or a comparable overnight delivery service providing a record of receipt, in each case to the party’s address as set forth below:
If to Indemnitee:
If to GenCorp:
Ex. C-2
(b) Notices delivered personally or sent by overnight delivery shall be effective upon delivery. Notices mailed by certified mail, return receipt requested, shall be effective three (3) days after deposit with the United States Postal Service.
(c) Either party may change such party’s address for purposes of this Agreement by giving written notice of such change to the other party in the manner hereinbefore provided for the giving of notice.
11.Severability. If any covenant, condition, term, or provision of this Agreement is found to be illegal by a court of competent jurisdiction, or if the application thereof to any person or any circumstance shall to any extent be determined to be invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement, or the application of such covenant, condition, term, or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby but shall be valid and enforceable to the fullest extent permitted by law.
12.Survival. Each party agrees that such party’s obligations hereunder shall survive the termination of Indemnitee’s service as a director or officer of GenCorp.
13.Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document.
14.Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning its subject matter, and it replaces all earlier agreements between them, whether written or oral, concerning its subject matter.
15.Section Headings. The section headings in this Agreement are inserted for convenience only and do not define or limit the scope, extent, or intent of this Agreement or any of the provisions hereof.
IN WITNESS WHEREOF, each party has executed this Agreement effective as of the date and year first above written.
| | | INDEMNITEE
| Name:
| | GENCORP INC. | | | By: | | | Name: | | | Title: | | |
Ex. C-3
APPENDIX B
OHIO CERTIFICATE OF CONVERSION
B-1
Jon HustedOhio secretary of state180 East Broad Street, Suite 103 (ground floor) . Columbus, ohio 43215 Toll Free: (877) SOS-FILE (767-3453) Central Ohio: (614) 466-3910www.ohiosecretaryofstate.gov . busserv@ohiosecretaryofstate.govPlease return the approval certificate to:Name: GenCORP Inc. (Individual or Business Name)To the attention of:Christopher C. Cambria(If necessary)Address: P.O Box 537012City: SacramentoState: californiaZIP Code: 95853Phone Number:E-mail Address: Christopher C. Cambria@gencorp.comCheck here if you would like to receive important notices via e-mail from the Ohio Secretary of State’soffice regarding Business Services.Check here if you would like to be signed up for our Filing Notification System for the business entitybeing created or updated by filing this form. This is a free service provided to notify you via e-mail whenany document is filed on your business record.Type of Service Being Requested: (PLEASE CHECK ONE BOX BELOW) Regular Service: Only the filing fee listed on page one of the form is required and the filing will be processed in approximately 3-7 business days. The processing time may vary based on the volume of filings received by our office.Expedite Service 1: By including an Expedite fee of $100.00, in addition to the regular filing fee on page one of the form, the filing will be processed within 2 business days after it is received by our office. Expedite Service 2: By including an Expedite fee of $200.00, in addition to the regular filing fee on page one of the form, the filing will be processed within 1 business day after it is received by our office.This service is only available to walk-in customers who hand deliver the document to the Client Service Center. Expedite Service 3: By including an Expedite fee of $300.00, in addition to the regular filing fee on page one of the form, the filing will be processed within 4 hours after it is received by our office, if received by 1:00 p.m. This service is only available to walk-in customers who hand deliver the document to the Client Service Center. Preclearance Filing: For the purpose of advising as to the acceptability of the proposed filing, a form that is to be submitted at a later date for processing may be submitted for examination for a fee of $50.00. The Preclearance will be complete within 1-2 business days.
