EXHIBIT 3.1
FORM CD-26-5M-8-83
The Commonwealth of Massachusetts
William Francis Galvin
Secretary of the Commonwealth
RAL IDENTIFICATION
ONE ASHBURTON PLACE, BOSTON, MASS. 02108
NO. 04-2640942
CERTIFICATE OF VOTE OF DIRECTORS ESTABLISHING
A SERIES OF A CLASS OF STOCK
General Laws, Chapter 156B, Section 26
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We, Mark S. Ain , President and
Paul A. Lacy , Clerk of
Kronos Incorporated
..........................................................
400 Fifth Avenue, Waltham, Massachusetts 02154
located at ...................................................
do hereby certify that at a meeting of the directors of the corporation held on
November 17
............ 19 95 , the following vote establishing and designating a series
of a class of stock and determining the relative rights and preferences thereof
was duly adopted:-
See Continuation Sheet 2A (Pages 1 through 10)
NOTE: Votes for which the space provided above is not sufficient should be set
out on continuation sheets to be numbered 2A, 2B etc.
Continuation sheets must have a left-hand margin 1 inch wide for binding and
shall be 8 1/2" x 11". Only one side should be used.
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CONTINUATION OF SHEET 2A
RESOLVED: That pursuant to the authority granted to and vested in the Board of
Directors of this Corporation (hereinafter called the "Board of Directors" or
the "Board") in accordance with the provisions of the Restated Articles of
Organization, the Board of Directors hereby creates a series of Preferred Stock,
$1.00 par value (the "Preferred Stock"), of the Corporation and hereby states
the designation and number of shares, and fixes the relative rights, preferences
and limitations thereof as follows:
Series A Junior Participating Preferred Stock:
Section 1. Designation and Amount. The shares of such series shall be designated
as "Series A Junior Participating Preferred Stock" (the "Series A Preferred
Stock") and the number of shares constituting the Series A Preferred Stock shall
be Twelve Thousand Five Hundred (12,500). Such number of shares may be increased
or decreased by resolution of the Board of Directors; provided, that no decrease
shall reduce the number of shares of Series A Preferred Stock to a number less
than the number of shares then outstanding plus the number of shares reserved
for issuance upon the exercise of outstanding options, rights or warrants or
upon the conversion of any outstanding securities issued by the Corporation
convertible into Series A Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any series
of Preferred Stock (or any similar stock) ranking prior and superior
to the Series A Preferred Stock with respect to dividends, the holders
of shares of Series A Preferred Stock, in preference to the holders of
Common Stock, par value $.01 per share (the "Common Stock"), of the
Corporation, and of any other junior stock, shall be entitled to
receive, when, as and if declared by the Board of Directors out of
funds of the Corporation legally available for the payment of
dividends, quarterly dividends payable in cash on the last day of each
fiscal quarter of the Corporation in each year (each such date being
referred to herein as a "Quarterly Dividend Payment Date"), commencing
on the first Quarterly Dividend Payment Date after the first issuance
of a share or fraction of a share of Series A Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the greater of
(a) $10 or (b) subject to the provision for adjustment hereinafter set
forth, 1,000 times the aggregate per share amount of all cash
dividends, and 1,000 times the aggregate per share
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amount (payable in kind) of all non-cash dividends or other
distributions, other than a dividend payable in shares of Common Stock
or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date or, with respect
to the first Quarterly Dividend Payment Date, since the first issuance
of any share or fraction of a share of Series A Preferred Stock. In
the event the Corporation shall at any time (i) declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or
(ii) effect a subdivision, combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Common Stock) (except, with
respect to subsections (i) or (ii) above, in such case that the
Corporation simultaneously declares or pays a dividend on, or effects
a subdivision, combination or consolidation of, the Series A Preferred
Stock) into a greater or lesser number of shares of Common Stock, then
in each such case the amount to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event under
clause (b) of the preceding sentence shall be adjusted by multiplying
such amount by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event. In the event the
Corporation shall at any time declare or pay any dividend on the
Series A Preferred Stock payable in shares of Series A Preferred
Stock, or effect a subdivision, combination or consolidation of the
outstanding shares of Series A Preferred Stock (by reclassification or
otherwise than by payment of a dividend in shares of Series A
Preferred Stock) into a greater or lesser number of shares of Series A
Preferred Stock, then in each such case the amount to which holders of
shares of Series A Preferred Stock were entitled immediately prior to
such event under clause (b) of the first sentence of this Section 2(A)
shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Series A Preferred Stock
that were outstanding immediately prior to such event and the
denominator of which is the number of shares of Series A Preferred
Stock outstanding immediately after such event.
(B) The Corporation shall declare a dividend or distribution on the Series
A Preferred Stock as provided in paragraph (A) of this Section
immediately after it declares a dividend or distribution on the Common
Stock (other than
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a dividend payable in shares of Common Stock) and the Corporation
shall pay such dividend or distribution on the Series A Preferred
Stock before the dividend or distribution declared on the Common Stock
is paid or set apart; provided that, in the event no dividend or
distribution shall have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $10 per
share on the Series A Preferred Stock shall nevertheless be payable on
such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment
Date next preceding the date of issue of such shares, unless the date
of issue of such shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such
shares shall begin to accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment Date or is a
date after the record date for the determination of holders of shares
of Series A Preferred Stock entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which
events such dividends shall begin to accrue and be cumulative from
such Quarterly Dividend Payment Date. Accrued but unpaid dividends
shall not bear interest. Dividends paid on the shares of Series A
Preferred Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at
the time outstanding. The Board of Directors may fix a record date for
the determination of holders of shares of Series A Preferred Stock
entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be not more than 60 days prior to the
date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Preferred Stock
shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Series A Preferred Stock shall entitle the holder thereof to
10 votes on all matters submitted to a vote of the stockholders of the
Corporation. In the event the Corporation shall at any time declare or
pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision, combination or consolidation of the
outstanding shares of Common Stock (by reclassification
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or otherwise than by payment of a dividend in shares of Common Stock)
(except, with respect to subsections (i) and (ii) above, in such case
that the Corporation simultaneously declares or pays a dividend on, or
effects a subdivision, combination or consolidation of, the Series A
Preferred Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the number of votes per share to which
holders of shares of Series A Preferred Stock were entitled
immediately prior to such event shall be adjusted by multiplying such
number by a fraction, the numerator of which is the number of shares
of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event. In the event the
Corporation shall at any time (i) declare or pay any dividend on the
Series A Preferred Stock payable in shares of Series A Preferred
Stock, or (ii) effect a subdivision, combination or consolidation of
the outstanding shares of Series A Preferred Stock (by
reclassification or otherwise than by payment of a dividend in shares
of Series A Preferred Stock) into a greater or lesser number of shares
of Series A Preferred Stock, then in each such case the number of
votes per share to which holders of shares of Series A Preferred Stock
were entitled immediately prior to such event shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the
number of shares of Series A Preferred Stock that were outstanding
immediately prior to such event and the denominator of which is the
number of shares of Series A Preferred Stock outstanding immediately
after such event.
(B) Except as otherwise provided herein, in the Restated Articles of
Organization, as amended, or by law, the holders of shares of Series A
Preferred Stock and the holders of shares of Common Stock and any
other capital stock of the Corporation having general voting rights
shall vote together as one class on all matters submitted to a
vote of stockholders of the Corporation.
