RESTATED CERTIFICATE OF INCORPORATION
OF
HELIX TECHNOLOGY CORPORATION
HELIX TECHNOLOGY CORPORATION, a corporation organized and existing
under the laws of the State of Delaware, hereby certifies as follows:
1. The name of the Corporation is HELIX TECHNOLOGY CORPORATION, and the
name under which the Corporation was originally incorporated is 500
INCORPORATED.
The date of filing its original Certificate of Incorporation with the
Secretary of State was March 30, 1967.
2. This Restated Certificate of Incorporation only restates and
integrates and does not further amend the provisions of the Certificate of
Incorporation of the Corporation as heretofore amended or supplemented and there
is no discrepancy between those provisions and the provisions of this Restated
Certificate of Incorporation.
3. The text of the Certificate of Incorporation, as amended or
supplemented, is hereby restated without further amendments or changes to read
as follows:
FIRST. The name of the Corporation is HELIX TECHNOLOGY CORPORATION.
SECOND. Its registered office in the State of Delaware is located at
No. 100 West Tenth Street, in the City of Wilmington, County of New Castle. The
name and address of its registered agent is The Corporation Trust Company, No.
100 West Tenth Street, Wilmington, Delaware.
THIRD. The nature of the business, or objects or purposes to be
transacted, promoted or carried on are:
To engage in the manufacture, sale and other disposition of devices
for the production of refrigeration and/or the liquefication or solidifaction of
gases for the purification of gases, for the production and maintenance of high
vacuums, and for the production of extremely high temperatures for scientific
and technical purposes, including the growing of crystals. To engage in the
manufacture and sale of scientific and technical equipment, and the purchase or
manufacture and sale of accessory materials, equipment and supplies. To
undertake, the installation and trial operation of such devices and the
instruction of others in the operation of such devices and to perform other
professional and technical services.
To engage in engineering, research and development for its own account
or for the account of others in any field of science or knowledge pure or
applied.
To carry on a general manufacturing and merchandising business and any
business incidental thereto or in any way connected therewith, including, but
without limiting the generality of the foregoing purpose, the trade or business
of preparing, processing, producing, manufacturing, adapting, synthesizing,
forming, treating, finishing, converting, experimenting, testing, and otherwise
acquiring, owning, holding, consuming, disposing of and dealing in and with
interests in metals, minerals, and other materials, substances or compounds, or
combinations thereof, organic and inorganic, natural or artificial, and the
invention, design and fabrication of tools, apparatus and equipment employing or
useful for the employing of any such materials, and any and all other goods,
articles, materials, equipment, compounds or substances required for, or
convenient in connection with or incidental to any of the foregoing; and any
other trade or business which can conveniently be carried on in conjunction with
any of the matters or purposes aforesaid or in or upon the premises of the
corporation.
To acquire, hold, use, sell, assign, lease, grant licenses in respect
of mortgage or otherwise dispose of letters patent of the United States or any
foreign country, patent rights, licenses and privileges, formulas, inventions,
improvements and processes, trade secrets, trademarks and trade names relating
to or useful in connection with any business of the corporation.
In general, to carry on any or all of the business of the corporation
as principal, agent or contractor, and to carry on any other business incidental
to and in connection with the foregoing and to have and exercise all the powers
conferred by laws of Delaware upon corporations formed under the Corporation
Laws of the State of Delaware.
FOURTH.
(a) The total number of shares of stock which the corporation is
authorized to issue is 7,000,000, of which 5,000,000 shares shall be common
stock, par value of $1 per share ("Common Stock") and 2,000,000 shall be
preferred stock, par value $1 per share ("Preferred Stock").
(b) Preferred Stock may be issued, from time to time, by the Board of
Directors as herein provided, in one or more series. The designations, relative
rights, preferences and limitations of the Preferred Stock, and particularly of
the shares of each series thereof, may be similar to or may differ from those of
any other series. The Board of Directors of the corporation is hereby expressly
granted authority, subject to the provisions of this Article FOURTH, to divide
and issue, from time to time, any or all of the Preferred Stock in one or more
series and to fix, from time to time, before issuance thereof, by filing a
certificate pursuant to the General Corporation Law of the State of Delaware,
the number of shares in each such series of such class and all designations,
relative rights (including the right to convert into shares of any class or into
shares of any series of any class), preferences and limitations of the shares in
each such series, including but without limiting the generality of the
foregoing, the following:
(i) The number of shares to constitute such series (which
number may at any time, or from time to time, be
increased or decreased by the Board of Directors,
notwithstanding that shares of the series may be
outstanding at the time of such increase or decrease,
unless the Board of Directors shall have otherwise
provided in creating such series, but shall only be
decreased to a number not less than that of the
shares of such series then outstanding) and the
designation thereof;
(ii) The dividend rate or rates on the shares of such
series and any restrictions, limitations or
conditions upon the payment of such dividends, and
whether or not dividends on the shares of such series
shall be cumulative, and the date or dates, if any,
from which dividends thereon shall cumulate and the
dates on which dividends, if declared, shall be
payable;
(iii) Whether or not the shares of such series shall be
redeemable, and, if redeemable, the date or dates
upon which or after which they shall be redeemable,
the amount or amounts per share payable thereon in
the case of the redemption thereof, which amount may
vary at different redemption dates or otherwise as
permitted by law, and the other terms and conditions
on which the shares may be redeemed;
(iv) The rights, if any, of holders of such series to
convert the same into, or exchange the same for
Common Stock or other stock as permitted by law, and
the price or prices or the rate or rates of
conversion and the other terms and conditions, if
any, of such conversion or exchange, as well as
provisions for adjustment of the price or conversion
rate in such events as the Board of Directors shall
determine;
(v) The amount per share payable on the shares of such
series in the event of voluntary or involuntary
liquidation, dissolution or winding up of the
corporation;
(vi) Whether the shares of such series shall be subject to
the operation of a purchase, retirement or sinking
fund and, if so, the terms and conditions thereof;
(vii) Whether the holders of shares of such series shall
have voting power, full or limited, in addition to
the voting powers provided by law, and in case
additional voting powers are accorded, to fix the
extent thereof; and
(viii) Generally to fix the other rights and privileges and
any qualifications, limitations or restrictions of
such rights and privileges of such series, provided,
however, that no such rights, privileges,
qualifications, limitations or restrictions shall be
in conflict with the Certificate of Incorporation of
the corporation or with the resolution or resolutions
adopted by the Board of Directors, as hereinabove
provided, providing for the issue of any series for
which there are shares then outstanding.
All shares of Preferred Stock of the same series shall be identical in
all respects, except that shares of any one series issued at different times may
differ as to dates, if any, from which dividends thereon may accumulate. All
shares of Preferred Stock of all series shall be of equal rank and shall be
identical in all respects except that to the extent not otherwise limited in
this Article FOURTH any series may differ from any other series with respect to
any one or more of the designations, relative rights, preferences and
limitations (including, without limitation, the designations, relative rights,
preferences and limitations described or referred to in subparagraphs (i) to
(viii) inclusive above) which may be fixed by the Board of Directors pursuant to
this subparagraph (b).
(c) The Board of Directors adopted a resolution on June 5, 1978 as
follows:
RESOLVED, that there be and hereby is established and created a series
of preferred stock of the corporation consisting of 200,000 shares having the
following designation, voting powers, relative rights, preferences and
limitations:
1. Designation. Such series shall be designated "$.70 Cumulative Convertible
Preferred Stock" (herein referred to as "$.70 Preferred Stock"). The number of
shares of such series which may be issued shall be 200,000.
2. Cumulative Dividend Rights; Restrictions on Parity Stock Payments and Junior
Stock Payments.
2.1. Cumulative Dividend Rights. The holders of the $.70 Preferred
Stock shall be entitled to receive, when and as declared by the Board of
Directors, out of funds legally available for the purpose, cumulative cash
dividends at the rate of $.70 per share per annum, payable quarterly on January
15, April 15, July 15 and October 15 in each year. Dividends on the $.70
Preferred Stock shall be cumulative from the dividend payment date next
preceding the date on which the $.70 Preferred Stock is issued. Accumulations of
dividends shall not bear interest.
2.2. Restrictions on Parity Stock Payments and Junior Stock Payments.
So long as any of the $.70 Preferred Stock is outstanding, the corporation shall
not at any time directly or indirectly declare, order, pay, make or set apart
any sum or property for any Parity Stock Payment or Junior Stock Payment,
unless, in each case,
(a) Full Cumulative Dividends on the $.70 Preferred Stock for
all past Dividend Periods and for the then current Dividend Period
shall have been declared and paid or a sum in cash sufficient for the
payment thereof set apart for payment; and
(b) the full amount of all redemptions then and therefore
required to be made in respect of the $.70 Preferred Stock pursuant to
sections 4.1 and 4.3 hereof shall have been made.
3. Liquidation Rights.
3.1. Liquidations Preferences. In the event of any liquidation,
dissolution or winding up of the corporation, before any payment or distribution
of the assets of the corporation (whether capital or surplus) shall be made to
or set apart for the holders of any Junior Stock, the holders of the $.70
Preferred Stock shall be entitled to the payment in cash of $10.00 per share if
such liquidation, dissolution or winding up shall be involuntary, or $15.00 per
share if such liquidation, dissolution or winding up shall be voluntary,
together in each case with a sum equal to Full Cumulative Dividends thereon to
the date of final distribution to the holders of the $.70 Preferred Stock.
