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Exhibit 3.1
FORM CD-74-10M-10-79-152328
[ILLEGIBLE]
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Examiner
The Commonwealth of Massachusetts
MICHAEL JOSEPH CONNOLLY
Secretary of State
ONE ASHBURTON PLACE, BOSTON, MASS: 02108
FEDERAL IDENTIFICATION
NO. 04-2495703
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RESTATED ARTICLES OF ORGANIZATION
General Laws, Chapter 156B, Section 74
This certificate must be submitted to the Secretary of the Commonwealth
within sixty days after the date of the vote of stockholders adopting the
restated articles of organization. The fee for filing this certificate is
prescribed by General Laws, Chapter 156B, Section 114. Make check payable to the
Commonwealth of Massachusetts.
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I, Mordechai Wiesler , President and
Clerk of
PRI Automation, Inc.
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(Name of Corporation)
located at 749 Middlesex Turnpike, Billerica, Massachusetts 01821 do hereby
certify that the following restatement of the articles of organization of the
corporation was duly adopted at a meeting held on September 9, 1994 by vote of
231,482 shares of preferred stock (Class of Stock) out of 231,482 shares
outstanding, 1,944,714 shares of common stock (Class of Stock) out of 2,117,331
shares outstanding and __________ shares of ___________ (Class of Stock) out of
_____________ shares outstanding, being at least two-thirds of each class of
stock outstanding and entitled to vote and of each class or series of stock
adversely affected thereby: -
1. The name by which the corporation shall be known is: -
PRI Automation, Inc.
2. The purposes for which the corporation is formed are as follows: -
See continuation sheet 2A.
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/s/ JO
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P.C.
Note: If the space provided under any article or item on this form is
insufficient, additions shall be set forth on separate 8 1/2 x 11 sheets of
paper leaving a left hand margin of at least 1 inch for binding. Additions to
more than one article may be continued on a single sheet so long as each article
requiring each such addition is clearly indicated.
3. The total number of shares and the par value, if any, of each class
of stock which the corporation is authorized to issue is as follows:
WITHOUT PAR VALUE WITH PAR VALUE
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CLASS OF STOCK NUMBER OF SHARES NUMBER OF SHARES PAR VALUE
-------------- ---------------- ---------------- ---------
Preferred 400,000 $.01
Common 12,000,000 $.01
*4. If more than one class is authorized, a description of each of the
different classes of stock with, if any, the preferences, voting
powers, qualifications, special or relative rights or privileges as
to each class thereof and any series now established:
See continuation sheets 4A-4C.
*5. The restrictions, if any, imposed by the articles of organization
upon the transfer of shares of stock of any class are as follows:
None.
*6. Other lawful provisions, if any, for the conduct and regulation of
the business and affairs of the corporation, for its voluntary
dissolution, or for limiting, defining, or regulating the powers of
the corporation, or of its directors or stockholders, or of any
class of stockholders:
See continuation sheets 6A-6G.
* If there are no such provisions, state "None".
2A. PURPOSES
To design, develop, manufacture, sell, buy, acquire, license, lease,
furnish and deal in industrial robot products.
To acquire, hold, dispose of, buy, sell, underwrite, handle on commission
and otherwise deal in stocks, shares, bonds, notes and obligations of the
interests in corporations, joint-stock companies, trusts, associations,
partnerships, firms or persons and all forms of public and municipal securities
of this or any other country, or any right or interest therein, and while owner
thereof, to exercise all rights, powers and privileges of ownership in the same
manner and to the same extent that an individual might.
To acquire, hold, use, construct, maintain and dispose of buildings,
plants, factories, mills, machinery, works, and all other real and personal
property, tangible or intangible, of whatever kind and wherever situated, or any
right of interest therein for the purposes of the foregoing businesses, and as a
going business or otherwise, all or any part of the assets of any corporation,
joint-stock company, trust, association, firm and person, and in such cases to
assume all or any part of its or his liabilities.
To engage in, transact and carry on any or all of the above businesses or
any other business or activity necessary or convenient for or incidental to any
or all of the foregoing or which can advantageously be conducted in connection
therewith, and to engage in, transact and carry on any business or activity
which a business corporation organized under the provisions of Chapter 156B of
the General Laws of Massachusetts may lawfully engage in, transact or conduct.
4A. DESIGNATION OF STOCK
The aggregate number of shares of capital stock which the Corporation has
authority to issue is 12,400,000 consisting of:
(i) 400,000 shares of Preferred Stock, $.01 par value per share (the
"Preferred Stock"); and
(ii) 12,000,000 shares of Common Stock, $.01 par value per share (the
"Common Stock").
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4B. DESCRIPTION OF COMMON STOCK
The description of the Common Stock is as follows:
Each holder of Common Stock shall at every meeting of stockholders be
entitled to one vote in person or by proxy for each share of Common Stock held
by him. The holders of the Common Stock shall be entitled to such dividends as
may from time to time be declared by the Board of Directors out of any funds
legally available for the declaration of dividends, subject to any provisions of
these Articles of Organization, as amended from time to time, and subject to the
relative rights and preferences or any shares of Preferred Stock authorized and
issued hereunder. Subject to the relative rights and preferences of any shares
of Preferred Stock authorized and issued hereunder, upon the dissolution or
liquidation of the Corporation, whether voluntary or involuntary, the holders of
shares of Common Stock shall be entitled to receive pro rata all assets of the
Corporation available for distribution to its stockholders.
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4C. DESCRIPTION OF PREFERRED STOCK
The description of the Preferred Stock is as follows:
1. Certificate of Designation. The Board of Directors is authorized,
subject to limitations described by law and the provisions of this Article 4, to
provide for the issuance of shares of Preferred Stock with or without series,
and, by filing a certificate pursuant to the applicable law of The Commonwealth
of Massachusetts (the "Certificate of Designation"), to establish from time to
time the number of shares to be included in each such series and to fix the
designation, preferences, voting powers, qualifications and special or relative
rights or privileges of the shares of each such series. In the event that at any
time the Board of Directors shall have established and designated one or more
shares of Preferred Stock consisting of a number of shares less than all of the
authorized number of shares of Preferred Stock, the remaining authorized shares
of Preferred Stock shall be deemed to be shares of an undesignated series of
Preferred Stock until designated by the Board of Directors as being a part of a
series previously established or a new series then being established by the
Board of Directors. Notwithstanding the fixing of the number of shares
constituting a particular series, the Board of Directors may at any time
thereafter authorize the issuance of additional shares of the same series except
as set forth in the Certificate of Designation.
2. Authority of Board. The authority of the Board of Directors with
respect to each series of Preferred Stock shall include, but not be limited to,
determination of the following:
(i) the number of shares constituting that series, which number
may be increased or decreased (but not below the number of
shares of such series then outstanding) from time to time
by the Board of Directors, and the distinctive designation
of that series;
(ii) whether any dividend shall be paid on shares of that
series, and, if so, the dividend rate on the shares of that
series; whether dividends shall be cumulative and, if so,
from which date or dates, and the relative rights of
priority, if any, of payment of dividends on shares of that
series;
(iii) whether shares of that series shall have voting rights in
addition to the voting rights provided by law and, if so,
the terms of such voting rights;
(iv) whether shares of that series shall be convertible into
shares of Common Stock or
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another security and, if so, the terms and conditions of
such conversion, including provisions for adjustment of the
conversion rate in such events as the Board of Directors
shall determine;
(v) whether or not the shares of that series shall be
redeemable and, if so, the terms and conditions of such
redemption, including the date or dates upon or after which
they shall be redeemable and the amount per share payable
in case of redemption, which amount may vary under
different conditions and at different redemption dates; and
whether that series shall have a sinking fund for the
redemption or purchase of shares of that series and, if so,
the terms and amount of such sinking fund;
(vi) whether, in the event of purchase or redemption of the
shares of that series, any shares of that series shall be
restored to the status of authorized but unissued shares or
shall have such other status as shall be set forth in the
Certificate of Designation;
(vii) the rights of the shares of that series in the event of the
sale, conveyance, exchange or transfer of all or
substantially all of the property and assets of the
Corporation, or the merger or consolidation of the
corporation into or with any other corporation, or the
merger of any other corporation into it, or the voluntary
or involuntary liquidation, dissolution or winding up of
the Corporation, and the relative rights of priority, if
any, of shares of that series to payment in any such event;
(viii) whether the shares of that series shall carry any
preemptive right in or preemptive right to subscribe to any
additional shares of Preferred Stock or any shares of any
other class of stock which may at any time be authorized or
issued, or any bonds, debentures or other securities
convertible into shares of stock of any class of the
Corporation, or options or warrants carrying rights to
purchase such shares or securities; and
(ix) any other designation, preferences, voting powers,
qualifications, and special or
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relative rights or privileges of the shares of that
series.
