Exhibit 3.1(i)
CERTIFICATE OF INCORPORATION
OF
DOW JONES & COMPANY, INC.
(AS AMENDED APRIL 22, 1988, APRIL 25, 1989 AND APRIL 20, 2005)
Dow Jones & Company, Inc., a Delaware corporation, hereby certifies as
follows:
FIRST. The name of the corporation is Dow Jones & Company, Inc.
SECOND. Its registered office in the State of Delaware is located at
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801.
The name and address of its registered agent is The Corporation Trust
Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware
19801.
THIRD. The nature of the business, or objects or purposes to be
transacted, promoted or carried on, are:
(a) To gather, collect, purchase, analyze, prepare, edit, publish
and distribute by newspapers, magazines, books, periodicals and other
publications, by ticker, by news bulletins and by other methods, news,
comment and quotations of all kinds and descriptions;
(b) To edit, publish, print, conduct and circulate, or otherwise
deal with, any newspapers, news services, magazines, books,
periodicals, bulletins and other publications, and news, comment and
quotations of all kinds and descriptions, and, in general, to carry on
the business of collecting, editing, transmitting, publishing and
disseminating news, comment and opinion in any form or manner;
(c) To purchase or otherwise acquire and to sell, either as
principal or agent, newspapers, news services, magazines, books,
periodicals and other publications of all kinds and descriptions,
stationery and stationer's supplies, and, generally, to carry on the
business of wholesale and retail book sellers and stationers;
(d) To design, manufacture, buy, sell, lease, operate, maintain,
service and deal in and with news tickers, stock, bond and other
tickers, and other receiving, transmitting and recording instruments,
printing, engraving and lithographing machinery, and other machines,
machinery and apparatus of all kinds and descriptions for receiving,
transmitting, publishing and recording news, comment and quotations;
(e) To design, manufacture, buy, sell, lease, operate, maintain,
service and deal in and with all kinds of machines, machinery and
equipment;
(f) To acquire, hold, use, sell, assign, lease, grant licenses in
respect of, and mortgage or otherwise dispose of, letters patent of
the United States or any foreign country, patent rights, licenses and
privileges, inventions, improvements and processes, copyrights,
trademarks and trade names, relating to or useful in connection with
any business of the corporation;
(g) To carry on a general advertising and publicity business in
all its branches, either as principal or agent, and to acquire and
operate franchises or privileges for the performance of the purposes
of the corporation;
(h) To conduct, and carry on the business of a printer,
publisher, lithographer, stereotyper, electrotyper, photographic
printer, engraver, bookbinder and stationer, including the printing
and publication of newspapers, news services, magazines, news
bulletins, stock, bond and other quotations and news, books,
pamphlets, periodicals, posters, circulars, envelopes, bill and
letterheads, cards, tags, labels, commercial, financial and law blanks
and forms of every description; and, in general, to carry on and
conduct the business of a printer and publisher;
(i) To manufacture, purchase or otherwise acquire, invest in,
own, mortgage, pledge, sell, assign and transfer or otherwise dispose
of, trade in, deal in and deal with goods, wares and merchandise and
personal property of every class and description;
(j) To purchase, buy, sell, exchange, own, hold, maintain, work,
develop, convey, mortgage, lease, let, hire and otherwise acquire,
dispose of or deal in and with real estate and personal property,
wheresoever situated, in any part of the world, and without limit as
to the amount or value thereof, and any interest or right or rights
therein, and to improve or deal with such property in any way
permitted by law;
(k) To borrow or raise moneys for any of the purposes of the
corporation and, from time to time, without limit as to amount, to
draw, make, accept, endorse, execute and issue promissory notes,
drafts, bills of exchange, warrants, bonds, debentures and other
negotiable or non-negotiable instruments and evidences of
indebtedness, and to secure the payment of any thereof and of the
interest thereon by mortgage upon or pledge, conveyance or assignment
in trust of the whole or any part of the property of the corporation,
whether at the time owned or thereafter acquired, and to sell, pledge
or otherwise dispose of such bonds or other obligations of the
corporation for its corporate purposes, and to confer upon the holders
of any of its bonds or other obligations such powers, rights and
privileges as from time to time may be deemed advisable by the board
of directors, to the extent permitted by law;
(l) To acquire by purchase, subscription or otherwise, and to
receive, hold, own, guarantee, sell, assign, exchange, transfer,
mortgage, pledge or otherwise dispose of or deal in and with any of
the shares of the capital stock, or any voting trust certificates in
respect of the shares of capital stock, scrip, warrants, rights,
bonds, debentures, notes, trust receipts, and other securities,
obligations, choses in action and evidences of indebtedness or
interest issued or created by any corporations, joint stock companies,
syndicates, associations, firms, trusts or persons, public or private,
or by the government of the United States of America, or by any
foreign government, or by any state, territory, province, municipality
or other political subdivision or by any governmental agency, and as
owner thereof to possess and exercise all of the rights, powers and
privileges of ownership, including the right to execute consents and
vote thereon, and to do any and all acts and things necessary or
advisable for the preservation, protection, improvement and
enhancement in value thereof;
(m) To lend and advance money and extend credit to any person,
firm or corporation, either with or without security;
(n) To purchase or otherwise acquire, hold, cancel, reissue,
sell, pledge, exchange, transfer or otherwise deal in its own
securities, including shares of its capital stock of any class, from
time to time and to such extent and in such manner and upon such terms
as the board of directors shall determine; provided it shall not use
its funds or property for the purchase of its own shares of capital
stock when such use would cause any impairment of its capital except
as otherwise permitted by law, and provided further that shares of its
own capital stock belonging to it shall not be voted upon directly or
indirectly;
(o) To acquire, and pay for in cash, stock or bonds of this
corporation or otherwise, the good will, rights, assets and property,
and to undertake or assume the whole or any part of the obligations or
liabilities of any person, firm, association, trust or corporation;
(p) To apply for, purchase, or acquire by assignment, transfer or
otherwise, and to exercise, carry out and enjoy any and all rights
under any statute, ordinance, order, license, power, authority,
franchise, concession or privilege which any government or authority,
or any other corporate or public body, may be empowered to enact, make
or grant, and to pay for, aid in and contribute toward carrying the
same into effect, and to appropriate any of the corporation's stock,
bonds, debentures, notes and other securities and assets to defray the
necessary costs, charges and expenses thereof;
(q) To enter into, make and perform contracts of every kind and
description with any person, firm, association, trust, corporation,
municipality, county, state, body politic or government or colony or
dependency thereof;
(r) To consolidate with or merge into any one or more other
corporations whenever and however organized;
(s) To have one or more offices and to carry on all or any of its
operations and business in any of the states, districts, territories
or possessions of the United States, and in any and all foreign
countries, subject to the laws of such state, district, territory,
possession or country;
(t) In general, to carry on any other business in connection with
the foregoing, and to have and exercise all the powers conferred by
the laws of Delaware upon corporations formed under the General
Corporation Law of the State of Delaware.