3.2. Distribution on Liquidation. If, upon any such liquidation
dissolution or winding up, the assets of the corporation distributable among the
holders of the $.70 Preferred Stock shall be insufficient to pay to them in full
the preferential amounts specified above, then such assets, or the proceeds
thereof, shall be distributed among the holders of the $.70 Preferred Stock
ratably in proportion to the amounts which would be payable to them,
respectively, if such preferential amounts were paid to them in full.
4. Required and Optional Redemptions.
4.1. Required Redemptions. On June 1, 1989 and on each June 1
thereafter until all of the $.70 Preferred Stock shall have been redeemed, the
corporation shall redeem the number of shares of the $.70 Preferred Stock
specified in the following table (subject, however, to the provisions of section
4.3 hereof), upon the payment in cash of an amount equal to $10.00 per share,
together with a sum equal to Full Cumulative Dividends on the $.70 Preferred
Stock being redeemed to the date of redemption:
Number of Shares
Date of Redemption to be Redeemed
June 1, 1989 45,000
June 1, 1990 40,000
June 1, 1991 40,000
June 1, 1992 40,000
June 1, 1993 All shares then remaining outstanding.
No redemption of less than all of the outstanding shares of the $.70 Preferred
Stock pursuant to section 4.2 hereof, and no redemption pursuant to section 4.3
hereof of a larger number of shares than that specified in this section 4.1,
shall be credited to, or otherwise relieve the corporation of its obligation to
make, the redemptions provided for in this section 4.1.
4.2. Optional Redemptions. At any time or from time to time after
November 30, 1981 the corporation may, at its option, upon notice as provided in
section 4.4 hereof, and subject to the provisions of section 4.3 hereof, redeem
any (a multiple of 100 shares and a minimum of 1,000 shares) or all of the
shares of the $.70 Preferred Stock then outstanding, upon the payment in cash of
an amount equal to $10.00 per share, together with a sum equal to Full
Cumulative Dividends on the $.70 Preferred Stock being redeemed to the date of
redemption, provided that the corporation shall not redeem any shares of the
$.70 Preferred Stock under this section 4.2 if the holder thereof shall elect to
convert the same in accordance with section 5 hereof, and provided, further,
that no redemption may be made under this section 4.2 unless
(a) the Market Price of the corporation's Common Stock on each
trading day during the period of 45 consecutive days immediately
preceding the date fixed for such redemption shall have been at least
equal to 150% of the Conversion Price (computed in accordance with
section 5 hereof) in effect as of the close of business on the last
full business day next preceding such date, and
(b) on the date fixed for such redemption the shares of Common
Stock issuable upon conversion pursuant to section 5 hereof of the $.70
Preferred Stock to be so redeemed shall have been registered under the
Securities Act, at the expense of the corporation, pursuant to section
10.5 of the Purchase Agreements dated May 31, 1978 between the
corporation and certain institutional investors relating to the $.70
Preferred Stock (the "Purchase Agreements"), and such registration
shall be effective, to the extent requisite to permit the disposition
of such shares of Common Stock in accordance with the intended methods
of disposition thereof referred to in said section 10.5;
provided that the requirements of the foregoing clause (b) shall not be
applicable if on the date fixed for such redemption such disposition of such
shares of Common Stock may be made by the holders of such $.70 Preferred Stock
without registration pursuant to section 10.4(i) or section 10.10 of the
Purchase Agreements. As used in the foregoing clause (b), the term "Securities
Act" shall have the meaning specified in section 10.2 of the Purchase
Agreements.
4.3. Additional Redemptions. Notwithstanding any other provision
hereof, if Section 302(b)(2) of the Internal Revenue Code as in effect on April
15, 1978 (or any similar provision of the tax laws of the United States of
America in effect thereafter) shall not be applicable to any redemption required
by section 4.1 or to any redemption proposed to be made under section 4.2, the
corporation shall, at the time of such redemption, concurrently redeem such
additional number of shares of the $.70 Preferred Stock as shall, in the opinion
of the firm of independent public accountants referred to below, be required so
that said Section 302(b)(2) (or such similar provision) shall be applicable to
such redemption. The corporation shall furnish to each holder of the $.70
Preferred Stock, at least 30 days prior to the date fixed for any redemption
under section 4.1 or section 4.2, a certificate of its principal financial
officer certifying that said Section 302(b)(2) (or such similar provision) will
be applicable to such redemption and showing in reasonable detail all
computations required to demonstrate such applicability, together with a
certificate of a firm of independent public accountants of recognized national
standing selected by the corporation certifying to such applicability.
4.4. Notice of Optional Redemptions. In the case of each optional
redemption under section 4.2 hereof, the corporation shall give written notice
thereof to each holder of the $.70 Preferred Stock not less than 30 nor more
than 60 days prior to the date fixed for such redemption, in each case
specifying such date, the aggregate number of shares of the $.70 Preferred Stock
to be redeemed on such date and the number of shares of $.70 Preferred Stock
held by such holder to be redeemed on such date. Such notice shall be given by
delivering or mailing the same to each such holder at the address of such holder
as it appears on the corporation's stock records.
4.5. Allocation of Partial Redemptions. If less than all of the
outstanding shares of the $.70 Preferred Stock are to be redeemed pursuant to
sections 4.1, 4.2 or 4.3 hereof, the shares of the $.70 Preferred Stock to be
redeemed shall be allocated in whole shares among all of the holders ratably in
proportion, as nearly as practicable, to the respective numbers of shares held
by such holders, with adjustments, to the extent practicable, to compensate for
any prior redemptions not allocated exactly in such proportion.
4.6. Effect of Redemption. Upon the date fixed for any redemption of
the $.70 Preferred Stock, and upon payment by the corporation of the amounts
payable on redemption as provided herein, all shares of the $.70 Preferred Stock
redeemed shall be deemed to be no longer outstanding for any purpose, whether or
not the certificates for such shares shall have been surrendered for
cancellation, and all rights with respect to such shares shall thereupon cease,
except only the right of the holders of such shares to receive the amounts
payable upon the redemption thereof. All shares of the $.70 Preferred Stock
redeemed by the corporation shall be retired and cancelled and shall not be
reissued.
5. Conversion.
5.1. Conversion Privilege. Any shares of the $.70 Preferred Stock may,
at the election of the holder thereof, at any time prior to the close of
business on May 31, 1993 be converted, at the conversion price per share of
Common Stock of $8.50, as adjusted and readjusted from time to time in
accordance with section 5.4 hereof (such conversion price, as so adjusted and
readjusted and in effect at any time, being herein called the "Conversion
Price"), into the number of fully paid and non assessable shares of Common Stock
determined by dividing (a) the aggregate par value of the shares of the $.70
Preferred Stock to be so converted, multiplied by 10, by (b) the Conversion
Price in effect at the time of such conversion.
5.2. Manner of Conversion, etc. The certificate or certificates for any
shares of the $.70 Preferred Stock to be converted shall be surrendered at the
office or agency maintained for such purpose pursuant to section 5.9 hereof,
duly endorsed, or accompanied by proper instruments of transfer, to the
corporation or in blank, and accompanied by written notice to the corporation of
the holder's election to make such conversion and of the name or names in which
the certificate or certificates for shares of Common Stock are to be issued. The
right to convert any shares of the $.70 Preferred Stock called for redemption
shall terminate at the close of business on the last full business day next
preceding the date fixed for such redemption. Upon conversion of any shares of
the $.70 Preferred Stock, the corporation shall pay to the holder thereof a sum
equal to Full Cumulative Dividends thereon to the date of conversion. Each
conversion shall be deemed to have been effected as of the close of business on
the date on which such certificate or certificates shall have been so
surrendered to such agency, and at such time the rights of the holder of $.70
Preferred Stock as such shall, to the extent of the number of shares thereof
converted, cease, and the person or persons in whose name or names any
certificate or certificates for shares of Common Stock shall be issuable upon
such conversion shall be deemed to have become the holder or holders of record
thereof.
5.3. Delivery of Stock Certificates; Fractional Shares. As promptly as
practicable after the conversion of any $.70 Preferred Stock, and in any event
within 20 days thereafter, the corporation at its expense (including the payment
by it of any applicable issue taxes) will issue and deliver to the holder of
such $.70 Preferred Stock, or as such holder (upon payment by such holder of any
applicable transfer taxes) may direct, a certificate or certificates for the
number of full shares of Common Stock issuable upon such conversion, plus, in
lieu of any fractional share to which such holder would otherwise be entitled,
cash equal to such fraction multiplied by the then current Market Price of one
full share, determined as provided in clause (viii) of subdivision (b) of
section 5.4 hereof.