Form 700 Prescribed Jon Husted Ohio secretary of state Central Ohio: (614) 466-3910 Toll Free: (877) SOS-FILE (767-3453) www.ohiosecretaryofstate.gov. busserv@ohiosecretaryofstate.gov Makes checks payable to OhioSecretary of State Mail is form to one of the following: Regular Filing (nonexpedite) P.O. Box 1329 Columbus, OH4321 6 Expedite Filing (Two-business day processing time requires an additional $100.00). P.O. Box 1390 Columbus, OH 43216 Certificate for Conversion for Entities Converting Within or Off the Records of the Ohio Secretary of State Filing Fee: $125 (CHECK ONLY ONE (1) BOX) (1) Converting Within The Records of the Ohio (2) Converting Off The Records of the Ohio Se cretary of State Secretary of State (187-VXX) Name of the converting entity Jurisdiction of Formation Charter/Registration Number The converting entity is a: (Check Only (1) One Box) Domestic Corporation (For-Profitor Non profit) Partnership Foreign Corporation (For-Profit or Nonprofit) Domestic Limited Partnership Domestic Nonprofit Limited L iability Company Foreign Limited Partnership Foreign Nonprofit Limited Liability Company Domestic Limited Liability Partnership Domestic For-Profit Limited Liability Company Foreign Limited Liability Partnership Foreign For-Profit Limited Liability Company The converting entity here by states that it has complied with alllawsin the jurisdiction under which it exists and that those laws permit the conversion.
| | | | | Form 700 | | Page 1 of 5 | | Last Revised: 9/30/13 |
Name of the converted entity Jurisdiction of Formation The converted entity is a: (Check Only (1) One Box) Domestic Corporation (For-Profit) PartnershipForeign Corporation (For-Profit or Nonprofit) Domestic Limited Partnership Domestic Nonprofit Limited Liability Company Foreign Limited Partnership Foreign Nonprofit Limited Liability Company Domestic Limited Liability Partnership Domestic For-Profit Limited Liability Company Foreign Limited Liability Partnership Foreign For-Profit Limited Liability CompanyEffective Date (The conversion is effective upon the filing of this certificate or on a later date (Optional) specified in the certificate) Name and address of the person or entity that will provide a copy of the declaration of conversion upon written request. NameMailing AddressCity State Zip CodeRequired information that must accompany conversion certificate if box 2 is checkedIf the converting entity is a domestic or foreign entity that will not be licensed in Ohio, provide the name and address of the statutory agent upon whom any process, notice or demand may be served. Name of Statutory Agent Mailing Address City State Zip Code If the agent is an individual using a P.O. Box, check this box to confirm that the agent is an Ohio resident. See instructions for additional filing requirements if (1) the conversion creates a new domestic entity, (2) the converted entity is a foreign entity that desires to transact business in Ohio; or (3) if a domestic corporation or foreign corporation licensed in Ohio is the converting entity.
| | | | | Form 700 | | Page 2 of 5 | | Last Revised: 9/30/13 |
IN WITNESS WHEREOF, the conversion is authorized on behalf of the converting entity and that each person signing the certificate of conversion is authorized to do so. Required Must be signed by an authorized representative. SignatureBy (if applicable) Print Name Signature By (if applicable) Print Name SignatureBy (if applicable)Print Name
| | | | | Form 700 | | Page 3 of 5 | | Last Revised: 9/30/13 |
Complete the information in this section. AFFIDAVIT In lieu of dissolution releases from various governmental authorities. Name of Corporation The undersigned, being first duly sworn, declares that on the dates indicated below, each of the named state governmental agencies was advised IN WRITING of the scheduled date of filing of the Certificate and was advised IN WRITING of the acknowledgement by the corporation of the applicability of the provisions of section 1701.95 of the ORC. Agency Date Notified Agency Date Notified Ohio Bureau of Workers’ Ohio Job & Family Services Compensation Status and Liability Section 30 W. Spring Street Data Correspondence Control Columbus, Ohio 43215 Fax: 614-752-4811 Phone: 614-466-2319 *Only required for domestic for-profit corporations Overnight: Regular: P.O. Box 182413 P.O. Box 182413 Columbus, OH 43218-2413 Columbus, OH 43218-2413 Agency Date Notified The corporation is not required to pay or the Ohio Department of Taxation department of taxation has not assessed any Taxpayer Services Division/Tax Release Unit personal property tax.PO Box 182382 Columbus, OH 43218-2382 Dissolution@tax.state.oh.us *Complete this date notified field only if the corporation is a domestic non-profit corporation or foreign corporation. [see* note below] *Note: Domestic for-profit corporations must submit with this filing a Certificate of Tax Clearance issued by the Ohio Department of Taxation. Note: This affidavit must be signed by one or more persons executing the certificate or by an officer of the corporation. Signature Title Name Mailing Address Zip Code City State Acknowledged before me and subscribed in my presence on Date Seal Commission Expires Notary Public Date