The objects and purposes specified in the foregoing clauses shall,
except where otherwise expressed, be in nowise limited or restricted by
reference to, or inference from, the terms of any other clause in this
certificate of incorporation, but the objects and purposes specified in
each of the foregoing clauses of this Article shall be regarded as
independent objects and purposes, and the enumeration of specific objects
and purposes shall not be construed to restrict in any manner the general
objects and purposes of the corporation, nor shall the expression of one
thing be deemed to exclude another, although it be of like nature. The
enumeration of objects and purposes herein shall not be deemed to exclude
or in any way limit by inference any powers, objects or purposes which the
corporation is empowered to exercise, whether expressly by force of the
laws of Delaware, now or hereafter in effect, or impliedly by any
reasonable construction of said laws.
FOURTH. The total number of shares of all classes which the
corporation shall have authority to issue is One Hundred Sixty Million
(160,000,000), consisting of One Hundred Thirty-five Million (135,000,000)
shares of common stock of the par value of $1 per share (hereinafter called
"Common Stock") and Twenty-five Million (25,000,000) shares of class B
common stock of the par value of $1 per share (hereinafter called "Class B
Common Stock").
1. (a) At every meeting of the stockholders every holder of
Common Stock shall be entitled to one (1) vote in person or by proxy
for each share of Common Stock standing in his name on the stock
transfer records of the corporation and every holder of Class B Common
Stock shall be entitled to ten (10) votes in person or by proxy for
each share of Class B Common Stock standing in his name on the stock
transfer records of the corporation; provided that at every meeting of
the stockholders called for the election of directors of the
corporation (A) the holders of Common Stock, voting separately as a
class, shall be entitled to elect seven (7) of the directors to be
elected at such meeting, and (B) the holders of class B Common Stock
and Common Stock, voting as a separate class, shall be entitled to
elect the remaining directors to be elected at such meeting. However,
if paragraph a. of Article Fifth is at any time amended to permit the
number of directors of the corporation to exceed eighteen, then at
every meeting of the stockholders called for the election of
directors, (A) the holders of Common Stock, voting separately as a
class, shall be entitled to elect the greater of (x) seven (7) of the
directors to be elected at such meeting, or (y) one-third (1/3) of the
number of directors to be elected at such meeting, and if one-third
(1/3) of such number of directors is not a whole number, the next
higher whole number of directors to be elected at such meeting), and
(B) the holders of Class B Common Stock and Common Stock, voting as a
separate class, shall be entitled to elect the remaining directors to
be elected at such meeting. Directors elected by the holders of Common
Stock, voting separately as a class, may be removed, with or without
cause, only by a vote of the holders of a majority of the shares of
Common Stock then outstanding, voting separately as a class. If,
during the interval between annual meetings of stockholders for the
election of directors, the number of directors who have been elected
by the holders of Common Stock voting separately as a class shall, by
reason or resignation, death or removal, be reduced, the vacancy or
vacancies in the directors elected by the holders of Common Stock
voting separately as a class shall be filled by a majority vote of the
remaining directors then in office, even if less than a quorum, and if
not so filled within forty days after the creation of such vacancy or
vacancies, the Secretary of the corporation shall call a special
meeting of the holders of Common Stock and such vacancy or vacancies
shall be filed at such special meeting. Any director elected to fill
any such vacancy by the remaining directors then in office may be
removed from office by vote of the holders of a majority of the shares
of Common Stock voting separately as a class.
(b) Every reference in this certificate of incorporation to a
majority or other proportion of shares of stock shall refer to such
majority or other proportion of the votes of such shares of stock.
2. (a) No person holding shares of Class B Common Stock
(hereinafter called a "Class B Holder") may transfer, and the
corporation shall not register the transfer of, such shares of Class B
Common Stock, whether by sale, assignment, gift, bequest, appointment
or otherwise, except to a Permitted Transferee of such Class B Holder,
which term shall have the following meanings:
(i) In the case of a Class B Holder who is a natural person
holding record and beneficial ownership of the shares of Class B
Common Stock in question, "Permitted Transferee" means (A) the
spouse of such Class B Holder, (B) a lineal descendant of a great
grandparent of such Class B Holder, (C) the trustee of a trust
(including a voting trust) for the benefit of one or more of such
Class B Holder, other lineal descendants of a great grandparent
of such Class B Holder, the spouse of such Class B Holder, and an
organization contributions to which are deductible for federal
income, estate or gift tax purposes (hereinafter called a
"Charitable Organization"), and for the benefit of no other
person, provided that such trust may grant a general or special
power of appointment to such spouse and may permit trust assets
to be used to pay taxes, legacies and other obligations of the
trust or the estate of such Class B Holder payable by reason of
the death of such Class B Holder and provided that such trust
must prohibit transfer of shares of Class B Common Stock to
persons other than Permitted Transferees as defined in clause
(ii) below, (D) a Charitable Organization established by such
Class B Holder, such Class B Holder's spouse or a lineal
descendant of a great grandparent of such Class B Holder, (E) a
corporation all of the outstanding capital stock of which is
owned by, or a partnership all of the partners of which are, one
or more of such Class B Holder, other lineal descendants of a
great grandparent of such Class B Holder, and the spouse of such
Class B Holder, provided that if any share of capital stock of
such a corporation (or of any survivor of a merger or
consolidation of such a corporation), or any partnership interest
in such a partnership, is acquired by any person who is not
within such class of persons, all shares of Class B Common Stock
then held by such corporation or partnership, as the case may be,
shall be deemed without further act on anyone's part to be
converted into shares of Common Stock, and stock certificates
formerly representing such shares of Class B Common Stock shall
thereupon and thereafter be deemed to represent the like number
of shares of Common Stock.