5.4. Adjustment of Conversion Price for Diluting Issues, Distributions.
(a) Adjustment for Sales Below Conversion Price, etc. If and
whenever after April 15, 1978 the corporation shall issue or sell any shares of
its Common Stock for a consideration per share less than the Conversion Price in
effect immediately prior to the time of such issue or sale, and/or the
corporation shall issue or sell any shares of its Common Stock (except on
conversion of $.70 Preferred Stock) for a consideration per share less than the
Market Price on the date of such issue or sale, then, forthwith upon such issue
or sale, the Conversion Price shall be reduced to the lower of the prices
(calculated to the nearest cent) determined as follows:
(i) by dividing (A) an amount equal to the sum of (1)
the number of shares of Common Stock outstanding immediately
prior to such issue or sale multiplied by the then existing
Conversion Price, and (2) the consideration, if any, received
by the corporation upon such issue or sale, by (B) the total
number of shares of Common Stock outstanding immediately after
such issue or sale; and
(ii) by multiplying the Conversion Price in effect
immediately prior to the time of such issue or sale by a
fraction, the numerator of which shall be the sum of (A) the
number of shares of Common Stock outstanding immediately prior
to such issue or sale multiplied by the Market Price
immediately prior to such issue or sale plus (B) the
consideration received by the corporation upon such issue or
sale, and the denominator of which shall be the product of (C)
the total number of shares of Common Stock outstanding
immediately after such issue or sale, multiplied by (D) the
Market Price immediately prior to such issue or sale.
(b) For the purposes of subdivision (a) above, the following
clauses (i) to (x), inclusive, shall also be applicable:
(i) Issuance of Rights or Options. In case at any
time the corporation shall grant (whether directly or by
assumption in a merger or otherwise) any rights to subscribe
for or to purchase, or any options for the purchase of, Common
Stock or any stock or securities convertible into or
exchangeable for Common Stock (such convertible or
exchangeable stock or securities being herein called
"Convertible Securities") whether or not such rights or
options or the right to convert or exchange any such
Convertible Securities are immediately exercisable, and the
price per share for which Common Stock is issuable upon the
exercise of such rights or options or upon conversion or
exchange of such Convertible Securities (determined by
dividing (A) the total amount, if any, received or receivable
by the corporation as consideration for the granting of such
rights or options, plus the minimum aggregate amount of
additional consideration payable to the corporation upon the
exercise of all such rights or options, plus, in the case of
such rights or options which relate to Convertible Securities,
the minimum aggregate amount of additional consideration, if
any, payable upon the issue or sale of such Convertible
Securities and upon the conversion or exchange thereof, by (B)
the total maximum number of shares of Common Stock issuable
upon the exercise of such rights or options or upon the
conversion or exchange of all such Convertible Securities
issuable upon the exercise of such rights or options) shall be
less than the Conversion Price in effect immediately prior to
the time of the granting of such rights or options (or less
than the Market Price, determined as of the date of granting
such rights or options, as the case may be), then the total
maximum number of shares of Common Stock issuable upon the
exercise of such rights or options or upon conversion or
exchange of the total maximum amount of such Convertible
Securities issuable upon the exercise of such rights or
options shall (as of the date of granting of such rights or
options) be deemed to be outstanding and to have been issued
for such price per share. Except as provided in clause (iii)
below, no further adjustments of the Conversion Price shall be
made upon the actual issue of such Common Stock or of such
Convertible Securities upon exercise of such rights or options
or upon the actual issue of such Common Stock upon conversion
or exchange of such Convertible Securities.
(ii) Issuance of Convertible Securities. In case the
corporation shall issue (whether directly or by assumption in
a merger or otherwise) or sell any Convertible Securities,
whether or not the rights to exchange or convert thereunder
are immediately exercisable, and the price per share for which
Common Stock is issuable upon such conversion or exchange
(determined by dividing (A) the total amount received or
receivable by the corporation as consideration for the issue
or sale of such Convertible Securities, plus the minimum
aggregate amount of additional consideration, if any, payable
to the corporation upon the conversion or exchange thereof, by
(B) the total maximum number of shares of Common Stock
issuable upon the conversion or exchange of all such
Convertible Securities) shall be less than the Conversion
Price in effect immediately prior to the time of such issue or
sale (or less than the Market Price, determined as of the date
of such issue or sale of such Convertible Securities, as the
case may be), then the total maximum number of shares of
Common Stock issuable upon conversion or exchange of all such
Convertible Securities shall (as of the date of the issue or
sale of such Convertible Securities) be deemed to be
outstanding and to have been issued for such price per share,
provided that (1) except as provided in clause (iii) below, no
further adjustments of the Conversion Price shall be made upon
the actual issue of such Common Stock upon conversion or
exchange of such Convertible Securities, and (2) if any such
issue or sale of such Convertible Securities is made upon
exercise of any rights to subscribe for or to purchase or any
option to purchase any such Convertible Securities for which
adjustments of the Conversion Price have been or are to be
made pursuant to other provisions of this subdivision (b), no
further adjustment of the Conversion Price shall be made by
reason of such issue or date.
(iii) Change in Option Price or Conversion Rate. Upon
the happening of any of the following events, namely, if the
purchase price provided for in any rights or options referred
to in clause (i) of this subdivision (b), the additional
consideration, if any, payable upon the conversion or exchange
of Convertible Securities referred to in clause (i) or clause
(ii) of this subdivision (b), or the rate at which any
Convertible Securities referred to in clause (i) or clause
(ii) of this subdivision (b) are convertible into or
exchangeable for Common Stock shall change (other than under
or by reason of provisions designed to protect against
dilution), the Conversion Price in effect at the time of such
event shall forthwith be readjusted to the Conversion Price
which would have been in effect at such time had such rights,
options or Convertible Securities still outstanding provided
for such changed purchase price, additional consideration or
conversion rate, as the case may be, at the time initially
granted, issued or sold; and on the expiration of any such
option or right or the termination of any such right to
convert or exchange such Convertible Securities, the
Conversion Price then in effect hereunder shall forthwith be
increased to the Conversion Price which would have been in
effect at the time of such expiration or termination had such
right, option or Convertible Security, to the extent
outstanding immediately prior to such expiration or
termination, never been issued, and the Common Stock issuable
thereunder shall no longer be deemed to be outstanding. If the
purchase price provided for in any such right or option
referred to in clause (i) of this subdivision (b) or the rate
at which any Convertible Securities referred to in clause (i)
or clause (ii) of this subdivision (b) are convertible into or
exchangeable for Common Stock, shall decrease at any time
under or by reason of provisions with respect thereto designed
to protect against dilution, then in case of the delivery of
Common Stock upon the exercise of any such right or option or
upon conversion or exchange of any such Convertible Security,
the Conversion Price then in effect hereunder shall forthwith
be adjusted to such respective amount as would have obtained
had such right, option or Convertible Security never been
issued as to such Common Stock and had adjustments been made
upon the issuance of the shares of Common Stock delivered as
aforesaid, but only if as a result of such adjustment the
Conversion Price then in effect hereunder is thereby
decreased.
(iv) Stock Dividends. In case the corporation shall
declare a dividend or snake any other distribution upon any
stock of the corporation payable in Common Stock or
Convertible Securities, any Common Stock or Convertible
Securities, as the case may be, issuable in payment of such
dividend or distribution shall be deemed to have been issued
or sold without consideration.
(v) Consideration for Stock. In case any shares of
Common Stock or Convertible Securities or any rights or
options to purchase any such Common Stock or Convertible
Securities shall be issued or sold for cash the consideration
received therefor shall be deemed to be the amount received by
the corporation therefor, without deduction therefrom of any
expenses incurred or any underwriting commissions or
concessions paid or allowed by the corporation in connection
therewith. In case any shares of Common Stock or Convertible
Securities or any rights or options to purchase any such
Common Stock or Convertible Securities shall be issued or sold
for a consideration other than cash, the amount of the
consideration other than cash received by the corporation
shall be deemed to be the fair value of such consideration as
determined in good faith by the Board of Directors of the
Corporation, without deduction of any expenses incurred or any
underwriting commissions or concessions paid or allowed by the
corporation in connection therewith. In case any shares of
Common Stock or Convertible Securities or any rights or
options to purchase such Common Stock or Convertible
Securities shall be issued in connection with any merger or
consolidation in which the corporation is the surviving
corporation, the amount of consideration therefor shall be
deemed to be the fair value as determined by the Board of
Directors of the corporation of such portion of the assets and
business of the non-surviving corporation or corporations as
such Board shall determine to be attributable to such Common
Stock, Convertible Securities, rights or options, as the case
may be. In the event of any consolidation or merger of the
corporation in which the corporation is not the surviving
corporation or in the event of any sale of all or
substantially all of the assets of the corporation for stock
or other securities of any corporation, the corporation shall
be deemed to have issued a number of shares of its Common
Stock for stock or securities of the other corporation
computed on the basis of the actual exchange ratio on which
the transaction was predicated and for a consideration equal
to the fair market value on the date of such transaction of
such stock or securities of the other corporation.
(vi) Record Date. In case the corporation shall take
a record of the holders of its Common Stock for the purpose of
entitling them (A) to receive a dividend or other distribution
payable in Common Stock or in Convertible Securities, or (B)
to subscribe for or purchase Common Stock or Convertible
Securities, then such record date shall be deemed to be the
date of the issue or sale of the shares of Common Stock deemed
to have been issued upon the declaration of such dividend or
the making of such other distribution or the date of the
granting of such right of subscription or purchase, as the
case may be.
(vii) Treasury Shares. The number of shares of Common
Stock outstanding at any given time shall not include shares
owned or held by or for the account of the corporation, and
the disposition of any such shares shall be considered an
issue or sale of Common Stock for the purposes of this
subdivision (b).