| | | | | Form 700 | | Page 4 of 5 | | Last Revised: 9/30/13 |
AFFIDAVIT OF PERSONAL PROPERTY State of County of Name of Officer of Title of Officer Name of Corporation and that this affidavit is made in compliance with Section of the Ohio Revised Code. That above-named corporation: (Check one (1) of the following) Has no personal property in any county in OhioIs the type required to pay personal property taxes to state authorities only Has personal property in the following county (ies) Signature: Title:Acknowledged before me and subscribed in my presence on Date Seal Notary PublicExpiration date of Notary Public’s CommissionDate
| | | | | Form 700 | | Page 5 of 5 | | Last Revised: 9/30/13 |
Instructions for Certificate of Conversion For Entities Converting
WITHIN or OFF the Records of the Ohio Secretary of State
This form should be used to file a certificate of conversion to document that an entity converted “within (entities already on record with our office and remaining on record following the conversion filing)” or “off (entities already on record with our office who will no longer be on record following the conversion filing)” the records of the Ohio Secretary of State.
Converting Entity Information
Pursuant to Ohio Revised Code §§1701.811, 1705.381, 1776.72 and 1782.4310, the certificate of conversion must set forth the name of the converting entity, the jurisdiction of formation of the converting entity and the form of the converting entity. The authorized representative signing the certificate on behalf of the converting entity agrees that the converting entity has complied with all of the laws under which it exists and that the laws permit the conversion.
Converted Entity Information
You must state the name of the converted (resulting) entity, the converted entity’s jurisdiction of formation and the form of the converted entity.
Effective Date
The effective date of the conversion may be on or after the date of filing of the certificate pursuant to Ohio Revised Code §§1701.811, 1705.381, 1776.72 and 1782.4310. If no date is specified, the effective date will be the date of filing.
Name and Mailing Address
Please provide the name and mailing address of the person or entity that is to provide a copy of the declaration of conversion in response to any written request made by a shareholder, partner, or member of the converting entity.
Original Appointment of Statutory Agent and Acceptance of Appointment
Pursuant to Ohio Revised Code §§1701.811, 1705.381, 1776.72 and 1782.4310, if the converted entity is a foreign entity that will not be licensed in this state, a statutory agent must be appointed to accept service of process on behalf of the entity. The statutory agent must be one of the following: (1) an Ohio resident; (2) an Ohio corporation; or (3) a foreign corporation that is licensed to do business in Ohio. An individual agent using a P.O. Box address must check the appropriate box to confirm that he or she is an Ohio resident. If the agent is a foreign corporation, the corporation may need to satisfy additional requirements to serve as a statutory agent. (Please see Ohio Revised Code §§1701.07, 1702.06, 1705.06, 1776.07 or 1782.04 for more information).
Additional Requirements
Filing a New Domestic Business Entity (for conversions within records only)
Pursuant to Ohio Revised Code §§1701.811, 1705.381, 1776.72 and 1782.4310, if the conversion results in a new domestic corporation, limited liability company, limited partnership, or other partnership, any organizational document required to be filed to create that type of entity shall be filed with the certificate of conversion. There is no additional fee to file the organizational
document(s). | | | Form 700 | | Last Revised: 9/30/13 |
Filing for a Foreign License to Transact Business in Ohio (for conversions within records only)
If the converted entity is a foreign entity that desires to transact business in Ohio, the certificate of conversion shall be accompanied by the information required by division (B)(7), (8), (9), or (10) of section 1701.791, 1705.37, 1776.69 or 1782.432 of the Ohio Revised Code.
Requirements of Corporations (Domestic or Foreign) Converting Off the Records
If a foreign or domestic corporationlicensed in Ohio is a converting entity and the converted entity is not a foreign or domestic corporation to be licensed in Ohio, Ohio Revised Code §§1701.81 requires that additional information be submitted with the certificate.