(C)(i) If at any time dividends on any Series A Preferred Stock shall be in
arrears in an amount equal to six quarterly dividends thereon, the
holders of the Series A Preferred Stock, voting as a separate series
from all other series of Preferred Stock and classes of capital stock,
shall be entitled to elect two members of the Board of Directors in
addition to any Directors elected by any other series, class or
classes of securities and the authorized number of Directors will
automatically be increased by two. Promptly thereafter, the Board of
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Directors of this Corporation shall, as soon as may be practicable,
call a special meeting of holders of Series A Preferred Stock for the
purpose of electing such members of the Board of Directors. Said
special meeting shall in any event be held within 45 days of the
occurrence of such arrearage.
(ii) During any period when the holders of Series A Preferred Stock,
voting as a separate series, shall be entitled and shall have exercised
their right to elect two Directors, then and during such time as such
right continues (a) the then authorized number of Directors shall be
increased by two, and the holders of Series A Preferred Stock, voting
as a separate series, shall be entitled to elect the additional
Directors so provided for, and (b) each such additional Director shall
not be a member of any existing class of the Board of Directors, but
shall serve until the next annual meeting of stockholders for the
election of Directors, or until his successor shall be elected and
shall qualify, or until his right to hold such office terminates
pursuant to the provisions of this Section 3(C)
(iii) A Director elected pursuant to the terms hereof may be removed
with or without cause by the holders of Series A Preferred Stock
entitled to vote in an election of such Director.
(iv) If, during any interval between annual meetings of stockholders
for the election of Directors and while the holders of Series A
Preferred Stock shall be entitled to elect two Directors, there is no
such Director in office by reason of resignation, death or removal,
then, promptly thereafter, the Board of Directors shall call a special
meeting of the holders of Series A Preferred Stock for the purpose of
filling such vacancy and such vacancy shall be filled at such special
meeting. Such special meeting shall in any event be held within 45 days
of the occurrence of such vacancy.
(v) At such time as the arrearage is fully cured, and all dividends
accumulated and unpaid on any shares of Series A Preferred Stock
outstanding are paid, and, in addition thereto, at least one regular
dividend has been paid subsequent to curing such arrearage, the term of
office of any Director elected pursuant to this Section 3(C), or his
successor, shall automatically terminate, and the authorized number of
Directors shall automatically decrease by two, the rights of the
holders of the shares of the Series A Preferred Stock to vote as
provided in this Section 3(C) shall cease, subject to
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renewal from time to time upon the same terms and conditions, and the
holders of shares of the Series A Preferred Stock shall have only the
limited voting rights elsewhere herein set forth.
(D) Except as set forth herein, or as otherwise provided by law, holders of
Series A Preferred Stock shall have no special voting rights and their
consent shall not be required (except to the extent they are entitled
to vote with holders of Common Stock as set forth herein) for taking
any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section 2 are in
arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Preferred
Stock outstanding shall have been paid in full, the Corporation shall
not:
(i) declare or pay dividends, or make any other distributions, on any
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred
Stock;
(ii) declare or pay dividends, or make any other distributions, on any
shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred
Stock, except dividends paid ratably on the Series A Preferred Stock
and all such parity stock on which dividends are payable or in arrears
in proportion to the total amounts to which the holders of all such
shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares
of any stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred
Stock, provided that the Corporation may at any time redeem, purchase
or otherwise acquire shares of any such junior stock in exchange for
shares of any stock of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or winding up) to the Series
A Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration any
shares of Series A Preferred Stock, or any shares of stock ranking on a
parity with the Series
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A Preferred Stock, except in accordance with a purchase offer made in
writing or by publication (as determined by the Board of Directors) to
all holders of such shares upon such terms as the Board of Directors,
after consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and classes,
shall determine in good faith will result in fair and equitable
treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation to
purchase or otherwise acquire for consideration any shares of stock of
the Corporation unless the Corporation could, under paragraph (A) of
this Section 4, purchase or otherwise acquire such shares at such time
and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Preferred Stock purchased
or otherwise acquired by the Corporation in any manner whatsoever shall be
retired and cancelled promptly after the acquisition thereof. All such shares
shall upon their cancellation become authorized but unissued shares of Preferred
Stock and may be reissued as part of a new series of Preferred Stock subject to
the conditions and restrictions on issuance set forth herein, in the Restated
Articles of Organization, as amended, or in any other Certificate of Designation
creating a series of Preferred Stock or any similar stock or as otherwise
required by law.
Section 6. Liquidation, Dissolution or Winding Up.
(A) Upon any liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (1) to the holders of shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding
up) to the Series A Preferred Stock unless, prior thereto, the holders of
shares of Series A Preferred Stock shall have received $10 per share, plus
an amount equal to accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment, provided that the
holders of shares of Series A Preferred Stock shall be entitled to receive
an aggregate amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 1,000 times the aggregate amount to be
distributed per share to holders of shares of Common Stock, or (2) to the
holders of shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A Preferred
Stock, except distributions made ratably on the Series A Preferred Stock
and all such parity stock in proportion to the
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total amounts to which the holders of all such shares are entitled upon
such liquidation, dissolution or winding up.
(B) Neither the consolidation, merger or other business combination of the
Corporation with or into any other corporation nor the sale, lease,
exchange or conveyance of all or any part of the property, assets or
business of the Corporation shall be deemed to be a liquidation,
dissolution or winding up of the Corporation for purposes of this Section
6.
(C) In the event the Corporation shall at any time (i) declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or (ii)
effect a subdivision, combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by payment of
a dividend in shares of Common Stock)(except, with respect to subsections
(i) or (ii) above, in such case that the Corporation simultaneously
declares or pays a dividend on, or effects a subdivision, combination or
consolidation of, the Series A Preferred Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the aggregate
amount to which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under the proviso in clause (1) of
paragraph (A) of this Section 6 shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator
of which is the number of shares of Common Stock that were outstanding
immediately prior to such event. In the event the Corporation shall at any
time declare or pay any dividend on the Series A Preferred Stock payable in
shares of Series A Preferred Stock, or effect a subdivision, combination or
consolidation of the outstanding shares of Series A Preferred Stock (by
reclassification or otherwise than by payment of a dividend in shares of
Series A Preferred Stock) into a greater or lesser number of shares of
Series A Preferred Stock, then in each such case the aggregate amount to
which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under the proviso in clause (1) of
paragraph (A) of this Section 4 shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of shares of
Series A Preferred Stock that were outstanding immediately prior to such
event and the denominator of which is the number of shares of Series A
Preferred Stock outstanding immediately after such event.
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Section 7. Consolidation, Merger, etc. Notwithstanding anything to the contrary
contained herein, in case the Corporation shall enter into any consolidation,
merger, combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any other
property, then in any such case each share of Series A Preferred Stock shall at
the same time be similarly exchanged or changed into an amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 1,000
times the aggregate amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each share of
Common Stock is changed or exchanged. In the event the Corporation shall at any
time (i) declare or pay any dividend on the Common Stock payable in shares of
Common Stock, or (ii) effect a subdivision, combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) (except, with respect to
subsections (i) and (ii) above, in such case that the Corporation simultaneously
declares or pays a dividend on, or effects a subdivision, combination or
consolidation of, the Series A Preferred Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of shares of Series A
Preferred Stock shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event. In
the event the Corporation shall at any time declare or pay any dividend on the
Series A Preferred Stock payable in shares of Series A Preferred Stock, or
effect a subdivision, combination or consolidation of the outstanding shares of
Series A Preferred Stock (by reclassification or otherwise than by payment of a
dividend in shares of Series A Preferred Stock) into a greater or lesser number
of shares of Series A Preferred Stock, then in each such case the amount set
forth in the first sentence of this Section 7 with respect to the exchange or
change of shares of Series A Preferred Stock shall be adjusted by multiplying
such amount by a fraction, the numerator of which is the number of shares of
Series A Preferred Stock that were outstanding immediately prior to such event
and the denominator of which is the number of shares of Series A Preferred Stock
outstanding immediately after such event.
