Exhibit 3.1
The Commonwealth of Massachusetts
John F.X. Davoren
Secretary of the Commonwealth
State House, Boston, Mass.
RESTATED ARTICLES OF ORGANIZATION
General Laws, Chapter 156B, Section 74
This certificate must be submitted to the Secretary of the Commonwealth within
sixty days after the date of the vote of stockholders adopting the restated
articles of organization. The fee for filing this certificate is prescribed by
General Laws, Chapter 156B, Section 114. Make check payable to the Commonwealth
of Massachusetts.
____________________
We, Richard Hyde, President and Arthur T. Wasserman, Clerk of
Hyde Athletic Industries, Inc.
(Name of Corporation)
located at 432 Columbia Street, Cambridge, Massachusetts
do hereby certify that the following restatement of the articles of organization
of the corporation was duly adopted at a meeting held on June 16, 1969 by vote
of 245 shares of Common Stock out of 245 shares outstanding, being at least
two-thirds of each class of stock outstanding and entitled to vote and of each
class or series of stock adversely affected thereby:
1. The name by which the corporation shall be known is:
Hyde Athletic Industries, Inc.
2. The purposes for which the corporation is formed are as follows:
See attached sheet 2
3. The total number of shares and the par value of any of each class of stock
which the corporation is authorized to issue is as follows:
- ------------------------------- ---------------------------- ---------------------------------------------------------
Without Par Value With Par Value
- ------------------------------- ---------------------------- ---------------------------------------------------------
Class of Stock Number of Shares Number of Shares Par Value
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Preferred 0 500,000 $1.00
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Common 0 2,500,000 $1.00
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
*4. If more than one class is authorized, a description of each of the
different classes of stock with, if any, the preferences, voting powers,
qualifications, special or relative rights or privileges as to each class
thereof and any series now established.
See attached pages 3A - 3D
*5 The restrictions, if any, imposed by the articles of organization upon the
transfer of shares of stock of any class are as follows:
None
(* If there are no such provisions, state "None")
*6. Other lawful provision, if any, for the conduct and regulation of the
business and affairs of the corporation, for its voluntary dissolution, or
for limiting, defining, or regulating the powers of the corporation, or of
its directors or stockholders, or of any class of stockholders:
The directors may make, amend, or repeal the By-laws in whole or in part,
except with respect to any provision thereof which by law or the By-laws
requires action by the stockholders.
Meetings of the stockholders of the corporation may be held anywhere in the
United States.
Sheet 2
To manufacture, buy, sell and otherwise deal in and with all kinds of
footwear (including, without limitation, boots, shoes, overshoes, slippers
and all kinds of athletic footwear), both on its own account and for
others.
To acquire, hold, lease or dispose of any real estate necessary or
incidental to the business of the corporation.
To manufacture, purchase or otherwise acquire, invest in, own, mortgage,
pledge, sell, assign and transfer or otherwise dispose of, trade, deal in
and deal with goods, wares, merchandise and personal property of every
class and description.
To enter into, make and perform contracts of every kind and description
with any person, firm, association, corporation, municipality, county,
state, body politic or government or colony or dependency thereof.
To borrow and lend money and negotiate loans; to draw, accept, endorse, buy
and sell promissory notes, bonds, stocks, debentures, coupons, mortgages
and other securities.
To subscribe for, take, acquire, hold, sell, exchange and deal in shares,
stocks, bonds, mortgages, obligations and other securities of any
government authority or company; to form, promote, subsidize and assist
companies syndicates, or partnerships of all kinds and to finance and
refinance the same.
In general, to do any act necessary or incidental to the conduct of said
business and in the transaction of the foregoing business and undertakings,
or any of them, to carry on any other business, whether manufacturing or
otherwise, and do any other thing permitted by all present and future laws
of the Commonwealth of Massachusetts applicable to business corporations;
and to carry on any business permitted by the laws of the Commonwealth of
Massachusetts to a corporation organized under Chapter 156B.
Pages 3A - 3D
(a) the shares of Preferred Stock may be divided into and issued in one or more
series of any number of shares, provided that the aggregate numbers of
shares outstanding of all such series shall not exceed the total number of
shares of Preferred Stock authorized by the Articles of Organization. Each
series of Preferred Stock shall be distinctively designated. Except as
otherwise herein stated, all series of Preferred Stock shall rank equally
and be identical in all respects. Each share of a series shall be identical
in all respects with all other shares of such series.
(b) the Board of Directors shall have authority by vote to establish and
designate each series of Preferred Stock and the number of shares which
shall constitute each series (which number may be increased (except where
otherwise provided by the Board of Directors in creating such series) or
decreased (but not below the number of shares thereof then outstanding) by
vote of the Board of Directors), and therein to fix and determine the
variations in the relative rights preferences as between the different
series with respect to:
(1) the annual rate or amount of dividends payable on shares of each
series, whether such dividends shall be cumulative or non-cumulative,
the conditions upon which and/or the dates when such dividends shall
be payable and the date from which dividends on cumulative series
shall accrue and be cumulative on all shares of each series issued
prior to the payment date for the first dividend of each such series;
(2) whether each series shall be redeemable or callable and, if so, the
terms and conditions of such redemption or call, including the time or
times when and the price or prices at which shares of each series
shall be redeemed, or called, and including the terms and conditions
of any retirement or sinking fund for the purchase or redemption of
shares of each series;
(3) the amount payable on shares of each series in the event of
liquidation, dissolution or winding up of the affairs of the
corporation;
(4) whether each series shall be convertible into or exchangeable for
shares of any other class, or any series of the same or any other
class, and, if so, the terms and conditions thereof including the date
or dates when such shares shall be convertible into or exchangeable
for shares of any other class, or any series of the same or any other
class, the price or prices or the rate or rates at which shares of
each series shall be so convertible or exchangeable, and any
adjustments which shall be made, and the circumstances in which any
such adjustments shall be made, in such conversion or exchange prices
or rates;
(5) whether each series shall have any voting rights in addition to those
prescribed by law, and, if so, the terms and conditions of exercise of
such voting rights;
(6) the conditions and restrictions, if any, on the payment of dividends,
or on the making of other distributions on, or the purchase,
redemption or other acquisition by, the corporation or any subsidiary,
of the Common Stock, or of any other class, (or other series of the
same class) ranking junior to the shares of such series as to
dividends or upon liquidation, dissolution or winding up;
(7) the conditions and restrictions, if any, on the creation of
indebtedness of the corporation or any subsidiary, or on the issue of
any additional stock ranking on a parity with or prior to the shares
of each series as to dividends or upon liquidation, dissolution or
winding up; and
(8) such other powers, preferences and relative participating, optional or
other special rights, and qualifications, limitations or restrictions
as shall not be inconsistent with any such resolution or resolutions
previously adopted as to shares then still authorized or with the
provisions of these Articles of Organization or with the laws of the
Commonwealth of Massachusetts.
