Exhibit 3.1
RESTATED ARTICLES OF INCORPORATION
ARTICLE ONE
Henley Merger Corp., pursuant to the provisions of Article 4.07 of the
Texas Business Corporation Act, hereby adopts restated articles of incorporation
which accurately copy the articles of incorporation and all amendments thereto
that are in effect to date and as further amended by such restated articles of
incorporation as hereinafter set forth and which contain no other change in any
provision hereof.
ARTICLE TWO
The articles of incorporation of the corporation are amended by the
restated articles of incorporation as follows:
Article I, Section 3(e) of Article IV, Section 6(c) of
Article IV, and Article VIII of the Articles of
Incorporation of the Corporation in effect on the date
hereof are hereby deleted in their entirety and
replaced by Article I, Section 3(e) of Article IV,
Section 6(c) of Article IV, and Article VIII of the
Restated Articles of Incorporation as hereinafter set
forth.
ARTICLE THREE
Each such amendment made by the restated articles of incorporation has
been effected in conformity with the provisions of the Texas Business
Corporation Act and such restated articles of incorporation and each such
amendment made by the restated articles of incorporation were duly adopted by
the shareholders of the corporation on the 1st day of December, 1989.
ARTICLE FOUR
The number of shares outstanding at the time of such adoption was
1,000, and the number of shares entitled to vote on the restated articles of
incorporation as so amended was 1,000, the holders of all of which have signed a
written consent to the adoption of such restated articles of incorporation as so
amended.
ARTICLE FIVE
The articles of incorporation and all amendments and supplements
thereto are hereby superseded by the restated articles of incorporation set
forth on Exhibit A attached hereto which accurately copy the entire text thereof
and as amended as above set forth.
HENLEY MERGER CORP.
By: /s/ Ken Davidson
Printed Name: Ken Davidson
Title: President
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EXHIBIT A
---------
RESTATED
ARTICLES OF INCORPORATION
OF
HENLEY INTERNATIONAL, INC.
Under the Texas Business Corporation Act, Henley International, Inc.
(the "Corporation") does hereby adopt the following Articles of Incorporation
for the Corporation:
ARTICLE I
Name
----
The name of the Corporation is Henley International, Inc.
ARTICLE II
Duration
--------
The period of the duration of the Corporation is perpetual.
ARTICLE III
Purpose and Powers
------------------
The purpose or purposes for which the Corporation is organized are:
To transact any and all lawful business for which
corporations may be incorporated under the Texas
Business Corporation Act (the "Act").
ARTICLE IV
Capital Stock
-------------
Section 1. AUTHORIZED SHARES. The total number of shares of stock
which the Corporation shall have authority to issue is 30,000,000, divided into
classes as follows: (i) 10,000,000 shares of Preferred Stock, $1.00 par value
each (hereinafter referred to as "Preferred Stock"), and (ii) 20,000,000 shares
of Common Stock, $0.001 par value each (hereinafter referred to as "Common
Stock").
Section 2. PREFERRED STOCK. The Preferred Stock shall have the
preferences, limitations, and relative rights as shall be established by the
Board of Directors by a resolution or resolutions adopted in compliance with
Article 2.13(B) of the Act, and may be issued in one or more series pursuant to
Section (IV)(3) hereof.
Section 3. DESIGNATION OF SERIES. Series of Preferred Stock may be
established from time to time of any number of the
shares of authorized Preferred Stock pursuant to any resolution or resolutions
adopted by the Board of Directors of the Corporation which establishes a
distinctive serial designation and fixes the relative rights and preference
thereof and otherwise satisfies the requirements of Article 2.13(B) of the Act.
The relative rights and preferences of Preferred Stock may vary
between any series established by the Board of Directors in any and all
respects, including (by way of illustration but not by way of limitation)
differences in any of the following respects between the characteristics of the
series being established and the relative rights and preferences of any other
series or class of stock of the Corporation:
(a) Voting rights;
(b) The price at and the terms and conditions on which shares may be
redeemed;
(c) The rate, preferences, and priorities of any distributions from the
Corporation payable with respect to shares and the dates, terms, and
other conditions on which such distributions shall be payable and
whether such distributions are cumulative, noncumulative, or partially
cumulative;
(d) Rights upon the dissolution or liquidation of, or upon any
distribution of the assets of, the Corporation;
(e) The terms and conditions on which shares may be converted into shares
of any other class, classes or series of stock of the Corporation;
(f) The right to participate in the benefit of a sinking fund or purchase
fund to be applied to the purchase or redemption of shares; and
(g) The benefit of conditions or restrictions upon (i) the incurrance by
the Corporation or any subsidiary of any indebtedness (ii) the
issuance of any additional stock (including additional shares of such
series or of any other series) or (iii) the payment of distributions
or the making of other distributions on, and the purchase, redemption
or other acquisition by the Corporation or any subsidiary of any
outstanding stock of the Corporation.
Section 4. INCREASE OR DECREASE IN SHARES OF A SERIES. Except where
otherwise provided by the Board of Directors of the Corporation at the time of
the designation of a series, the number of shares comprising such series may be
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increased or decreased (but not below the number of shares then outstanding)
from time to time by a resolution or resolutions adopted by the Board of
Directors of the Corporation.
Section 5. REISSUANCE OF SHARES OF PREFERRED STOCK. Shares of any
series of Preferred Stock which have been redeemed (whether through the
operation of a sinking fund or otherwise), purchased or otherwise acquired by
the Corporation, or which, if convertible or exchangeable, have been converted
into or exchanged for shares of stock of any other class or classes, shall have
the status of authorized and unissued shares of Preferred Stock and may be
reissued as part of the series of which they were originally a part or may be
reclassified or reissued as part of any other series of Preferred Stock, all
subject to the conditions or restrictions adopted by the Board of Directors of
the Corporation when establishing the series of Preferred Stock.
Section 6. COMMON STOCK. The Common Stock shall have the following
preferences, limitations, and relative rights:
(a) Each share of Common Stock shall entitle the holder thereof to one
vote, in person or by proxy, at any and all meetings of the
shareholders of the Corporation on any proposition before such
meetings.
(b) Subject to the rights of the holders of any Preferred Stock or any
series thereof, the holders of Common Stock shall be entitled to
receive, when, as and if declared by the Board of Directors of the
Corporation, out of funds legally available therefor, distributions
payable in cash, stock or otherwise.