Section 8. No Redemption. The shares of Series A Preferred Stock shall not be
redeemable.
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Section 9. Rank. The Series A Preferred Stock shall rank, with respect to the
payment of dividends and the distribution of assets, junior to all series of any
other class of the Preferred Stock issued either before or after the issuance of
the Series A Preferred Stock, unless the terms of any such series shall provide
otherwise.
Section 10. Amendment. The Restated Articles of Organization, as amended, of the
Corporation shall not be amended in any manner which would materially alter or
change the powers, preferences or special rights of the Series A Preferred Stock
so as to affect them adversely without the affirmative vote of the holders of at
least two-thirds of the outstanding shares of Series A Preferred Stock, voting
together as a single class.
Section 11. Fractional Shares. Series A Preferred Stock may be issued in
fractions of a share which shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and have the benefit of all other rights of holders
of Series A Preferred Stock.
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IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed our
names this
30th day of November in the year 1995.
S/ Mark S. Ain
........................................................., President
S/ Paul A. Lacy
........................................................., Clerk
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THE COMMONWEALTH OF MASSACHUSETTS
Certificate of Vote of Directors Establishing
A Series of a Class of Stock
(General Laws, Chapter 156B, Section 26)
I hereby approve the within certificate and, the
filing fee in the amount of $ 100.00
having been paid, said certificate is hereby filed this
4th day of December
1995 .
S/ William Francis Galvin
William Francis Galvin
Secretary of the Commonwealth
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF CERTIFICATE TO BE SENT
TO: Sally J. Wallace, Esq...........
Vice President, General Counsel
Kronos Incorporated............
400 Fifth Avenue...............
Waltham, MA 02154..............
........................................
........................................
Telephone......617-890-3232...........
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EXHIBIT 3.1 (CONTINUED)
The Commonwealth of Massachusetts
MICHAEL JOSEPH CONNOLLY Secretary of State Federal Identification ONE
ASHBURTON PLACE, BOSTON, MASS. 02108 No. 04-2640942
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 or organization. The fee for filing this certificate is
prescribed by General Laws, Chapter 156B, Section 114. Make check payable to the
Commonwealth of Massachusetts.
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We, Mark S. Ain , President/and
Paul A. Lacy , Clerk of
. . . . . . . . . . . . . . . . Kronos Incorporated . . . . . . . . . . . . .
. . . . . . . . . . . . . . . .
(Name of Corporation)
located at . . . . . . . . 62 Fourth Avenue, Waltham, MA 02154 . . . . . . . .
do hereby certify that the following restatement of the articles of organization
of the corporation was duly adopted at a
meeting held on April 16 , 1992 , by vote of
. 1,127,890 . shares of .Common Stock out of .. 1,234,798 . shares outstanding,
(Class of Stock)
.20,152.. shares of Series A. Preferred Stock . out of . 21,855 shares
(Class of Stock)
outstanding, and
. . . . . . shares of . . . . . . . . . out of. . . . . . shares outstanding,
(Class of Stock)
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: -
Kronos Incorporated
2. The purposes for which the corporation is formed are as follows: -
See Page 2A attached hereto.
Note: If the space provided under any article or item on this form is
insufficient, additions shall be set forth on separate 8 1/2 x 11 sheets of
paper leaving a left hand margin of at least 1 inch for binding. Additions to
more than one article may be continued on a single sheet so long as each article
requiring each such addition is clearly indicated.
3. The total number of shares and the par value, if 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 1,000,000 $1.00
Common 12,000,000 $ .01
*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 Pages 4A through 4M attached hereto.
*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
*6. Other lawful provisions, 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:
See Pages 6A through 6G attached hereto.
*If there are no such provisions, state "None".
Article 2
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Purposes
(a) to develop, manufacture and market electrical, electronic and
mechanical products of any kind, and to conduct research in connection with any
of the foregoing.
(b) to carry on any manufacturing, mercantile, selling, management,
service or other business, operation or activity which may be lawfully carried
on by a corporation organized under the Business Corporation Law of The
Commonwealth of Massachusetts, whether or not related to those referred to in
the foregoing paragraph.
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Continuation Sheet 4A
ARTICLE 4
PROVISIONS RELATING TO CAPITAL STOCK
The capital stock of the Corporation shall consist of (i) 12,000,000
shares of Common Stock, $.01 par value per share and (ii) 1,000,000 shares of
preferred stock, $1.00 par value per share, issuable in one or more series (the
"Series Preferred Stock"), of which 21,855 shares shall be designated Series A
Cumulative Convertible Preferred Stock (the "Series A Preferred").
SERIES PREFERRED STOCK AND COMMON STOCK
1. The shares of Series Preferred Stock may be issued from time to time
in one or more series. To the extent not inconsistent with the other provisions
of this Article 4, the Board of Directors is authorized to establish and
designate the different series, and to fix and determine the variations and the
relative rights and preferences among the different series, provided that all
shares of Series Preferred Stock shall be identical except for variations so
fixed and determined among the different series to the extent permitted by
Massachusetts General Laws, Chapter 156B, Section 26 and any successor to that
Section.
2. The preferences, voting powers, qualifications, special or relative
rights or privileges of the Common Stock, the Series Preferred Stock and the
Series A Preferred are as follows:
(a) Liquidation Preference. Upon any liquidation, dissolution
or winding up of this Corporation, whether voluntary or involuntary and
after provision for the payment of creditors, the holders of each
series of Series Preferred Stock shall be entitled, before any
distribution or payment is made upon any shares of Common Stock, to be
paid the amount fixed and determined by the Board of Directors for such
series plus (except as otherwise provided for any series of Series
Preferred Stock) an amount equal to dividends accrued to the date of
payment, and to no further payment. Except as otherwise provided for
any series of Series Preferred Stock, in the event that the assets of
this Corporation available for distribution to holders of Series
Preferred Stock shall be insufficient to permit payment to such holders
of such amounts, then all the assets of the Corporation then remaining
shall be distributed among the series of Series Preferred Stock ratably
on the basis of the relative aggregate liquidation preferences of each
series and,
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within each such series, ratably among the holders of the shares of
such series. The aggregate amount of payments to be made to holders of
Series Preferred Stock upon any liquidation, dissolution or winding up
of this Corporation may be fixed at any amount up to the full amount
legally available for distribution to stockholders. After payment in
full has been made to all holders of Series Preferred Stock, then, and
only then, the remaining assets of this Corporation may be distributed
to the holders of Common Stock. The holders of any series of Series
Preferred Stock shall be entitled to participate in any such
distribution to holders of Common Stock to the extent, if any,
specified for such series by the Board of Directors. Except as
otherwise provided for any series of Series Preferred Stock, neither
the purchase or redemption by this Corporation of shares of any class
or series of its capital stock in any manner permitted by the Restated
Articles of Organization, nor the merger or consolidation of this
Corporation with or into any other corporation or corporations, nor the
sale or transfer by this Corporation of all or any part of its assets,
shall be deemed to be a liquidation, dissolution or winding up of this
Corporation for the purposes of this Article 4.