(c) (1) So long as any shares of Preferred Stock of any series shall be
outstanding, the corporation will not declare or pay any dividends on the
Common Stock (other than dividends payable solely in shares of Common
Stock) or make any distributions of any kind, either directly or
indirectly, in respect of shares of Common Stock, or make any payment on
account of the purchase, redemption or other acquisition of Common Stock,
unless on the payment, distribution or redemption date, as the case may be,
all dividends on the then outstanding shares of Preferred Stock of all
series for all past dividends periods shall have been paid to the full
extent of the preferences, if any, to which each series of Preferred Stock
is entitled.
(2) In case the corporation shall not pay in full all dividends required to
be paid on all shares of all series of cumulative Preferred Stock at the
time outstanding to the full extent of the preference, if any, to which
each such cumulative series is entitled, all cumulative series which are of
equal rank with respect to such dividend preference shall share ratably in
the payment of dividends, including accumulations thereof, if any, in
proportion to the amounts that would be payable on such series if all
dividends thereon were paid in full. Accumulations of dividends shall not
bear interest.
(3) After the requirements with respect to preferential dividends upon all
classes of capital stock, and each series thereof, shall have been met,
then and not otherwise, the holders of Common Stock shall be entitled to
receive such dividends, out of any remaining net profits or net assets of
the corporation available therefor, when, as and if (subject to the
foregoing provisions of this Article Fourth) such dividends may be declared
from time to time by the Board of Directors. After distribution in full of
the preferential amounts to be distributed to the holders of all classes of
stock, and each series thereof, having more than parity with Common Stock
upon liquidation, dissolution or winding up, then, in the event of the
voluntary or involuntary liquidation, dissolution or winding up of the
corporation, the holders of the Common Stock shall be entitled to receive
all the remaining assets of the corporation available for distribution to
its stockholders ratably in proportion to the number of shares of Common
Stock held by them respectively.
(4) A liquidation, dissolution or winding up of the corporation, as such
terms are used herein, or as may be used in any resolution or resolutions
of the Board of Directors providing for the issue of any series of this
corporation's capital stock, shall not be deemed to be occasioned by or to
include:
(i) any consolidation or merger of the corporation with or into any other
corporation or corporations, or
(ii) any sale, lease, exchange or other transfer of any or all of the
assets of the corporation to another corporation or corporations
pursuant to a plan which shall provide for the receipt by the
corporation or its stockholders, as all or the major portion of the
consideration for such sale, lease, exchange or transfer, of
securities of such other corporation or corporations or if any company
or companies subsidiary to, controlled by, or affiliated with such
other corporation or corporations.
(d) The authorized but unissued shares of Common Stock and the authorized
but unissued shares of Preferred Stock may be issued for such
consideration, not less than the par value thereof, as may be fixed from
time to time by the Board of Directors.
(e)(1) Except as otherwise determined pursuant to authority of the Board of
Directors as hereinbefore provided, or by the Business Corporation Law of
the Commonwealth of Massachusetts, all voting rights shall be vested
exclusively in the holders of the outstanding shares of Common Stock and
each such holder shall be entitled to one vote per share for all purposes
for such share of Common Stock held of record by him.
(2) Except as otherwise determined pursuant to authority of the Board of
Directors as hereinbefore provided, or by the Business Corporation Law of
the Commonwealth of Massachusetts, the holders of Preferred Stock shall not
be entitled to vote for any purpose nor shall they be entitled to notice of
meetings of stockholders.
*We further certify that the foregoing restated articles of organization effect
no amendments to the articles of organization of the corporation as hereinunder
amended as amendments to the following articles.
(*If there are no such amendments, state "None")
NONE
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed our
names this 16th day of June in the year 1969.
/s/ Richard Hyde, President
/s/ Arthur T. Wasserman, Clerk
The Commonwealth of Massachusetts
X RESTATED ARTICLES OF ORGANIZATION
(General Laws, Chapter 156B, Section 74)
I hereby approve the within restated articles of organization and, the filing
fee in the amount of $75.00 having been paid, said articles are deemed to have
been filed with me this 18th day of June, 1969
/s/ John Davoren
/s/ Kevin White
Secretary of the Commonwealth State House, Boston, Mass.
TO BE FILLED IN BY CORPORATION
Photo copy of restated articles of organization to be sent to:
Nutter, McClennen & Fish
75 Federal Street
Boston, Massachusetts 02110
Attn: C. Alexander
Phone No. 423-7011
Copy mailed 6-20-69
The Commonwealth of Massachusetts
John F.X. Davoren
Secretary of the Commonwealth
State House, Boston, Mass.
ARTICLES OF AMENDMENT
General Laws, Chapter 156B, Section 72
This certificate must be submitted to the Secretary of the Commonwealth within
sixty days after the date of the vote of stockholders adopting the amendment.
The fee for filing this certificate is prescribed by General Laws, Chapter 156B,
Section 114. Make check payable to the Commonwealth of Massachusetts.
We, Richard Hyde, President and Arthur T. Wasserman, Clerk of
Hyde Athletic Industries, Inc.
(Name of Corporation)
located at 432 Columbia Street, Cambridge, Massachusetts
do hereby certify that the following restatement of the articles of organization
of the corporation was duly adopted at a meeting held on July 8, 1969 by vote of
625,000 shares of Common Stock out of 625,000 shares outstanding, being at least
two-thirds of each class of stock outstanding and entitled to vote thereon and
of each class or series of stock whose rights are adversely affected thereby:
For increase in capital fill in the following:
The total amount of capital ............ shares preferred with par value
stock already authorized is: ............ shares common with par value
............ shares preferred without par value
............ shares common without par value
The amount of additional ............ shares preferred with par value
capital stock authorized is: ............ shares common with par value
............ shares preferred without par value
............ shares common without par value
VOTED: That the Restated Articles of Organization of this corporation be, and
hereby are, amended to reduce the authorized Common Stock of this
corporation, one dollar par value per share, from 2,500,000 shares to
2,425,000 shares, such reduction to be accomplished by cancelling and
retiring 75,000 shares of Common Stock now held in its treasury.
VOTED: That the President and the Clerk of the corporation are hereby authorized
to execute proper Articles of Amendment setting forth the alteration and
amendment in the Restated Articles of Organization of the corporation
adopted at this meeting and the due adoption thereof and that such Articles
of Amendment be submitted to the Secretary of the Commonwealth for his
approval and filing and the proper fee be paid to him.
The foregoing amendment will become effective when these articles of amendment
are filed in accordance with Chapter 156B, Section 6 of the General Laws unless
these articles specify, in accordance with the vote adopting the amendment, a
later effective date not more than thirty days after such filing, in which event
the amendment will become effective on such later date.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed our
names this 8th day of July in the year 1969.
/s/ Richard Hyde, President
/s/ Arthur T. Wasserman, Clerk
The Commonwealth of Massachusetts
ARTICLES OF AMENDMENT
(General Laws, Chapter 156B, Section 72)
I hereby approve the within restated articles of organization and, the filing
fee in the amount of $25.00 having been paid, said articles are deemed to have
been filed with me this 10th day of July, 1969
/s/ John Davoren
/s/ Kevin White
Secretary of the Commonwealth
State House, Boston, Mass.