(c) Upon any liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, and after the holders of the
Preferred Stock of each series shall have been paid in full the
amounts, if any, to which they respectively shall be entitled in
preference to the holders of the Common Stock, or a sum sufficient for
such payments in full shall have been set aside, the remaining net
assets of the Corporation shall be distributed pro rata to the holders
of Common Stock, to the exclusion of the holders of the Preferred
Stock other than holders of Preferred Stock who are expressly entitled
to participate in the distribution of the net assets of the
Corporation remaining after the distribution to holders of the
Preferred Stock which are in preference to the rights of the holders
of the Common Stock.
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ARTICLE V
Initial Consideration for Issuance of Shares
--------------------------------------------
The Corporation will not commence business until it has received for
the issuance of its shares consideration of the value of One Thousand Dollars
($1,000.00), consisting of money, labor done, or property actually received.
ARTICLE VI
Initial Registered Office and Agent
-----------------------------------
The street address of the initial registered office of the Corporation
is Nine Greenway Plaza, Suite 1717, Houston, Texas 77046, and the name of its
initial registered agent at such address is J. Randolph Ewing.
ARTICLE VII
Board of Directors
------------------
The initial Board of Directors of the Corporation consists of six (6)
directors, and the names and addresses of the persons to serve as the directors
of the Corporation until the first annual meeting of shareholders or until their
successors are elected and qualified are:
NAME ADDRESS
---- -------
Roy M. Borrell, M.D. 2703 Highland Court
Sugar Land, Texas 77478
Kenneth W. Davidson 104 Industrial Boulevard
Sugar Land, Texas 77478
Peter Dorflinger 4000 Technology Drive
Angleton, Texas 77515
Ernest J. Henley 104 Industrial Boulevard
Sugar Land, Texas 77478
Henk Wafelman Enraf-Nonius
Rontgenweg
P.O. Box 483
2600 al delft
Route 0302
Holland
Richard O. Martin 4000 Technology Drive
Angleton, Texas 77515
The number of directors constituting the Board of Directors shall be fixed by,
or in the manner provided in, the Bylaws of the Corporation.
-4-
ARTICLE VIII
Voting; Cumulative Voting Denied; Quorum
----------------------------------------
No shareholder shall have the right to cumulate his votes for the
election of directors, but each share of the Common Stock shall be entitled to
one vote in the election of each director and for all other purposes. Holders of
Preferred Stock shall not be entitled to vote on any matter unless otherwise
specifically required by law or provided for pursuant to the resolution
establishing the preferences, limitations, and relative rights of the Preferred
Stock. With respect to any matter which the affirmative vote of the holders of a
specified portion of the shares entitled to vote is required by the Act, the act
of the shareholders on that matter shall be the affirmative vote of the holders
of a majority of the shares entitled to vote on such matter, rather than the
affirmative vote otherwise required by the Act. Any action required to be taken
or which may be taken at an annual or special meeting of the shareholders may be
taken without a meeting, without prior notice and without a vote if a written
consent setting forth the action so taken shall be signed by those shareholders
holding the minimum number of votes that would be necessary to take such action
at a meeting at which the holders of all shares entitled to vote on the action
were present and voted. A quorum shall be present at a meeting of shareholders
if the holders of one-third (1/3) of the shares entitled to vote are represented
at a meeting in person or by proxy.
ARTICLE IX
Denial of Preemptive Rights
---------------------------
No shareholder of the Corporation or any other person shall have any
preemptive right whatsoever to acquire additional, unissued, or treasury shares
of the Corporation, or securities of the Corporation convertible into or
carrying a right to subscribe to or acquire shares or other securities of the
Corporation.
ARTICLE X
Bylaws
------
The initial Bylaws of the Corporation shall be adopted by its Board of
Directors. The power to alter, amend, or repeal the Bylaws or adopt new Bylaws
shall be exclusively vested in the Board of Directors.
ARTICLE XI
Limitation of Liability
-----------------------
A director of the Corporation shall not be liable to the Corporation
or its shareholders for monetary damages for any act or omission made by the
director in the director's capacity as a director, except for the following:
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(A) a breach of the director's duty of loyalty to the
Corporation or its shareholders;
(B) an act or omission not in good faith or that involves
intentional misconduct or a knowing violation of the law;
(C) a transaction from which the director received an
improper benefit, whether or not the benefit resulted from
an action taken within the scope of the director's office;
(D) an act or omission for which the liability of the
director is expressly provided by statute; or
(E) an act related to an unlawful stock repurchase or
payment of dividend.
Any repeal or amendment of this Article by the shareholders of the
Corporation shall be prospective only, and shall not adversely affect any
limitation on the liability of a director of the Corporation existing at the
time of such repeal or amendment. In addition to the circumstances in which a
director shall not be liable pursuant to the provisions of this Article XI, a
director shall not be liable to the fullest extent permitted by any provision of
the statutes of Texas hereafter enacted that further limits the liability of a
director.
ARTICLE XII
Incorporator
------------
The name and address of the incorporator is as follows:
NAME ADDRESS
---- -------
Casey W. Doherty Nine Greenway Plaza
Suite 1717
Houston, Texas 77046
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this
13th day of December, 1989.
HENLEY INTERNATIONAL, INC.,
formerly known as Henley Merger Corp.
By: /s/ Kenneth W. Davidson
----------------------------------
Kenneth W. Davidson
President
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STATEMENT OF CHANGE OF REGISTERED OFFICE
OF A PROFIT CORPORATION
PURSUANT TO THE TBCA, ARTICLE 2.10-1
1. The name of the Corporation is HENLEY INTERNATIONAL, INC., Charter
No. 1132478.
2. The address, including street and number, of its present registered
office as shown in the records of the Secretary of State of the State of Texas
before filing this statement is Eleven Greenway Plaza, Suite 1300, Houston,
Texas 77046.
3. The address, including street and number, to which its registered
office is to be changed is Nine Greenway Plaza, Suite 3100, Houston, Texas
77046.
4. Notice of this change of address has been given to said corporation
in writing at least ten days prior to such filing.
/s/ J. RANDOLPH EWING
----------------------------------------
J. RANDOLPH EWING,
Registered Agent
ARTICLES OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
HENLEY INTERNATIONAL, INC.