(b) Dividend Preference. Holders of Series Preferred Stock
shall be entitled to receive, when, as and if declared by the Board of
Directors, out of funds legally available for the purpose, dividends at
such annual rate or rates, and no more, as are fixed for each series of
Series Preferred Stock by the Board of Directors, payable in cash or in
property or in shares of any series of Series Preferred Stock, or in
Common Stock, or in any combination thereof. Holders of Series
Preferred Stock may receive in the aggregate dividends equal to the
full amount of funds legally available for the payment of dividends.
Except as otherwise provided for any series of Series Preferred Stock,
until all accrued dividends, if any, on all shares of Series Preferred
Stock shall have been declared and set apart for payment, no dividend
or distribution shall be made to holders of Common Stock, other than a
dividend payable in Common Stock of this Corporation, nor shall any
shares of Common Stock be repurchased, redeemed or otherwise retired.
The holders of any series of Series Preferred Stock shall be entitled
to participate in any dividend or distribution to holders of Common
Stock to the extent, if any, specified for such series by the Board of
Directors.
(c) Voting Powers and Qualifications. Each share of Common Stock
shall entitle the holder thereof to one vote on all matters presented
to stockholders. The holders of Series Preferred Stock shall be
entitled to vote separately as a class, or in combination with the
holders
-4B-
of Common Stock as a single class, to the extent (if any), and in
regard to such matters and transactions (if any), as the Board of
Directors may specify in establishing any such series or as may be
otherwise required by law. Matters and transactions as to which the
Board of Directors, in establishing any series, may specify a separate
class vote of holders of Series Preferred Stock or any series thereof
may include, without limitation, the election of a specified number or
percentage of the directors, changes in this Corporation's authorized
capital stock, amendments to this Corporation's Restated Articles of
Organization or By-laws, mergers, a sale of substantially all of the
assets of this Corporation, and dissolution of this Corporation. The
Board of Directors may specify the percentage of votes required to
approve any matter or transaction requiring a separate vote of the
Series Preferred Stock or any series thereof. As to matters and
transactions as to which the Series Preferred Stock is entitled to vote
in combination with holders of Common Stock as a single class, the
Board of Directors, in establishing any such series, may specify that
the voting power of each share of such series may be greater or less
than the voting power of each share of Common Stock, provided that
Series Preferred Stock shall have no more than ten votes per share, or
such greater number as is equivalent to the number of shares of Common
Stock into which such shares of Series Preferred Stock are convertible.
(d) Additional Special or Relative Rights or Privileges.
Holders of any series of Series Preferred Stock shall enjoy such
additional special or relative rights or privileges vis-a-vis the
holders of Common Stock as the Board of Directors (subject to the
limitations imposed by this Article 4) may specify in the votes
creating such series, including, without limitation, rights of
redemption, sinking or purchase fund provisions and conversion rights.
(e) Series A Preferred. The rights, preferences, privileges and
restrictions granted to or imposed on the Series A Preferred and the
Common Stock or the holders thereof are as follows:
1. Dividends.
1.1. The holders of the Series A Preferred shall be entitled
to receive, out of funds legally available therefor, dividends at the
rate of $2.025 per share per annum, payable quarterly beginning on June
30, 1988 and in preference and priority to any payment of any dividend
on any class of stock or series thereof of the Corporation
-4C-
for such year. The right to such dividends on the Series A Preferred
shall accrue and cumulate on the books of this Corporation as an
obligation of the Corporation on a quarterly basis, whether or not
declared, beginning on July 31, 1987, provided, however, that if the
Series A Preferred is automatically converted pursuant to Section 4.2
hereof on or prior to July 1, 1988, the holders of the Series A
Preferred shall not be entitled to receive any dividends which, on or
prior to such date, have accrued pursuant to this section.
No dividend shall be paid on any class of stock or series
thereof in any year, other than dividends payable solely in Common
Stock, until all accrued dividends have been declared and paid on the
Series A Preferred.
1.2. Increase in Dividend. If the Corporation shall fail to
pay any dividend when due in accordance with this Section 1 or if the
Corporation shall fail to make a mandatory redemption of the Series A
Preferred in accordance with Section 7 hereof, then the rate at which
dividends are payable, and, if dividends are not paid, the rate at
which they accrue and cumulate, shall be increased by $0.1125 per share
for each quarter that such dividend shall remain unpaid or that such
mandatory redemption shall not be made, and shall be increased by
$0.05625 for each successive quarter; provided that the maximum
dividend payable in any quarter shall not exceed $0.8375 per share.
2. Liquidation Preference.
2.1. In the event of any liquidation, dissolution, or winding
up of the Corporation, either voluntary or involuntary, distributions
to the stockholders of the Corporation shall be made in the following
manner: The holders of the Series A Preferred shall be entitled to
receive, prior and in preference to any distribution of any of the
assets or surplus funds of the Corporation to the holders of any class
of stock or series thereof of the Corporation by reason of their
ownership of such stock, the amount of $22.50 per share for each share
of Series A Preferred then held by them, and, in addition, an amount
equal to all accrued but unpaid dividends on the Series A Preferred
held by them. If the assets and funds thus distributed among the
holders of the Series A Preferred shall be insufficient to permit the
payment to such holders of the full aforesaid preferential amount, then
the entire assets and funds of the Corporation so distributed shall be
distributed ratably among the holders of the Series A Preferred in
proportion to the aggregate preferential amount of all shares of Series
A Preferred then held by them bears to the aggregate preferential
-4D-
amount of all shares of Series A Preferred outstanding as of the date
of the distribution upon the occurrence of such event. After payment
has been made to the holders of the Series A Preferred of the full
amounts to which they shall be entitled as aforesaid, the holders of
the Common Stock shall be entitled to share ratably in the remaining
assets, based on the number of shares of Common Stock held by each of
them.
3. Voting Rights. The holder of each share of Series A Preferred issued
and outstanding shall be entitled to the number of votes per share as
shall equal the number of shares of Common Stock into which each share
of Series A Preferred is then convertible, and the holders of Series A
Preferred shall be entitled to vote on all matters as to which the
holders of Common Stock shall be entitled to vote, voting together with
the holders of Common Stock as a single class. The holder of each share
of Common Stock issued and outstanding shall be entitled to one vote
per share of such Common Stock.
4. Conversion. The holders of the Series A Preferred have conversion
rights as follows (the "Conversion Rights"):
4.1. Right of Conversion. Each share of Series A Preferred
shall be convertible (at the option of the holder thereof) at any time
after the date of issuance at the office of the Corporation or any
transfer agent for the Series A Preferred into the number of shares of
the Common Stock of the Company obtained by dividing $22.50 by the
conversion price in effect at the time of conversion, determined as
hereinafter provided (the "Conversion Price"). The initial Conversion
Price shall be $22.50 per share. All calculations under this Section 4
shall be made to the nearest cent.