A domestic corporation must provide the affidavits, receipts, certificates or other evidence required by Ohio Revised Code §§1701.86(H). A foreign corporation must submit the affidavits, receipts, certificates or other evidence required by Ohio Revised Code §§1703.17 (C) or (D) if they are the converting entity. The required affidavits are attached to this form for your convenience.
Additional Provisions
If the information you wish to provide for the record does not fit on the form, please attach additional provisions on a single-sided, 8 1/2 x 11 sheet(s) of paper.
Signature(s)
After completing all information on the filing form, please make sure that the form is signed by at least one authorized representative on behalf of the converting entity. By signing each authorized representative states that the conversion is authorized on behalf of the converting entity and that he or she is authorized to sign the certificate on behalf of the converting entity. Please include the title of each authorized representative beneath the signature line.
**Note: Our office cannot file or record a document that contains a social security number or tax identification number. Please do not enter a social security number or tax identification, in any format, on this form.
| | | Form 700 | | Last Revised: 9/30/13 |
APPENDIX C
CERTIFICATE OF CONVERSION
OF
GENCORP INC.
(an Ohio corporation)
to
GENCORP INC.
(a Delaware corporation)
Pursuant to Section 265 of the Delaware General Corporation Law
| 1) | The jurisdiction where the Non-Delaware Corporation first formed is Ohio. |
| 2) | The jurisdiction immediately prior to filing this Certificate of Conversion is Ohio. |
| 3) | The date the Non-Delaware Corporation first formed is September 24, 1915. |
| 4) | The name of the Non-Delaware Corporation immediately prior to filing this Certificate of Conversion isGenCorp Inc. |
| 5) | The name of the Corporation as set forth in the Certificate of Incorporation isGenCorp Inc. |
IN WITNESS WHEREOF, the undersigned, being duly authorized to sign on behalf of the converting Non-Delaware Corporation has executed this Certificate of Conversion on the day of [ ], 2014.
C-1
THIS VOTING INSTRUCTION CARD IS VALID ONLY WHEN SIGNED AND DATED. KEEP THIS PORTION FOR YOUR RECORDS DETACH AND RETURN THIS PORTION ONLY TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS: To vote by Internet 1) Read the Proxy Statement and have this card at hand. 2) Go to www.proxyvote.com 3) Follow the on-line instructions. To vote by Telephone 1) Read the Proxy Statement and have this card at hand. 2) Call toll-free at 1-800-690-6903 3) Follow the recorded instructions. To vote by Mail 1) Read the Proxy Statement. 2) Check the appropriate boxes on this card. 3) Sign, date and return the card in the enclosed envelope provided. If you vote by Internet or Telephone, please do not mail your card. FIDELITY INVESTMENTS P.O. BOX 9112 FARMINGDALE, NY 11735 2. To consider and approve the reincorporation of the company from the state of Ohio to the state of Delaware. NOTE: To consider and act on such other business as may properly be brought before the meeting or any adjournments or postponements thereof. 3. To consider and approve an advisory resolution regarding the compensation of GenCorp’s Named Executive Officers. 4. To ratify the appointment of PricewaterhouseCoopers LLP, an independent registered public accounting firm, as independent auditors of the company for the fiscal year ending November 30, 2014. M65022-Z62124 GENCORP INC. To withhold authority to vote for any individual nominee(s), mark “For All Except” and write the number(s) of the nominee(s) on the line below. 01) Thomas A. Corcoran 02) James R. Henderson 03) Warren G. Lichtenstein 04) David A. Lorber 05) Merrill A. McPeak 06) James H. Perry 07) Scott J. Seymour 08) Martin Turchin Please sign exactly as your name(s) appear(s) hereon. When signing as attorney, executor, administrator, or other fiduciary, please give full title as such. Joint owners should each sign personally. All holders must sign. If a corporation or partnership, please sign in full corporate or partnership name by authorized officer. For Against Abstain For All Withhold All For All Except 1. Election of Directors Nominees:
Signature [PLEASE SIGN WITHIN BOX] Date
Important Notice Regarding the Availability of Proxy Materials for the Annual Meeting: The Proxy Statement and Annual Report are available at www.proxyvote.com. Please fold and detach card at perforation before mailing M65023-Z62124 GENCORP INC. ANNUAL MEETING OF SHAREHOLDERS-MARCH 20, 2014 THIS INSTRUCTION CARD IS SOLICITED BY FIDELITY MANAGEMENT TRUST COMPANY ON BEHALF OF THE GENCORP INC. BOARD OF DIRECTORS As a participant in the GenCorp Retirement Savings Plan, you have the right to instruct Fidelity Management Trust Company, as trustee for the plan, to vote the shares of GenCorp attributable to your plan account as you have directed at the Annual Meeting of Shareholders to be held on March 20, 2014. Your voting instructions will be tabulated confidentially. Only Fidelity will have access to your individual voting instructions. Unless otherwise required by law, the shares attributable to your plan account will be voted as directed; if no direction is made, if the card is not signed, or if the card is not received by March 17, 2014, the shares attributable to your plan account will be voted in the same proportion as shares for which the trustee has received voting instructions.