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6A. CERTAIN TRANSACTIONS APPROVED BY THE BOARD OF DIRECTORS
Except as otherwise provided in these Articles of Organization, the
Corporation may authorize, by a vote of a majority of the shares of each class
of stock outstanding and entitled to vote thereon, (a) the sale, lease or
exchange of all or substantially all of its property and assets, including its
goodwill, upon such terms and conditions as it deems expedient, and (b) the
merger or consolidation of the Corporation into any other corporation, provided,
however, that such sale, lease, exchange, merger or consolidation shall have
been approved by a majority of the members of the Board of Directors.
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6B. LIMITATION OF LIABILITY OF DIRECTORS
No director of the Corporation shall be personally liable 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 this Article shall not eliminate or limit any 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 and 62 of Massachusetts General Laws, Chapter 156B, or any amendatory
or successor provisions thereto (the "Massachusetts Business Corporation Law"),
or (iv) with respect to any transaction from which the director derived an
improper personal benefit.
The provisions of this Article 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 Article became effective, provided, however, that neither any
provision of this Article nor the adoption of this Article shall affect the
effectiveness of any predecessor provision of these Articles of Organization
pertaining to the elimination or limitation of the liability of a director of
the Corporation for any act or omission occurring prior to the date on which
this Article became effective. No amendment or repeal of this Article shall
adversely affect the rights and protection afforded to a director of the
Corporation under this Article for acts or omissions occurring prior to such
amendment or repeal.
If the Massachusetts Business Corporation Law is subsequently amended to
further eliminate or limit the personal liability of directors or to authorize
corporate action to further eliminate or limit such liability, then the
liability of the directors of the Corporation shall, without any further action
of the Board of Directors or the stockholders of the Corporation, be eliminated
or limited to the fullest extent permitted by the Massachusetts Business
Corporation Law.
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6C. INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
1. Right to Indemnification. Each person who was or is made a party or is
threatened to be made a party to or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative, investigative or otherwise
(hereinafter a "Proceeding"), by reason of the fact that he or she is or was (a)
a director of the Corporation, (b) an officer of the Corporation elected or
appointed by the stockholders or the Board of Directors, or (c) serving, at the
request of the Corporation as evidenced by a vote of the Board of Directors
prior to the occurrence of the event to which the indemnification relates, as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to an
employee benefit plan (such persons described in (a), (b) and (c) are sometimes
hereinafter referred to as "Indemnitees"), whether the basis of such Proceeding
is alleged action in an official capacity as such a director or officer of the
Corporation or as such other director, officer, employee or agent or in any
other capacity while serving as such a director or officer of the Corporation or
as such other director, officer, employee or agent, shall be indemnified and
held harmless by the Corporation to the fullest extent authorized by the
Massachusetts Business Corporation Law (but in the case of an amendment to the
Massachusetts Business Corporation Law, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than permitted
prior thereto), against all expense, liability and loss (including, but not
limited to, attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by such
Indemnitee in connection therewith and such indemnification shall continue as to
an Indemnitee who has ceased to be such a director, officer, employee or agent
and shall inure to the benefit of the Indemnitee's heirs, executors and
administrators; provided, however, that, except as provided in Section 3 of this
Article 6C with respect to Proceedings to enforce rights to indemnification, the
Corporation shall indemnify any such Indemnitee in connection with a Proceeding
(or part thereof) initiated by such Indemnitee only if such Proceeding (or part
thereof) was authorized or ratified by the Board of Directors of the
Corporation. The right to indemnification conferred in this Article 6C shall be
a contract right and shall include the right to be paid by the Corporation the
expenses incurred in defending any Proceeding in advance of its final
disposition (hereinafter an "Advancement of Expenses"); provided, however, that,
if the Massachusetts Business Corporation Law so requires, an Advancement of
Expenses incurred by an Indemnitee shall be made only upon delivery to the
Corporation of an undertaking (hereinafter an "Undertaking"), by or on behalf of
such Indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is no further right to
appeal (hereinafter a "Final Adjudication") that such Indemnitee is not entitled
to be indemnified for such expenses under this Article 6C or otherwise.
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2. Indemnification of Employees and Agents of the Corporation. The
Corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification, and to an Advancement of Expenses,
to any employee or agent of the Corporation to the fullest extent of the
provisions of this Article 6C.
3. Right of Indemnitee to Bring Suit. If a claim under this Article 6C is
not paid in full by the Corporation within sixty days after a written claim has
been received by the Corporation, except in the case of a claim for an
Advancement or Expenses, in which case the applicable period shall be twenty
days, the Indemnitee may at any time hereafter bring suit against the
Corporation to recover the unpaid amount of the claim. If the Indemnitee is
successful in whole or in part in any such suit, or in a suit brought by the
Corporation to recover an Advancement of Expenses pursuant to the terms of an
Undertaking, the Indemnitee shall also be entitled to be paid the expense of
prosecuting or defending such suit. In any suit brought by the Indemnitee to
enforce a right to indemnification hereunder (but not in a suit brought by the
Indemnitee to enforce a right to an Advancement of Expenses) it shall be a
defense that the Indemnitee has not met the applicable standard of conduct set
forth in the Massachusetts Business Corporation Law. In addition, in any suit by
the Corporation to recover an Advancement of Expenses pursuant to the terms of
an Undertaking, the Corporation shall be entitled to recover such expenses upon
a Final Adjudication that the Indemnitee has not met the applicable standard of
conduct set forth in the Massachusetts Business Corporation Law. Neither the
failure of the Corporation (including its Board of Directors, independent legal
counsel, or stockholders) to have made a determination prior to the commencement
of such suit that indemnification of the Indemnitee is proper in the
circumstances because the Indemnitee has met the applicable standard of conduct
set forth in the Massachusetts Business Corporation Law, nor an actual
determination by the Corporation (including its Board of Directors, independent
legal counsel or stockholders) that the Indemnitee has not met such applicable
standard of conduct, shall create a presumption that the Indemnitee has not met
the applicable standard of conduct or, in the case of such a suit brought by the
Indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an Advancement of Expenses hereunder,
or by the Corporation to recover an Advancement of Expenses pursuant to the
terms of an Undertaking, the burden of proving that the Indemnitee is not
entitled to be indemnified, or to such Advancement of Expenses, under this
Article 6C or otherwise, shall be on the Corporation.
4. Non-Exclusivity of Rights. The rights to indemnification and to
Advancement of Expenses conferred in this Article 6C shall not be exclusive of
any other right which any person may have or hereafter acquire under these
By-Laws, the
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Articles of Organization or any statute, agreement, vote of stockholders or of
disinterested directors or otherwise.
5. Insurance. The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation
or any director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any expense, liability or loss,
whether or not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the Massachusetts Business
Corporation Law. The Corporation's obligation to provide indemnification under
this Article 6C shall be offset to the extent of any other source of
indemnification or any otherwise applicable insurance coverage under a policy
maintained by the Corporation or any other person.