4.2. Automatic Conversion. Each share of Series A Preferred
shall automatically be converted into shares of Common Stock at the
then effective Conversion Price, at the option of the Corporation, upon
the closing of an underwritten public offering pursuant to an effective
registration statement under the Securities Act of 1933, as amended,
covering the offer and sale of Common Stock for the account of the
Corporation to the public generally at a price per share (prior to
underwriting commissions and offering expenses) of not less than $35
per share (appropriately adjusted for any recapitalizations, stock
splits, stock combinations and stock dividends) in which the aggregate
proceeds received by the Corporation (after underwriting discounts and
commissions) equal or exceed $7,500,000. In the event of such automatic
conversion of the Series A Preferred, such conversion shall not be
-4E-
deemed to have occurred until the person(s) entitled to receive the
Common Stock issuable upon such conversion of Series A Preferred has
received from the Corporation all accrued and unpaid dividends owed on
such person's Series A Preferred.
4.3. Mechanics of Conversion. No fractional shares of Common
Stock shall be issued upon conversion of Series A Preferred. In lieu of
any fractional shares to which the holder would otherwise be entitled,
the Corporation shall pay cash equal to such fraction multiplied by the
then effective Conversion Price. Before any holder of Series A
Preferred shall be entitled to convert the same into full shares of
Common Stock and to receive certificates therefor, he shall surrender
the certificate or certificates therefor, duly endorsed, at the office
of the Corporation or of any transfer agent for the Series A Preferred,
and shall give written notice to the Corporation at such office that he
elects to convert the same; provided, however, that in the event of an
automatic conversion pursuant to Section 4.2, the outstanding shares of
Series A Preferred shall be converted automatically without any further
action by the holders of such shares and whether or not the
certificates representing such shares are surrendered to the
Corporation or its transfer agent, and provided further that the
Corporation shall not be obligated to issue certificates evidencing the
shares of Common Stock issuable upon such automatic conversion unless
the certificates evidencing such shares of Series A Preferred are
either delivered to the Corporation or its transfer agent as provided
above, or the holder notifies the Corporation or its transfer agent
that such certificates have been lost, stolen or destroyed and executes
an agreement satisfactory to the Corporation to indemnify the
Corporation from any loss incurred by it in connection with such
certificates provided that nothing contained herein shall require the
holder to provide a surety or indemnity bond where the Common Stock
issued is registered in the same name as the Series A Preferred
surrendered for conversion. The Corporation shall, as soon as
practicable after such delivery, or such agreement of indemnification
in the case of a lost certificate, but in no event later than ten (10)
business days after such delivery or agreement of indemnification,
issue and deliver at such office to such holder of Series A Preferred,
a certificate or certificates for the number of shares of Common Stock
to which he shall be entitled as aforesaid and a check payable to the
holder in the amount of any cash amounts payable as the result of a
conversion into fractional shares of Common Stock plus all accrued and
unpaid dividends on such holder's Series A Preferred. Such conversion
shall be deemed to have been made immediately prior to the close of
business on the date of
-4F-
such surrender of the shares of Series A Preferred to be
converted, or in the case of automatic conversion on the date
immediately prior to closing of the public offering (provided that all
accrued and unpaid dividends have been paid prior to such date), and
the person or persons entitled to receive the shares of Common Stock
issuable upon such conversion shall be treated for all purposes as the
record holder or holders of such shares of Common Stock on such date.
Upon conversion of only a portion of the number of shares
covered by a certificate representing shares of Series A Preferred
surrendered for conversion, the Corporation shall issue and deliver to
the holder of the certificate so surrendered for conversion, at the
expense of the Corporation, a new certificate covering the number of
shares of Series A Preferred representing the unconverted portion of
the certificate so surrendered.
4.4. Adjustment of Conversion Price for Subdivisions,
Combinations, or Consolidation of Common Stock. In the event the
outstanding shares of Common Stock shall be subdivided (by stock split,
or otherwise) into a greater number of shares of Common Stock, the
Conversion Price then in effect shall, concurrently with the
effectiveness of such subdivision, be proportionately decreased. In the
event the outstanding shares of Common Stock shall be combined or
consolidated, by reclassification or otherwise, into a lesser number of
shares of Common Stock, the Conversion Price then in effect shall,
concurrently with the effectiveness of such combination or
consolidation, be proportionately increased.
4.5. Recapitalizations. If at any time or from time to time
there shall be a recapitalization of the Common Stock (other than a
subdivision, combination or merger, consolidation or sale of assets
transaction provided for elsewhere herein), provision shall be made so
that the holders of the Series A Preferred shall thereafter be entitled
to receive upon conversion of the Series A Preferred the number of
shares of stock or other securities or property of the Company or
otherwise, to which a holder of Common Stock deliverable upon
conversion would have been entitled on such recapitalization. In any
such case, appropriate adjustment shall be made in the application of
the provisions of this Section 4 with respect to the rights of the
holders of the Series A Preferred after the recapitalization to the end
that the provisions of this Section 4 (including adjustment of the
Conversion Price then in effect and the number of shares purchasable
upon conversion of the Series A Preferred) shall be applicable after
that event in as nearly an equivalent manner as may be practicable.
-4G-
4.6. No Impairment. The Company will not, by amendment of its
Articles of Organization or through any reorganization,
recapitalization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the
terms to be observed or performed hereunder by the Company, but will at
all times in good faith assist in the carrying out of all the
provisions of this Section 4 and in the taking of all such action as
may be necessary or appropriate in order to protect the conversion
rights of the holders of the Series A Preferred against impairment.
4.7. Reservation of Shares. The Company agrees that, so long
as any share of Series A Preferred shall remain outstanding, the
Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized capital stock, for the purpose
of issue upon conversion of the Series A Preferred, the full number of
shares of Common Stock then issuable upon exercise of all outstanding
shares of Series A Preferred.
4.8. Validity of Shares. The Company agrees that it will from
time to time take all such actions as may be requisite to assure that
all shares of Common Stock which may be issued upon conversion of any
share of the Series A Preferred will, upon issuance, be validly issued,
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 Company agrees that it will from time
to time take all such action as may be requisite to assure that the par
value per share, if any, of the Common Stock is at all times equal to
or less than the then current Conversion Price of the Series A
Preferred.
4.9. Notice of Adjustment. Upon each adjustment of the
Conversion Price, the Company shall give prompt written notice thereof
addressed to the registered holder of each share of the Series A
Preferred at the address of such holder as shown on the records of the
Company, which notice shall state the Conversion Price resulting from
such adjustment and the increase or decrease, if any, in the number of
shares issuable upon the conversion of his shares of Series A
Preferred, setting forth in reasonable detail the method of calculation
and the facts upon which such calculation is based.
4.10. Notice of Capital Changes. If at any time:
(a) the Company shall declare any dividend or distribution
payable to the holders of its Common Stock;
-4H-
(b) the Company shall offer for subscription pro rata
to the holders of Common Stock any additional shares of stock
of any class or other rights;
(c) there shall be any proposed capital
reorganization or reclassification of the capital stock of the
Company, or consolidation or merger of the Company with, or
sale of all or substantially all of its assets to, another
corporation or business organization; or
(d) there shall be a voluntary or involuntary
dissolution, liquidation or winding up of the Company;
then, in any one or more of said cases, the Company shall give the
registered holders of the Series A Preferred written notice, by
registered or certified mail, of the date on which a record shall be
taken for such dividend, distribution or subscription rights or for
determining stockholders entitled to vote upon such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation
or winding up and of the date when any such transaction 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 written notice shall be given at least 20 days
prior to the transaction in question and not less than 10 days prior to
the record date with respect thereto.