GENCORP INC. REBECCA A. BAUER P.O. BOX 537012
SACRAMENTO, CA 95853-7012
1
Investor Address Line 1 Investor Address Line 2 Investor Address Line 3 1 1 OF Investor Address Line 4 Investor Address Line 5 John Sample 1234 ANYWHERE STREET 2 ANY CITY, ON A1A 1A1
VOTE BY INTERNET - www.proxyvote.com
Use the Internet to transmit your voting instructions and for electronic delivery of information up until 11:59 P.M. Eastern Time the day before the cut-off date or meeting date. Have your proxy card in hand when you access the web site and follow the instructions to obtain your records and to create an electronic voting instruction form.
ELECTRONIC DELIVERY OF FUTURE PROXY MATERIALS
If you would like to reduce the costs incurred by our company in mailing proxy materials, you can consent to receiving all future proxy statements, proxy cards and annual reports electronically via e-mail or the Internet. To sign up for electronic delivery, please follow the instructions above to vote using the Internet and, when prompted, indicate that you agree to receive or access proxy materials electronically in future years.
VOTE BY PHONE - 1-800-690-6903
Use any touch-tone telephone to transmit your voting instructions up until 11:59 P.M. Eastern Time the day before the cut-off date or meeting date. Have your proxy card in hand when you call and then follow the instructions.
VOTE BY MAIL
Mark, sign and date your proxy card and return it in the postage-paid envelope we have provided or return it to Vote Processing, c/o Broadridge, 51 Mercedes Way, Edgewood, NY 11717.
NAME
THE COMPANY NAME INC. - COMMON THE COMPANY NAME INC. - CLASS A THE COMPANY NAME INC. - CLASS B THE COMPANY NAME INC. - CLASS C THE COMPANY NAME INC. - CLASS D THE COMPANY NAME INC. - CLASS E THE COMPANY NAME INC. - CLASS F THE COMPANY NAME INC. - 401 K
CONTROL # 000000000000
SHARES 123,456,789,012.12345 123,456,789,012.12345 123,456,789,012.12345 123,456,789,012.12345 123,456,789,012.12345 123,456,789,012.12345 123,456,789,012.12345 123,456,789,012.12345
PAGE 1 OF 2
x
TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS:
KEEP THIS PORTION FOR YOUR RECORDS
DETACH AND RETURN THIS PORTION ONLY
THIS PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED.
The Board of Directors recommends you vote FOR the following:
1. Election of Directors
Nominees
01 Thomas A. Corcoran 02 James R. Henderson 03 Warren G. Lichtenstein 04 David A. Lorber 05 Merrill A. McPeak
06 James H. Perry 07 Scott J. Seymour 08 Martin Turchin
The Board of Directors recommends you vote FOR proposals 2, 3 and 4.
2 To consider and approve the reincorporation of the company from the State of Ohio to the State of Delaware.
3 To consider and approve an advisory resolution regarding the compensation of GenCorp’s Named Executive Officers.
4 To ratify the appointment of PricewaterhouseCoopers LLP, an independent registered public accounting firm, as independent auditors of the company for the fiscal year ending November 30, 2014.