6. Amendments. Without the consent of a person entitled to the
indemnification and other rights provided in this Article 6C (unless otherwise
required by the Massachusetts Business Corporation Law), no amendment modifying
or terminating such rights shall adversely affect such person's rights under
this Article 6C with respect to the period prior to such amendment.
7. Savings Clause.
If this Article 6C or any portion hereof shall be invalidated on any
ground by any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify each Indemnitee as to any liabilities and expenses with
respect to any Proceeding to the fullest extent permitted by any applicable
portion of this Article 6C that shall not have been invalidated and to the
fullest extent permitted by applicable law.
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6D. MAKING AND AMENDING BY-LAWS
The Board of Directors shall have power to make, alter, amend and repeal
the By-Laws of the Corporation in whole or in part, except with respect to any
provision thereof which by law or these Articles of Organization or such By-Laws
requires action by the stockholders, who shall also have power to make, alter,
amend and repeal the By-Laws of the Corporation. Any By-Laws made by the Board
of Directors under the powers conferred hereby may be altered, amended, or
repealed by the Board of Directors or the stockholders. Notwithstanding the
foregoing and anything contained in these Articles of Organization to the
contrary, Articles III, IV, VI and IX of the By-Laws, and this Article 6D, shall
not be altered, amended or repealed by the stockholders, and no provision
inconsistent therewith or herewith shall be adopted by the stockholders, without
the affirmative vote of the holders of at least eighty percent (80%) of the
voting power of all shares of the Corporation entitled to vote generally in the
election of directors, voting together as a single class.
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6E. PLACES OF MEETING OF STOCKHOLDERS
Meetings of the stockholders may be held anywhere in the United States.
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6F. PARTNERSHIP IN ANY BUSINESS ENTERPRISE
The Corporation may be a partner in any business enterprise it would have
power to conduct by itself.
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6G. TRANSACTIONS WITH AFFILIATED PERSONS
The Corporation may enter into contracts or transact business with one or
more of its directors, officers or stockholders or with any corporation,
organization or other concern in which one or more of its directors, officers or
stockholders are directors, officers, stockholders or are otherwise interested
and may enter into other contracts or transactions in which one or more of its
directors, officers or stockholders are in any way interested. In the absence of
fraud, no such contract or transaction shall be invalidated or in any way
affected by the fact that such one or more of the directors, officers or
stockholders of the Corporation have or may have any interest which is or might
be adverse to the interest of the Corporation even though the vote or action of
directors, officers or stockholders having such adverse interest may have been
necessary to obligate the Corporation upon such contract or transaction.
At any meeting of the Board of Directors (or of any duly authorized
committee thereof) at which any such contract or transaction shall be authorized
or ratified, any such director may vote or act thereat with like force and
effect as if he had not such interest, provided in such case that the nature of
such interest (though not necessarily the extent or details thereof) shall be
disclosed or shall have been known to the directors. A general notice that a
director or officer is interested in any corporation or other concern of any
kind referred to above shall be a sufficient disclosure as to the interest of
such director or officer with respect to all contracts and transactions with
such corporation or other concern. No director shell be disqualified from
holding office as a director or an officer of the Corporation by reason of any
such adverse interest, unless the Board of Directors shall determine that such
adverse interest is detrimental to the Corporation. In the absence of fraud, no
director, officer or stockholder having such adverse interest shall be liable on
account of such adverse interest to the Corporation or to any stockholder or
creditor thereof or to any other person for any loss incurred by it under or by
reason of such contract or transaction, nor shall any such director, officer or
stockholder be accountable on such ground for any gains or profits realized
thereon.
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BRIEF DESCRIPTION OF AMENDMENTS
Article 4: Article 4 has been amended so as to eliminate the provisions
describing the Series A Convertible Preferred Stock, $.01 par value
per share, of the Corporation.
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*We further certify that the foregoing restated articles of organization
effect no amendments to the articles of organization of the corporation as
heretofore amended, except amendments to the following articles
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Article 4.
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(*if there are no such amendments, state "None".)
Briefly describe amendments in space below:
See Brief Description of Amendments, attached hereto.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed our
names this 20th day of October in the year 1994.
/s/ M. Wiesler President
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/s/ M. Wiesler Clerk
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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 $300.00 having been paid, said articles are deemed
to have been filed with me this 20th day of OCTOBER, 1994.
/s/ MICHAEL JOSEPH CONNOLLY
MICHAEL JOSEPH CONNOLLY
Secretary of State
TO BE FILLED IN BY CORPORATION
PHOTOCOPY OF RESTATED ARTICLES OF ORGANIZATION TO BE SENT
TO: Robert L. Birnbaum, Esquire
Foley, Hoag & Eliot
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One Post Office Square
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Boston, Massachusetts 02109
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Telephone (617) 482-1390
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Copy Mailed
FEDERAL IDENTIFICATION
NO. 04-2495703
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/s/ [ILLEGIBLE]
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Examiner
/s/ [ILLEGIBLE]
/s/ NA
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Name
Approved
The Commonwealth of Massachusetts
William Francis Galvin
Secretary of the Commonwealth
One Ashburton Place, Boston, Massachusetts 02108-1512
ARTICLES OF AMENDMENT
(General Laws, Chapter 156B, Section 72)
We, Mitchell G. Tyson , *President
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and Robert L. Birnbaum , *Assistant Clerk
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of PRI Automation, Inc.
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(Exact name of corporation)
located at: 805 Middlesex Turnpike, Billerica, MA 01821
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(Street address of corporation in Massachusetts)
certify that these Articles of Amendment affecting articles numbered:
3
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(Number those articles 1, 2, 3, 4, 5, and/or 6 being amended)
of the Articles of Organization were duly adopted at a meeting held on April 22,
1997, by vote of
5,130,035 shares of Common of 7,408,399 shares outstanding
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(type, class & series, if any)
shares of of shares outstanding and
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(type, class & series, if any)
shares of of shares outstanding,
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(type, class & series, if any)
C |_|
P |_|
M |_|
R.A. |_|
**being at least a majority of each type, class or series outstanding and
entitled to vote thereon
4
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P.C.
* Delete the inapplicable words.
** Delete the inapplicable clause.
(1) For amendments adopted pursuant to Chapter 156B, Section 70.
(2) For amendments adopted pursuant to Chapter 156B, Section 71.
Note: if the space provided under any article or item on this form is
insufficient, additions shall be set forth on one side only of separate
8 1/2 x 11 sheets of paper with a left margin of at least 1 inch. Additions
to more than one article may be made on a single sheet so long as each
article requiring each addition is clearly indicated.
To change the number of shares and the par value (if any) of any type, class
or series of stock which the corporation is authorized to issue, fill in the
following:
The total presently authorized is:
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WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
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TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
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Common: Common: 12,000,000 $.01
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Preferred: Preferred: 400,000 $.01
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Change the total authorized to:
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WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
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TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
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Common: Common: 24,000,000 $.01
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Preferred: Preferred: 400,000 $.01
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The foregoing amendment(s) will become effective when these Articles of
Amendment are filed in accordance with General Laws, Chapter 156B, Section 6
unless these articles specify, in accordance with the vote adopting the
amendment, a later effective date not more than thirty days after such filing,
in which event the amendment will become effective on such later date.
Later effective date:
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SIGNED UNDER THE PENALTIES OF PERJURY, this 22 day of April, 1997.
/s/ Mitchell G. Tyson , *President
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/s/ Robert L. Birnbaum , *Assistant Clerk
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* Delete the inapplicable words.
573366
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
(General Laws, Chapter 156B, Section 72)
SECRETARY OF
THE COMMONWEALTH
97 APR 22 PM 1:33
CORPORATION DIVISION
================================================================================
I hereby approve the within Articles of Amendment, and the filing fee in the
amount of $12,000 having been paid, said article is deemed to have been filed
with me this 22nd day of April, 1997.
Effective date:
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/s/ William Francis Galvin
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
TO BE FILLED IN BY CORPORATION
Photocopy of document to be sent to:
Robert L. Birnbaum, Esq.