4.11. Taxes. The Company will pay all taxes and other governmental
charges that may be imposed in respect of the issue or delivery of
shares of the Series A Preferred or Common Stock upon conversion of
the Series A Preferred.
5. Status of Converted Stock. In case any shares of any series of
Series A Preferred shall be converted pursuant to Section 4 hereof, the
shares so converted shall be restored to authorized and undesignated,
but unissued shares of Series Preferred Stock of the Company.
6. Optional Redemption.
(a) The Corporation may, at any time, redeem
-4I-
any or all shares of the Series A Preferred on a pro rata
basis. If the Corporation so elects it shall issue a Notice of
Redemption (the "Redemption Notice") to the holders of record
of the Series A Preferred. The Redemption Notice shall set
forth the Redemption Date, which shall be at least thirty (30)
days after the date of the Notice of Redemption, the number of
such holder's shares of Series A Preferred to be redeemed, and
the applicable Redemption Amount. The Redemption Amount of the
Series A Preferred shall be equal to the product of (a) the
number of shares of Series A Preferred of the holder which are
subject to redemption multiplied by the sum of (b) $27.00 plus
(c) the aggregate of all accrued and unpaid dividends per
share but in no event shall the total of the Redemption
Amounts paid to the holders of the Series A Preferred be less
than $750,000. The Redemption Date shall be as specified in
the Redemption Notice. The Redemption Amount shall be paid in
a lump sum payment on the Redemption Date.
(b) The Corporation shall deposit the Redemption
Amount in an escrow account with a state or national bank at
least two (2) days prior to the Redemption Date and shall
notify the holders of the Series A Preferred of such deposit
immediately thereafter. Failure to make such deposit or notify
the holders shall invalidate the Redemption Notice and no
redemption under this Section 6 may be made until such failure
is cured. The holders of the Series A Preferred shall have the
right to convert their shares pursuant to Section 4 at any
time prior to the Redemption Date.
(c) The Redemption Amount set forth in this Section 6
shall be subject to equitable adjustment whenever there shall
occur a stock split, dividend, combination, reclassification
or other similar event involving the Series A Preferred.
(d) Each holder of shares of Series A Preferred to be
redeemed shall surrender his or her certificate or
certificates representing such shares to the Corporation at
the place designated in the Redemption Notice, and thereupon
the applicable Redemption Amount for such shares as set forth
in this Section 6 shall be paid to the order of the person
whose name appears on such certificate or certificates and
each surrendered certificate shall be cancelled and retired.
(e) If any shares of Series A Preferred are not
redeemed solely because a holder fails to surrender
-4J-
the certificate or certificates representing such shares as
required by Section 6(d) hereof, then, from and after the
Redemption Date, and except for the right to receive payment
under this Section 6, such shares of Series A Preferred
thereupon subject to redemption shall not be entitled to any
further right as Series A Preferred, including but not limited
to the conversion provisions set forth in Section 4 hereof.
7. Mandatory Redemption.
(a) On August 31, 1991 the Corporation shall redeem
fifty percent (50%) of all of the shares of the Series A
Preferred then outstanding and on August 31, 1992 the
Corporation shall redeem the balance of the shares of Series A
Preferred (the date on which such shares are redeemed by the
Corporation referred to herein as the "Mandatory Redemption
Date"). The redemption price for each share of Series A
Preferred redeemed pursuant to this Section 7 shall be $22.50
per share plus all accrued and unpaid dividends on such share,
whether or not earned or declared, up to and including the
date fixed for redemption (the "Redemption Price"). Each
redemption of Series A Preferred shall be made so that the
number of shares of Series A Preferred held by each registered
owner shall be reduced in an amount which shall bear the same
ratio to the total number of shares of the Series A Preferred
being so redeemed as the number of shares of Series A
Preferred then held by such registered owner bears to the
aggregate number of shares of Series A Preferred then
outstanding.
(b) The Redemption Price set forth in this Section 7
shall be subject to equitable adjustment whenever there shall
occur a stock split, dividend, combination, reclassification
or other similar event involving the Series A Preferred.
(c) At least 45 days before any Mandatory Redemption
Date pursuant to Section 7(a), written notice (hereinafter
referred to as the "Mandatory Redemption Notice") shall be
mailed, postage prepaid, to each holder of record of the
Series A Preferred which is to be redeemed, at its address
shown on the records of the Corporation; provided, however,
that the holders of Series A Preferred shall have the right to
covert their shares pursuant to Section 4 at any time prior to
the Mandatory Redemption Date; provided, further, that the
Corporation's failure to give such Mandatory Redemption Notice
shall in no way affect its obligation to redeem the shares of
Series A Preferred as provided in Section 7(a) hereof.
-4K-
(d) Each holder of shares of Series A Preferred to be
redeemed shall surrender his or her certificate or
certificates representing such shares to the Corporation at
the place designated in the Mandatory Redemption Notice, and
thereupon the applicable Redemption Price for such shares as
set forth in this Section 7 shall be paid to the order of the
person whose name appears on such certificate or certificates
and each surrendered certificate shall be cancelled and
retired.
(e) If any shares of Series A Preferred are not
redeemed solely because a holder fails to surrender the
certificate or certificates representing such shares pursuant
to Section 7, then, from and after the Redemption Date, and
except for the right to receive payment under this Section 7,
such shares of Series A Preferred thereupon subject to
redemption shall not be entitled to any further right as
Series A Preferred, including but not limited to the
conversion provisions set forth in Section 4 hereof.
8. Protective Provisions. The Corporation shall not, without the affirmative
consent of the holders of shares representing at least 662/3% in voting power
(90% in voting power with respect to Section 8(b) below) of the Series A
Preferred then outstanding, acting separately as one class, given by written
consent or by vote at a meeting called for such purpose for which notice shall
have been given to the holders of the Series A Preferred:
(a) in any manner authorize, create, or issue any class or
series of capital stock (i) ranking, either as to payment of dividends,
distribution of assets, or redemptions, prior to or on a parity with
the Series A Preferred (other than the Series A Preferred itself), or
(ii) that in any manner adversely affects the holders of Series A
Preferred, or authorize, create, or issue any shares of any class or
series or any bonds, debentures, notes, or other obligations
convertible into or exchangeable for, or having optional rights to
purchase, any shares having any such preference or priority or so
adversely affecting the holders of Series A Preferred;
(b) in any manner alter or change the designations or the
powers, preferences, or rights, or the qualifications,
limitations, or restrictions of the Series A Preferred;
(c) reclassify the shares of Common Stock or any other shares
of any class or series of capital stock hereafter created junior to the
Series A Preferred into shares of any class or series of capital stock
(i)
-4L-
ranking, either as to payment of dividends, distribution of assets, or
redemptions prior to or on a parity with the Series A Preferred, or
(ii) that in any manner otherwise adversely affects the holders of
Series A Preferred;
(d) sell or otherwise transfer all or substantially all of the
Corporation's rights in its technology or intellectual property such
that the Corporation no longer owns or has any right to such technology
or intellectual property;
(e) merge or consolidate with or into, or permit any
subsidiary to merge with or into, any other corporation or
corporations, or other entity or entities (in which merger or
consolidation the shareholders of the Corporation receive distributions
of cash or securities of another issuer as a result of such merger or
consolidation).
-4M-
Article 6
- - ---------------------------------
Other Lawful Provisions
6.1 The Corporation may carry on any business, operation or activity
referred to in Article 2 to the same extent as might an individual, whether as
principal, agent, contractor or otherwise, and either alone or in conjunction or
a joint venture or other arrangement with any corporation, association, trust,
firm or individual.