* * * * *
PURSUANT to the provisions of Article 4.04 of the Texas Business
Corporation Act, the undersigned corporation (the "Corporation") adopts the
following Articles of Amendment to its Articles of Incorporation:
ARTICLE ONE
The name of the Corporation is Henley International, Inc.
ARTICLE TWO
The following amendment to the Articles of Incorporation was adopted
by the shareholders of the Corporation on March 4, 1993:
ARTICLE I of the Articles of Incorporation of the
Corporation is amended in its entirety so that, as amended,
ARTICLE I shall be and read as follows:
"ARTICLE I
----------
The name of the Corporation is MAXXIM
MEDICAL, INC."
ARTICLE THREE
The number of shares of the Corporation outstanding at the time of
such adoption was 5,431,257 shares of common stock, $.001 par value per share
("Common Stock"), and the number of shares entitled to vote thereon was
5,431,257 shares of Common Stock.
ARTICLE FOUR
The number of shares of Common Stock voted for such amendment was
3,623,513; and the number of shares of Common Stock voting against such
amendment was 26,197.
ARTICLE FIVE
This amendment does not provide for a reclassification of issued
shares of the Corporation's capital stock.
ARTICLE SIX
This amendment effects no change in the amount of stated capital of
the Corporation.
DATED: March 4, 1993.
HENLEY INTERNATIONAL, INC.
By: /s/ Kenneth W. Davidson
------------------------------------
Kenneth W. Davidson, President
ARTICLES OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
MAXXIM MEDICAL, INC.
* * * * *
PURSUANT to the provisions of Article 4.04 of the Texas Business
Corporation Act, the undersigned corporation (the "Corporation") adopted the
following Articles of Amendment to its Articles of Incorporation:
ARTICLE ONE
The name of the Corporation is Maxxim Medical, Inc.
ARTICLE TWO
The following amendment to the Articles of Incorporation was adopted
by the shareholders of the Corporation on March 15, 1996:
SECTION 1 of ARTICLE IV of the Articles of Incorporation of
the Corporation is amended in its entirety so that, as
amended, SECTION 1 of ARTICLE IV shall be and read as
follows:
"ARTICLE IV
Capital Stock
-------------
Section 1. AUTHORIZED SHARES. The total number of
shares of stock which the Corporation shall have
authority to issue is 50,000,000, divided into
classes as follows: (i) 10,000,000 shares of
Preferred Stock, $1.00 par value each (hereinafter
referred to as "Preferred Stock"), and (ii)
40,000,000 shares of Common Stock, $0.001 par
value each (hereinafter referred to as "Common
Stock")."
ARTICLE THREE
The number of shares of the Corporation outstanding at the time of
such adoption was 8,069,847 shares of common stock, $0.001 par value per share
("Common Stock"), and the number of shares entitled to vote thereon was
8,069,847 shares of Common Stock.
ARTICLE FOUR
The number of shares of Common Stock voted for such amendment was
7,004,397; and the number of shares of Common Stock voting against such
amendment was 215,776.
ARTICLE FIVE
This amendment does not provide for a reclassification or exchange of
issued shares of the Corporation's capital stock.
ARTICLE SIX
This amendment effects no change in the amount of stated capital of
the Corporation.
DATED: March 15, 1996.
MAXXIM MEDICAL, INC.
By: /s/ Kenneth Davidson
----------------------------------------
Kenneth Davidson, Chairman of the Board,
President and Chief Executive Officer
ARTICLES OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
MAXXIM MEDICAL, INC.
* * * * *
PURSUANT to the provisions of the Texas Business Corporation Act, the
undersigned corporation (the "Corporation") has adopted the following Articles
of Amendment to its Articles of Incorporation:
ARTICLE ONE
The name of the Corporation is Maxxim Medical, Inc.
ARTICLE TWO
The following amendment to the Articles of Incorporation was adopted
by the shareholders of the Corporation on January 19, 2001:
SECTION 1 of ARTICLE IV of the Articles of Incorporation of the
Corporation is amended in its entirety so that, as amended,
SECTION 1 of ARTICLE IV shall be and read as follows:
Section 1. AUTHORIZED SHARES. The total number of
shares of stock which the Corporation shall have
authority to issue is 60,000,000, divided into classes
as follows: (i) 10,000,000 shares of Preferred Stock,
$l.00 par value each (hereinafter referred to as
"Preferred Stock"), and (ii) 50,000,000 shares of
Common Stock, $0.001 par value each (hereinafter
referred to as "Common Stock").
ARTICLE THREE
The number of shares of the Corporation outstanding at the time of
such adoption was 30,165,161 shares of common stock, $0.001 par value each
("Common Stock"), and the number of shares entitled to vote thereon was
30,165,161 shares of Common Stock. There were no shares of preferred stock or
any other class or series of capital stock, other than Common Stock, outstanding
at the time of such adoption and no shares other than the Common Stock were
entitled to vote on such amendment.
ARTICLE FOUR
The number of shares of Common Stock voted for such amendment was
25,224,285; and the number of shares of Common Stock voting against such
amendment was zero.
ARTICLE FIVE
This amendment does not provide for a reclassification or exchange of
issued shares of the Corporation's capital stock.
DATED: 2-8, 2001
MAXXIM MEDICAL, INC.
By: /s/ Akbar Naderi
----------------------------------
Akbar Naderi
Vice Chairman and President
ARTICLES OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
MAXXIM MEDICAL, INC.
* * * * *
PURSUANT to the provisions of the Texas Business Corporation Act, the
undersigned corporation (the "Corporation") has adopted the following Articles
of Amendment to its Articles of Incorporation:
ARTICLE ONE
The name of the Corporation is Maxxim Medical, Inc.
ARTICLE TWO
The following amendment to the Articles of Incorporation was adopted
by the shareholders of the Corporation on November 29, 2001:
SECTION 1 of ARTICLE IV of the Articles of Incorporation of the Corporation
is amended in its entirety so that, as amended, SECTION 1 of ARTICLE IV
shall be and read as follows:
Section 1. Authorized Shares. The total number of shares of stock which
the Corporation shall have authority to issue is 160,000,000, divided
into classes as follows: (i) 10,000,000 shares of Preferred Stock, $1.00
par value each (hereinafter referred to as "Preferred Stock"), and (ii)
150,000,000 shares of Common Stock, $0.001 par value each (hereinafter
referred to as "Common Stock").