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Foley, Hoag & Eliot LLP
One Post Office Square
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Boston, MA 02109
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FEDERAL IDENTIFICATION
NO. 04-2495703
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/s/ BT
/s/ JM
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Examiner
N/A
---------------
Name
Approved
The Commonwealth of Massachusetts
William Francis Galvin
Secretary of the Commonwealth
One Ashburton Place, Boston, Massachusetts 02108-1512
ARTICLES OF AMENDMENT
(General Laws, Chapter 156B, Section 72)
We, Mitchell G. Tyson , *President
----------------------------------------------------------------
and Robert L. Birnbaum , *Assistant Clerk
----------------------------------------------------------
of PRI Automation, Inc.
----------------------------------------------------------------------------,
(Exact name of corporation)
located at 805 Middlesex Turnpike, Billerica, MA 01821
-------------------------------------------------------------------,
(Street address of corporation in Massachusetts)
certify that these Articles of Amendment affecting articles numbered:
3
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(Number those articles 1, 2, 3, 4, 5, and/or 6 being amended)
of the Articles of Organization were duly adopted at a meeting held on January
16, 1998, by vote of:
10,541,574 shares of Common Stock of 15,298,656 shares outstanding,
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(type, class & series, if any)
shares of of shares outstanding, and
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(type, class & series, if any)
shares of of shares outstanding,
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(type, class & series, if any)
C |_|
P |_|
M |_|
R.A. |_|
**being at least a majority of each type, class or series outstanding and
entitled to vote thereon:/
4
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P.C.
* Delete the inapplicable words.
** Delete the inapplicable clause.
(1) For amendments adopted pursuant to Chapter 156B, Section 70.
(2) For amendments adopted pursuant to Chapter 156B, Section 71.
Note: if the space provided under any article or item on this form is
insufficient, additions shall be set forth on one side only of separate
8 1/2 x 11 sheets of paper with a left margin of at least 1 inch. Additions
to more than one article may be made on a single sheet so long as each
article requiring each addition is clearly indicated.
To change the number of shares and the par value (if any) of any type, class or
series of stock which the corporation is authorized to issue, fill in the
following:
The total presently authorized is:
--------------------------------------------------------------------------------
WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
--------------------------------------------------------------------------------
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
--------------------------------------------------------------------------------
Common: Common: 24,000,000 $.01
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Preferred: Preferred: 400,000 $.01
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Change the total authorized to:
--------------------------------------------------------------------------------
WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
--------------------------------------------------------------------------------
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
--------------------------------------------------------------------------------
Common: Common: 50,000,000 $.01
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Preferred: Preferred: 400,000 $.01
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
The foregoing amendment(s) will become effective when these Articles of
Amendment are filed in accordance with General Laws, Chapter 156B, Section 6
unless these articles specify, in accordance with the vote adopting the
amendment, a later effective date not more than thirty days after such filing,
in which event the amendment will become effective on such later date.
Later effective date:
-------------------------
SIGNED UNDER THE PENALTIES OF PERJURY, this 30th day of January, 1998.
/s/ Mitchell G. Tyson *President
-------------------------------------------------------------------
/s/ Robert L. Birnbaum , *Assistant Clerk.
------------------------------------------------------------
* Delete the inapplicable words.
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
(General Laws, Chapter 156B, Section 72)
================================================================================
I hereby approve the within Articles of Amendment and, the filing fee in the
amount of $26,000 having been paid, said articles are deemed to have been filed
with me this 2nd day of February, 1998.
Effective date:
------------------------------
SECRETARY OF
THE COMMONWEALTH
98 FEB-2 PM 12:15
CORPORATION DIVISION
/s/ William Francis Galvin
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
TO BE FILLED IN BY CORPORATION
Photocopy of document to be sent to:
Robert L. Birnbaum, Esq.
----------------------------------------------------------
Foley, Hoag & Eliot
One Post Office Square
----------------------------------------------------------
Boston, MA 02109-2170
----------------------------------------------------------
The Commonwealth of Massachusetts
William Francis Galvin
Secretary of the Commonwealth
Corporations Division
One Ashburton Place, Boston, MA 02108-1512
FEDERAL IDENTIFICATION
NO. 04-2495703
CERTIFICATE OF VOTE OF DIRECTORS ESTABLISHING
A SERIES OF A CLASS OF STOCK
General Laws, Chapter 156B, Section 26
----------
We, Mitchell G. Tyson, President, and
Robert L. Birnbaum, Assistant Clerk of
PRI Automation, Inc.
(Name of Corporation)
located at 805 Middlesex Turnpike, Billerica, Massachusetts 01821 do hereby
certify that at a meeting of the directors of the corporation held on December
7, 1998, the following vote establishing and designating a series of a class of
stock and determining the relative rights and preferences thereof was duly
adopted:-
See Continuation Sheet 2A
Continuation Sheet 2A
PRI AUTOMATION, INC.
VOTED That, pursuant to the authority vested in the Board of Directors of
the Corporation in accordance with the provisions of the Articles of
Organization of the Corporation, the Board of Directors hereby
designates and establishes [250,000] shares of its authorized but
unissued Preferred Stock as its Series A Participating Cumulative
Preferred Stock, $.01 par value (the "Series Preferred Stock"); that
such Series A Preferred Stock shall have the terms set forth in
their entirety in Exhibit A to the Rights Agreement presented to
this meeting, and such terms be, and they hereby are, approved; and
that the President or any Vice President and the Clerk or any
Assistant Clerk of the Corporation be, and they hereby are,
authorized to execute a Certificate of Vote of Directors
Establishing a Series of a Class of Stock (the "Certificate of Vote
of Directors") setting forth such terms in the name of the
Corporation, and to file the Certificate of Vote of Directors with
the Secretary of State of The Commonwealth of Massachusetts and such
other governmental authorities as may be required by law.
EXHIBIT A TO THE RIGHTS AGREEMENT
TERMS OF SERIES A
PARTICIPATING CUMULATIVE PREFERRED STOCK
OF
PRI AUTOMATION, INC.
Section 1. Designation and Number of Shares. The shares of such series
shall be designated as "Series A Participating Cumulative Preferred Stock" (the
"Series A Preferred Stock"), $.01 par value. The number of shares initially
constituting the Series A Preferred Stock shall be [250,000]; provided, however,
that, if more than a total of [250,000] shares of Series A Preferred Stock shall
be issuable upon the exercise of Rights (the "Rights") issued pursuant to the
Rights Agreement dated as of December 7, 1998 between the Corporation and State
Street Bank and Trust Company, as Rights Agent (the "Rights Agreement"), the
Board of Directors of the Corporation, pursuant to Section 26 of Chapter 156B of
the Massachusetts General Laws, shall direct by resolution or resolutions that a
certificate be properly executed, acknowledged, filed and recorded, in
accordance with the provisions of said Section 26 thereof, providing for the
total number of shares of Series A Preferred Stock authorized to be issued to be
increased (to the extent that the Articles of Organization then permits) to the
largest number of whole shares (rounded up to the nearest whole number) issuable
upon exercise of such Rights.
Section 2. Dividends or Distributions.
(a) Subject to the prior and superior rights of the holders of
shares of any other series of Preferred Stock or other class of capital stock of
the Corporation ranking prior and superior to the shares of Series A Preferred
Stock with respect to dividends, the holders of shares of the Series A Preferred
Stock shall be entitled to receive, when, as and if declared by the Board of
Directors, out of the assets of the Corporation legally available therefor, (1)
quarterly dividends payable in cash on the last day of each fiscal quarter in
each year, or such other dates as the Board of Directors of the Corporation
shall approve (each such date being referred to herein as a "Quarterly Dividend
Payment Date"), commencing on the first Quarterly Dividend Payment Date after
the first issuance of a share or a fraction of a share of Series A Preferred
Stock, in the amount of $1.00 per whole share (rounded to the nearest cent)
less the amount of all cash dividends declared on the Series A Preferred Stock
pursuant to the following clause (2) since the immediately preceding Quarterly
Dividend Payment Date or, with respect to the first Quarterly Dividend Payment
Date, since the first issuance of any share or fraction of a share of Series A
Preferred Stock (the total of which shall not, in any event, be less than zero)
and (2) dividends payable in cash on the payment date for each cash dividend
declared on the Common Stock in an amount per whole share (rounded to the
nearest cent) equal to the Formula Number (as hereinafter defined) then in
effect times the cash dividends then to be paid on each share of Common Stock.