TO BE FILLED IN BY CORPORATION
Photo copy of restated articles of organization to be sent to:
Nutter, McClennen & Fish
75 Federal Street
Boston, Massachusetts 02110
Attn: C. Alexander
Phone No. 423-7011
Copy mailed 7-14-69
The Commonwealth of Massachusetts
Secretary of the Commonwealth
State House, Boston, Mass. 02133
04-1465840
ARTICLES OF AMENDMENT
General Laws, Chapter 156B, Section 72
This certificate must be submitted to the Secretary of the Commonwealth within
sixty days after the date of the vote of stockholders adopting the amendment.
The fee for filing this certificate is prescribed by General Laws, Chapter 156B,
Section 114. Make check payable to the Commonwealth of Massachusetts.
We, Leonard R. Fisher, President and
Joel A. Kozol, Clerk of
Hyde Athletic Industries, Inc.
(Name of Corporation)
located at 432 Columbia Street, Cambridge, Massachusetts 02141
do hereby certify that the following amendment to the articles of organization
of the corporation was duly adopted at a meeting held on June 2, 1983, by vote
of 478,310 shares of Common Stock out of 825,210 shares outstanding, being at
least a majority of each class outstanding and entitled to vote thereon. (1)
VOTED: That a change of each share of the Company's authorized Common Stock,
$1.00 par value, including all shares issued and outstanding, into three shares
having a par value of $.33 1/3 each, and an increase of the Company's authorized
Common Stock from 2,425,000 shares, $1.00 par value, to 7,275,000 shares, $.33
1/3 par value, as heretofore authorized by the Company's Board of Directors, be,
and hereby are, in all respects approved; and the Company's Board of Directors
is hereby authorized and directed to take and/or to authorize all appropriate
action to effectuate such stock split and increase of authorized capital stock.
(1) For amendment adopted pursuant to Chapter 156B, Section 70.
The foregoing amendment will become effective when these articles of amendment
are filed in accordance with Chapter 156B, Section 6 of the General Laws unless
these articles specify, in accordance with the vote adopting the amendment, a
later effective date not more than thirty days after such filing, in which event
the amendment will become effective on such later date.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed our
names this 2nd day of June in the year 1983.
/s/ Leonard R. Fisher, President
/s/ Joel A. Kozol, Clerk
The Commonwealth of Massachusetts
ARTICLES OF AMENDMENT
(General Laws, Chapter 156B, Section 72)
I hereby approve the within articles of amendment and, the filing fee in the
amount of $2,425.00 having been paid, said articles are deemed to have been
filed with me this 3rd day of June, 1983
/s/ Michael Joseph Connolly
Secretary of the Commonwealth
State House, Boston, Mass.
TO BE FILLED IN BY CORPORATION
Photo copy of restated articles of organization to be sent to:
Scott N. Semel, Esquire
Friedman and Atherton
28 State Street, 19th Floor
Boston, Massachusetts 02109
Copy mailed 6-14-83
The Commonwealth of Massachusetts
Michael J. Connolly
Secretary of the Commonwealth
State House, Boston, Mass. 02133
04-1465840
ARTICLES OF AMENDMENT
General Laws, Chapter 156B, Section 72
This certificate must be submitted to the Secretary of the Commonwealth within
sixty days after the date of the vote of stockholders adopting the amendment.
The fee for filing this certificate is prescribed by General Laws, Chapter 156B,
Section 114. Make check payable to the Commonwealth of Massachusetts.
We, Charles A. Gottesman, Senior Vice President and
Joel A. Kozol, Clerk of
Hyde Athletic Industries, Inc.
(Name of Corporation)
located at 13 Centennial Drive, Centennial Industrial Park, Peabody, MA 01961
do hereby certify that the following amendment to the articles of organization
of the corporation was duly adopted at a meeting held on June 25, 1987, by vote
of 2,197,220 shares of Common Stock out of 2,845,098 shares outstanding (1) and
2,194,378 shares of Common Stock out of 2,845,098 shares outstanding (2) being
at least two-thirds of each class outstanding and entitled to vote thereon and
of each class or series of stock whose rights are adversely affected thereby.
(2)
(1) With respect to Vote No. 1
See Continuation Sheets
(1) For amendments adopted pursuant to Chapter 156B, Section 70.
(2) For amendments adopted pursuant to Chapter 156B, Section 71.
VOTE NO. 1
VOTED: That the Restated Articles of Organization of the Corporation, as amended
to date, be and hereby are, further amended by adding to Article 6 thereof the
following provisions:
Elimination of Certain Director Liability: 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, 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 61 or
62 of the Massachusetts Business Corporation Law or (iv) for any transaction
from which the director derived an improper personal benefit. Provided, however,
that the provisions hereof shall not apply to limit or eliminate the liability
of any director for any act or omission which occurred prior to the date on
which these provisions become effective; and no amendment or repeal of said
provisions thereafter shall deprive a director of the benefits thereof with
respect to any acts or omissions occurring between the date on which these
provisions became effective and the date of such amendment or repeal.
The foregoing amendment will become effective when these articles of amendment
are filed in accordance with Chapter 156B, Section 6 of the General Laws unless
these articles specify, in accordance with the vote adopting the amendment, a
later effective date not more than thirty days after such filing, in which event
the amendment will become effective on such later date.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed our
names this 21st day of April in the year 1988.
/s/ Charles A. Gottesman, Senior Vice President
/s/ Joel A. Kozol, Clerk
The Commonwealth of Massachusetts
ARTICLES OF AMENDMENT
(General Laws, Chapter 156B, Section 72)
I hereby approve the within articles of amendment and, the filing fee in the
amount of $75.00 having been paid, said articles are deemed to have been filed
with me this 27th day of April, 1988
/s/ Michael J. Connolly
Secretary of the Commonwealth
State House, Boston, Mass.
TO BE FILLED IN BY CORPORATION
Photo copy of restated articles of organization to be sent to:
Sidney Werlin, Esquire
Friedman and Atherton
28 State Street, 19th Floor
Boston, Massachusetts 02109
Copy mailed 6-16-93
The Commonwealth of Massachusetts
OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE
MICHAEL JOSEPH CONNOLLY, Secretary
ONE ASHBURTON PLACE,
BOSTON, MASSACHUSETTS 02108
FEDERAL IDENTIFICATION
NO. 04-1465840
ARTICLES OF AMENDMENT
General Laws, Chapter 156B, Section 72
We John H. Fisher, President and
David E. Redlick, Clerk of
Hyde Athletic Industries, Inc.
(Exact name of Corporation)
located at: 13 Centennial Drive, Peabody, Massachusetts 01961
(Massachusetts Address of Corporation)
do hereby certify that these ARTICLES OF AMENDMENT affecting Articles NUMBERED:
3, 4 and 6
(Number those articles 1,2,3,4,5 and/or 6 being amended hereby)
of the Articles of Organization were duly adopted at a meeting held on May 25,
1993, by vote of:
2,009,027 shares of Common Stock out of 2,813,395 shares outstanding, (1)
2,296,992 shares of Common Stock out of 2,813,395 shares outstanding, (2)
2,456,932 shares of Common Stock out of 2,813,395 shares outstanding, (3) and
2,216,740 shares of Common Stock out of 2,813,395 shares outstanding, (4)
being at least two-thirds of each type, class or series outstanding and entitled
to vote thereon and of each type, class or series of stock whose rights are
adversely affected thereby:
(1) For the Reclassification Amendment. See Exhibit A attached hereto.