ARTICLE THREE
The number of shares of the Corporation outstanding at the time of
such adoption was 30,365,161 shares of common stock, $0.0001 par value each
("Common Stock"), and the number of shares entitled to vote thereon was
30,365,161 shares of Common Stock. There were no shares of preferred stock or
any other class or series of capital stock, other than Common Stock, outstanding
at the time of such adoption and no shares other than the Common Stock were
entitled to vote on such amendment.
ARTICLE FOUR
The number of shares of Common Stock voted for such amendment was
25,224,285; and the number of shares of Common Stock voting against such
amendment was zero.
ARTICLE FIVE
This amendment does not provide for a reclassification or exchange of
issued shares of the Corporation's capital stock.
DATED: November 30, 2001
MAXXIM MEDICAL, INC.
By: /s/ Mark S. Sellers
-----------------------------
Name: Mark S. Sellers
Title: Chief Financial Officer
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STATEMENT OF RESOLUTION
ESTABLISHING SERIES OF SHARES
Pursuant to the provisions of Article 2.13 of the Texas Business
Corporation Act, the undersigned corporation submits the following statement for
the purpose of establishing and designating a series of shares and fixing and
determining the relative rights and preferences thereof.
1. The name of the corporation is Maxxim Medical, Inc. (the
"CORPORATION").
2. That pursuant to the authority conferred upon the Board of
Directors of the Corporation by Article IV Section 3 the Articles of
Incorporation of the Corporation, the Board of Directors on November 30, 2001
adopted the following resolution establishing and designating a series of shares
and fixing and determining the preferences, limitations and relative rights
thereof:
"RESOLVED, that pursuant to the authority vested in the
Board of Directors of the Corporation (the "BOARD OF
DIRECTORS") by Section 3 of the Articles of Incorporation,
the Board of Directors does hereby provide for the issuance
of a series of Preferred Stock, $1.00 par value per share
("PREFERRED STOCK"), with a liquidation preference of
$1,000.00 per share, of the Corporation, to be designated
"Series A Participating Preferred Stock," initially
consisting of 725,000 shares, and to the extent that the
designations, powers, preferences and relative and other
special rights and the qualifications, limitations and
restrictions of the Series A Participating Preferred Stock
are not stated and expressed in the Articles of
Incorporation, does hereby fix and herein state and express
such designations, powers, preferences and relative and
other special rights and the qualifications, limitations and
restrictions thereof, as follows (all terms used herein and
not defined herein that are defined in the Articles of
Incorporation shall be deemed to have the meanings provided
therein):
Section 1. DESIGNATION AND AMOUNT. The shares of such series shall be
designated as "SERIES A PARTICIPATING PREFERRED STOCK," par value $1.00 per
share, with a liquidation preference of $1,000.00 per share (the "LIQUIDATION
PREFERENCE"), and the number of shares constituting such series shall be
725,000.
Section 2. RANK. The Series A Participating Preferred Stock shall,
with respect to payment of dividends, redemption payments and rights upon
liquidation, dissolution or winding up of the affairs of the Corporation, (x)
rank senior and prior to the common stock, par value $.001, of the Corporation
("COMMON STOCK") and to any other class or series of stock of the Corporation
that by its terms ranks junior to the Series A Participating Preferred Stock as
to payments of dividends, redemption payments or rights upon liquidation,
dissolution or winding up of the affairs of the Corporation (collectively, the
"SERIES A JUNIOR STOCK"), (y) rank junior to any class or series of stock of the
Corporation that by its terms ranks senior as to dividends with respect to the
Series
A Participating Preferred Stock and (z) rank on par with any Series A Parity
Stock (as defined herein); PROVIDED that any class or series of stock described
in the foregoing clauses (y) and (z) shall be issued only in compliance with
Section 4(b).
Section 3. DIVIDENDS.
(a) The holders of Series A Participating Preferred Stock shall be
entitled to receive on each outstanding share of Series A Participating
Preferred Stock cumulative dividends of, but only out of funds that are legally
available therefor, the greater of (i) 18% of the Liquidation Preference (as
defined herein) per annum (the "SERIES A DIVIDEND RATE") or (ii) subject to the
provision for adjustment in the last sentence of this Section 3(a), 100 times
(the "MULTIPLIER") any dividend or distribution declared (in the form and amount
so declared) on the Common Stock, other than pursuant to a Common Stock Event
(as defined herein) for which adjustment is made to the Multiplier, as of the
record date fixed for the determination of the holders of the Common Stock
entitled to participate in the Common Stock Event, calculated for the period
since the immediately preceding Quarterly Dividend Payment Date or, with respect
to the first Quarterly Dividend Payment Date, since the date of the initial
issuance of the Series A Participating Preferred Stock (the "ORIGINAL ISSUANCE
DATE"). Upon the occurrence of a Common Stock Event, then in each such case the
Multiplier in effect prior to such event shall be adjusted by multiplying the
Multiplier by a fraction, the numerator of which is the number of shares of
Common Stock issued and outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were issued
and outstanding immediately prior to such event.
(b) Dividends shall be payable quarterly on each three-month
anniversary of the Original Issuance Date (each such date being referred to
herein as a "QUARTERLY DIVIDEND PAYMENT DATE"). Dividends (whether payable in
cash and/or stock) shall be fully cumulative and shall accrue (whether or not
declared) daily, from the first day of the quarterly period at the end of which
such dividend may be payable as herein provided, except that with respect to the
first quarterly dividend, such dividend will accrue from the Original Issuance
Date. Dividends payable pursuant to Section 3(a)(i) on or prior to November 30,
2006 shall be payable in additional shares of Series A Participating Preferred
Stock (valued at the Liquidation Preference) ("PIK SHARES"). Dividends payable
pursuant to Section 3(a)(i) on November 30, 2006 and thereafter shall be payable
in PIK Shares, or at the option of the Corporation, payable in cash provided
that such cash payment does not cause a default under the Corporation's material
agreements or indentures (including the Credit Agreement among the Corporation,
Maxxim Medical Group, Inc. and the other parties thereto, dated as of November
12, 1999, as amended, amended and restated or otherwise modified from time to
time, whether or not the Corporation is a party thereto), in respect of money
borrowed ("MATERIAL AGREEMENTS").
(c) The Liquidation Preference shall be adjusted for any stock
dividends, combinations, splits, subdivision, recapitalizations,
reclassifications or similar events affecting the Series A Participating
Preferred Stock.