In addition, if the Corporation shall pay any dividend or make any distribution
on the Common Stock payable in assets,
securities or other forms of non-cash consideration (other than dividends or
distributions solely in shares of Common Stock), then, in each such case, the
Corporation shall simultaneously pay or make on each outstanding whole share of
Series A Preferred Stock a dividend or distribution in like kind equal to the
Formula Number then in effect times such dividend or distribution on each share
of the Common Stock. As used herein, the "Formula Number" shall be 100;
provided, however, that if at any time after December 7, 1998, the Corporation
shall (i) declare or pay any dividend on the Common Stock payable in shares of
Common Stock or make any distribution on the Common Stock in shares of Common
Stock, (ii) subdivide (by a stock split or otherwise) the outstanding shares of
Common Stock into a larger number of shares of Common Stock or (iii) combine (by
a reverse stock split or otherwise) the outstanding shares of Common Stock into
a smaller number of shares of Common Stock, then in each such event the Formula
Number shall be adjusted to a number determined by multiplying the Formula
Number in effect immediately prior to such event by a fraction, the numerator of
which is the number of shares of Common Stock that are outstanding immediately
after such event and the denominator of which is the number of shares of Common
Stock that are outstanding immediately prior to such event (and rounding the
result to the nearest whole number); and provided further, that, if at any time
after December 7, 1998, the Corporation shall issue any shares of its capital
stock in a merger, reclassification, or change of the outstanding shares of
Common Stock, then in each such event the Formula Number shall be appropriately
adjusted to reflect such merger, reclassification or change so that each share
of Series A Preferred Stock continues to be the economic equivalent of a Formula
Number of shares of Common Stock prior to such merger, reclassification or
change.
(b) The Corporation shall declare a dividend or distribution on the
Series A Preferred Stock as provided in Section 2(a) immediately prior to or at
the same time it declares a dividend or distribution on the Common Stock (other
than a dividend or distribution solely in shares of Common Stock); provided,
however, that, in the event no dividend or distribution (other than a dividend
or distribution in shares of Common Stock) shall have been declared on the
Common Stock during the period between any Quarterly Dividend Payment Date and
the next subsequent Quarterly Dividend Payment Date, a dividend of $1.00 per
whole share on the Series A Preferred Stock shall nevertheless be payable on
such subsequent Quarterly Dividend Payment Date. The Board of Directors may fix
a record date for the determination of holders of shares of Series A Preferred
Stock entitled to receive a dividend or distribution declared thereon, which
record date shall be the same as the record date for any corresponding dividend
or distribution on the Common Stock.
(c) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from and after the Quarterly Dividend Payment
Date next preceding the date of original issue of such shares of Series A
Preferred Stock; provided, however, that dividends on such shares which are
originally issued after the record date for the determination of holders of
shares of Series A Preferred Stock entitled to receive a quarterly dividend and
on or prior to the next succeeding Quarterly Dividend Payment Date shall begin
to accrue and be
cumulative from and after such Quarterly Dividend Payment Date. Notwithstanding
the foregoing, dividends on shares of Series A Preferred Stock which are
originally issued prior to the record date for the determination of holders of
shares of Series A Preferred Stock entitled to receive a quarterly dividend on
the first Quarterly Dividend Payment Date shall be calculated as if cumulative
from and after the last day of the fiscal quarter next preceding the date of
original issuance of such shares. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series A Preferred Stock in an amount
less than the total amount of such dividends at the time accrued and payable on
such shares shall be allocated pro rata on a share-by-share basis among all such
shares at the time outstanding.
(d) So long as any shares of the Series A Preferred Stock are
outstanding, no dividends or other distributions shall be declared, paid or
distributed, or set aside for payment or distribution, on the Common Stock
unless, in each case, the dividend required by this Section 2 to be declared on
the Series A Preferred Stock shall have been declared.
(e) The holders of the shares of Series A Preferred Stock shall not
be entitled to receive any dividends or other distributions except as provided
herein.
Section 3. Voting Rights. The holders of shares of Series A Preferred
Stock shall have the following voting rights:
(a) Each holder of Series A Preferred Stock shall be entitled to a
number of votes equal to the Formula Number then in effect for each share of
Series A Preferred Stock held of record on each matter on which holders of the
Common Stock or stockholders generally are entitled to vote, multiplied by the
maximum number of votes per share which any holder of the Common Stock or
stockholders generally then have with respect to such matter (assuming any
holding period or other requirement to vote a greater number of shares is
satisfied).
(b) Except as otherwise provided herein or by applicable law, the
holders of shares of Series A Preferred Stock and the holders of shares of
Common Stock shall vote together as one class for the election of directors of
the Corporation and on all other matters submitted to a vote of stockholders of
the Corporation.
(c) If, at the time of any annual meeting of stockholders for the
election of directors, the equivalent of six quarterly dividends (whether or not
consecutive) payable on any share or shares of Series A Preferred Stock are in
default, the number of directors constituting the Board of Directors of the
Corporation shall be increased by two. In addition to voting together with the
holders of Common Stock for the election of other directors of the Corporation,
the holders of record of the Series A Preferred Stock, voting separately as a
class to the exclusion of the holders of Common Stock, shall be entitled at said
meeting of stockholders (and at each subsequent annual meeting of stockholders),
unless all dividends in arrears have been paid or declared and set apart for
payment prior thereto, to vote for the election of two directors of the
Corporation, the holders of
any Series A Preferred Stock being entitled to cast a number of votes per share
of Series A Preferred Stock equal to the Formula Number. Until the default in
payments of all dividends which permitted the election of said directors shall
cease to exist, any director who shall have been so elected pursuant to the next
preceding sentence may be removed at any time, either with or without cause,
only by the affirmative vote of the holders of the shares of Series A Preferred
Stock at the time entitled to cast a majority of the votes entitled to be cast
for the election of any such director at a special meeting of such holders
called for that purpose, and any vacancy thereby created may be filled by the
vote of such holders. If and when such default shall cease to exist, the holders
of the Series A Preferred Stock shall be divested of the foregoing special
voting rights, subject to revesting in the event of each and every subsequent
like default in payments of dividends. Upon the termination of the foregoing
special voting rights, the terms of office of all persons who may have been
elected directors pursuant to said special voting rights shall forthwith
terminate, and the number of directors constituting the Board of Directors shall
be reduced by two. The voting rights granted by this Section 3(c) shall be in
addition to any other voting rights granted to the holders of the Series A
Preferred Stock in this Section 3.
(d) Except as provided herein, in Section 11 or by applicable law,
holders of Series A Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent they are entitled to
vote with holders of Common Stock as set forth herein) for authorizing or taking
any corporate action.
Section 4. Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series A Preferred Stock outstanding shall have
been paid in full, the Corporation shall not
(i) declare or pay dividends on, make any other distributions
on, or redeem or purchase or otherwise acquire for consideration any
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series
A Preferred Stock, except dividends paid ratably on the Series A Preferred
Stock and all such parity stock on which dividends are payable or in
arrears in proportion to the total amounts to which the holders of all
such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series
A Preferred
Stock: provided that the Corporation may at any time redeem, purchase or
otherwise acquire shares of any such parity stock in exchange for shares
of any stock of the Corporation ranking junior (either as to dividends or
upon dissolution, liquidation or winding up) to the Series A Preferred
Stock; or
(iv) purchase or otherwise acquire for consideration any
shares of Series A Preferred Stock, or any shares of stock ranking on a
parity with the Series A Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as determined by the
Board of Directors) to all holders of such shares upon such terms as the
Board of Directors, after consideration of the respective annual dividend
rates and other relative rights and preferences of the respective series
and classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(b) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under paragraph (a) of
this Section 4, purchase or otherwise acquire such shares at such time and in
such manner.