6.2 The Corporation may carry on any business, operation or
activity through a wholly or partly owned subsidiary.
6.3 The Corporation may be a partner in any business enterprise
which it would have power to conduct by itself.
6.4 The Board of Directors may make, amend or repeal the By-laws of the
Corporation in whole or in part, except with respect to any provision thereof
which by law or the By-laws requires action by the stockholders and subject to
the right of the stockholders entitled to vote with respect thereto to amend or
repeal By-laws made by the Board of Directors as provided for in these Restated
Articles of Organization. The affirmative vote of two thirds of the total number
of votes of the then outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors, voting together as a
single class, shall be required for the adoption, amendment or repeal of By-laws
by the stockholders of the Corporation. Subject to the provisions set forth
herein, the Corporation reserves the right to amend, alter, repeal or rescind
any provision contained in these Restated Articles of Organization in the manner
now or hereafter prescribed by law.
6.5 Meetings of the stockholders may be held anywhere in the
United States.
6.6 Except as otherwise provided by law, no stockholder shall have any
right to examine any property or any books, accounts or other writings of the
Corporation if there is reasonable ground for belief that such examination will
for any reason be adverse to the interests of the Corporation, and a vote of the
directors refusing permission to make such examination and setting forth that in
the opinion of the directors such examination would be to the interests of the
Corporation shall be prima facie evidence that such examination would be adverse
to the interests of the Corporation. Every such examination shall be subject to
such reasonable regulations as the directors may establish in regard thereto.
6.7 The directors may specify the manner in which the accounts of the
Corporation shall be kept and may determine what constitutes net earnings,
profits and surplus, what amounts, if
-6A-
any, shall be reserved for any corporate purpose, and what amounts, if any,
shall be declared as dividends. Unless the Board of Directors otherwise
specifies, the excess of the consideration for any share of its capital stock
with par value issued by it over such par value shall be surplus. The Board of
Directors may allocate to capital stock less than all of the consideration for
any share of its capital stock without par value issued by it, in which case the
balance of such consideration shall be surplus. All surplus shall be available
for any corporate purpose, including the payment of dividends.
6.8 The purchase or other acquisition or retention by the Corporation
of shares of its own capital stock shall not be deemed a reduction of its
capital stock. Upon any reduction of capital or capital stock, no stockholder
shall have any right to demand any distribution from the Corporation, except as
and to the extent that the stockholders shall have provided at the time of
authorizing such reduction.
6.9 (a) A director who has a financial, family or other interest in a
contract or other transaction may be counted for purposes of establishing the
existence of a quorum at a meeting of the board of directors (or of a committee
of the board of directors) at which action with respect to the transaction is
taken and may vote to approve the transaction and any related matters.
(b) A contract or other transaction in which a director or
officer has a financial, family or other interest shall not be void or voidable
for that reason, if any one of the following is met:
(1) The material facts as to the director's or officer's
interest are disclosed or are known to the board of directors or committee of
the board of directors acting on the transaction, and the board or committee
authorizes, approves or ratifies the transaction by the affirmative vote of a
majority of the disinterested directors (or, if applicable, the sole
disinterested director) on the board of directors or committee, as the case may
be, even though the disinterested directors be less than a quorum; or
(2) The material facts as to the director's or officer's
interest are disclosed or are known to the holders of the shares of the
corporation's capital stock then entitled to vote for directors, and such
holders, voting such shares as a single class, by a majority of the votes cast
on the question, specifically authorize, approve or ratify the transaction; or
(3) The transaction was fair to the corporation as of
the time it was entered into by the corporation.
-6B-
A failure to meet any of the requirements in subparagraphs (1), (2) or
(3) shall not create an inference that the transaction is void or voidable for
that reason.
(c) The directors shall have the power to fix from
time to time their own compensation.
6.10 A director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent that exculpation from liability is not
permitted under the Massachusetts Business Corporation Law as in effect at the
time such liability is determined. No amendment or repeal of this paragraph 6.10
shall apply to or have any effect on the liability or alleged liability of any
director of the Corporation for or with respect to any acts or omissions of such
director occurring prior to such amendment or repeal.
6.11 The Corporation shall have all powers granted to Corporations by
the laws of The Commonwealth of Massachusetts, provided that no such power shall
include any activity inconsistent with the Business Corporation Law or the
general laws of said Commonwealth.
6.12 Any action required or permitted to be taken at any meeting of the
stockholders may be taken without a meeting if all stockholders entitled to vote
on the matter consent to the action in writing and the written consents are
filed with the records of the meetings of stockholders. Such consents shall be
treated for all purposes as a vote at a meeting.
6.13 In determining what he reasonably believes to be in the best
interests of the Corporation in the performance of his duties as a director, a
director may consider, both in the consideration of tender and exchange offers,
mergers, consolidations and sales of all or substantially all of the
Corporation's assets and otherwise, such factors as the Board of Directors
determines to be relevant, including, without limitation:
(i) the long-term and short-term interests of the
Corporation and its stockholders, including the possibility that these interests
may be best served by the continued independence of the Corporation;
(ii) whether the proposed transaction might violate
federal or state laws;
(iii) if applicable, not only the consideration being offered
in a proposed transaction, in relation to the then current market price for the
outstanding capital stock of the Corporation, but also to the market price for
the capital stock
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of the Corporation over a period of years, the estimated price that might be
achieved in a negotiated sale of the Corporation as a whole or in part or
through orderly liquidation, the premiums over market price for the securities
of other corporations in similar transactions, current political, economic and
other factors bearing on securities prices and the Corporation's financial
condition and future prospects; and
(iv) the interests of the Corporation's employees, suppliers,
creditors and customers, the economy of the state, region and nation, and
community and societal considerations.
In connection with any such evaluation, the Board of Directors is authorized to
conduct such investigations and to engage in such legal proceedings as the Board
of Directors may determine.
6.14 Subject to the rights of the holders of shares of any class or
series of Preferred Stock, the Board of Directors of the Corporation is
authorized from time to time to enact by resolution, without additional
authorization by the stockholders of the Corporation, By-laws of the
Corporation, in such form and with such additional terms as the Board of
Directors may determine, with respect to the matters of corporate proceedings
set forth below:
(a) Regulation of the procedure for submitting nominations of persons
to be elected directors, which shall be made only at a meeting of stockholders,
including requirements that nominations of persons to be elected directors,
other than nominations submitted on behalf of the incumbent Board of Directors,
be (i) accompanied by a petition in support of such nominations signed by at
least that number of holders of record of that percentage of shares of capital
stock of the Corporation entitled to vote in the election of directors as are
specified in such By-law (but a number of record holders not greater than 100
and a percentage of such shares not greater than 1%); and (ii) submitted to the
clerk or other designated officer or agent of the Corporation at least that
number of days before the meeting of the stockholders at which such election is
to be held as is specified in such By-law (but not more than sixty days before
such meeting). The presiding officer of the meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the provisions prescribed by this paragraph 6.14 or any By-law
adopted pursuant hereto, and if he so determines, he shall so declare to the
meeting, and the defective nomination shall be disregarded.