(2) For the Preferred Stock Amendment. See Exhibit B attached hereto.
(3) For the Indemnification Amendment. See Exhibit C attached hereto.
(4) For the Business Enterprise Amendment. See Exhibit D attached hereto.
To CHANGE the number of shares and the par value (if any) of any type, class or
series of stock which the corporation is authorized to issue, fill in the
following
The total presently authorized is:
- -------------------------------------------- ----------------------------------------------------------------------
Without Par Value Stocks With Par Value Stocks
- -------------------------------------------- ----------------------------------------------------------------------
Number Number
Type of Shares Type of Shares Par Value
- ----------------------- -------------------- --------------------- ---------------------- -------------------------
Common Common 7,275,000 $.33 - 1/3
- ----------------------- -------------------- --------------------- ---------------------- -------------------------
Preferred Preferred 500,000 $1.00
- ----------------------- -------------------- --------------------- ---------------------- -------------------------
CHANGE the total authorized to:
- -------------------------------------------- ----------------------------------------------------------------------
Without Par Value Stocks With Par Value Stocks
- -------------------------------------------- ----------------------------------------------------------------------
Number Number
Type of Shares Type of Shares Par Value
- ----------------------- -------------------- --------------------- ---------------------- -------------------------
Common Common
Class A 20,000,000 $.33 - 1/3
Class B 20,000,000 $.33 - 1/3
- ----------------------- -------------------- --------------------- ---------------------- -------------------------
Preferred Preferred 500,000 $1.00
- ----------------------- -------------------- --------------------- ---------------------- -------------------------
Exhibit A
RECLASSIFICATION AMENDMENT
VOTED:
That Article 3 of the corporation's Restated Articles of Organization, as
amended, be and hereby is amended to increase from 7,275,000 to 40,000,000 the
total number of shares of Common Stock, $.33 1/3 par value per share ("Common
Stock"), which the corporation shall have the authority to issue, of which
20,000,000 shares shall be designated Class A Common Stock, $.33 1/3 par value
per share ("Class A Common Stock"), and 20,000,000 shares shall be designated
Class B Common Stock, $.33 1/3 par value per share ("Class B Common Stock").
VOTED:
That Article 4 of the corporation's Restated Articles of Organization, as
amended, be and hereby is amended by (i) deleting Paragraph (d) thereof and
substituting therefor the following: "The authorized but unissued shares of
Preferred Stock may be issued for such consideration, not less than par value
thereof, as may be fixed from time to time by the Board of Directors": (ii)
deleting Paragraph (e) (1) thereof in its entirety and (iii) adding thereto the
following provisions:
"A. COMMON STOCK
1. Reclassification of Existing Common Stock. Upon these Articles of Amendment
becoming effective pursuant to Chapter 156B of the Massachusetts General Laws
(the "Effective Time"), and without any further action on the part of the
corporation or its stockholders, each share of Common Stock of the corporation,
$.33 1/3 par value per share (the "Existing Common Stock"), then issued
(including shares held in the treasury of the corporation, if any) shall
automatically be reclassified, changed and converted into one fully paid and
nonassessable share of Class A Common Stock and certificates previously
representing shares of Existing Common Stock shall be deemed to represent the
same number of shares of Class A Common Stock.
2. General. The powers, preferences and rights of the holders of Class A Common
Stock and Class B Common Stock (collectively the "Common Stock"), and the
qualifications, limitations or restrictions thereof, shall be in all respects
identical, except as otherwise required by law or expressly provided in these
Restated Articles of Organization, as amended, and subject to the powers,
preferences and rights of the holders of shares of Preferred Stock, as
determined by the Board of Directors pursuant to this Article 4.
3. Dividends. Dividends or distributions may be declared and paid to the holders
of the Class A Common Stock and the Class B Common Stock in cash, securities, or
other property of the corporation out of any funds legally available therefor.
If and when dividends or distributions on the Class A Common Stock and the Class
B Common Stock are declared payable from time to time by the Board of Directors,
whether payable in cash, in property or in securities of the corporation, the
holders of the Class A Common Stock and the holders of the Class B Common Stock
shall be entitled to share equally, on a per share basis, in such dividends,
provided, however, that in the case of regular cash dividends, no such dividends
shall be declared or paid on one class of Common Stock unless a cash dividend is
simultaneously declared and paid on the other class of Common Stock, and any
such dividend will be paid on the Class B Common Stock in an amount per share of
Class B Common Stock equal to 110% of the amount of such dividend paid on each
share of Class A Common Stock (rounded down, if necessary, to the nearest
one-hundredth of a cent); and provided, further, that, dividends or other
distribution payable on the Common Stock in capital stock shall be made to all
holders of Common Stock and may be made (i) in Class B Common Stock to the
record holders of Class A Common Stock and to the record holders of Class B
Common Stock, (ii) in Class A Common Stock to the record holders of Class A
Common Stock and in Class B Common Stock to the record holders of Class B Common
Stock or (iii) in any other authorized class or series of capital stock to the
holders of both classes of Common Stock.
4. Distribution on Dissolution, etc. Upon any liquidation, dissolution or
winding up of the corporation, whether voluntary or involuntary, the remaining
net assets of the corporation shall, after payment in full of the liquidation
preference, if any, of any outstanding Preferred Stock, be distributed pro rata,
on a per share basis, to the holders of the Class A Common Stock and the Class B
Common Stock.
5. Voting Rights.
(a) At each annual or special meeting of the stockholders, each holder of Class
A Common Stock shall be entitled to one (1) vote in person or by proxy for each
share of Class A Common Stock standing in his name on the stock transfer records
of the corporation in connection with the election of directors and all other
actions submitted to a vote of stockholders. Holders of Class B Common Stock
shall not vote on any matters: except that (i) the affirmative vote of the
holders of a majority of the outstanding shares of Class B Common Stock shall be
required for the authorization of any amendment of these Restated Articles of
Organization, as amended, that would alter or change the powers, preferences or
special rights of the Class B Common Stock so as to affect them adversely and
(ii) the holders of Class B Common Stock shall have such other voting rights as
may be required under Chapter 156B of the Massachusetts General Laws.
Notwithstanding the foregoing, an amendment of these Restated Articles of
Organization, as amended, which (A) increases the number of authorized shares of
Class B Common Stock or (B) authorizes a class or series of capital stock with
preference or priority over the Class B Common Stock with respect to the right
to receive dividends or amounts distributable upon liquidation, dissolution of
winding up of the corporation shall not be considered an amendment on which the
holders of Class B Common Stock are entitled to vote pursuant to either clause
(i) or clause (ii) of the foregoing sentence.
(b) The number of authorized shares of Class B Common Stock may be increased or
decreased (but not below the number of shares then outstanding) by the
affirmative vote of the holders of a majority of the outstanding shares of Class
A Common Stock.