(ii) In the case of a Class B Holder holding the shares of
Class B Common Stock in question as trustee pursuant to a trust
other than a trust described in clause (iii) below, "Permitted
Transferee" means (A) the person who established such trust, and
(B) a Permitted Transferee of such person determined pursuant to
clause (i) above.
(iii) In the case of a Class B Holder holding the shares of
Class B Common Stock in question as trustee pursuant to a trust
which was irrevocable on the record date (hereinafter in this
paragraph 2 called the "Record Date") for determining the persons
to whom the Class B Common Stock is first distributed by the
corporation, "Permitted Transferee" means any person to whom or
for whose benefit principal may be distributed either during or
at the end of the term of such trust whether by power of
appointment or otherwise.
(iv) In the case of a Class B Holder holding record (but not
beneficial) ownership of the shares of Class B Common Stock in
question as nominee for the person who was the beneficial owner
thereof on the Record Date, "Permitted Transferee" means such
beneficial owner and a Permitted Transferee of such beneficial
owner determined pursuant to clauses (i), (ii), (iii), (v) or
(vi) hereof, as the case may be.
(v) In the case of a Class B Holder which is a partnership
holding record and beneficial ownership of the shares of Class B
Common Stock in question, "Permitted Transferee" means any
partner of such partnership.
(vi) In the case of a Class B Holder which is a corporation
(other than a Charitable Organization described in subclause (D)
of clause (i) above) holding record and beneficial ownership of
the shares of Class B Common Stock in question, "Permitted
Transferee" means any stockholder of such corporation receiving
shares of Class B Common Stock through a dividend or through a
distribution made upon liquidation of such corporation, and the
survivor of a merger or consolidation of such corporation.
(vii) In the case of a Class B Holder which is the estate of
a deceased Class B Holder, or which is the estate of a bankrupt
or insolvent Class B Holder, and provided such deceased, bankrupt
or insolvent Class B Holder, as the case may be, held record and
beneficial ownership of the shares of Class B Common Stock in
question, "Permitted Transferee" means a Permitted Transferee of
such deceased, bankrupt or insolvent Class B Holder as determined
pursuant to clauses (i), (v) or (vi) above, as the case may be.
(b) Notwithstanding anything to the contrary set forth herein,
any Class B Holder may pledge such Holder's shares of Class B Common
Stock to a pledgee pursuant to a bona fide pledge of such shares as
collateral security for indebtedness due to the pledgee, provided that
such shares shall not be transferred to or registered in the name of
the pledgee and shall remain subject to the provisions of this
paragraph 2. In the event of foreclosure or other similar action by
the pledgee, such pledged shares of Class B Common Stock may only be
transferred to a Permitted Transferee of the pledgor or converted into
shares of Common Stock, as the pledgee may elect.
(c) For purposes of this paragraph 2:
(i) The relationship of any person that is derived by or
though legal adoption shall be considered a natural one.
(ii) Each joint owner of shares of Class B Common Stock
shall be considered a "Class B Holder" of such shares.
(iii) A minor for whom shares of Class B Common Stock are
held pursuant to a Uniform Gifts to Minors Act or similar law
shall be considered a Class B Holder of such shares.
(iv) Unless otherwise specified, the term "person" means
both natural persons and legal entities.
(d) Any purported transfer of shares of Class B Common Stock not
permitted hereunder shall be void and of no effect and the purported
transferee shall have no rights as a stockholder of the corporation
and no other rights against or with respect to the corporation. The
corporation may, as a condition to the transfer or the registration of
transfer of shares of Class B Common Stock to a purported Permitted
Transferee, require the furnishing of such affidavits or other proof
as it deems necessary to establish that such transferee is a Permitted
Transferee. The corporation may note on the certificates for shares of
Class B Common Stock the restrictions on transfer and registration of
transfer imposed by this paragraph 2.
(e) When the number of outstanding shares of Class B Common Stock
falls below Seven Million Five Hundred Thousand (7,500,000), or such
higher number as results from adjustments for stock splits or stock
dividends, the outstanding shares of Class B Common Stock shall be
deemed without further act on anyone's part to be converted into
shares of Common Stock, and stock certificates formerly representing
outstanding shares of Class B Common Stock shall thereupon and
thereafter be deemed to represent the like number of shares of Common
Stock.
3. (a) Each shares of Class B Common Stock may at any time be
converted into one (1) fully paid and nonassessable share of Common
Stock. Such right shall be exercised by the surrender of the
certificate representing such share of Class B Common Stock to be
converted to the corporation at any time during normal business hours
at the principal executive offices of the corporation, or if an agent
for the registration of transfer of shares of Class B Common Stock is
then duly appointed and acting (said agent being hereinafter called
the "Transfer Agent") then at the office of the Transfer Agent,
accompanied by a written notice of the election by the holder thereof
to convert and (if so required by the corporation or the Transfer
Agent) by instruments of transfer, in form satisfactory to the
corporation and to the Transfer Agent, duly executed by such holder or
his duly authorized attorney, and transfer tax stamps or funds
therefor, if required pursuant to subparagraph (e) below.