Section 5. Liquidation Rights. Upon the liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, no
distribution shall be made (1) to the holders of shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding
up) to the Series A Preferred Stock unless, prior thereto, the holders of
shares of Series A Preferred Stock shall have received an amount equal to the
accrued and unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment, plus an amount equal to the greater of
(x) $1.00 per whole share or (y) an aggregate amount per share equal to the
Formula Number then in effect times the aggregate amount to be distributed
per share to holders of Common Stock or (2) to the holders of stock ranking
on a parity (either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred Stock, except distributions made
ratably on the Series A Preferred Stock and all other such parity stock in
proportion to the total amounts to which the holders of all such shares are
entitled upon such liquidation, dissolution or winding up.
Section 6. 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 or any other property, then in any such case the then
outstanding shares of Series A Preferred Stock shall at the same time be
similarly exchanged or changed into an amount per share equal to the Formula
Number then in effect times the aggregate amount of stock, securities, cash or
any other property (payable in kind) as the ease may be, into which or for which
each share of Common Stock is exchanged or changed. In the event both this
Section 6 and Section 2 appear to apply to a transaction, this Section 6 will
control.
Section 7. No Redemption; No Sinking Fund.
(a) The shares of Series A Preferred Stock shall not be subject to
redemption by the Corporation or at the option of any holder of Series A
Preferred Stock; provided, however, that the Corporation may purchase or
otherwise acquire outstanding shares of Series A Preferred Stock in the open
market or by offer to any holder or holders of shares of Series A Preferred
Stock.
(b) The shares of Series A Preferred Stock shall not be subject to
or entitled to the operation of a retirement or sinking fund.
Section 8. Ranking. The Series A Preferred Stock shall rank junior to all
other series of Preferred Stock of the Corporation, unless the Board of
Directors shall specifically determine otherwise in fixing the powers,
preferences and relative, participating, optional and other special rights of
the shares of such series and the qualifications, limitations and restrictions
thereof.
Section 9. Fractional Shares. The Series A Preferred Stock shall be
issuable upon exercise of the Rights issued pursuant to the Rights Agreement in
whole shares or in any fraction of a share that is one one-hundredth (1/100th)
of a share or any integral multiple of such fraction which shall entitle the
holder, in proportion to such holder's fractional shares, to receive dividends,
exercise voting rights, participate in distributions and to have the benefit of
all other rights of holders of Series A Preferred Stock. In lieu of fractional
shares, the Corporation, prior to the first issuance of a share or a fraction of
a share of Series A Preferred Stock, may elect (1) to make a cash payment as
provided in the Rights Agreement for fractions of a share other than one
one-hundredth (1/100th) of a share or any integral multiple thereof or (2) to
issue depository receipts evidencing such authorized fraction of a share of
Series A Preferred Stock pursuant to an appropriate agreement between the
Corporation and a depository selected by the Corporation; provided that such
agreement shall provide that the holders of such depository receipts shall have
all the rights, privileges and preferences to which they are entitled as holders
of the Series A Preferred Stock.
Section 10. Reacquired Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and canceled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
Preferred Stock, without designation as to series until such shares are once
more designated as part of a particular series by the Board of Directors
pursuant to the provisions of the Articles of Organization.
Section 11. Amendment. None of the powers, preferences and relative
participating, optional and other special rights of the Series A Preferred
Stock as provided herein or in the Articles of Organization shall be amended
in any manner which would alter or change the powers, preferences, rights or
privileges of the holders of Series A Preferred Stock so as to affect them
adversely without the affirmative vote of the holders of at least 66-2/3% of
the outstanding shares of Series A Preferred Stock, voting as a separate
class; provided, however, that no such amendment approved by the holders of
at least 66-2/3% of the outstanding shares of Series A Preferred Stock shall
be deemed to apply to the powers, preferences, rights or privileges of any
holder of shares of Series A Preferred Stock originally issued upon exercise
of the Rights after the time of such approval without the approval of such
holder.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed our
names this 7th day of December in the year 1998.
/s/ Mitchell G. Tyson President
----------------------------------------------------------------------
/s/ Robert L. Birnbaum Assistant Clerk
----------------------------------------------------------------
THE COMMONWEALTH OF MASSACHUSETTS
CERTIFICATE OF VOTE OF DIRECTORS
ESTABLISHING A SERIES OF A CLASS OF STOCK
(General Laws, Chapter 156B, Section 26)
SECRETARY OF
THE COMMONWEALTH
98 DEC-9 PM 3:18
================================================================================
I hereby approve the within Certificate of Vote of Directors and, the filing fee
in the amount of $100 having been paid, said certificate is deemed to have been
filed with me this 9th day of December, 1998.
Effective date:
------------------------------
/s/ William Francis Galvin
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
TO BE FILLED IN BY CORPORATION
Photocopy of document to be sent to:
Robert L. Birnbaum, Esq.
----------------------------------------------------------
Foley, Hoag & Eliot LLP
----------------------------------------------------------
One Post Office Square Boston, MA 02109
----------------------------------------------------------
Telephone: (617) 832-1000
-----------------------------------------------
042495703
THE COMMONWEALTH OF MASSACHUSETTS
WILLIAM FRANCIS GALVIN
SECRETARY OF THE COMMONWEALTH
ONE ASHBURTON PLACE, BOSTON, MASSACHUSETTS 02108-1512
SECRETARY OF THE COMMONWEALTH
98 DEC 18 PM 2:48
CERTIFICATE OF CORRECTION
(GENERAL LAWS, CHAPTER 156B, SECTION 6A)
1. Exact name of corporation: PRI Automation, Inc.
2. Document to be corrected: Certificate of Vote of Directors Establishing a
Series of a Class of Stock
3. The above mentioned document was filed with the Secretary of the
Commonwealth on December 9, 1998.
4. Please state the inaccuracy or defect in said document.
(a) The Certificate includes three instances (one in the Vote and two in
Section 1 of Exhibit A to the Rights Agreement) in which the number
of shares of the newly established Series A Cumulative Participating
Preferred Stock are indicated to be "[250,000]."
(b) The Certificate includes three instances (one in Section 1 and two
in Section 2 of Exhibit A to the Rights Agreement) in which the date
of the Rights Agreement is indicated to be "December 7, 1998."
5. Please state corrected version of the document:
(a) Each identified reference to "[250,000]" should be replaced with
"250,000."
(b) Each identified reference to "December 7, 1998" should be replaced
with "December 9, 1998."
NOTE: THIS CORRECTION SHOULD BE SIGNED BY THE PERSON(S) REQUIRED BY LAW TO SIGN
THE ORIGINAL DOCUMENT.
SIGNED UNDER THE PENALTIES OF PERJURY, this 18th day of December, 1998,
/s/ Mitchell G. Tyson , *President
----------------------------------------------
/s/ Robert L. Birnbaum , *Assistant Clerk
----------------------------------------------
* DELETE THE INAPPLICABLE WORDS
NOTE: IF THE INACCURACY OR DEFECT TO BE CORRECTED IS NOT APPARENT ON THE FACE OF
THE DOCUMENT, MINUTES OF THE MEETING SUBSTANTIATING THE ERROR MUST BE FILED WITH
THE CERTIFICATE. ADDITIONAL INFORMATION MAY BE PROVIDED ON SEPARATE 8-1/2x11
SHEETS OF WHITE PAPER WITH A LEFT MARGIN OF AT LEAST 1 INCH.