6. Conversion.
(a) All outstanding Class B Common Stock may be converted into Class A Common
Stock on a share-for-share basis by the Board of Directors if, as a result of
the existence of the Class B Common Stock, either the Class A Common Stock or
Class B Common Stock is or both are excluded from trading on the New York Stock
Exchange, the American Stock Exchange and all other principal national
securities exchanges then in use and also excluded from Quotation on the
National Association of Securities Dealers Automated Quotation ("NASDAQ")
National Market System and other comparable national quotation systems then in
use. In making such determination, the Board of Directors may conclusively rely
on any information or documentation available to it, including filings made with
the Securities and Exchange Commission, any stock exchange, the National
Association of Securities Dealers, Inc. or any other governmental or regulatory
agency or any written instrument purporting to be authentic.
(b) All outstanding shares of Class B Common Stock shall automatically be
converted into shares of Class A Common Stock on a share-for-share basis if at
any time the number of outstanding shares of Class A Common Stock , as reflected
on the stock transfer records of the corporation, falls below ten percent (10%)
of the aggregate number of outstanding shares of Class A Common Stock and of
Class B Common Stock. For purposes of the immediately preceding sentence, any
Common Stock repurchased and held as treasury shares or canceled by the
corporation shall no longer be deemed "outstanding" from and after the date of
repurchase.
(c) In the event of any conversion of the Class B Common Stock pursuant to
subparagraph A(6)(a) or A(6)(b), certificates which formerly represented
outstanding shares of Class B Common Stock will thereafter be deemed to
represent a like number of shares of Class A Common Stock and all authorized
Common Stock shall consist of only Class A Common Stock.
7. Class B Common Stock Protection Provision.
(a) If, after the Effective Time, any person, entity or group (other than the
corporation) acting in concert acquires beneficial ownership of shares
representing 10% or more of the then outstanding Class A Common Stock
(excluding, for purposes of determining the shares owned by such person, entity
or group but not for purposes of determining the shares outstanding, the shares
beneficially owned by such person or group before the Effective Time and any
shares acquired upon the issuance or sale by the corporation, by operation of
law (including a merger or consolidation effected for the purpose of
recapitalizing such person or reincorporating such person in another
jurisdiction, but excluding a merger or consolidation effected for the purpose
of acquitting another person), by will or the laws of descent and distribution,
by gift or by foreclosure of a bona fide loan), and such person or group (a
"Significant Stockholder") does not then beneficially own an equal or greater
percentage of all then outstanding shares of the Class B Common Stock that such
Significant Stockholder acquired after the first issuance of Class B Common
Stock (the "Distribution Date"), such Significant Stockholder must, within a
ninety (90) day period beginning the day after becoming a Significant
Stockholder, make a public cash tender offer in compliance with all applicable
laws and regulations to acquire additional Class B Common Stock as provided in
this subparagraph A(7) of Article 4 (a "Class B Protection Transaction").
(b) In each Class B Protection Transaction, the Significant Stockholder must
make a public tender offer to acquire that number of additional shares of Class
B Common Stock determined by (i) multiplying the percentage of outstanding
shares of Class A Common Stock beneficially owned by such Significant
Stockholder and acquired after the Effective Time by such Significant
Stockholder by the total number of shares of Class B Common Stock outstanding on
the date such person or group became a Significant Stockholder, and (ii)
subtracting therefrom the excess (if any) of the number of shares of Class B
Common Stock beneficially owned on such date (including shares acquired on such
date at or prior to the time such person or group became a Significant
Stockholder) over the number of shares of Class B Common Stock beneficially
owned on the Distribution Date (as such number may be appropriately adjusted for
any stock splits, stock dividends or similar recapitalization). The Significant
Stockholder must acquire all of such shares validly tendered; provided, however,
that if the number of shares of Class B Common Stock tendered to the Significant
Stockholder exceeds the number of shares required to be acquired pursuant to the
formula set forth in this subparagraph A(7)(b), the number of shares of Class B
Common Stock acquired from each tendering holder shall be such portion of the
number of shares tendered by such stockholder as is equal to the number of
shares required to be acquired as a percentage of the total number of shares
tendered by all tendering holders.
(c) The offer price for any Class B Common Stock required to be purchased by the
Significant Stockholder pursuant to this subparagraph A(7) shall be the greatest
of (i) the highest price per share paid by the Significant Stockholder for any
share of Class A Common Stock in the six month period ending on the date such
person or group became a Significant Stockholder, (ii) the highest reported sale
price of a share of Class A Common Stock or Class B Common Stock on the NASDAQ
National Market System (or such other exchange or quotation system as is then
the principal trading market for such shares) on the date such person or group
became a Significant Stockholder and (iii) the highest reported sale price of a
share of Class A Common Stock or Class B Common Stock on the NASDAQ National
Market System (or such other exchange or quotation system as is then the
principal trading market for such shares) on the date preceding the date the
Significant Stockholder makes the tender offer required by this subparagraph
A(7). For purposes of subparagraph A(7)(d) below, the applicable date for each
calculation required by clauses (i) and (ii) of the preceding-sentence shall be
the date on which the Significant Stockholder becomes required to engage in the
subsequent Class B Protection Transaction for which such calculation is
required. In the event that the Significant Stockholder as acquired Class A
Common Stock in the six month period ending on the date such person or group
becomes a Significant Stockholder for consideration other than cash, the value
of such consideration per share of Class A Common Stock shall be as determined
in good faith by the Board of Directors.
(d) A Class B Protection Transaction shall also be required to be effected by
any Significant Stockholder each time that the Significant Stockholder acquires
beneficial ownership of the next higher integral multiple of 5% (e.g., 15%, 20%,
25%, etc.) of the outstanding Class A Common Stock after the Effective Time
(other than upon the issuance or sale by the corporation, by operation of law
(including a merger or consolidation effected for the purpose of recapitalizing
such person or reincorporating such person in another jurisdiction, but
excluding a merger or consolidation effected for the purpose of acquiring
another person), by will of the laws of descent and distribution, by gift, or by
foreclosure of a bona fide loan) if such Significant Stockholder does not then
own an equal or greater percentage of the Class B Common Stock that such
Significant Stockholder acquired after the Distribution Date. Such Significant
Stockholder shall be required to make a public cash tender offer to acquire that
number of shares of Class B Common Stock prescribed by the formula set forth in
subparagraph A(7)(b) above and must acquire all shares validly tendered or a pro
rate portion thereof, as specified in subparagraph A(7)(b), at the price
determined pursuant to subparagraph A(7)(c) above.
(e) If any Significant Stockholder fails to make an offer required by this
subparagraph A(7), or to purchase shares validly tendered and not withdrawn
(after proration, if any), such Significant Stockholder shall not be entitled to
vote any Class A Common Stock beneficially owned by such Significant Stockholder
unless and until such requirements are complied with or unless and until all
Class A Common Stock causing such offer requirement to be effective are no
longer beneficially owned by such Significant Stockholder.