NOTE: To consider and act on such other business as may properly be brought before the meeting or any adjournments or postponements thereof.
For Withhold For All All All Except
0 0 0
To withhold authority to vote for any individual nominee(s), mark “For All Except” and write the number(s) of the nominee(s) on the line below.
For Against Abstain
0 0 0 0 0 0 0 0 0
0000189646_1 R1.0.0.51160
Please sign exactly as your name(s) appear(s) hereon. When signing as attorney, executor, administrator, or other fiduciary, please give full title as such. Joint owners should each sign personally. All holders must sign. If a corporation or partnership, please sign in full corporate or partnership name, by authorized officer.
Signature [PLEASE SIGN WITHIN BOX] Date
JOB #
Signature (Joint Owners) Date
SHARES CUSIP # SEQUENCE #
Important Notice Regarding the Availability of Proxy Materials for the Annual Meeting: The Notice & Proxy Statement, Annual Report 10-K Wrap is/are available at www.proxyvote.com .
GENCORP INC.
PROXY FOR HOLDERS OF COMMON STOCK SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned hereby appoints Kathleen E. Redd and Christopher C. Cambria, and each of them, his or her proxy, with the power of substitution, to vote all shares of Common Stock of GenCorp which the undersigned is entitled to vote at the annual meeting of shareholders to be held at the Omni Berkshire Place, 21 East 52nd Street, New York, New York on March 20, 2014 at 9:00 a.m. local time, and at any adjournments or postponements thereof, and appoints the proxyholders to vote as directed below and in accordance with their sole judgment on matters incident to the conduct of the meeting and on such other matters as may properly come before the meeting.
THE SHARES REPRESENTED BY THIS PROXY WILL BE VOTED AS DIRECTED BY THE SHAREHOLDER. IF NO CONTRARY DIRECTION IS GIVEN WHEN THE DULY EXECUTED PROXY IS RETURNED, SUCH SHARES WILL BE VOTED FOR ALL OF THE BOARD’S NOMINEES IN PROPOSAL 1; FOR PROPOSALS 2,
3 AND 4, AND IN ACCORDANCE WITH THE PROXYHOLDERS’ SOLE JUDGMENT ON MATTERS
INCIDENT TO THE CONDUCT OF THE MEETING AND ON SUCH OTHER MATTERS AS MAY PROPERLY COME BEFORE THE MEETING.
Continued and to be signed on reverse side
0000189646_2 R1.0.0.51160
GENCORP INC. REBECCA A. BAUER P.O. BOX 537012
SACRAMENTO, CA 95853-7012
1
Investor Address Line 1 Investor Address Line 2 Investor Address Line 3 1 1 OF Investor Address Line 4 Investor Address Line 5 John Sample 1234 ANYWHERE STREET 2 ANY CITY, ON A1A 1A1
VOTE BY INTERNET - www.proxyvote.com
Use the Internet to transmit your voting instructions and for electronic delivery of information up until 11:59 P.M. Eastern Time the day before the cut-off date or meeting date. Have your proxy card in hand when you access the web site and follow the instructions to obtain your records and to create an electronic voting instruction form.
ELECTRONIC DELIVERY OF FUTURE PROXY MATERIALS
If you would like to reduce the costs incurred by our company in mailing proxy materials, you can consent to receiving all future proxy statements, proxy cards and annual reports electronically via e-mail or the Internet. To sign up for electronic delivery, please follow the instructions above to vote using the Internet and, when prompted, indicate that you agree to receive or access proxy materials electronically in future years.
VOTE BY PHONE - 1-800-690-6903
Use any touch-tone telephone to transmit your voting instructions up until 11:59 P.M. Eastern Time the day before the cut-off date or meeting date. Have your proxy card in hand when you call and then follow the instructions.
VOTE BY MAIL
Mark, sign and date your proxy card and return it in the postage-paid envelope we have provided or return it to Vote Processing, c/o Broadridge, 51 Mercedes Way, Edgewood, NY 11717.