-2-
(d) So long as any shares of Series A Participating Preferred Stock
shall be outstanding, without the prior written consent of the holders of a
majority of the then issued and outstanding shares of Series A Participating
Preferred Stock, no dividend (other than a stock dividend paid pro rata to the
Corporation's stockholders), whether in cash or property, shall be paid or
declared, nor shall any other distribution (other than a stock dividend paid pro
rata to the Corporation's stockholders) be made, on any Series A Junior Stock.
(e) The Corporation shall at all times reserve and keep available out
of its authorized but unissued shares of Series A Participating Preferred Stock,
solely for the purpose of issuing the PIK Shares, such number of its shares of
Series A Participating Preferred Stock as shall from time to time be sufficient
to effect issuance of the PIK Shares. If at any time the number of authorized
but unissued shares of Series A Participating Preferred Stock shall not be
sufficient to effect the issuance of the PIK Shares, the Corporation will take
such corporate action as may be necessary to increase its authorized but
unissued shares of Series A Participating Preferred Stock to such number of
shares as shall be sufficient for such purpose.
Section 4. VOTING RIGHTS.
(a) Except as provided in Section 4(b), the holders of the Series A
Participating Preferred Stock shall not be entitled to any vote in respect of
such shares.
(b) SEPARATE VOTE OF SERIES A PARTICIPATING PREFERRED STOCK. Subject
to the rights of any series of Preferred Stock which may hereafter from time to
time come into existence, for so long as any shares of the Series A
Participating Preferred Stock theretofore issued remain outstanding, in addition
to any other vote or consent required herein or by law, the vote of the holders
of at least a majority of the then issued and outstanding Series A Participating
Preferred Stock shall be necessary for effecting or validating the following
actions:
(i) any amendment, alteration, or repeal of any provision of the
Articles of Incorporation (including this Statement of Resolution) or the
Bylaws of the Corporation (including any filing of a Statement of
Resolution), that alters or changes or adversely affects the voting or
other powers, preferences, or other special rights or privileges, or
restrictions of the Series A Participating Preferred Stock;
(ii) reclassification or recapitalization of any outstanding shares of
securities of the Corporation into shares having rights, preferences or
privileges senior to or on a parity with the Series A Participating
Preferred Stock;
(iii) authorization or issuance of any stock having rights,
preferences or privileges senior to or on a parity with the Series A
Participating Preferred Stock, or of any other security convertible into or
exchangeable for such parity or senior stock, other than the issuance of
the PIK Shares contemplated hereby; or
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(iv) increase or decrease the number of authorized shares of Series A
Participating Preferred Stock, other than in connection with the issuance
of the PIK Shares contemplated hereby.
Section 5. LIQUIDATION RIGHTS.
(a) Upon any liquidation, dissolution, or winding up of the
Corporation, whether voluntary or involuntary, before any distribution or
payment shall be made to the holders of any Series A Junior Stock, subject to
the rights of any series of Preferred Stock that may from time to time come into
existence and which is expressly senior to the rights of the Series A
Participating Preferred Stock, the holders of Series A Participating Preferred
Stock shall be entitled to be paid out of the assets of the Corporation an
amount per share of Series A Participating Preferred Stock equal to the greater
of (i) 100% of the Liquidation Preference (as adjusted for any stock dividends,
combinations, splits, subdivision, recapitalizations, reclassifications or
similar event affecting the Series A Participating Preferred Stock), plus
accrued and unpaid dividends, whether or not theretofore declared, for each
share of Series A Participating Preferred Stock held by each such holder or (ii)
subject to the provision for adjustment in the last sentence of Section 3(a), an
amount equal to the Multiplier times any liquidating distribution or payment on
the Common Stock, as of the record date fixed for the determination of the
holders of the Common Stock entitled to receive such liquidation distribution or
payment. If, upon any such liquidation, dissolution, or winding up, the assets
of the Corporation shall be insufficient to make payment in full to all holders
of Series A Participating Preferred Stock and any series of Preferred Stock that
may from time to time come into existence which does not expressly rank senior
to or junior to the rights of the Series A Participating Preferred Stock
("SERIES A PARITY STOCK"), then such assets shall be distributed among the
holders of Series A Participating Preferred Stock and Series A Parity Stock at
the time outstanding, ratably in proportion to the full amounts to which they
would otherwise be respectively entitled.
(b) Written notice of any such liquidation, dissolution or winding up
of the Corporation within the meaning of this Section 5, which states the
payment date and the place where said payments shall be made, shall be given not
less than 20 days prior to the payment date stated therein, to the then holders
of record of Series A Participating Preferred Stock, such notice to be addressed
to each such holder at its address as shown on the stock register of the
Corporation.
Section 6. REDEMPTION.
(a) Optional Redemption by Holder. Subject to and in compliance with
the provisions of this Section 6, (i) at any time on or after November 30, 2011
or (ii) if, upon a Change of Control the Corporation elects to convert the
Series A Participating Preferred Stock into shares of Common Stock pursuant to
Section 7, then in the case of clause (i) or (ii), each holder of Series A
Participating Preferred Stock may require the Corporation to redeem any or all
shares of Series A Participating Preferred Stock held by such holder at a
redemption price per share of Series A Participating Preferred Stock equal to
100% of the Liquidation Preference (as adjusted for any stock
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dividends, combinations, splits, subdivision, recapitalizations,
reclassifications or similar event affecting the Series A Participating
Preferred Stock) in cash, together with accrued and unpaid dividends thereon,
whether or not theretofore declared, up to but not including the redemption
date; provided that such redemption shall not be required (x) unless such
redemption is permitted under the terms of the Material Agreements and (y)
except to the extent the Corporation shall have funds legally available to
redeem shares of Series A Participating Preferred Stock.
(b) OPTIONAL REDEMPTION BY THE CORPORATION. To the extent the
Corporation shall have funds legally available for such payment, at any time on
or after November 30, 2016, the Corporation may redeem any or all outstanding
shares of Series A Participating Preferred Stock at a redemption price per share
of Series A Participating Preferred Stock equal to 100% of the Liquidation
Preference (as adjusted for any stock dividends, combinations, splits,
subdivision, recapitalizations, reclassifications or similar event affecting the
Series A Participating Preferred Stock) in cash, together with accrued and
unpaid dividends thereon, whether or not theretofore declared, up to but not
including such redemption date.