(b) As promptly as practicable after the surrender for conversion
of a certificate representing shares of Class B Common Stock in the
manner provided in subparagraph (a) above and the payment in cash of
any amount required by the provisions of subparagraphs (a) and (e),
the corporation will deliver or cause to be delivered at the office of
the Transfer Agent to or upon the written order of the holder of such
certificate, a certificate or certificates representing the number of
full shares of Common Stock issuable upon such conversion, issued in
such name or names as such holder may direct. Such conversion shall be
deemed to have been made immediately prior to the close of business on
the date of the surrender of the certificate representing shares of
Class B Common Stock, and all rights of the holder of such shares as
such holder shall cease at such time and the person or persons in
whose name or names the certificate or certificates representing the
shares of Common Stock are to be issued shall be treated for all
purposes as having become the record holder or holders of such shares
of Common Stock at such time; provided, however, that any such
surrender and payment on any date when the stock transfer books of the
corporation shall be closed shall constitute the person or persons in
whose name or names the certificate or certificates representing
shares of Common Stock are to be issued as the record holder or
holders thereof for all purposes immediately prior to the close of
business on the next succeeding day on which such stock transfer books
are open.
(c) No adjustments in respect of dividends shall be made upon the
conversion of any share of Class B Common Stock, provided, however,
that if a share shall be converted subsequent to the record date for
the payment of a dividend or other distribution on shares of Class B
Common Stock but prior to such payment, the registered holder of such
share at the close of business on such record date shall be entitled
to receive the dividend or other distribution payable on such share on
such date notwithstanding the conversion thereof or the corporation's
default in payment of the dividend due on such date.
(d) The corporation covenants that it will at all times reserve
and keep available, solely for the purpose of issue upon conversion of
the outstanding shares of Class B Common Stock, such number of shares
of Common Stock as shall be issuable upon the conversion of all such
outstanding shares, provided, that nothing contained herein shall be
construed to preclude the corporation from satisfying its obligations
in respect of the conversion of the outstanding shares of Class B
Common Stock by delivery of purchased shares of Common Stock which are
held in the treasury of the corporation. The corporation covenants
that if any shares of Common Stock, required to be reserved for
purposes of conversion hereunder, require registration with or
approval of any governmental authority under any federal or state law
before such shares of Common Stock may be issued upon conversion, the
corporation will cause such shares to be duly registered or approved,
as the case may be. The corporation will endeavor to list the shares
of Common Stock required to be delivered upon conversion prior to such
delivery upon each national securities exchange upon which the
outstanding Common Stock is listed at the time of such delivery. The
corporation covenants that all shares of Common Stock which shall be
issued upon conversion of the shares of Class B Common Stock, will,
upon issue, be fully paid and nonassessable and not subject to any
preemptive rights.
(e) The issuance of certificates for shares of Common Stock upon
conversion of shares of Class B Stock shall be made without charge for
any stamp or other similar tax in respect of such issuance. However,
if any such certificate is to be issued in a name other than that of
the holder of the share or shares of Class B Common Stock converted,
the person or persons requesting the issuance thereof shall pay to the
corporation the amount of any tax which may be payable in respect of
any transfer involved in such issuance or shall establish to the
satisfaction of the corporation that such tax has been paid.
4. Each share of Common Stock and Class B Common Stock shall be
equal in respect of rights to dividends and other distributions in
cash, stock or property of the corporation, provided that in the case
of dividends or other distributions payable in stock of the
corporation, including distributions pursuant to stock split-ups or
divisions of stock of the corporation, which occur after the date
shares of Class B Common Stock are first issued by the corporation,
only shares of Common Stock shall be distributed with respect to
Common Stock and only shares of Class B Common Stock shall be
distributed with respect to Class B Common Stock.
5. Except as otherwise provided in paragraph 4 above, the
corporation shall not issue additional shares of Class B Common Stock
after the date shares of Class B Common Stock are first issued by the
corporation, and all shares of Class B Common Stock surrendered for
conversion shall be retired, unless otherwise approved by the
affirmative vote of the holders of a majority of the outstanding
shares of stock of the corporation entitled to vote.
6. The number of authorized shares of any class or classes of
stock of the corporation may be increased or decreased by the
affirmative vote of the holders of a majority of the outstanding
shares of stock of the corporation entitled to vote.
7. No stockholder of the corporation shall be entitled as of
right to subscribe for, purchase or receive any part of any new or
additional issue of stock of any class, whether now or hereafter
authorized, or of bonds, debentures or other securities convertible
into or exchangeable for stock, but all such additional shares of
stock of any class, or bonds, debentures or other securities
convertible into or exchangeable for stock, may be issued and disposed
of by the board of directors on such terms and for such consideration,
so far as may be permitted by law, and to such persons, as the board
of directors in its absolute discretion may deem advisable.
FIFTH. The following provisions regarding the election and removal of
directors are established:
(a) The number of directors of the corporation shall be not less
than ten or more than twenty, and, subject to such limitation, shall
be fixed from time to time by or pursuant to the bylaws. The directors
shall be classified, with respect to the time for which they severally
hold office, into three classes, as nearly equal in number as possible
(and, if Class B Common Stock is outstanding, consisting as nearly as
possible of one director elected by the Common Stock, voting
separately as a class, for every two directors elected by the Common
Stock and the Class B Common Stock voting together), one class to be
originally elected for a term expiring at the 1987 annual meeting of
stockholders, another class to be originally elected for a term
expiring at the 1988 annual meeting of stockholders, and another class
to be originally elected for a term expiring at the 1989 annual
meeting of stockholders, with the members of each class to hold office
until their successors have been elected and have qualified. At each
annual meeting of stockholders, 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.
Notwithstanding the foregoing, the term of any director who is then 70
years of age or older shall in all events expire at the 1989 annual
meeting of stockholders, and thereafter the term of each director
shall in all events expire at the annual meeting of stockholders next
following such director's 70th birthday.