NAME
THE COMPANY NAME INC. - COMMON THE COMPANY NAME INC. - CLASS A THE COMPANY NAME INC. - CLASS B THE COMPANY NAME INC. - CLASS C THE COMPANY NAME INC. - CLASS D THE COMPANY NAME INC. - CLASS E THE COMPANY NAME INC. - CLASS F THE COMPANY NAME INC. - 401 K
CONTROL # 000000000000
SHARES 123,456,789,012.12345 123,456,789,012.12345 123,456,789,012.12345 123,456,789,012.12345 123,456,789,012.12345 123,456,789,012.12345 123,456,789,012.12345 123,456,789,012.12345
PAGE 1 OF 2
x
TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS:
KEEP THIS PORTION FOR YOUR RECORDS
DETACH AND RETURN THIS PORTION ONLY
THIS PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED.
The Board of Directors recommends you vote FOR the following:
1. Election of Directors
Nominees
01 Thomas A. Corcoran 02 James R. Henderson 03 Warren G. Lichtenstein 04 David A. Lorber 05 Merrill A. McPeak
06 James H. Perry 07 Scott J. Seymour 08 Martin Turchin
The Board of Directors recommends you vote FOR proposals 2, 3 and 4.
2 To consider and approve the reincorporation of the company from the State of Ohio to the State of Delaware.
3 To consider and approve an advisory resolution regarding the compensation of GenCorp’s Named Executive Officers.
4 To ratify the appointment of PricewaterhouseCoopers LLP, an independent registered public accounting firm, as independent auditors of the company for the fiscal year ending November 30, 2014.
NOTE: To consider and act on such other business as may properly be brought before the meeting or any adjournments or postponements thereof.
For Withhold For All All All Except
0 0 0
To withhold authority to vote for any individual nominee(s), mark “For All Except” and write the number(s) of the nominee(s) on the line below.
For Against Abstain
0 0 0 0 0 0 0 0 0
0000189646_1 R1.0.0.51160
Please sign exactly as your name(s) appear(s) hereon. When signing as attorney, executor, administrator, or other fiduciary, please give full title as such. Joint owners should each sign personally. All holders must sign. If a corporation or partnership, please sign in full corporate or partnership name, by authorized officer.
Signature [PLEASE SIGN WITHIN BOX] Date
JOB #
Signature (Joint Owners) Date
SHARES CUSIP # SEQUENCE #
Important Notice Regarding the Availability of Proxy Materials for the Annual Meeting: The Notice & Proxy Statement, Annual Report 10-K Wrap is/are available at www.proxyvote.com .
GENCORP INC.
PROXY FOR HOLDERS OF COMMON STOCK SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned hereby appoints Kathleen E. Redd and Christopher C. Cambria, and each of them, his or her proxy, with the power of substitution, to vote all shares of Common Stock of GenCorp which the undersigned is entitled to vote at the annual meeting of shareholders to be held at the Omni Berkshire Place, 21 East 52nd Street, New York, New York on March 20, 2014 at 9:00 a.m. local time, and at any adjournments or postponements thereof, and appoints the proxyholders to vote as directed below and in accordance with their sole judgment on matters incident to the conduct of the meeting and on such other matters as may properly come before the meeting.
THE SHARES REPRESENTED BY THIS PROXY WILL BE VOTED AS DIRECTED BY THE SHAREHOLDER. IF NO CONTRARY DIRECTION IS GIVEN WHEN THE DULY EXECUTED PROXY IS RETURNED, SUCH SHARES WILL BE VOTED FOR ALL OF THE BOARD’S NOMINEES IN PROPOSAL 1; FOR PROPOSALS 2,
3 AND 4, AND IN ACCORDANCE WITH THE PROXYHOLDERS’ SOLE JUDGMENT ON MATTERS
INCIDENT TO THE CONDUCT OF THE MEETING AND ON SUCH OTHER MATTERS AS MAY PROPERLY COME BEFORE THE MEETING.
Continued and to be signed on reverse side
0000189646_2 R1.0.0.51160
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