(viii) Definition of Market Price. "Market Price"
shall mean in the case of any trading day the average of the
closing prices of the Common Stock sales on all exchanges on
which the Common Stock may at the time be listed, or, if there
shall have been no sales on any such exchange on any such day,
the average of the bid and asked prices at the end of such
day, or, if the Common Stock shall not be so listed, the
average of the bid and asked prices at the end of such day in
the over-the-counter market, in each such case (except for the
purposes of section 4.2 hereof) averaged over a period of 20
consecutive business days prior to the day as of which "market
price" is being determined. If at any time the Common Stock is
not listed on any exchange or quoted in the over-the-counter
market, the "Market Price" shall be deemed to be the higher of
(A) the book value thereof as determined by any firm of
independent public accountants of recognized national standing
selected by the Board of Directors of the corporation as at
the last day of any month ending within 60 days preceding the
date as of which the determination is to be made or (B) the
fair value thereof determined in good faith by the Board of
Directors of the corporation as of a date which is within 15
days of the date as of which the determination is to be made.
(ix) Determination of Market Price under Certain
Circumstances. Anything herein to the contrary
notwithstanding, in case the corporation shall issue any
shares of Common Stock or Convertible Securities in connection
with the acquisition by the corporation of the stock or assets
of any other corporation or the merger of any other
corporation into the corporation under circumstances where on
the date of the issuance of such shares of Common Stock or
Convertible Securities the consideration received for such
Common Stock or deemed to have been received for the Common
Stock into which such Convertible Securities are convertible
is less than the Market Price of the Common Stock, but on the
date the number of shares of Common Stock or Convertible
Securities (or in the case of Convertible Securities other
than stock, the aggregate principal amount of Convertible
Securities) was determined the consideration received for such
Common Stock or deemed to have been received for the Common
Stock into which such Convertible Securities are convertible
would not have been less than the Market Price thereof, such
shares of Common Stock shall not be deemed to have been issued
for less than the Market Price of the Common Stock.
(x) Determination of Consideration in Connection with
Certain Acquisitions. Anything in clause (v) of this
subdivision (b) to the contrary notwithstanding, in the case
of an acquisition where all or part of the purchase price is
payable in Common Stock or Convertible Securities but is
stated as a dollar amount, where the corporation upon making
the acquisition pays only part of a maximum dollar purchase
price which is payable in Common Stock or Convertible
Securities and where the balance of such purchase price is
deferred or is contingently payable under a formula related to
earnings over a period of time, (A) the consideration received
for any Common Stock or Convertible Securities delivered at
the time of the acquisition shall be deemed to be such part of
the total consideration as the portion of the dollar purchase
price then paid in Common Stock or Convertible Securities
bears to the total maximum dollar purchase price payable in
Common Stock or Convertible Securities, and (B) in connection
with each issuance of additional Common Stock or Convertible
Securities pursuant to the terms of the agreement relating to
such acquisition, the consideration received shall be deemed
to be such part of the total consideration as the portion of
the dollar purchase price then and theretofore paid in Common
Stock or Convertible Securities bears to the total maximum
dollar purchase price payable in Common Stock or Convertible
Securities multiplied by a fraction, the numerator of which
shall be the number of shares (or in the case of Convertible
Securities other than stock, the aggregate principal amount)
then issued and the denominator of which shall be the total
number of shares (or in the case of Convertible Securities
other than stock, the aggregate principal amount) then and
theretofore issued under such acquisition agreement. If it is
determined that any part of the deferred or contingent portion
of such purchase price shall not be payable, the Conversion
Price then in effect hereunder shall forthwith be readjusted
to such Conversion Price as would have obtained (l) had the
adjustment made in connection with such acquisition been made
upon the basis of the issuance of only the number of shares of
Common Stock or Convertible Securities actually issued in
connection with such acquisition, and (2) had adjustments been
made on the basis of the Conversion Price as adjusted in
clause (1) for all issues or sales (as prices which would have
affected such adjusted Conversion Price) of Common Stock or
rights, options or Convertible Securities made after such
acquisition. In the event that only a part of the purchase
price for an acquisition is paid in Common Stock or
Convertible Securities in the manner referred to in this
clause (x), the term "total consideration" as used in this
clause (x) shall mean that part of the aggregate consideration
as is fairly allocable to the purchase price paid in Common
Stock or Convertible Securities in the manner referred to in
this clause (x), as determined by the Board of Directors of
the corporation.
(c) Adjustment for Certain Special Dividends. In case the
corporation shall declare a dividend upon the Common Stock payable otherwise
than out of consolidated earnings or consolidated earned surplus, determined in
accordance with generally accepted accounting principles, including the making
of appropriate deductions for minority interests, if any, in Subsidiaries, and
otherwise than in Common Stock or Convertible Securities, the Conversion Price
in effect immediately prior to the declaration of such dividend shall be reduced
by an amount equal, in the case of a dividend in cash, to the amount thereof
payable per share of the Common Stock or, in the case of any other dividend, to
the fair value thereof per share of the Common Stock as determined by the Board
of Directors of the corporation. For the purposes of the foregoing a dividend
other than in cash shall be considered payable out of earnings or surplus (other
than revaluation or paid-in surplus) only to the extent that such earnings or
surplus are charged an amount equal to the fair value of such dividend as
determined by the Board of Directors of the corporation. Such reductions shall
take effect as of the date on which a record is taken for the purpose of such
dividend, or, if a record is not taken the date as of which the holders of
Common Stock of record entitled to such dividend are to be determined.
(d) Subdivision or Combination of Stock. In case the
corporation shall at any time subdivide its outstanding shares of Common Stock
into a greater number of shares, the Conversion Price in effect immediately
prior to such subdivision shall be proportionately reduced, and conversely, in
case the outstanding shares of Common Stock of the corporation shall be combined
into a smaller number of shares, the Conversion Price in effect immediately
prior to such Combination shall be proportionately increased.
(e) Reorganization, Reclassification, Consolidation, Merger or
Sale. If any capital reorganization or reclassification of the capital stock of
the corporation, or consolidation or merger of the corporation with another
corporation, or the sale of all or substantially all of its assets to another
corporation shall be effected in such a way that holders of Common Stock shall
be entitled to receive stock, securities or assets with respect to or in
exchange for Common Stock, then, as a condition of such reorganization,
reclassification, consolidation, merger or sale, lawful and adequate provision
shall be made whereby each holder of $.70 Preferred Stock shall thereafter have
the right to purchase and receive upon the basis and upon the terms and
conditions specified herein and in lieu of the shares of the Common Stock of the
corporation immediately theretofore issuable upon the conversion of such $.70
Preferred Stock, such shares of stock, securities, or assets as may be issued or
payable with respect to or in exchange for a number of outstanding shares of
such Common Stock equal to the number of shares of such stock immediately
theretofore issuable upon the conversion of such $.70 Preferred Stock had such
reorganization, reclassification, consolidation, merger or sale not taken place,
and in any such case appropriate provision shall be made with respect to the
rights and interests of the holders of the $.70 Preferred Stock to the end that
the provisions hereof (including without limitation provisions for adjustments
of the Conversion Price) shall thereafter be applicable, as nearly as may be, in
relation to any shares of stock, securities, or assets thereafter deliverable
upon the conversion of the $.70 Preferred Stock. The corporation shall not
effect any such consolidation, merger or sale, unless prior to consummation
thereof the successor corporation (if other than the corporation) resulting from
such consolidation or merger, or the corporation into or for the securities of
which the outstanding shares of Common Stock shall be changed or exchanged in
connection with such consolidation or merger or the corporation purchasing such
assets shall assume by written instrument executed and mailed to each holder of
$.70 Preferred Stock at the time outstanding, the obligation to deliver to such
holder such shares of stock, securities or assets as, in accordance with the
foregoing provisions, such holder may be entitled to. If a purchase, tender or
exchange offer is made to and accepted by the holders of more than 50% of the
outstanding shares of Common Stock of the corporation, the corporation shall not
effect any consolidation, a merger or sale with the person having made such
offer, unless prior to the consummation thereof the holders of the $.70
Preferred Stock shall have been given a reasonable opportunity to then elect to
receive upon the conversion of the $.70 Preferred Stock either the stock,
securities or assets then issuable with respect to the Common Stock of the
corporation or the stock, securities or assets, or the equivalent, issued to
previous holders of the Common Stock in accordance with such offer.
(f) Notice of Adjustment. Upon any adjustment of the
Conversion Price, then and in each such case the corporation shall give written
notice thereof to each holder of $.70 Preferred Stock at the time outstanding,
which notice shall state the Conversion Price resulting from such adjustment,
and shall set forth in reasonable detail the method of calculation thereof and
the facts upon which such calculation is based. Such notice shall be given by
delivering or mailing the same to each such holder at the address of such holder
as it appears on the corporation's stock records.