(b) Nominations for the election of directors may be made by the
board of directors or by any stockholder entitled to vote in the
election of directors. However, any stockholder entitled to vote in
the election of directors may nominate one or more persons for
election as director only if written notice of such stockholder's
intent to make such nomination or nominations has been given, either
by person delivery or by United States mail, postage prepaid, to the
Secretary of the corporation not later than (i) with respect to an
election to be held at an annual meeting of stockholders, 45 days in
advance of the calendar day on which the corporation's proxy statement
was released to stockholders in connection with the previous year's
annual meeting of stockholders and (ii) with respect to an election to
be held at a special meeting of stockholders for the election of
directors, the close of business on the seventh day following the day
on which notice of such meeting is first given to stockholders. Each
such notice shall set forth: (A) the name and address of the
stockholder who intends to make the nomination or nominations and of
the person or persons to be nominated; (B) a representation that the
stockholder is a holder of record of stock of the corporation entitled
to vote at such meeting and intends to appear in person or by proxy at
the meeting to nominate the person or persons specified in the notice;
(C) a description of all arrangements or understandings between such
stockholder and each nominee and any other person or persons (naming
such person or persons) pursuant to which the nomination or
nominations is or are to be made by the stockholder; (D) such other
information regarding each nominee proposed by such stockholder as
would have been required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission
if the nominee had been nominated by the board of directors; and (E)
the consent of each nominee to serve as a director of the corporation
if elected. The chairman of any meeting of stockholders may refuse to
acknowledge the nomination of any person if not made in compliance
with the foregoing procedure.
(c) Newly created directorships resulting from any increase in
the number of directors and any vacancies on the board of directors
resulting from resignation, retirement, death, disqualification,
removal, or other cause may be filled by a majority of the remaining
directors then in office, even if less than a quorum, except as
Article Fourth otherwise provides with respect to, if Class B Common
Stock is outstanding, the election of directors by the holders of the
Common Stock voting separately as a class. Any director elected in
accordance with the preceding sentence 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 has been elected and has qualified. No decrease
in the number of directors constituting the board of directors shall
shorten the term of any incumbent director.
(d) Any director may be removed from office only for cause and
only by the affirmative vote of the holders of at least 80% of the
voting power of the outstanding Voting Stock (as defined in paragraph
(a) of Article Seventh), voting together as a single class, except as
Article Fourth otherwise provides with respect to, if Class B Common
Stock is outstanding, the election of directors by the holders of the
Common Stock voting separately as a class.
(e) Notwithstanding any other provision of this certificate of
incorporation or the bylaws (and notwithstanding the fact that a
lesser percentage may be specified by law, this certificate of
incorporation or the bylaws), the affirmative vote of the holders of
at least 80% of the voting power of the outstanding Voting Stock,
voting together as a single class, shall be required to alter, amend,
adopt any provision inconsistent with, or repeal this Article Fifth.
SIXTH. Any action required or permitted to be taken by the
stockholders of the corporation must be taken at a duly called annual or
special meeting of stockholders and may not be taken by any consent in
writing of such holders. Special meetings of stockholders of the
corporation may be called only by a majority vote of the whole board of
directors, except as otherwise required by law and except as Article Fourth
otherwise provides with respect to special meetings to be called for the
purpose of the election of directors by, if Class B Common Stock is
outstanding, the holders of the Common Stock voting separately as a class.
Notwithstanding any other provision of this certificate of incorporation or
the bylaws (and notwithstanding the fact that a lesser percentage may be
specified by law, this certificate of incorporation or the bylaws), the
affirmative vote of the holders of at least 80% of the voting power of the
outstanding Voting Stock, voting together as a single class, shall be
required to alter, amend, adopt any provision inconsistent with, or repeal
this Article Sixth.
SEVENTH. The following provisions concerning certain actions and
transactions are established:
(a) In addition to any affirmative vote required by law or this
certificate of incorporation, and except as otherwise expressly
provided in paragraph (c) of this Article Seventh:
(i) any merger or consolidation of the corporation or any
Subsidiary (as hereinafter defined) with (A) any Interested
Stockholder (as hereinafter defined) or (B) any other person
(whether or not itself an Interested Stockholder) which is, or
after such merger or consolidation would be, an Affiliate (as
hereinafter defined) of any Interested Stockholder; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer
or other disposition (in one transaction or in a series of
transactions) to or with any Interested Stockholder or any
Affiliate of any Interested Stockholder of any assets of the
corporation or any Subsidiary having an aggregate Fair Market
Value (as hereinafter defined) of $25 million or more; or
(iii) the issuance or transfer by the corporation or any
Subsidiary (in one transaction or in a series of transactions) of
any securities of the corporation or any Subsidiary to any
Interested Stockholder or any Affiliate of any Interested
Stockholder in exchange for cash, securities or other property
(or a combination thereof) having an aggregate Fair Market Value
of $25 million or more; or
(iv) the adoption of any plan or proposal for the
liquidation or dissolution of the corporation proposed by or on
behalf of any Interested Stockholder or any Affiliate of any
Interested Stockholder; or
(v) any reclassification of securities (including any
reverse stock split), or recapitalization of the corporation, or
any merger or consolidation of the corporation with any
Subsidiary or any other transaction (whether or not with or into
or otherwise involving any Interested Stockholder) which has the
effect, directly or indirectly, of increasing the proportionate
share of the outstanding shares of any class of Equity Security
(as hereinafter defined) of the corporation or any Subsidiary
which is directly or indirectly owned by any Interested
Stockholder or any Affiliate of any Interested Stockholder; shall
require the affirmative vote of the holders of at least 80% of
the voting power of the outstanding shares of capital stock of
the corporation entitled to vote for the election of directors
(the "Voting Stock"), voting together as a single class. Such
affirmative vote shall be required notwithstanding the fact that
no vote may be required, or that a lesser percentage may be
specified, by law or in any agreement with any national
securities exchange or otherwise.