(c) PROCEDURES FOR REDEMPTION.
(i) If fewer than all of the outstanding shares of Series A Preferred
Stock are to be redeemed, the shares shall be redeemed on a pro rata basis
(according to the number of shares of other Series A Participating
Preferred Stock held by each holder) or in such manner as the Board of
Directors may determine, as may be prescribed by resolution of the Board of
Directors.
(ii) In the event of a redemption of shares of Series A Participating
Preferred Stock pursuant to Section 6(b), notice of such redemption shall
be given by first class mail, postage prepaid, mailed not less than 15 days
nor more than 60 days prior to the redemption date, to each holder of
record of the shares to be redeemed at such holder's address as appears on
the stock register of the Corporation (subject to the right of such holder
to exercise such holder's conversion rights pursuant to Section 7 hereof
prior to the effectiveness of such redemption); provided that neither the
failure to give such notice nor any defect therein shall affect the
validity of the giving of notice for the redemption of any share of Series
A Participating Preferred Stock to be redeemed, except as to the holder to
whom the Corporation has failed to give said notice or except as to the
holder whose notice was defective. Each such notice shall state: (i) the
redemption date; (ii) the number of shares of Series A Participating
Preferred Stock that are subject to redemption from such holder; (iii) the
redemption price; (iv) the place or places where certificates for such
shares are to be surrendered for payment of the redemption price; and (v)
that dividends on the shares to be redeemed will cease to accrue on such
redemption date.
(iii) Each holder of Series A Participating Preferred Stock who who
desires to redeem shares of Series A Participating Preferred Stock pursuant
to
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Section 6(a) shall give written notice to the Corporation, provided that if
such redemption is pursuant to Section 6(a)(ii) such notice must be given
within 5 business days of the Corporation's notice referred to in Section
7. Such notice shall state such holder's intention to require the
Corporation to redeem such holder's Series A Participating Preferred Stock
and set forth the number of shares of Series A Participating Preferred
Stock to be redeemed.
(iv) If a notice of redemption has been given pursuant to Section
6(c)(ii) and if, on or before the redemption date, the funds necessary for
such redemption (including all dividends on the shares of Series A
Participating Preferred Stock to be redeemed that will accrue to but not
including the redemption date) shall have been set aside by the
Corporation, separate and apart from its other funds, in trust for the pro
rata benefit of the holders of the shares so called for redemption, then on
the redemption date, notwithstanding that any certificates for such shares
have not been surrendered for cancellation, (i) dividends shall cease to
accrue on the shares of Series A Participating Preferred Stock to be
redeemed, (ii) the holders of such shares shall cease to be stockholders
with respect to those shares, shall have no interest in or claims against
the Corporation by virtue thereof and shall have no voting or other rights
with respect thereto, except the right to receive Common Stock upon the
exercise of conversion rights prior to the redemption date as provided in
Section 7 and the right to receive the monies payable upon such redemption,
without interest thereon, upon surrender (and endorsement, if required by
the Corporation) of their certificates, and (iii) the shares evidenced
thereby shall no longer be outstanding. Any interest accrued on funds so
deposited shall belong to the Corporation and be paid thereto from time to
time.
(v) Upon surrender in accordance with the Corporation's notice of
redemption of the certificates for any shares so redeemed (properly
endorsed or assigned for transfer, if the Board of Directors shall so
require and the notice shall so state), such shares shall be redeemed by
the Corporation at the redemption price aforesaid. In case fewer than all
the shares represented by any such certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares without cost
to the holder thereof.
Section 7. Conversion Rights. The holders of the Series A
Participating Preferred Stock and the Corporation shall have the following
rights with respect to the conversion of the Series A Participating Preferred
Stock into shares of Common Stock:
(a) Conversion upon the Option of Holder.
(i) Subject to and in compliance with the provisions of this Section
7, at any time on or after the Original Issuance Date, any shares of Series
A Participating Preferred Stock may, at the option of the holder, be
converted at any time into fully paid and nonassessable shares of Common
Stock. The number of shares of Common Stock to which a holder of Series A
Participating Preferred
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Stock shall be entitled upon conversion shall be the product obtained by
multiplying the Series A Preferred Conversion Rate then in effect
(determined as provided in subsection (c) below) by the number of shares of
Series A Participating Preferred Stock being converted.
(ii) Each holder of Series A Participating Preferred Stock who desires
to convert the same into shares of Common Stock pursuant to this Section 7
shall surrender the certificate or certificates therefor, duly endorsed, at
the office of the Corporation or any transfer agent for the Series A
Participating Preferred Stock, and shall give written notice to the
Corporation at such office that such holder elects to convert the same.
Such notice shall state the number of shares of Series A Participating
Preferred Stock being converted. Thereupon, the Corporation shall promptly
issue and deliver at such office to such holder a certificate or
certificates for the number of shares of Common Stock to which such holder
is entitled. Such conversion shall be deemed to have been made at the close
of business on the date of such surrender of the certificates representing
the shares of Series A Participating Preferred Stock to be converted, and
the person entitled to receive the shares of Common Stock issuable upon
such conversion shall be treated for all purposes as the record holder of
such shares of Common Stock on such date.
(b) CONVERSION UPON THE OPTION OF THE CORPORATION.
(i) Subject to and in compliance with the provisions of this Section
7, (A) in connection with a "CHANGE OF CONTROL" (as defined in the
Indenture, dated as of November 12, 1999, between the Corporation and
Wilmington Trust Company) or (B) in the event of an underwritten initial
public offering or public offerings (on a cumulative basis) of shares of
Common Stock of the Corporation pursuant to a registration statement or
registration statements under the Securities Act of 1933, as amended, with
aggregate proceeds to the Corporation of at least $50.0 million, in the
case of clause (A) or (B), at the option of the Corporation, the
Corporation may convert all, and not less than all, outstanding shares of
Series A Participating Preferred Stock into fully paid and nonassessable
shares of Common Stock; PROVIDED that (x) the current market price per
share of the Common Stock (as defined in the Warrant Agreement among the
Corporation and the other parties thereto, dated as of November 30, 2001)
on the date of the Change of Control, or the per share offering price of
the Common Stock on the date of the applicable public offering, is greater
than the Series A Preferred Conversion Price, as adjusted pursuant to this
Section 7 or, in the case of clause (A), (y) the Corporation shall have
funds legally available to redeem all, and not less than all, outstanding
shares of Series A Participating Preferred Stock. To exercise such
conversion right, the Corporation shall set a date within 10 days of the
Change of Control or the applicable public offering (or if the Corporation
elects, effective immediately prior to or upon the Change of Control or
applicable public offering) on which all shares of Series A Participating
Preferred Stock shall be so converted (the "CONVERSION DATE"). The number
of shares of Common Stock to which a holder of Series A Participating
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Preferred Stock shall be entitled upon conversion shall be the product
obtained by multiplying the Series A Preferred Conversion Rate then in
effect (determined as provided in subsection (c) below) by the number of
shares of Series A Participating Preferred Stock being converted.