FEDERAL IDENTIFICATION
NO. 04-2495703
-------------------
/s/ [ILLEGIBLE]
---------------
Examiner
/s/ HG
The Commonwealth of Massachusetts
William Francis Galvin
Secretary of the Commonwealth
One Ashburton Place, Boston, Massachusetts 02108-1512
CERTIFICATE OF VOTE OF DIRECTORS
ESTABLISHING A CLASS OR SERIES OF STOCK
(General Laws, Chapter 156B, Section 26)
We, Mitchell G. Tyson , *President
----------------------------------------------------------------
and Robert L. Birnbaum , *Assistant Clerk
----------------------------------------------------------
of PRI Automation, Inc.
----------------------------------------------------------------------------,
(Exact name of corporation)
located at: 805 Middlesex Turnpike, Billerica, Massachusetts 01821
-------------------------------------------------------------------,
(Street Address of corporation in Massachusetts)
do hereby certify that at a meeting of the directors of the corporation held on
November 24, 1998, the following vote establishing and designating a class or
series of stock and determining the relative rights and preferences thereof was
duly adopted.
See Continuation Sheet 2A
6
-------
P.C.
* Delete the inapplicable words.
Note: Votes for which the space provided above is not sufficient should be
provided on one side of separate 8 1/2 x 11 sheets of white paper, numbered 2A,
2B, etc., with a left margin of at least 1 inch.
CONTINUATION SHEET 2A
VOTED: That, pursuant to the authority vested in the Board of Directors of
the Corporation in accordance with the provisions of the Articles of
Organization of the Corporation, the Board of Directors hereby
designates and establishes one share of its authorized but unissued
Preferred Stock as its Special Voting Preferred Stock, par value
$0.01 per share (the "Special Voting Preferred Stock"); that such
Special Voting Preferred Stock shall have the terms set forth in
their entirety in ANNEX A attached hereto; that such terms be, and
they hereby are, approved; and that the President or any Vice
President and the Clerk or any Assistant Clerk of the Corporation
be, and they hereby are, authorized to execute a Certificate of Vote
of Directors Establishing a Class or Series of Stock (the
"Certificate of Vote of Directors") setting forth such terms in the
name of the Corporation, and to file the Certificate of Vote of
Directors with the Secretary of State of The Commonwealth of
Massachusetts and such other governmental authorities as may be
required by law.
ANNEX A
TERMS OF SPECIAL VOTING PREFERRED STOCK
1. Designation; Number of Shares. The class of Preferred Stock known as
"Special Voting Preferred Stock" shall consist of one (1) share.
2. Voting. On all matters submitted to a vote of stockholders of the
Corporation, the holder of the share of Special Voting Preferred Stock
shall be entitled at any relevant date to the number of votes determined
in accordance with a certain Voting and Exchange Trust Agreement, dated as
of March 2, 1999, by and among the Corporation, 1325949 Ontario, Inc., a
corporation organized and existing under the laws of the Province of
Ontario and a wholly owned subsidiary of the Corporation, Promis Systems
Corporation Ltd., a corporation organized and existing under the laws of
Canada ("Promis"), and Montreal Trust Company of Canada, a trust company
incorporated under the laws of Canada. Except as required by law or by the
Articles of Organization of the Corporation, the holder of the share of
Special Voting Preferred Stock and the holders of the Common Stock of the
Corporation shall vote together as a single class in the election of
directors and on all matters submitted to a vote of the stockholders of
the Corporation. In the event that the Special Voting Preferred Stock is
required by law or by the Articles of Organization of the Corporation to
vote separately as a class or series on a proposal, the holder of the
share of Special Voting Preferred Stock shall in addition to voting
separately as a class or series on such proposal, also be entitled to vote
with the holders of the Corporation's Common Stock together as a single
class.
3. Dividends. The holder of the share of Special Voting Preferred Stock shall
not be entitled to receive any dividends.
4. Liquidation. In the event of any dissolution, liquidation or winding up of
the affairs of the Corporation, whether voluntary or involuntary, the
holder of the share of Special Voting Preferred Stock shall be entitled to
be paid out of the net assets of the Corporation available for
distribution, before any distribution or payment is made upon any stock of
the Corporation ranking on liquidation junior to the Special Voting
Preferred Stock, an amount equal to $1.00, subject to equitable adjustment
in the event of stock splits, stock dividends, combinations and the like
involving the Special Voting Preferred Stock (the "Special Voting
Preferred Stock Liquidation Payment"). Upon any such dissolution,
liquidation or winding up of the affairs of the Corporation, after the
holder of the share of Special Voting Preferred Stock shall have been paid
the amount to which it shall be entitled, the remaining net assets of the
Corporation may be distributed to the holders of stock ranking on
liquidation junior to the Special Voting Preferred Stock. Whenever the
distribution provided for in this paragraph shall be paid in property
other than cash, the value of such distribution shall be the fair market
value of such property as determined in good faith by the Board of
Directors of the Corporation. Written notice of such dissolution,
liquidation or winding up of the affairs of the Corporation, stating a
payment date, the amount of the Special Voting Preferred Stock Liquidation
Payment and the place where said Special Voting Preferred Stock
Liquidation Payment shall be payable, shall be given by mail, postage
prepaid, not less than 5 days prior to the payment date stated therein, to
the holder of record of Special Voting Preferred Stock, such notice to be
addressed to such holder at its address as shown by the records of the
Corporation. For purposes hereof, the Common Stock shall rank on
liquidation junior to the
Special Voting Preferred Stock. A merger or consolidation of the
Corporation with or into any other corporation or a sale or conveyance of
all or any part of the assets of the Corporation (which shall not in fact
result in the liquidation of the Corporation and the distribution of
assets to stockholders) shall not be deemed to be a voluntary or
involuntary liquidation, dissolution or winding up of the Corporation
within the meaning of this paragraph 4.
5. Redemption. (a) The share of Special Voting Preferred Stock shall be
redeemed by the Corporation as described herein, at a price of $1.00,
subject to equitable adjustment in the event of stock splits, stock
dividends, combinations and the like involving the Special Voting
Preferred Stock (the "Redemption Price"). Such redemption shall occur
automatically and simultaneously, but only upon the issuance by the
Corporation of its Common Stock or delivery by 1325949 Ontario Inc. of the
Corporation's Common Stock for the last outstanding Exchangeable Share of
Promis ("Exchangeable Share") held by a person other than the Corporation
or any of its subsidiaries.
(b) Promptly after the issuance by the Corporation of its Common
Stock or delivery by 1325949 Ontario Inc. of the Corporation's Common
Stock for the last outstanding Exchangeable Share held by a person other
than the Corporation or any of its subsidiaries, the Corporation shall
give written notice (the "Redemption Notice") by mail, postage prepaid, to
the holder of record (at the close of business on the business day next
preceding the day on which the Redemption Notice is given) of the share of
Special Voting Preferred Stock notifying such holder of the redemption and
specifying the Redemption Price, the date on which the last outstanding
Exchangeable Share held by a person other than the Corporation or any of
its subsidiaries was acquired by the Corporation or any of its
subsidiaries (the "Redemption Date") and the place and date (not to exceed
20 days from the date such notice is given) where said Redemption Price
shall be payable. The Redemption Notice shall be addressed to such holder
at the address of the holder as shown by the records of the Corporation.
From and after the close of business on the Redemption Date, unless there
shall have been a default in the payment of the Redemption Price, all
rights of the holder of the share of Special Voting Preferred Stock
(including the right to vote as provided in paragraph 2 above) shall cease
with respect to such share (except the right to receive the Redemption
Price), and such share shall not thereafter be transferred on the books of
the Corporation or be deemed to be outstanding for any purpose whatsoever.
If the Corporation does not have funds legally available for redemption of
the share of Special Voting Preferred Stock on the Redemption Date, the
share of Special Voting Preferred Stock shall remain outstanding and
entitled to all rights and preferences provided herein. At any time
thereafter when the Corporation has legally available funds for the
redemption of such share of Special Voting Preferred Stock, such funds
will be used to redeem such share.