(g) Other Notices. In case at any time:
(i) the corporation shall declare any such dividend
on its Common Stock at a rate in excess of the rate of the
last cash dividend theretofore paid;
(ii) the corporation shall pay any dividend payable
in stock upon its Common Stock or make any distribution (other
than regular cash dividends) to the holders of its Common
Stock;
(iii) the corporation shall offer for subscription
pro rata to the holders of its Common Stock any additional
shares of stock of any class or other rights;
(iv) there shall be any capital reorganization, or
reclassification of the capital stock of the corporation, or
consolidation or merger of the corporation with, or sale of
all or substantially all of its assets to, another
corporation; or
(v) there shall be a voluntary or involuntary
dissolution, liquidation or winding up of the corporation;
then, in any one or more of said cases, the corporation shall give written
notice to each holder of $.70 Preferred Stock at the time outstanding, of the
date on which (A) the books of the corporation shall close or a record shall be
taken for such dividend, distribution or subscription rights, or (B) such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up shall take place, as the case may be. Such notice
shall also specify the date as of which the holders of Common Stock of record
shall participate in such dividend, distribution or subscription rights, or
shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation or winding up, as the case may be. Such
notice shall be given by delivering or mailing the same to each such holder at
the address of such holder as it appears on the corporation's stock records, at
least 20 days prior to the action in question and not less than 20 days prior to
the record date or the date on which the corporation's transfer books are closed
in respect thereto.
(h) Certain Events. If any event occurs as to which in the
opinion of the Board of Directors of the corporation the other provisions of
this section 5.4 are not strictly applicable or if strictly applicable would not
fairly protect the conversion rights of the holders of the $.70 Preferred Stock
in accordance with the essential intent and principles of such provisions, then
the Board of Directors shall make an adjustment in the application of such
provisions, in accordance with such essential intent and principles, so as to
protect such conversion rights as aforesaid.
5.5. Shares to be Fully Paid; Reservation of Shares. The corporation
covenants and agrees that all shares which may be issued upon conversion of the
$.70 Preferred Stock will, upon issuance, be fully paid and non-assessable and
free from all taxes, liens and charges with respect to the issue thereof; and
without limiting the generality of the foregoing, the corporation covenants and
agrees that it will from time to time take all such action as may be requisite
to assure that the par value per share of the Common Stock is at all times equal
to or less than the then effective purchase price per share of the Common Stock
issuable upon conversion of the $.70 Preferred Stock. The corporation further
covenants and agrees that the corporation will at all times have authorized, and
reserved for the purpose of issue or transfer upon the conversion of the $.70
Preferred Stock, a sufficient number of shares of its Common Stock to provide
for the conversion of the $.70 Preferred Stock.
5.6. Registration, Approval and Listing. If any shares of Common Stock
required to be reserved for purposes of conversion of $.70 Preferred Stock
hereunder require registration with or approval of any governmental authority
under any Federal or State law, or listing on any national securities exchange,
before such shares may be issued upon conversion, the corporation will, at its
expense, as expeditiously as possible, use its best efforts to cause such shares
to be duly registered or approved or listed on the relevant national securities
exchange, as the case may be.
5.7. Issue Tax. The issuance of certificates for shares of Common Stock
upon the conversion of $.70 Preferred Stock shall be made without charge to the
holders of such $.70 Preferred Stock for any issuance tax in respect thereof,
provided that the corporation shall not be required to pay any tax which may be
payable in respect of any transfer involved in the issuance and delivery of any
certificate in a name other than the holder of the $.70 Preferred Stock
converted.
5.8. Closing of Books. The corporation will at no time close its
transfer books against the transfer of any shares of Common Stock issued or
issuable upon the conversion of the $.70 Preferred Stock in any manner which
interferes with the timely exercise of the conversion rights of the holders of
the $.70 Preferred Stock.
5.9. Conversion Agent. So long as any $.70 Preferred Stock is
outstanding, the corporation will at all times maintain an office or agency in
Boston, Massachusetts, for the purpose of accepting $.70 Preferred Stock
surrendered for conversion and issuing Common Stock upon the conversion of the
$.70 Preferred Stock pursuant to section 5.2 hereof. Initially the office or
agency hereunder for such purposes shall be the principal office of The First
National Bank of Boston. The corporation will give written notice to each holder
of the $.70 Preferred Stock at the time outstanding of any change in such office
or agency.
6. Voting Rights; Restrictions on Corporate Action.
6.1. General Voting Rights. Except as otherwise provided by law and in
addition to the rights provided for in section 6.2 and section 6.3 hereof, the
holders of the $.70 Preferred Stock shall be entitled to one-tenth (1/10) of one
vote for each share held and shall be entitled to exercise such voting rights
voting with the holders of Common Stock, without distinction as to class at any
annual or special meeting of stockholders for the election of directors and on
any other matter coming before such meeting.
6.2. Special Right to Elect Director. (a) If and whenever (i) if
dividends on the $.70 Preferred Stock shall have been in arrears for a period of
12 calendar months (whether or not consecutive), or (ii) the corporation shall
have failed to make any redemption of the $.70 Preferred Stock required by
section 4.1 hereof when due, and such failure or failures shall have continued
for a period of 12 calendar months (whether or not consecutive), the holders of
the outstanding $.70 Preferred Stock shall have the special right, voting
separately as a single class, to elect one director of the corporation at the
next succeeding annual meeting of stockholders and at each succeeding annual
meeting of stockholders thereafter until such right shall terminate as
hereinafter provided. At each meeting of stockholders at which the holders of
the $.70 Preferred Stock shall have such special right, voting separately as a
single class, to elect a director, the presence in person or by proxy of the
holders of record of one-third of the total number of shares of the $.70
Preferred Stock at the time outstanding shall be necessary and sufficient to
constitute a quorum of such class for such election by such stockholders as a
class.
(b) Each director elected by the holders of the $.70 Preferred
Stock voting separately as a single class as provided in subdivision (a) of this
section 6.2 shall hold office until the annual meeting of stockholders next
succeeding his election and until his successor, if any, is elected by such
holders and qualified or until his death, resignation or removal in the manner
provided in the by-laws of the corporation. In case the office of any director
shall become vacant, such vacancy may be filled for the unexpired portion of the
term by the vote of such stockholders given at a special meeting of such
stockholders called for the purpose.
(c) Whenever Full Cumulative Dividends on the $.70 Preferred
Stock for all past Dividend Periods and for the then current Dividend Period
shall have been declared and paid, and all redemptions of the $.70 Preferred
Stock required by section 4.1 hereof shall have been made, the right of the
holders of the $.70 Preferred Stock, voting separately as a single class, to
elect a director as provided in subdivision (a) of this section 6.2 shall
terminate at the next succeeding annual meeting of stockholders, but subject
always to the same provisions for the vesting of such special right, voting
separately as a single class, to elect a director in the case of any future such
arrearage or failure.
6.3. Restrictions on Corporate Action. Without the consent of the
holders of at least a majority of the shares of the $.70 Preferred Stock at the
time outstanding, given in writing without a meeting or by vote at a meeting
called for the purpose, at which the holders of the $.70 Preferred Stock shall
vote separately as a single class, the corporation shall not
(a) Authorize or issue any shares of Senior Stock or any
shares of stock or any obligations or warrants or rights convertible into or
evidencing rights to purchase any Senior Stock;
(b) Authorize or issue any shares of Parity Stock or any
shares of stock or any obligations or warrants or rights convertible into or
evidencing rights to purchase any Parity Stock unless, immediately after giving
effect thereto and to any concurrent transactions, Consolidated Net Income.
Available for Dividends for the period of the four most recently completed
quarterly accounting periods of the corporation shall have equalled at least
150% of Pro Forma Interest and Preferred Dividends;
(c) Declare, order, pay, make or set apart any sum or property
for any Junior Stock Payment (except to the extent of the aggregate net cash
proceeds received by the corporation after the date of initial issue of the $.70
Preferred Stock from the sale of shares of Junior Stock or of warrants, rights
or options to acquire any such shares) unless, immediately after giving effect
thereto, Consolidated Net Worth shall be at least $8,000,000;
(d) Take any action looking towards its liquidation,
dissolution or winding up;
(e) Consolidate with or merge into any other person, unless
(i) the holders of the $.70 Preferred Stock will receive in such consolidation
or merger the same number of shares of stock of the corporation resulting from
or surviving such consolidation or merger, having the same relative rights and
preferences as the $.70 Preferred Stock, and (ii) after giving effect to such
consolidation or merger, the corporation resulting from or surviving such
consolidation or merger will have no stock authorized or outstanding having any
right or preference as to dividends or assets senior to any right or preference
of the $.70 Preferred Stock or of the stock issued to the holders of the $.70
Preferred Stock in such consolidation or merger;
(f) Sell, lease, abandon or otherwise dispose of all or
substantially all of its properties and assets, except that the corporation may,
without such consent, sell or otherwise dispose of all or substantially all of
its properties and assets to another corporation if as a result of such trans
action (i) the holders of the $.70 Preferred Stock will thereupon receive the
same number of shares of stock of the corporation purchasing or otherwise
acquiring such properties and assets, having the same relative rights and
preferences as the $.70 Preferred Stock, and (ii) after giving effect to such
transaction, the corporation purchasing or otherwise acquiring such properties
and assets will have no stock authorized or outstanding having any right or
preference as to dividends or assets senior to any right or preference of the
$.70 Preferred Stock or of the stock issued to the holders of the $.70 Preferred
Stock in such transaction;
(g) Enter into any agreement or understanding which in any way
restricts the corporation's right or ability to declare and pay dividends on, or
to make any other distribution with respect to, or to redeem, the $.70 Preferred
Stock; or
(h) Authorize or effect any amendment to its Certificate of
Incorporation or by-laws which would adversely affect or be inconsistent with
any of the rights or preferences of the $.70 Preferred Stock or otherwise
prejudicial to the interests of the holders of the $.70 Preferred Stock.