(ii) The Corporation shall give notice of such conversion by first
class mail, postage prepaid, mailed not less than 10 days (or such shorter
period as approved by the holders of a majority of then issued and
outstanding shares of Series A Participating Preferred Stock) nor more than
60 days prior to the Conversion Date, to each holder of record of the
shares to be converted at such holder's address as appears on the stock
register of the Corporation; PROVIDED that neither the failure to give such
notice nor any defect therein shall affect the validity of the giving of
notice for the conversion of any share of Series A Participating Preferred
Stock to be converted, except as to the holder to whom the Corporation has
failed to give said notice or except as to the holder whose notice was
defective. Each such notice shall state: (i) the Conversion Date; (ii) the
number of shares of Series A Participating Preferred Stock that are subject
to conversion from such holder; (iii) the Series A Conversion Rate; (iv)
the place or places where certificates for such shares are to be
surrendered for certificates of Common Stock; and (v) that dividends on the
shares to be converted will cease to accrue on the Conversion Date.
(iii) If a notice of conversion has been given pursuant to Section
7(b)(ii) and if, on or before the Conversion Date, the shares of Common
Stock necessary for such conversion (including all dividends on the shares
of Series A Participating Preferred Stock to be converted that will accrue
to but not including the Conversion Date) shall have been reserved by the
Corporation pursuant to Section 7(i), then on the Conversion Date,
notwithstanding that any certificates for such shares of Series A
Participating Preferred Stock have not been surrendered for cancellation,
(i) dividends shall cease to accrue on the shares of Series A Participating
Preferred Stock, (ii) the holders of Series A Participating Preferred Stock
shall cease to be holders of Series A Participating Preferred Stock, shall
have no interest in or claims against the Corporation by virtue thereof and
shall have no voting or other rights with respect thereto, except the right
to receive Common Stock upon exercise of the conversion rights provided in
this Section 7 and the right to receive the monies payable upon redemption
as provided in Section 6 (including subject to the proviso to Section 6(a))
upon surrender (and endorsement, if required by the Corporation) of their
certificates, (iii) all shares of Series A Participating Preferred Stock
shall no longer be outstanding and (iv) the person entitled to receive the
shares of Common Stock issuable upon conversion of such Series A
Participating Preferred Stock shall be treated for all purposes as the
record holder of such shares of Common Stock on the Conversion Date.
(iv) Upon such notice of a Change of Control, the holders of Series A
Participating Preferred Stock shall surrender the certificates representing
such shares at such place or places set forth in the notice of a Change of
Control.
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Thereupon, there shall be issued and delivered to such holder promptly at
such place and in its name as shown on such surrendered certificate or
certificates, a certificate or certificates for the number of shares of
Common Stock into which the shares of Series A Participating Preferred
Stock surrendered were convertible on the Conversion Date.
(c) SERIES A PREFERRED CONVERSION RATE. The conversion rate in effect
at any time for conversion of the Series A Participating Preferred Stock (the
"SERIES A PREFERRED CONVERSION RATE") shall be the quotient obtained by dividing
the Series A Liquidation Preference by the "SERIES A PREFERRED CONVERSION
PRICE," calculated as provided below.
(d) SERIES A PREFERRED CONVERSION PRICE. The conversion price for the
Series A Participating Preferred Stock shall initially be $10.00 (the "SERIES A
PREFERRED CONVERSION PRICE"). Such initial Series A Preferred Conversion Price
shall be adjusted from time to time in accordance with this Section 7. All
references to the Series A Preferred Conversion Price herein shall mean the
Series A Preferred Conversion Price as so adjusted.
(e) ADJUSTMENT UPON COMMON STOCK EVENT. Upon the occurrence of a
Common Stock Event at any time or from time to time after the Original Issuance
Date, the Series A Preferred Conversion Price shall, simultaneously with the
happening of such Common Stock Event, be adjusted by multiplying the Series A
Preferred Conversion Price in effect immediately prior to such Common Stock
Event by a fraction, (i) the numerator of which shall be the number of shares of
Common Stock issued and outstanding immediately prior to such Common Stock
Event, and (ii) the denominator of which shall be the number of shares of Common
Stock issued and outstanding immediately after such Common Stock Event, and the
product so obtained shall thereafter be the Series A Preferred Conversion Price.
The Series A Preferred Conversion Price shall be readjusted in the same manner
upon the happening of each subsequent Common Stock Event. "COMMON STOCK EVENT"
shall mean (i) the issuance by the Corporation of additional shares of Common
Stock as a dividend or other distribution on outstanding Common Stock, (ii) a
subdivision of the outstanding shares of Common Stock into a greater number of
shares of Common Stock (by stock split, reclassification or otherwise), or (iii)
a combination or consolidation, by reclassification or otherwise, of the
outstanding shares of Common Stock into a smaller number of shares of Common
Stock.
(f) ADJUSTMENT FOR RECLASSIFICATION, EXCHANGE AND SUBSTITUTION. If at
any time or from time to time after the Original Issuance Date, the Common Stock
issuable upon the conversion of the Series A Participating Preferred Stock is
changed into the same or a different number of shares of any class or classes of
stock, whether by recapitalization, reclassification or otherwise (other than a
Common Stock Event), in any such event each holder of Series A Participating
Preferred Stock shall have the right thereafter to convert such stock into the
kind and amount of stock and other securities and property receivable upon such
recapitalization, reclassification or other change by holders of the maximum
number of shares of Common Stock into which such shares of Series A
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Participating Preferred Stock could have been converted immediately prior to
such recapitalization, reclassification or change, all subject to further
adjustment as provided herein or with respect to such other securities or
property by the terms thereof.