(b) The term "Business Combination" means any transaction
described in clauses (i) through (v) of paragraph (a) of this Article
Seventh.
(c) The provisions of paragraph (a) of this Article Seventh shall
not be applicable to a Business Combination, and the Business
Combination shall require only the affirmative vote required by law
and any other provision of this certificate of incorporation, if all
of the conditions specified in either of the following subparagraphs
(i) or (ii) are met:
(i) The Business Combination shall have been approved by a
majority of the Continuing Directors (as hereinafter defined).
(ii) All of the following conditions shall have been met:
(A) The aggregate amount of the cash and the Fair
Market Value as of the date of the consummation of the
Business Combination of consideration other than cash to be
received per share by holders of Common Stock and Class B
Common Stock in the Business Combination is at least equal
to the highest of the following:
(1) (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes
and soliciting dealers' fees) paid by the Interested
Stockholder in question for any shares of Common Stock
acquired by it (x) within the two-year period
immediately prior to the first public announcement of
the terms of the proposed Business Combination (the
"Announcement Date") or (y) in the transaction in which
such Interested Stockholder became an Interested
Stockholder; or
(2) the Fair Market Value per share of Common
Stock on the Announcement Date; or
(3) the Fair Market Value per share of Common
Stock on the date on which the Interested Stockholder
in question became an Interested Stockholder (the
"Determination Date").
(B) The aggregate amount of the cash and the Fair
Market Value as of the date of the consummation of the
Business Combination of consideration other than cash to be
received per share by holders of any other class of
outstanding Voting Stock is at least equal to the highest of
the following:
(1) (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes
and soliciting dealers' fees) paid by the Interested
Stockholder in question for any shares of such class of
Voting Stock acquired by it (x) within the two-year
period immediately prior to the Announcement Date or
(y) in the transaction in which such Interested
Stockholder became an Interested Stockholder; or
(2) (if applicable) the highest preferential
amount per share to which the holders of such class of
Voting Stock are entitled in the event of any voluntary
or involuntary liquidation or dissolution of the
corporation; or
(3) the Fair Market Value per share of such class
of Voting Stock on the Announcement Date; or
(4) the Fair Market Value per share of such class
of Voting Stock on the Determination Date.
(C) The consideration to be received by holders of a
particular class of outstanding Voting Stock is in cash or
in the same form as the Interested Stockholder in question
has previously paid for shares of such class of Voting
Stock, provided that the consideration to be received by
holders of Class B Common Stock must be in cash or in the
same form as such Interested Stockholder has previously paid
for Common Stock. If the Interested Stockholder in question
has previously paid for shares of any class of Voting Stock
with varying forms of consideration, the form of
consideration to be paid for shares of such class of Voting
Stock purchased in the transaction in question hereunder
must be either cash or the form used previously by such
Interested Stockholder to acquire the largest number of
shares of such class of Voting Stock. The price determined
in accordance with subparagraphs (ii)(A) and (ii)(B) of this
paragraph (c) shall be subject to appropriate adjustment in
the event of any stock dividend, stock split, combination of
shares or similar event.
(D) After the Interested Stockholder in question has
become an Interested Stockholder and prior to the
consummation of such Business Combination: (1) except as
approved by a majority of the Continuing Directors, there
shall have been no failure to declare and pay, in whole or
in part, at the regular date therefor any dividends (whether
or not cumulative) on the outstanding stock having
preference over the Common Stock as to dividends or upon
liquidation; (2) there shall have been (x) no reduction in
the annual rate of dividends paid on Common Stock or Class B
Common Stock (except as necessary to reflect any subdivision
of the Common Stock or Class B Common Stock), except as
approved by a majority of the Continuing Directors, and (y)
no increase in such annual rate of dividends (except as
necessary to reflect any reclassification (including any
reverse stock split), recapitalization, reorganization or
any similar transaction which has the effect of reducing the
number of outstanding shares of Common Stock or Class B
Common Stock, except as approved by a majority of the
Continuing Directors; and (3) such Interested Stockholder
shall not have become the beneficial owner of any additional
shares of Voting Stock subsequent to the transaction in
which it became an Interested Stockholder.
(E) After the Interested Stockholder in question has
become an Interested Stockholder, it shall not have received
the benefit, directly or indirectly (except proportionately
with all other stockholders of the corporation), of any
loans, advances, guarantees, pledges or other financial
assistance or any tax credits or other tax advantages
provided by the corporation, whether in anticipation of or
in connection with such Business Combination or otherwise.
(F) A proxy or information statement describing the
proposed Business Combination and complying with the
requirements of the Securities Exchange Act of 1934 and the
rules and regulations thereunder (or any subsequent
provisions replacing such Act, rules or regulations) shall
be mailed to the stockholders of the corporation at least 30
days prior to the consummation of such Business Combination
(whether or not such proxy or information statement is
required to be mailed pursuant to such Act or subsequent
provisions).
(d) For purposes of this Article Seventh:
(i) a "person" means any individual, proprietorship,
partnership, corporation or other entity, or any group of
two or more of the foregoing acting together;
(ii) "Interested Stockholder" means any person (other
than the corporation or any Subsidiary) who or which:
(A) is the beneficial owner, directly or
indirectly, of 10% or more of the voting power of the
outstanding Voting Stock; or
(B) is an Affiliate of the corporation and at any
time within the two-year period immediately prior to
the date in question was the beneficial owner, directly
or indirectly, of 10% or more of the voting power of
the then outstanding Voting Stock; or
(C) is an assignee of or has otherwise succeeded
to any shares of Voting Stock which were at any time
within the two-year period immediately prior to the
date in question beneficially owned by an Interested
Stockholder, if such assignment or succession occurred
in the course of a transaction or series of
transactions not involving a public offering within the
meaning of the Securities Act of 1933.