7. Change in Tax Laws. In the event that the tax laws of the United States of
America are amended after April 15, 1978 so as to allow the corporation to
elect, for Federal income tax purposes, whether or not to claim a deduction for
dividends or other distributions on or on account of the $.70 Preferred Stock,
the corporation shall not, without the unanimous consent of the holders of the
shares of the $.70 Preferred Stock at the time outstanding, given in writing
without a meeting or by vote at a Meeting called for the purpose, at which the
holders of the $.70 Preferred Stock snail vote separately as a single class,
elect to claim any such deduction if as a result of such election (a) the
deduction for dividends received provided for in Section 243 of the Internal
Revenue Code as in effect on April 15, 1978 with respect to dividends on the
$.70 Preferred Stock received by any holder thereof would be eliminated or
reduced, or (b) the interests of the holders of the $.70 Preferred Stock would
otherwise be adversely affected.
8. Definitions; Accounting Terms and Principles.
8.1. Definitions of Capitalized Terms. As used herein the
following terms have the following respective meanings:
Common Stock: the Common Stock, $1 par value, of the corporation as
constituted on the date of initial issue of the $.70 Preferred Stock, and any
stock into which such Common Stock shall have been changed, or any stock
resulting from any subdivision, Combination, consolidation or reclassification
of such Common Stock.
Consolidated Net Income, Consolidated Net Income Available for
Dividends and Consolidated Net Worth: the Net Income, Net Income Available for
dividends and Net Worth, as the case may be, of the corporation and its
Subsidiaries (whether or not ordinarily consolidated in consolidated financial
statements of the corporation and Subsidiaries), all consolidated in accordance
with generally accepted accounting principles, and after giving appropriate
effect to outside minority interests, if any, in Subsidiaries, provided that in
determining Consolidated Net Income there shall be excluded (a) the Net Income
of any person other than a Subsidiary) in which the corporation or any
Subsidiary has an ownership interest, except to the extent that any such Net
Income has been actually received by the corporation or such Subsidiary in the
form of dividends or similar distributions, (b) any undistributed Net Income of
a Subsidiary which for any reason is unavailable for distribution to the
corporation or any other Subsidiary, and (c) any deferred or other credit
representing amortization of the excess of the equity in any Subsidiary at the
date of acquisition thereof over the cost of the investment in such Subsidiary.
Conversion Price: as defined in section 5.1 thereof.
Convertible Securities: as defined in clause (i) of subdivision (b)
of section 5.4 hereof.
Dividend Periods: the periods beginning on January 16, April 16, July
l6 and October 16 and ending on April 15, July 15, October 15 and January 15,
respectively, in each year.
Full Cumulative Dividends: cumulative dividends on the $.70 Preferred
Stock computed, to the date or for the Dividend Period with reference to which
the term is used, at the rate of $.70 per share per annum (whether or not such
amount or any part thereof shall have been declared as dividends, whether or not
there exists or shall have existed available funds out of which dividends in
such amount might be or might therefore have been declared and whether or not
declarations or payment of dividends in such amount shall be or shall have been
in contravention of any applicable restrictions from time to time in effect for
the benefit of holders of any class of indebtedness of the corporation), less
the aggregate of dividends paid thereon to such date or for such Dividend
Period, as the case may be.
Junior Stock: the Common Stock and any other stock of the corporation
having rights and preferences as to dividends and assets junior in all respects
to the rights and preferences of the $.70 Preferred Stock.
Junior Stock Payment: any dividend or other distribution, direct or
indirect, on or on account of any shares of any Junior Stock then or thereafter
outstanding, except a dividend payable solely in shares of Junior Stock, and any
redemption, retirement, purchase or other acquisition, direct or indirect, of
any shares of any Junior Stock then or thereafter outstanding or of any warrants
or rights to purchase any such Stock, except to the extent that the
consideration for any such redemption, retirement, purchase or acquisition
consists of shares of Junior Stock.
Market Price: as defined in clause (viii) of subdivision (b) of
section 5.4 hereof.
Net Income of any corporation for any period: the net income (or
net deficit) of such corporation for such period, determined in the following
manner:
(a) the gross revenues and other proper income credits of such
corporation shall be computed for such period in accordance with
generally accepted accounting principles, excluding, however, the
following items (without duplication):
(i) the proceeds of any life insurance policy;
(ii) gains arising from the sale or other disposition
of capital assets or arising from any write-up of assets or
from the acquisition by such corporation of its outstanding
debt securities at a cost which is less than the amounts due
and to become due on such securities;
(iii) any reversal of any contingency reserve, except
to the extent that provision for such contingency reserve
shall have been made during such period; and
(iv) any reversal of any reserve for taxes, contract
renegotiation or price determination, except to the extent of
any excess of any such reserve over the amount ultimately
determined to be due and payable; but in any event there may
be added to the income credits for such period (x) the
appropriate portion of any reversal of a reserve referred to
in the foregoing clauses (iii) and (iv), after allocating the
amount of such reversal proportionately over the periods since
such reserve was created, and (y) amounts repaid, refunded or
credited to such corporation during such period on account of
taxes paid or accrued in respect of income arising prior to as
well as during such period.
(b) From the amount of such gross revenues and other proper
income credits for such period, determined as provided in the foregoing
subdivision (a), there shall be deducted all expenses and all other proper
revenue and income deductions and charges for such period determined in
accordance with generally accepted accounting principles, exclusive of losses
arising from the sale, abandonment or other disposition of capital assets, but
in any event there shall be deducted the following items, whether or not such
items are charged or properly chargeable to income:
(i) amortization of debt discount and any other
amortization of prepaid expenses, deferred charges or other
intangibles;
(ii) provision for all taxes of every kind and
character, provided that, for the purposes of this clause
(ii), taxes in respect of income shall be appropriately
adjusted to reflect the effect of the exclusion of any items
of income credits and deductions (including, without
limitation any depreciation, depletion, obsolescence or
amortization claimed by such corporation for income tax
purposes in excess of the amount required to be deducted
pursuant to clause (iv) below) required or permitted to be
excluded in determining Net Income hereunder;
(iii) all provisions or appropriations, if any, made
by such corporation for reserves for contingencies which are
charged or, under generally accepted accounting principles,
should be charged to income arising during such period;
(iv) provision for depreciation, depletion,
obsolescence and amortization of the properties of such
corporation (including, without limitation, amortization of
assets recorded under capital leases) in amounts in the
aggregate not less than those actually deducted on its books,
determined in accordance with generally accepted accounting
principles;
(v) any additional amounts required to be paid during
such period on account of taxes in respect of income arising
prior to such period in excess of reserves for such taxes
established out of income arising prior to such period; and
(vi) any additional amounts required to be paid
during such period on account of contract renegotiation or
price redetermination with respect to sales prior to such
period in excess of reserves for such renegotiation
established out of income arising prior to such period.
Net Income Available for Dividends of any corporation for any period:
the Net Income of such corporation for such period (excluding any amounts
included in the determination thereof on account of amounts repaid, refunded or
credited to such corporation during such period on account of taxes paid or
accrued in respect of income arising prior to or during such period), plus the
sum of all amounts deducted in the determination of such Net Income for
(a) interest charges on indebtedness accrued during such
period;
(b) amortization of debt discount applicable to such period;
(c) provision for taxes imposed on or measured by income
determined after deduction of interest charges; and
(d) any additional amounts required to be paid during such
period on account of taxes in respect of income arising prior to such
period.
Net Worth of any corporation at any date: the sum of the capital stock
(excluding treasury stock and capital stock subscribed and unissued) and surplus
(including retained earnings and additional paid-in capital) of such corporation
as shown by the books of such corporation at such date.
Parity Stock: any stock of the corporation having any right or
preference as to dividends or assets equal in any respect to any right or
preference of the $.70 Preferred Stock.
Parity Stock Payment: any dividend or other distribution, direct or
indirect, on or on account of any shares of any Parity Stock then or thereafter
outstanding, except a dividend payable solely in shares of Parity Stock, and any
redemption, retirement, purchase or other acquisition, direct or indirect, of
any shares of any Parity Stock then or thereafter outstanding or of any warrants
or rights to purchase any such Stock, except to the extent that the
consideration for any such redemption, retirement, purchase or acquisition
consists of shares of Parity Stock.
Pro Forma Interest and Preferred Dividends at any date: the highest
aggregate amount
(a) all interest Charges on all indebtedness of the
corporation and its Subsidiaries on a consolidated basis outstanding
at such date, plus
(b) all dividends on the $.70 Preferred Stock, all Parity
Stock and all Senior Stock, multiplied by a fraction, the numerator of
which is Consolidated Net Income before provision for taxes imposed on
or measured by income for the most recently completed fiscal year of
the corporation, and the denominator of which is Consolidated Net
Income for such year, payable or guaranteed, after giving appropriate
effect to immediately proposed transactions at such date, by the
corporation and its Subsidiaries during the 12-month period commencing
on such date (or, if the aggregate amount of such interest and
dividends so payable or guaranteed shall be greater during any other
12-month period commencing after such date, then during such other
12-month period).
Purchase Agreements: as defined in section 4.2 hereof.
Securities Act: as defined in section 4.2 hereof.