(f) The Class B Protection Transaction requirement shall not apply to any
increase in percentage beneficial ownership of Class A Common Stock resulting
solely from a change in the total amount of Class A Common Stock outstanding,
provided that any acquisition after such change which resulted in any person,
entity or group beneficially owning ten percent (10%) or more of the Class A
Common Stock (excluding, for purposes of determining the shares owned by such
person, entity or group but not for purposes of determining the shares
outstanding, Class A Common Stock held by such Significant Stockholder
immediately after the Effective Time) shall be subject to any Class B Protection
Transaction requirement that would be imposed with respect to a Significant
Stockholder pursuant to this subparagraph A(7).
(g) All calculations with respect to percentage beneficial ownership of issued
and outstanding shares of either class of Common Stock will be based upon the
numbers of issued and outstanding shares reported by the corporation on the last
to be filed of (i) the corporation's most recent Annual Report on Form 10-K,
(ii) its most recent Quarterly Report on Form 10-Q, (iii) its most recent
Current Report on Form 8-K, and (iv) its most recent Form 10-C.
(h) For purposes of this subparagraph A(7), the term "person" means a natural
person, corporation, partnership, trust, association, government, or political
subdivision, agency or instrumentality of a government, or other entity.
"Beneficial ownership" shall be determined pursuant to Rule 13d-3 promulgated
under the Securities Exchange Act of 1934, as amended (the "1934 Act"), or any
successor regulation. The formation or existence of a "group" shall be
determined pursuant to Rule 13d-5(b) under the 1934 Act or any successor
regulation.
8. Merger or Consolidation. In the event of a merger or consolidation of the
corporation with or into another entity (whether or not the corporation is the
surviving entity), the holders of Class B Common Stock shall be entitled to
receive the same per share consideration as the per share consideration, if any,
received by the holders of Class A Common Stock in such merger or consolidation.
9. Splits, Subdivisions, etc. If the corporation shall in any manner split,
subdivide or combine the outstanding Class A Common Stock or Class B Common
Stock, the outstanding shares of the other such class of Common Stock shall be
proportionally split, subdivided or combined in the same manner and on the same
basis as the outstanding shares of the other class of Common Stock have been
split, subdivided or combined.
10. No Preemptive Rights. No holder of Class A Common Stock or Class B Common
Stock shall, by reason of such holding, have any preemptive right to subscribe
to any additional issue of stock of any class or series of the corporation or to
any security of the corporation convertible into such stock.
11. Consideration for Sale of Shares. The Board of Directors shall have the
power to issue and sell all or any part of any class of stock herein or
hereafter authorized to such persons, firms, associations or corporations, and
for such consideration, as the Board of Directors shall from time to time, in
its discretion, determine, whether or not greater consideration could be
received upon the issue or sale of the same number of shares of another class,
and as otherwise permitted by law.
12. Consideration for Purchase of Shares. The Board of Directors shall have the
power to purchase any class of stock herein or hereafter authorized from such
persons, firms, associations or corporations, and for such consideration, as the
Board of Directors shall from time to time, in its discretion, determine,
whether or not less consideration could be paid upon the purchase of the same
number of shares of another class, and as otherwise permitted by law."
Exhibit B
PREFERRED STOCK AMENDMENT
VOTED:
That Article 4 of the corporation's Restated Articles of Organization, as
amended, be and hereby is deleted, except for any other provision added by an
amendment approved by the corporation's stockholders at the corporation's Annual
Meeting of Stockholders held on May 25, 1993 or any adjournment thereof, and the
following is substituted therefor:
"B. PREFERRED STOCK
1. The shares of Preferred Stock may be divided into and issued in one or more
series of any number of shares, provided that the aggregate numbers of shares
outstanding of all such series shall not exceed the total number of shares of
Preferred Stock authorized by the Restated Articles of Organization. Each series
of Preferred Stock shall be distinctively designated. Except as otherwise herein
stated, all series of Preferred Stock shall rank equally and be identical in all
respects. Each share of a series shall be identical in all respects with all
other shares of such series.
2. The Board of Directors shall have authority by resolution to establish and
designate each series of Preferred Stock and the number of shares which shall
constitute each series (which number may be increased (except where otherwise
provided by the Board of Directors in creating such series) or decreased (but
not below the number of shares thereof then outstanding) by vote of the Board of
Directors), and therein to fix and determine the variations in the relative
rights preferences as between the different series with respect to:
(a) the annual rate or amount of dividends payable on shares of each
series, whether such dividends shall be cumulative or non-cumulative, the
conditions upon which and/or the dates when such dividends shall be payable and
the date from which dividends on cumulative series shall accrue and be
cumulative on all shares of each series issued prior to the payment date for the
first dividend of each such series;
(b) whether each series shall be redeemable or callable and, if so, the
terms and conditions of such redemption or call, including the time or times
when and the price or prices at which shares of each series shall be redeemed,
or called, and including the terms and conditions of any retirement or sinking
fund for the purchase or redemption of shares of each series;
(c) the amount payable on shares of each series in the event of
liquidation, dissolution or winding up of the affairs of the corporation;
(d) whether each series shall be convertible into or exchangeable for
shares of any other class, or any series of the same or any other class, and, if
so, the terms and conditions thereof including the date or dates when such
shares shall be convertible into or exchangeable for shares of any other class,
or any series of the same or any other class, the price or prices or the rate or
rates at which shares of each series shall be so convertible or exchangeable,
and any adjustments which shall be made, and the circumstances in which any such
adjustments shall be made, in such conversion or exchange prices or rates;
(e) whether each series shall have any voting rights in addition to those
prescribed by law, and, if so, the terms and conditions of exercise of such
voting rights;
(f) the conditions and restrictions, if any, on the payment of dividends,
or on the making of other distributions on, or the purchase, redemption or other
acquisition by, the corporation or any subsidiary, of the Common Stock, or of
any other class (or other series of the same class) ranking junior to the shares
of such series as to dividends or upon liquidation, dissolution or winding up;
(g) the conditions and restrictions, if any, on the creation of
indebtedness of the corporation or any subsidiary, or on the issue of any
additional stock ranking on a parity with or prior to the shares of each series
as to dividends or upon liquidation, dissolution or winding up; and
(h) such other powers, preferences and relative participating, optional or
other special rights, and qualifications, limitations or restrictions as shall
not be inconsistent with any such resolution or resolutions previously adopted
as to shares then still authorized or with the provisions of these Restated
Articles of Organization or with the laws of the Commonwealth of Massachusetts.
3. In case the corporation shall not pay in full all dividends required to be
paid on all shares of all series of cumulative Preferred Stock at the time
outstanding to the full extent of the preference, if any, to which each such
cumulative series is entitled, all cumulative series which are of equal rank
with respect to such dividend preference shall share ratably in the payment of
dividends, including accumulations thereof, if any, in proportion to the amounts
that would be payable on such series if all dividends thereon were paid in full.
Accumulations of dividends shall not bear interest.
4. The authorized but unissued shares of Preferred Stock may be issued for such
consideration, not less than the par value thereof, as may be fixed from time to
time by the Board of Directors.
5. Except as otherwise determined pursuant to authority of the Board of
Directors as hereinbefore provided, or by Chapter 156B of the Massachusetts
General Laws, the holders of Preferred Stock shall not be entitled to vote for
any purpose nor shall they be entitled to notice of meetings of stockholders."
