EXHIBIT 3.2
FEDERAL IDENTIFICATION
No. 04-3195264
THE COMMONWEALTH OF MASSACHUSETTS
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
One Ashburton Place, Boston, Massachusetts 02108-1512
RESTATED ARTICLES OF ORGANIZATION
(General Laws, Chapter 156B, Section 74)
We, Jon A. Glydon, President, and Edwin L. Miller, Jr., Clerk,
of Earth and Ocean Sports, Inc.
(Exact name of corporation)
located at 70 Airport Road, Hyannis, Massachusetts 02601
(Street address of corporation Massachusetts)
do hereby certify that the following Restatement of the Articles of Organization
was duly adopted by unanimous written consent of the directors and stockholders
of the Corporation dated _________________:
_____________ shares of ______________ of _____________ shares outstanding
being at least two-thirds of each type, class or series outstanding and entitled
to vote thereon and of each type, class or series of stock whose rights are
adversely affected thereby:
ARTICLE I
THE NAME OF THE CORPORATION IS:
EARTH AND OCEAN SPORTS, INC.
ARTICLE II
The purpose of the corporation is to engage in the following business
activities:
To engage, directly or indirectly, in the business of developing,
acquiring, manufacturing and distributing sports products and related products
and accessories; to engage in all activities related to the foregoing; and
otherwise to do any and all acts and things permitted to be done by business
corporations under the provisions of Chapter 156B, as amended, of the General
Laws of the Commonwealth of Massachusetts.
ARTICLE III
State the total number of shares and par value, if any, of each class of stock
which the corporation is authorized to issue
- ------------------------------------------------- --------------------------------------------------------------------
WITHOUT PAR VALUE WITH PAR VALUE
- ------------------- ----------------------------- ---------------- ------------------------------- -------------------
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
- ------------------- ----------------------------- ---------------- ------------------------------- -------------------
Common: None Common 15,000,000 $0.01
- ------------------- ----------------------------- ---------------- ------------------------------- -------------------
Preferred: None Preferred: 500,000 $0.01
- ------------------- ----------------------------- ---------------- ------------------------------- -------------------
ARTICLE IV
If more than one class of stock is authorized, state a distinguishing
designation for each class. Prior to the issuance of any shares of a class, if
shares of another class are outstanding, the corporation must provide a
description of the preferences, voting powers, qualifications, and special or
relative rights or privileges of that class and of each other class of which
shares are outstanding and of each series then established within any class.
See Continuation Pages 4-1 through 4-2.
ARTICLE V
The restrictions, if any, imposed by the Articles of Organization upon the
transfer of shares of stock of any class are: None.
ARTICLE VI
**Other lawful provisions, if any, for the conduct and regulation of the
business and affairs of the corporation, for its voluntary dissolution, or for
limiting, defining, or regulating the powers of the corporation, or of its
directors or stockholders, or of any class of stockholders:
See Continuation Page 6-1.
**If there are no provisions state "None".
NOTE: THE PRECEDING SIX (6) ARTICLES ARE CONSIDERED TO BE PERMANENT AND MAY ONLY
BE CHANGED BY FILING APPROPRIATE ARTICLES OF AMENDMENT.
ARTICLE VII
The effective date of the restated Articles of Organization of the corporation
shall be the date approved and filed by the Secretary of the Commonwealth. If a
later effective date is desired, specify such date which shall not be more than
thirty days after the date of filing.
ARTICLE VIII
THE INFORMATION CONTAINED IN ARTICLE VIII IS NOT A PERMANENT PART OF THE
ARTICLES OF ORGANIZATION.