(g) CERTIFICATE OF ADJUSTMENT. In each case of an adjustment or
readjustment of the Series A Preferred Conversion Price for the number of shares
of Common Stock or other securities issuable upon conversion of the Series A
Participating Preferred Stock, if the Series A Participating Preferred Stock is
then convertible pursuant to this Section 7, the Corporation, at its expense,
shall compute such adjustment or readjustment in accordance with the provisions
hereof and prepare a certificate showing such adjustment or readjustment, and
shall mail such certificate, by first class mail, postage prepaid, to each
registered holder of Series A Participating Preferred Stock at the holder's
address as appears on the stock register of the Corporation. The certificate
shall set forth such adjustment or readjustment, showing in detail the facts
upon which such adjustment or readjustment is based, including a statement of
(i) the Series A Preferred Conversion Price at the time in effect, (ii) the
number of additional shares of Common Stock and (iii) the type and amount, if
any, of other property which at the time would be received upon conversion of
the Series A Participating Preferred Stock.
(h) NOTICES OF RECORD DATE. Upon (i) any taking by the Corporation of
a record of the holders of any class of securities for the purpose of
determining the holders thereof who are entitled to receive any dividend or
other distribution, or (ii) any capital reorganization of the Corporation, any
reclassification or recapitalization of the capital stock of the Corporation,
any merger or consolidation of the Corporation with or into any other
corporation, or any transfer of all or substantially all of the assets of the
Corporation, the Corporation shall mail to each holder of Series A Participating
Preferred Stock at least 10 days prior to the record date specified therein (or
such shorter period approved by the holders of a majority of the then issued and
outstanding shares of Series A Participating Preferred Stock ) a notice
specifying (A) the date on which any such record is to be taken for the purpose
of such dividend or distribution and a description of such dividend or
distribution, (B) the date on which any such acquisition, reorganization,
reclassification, transfer, consolidation, merger or asset transfer is expected
to become effective, and (C) the date, if any, that is to be fixed as to when
the holders of record of Common Stock (or other securities) shall be entitled to
exchange their shares of Common Stock (or other securities) for securities or
other property deliverable upon such acquisition, reorganization,
reclassification, transfer, consolidation, merger or asset transfer.
(i) RESERVATION OF STOCK ISSUABLE UPON CONVERSION. The Corporation
shall at all times reserve and keep available out of its authorized but unissued
shares of Common Stock, solely for the purpose of effecting the conversion of
the shares of the Series A Participating Preferred Stock, such number of its
shares of Common Stock as shall from time to time be sufficient to effect the
conversion of all outstanding shares of the Series A Participating Preferred
Stock. If at any time the number of authorized but unissued shares of Common
Stock shall not be sufficient to effect the conversion of all then outstanding
shares of the Series A Participating Preferred Stock, the Corporation will take
such corporate action as may be necessary to increase its authorized but
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unissued shares of Common Stock to such number of shares as shall be sufficient
for such purpose.
(j) PAYMENT OF TAXES. The Corporation will pay all taxes (other than
taxes based upon income) and other governmental charges that may be imposed with
respect to the issuance or delivery of shares of Common Stock upon conversion of
shares of Series A Participating Preferred Stock, excluding any tax or other
charge imposed in connection with any transfer involved in the issuance and
delivery of shares of Common Stock in a name other than that in which the shares
of Series A Participating Preferred Stock so converted were registered.
(k) NO IMPAIRMENT. The Corporation shall not avoid or seek to avoid
the observance or performance of any of the terms to be observed or performed
hereunder by the Corporation, but shall at all times in good faith assist in
carrying out all such actions as may be reasonably necessary or appropriate in
order to protect the conversion rights of the holders of the Series A
Participating Preferred Stock against impairment.
(l) SATISFACTION OF ACCRUED DIVIDENDS. Except as otherwise expressly
provided, upon the conversion of any shares of Series A Participating Preferred
Stock into Common Stock as provided herein, the holders thereof shall be
entitled to receive a payment (in cash, PROVIDED that such cash payment does not
cause a default under any Material Agreement, or PIK Shares) in satisfaction of
all accrued but unpaid dividends, whether or not theretofore declared.
Section 8. Consolidation, Merger, etc. 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, unless the
Corporation elects to convert the Series A Participating Preferred Stock into
shares of Common Stock in connection with a Change of Control pursuant to
Section 7, each share of Series A Participating Preferred Stock shall at the
same time be similarly exchanged or changed into an amount per share, subject to
the provision for adjustment in the last sentence of Section 3(a), equal to the
Multiplier 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; provided that if such other
stock or securities, cash and/or other property has a value per share of Common
Stock on the date of such consolidation, merger, combination or other
transaction less than the Series A Preferred Conversion Price, as adjusted
pursuant to Section 7, or the Corporation does not elect to convert the Series A
Participating Preferred Stock into shares of Common Stock in connection with a
Change of Control pursuant to Section 7, then in any such case, the Series A
Participating Preferred Stock shall not be exchanged or changed and satisfactory
provision shall be made under Section 7(f).
Section 9. WAIVER. Any rights of the holders of Series A Participating
Preferred Stock set forth herein may be waived by the affirmative vote or
consent of the holders of a majority of the then issued and outstanding shares
of Series A Participating Preferred Stock then outstanding.
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Section 10. NOTICES. Any notice required by the provisions of this
Statement of Resolution shall be in writing and shall be deemed effectively
given: (i) upon personal delivery to the party to be notified, (ii) when sent by
confirmed electronic mail or facsimile if sent during normal business hours of
the recipient; if not, then on the next business day, (iii) 5 days after having
been sent by first class mail, postage prepaid, or (iv) 1 day after deposit with
a nationally recognized overnight courier, specifying next day delivery, with
verification of receipt. All notices shall be addressed to each holder of record
at the address of such holder appearing on the stock register of the
Corporation.
Section 11. LIMITATION ON REISSUANCE OF SHARES. No share of shares of
Series A Participating Preferred Stock acquired by the Corporation by reason of
redemption, purchase, conversion or otherwise shall be reissued, and all such
shares shall be canceled, retired and eliminated from the shares that the
Corporation is authorized to issue.
3. The resolutions set forth above were duly adopted by all necessary
action on the part of the Corporation.
DATED: November 30, 2001
MAXXIM MEDICAL, INC.
By: /s/ Mark S. Sellers
-----------------------------------
Name: Mark S. Sellers
Title: Chief Financial Officer
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