(iii) A person is a "beneficial owner" of any Voting
Stock:
(A) that such person or any of its Affiliates or
Associates (as hereinafter defined) beneficially owns
directly or indirectly; or
(B) that such person or any of its Affiliates or
Associates has (1) the right to acquire (whether such
right is exercisable immediately or only after the
passage of time or upon the occurrence of an event, or
both) pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or
otherwise, or (2) the right to vote pursuant to any
agreement, arrangement or understanding; or
(C) that is beneficially owned, directly or
indirectly, by any other person with which such person
or any of its Affiliates or Associates has any
agreement, arrangement or understanding for the purpose
of acquiring, holding, voting or disposing of any
shares of Voting Stock.
(iv) For the purpose of determining whether a person is
an Interested Stockholder pursuant to subparagraph (ii) of
this paragraph (ii) of this paragraph (d), the number of
shares of Voting Stock deemed to be outstanding shall
include shares deemed owned through application of
subparagraph (iii) of this paragraph (d), but shall not
include any other shares of Voting Stock that may be
issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion right,
warrants or options, or otherwise.
(v) "Affiliate" and "Associate" have the respective
meanings ascribed to such terms in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of
1934, as in effect on March 1, 1986.
(vi) "Subsidiary" means any corporation of which a
majority of any class of Equity Security is owned, directly
or indirectly, by the corporation, provided that for the
purposes of the definition of Interested Stockholder set
forth in subparagraph (ii) of this paragraph (d), the term
"Subsidiary" shall mean only a corporation of which a
majority of each class of Equity Security is owned, directly
or indirectly, by the corporation.
(vii) "Continuing Director" means (A) any member of the
board of directors who was a member of the board on April
15, 1986, (B) any member of the board of directors who is
unaffiliated with the Interested Stockholder in question and
who was a member of the board prior to the time that such
Interested Stockholder became an Interested Stockholder, and
(C) any member of the board of directors who was nominated
or elected by a majority of Continuing Directors then on the
board of directors.
(viii) "Fair Market Value" means (A) in the case of
stock, the highest closing sale price during the 30-day
period immediately preceding the date in question of a share
of such stock on the Composite Tape for New York Stock
Exchange - Listed Stocks, or, if such stock is not quoted on
the Composite Tape, on the New York Stock Exchange, or, if
such stock is not listed on such Exchange, on the principal
United States securities exchange registered under the
Securities Exchange Act of 1934 on which such stock is
listed, or, if such stock is not listed on any such
exchange, the highest closing bid quotation with respect to
a share of such stock during the 30-day period immediately
preceding the date in question on the National Association
of Securities Dealers, Inc. Automated Quotations System or
any system then in use, or if no such quotations are
available, the fair market value on the date in question of
a share of such stock as determined by the board of
directors in good faith and (B) in the case of property
other than cash or stock, the fair market value of such
property on the date in question as determined by the board
of directors in good faith.
(ix) In the event of any Business Combination in which
the corporation survives, the phrase "consideration other
than cash to be received" as used in subparagraphs (ii)(A)
and (B) of paragraph (c) of this Article Seventh shall
include the shares of Common Stock, Class B Common Stock and
the shares of any other class of outstanding Voting Stock
retained by the holders of such shares.
(x) "Equity Security" has the meaning ascribed to such
term in Section 3(a)(11) of the Securities Exchange Act of
1934, as in effect on March 1, 1986.
(e) A majority of the entire board of director shall have
the power and duty to determine for purposes of this Article
Seventh, on the basis of information known to the directors after
reasonable inquiry, (i) whether a person is an Interested
Stockholder, (ii) the number of shares of Voting Stock
beneficially owned by any person, (iii) whether a person is an
Affiliate or Associate of another, and (iv) whether the assets
that are the subject of any Business Combination have, or the
consideration to be received for the issuance or transfer of
securities by the corporation or any Subsidiary in any Business
Combination has, an aggregate Fair Market Value of $25 million or
more. A majority of the entire board of directors shall have the
further power to interpret all of the terms and provisions of
this Article Seventh.
(f) Nothing contained in this Article Seventh shall be
construed to relieve any Interested Stockholder of any fiduciary
obligation imposed by law.
(g) Notwithstanding any other provision of this certificate
of incorporation or the bylaws (and notwithstanding the fact that
a lesser percentage may be specified by law, this certificate of
incorporation or the bylaws), the affirmative vote of the holders
of at least 80% of the voting power of the outstanding Voting
Stock, voting together as a single class, shall be required to
alter, amend, adopt any provision inconsistent with, or repeal
this Article Seventh.
EIGHTH. The board of directors of the corporation, when
evaluating any actions or transactions described in paragraph (a) of
Article Seventh of this certificate of incorporation, shall give due
consideration to all relevant factors, including without limitation
the effect of such action or transaction upon the independence and
integrity of the corporation's publications and services and the
social and economic effects of such action or transaction upon the
corporation's stockholders, employees, subscribers, readers,
advertisers, customers, suppliers and other constituencies, and on the
communities in which the corporation and its subsidiaries operate or
are located.
NINTH. The minimum amount of capital with which the corporation
will commence business is One Thousand Dollars ($1,000).
TENTH. The names and places of residence of the incorporators are
as follows:
Guy Bancroft................ 164 Riverway
Boston, Massachusetts
Richard B. Cole............. 64 Valentine Park
West Newton, Massachusetts
Laurence M. Lombard......... Dedham, Massachusetts
ELEVENTH. The corporation is to have perpetual existence.
TWELFTH. The private property of the stockholders shall not be
subject to the payment of corporate debts to any extent whatever.