a. The street address (post office boxes are not acceptable) of the principal
office of the Corporation in Massachusetts is:
b. The name, residential address and post office address of each director and
officer of the corporation is as follows:
NAME RESIDENTIAL ADDRESS POST OFFICE ADDRESS
President: Jon A. Glydon 100 Alderbrook Lane 70 Airport Road
West Barnstable, MA 02668 Hyannis, Massachusetts 02601
Treasurer: Brooks R. Herrick 30 Larkspor Road 70 Airport Road
E. Greenwich, RI 02818 Hyannis, Massachusetts 02601
Clerk: Edwin L. Miller, Jr. 82 Sudbury Road c/o Testa, Hurwitz & Thibeault, LLP
Weston, MA 02193 125 High Street
Boston, MA 02109
Directors: Jon A. Glydon 100 Alderbrook Lane 70 Airport Road
West Barnstable, MA 02668 Hyannis, Massachusetts 02601
Steven J. Roth 192 East Emerson Road 92 Hayden Avenue
Lexington, MA 02173 Lexington, MA 02173
Thomas H. Conway 138 Barker Avenue 92 Hayden Avenue
Concord, MA 01742 Lexington, MA 02173
Dr. James J. McKenney 5 Winthrop Street 5 Winthrop Street
Lexington, MA 02173 Lexington, MA 02173
Gustav A. Christensen 3 Idlewild Drive 3 Idlewild Drive
Lexington, MA 02173 Lexington, MA 02173
c. The fiscal year (i.e., tax year) of the corporation shall end on the last
day of the month of: October.
d. The name and business address of the resident agent, if any, of the
corporation is:
Edwin L. Miller, Jr.
Testa, Hurwitz & Thibeault, LLP
125 High Street
Boston, MA 02109
**We further certify that the foregoing Restated Articles of Organization affect
no amendments to the Articles of Organization of the corporation as heretofore
amended, except amendments to the following articles. Briefly describe
amendments below:
Article II -- Amend purpose clause.
Article III -- Authorize class of preferred stock and additional shares of
common stock.
Article IV -- State the rights of the authorized classes of stock.
Article VI -- State other corporate governance provisions.
SIGNED UNDER THE PENALTIES OF PERJURY, this ____ day of ___________________,
1997.
______________________________________________________________, President
________________________________________________________________, Clerk/
THE COMMONWEALTH OF MASSACHUSETTS
RESTATED ARTICLES OF ORGANIZATION
(GENERAL LAWS, CHAPTER 156B, SECTION 74)
-------------------------------------------
I hereby approve the within Restated Articles of
Organization and, the filing fee in the amount of
$___________ having been paid, said articles are deemed to
have been filed with me this ____ day of
_____________________, 1997.
Effective Date:____________________________________________
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
TO BE FILLED IN BY CORPORATION
PHOTOCOPY OF DOCUMENT TO BE SENT TO:
Edwin L. Miller, Jr., Esq.
Testa, Hurwitz & Thibeault, LLP
125 High Street
Boston, MA 02109
Telephone: 617-248-7516
EARTH AND OCEAN SPORTS, INC.
Restated Articles of Organization
ARTICLE 4
The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 15,500,000 shares, consisting of
the following classes of stock: (A) 15,000,000 shares of Common Stock, $.01 par
value per share (the "Common Stock"), and (B) 500,000 shares of Preferred Stock,
$.01 par value per share (the "Preferred Stock").
The designations, powers, preferences and relative, participating,
optional or other special rights, and the qualifications, limitations and
restrictions thereof in respect of each class of authorized capital stock of the
Corporation are as follows:
A. COMMON STOCK
1. After the requirements with respect to preferential dividends on the
Preferred Stock shall have been met and after the Corporation shall have
complied with all the requirements, if any, with respect to the setting aside of
sums as sinking funds or redemption or purchase accounts, then and not otherwise
the holders of Common Stock shall be entitled to receive such dividends as may
be declared from time to time by the Board of Directors.
2. After distribution in full of the preferential amount to be
distributed to the holders of Preferred Stock in the event of voluntary or
involuntary liquidation, distribution or sale of assets, dissolution or winding
up of the Corporation, the holders of the Common Stock shall be entitled to
receive all the remaining assets of the Corporation, tangible or intangible, of
whatever kind available for distribution to the stockholders ratably in
proportion to the number of shares of Common Stock held by them respectively.
3. Except as may otherwise be required by law or the provisions of
these Restated Articles, or by the Board of Directors pursuant to authority
granted in these Restated Articles, each holder of Common Stock shall have one
vote in respect of each share of stock held by him in all matters voted upon by
the stockholders.
B. UNDESIGNATED PREFERRED STOCK
Up to 500,000 shares of Preferred Stock may be issued in one or more
series at such time or times and for such consideration or considerations as the
Board of Directors may determine. Each series shall be so designated as to
distinguish the shares thereof from the shares of all other series and classes.