Senior Stock: any stock of the corporation having any right or
preference as to dividends or assets senior in any respect to any right or
preference of the $.70 Preferred Stock.
Subsidiary: any corporation a majority (by number of votes) of the
Voting Stock of which is owned by the corporation or by one or more Subsidiaries
or by the corporation and one or more Subsidiaries.
Voting Stock, when used with reference to any corporation: shares
(however designated) of such corporation having ordinary voting power for the
election of a majority of the members of the board of directors (or other
governing body) of such corporation, other than shares having such power only by
reason of the happening of a contingency.
8.1. Other Definitions. As used herein the following terms have
the following respective meanings:
"corporation" shall, where the context so permits, include an
association, joint stock company, business trust or other similar organization.
"person" shall mean an individual, a corporation, a partnership, a
trust, an unincorporated organization or a government or any agency or political
subdivision thereof.
"shares" of any corporation shall include any and all shares of capital
stock of such corporation of any class or other shares, interests,
participations or other equivalents (however designated) in the capital of such
corporation.
8.2. Accounting Terms and Principles. All accounting terms used herein
which are not expressly defined herein shall have the respective meanings given
to them in accordance with generally accepted accounting principles, all
computations made pursuant hereto shall be made in accordance with generally
accepted accounting principles and all financial statements shall be prepared in
accordance with generally accepted accounting principles.
(d) So long as any shares of Preferred Stock of any
series are outstanding:
(i) Dividends on the outstanding Preferred
Stock of each series shall be declared and
paid or set apart for payment before any
dividends shall be declared and paid or set
apart for payment on the Common Stock with
respect to the same quarterly dividend
period. Dividends on any shares of
Preferred Stock shall be cumulative only if
and to the extent set forth in a certificate
filed pursuant to law. After dividends on
all shares of Preferred Stock (including
cumulative dividends if and to the extent
any such shares shall be entitled thereto)
shall have been declared and paid or set
apart for payment with respect to any
quarterly dividend period, then and not
otherwise so long as any shares of the
Preferred Stock shall remain outstanding,
dividends may be declared and paid or set
apart for payment with respect to the same
quarterly dividend period on the Common
Stock out of the assets or funds of the
corporation legally available therefor.
All shares of Preferred Stock of all
series shall be of equal rank, preference
and priority as to dividends irrespective of
whether or not the rates of dividends to
which the same shall be entitled shall be
the same and when the stated dividends are
not paid in full, the shares of all series
of the Preferred Stock shall share ratably
in the payment thereof in accordance with
the sums which would be payable on such
shares if all dividends were paid in full
provided, however, that any two or more
series of the Preferred Stock may differ
from each other as to the existence and
extent of the right to cumulative dividends,
as aforesaid.
(ii) In the event of any liquidation,
dissolution or winding up of the
corporation, whether voluntary or
involuntary, each series of Preferred Stock
shall have preference and priority over
the Common Stock for payment of the amount
to which such series of Preferred Stock
shall be entitled in accordance with the
provisions thereof and each holder of
Preferred Stock shall be entitled to be
paid in full his share of such amount,
or have a sum sufficient for the payment
in full set aside, before any payments shall
be made to the holders of the Common Stock.
If, upon liquidation, dissolution or winding
up of the corporation, the assets of the
corporation or proceeds thereof,
distributable among the holders of the
shares of all series of the Preferred Stock
shall be insufficient to pay, in full, the
preferential amount aforesaid, then such
assets, or the proceeds thereof, shall be
distributed among such holders ratably in
accordance with the respective amounts
which would be payable if all amounts
payable thereon were paid in full. After
the payment to the holders of Preferred
Stock of all such amounts to which they are
entitled, as above provided, the remaining
assets and funds of the corporation shall
be divided and paid to the holders of the
Common Stock.
(e) Except as required by law or as determined by the Board of
Directors pursuant to subdivision (b) of this Article FOURTH, the exclusive
rights to vote for the election of directors and for all other purposes shall be
vested in the holders of Common Stock, each share thereof from time to time
outstanding having voting power of one vote.
FIFTH. The minimum amount of capital with which the corporation will
commence business is One Thousand Dollars ($1,000.00).
SIXTH. The corporation is to have perpetual existence.
SEVENTH. The private property of the stockholders shall not be
subject to the payment of corporate debts to any extent whatever.
EIGHTH. In furtherance and not in limitation of the powers conferred
by statute, the board of directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
To authorize and cause to be executed mortgages and liens upon the real
and personal property of the corporation.
To set apart out of any of the funds of the corporation available for
dividends a reserve or reserves for any proper purpose and to abolish any such
reserve in the manner in which it was created.
By resolution passed by a majority of the whole board, to designate one
or more committees, each committee to consist of two or more of the directors of
the corporation, which, to the extent provided in the resolution or in the
by-laws of the corporation, shall have and may exercise the powers of the board
of directors in the management of the business and affairs of the corporation,
and may authorize the seal of the corporation to be affixed to all papers which
may require it. Such committee or committees shall have such name or names as
may be stated in the by-laws of the corporation or as may be determined from
time to time by resolution adopted by the board of directors.
When and as authorized by the affirmative vote of the holders of a
majority of the stock issued and outstanding having voting power given at a
stockholders' meeting duly called for that purpose, or when authorized by the
written consent of the holders of a majority of the voting stock issued and
outstanding, to sell, lease or exchange all of the property and assets of the
corporation, including its good will and its corporate franchises, upon such
terms and conditions and for such consideration, which may be in whole or in
part shares of stock in, and/or other securities of, any other corporation or
corporations, as its board of directors shall deem expedient and for the best
interests of the corporation.
NINTH. Meetings of stockholders may be held outside the State of
Delaware, if the by-laws so provide. The books of the corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
board of directors or in the by-laws of the corporation. Elections of directors
need not be by ballot unless the by-laws of the corporation shall so provide.
TENTH. The corporation reserves the right to amend, alter, change or
repeal any provision contained in this certificate of incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
4. This Restated Certificate of Incorporation
was duly adopted by the Board of Directors of the Corporation in
accordance with Section 245 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said HELIX TECHNOLOGY CORPORATION has caused this
certificate to be executed by Richard F. Cole, President of the Corporation,
attested by Robert E. Blakelock, Secretary of the Corporation, and affixed with
the corporate seal, this 4th day of February, 1980.
HELIX TECHNOLOGY CORPORATION
By /s/ Richard F. Cole
Richard F. Cole, President
[Seal]
ATTEST:
By /s/ Robert E. Blakelock,
Robert E. Blakelock, Secretary
Commonwealth of Massachusetts )
) ss.
County of Middlesex )
Be it remembered that on the 4th day of February, A.D. 1980, personally
came before me, William Williams II, a Notary Public in and for the County and
State aforesaid, Richard F. Cole, President, and Robert E. Blakelock, Secretary
of a corporation of the State of Delaware, the corporation described in and
which executed the foregoing certificate, known to me personally to be such, and
they, the said Richard F. Cole and Robert E. Blakelock, as such President and
Secretary respectively, duly executed the said Certificate before me and
acknowledged the said Certificate to be their act and deed and the act and deed
of said corporation and the facts stated therein are true; that the signatures
of the said President and Secretary of said corporation to said foregoing
certificate are in the handwriting of the said President and Secretary of said
corporation, respectively, and that the seal affixed to said certificate is the
common or corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the
day and year aforesaid.
NOTARIAL SEAL Notary Public
/s/ William Williams II
[Seal] My Commission Expires: 9/18/90
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
HELIX TECHNOLOGY CORPORATION
HELIX TECHNOLOGY CORPORATION, a corporation organized and existing
under the laws of the State of Delaware, does hereby certify as follows:
FIRST: That the Board of Directors of said Corporation by unanimous
vote pursuant to Section 141 of the General Corporation Law of Delaware adopted
a resolution proposing and declaring advisable the following amendment to the
Restated Certificate of Incorporation of the Corporation and directing that said
amendment be submitted to the stockholders for their review and consent:
VOTED: That this Board hereby declares the
advisability of an amendment to the Restated
Certificate of Incorporation of the
Corporation to add a new Article ELEVENTH,
and that said Article ELEVENTH shall be and
read in its entirety as follows:
Elimination of Certain Liability of Directors. A director of this
Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the director derived an improper personal benefit. No amendment to or
repeal of this provision shall apply to or have any effect on the liability or
alleged liability of any director for or with respect to any acts or omissions
of such director occurring prior to such amendment or repeal.
and further
VOTED: That the foregoing amendment to the Restated
Certificate of Incorporation shall be
presented to the stockholders for approval
at the 1987 Annual Meeting and that, upon
approval of such amendment, the proper
officers of the Corporation are authorized
to execute and file with the Secretary of
the State of Delaware a Certificate of
Amendment to the Restated Certificate of
Incorporation of the Corporation, setting
forth the amendment so adopted, and upon
such filing, such amendment shall be
effective.
SECOND: That thereafter, pursuant to the resolution of the Board of
Directors, the 1987 Annual Meeting of the stockholders of the Corporation was
duly called and held, upon notice in accordance with Section 222 of the General
Corporation law of Delaware, at which meeting the necessary number of shares as
required by statute were voted in favor of the amendment.
THIRD: That the aforesaid amendment was duly adopted in accordance
with the applicable provisions of Section 242 of the General Corporation Law of
Delaware.