Exhibit C
INDEMNIFICATION AMENDMENT
VOTED:
That the corporation's Restated Articles of organization, as amended, be and
hereby are amended by adding to Article 6 thereof the following provision:
INDEMNIFICATION
1. Actions, Suits and Proceedings. The corporation shall indemnify each 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, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was, or has
agreed to become, a director or officer of the corporation, or is or was
serving, or has agreed to serve, at the request of the corporation, as a
director or officer of, or in a similar capacity with, another organization or
in any capacity with respect to any employee benefit plan of the corporation
(all such persons being referred to hereafter as an "Indemnitee"), or by reason
of any action alleged to have been taken or omitted in such capacity, against
all expenses (including attorneys' fees), judgments and fines incurred by him or
on his behalf in connection with such action, suit or proceeding and any appeal
therefrom, unless the Indemnitee shall be finally adjudicated in such action,
suit or proceeding not to have acted in good faith in the reasonable belief that
his action was in the best interests of the corporation or, to the extent such
matter relates to service with respect to an employee benefit plan, in the best
interests of the participants or beneficiaries of such employee benefit plan.
Notwithstanding anything to the contrary in this Article, except as set forth in
Section 5 below, the corporation shall not indemnify as Indemnitee seeking
indemnification in connection with a proceeding (or part thereof) initiated by
the Indemnitee unless the initiation thereof was approved by the Board of
Directors of the corporation.
2. Settlements. The right to indemnification conferred in this Article shall
include the right to be paid by the corporation for amounts paid in settlement
of any such action, suit or proceeding and any appeal therefrom, and all
expenses (including attorneys' fees) incurred in connection with such
settlement, pursuant to a consent decree or otherwise, unless and to the extent
it is determined pursuant to Section 5 below that the Indemnitee did not act in
good faith in the reasonable belief that his action was in the best interests of
the corporation or, to the extent such matter relates to service with respect to
an employee benefit plan, in the best interests of the participants or
beneficiaries of such employee benefit plan.
3. Notification and Defense of Claim. As a condition precedent to his right to
be indemnified, the Indemnitee must notify the corporation in writing as soon as
practicable of any action, suit, proceeding or investigation involving him for
which indemnity will or could be sought. With respect to any action, suit,
proceeding or investigation of which the corporation is so notified, the
corporation will be entitled to participate therein at its own expense and/or to
assume the defense thereof at its own expense, with legal counsel reasonably
acceptable to the Indemnitee. After notice from the corporation to the
Indemnitee of its election so to assume such defense, the corporation shall not
be liable to the Indemnitee for any legal or other expenses subsequently
incurred by the Indemnitee in connection with such claim, other than as provided
below in this Section 3. The Indemnitee shall have the right to employ his own
counsel in connection with such claim, but the fees and expenses of such counsel
incurred after notice from the corporation of its assumption of the defense
thereof shall be at the expense of the Indemnitee unless (i) the employment of
counsel by the Indemnitee has been authorized by the corporation, (ii) counsel
to the Indemnitee shall have reasonably concluded that there may be a conflict
of interest or position on any significant issue between the corporation and the
Indemnitee in the conduct of the defense of such action or (iii) the corporation
shall not in fact have employed counsel to assume the defense of such action in
each of which cases the fees and expenses of counsel for the Indemnitee shall be
at the expense of the corporation, except as otherwise expressly provided by
this Article. The corporation shall not be entitled, without the consent of the
Indemnitee, to assume the defense of any claim brought by or in the right of the
corporation or as to which counsel for the Indemnitee shall have reasonably made
the conclusion provided for in clause (ii) above.
4. Advance of Expenses. Subject to the provisions of Section 5 below, in the
event that the corporation does not assume the defense pursuant to Section 3 of
this Article of any action, suit, proceeding or investigation of which the
corporation receives notice under this Article, any expenses (including
attorneys' fees) incurred by an Indemnitee in defending a civil or criminal
action, suit, proceeding or investigation or any appeal therefrom shall be paid
by the corporation in advance of the final disposition of such matter, provided,
however, that the payment of such expenses incurred by an Indemnitee in advance
of the final disposition of such matter shall be made only upon receipt of an
undertaking by or on behalf of the Indemnitee to repay all amounts so advanced
in the event that it shall ultimately be determined that the Indemnitee is not
entitled to be indemnified by the corporation as authorized in this Article.
Such undertaking may be accepted without reference to the financial ability of
the Indemnitee to make such repayment.
5. Procedure for Indemnification. In order to obtain indemnification or
advancement of expenses pursuant to Section 1, 2 or 4 of this Article, the
Indemnitee shall submit to the corporation a written request, including in such
request such documentation and information as is reasonably available to the
Indemnitee and is reasonably necessary to determine whether and to what extent
the Indemnitee is entitled to indemnification or advancement of expenses. Any
such indemnification or advancement of expenses shall be made promptly, and in
any event within 60 days after receipt by the corporation of the written request
of the Indemnitee, unless the corporation determines, by clear and convincing
evidence, within such 60-day period that the Indemnitee did not meet the
applicable standard of conduct set forth in Section 1 or 2, as the case may be.
Such determination shall be made in each instance by (a) a majority vote of a
quorum of the directors of the corporation, (b) a majority vote of a quorum of
the outstanding shares of stock of all classes entitled to vote for directors,
voting as a single class, which quorum shall consist of stockholders who are not
at the time parties to the action, suit or proceeding in question, (c)
independent legal counsel (who may be regular legal counsel to the corporation),
or (d) a court of competent jurisdiction.
6. Remedies. The right to indemnification or advances as granted by this Article
shall be enforceable by the Indemnitee in any court of competent jurisdiction if
the corporation denies such request, in whole or in part, or if no disposition
thereof is made within the 60-day period referred to above in Section 5. Unless
otherwise provided by law, the burden of proving that the Indemnitee is not
entitled to indemnification or advancement of expenses under this Article shall
be on the corporation. Neither the failure of the corporation to have made a
determination prior to the commencement of such action that indemnification is
proper in the circumstances because the Indemnitee has met the applicable
standard of conduct, nor an actual determination by the corporation pursuant to
Section 5 that the Indemnitee has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the Indemnitee has
not met the applicable standard of conduct. The Indemnitee's expenses (including
attorneys' fees) incurred in connection with successfully establishing his right
to indemnification, in whole or in part, in any such proceeding shall also be
indemnified by the corporation.
7. Subsequent Amendment. No amendment, termination or repeal of this Article or
of the relevant provisions of Chapter 156B of the Massachusetts General Laws or
any other applicable laws shall affect or diminish in any way the rights of any
Indemnitee to indemnification under the provisions hereof with respect to any
action, suit, proceeding or investigation arising out of or relating to any
actions, transactions or facts occurring prior to the final adoption of such
amendment, termination or repeal.