THIRTEENTH. 1. In furtherance and not in limitation of the powers
conferred by statute, the board of directors is expressly authorized:
(a) To make, alter or repeal the bylaws of the corporation;
(b) To authorize and cause to be executed mortgages and
liens upon the real and personal property of the corporation;
(c) To set apart out of any of the funds of the corporation
available for dividends a reserve or reserves for any proper
purpose and to abolish any such reserve in the manner in which it
was created;
(d) By resolution or resolutions passed by a majority of the
whole board, to designate one or more committees, each committee
to consist of two or more of the directors of the corporation,
which, to the extent provided in said resolution or resolutions
or in the bylaws of the corporation, shall have and may exercise
the powers of the board of directors in the management of the
business and affairs of the corporation, and may authorize the
seal of the corporation to be affixed to all papers which may
require it. Such committee or committees shall have such name or
names as may be stated in the bylaws of the corporation or as may
be determined from time to time by resolution adopted by the
board of directors;
(e) When and as authorized by the affirmative vote of the
holders of a majority of the stock issued and outstanding having
voting power given at a stockholders' meeting duly called for
that purpose, or when authorized by the written consent of the
holders of a majority of the voting stock issued and outstanding,
to sell, lease or exchange all of the property and assets of the
corporation, including its good will and its corporate
franchises, upon such terms and conditions and for such
consideration, which may be in whole or in part shares of stock
in, and/or other securities of, any other corporation or
corporations, as its board of directors shall deem expedient and
for the best interests of the corporation;
(f) From time to time to determine whether and to what
extent, at what time and place and under what conditions and
regulations the accounts and books of the corporation or any of
them shall be open to the inspection of any stockholders; and no
stockholder shall have any right to inspect any account or book
or document of the corporation except as conferred by statute or
bylaws or as authorized by a resolution of the stockholders or
board of directors.
2. Notwithstanding any other provision of this certificate of
incorporation or the bylaws (and in addition to any different vote
that may be specified by law, this certificate of incorporation or the
bylaws), so long as there shall be any Class B Common Stock
outstanding, (x) Section 43 of the Bylaws of the corporation shall not
be amended, altered or repealed, and no bylaw inconsistent with
Section 43 of the Bylaws may be adopted, without either (a) if adopted
by the stockholders, the affirmative vote of a majority of the
outstanding shares of Common Stock and the affirmative vote of a
majority of the outstanding shares of Class B Common Stock, each
voting separately as a class, or (b) if adopted by the directors, the
affirmative vote of at least 80% of the directors then in office and
(y) this paragraph 2 shall not be amended, altered or repealed without
the affirmative vote of a majority of the outstanding shares of Common
Stock and the affirmative vote of a majority of the outstanding shares
of Class B Common Stock, each voting separately as a class.
FOURTEENTH. Whenever a compromise or arrangement is proposed
between this corporation and its creditors or any class of them and/or
between this corporation and its stockholders or any class of them,
any court of equitable jurisdiction within the State of Delaware may,
on the application in a summary way of this corporation or of any
creditor or stockholder thereof, or on the application of any receiver
or receivers appointed for this corporation under the provisions of
Section 291 of Title 8 of the Delaware Code or under any similar
provisions enacted in place thereof or on the application of trustees
in dissolution or of any receiver or receivers appointed for this
corporation under the provisions of Section 279 of Title 8 of the
Delaware Code or under any similar provisions enacted in place
thereof, order a meeting of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of this
corporation, as the case may be, to be summoned in such manner as the
said Court directs. If a majority in number representing three-fourths
in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this corporation, as the case
may be, agree to any compromise or arrangement and to any
reorganization of this corporation as consequence of such compromise
or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the Court to which the said
application has been made, be binding on all the creditors or class of
creditors, and/or on all the stockholders or class of stockholders of
this corporation, as the case may be, and also on this corporation.
FIFTEENTH. A director of the corporation shall not be
disqualified by his office from dealing or contracting with the
corporation either as a vendor, purchaser or otherwise, nor shall any
transaction or contract of the corporation be void or voidable by
reason of the fact that any director or any firm of which any director
is a member or any corporation of which any director is a shareholder,
officer or director, is in any way interested in such transaction or
contract, provided that such transaction or contract is or shall be
authorized, ratified or approved (1) by a vote of a majority of a
quorum of the board of directors without including in such majority or
quorum any director so interested or member of a firm so interested,
or a shareholder, officer or director of a corporation so interested,
or (2) by the written consent of the holders of record of a majority
of the outstanding shares of stock of the corporation entitled to
vote, or (3) by the affirmative vote of the holders of a majority of
stock of the corporation represented at any meeting at which a quorum
is present, and provided further that such interest shall have been
fully disclosed or otherwise known to the directors or stockholders
authorizing, ratifying or approving such transaction or contract; nor
shall any director be liable to account to the corporation for any
profits realized by or from or through any such transaction or
contract of the corporation authorized, ratified or approved as
aforesaid by reason of the fact that he, or any firm of which he is a
member or any corporation of which he is a shareholder, officer or
director was interested in such transaction or contract. Nothing
herein contained shall create liability in the events above described
or prevent the authorization, ratification or approval of such
transactions or contracts in any other manner permitted by law.
SIXTEENTH. Meetings of stockholders may be held without the State
of Delaware, if the bylaws so provide. The books of the corporation
may be kept (subject to any provision contained in the statutes)
outside of the State of Delaware at such place or places as may be
from time to time designated by the board of directors or in the
bylaws of the corporation. Elections of directors need not be by
ballot unless the bylaws of the corporation shall so provide.
SEVENTEENTH. No director of the corporation shall be liable to
the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach
of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law, or (iv) for
any transaction from which the director derived an improper personal
benefit. Neither the amendment nor the repeal of this Article
Seventeenth, nor the adoption of any provision of the certificate of
incorporation inconsistent with this Article Seventeenth, shall
eliminate or reduce the effect of this Article Seventeenth on any
cause of action that arises out of an act or omission of a director
occurring prior to such amendment, repeal or adoption.
EIGHTEENTH. The corporation reserves the right to amend, alter,
change or repeal any provision contained in this certificate of
incorporation, in the manner now or hereafter prescribed by statute,
and all rights conferred upon stockholders herein are granted subject
to this reservation.