FOURTH: That the capital of the Corporation shall not be reduced
under or by reason of the aforesaid amendment.
IN WITNESS WHEREOF, HELIX TECHNOLOGY CORPORATION has caused this
Certificate to be signed by Robert J. Lepofsky, its President, and Robert E.
Blakelock, its Secretary, this 27th day of April 1987.
[Seal] HELIX TECHNOLOGY CORPORATION
By: /s/ Robert J. Lepofsky
Robert J. Lepofsky
President
ATTEST: /s/ Robert E. Blakelock
Robert E. Blakelock, Secretary
COMMONWEALTH OF MASSACHUSETTS
County of Suffolk, ss.
BE IT REMEMBERED, that on this 27th day of April 1987 personally came
before me a Notary Public in and for the County and Commonwealth as aforesaid,
Robert J. Lepofsky, President, and Robert E. Blakelock, Secretary, of HELIX
TECHNOLOGY CORPORATION, and they duly executed the foregoing Certificate before
me and severally acknowledged the said Certificate to be their act and deed and
the act and deed of said Corporation and that the facts stated therein are true;
that the signatures of the said officers are in their handwriting and that the
seal affixed to said Certificate is the common or corporate seal of said
Corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the
day and year aforesaid.
/s/Kathleen S. Tillotsan
Notary Public
My Commission Expires: November 13, 1992
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
HELIX TECHNOLOGY CORPORATION
HELIX TECHNOLOGY CORPORATION, a corporation organized and existing under the
laws of the State of Delaware, does hereby certify as follows:
FIRST: That the Board of Directors of said Corporation by unanimous
vote pursuant to Section 141 of the General Corporation Law of Delaware adopted
a resolution proposing and declaring advisable the following amendment to the
Restated Certificate of Incorporation of the Corporation and directing that said
amendment be submitted to the stockholders for their review and consent:
VOTED: That the Board of Directors of Helix
Technology Corporation hereby approves and
declares advisable an amendment to the
Restated Certificate of Incorporation of
this Corporation as follows:
That ARTICLE FOURTH (a) of the Restated
Certificate of Incorporation of this
Corporation be and it is hereby amended to
increase the number of authorized shares of
capital stock of the Corporation from
7,000,000 to 12,000,000 so that said
PARTICLE FOURTH (a) shall be and read as
follows:
FOURTH. (a) The total number of shares of stock which the Corporation
is authorized to issue is 12,000,000, of which 10,000,000 shares shall be common
stock, par value of $1 per share ("Common Stock") and 2,000,000 shall be
preferred stock, par value $1 per share ("Preferred Stock").
and further,
VOTED: That the foregoing amendment to the Restated
Certificate of Incorporation of this
Corporation be submitted to the stockholders
of this Corporation for their approval at
the 1988 Annual Meeting of Stockholders.
SECOND: That thereafter, pursuant to the resolution of the Board of
Directors, the 1988 Annual Meeting of the Stockholders of the Corporation was
duly called and held, upon notice in accordance with Section 222 of the General
Corporation Law of Delaware, at which meeting the necessary number of shares as
required by statute were voted in favor of the amendment.
THIRD: That the aforesaid amendment was duly adopted in accordance
with the applicable provisions of Section 242 of the General Corporation law of
Delaware.
FOURTH: That the capital of the Corporation shall not be reduced
under or by reason of the aforesaid amendment.
IN WITNESS WHEREOF, HELIX TECHNOLOGY CORPORATION has caused this
Certificate to be signed by Robert J. Lepofsky, its President, and Robert E.
Blakelock, its Secretary, this 11th day of May 1988.
[Seal] HELIX TECHNOLOGY CORPORATION
By: /s/Robert J. Lepofsky
Robert J. Lepofsky
President
ATTEST: /s/Robert E. Blakelock
Robert E. Blakelock, Secretary
COMMONWEALTH OF MASSACHUSETTS
County of Middlesex, ss.
BE IT REMEMBERED, that on this 10th day of May 1988 personally came
before me a Notary Public in and for the County and Commonwealth as aforesaid,
Robert J. Lepofsky, President, and Robert E. Blakelock, Secretary, of HELIX
TECHNOLOGY CORPORATION, and they duly executed the foregoing Certificate before
me and severally acknowledged the said Certificate to be their act and deed and
the act and deed of said Corporation and that the facts stated therein are true;
that the signatures of the said officers are in their handwriting and that the
seal affixed to said Certificate is the common or corporate seal of said
Corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the
day and year aforesaid.
/s/Doris G Gillimore
Notary Public
My Commission expires:
September 3, 1993
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
HELIX TECHNOLOGY CORPORATION
HELIX TECHNOLOGY CORPORATION, a corporation organized and existing
under the laws of the State of Delaware, does hereby certify as follows:
FIRST: That the Board of Directors of said Corporation by unanimous
vote pursuant to Section 141 of the General Corporation Law of Delaware adopted
a resolution proposing and declaring advisable the following amendment to the
Restated Certificate of Incorporation of the Corporation and directing that said
amendment be submitted to the stockholders for their review and consent:
VOTED: That the Board of Directors of Helix Technology
Corporation hereby approves and declares advisable an
amendment to the Restated Certificate of
Incorporation of this Corporation as follows:
That ARTICLE FOURTH (a) of the Restated Certificate
of Incorporation of this Corporation be and it is
hereby amended to increase the number of authorized
shares of capital stock of the Corporation from
12,000,000 to 32,000,000 so that said ARTICLE FOURTH
(a) shall be and read as follows:
FOURTH. (a) The total number of shares of capital stock which the
Corporation is authorized to issue is 32,000,000, of which 30,000,000 shares
shall be common stock, par value $1 per share ("Common Stock") and 2,000,000
shares shall be preferred stock, par value $1 per share ("Preferred Stock").
and further,
VOTED: That the foregoing amendment to the Restated
Certificate of Incorporation of this Corporation be
submitted to the stockholders of this Corporation for
their approval at the 1995 Annual Meeting of
Stockholders.
SECOND: That thereafter, pursuant to the resolution of the Board of
Directors, the 1995 Annual Meeting of Stockholders of the Corporation was duly
called and held, upon notice in accordance with Section 222 of the General
Corporation Law of Delaware, at which meeting the necessary number of shares as
required by statute were voted in favor of the amendment.
THIRD: That the aforesaid amendment was duly adopted in accordance
with the applicable provisions of Section 242 of the General Corporation Law of
Delaware.
FOURTH: That the capital of the Corporation shall not be reduced under
or by reason of the aforesaid amendment.
IN WITNESS WHEREOF, HELIX TECHNOLOGY CORPORATION has caused this
Certificate to be signed by Robert J. Lepofsky, its President, and William
Williams II, its Assistant Secretary, this 20th day of April, 1995.
(SEAL) HELIX TECHNOLOGY CORPORATION
By:/s/ Robert J. Lepofsky
Robert J. Lepofsky, President
ATTEST:/s/ William Williams II
William Williams II,
Assistant Secretary
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
HELIX TECHNOLOGY CORPORATION
HELIX TECHNOLOGY CORPORATION, a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), does hereby certify
as follows:
FIRST: That the Board of Directors of said Corporation by unanimous
vote pursuant to Section 141 of the General Corporation Law of Delaware adopted
a resolution proposing and declaring advisable the following amendment to the
Restated Certificate of Incorporation of the Corporation and directing that said
amendment be submitted to the stockholders for their review and consent:
VOTED: That the Board of Directors of Helix Technology
Corporation hereby approves and declares advisable an
amendment to the Restated Certificate of
Incorporation of this Corporation as follows:
That ARTICLE FOURTH (a) of the Restated Certificate
of Incorporation of this Corporation be and it is
hereby amended to increase the authorized shares of
capital stock of the Corporation from 32,000,000 to
62,000,000 so that said ARTICLE FOURTH (a) shall be
and read as follows:
FOURTH. (a) The total number of shares of capital stock which the
Corporation is authorized to issue is 62,000,000, of which 60,000,000 shares
shall be common stock, par value $1 per share ("Common Stock") and 2,000,000
shares shall be preferred stock, par value $1 per share ("Preferred Stock").
and further,
VOTED: That the foregoing amendment to the Restated
Certificate of Incorporation of this Corporation be
submitted to the stockholders of this Corporation for
their approval at the 1998 Annual Meeting of
Stockholders.
SECOND: That thereafter, pursuant to the resolution of the Board of
Directors, the 1998 Annual Meeting of Stockholders of the Corporation was duly
called and held, upon notice in accordance with Section 222 of the General
Corporation Law of Delaware, at which meeting the necessary number of shares as
required by statute were voted in favor of the amendment.
THIRD: That the aforesaid amendment was duly adopted in accordance
with the applicable provisions of Section 242 of the General Corporation Law of
Delaware.
FOURTH: That the capital of the Corporation shall not be reduced under
or by reason of the aforesaid amendment.
IN WITNESS WHEREOF, HELIX TECHNOLOGY CORPORATION has caused this
Certificate to be signed by Robert J. Lepofsky, its President, and William
Williams II, its Assistant Secretary, this 29th day of April, 1998.
(SEAL) HELIX TECHNOLOGY CORPORATION
By:/s/ Robert J. Lepofsky
Robert J. Lepofsky, President
ATTEST:/s/ William Williams II
William Williams II,
Assistant Secretary