Except as to the relative preferences, powers, qualifications, rights and
privileges referred to below, in respect of any or all of which there may be
variations between different series, all shares of Preferred Stock shall be
identical. Different series of Preferred Stock shall not be construed to
constitute different classes of shares for the purpose of voting by classes.
The Board of Directors is expressly authorized, subject to the
limitations prescribed by law and the provisions of these Restated Articles of
Organization, to provide by adopting a vote or votes, a certificate of which
shall be filed in accordance with the Business Corporation Law of the
Commonwealth of Massachusetts, for the issuance of the Preferred Stock in one or
more series, each
Continuation Page 4-1
with such designations, preferences, voting powers, qualifications, special or
relative rights and privileges as shall be stated in the vote or votes creating
such series. The authority of the Board of Directors with respect to each such
series shall include without limitation of the foregoing the right to determine
and fix:
(1) The distinctive designation of such series and the number of shares
to constitute such series;
(2) The rate at which dividends on the shares of such series shall be
declared and paid, or set aside for payment, whether dividends at the rate so
determined shall be cumulative, and whether the shares of such series shall be
entitled to any participating or other dividends in addition to dividends at the
rate so determined, and if so on what terms;
(3) The right, if any, of the Corporation to redeem shares of the
particular series and, if redeemable, the price, terms and manner of such
redemption;
(4) The special and relative rights and preferences, if any, and the
amount or amounts per share, which the shares of such series shall be entitled
to receive upon any voluntary or involuntary liquidation, dissolution or winding
up of the Corporation;
(5) The terms and conditions, if any, upon which shares of such series
shall be convertible into, or exchangeable for, shares of stock of any other
class or classes, including the price or prices or the rate or rates of
conversion or exchange and the terms of adjustment, if any;
(6) The obligation, if any, of the Corporation to retire or purchase
shares of such series pursuant to a sinking fund or fund of a similar nature or
otherwise, and the terms and conditions of such obligation;
(7) Voting rights, if any;
(8) Limitations, if any, on the issuance of additional shares of such
series or any shares of any other series of Preferred Stock; and
(9) Such other preferences, powers, qualifications, special or relative
rights and privileges thereof as the Board of Directors may deem advisable and
are not inconsistent with law and the provisions of these Restated Articles.
Continuation Page 4-2
EARTH AND OCEAN SPORTS, INC.
Restated Articles of Organization
ARTICLE 6
1. The Corporation eliminates the personal liability of each director
to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director notwithstanding any provision of law imposing such
liability; provided, however, that, to the extent provided by applicable law,
this provision shall not eliminate or limit the liability of a director (i) for
any breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 61 or
62 or successor provisions of the Massachusetts Business Corporation Law, or
(iv) for any transaction from which the director derived an improper personal
benefit. This provision shall not eliminate or limit the liability of a director
of the Corporation for any act or omission occurring prior to the date on which
this provision becomes effective. No amendment to or repeal of this provision
shall apply to or have any effect on the liability or alleged liability of any
director for or with respect to any acts or omissions of such director occurring
prior to such amendment or repeal.
2. Meetings of the stockholders of the Corporation may be held anywhere
in the United States.
3. The directors of the Corporation may make, amend or repeal the
by-laws in whole or in part, except with respect to any provision thereof which
by law or the by-laws requires action by the stockholders.
4. The whole or any part of the authorized but unissued shares of
capital stock of the Corporation may be issued at any time or from time to time
by the Board of Directors without further action by the stockholders.
5. The Corporation may become a partner in any business.
6. The Corporation, by vote of a majority of the stock outstanding and
entitled to vote thereon (or if there are two or more classes of stock entitled
to vote as separate classes, then by vote of a majority of each such class of
stock outstanding) may (i) authorize any amendment to its Restated Articles of
Organization, (ii) authorize the sale, lease or exchange of all or substantially
all of the Corporation's property and assets, including its goodwill and (iii)
approve a merger or consolidation of the Corporation with or into any other
corporation, provided that such amendment, sale, lease, exchange, merger or
consolidation shall have been approved by the Board of Directors.
Continuation Page 6-1