(b) Regulation of business to be conducted at meetings of stockholders,
including requirements that only such business shall be conducted and only such
proposals shall be acted upon as are directed by the Board of Directors or as
are made by a
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stockholder who has submitted notice thereof to the clerk or other designated
officer or agent of the Corporation at least that number of days before the
meeting of stockholders at which such proposal is to be made as is specified in
such By-law (but not more than sixty days before such meeting) setting forth
such proposal, the reasons therefor, the identity of the stockholder or
stockholders making such proposal, the number of shares of capital stock which
are beneficially owned by them and any financial interest of such stockholders
in such proposal as specified in such By-law. The presiding officer of the
meeting shall, if the facts warrant, determine and declare to the meeting that
proposed business or a proposal was not made in accordance with the provisions
prescribed by this paragraph 6.14 or any By-law adopted pursuant hereto, and if
he so determines, he shall so declare to the meeting, and any such business
shall not be transacted or any such proposal shall be disregarded.
(c) Regulation of the order of business and conduct of stockholder
meetings and the authority of the presiding officer and of the attendance at
annual or special meetings of the stockholders of the Corporation, including the
limitation of attendance through a ticket procedure pursuant to which persons
who wish to attend such meetings would be required to provide written notice to
the clerk or other designated officer or agent of the Corporation at least that
number of days prior to the date of such meeting specified in such By-law (but
not more than thirty days before such meeting) of their intent to attend in
person, and the clerk or other designated officer or agent of the Corporation
would issue a single admission ticket to each holder of shares of the stock of
the Corporation entitled to vote at such meeting and to such other persons as
the Board of Directors may direct, and admission to such meeting would be
limited to holders of such tickets and officers and directors of, counsel to,
and the auditors of, the Corporation and, to the extent authorized by the Board
of Directors, the presiding officer at such meeting, employees or other agents
of the Corporation. Application of any such By-law, if adopted, in any
particular case would be permitted to be waived by the presiding officer at such
meeting.
In the event that any such By-law is adopted pursuant to this paragraph
6.14, such By-law may only be amended or repealed upon the affirmative vote of
two thirds of the total number of votes then outstanding represented by shares
of capital stock of the Corporation entitled to vote generally in the election
of directors, voting together as a single class, at any regular or special
meeting of the stockholders, but only if notice of the proposed amendment or
repeal was contained in the notice of such meeting.
6.15(A) After the consummation of an initial public offering of
the Corporation's common stock registered with the
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Securities and Exchange Commission (the "Public Offering Time"), the directors
of the Corporation, subject to the rights of the holders of shares of any class
or series of Preferred Stock, shall be classified, with respect to the time for
which they severally hold office, into three classes, as nearly equal in number
as possible, as shall be provided in the By-laws of the Corporation, one class
("Class I") whose term expires at the first annual meeting of stockholders to be
held after the Public Offering Time, and another class ("Class II") whose term
expires at the second annual meeting of stockholders to be held after the Public
Offering Time, and another class ("Class III") whose term expires at the third
annual meeting of stockholders to be held after the Public Offering Time, with
each class to hold office until its successors are elected and qualified. The
classes shall be initially comprised of directors serving on the Board of
Directors at the Public Offering Time, and the membership of each class shall be
initially determined by the Board of Directors at such time. At each annual
meeting of the stockholders of the Corporation after the Public Offering Time,
the date of which shall be fixed by or pursuant to the By-laws of the
Corporation, and subject to the rights of the holders of shares of any class or
series of Preferred Stock, the successors of the class of directors whose term
expires at that meeting shall be elected to hold office for a term expiring at
the annual meeting of stockholders held in the third year following the year of
their election. Any director elected to fill a newly created directorship or any
vacancy on the Board of Directors resulting from any death, resignation, removal
or other cause shall hold office for the remainder of the full term of the class
of directors in which the new directorship was created or the vacancy occurred
and until such director's successor shall have been elected and qualified.
(B) After the Public Offering Time and subject to the rights of the
holders of shares of any class or series of Preferred Stock, any director or
directors may be removed from office at any time, but only for cause and only by
the affirmative vote of 80% of the total number of votes of the then outstanding
shares of capital stock of the Corporation entitled to vote generally in the
election of directors, voting together as a single class. Any vacancy in the
Board of Directors resulting from any such removal may be filled by vote of a
majority of the directors then in office, although less than a quorum, or by a
sole remaining director, and any director so chosen shall hold office until the
next election of the class for which such director shall have been chosen and
until such director's successor shall be elected and qualified or until such
director's earlier death, resignation or removal. For purposes of this
subparagraph (B), "cause" shall mean the (1) conviction of a felony, (2)
declaration of unsound mind by order of court, (3) gross dereliction of duty,
(4) commission of an action involving moral turpitude, or (5) commission of an
action
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which constitutes intentional misconduct or a knowing violation of law if such
action in either event results both in an improper substantial personal benefit
and a material injury to the Corporation.
(C) In the event of any increase or decrease in the authorized number
of directors, the newly created or eliminated directorships resulting from such
increase or decrease shall be apportioned by the Board of Directors among the
three classes of directors so as to maintain such classes as nearly equal as
possible. No decreases in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
6.16 Notwithstanding any other provisions of these Restated Articles of
Organization or the By-laws of the Corporation (and notwithstanding the fact
that a lesser percentage may be specified by law, these Restated Articles of
Organization or the By-laws of the Corporation), the affirmative vote of 80% of
the total number of votes of the then outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class shall be required to amend or repeal, or to adopt any
provision inconsistent with the purpose or intent of paragraphs 6.4, 6.9, 6.10
and 6.13 through 6.16 of Article 6 of these Restated Articles of Organization.
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*We further certify that the foregoing restated articles of organization effect
no amendments to the articles of organization of the corporation as heretofore
amended, except amendments to the following articles ....2,.3,.4.&.6............
................................................................................
(*If there are no such amendments, state "None")
Briefly describe amendments in space below:
Article 2
The language describing the purposes of the corporation has been
revised to delete paragraphs (c) and (d). Said paragraphs (c) and (d) now appear
as paragraphs 6.2 and 6.1 respectively of Article 6.
Article 3
The amount of authorized capital stock of the corporation has been
increased to an aggregate of (i) 12,000,000 shares of Common Stock, $.01 par
value per share, and (ii) 1,000,000 shares of Preferred Stock, $1.00 par value
per share.
Article 4
The capitalization of the corporation has been amended so that the
number of authorized shares of (i) Common Stock, $.01 par value per share, has
been increased from 2,500,000 shares to 12,000,000 shares and (ii) Preferred
Stock, $1.00 par value per share, has been increased from 250,000 shares to
1,000,000 shares.
The voting rights that the Board of Directors may grant to any series
of the Corporation's Preferred Stock, $1.00 par value per share, have been
increased from one (1) vote per share to up to ten (10) votes per share.
Paragraph 5 of the Certificate of Designation of Series A Cumulative
Convertible Preferred Stock has been amended to clarify that converted shares
revert to the status of authorized and undesignated, but unissued shares of the
corporation's Preferred Stock, $1.00 par value per share.
Article 6
New provisions have been added to Article 6 and some existing
provisions have been revised. New provisions added, include but are not limited
to, provisions relating to (i) stockholder action by written consent, (ii)
interested transactions, (iii) a staggered board of directors, (iv)
supermajority voting requirements to amend certain provisions of these Restated
Articles of Organization and (v) the ability of the corporation's directors to
consider special factors when evaluating corporate action.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto
signed our names this 11th day of May in the year 19 92.
................/S/ Mark S. Ain........................ President
.............../S/ Paul A. Lacy............................ Clerk