8. Other Rights. The indemnification and advancement of expenses provided by
this Article shall not be deemed exclusive of any other rights to which an
Indemnitee seeking indemnification or advancement of expenses may be entitled
under any law (common or statutory), agreement or vote of stockholders or
directors or otherwise, both as to action in his official capacity and as to
action in any other capacity while holding office for the corporation, and shall
continue as to an Indemnitee who has ceased to be a director or officer, and
shall inure to the benefit of the estate, heirs, executors and administrators of
the Indemnitee. Nothing contained in this Article shall be deemed to prohibit,
and the corporation is specifically authorized to enter into, agreements with
officers and directors providing indemnification rights and procedures different
from those set forth in this Article. In addition, the corporation may, to the
extent authorized from time to time by its Board of Directors, grant
indemnification rights to other employees or agents of the corporation or other
persons serving the corporation and such rights may be equivalent to, or greater
or less than, those set forth in this Article.
9. Partial Indemnification. If an Indemnitee is entitled under any provision of
this Article to indemnification by the corporation for some or a portion of the
expenses (including attorneys' fees), judgments, fines or amounts paid in
settlement actually and reasonably incurred by him or on his behalf in
connection with any action, suit, proceeding or investigation and any appeal
therefrom but not, however, for the total amount thereof, the corporation shall
nevertheless indemnify the Indemnitee for the portion of such expenses
(including attorneys' fees), judgments, fines or amounts paid in settlement to
which the Indemnitee is entitled.
10. Insurance. The corporation may purchase and maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
corporation or another organization or employee benefit plan against any
expense, liability or loss incurred by him in any such capacity, or arising out
of his status as such, whether or not the corporation would have the power to
indemnify such person against such expense, liability or loss under Chapter 156B
of the Massachusetts General Laws.
11. Merger or Consolidation. If the corporation is merged into or consolidated
with another corporation and the corporation is not the surviving corporation,
the surviving corporation shall assume the obligations of the corporation under
this Article with respect to any action, suit, proceeding or investigation
arising out of or relating to any actions, transactions or facts occurring prior
to the date of such merger or consolidation.
12. Savings Clause. If this Article or any portion hereof shall be invalidated
on any ground by any court of competent jurisdiction, then the corporation shall
nevertheless indemnify each Indemnitee as to any expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement in connection with any
action, suit, proceeding or investigation, whether civil, criminal or
administrative, including an action by or in the right of the corporation, to
the fullest extent permitted by any applicable portion of this Article that
shall not have been invalidated and to the fullest extent permitted by
applicable law.
13. Subsequent Legislation. If the Massachusetts General Laws are amended after
adoption of this Article to expand further the indemnification permitted to
Indemnitees, then the corporation shall indemnify such persons to the fullest
extent permitted by the Massachusetts General Laws, as so amended.
Exhibit D
BUSINESS ENTERPRISE AMENDMENT
VOTED:
That the corporation's Restated Articles of Organization, as amended, be and
hereby are amended by adding to Article 6 thereof the following provision:
AUTHORITY TO BE A PARTNER IN ANY BUSINESS ENTERPRISE
The corporation shall have the power to be a partner in any business
enterprise which this corporation would have the power to conduct by
itself.
The foregoing amendment will become effective when these articles of amendment
are filed in accordance with Chapter 156B, Section 6 of The General Laws unless
these articles specify, in accordance with the vote adopting the amendment, a
later effective date not more than thirty days after such filing, in which event
the amendment will become effective on such later date.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereunto signed
our names this 25th day of May, in the year 1993.
/s/ John H. Fisher, President and
/s/ David E. Redlick, Clerk
The Commonwealth of Massachusetts
ARTICLES OF AMENDMENT
(General Laws, Chapter 156B, Section 72)
I hereby approve the within articles of amendment and, the filing fee in the
amount of $32,925 having been paid, said articles are deemed to have been filed
with me this 25th day of May, 1993.
/s/ Michael Joseph Connolly
Secretary of State
TO BE FILLED IN BY CORPORATION
Photocopy of restated articles of organization to be sent to:
David E. Redlick
Hale and Dorr
60 State Street
Boston, MA 02109
Telephone: 617-526-6434
FEDERAL IDENTIFICATION
NO. 04-1465840
THE COMMONWEALTH OF MASSACHUSETTS
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
One Ashburton Place
Boston, Massachusetts 02108-1512
ARTICLES OF AMENDMENT
(GENERAL LAWS, CHAPTER 156B, SECTION 72)
We, John H. Fisher, President and
David E. Redlick, Clerk of
Hyde Athletic Industries, Inc.,
(Exact name of corporation)
located at 13 Centennial Drive, Centennial Industrial Park, Peabody, MA 01960.
(Street address of corporation in Massachusetts)
certify that these Articles of Amendment affecting articles numbered:
1
(Number those articles 1, 2, 3, 4, 5 and/or 6 being amended)
of the Articles of Organization were duly adopted at a meeting held on May 21,
1998, by vote of:
2,316,015 shares of Class A Common Stock of 2,703,227 shares outstanding,
(type, class & series, if any)
1**being at least a majority of each type, class or series outstanding and
entitled to vote thereon:
VOTED: That Article 1 of the Articles of Organization of the Corporation be
deleted in its entirety and that the following be inserted in lieu
thereof:
1. The name by which the corporation shall be known is:
Saucony, Inc.
To change the number of shares and the par value (if any) of any type, class or
series of stock which the corporation is authorized to issue, fill in the
following:
The total presently authorized is:
- -------------------------------------------- ----------------------------------------------------------------------
Without Par Value Stocks With Par Value Stocks
- -------------------------------------------- ----------------------------------------------------------------------
Number Number
Type of Shares Type of Shares Par Value
- ----------------------- -------------------- --------------------- ---------------------- -------------------------
Common Common
- ----------------------- -------------------- --------------------- ---------------------- -------------------------
Preferred Preferred
- ----------------------- -------------------- --------------------- ---------------------- -------------------------
Change the total authorized to:
- -------------------------------------------- ----------------------------------------------------------------------
Without Par Value Stocks With Par Value Stocks
- -------------------------------------------- ----------------------------------------------------------------------
Number Number
Type of Shares Type of Shares Par Value
- ----------------------- -------------------- --------------------- ---------------------- -------------------------
Common Common
- ----------------------- -------------------- --------------------- ---------------------- -------------------------
Preferred Preferred
- ----------------------- -------------------- --------------------- ---------------------- -------------------------
The foregoing amendment(s) will become effective when these Articles of
Amendment are filed in accordance with General Laws, Chapter 156B, Section 6
unless these articles specify, in accordance with the vote adopting the
amendment, a later effective date not more than thirty days after such filing,
in which event the amendment will become effective on such later date.
SIGNED UNDER THE PENALTIES OF PERJURY, this 21st day of May, 1998.
/s/ John H. Fisher, President
/s/ David E. Redlick, Clerk
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
(GENERAL LAWS, CHAPTER 156B, SECTION 72)
I hereby approve the within Articles of Amendment and, the filing fee in the
amount of $___ having been paid, said articles are deemed to have been filed
with me this______ day of ________ 19___.
Effective date:
WILLIAM FRANCIS GALVIN
SECRETARY OF THE COMMONWEALTH
TO BE FILLED IN BY CORPORATION
PHOTOCOPY OF DOCUMENT TO BE SENT TO:
Donna A. Pace
Corporate Paralegal
Hale and Dorr LLP
60 State Street
Boston, MA 02109
(617) 526-5179