(c) The share of Special Voting Preferred Stock redeemed pursuant to
this paragraph 5 or otherwise acquired by the Corporation in any manner
whatsoever shall upon any such reacquisition by the Corporation be
automatically restored to the status of an authorized but unissued share
of Preferred Stock of the Corporation.
3
SIGNED UNDER THE PENALTIES OF PERJURY, this 2nd day of March, 1999.
/s/ Mitchell G. Tyson , *President,
-------------------------------------------------------------------
/s/ Robert L. Birnbaum , *Assistant Clerk.
-------------------------------------------------------------
*Delete the inapplicable words
THE COMMONWEALTH OF MASSACHUSETTS
CERTIFICATE OF VOTE OF DIRECTORS
ESTABLISHING A SERIES OF A CLASS OF STOCK
(General Laws, Chapter 156B, Section 26)
================================================================================
I hereby approve the within Certificate of Vote of Directors and, the filing fee
in the amount of $100.00 having been paid, said certificate is deemed to have
been filed with me this 2nd day of March, 1999.
Effective date:
------------------------------
SECRETARY OF
THE COMMONWEALTH
99 MAR-2 AM 8:51
/s/ William Francis Galvin
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
TO BE FILLED IN BY CORPORATION
Photocopy of document to be sent to:
Andrew J. Cordner, Esq.
----------------------------------------------------------
Foley, Hoag & Eliot LLP
One Post Office Square
----------------------------------------------------------
Boston, MA 02109
----------------------------------------------------------
Telephone: (617) 832-1000
-----------------------------------------------
FEDERAL IDENTIFICATION
NO. 04-2495703
-------------------
Fee: $250.00
/s/ BT
---------------
Examiner
The Commonwealth of Massachusetts
William Francis Galvin
Secretary of the Commonwealth
One Ashburton Place, Boston, Massachusetts 02108-1512
ARTICLES OF MERGER OF PARENT AND SUBSIDIARY CORPORATIONS
(General Laws, Chapter 156B, Section 82)
We, Mitchell G. Tyson , *President
----------------------------------------------------------------
and Robert L. Birnbaum , *Assistant Clerk
----------------------------------------------------------
of PRI Automation, Inc.
----------------------------------------------------------------------------,
(Exact name of corporation)
organized under the laws of Massachusetts and herein called the parent
corporation, certify as follows:
1. That the subsidiary corporation(s) to be merged into the parent corporation
is/are:
NAME STATE OF ORGANIZATION DATE OF ORGANIZATION
Promis Systems Corporation Delaware February 2, 1994
2. The parent corporation, at the date of the vote, owned not less than ninety
percent (90%) of the outstanding shares of each class of stock of the subsidiary
corporation or corporations with which it has voted to merge.
Item 3 below may be deleted if all the corporations are organized under the laws
of Massachusetts and if General Laws, Chapter 156B is applicable to them.
3. That in the case of each of the above named corporations, the laws of the
state of its organization, if other than Massachusetts, permit the merger herein
described, and that all action required under the laws of each such state in
connection with this merger has been duly taken.
5
-------
P.C.
* Delete the inapplicable words. In case the parent corporation is organized
under the laws of a state other than Massachusetts, these articles are to be
signed by officers having corresponding powers and duties.
4. That at a meeting of the directors of the parent corporation, the following
vote pursuant to General Laws, Chapter 156B, Section 82, Subsection (a) was duly
adopted:
See Continuation Sheet 4A.
Note: Votes, for which the space provided above is not sufficient, should be
listed on additional sheets to be numbered 4A, 4B, etc. Additional sheets must
be 8 1/2 x 11 and have a left hand margin of 1 inch. Only one side should be
used.
Continuation Sheet 4A
VOTED: That, subject to the closing of the purchase by the Corporation of
all of the outstanding capital stock of Promis Systems Corporation
in accordance with the Stock Purchase Agreement by and between the
Corporation and PRI Automation (Canada), Inc., the Corporation merge
into itself, effective as of 11:59 p.m. on September 30, 1999 (the
"Effective Time"), its wholly-owned subsidiary, Promis Systems
Corporation, pursuant to Section 253 of the Delaware General
Corporation Law and Section 82 of the Massachusetts Business
Corporation Law; and that the officers of the Corporation be, and
each of them hereby is, authorized and empowered in the name and on
behalf of the Corporation, under its corporate seal or otherwise, to
prepare, execute, deliver, file and record any and all instruments,
documents and other papers, including, without limitation, a
Delaware Certificate of Ownership and Merger and Massachusetts
Articles of Merger, and take any and all other actions, before, on
or after the Effective Time as may be necessary to effect such
merger.
5. The effective date of the merger 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:
11:59 p.m. on September 30, 1999
Section 6 below may be deleted if the parent corporation is organized under the
laws of Massachusetts.
SIGNED UNDER THE PENALTIES OF PERJURY, this 30th day of September, 1999.
/s/ Mitchell G. Tyson , *President,
-------------------------------------------------------------------
/s/ Robert L. Birnbaum , *Assistant Clerk.
-------------------------------------------------------------
* Delete the inapplicable words. In case the parent corporation is organized
under the laws of a state other than Massachusetts, these articles are to be
signed by officers having corresponding powers and duties.
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF MERGER OF PARENT AND SUBSIDIARY CORPORATIONS
(General Laws, Chapter 156B, Section 82)
SECRETARY OF
THE COMMONWEALTH
99 SEP 30 PM 3:23
================================================================================
I hereby approve the within Articles of Merger of Parent and Subsidiary
Corporations and, the filing fee in the amount of $250, having been paid, said
articles are deemed to have been filed with me this 30th day of September, 1999.
Effective date.
------------------------------
/s/ William Francis Galvin
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
TO BE FILLED IN BY CORPORATION
Photocopy of document to be sent to:
Andrew J. Cordner, Esq.
Foley, Hoag & Eliot LLP
----------------------------------------------------------
One Post Office Square
----------------------------------------------------------
Boston, MA 02109
----------------------------------------------------------
Telephone: (617) 832-1000
-----------------------------------------------
FEDERAL IDENTIFICATION
NO. 04-2495703
-------------------
/s/ JC
---------------
Examiner
N/A
---------------
Name
Approved
The Commonwealth of Massachusetts
William Francis Galvin
Secretary of the Commonwealth
One Ashburton Place, Boston, Massachusetts 02108-1512
ARTICLES OF AMENDMENT
(General Laws, Chapter 156B, Section 72)
We, Mitchell G. Tyson , *President
----------------------------------------------------------------
and Robert L. Birnbaum , *Clerk
--------------------------------------------------------------------
of PRI Automation, Inc.
----------------------------------------------------------------------------,
(Exact name of corporation)
located at: 850 Middlesex Turnpike, Billerica, MA 01821
-------------------------------------------------------------------,
(Street address of corporation in Massachusetts)
certify that these Articles of Amendment affecting articles numbered:
3
--------------------------------------------------------------------------------
(Number those articles 1, 2, 3, 4, 5 and/or 6 being amended)
of the Articles of Organization were duly adopted at a meeting held on March 10,
2000, by vote of:
Common Stock, $0.01
16,349,749 shares of par value per share of 22,780,837 shares outstanding,
---------- --------------------------- ----------
(type, class & series, if any)
shares of of shares outstanding, and
---------- --------------------------- ------
(type, class & series, if any)
shares of of shares outstanding.
---------- --------------------------- ----------
(type, class & series, if any)
C |_|
P |_|
M |_|
R.A. |_|
**being at least a majority 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:
4
---------
P.C.
* Delete the inapplicable words.
** Delete the inapplicable clause.
(1) For amendments adopted pursuant to Chapter 156B, Section 70.
(2) For amendments adopted pursuant to Chapter 156B, Section 71.
Note: If the space provided under any article or item on this form is
insufficient, additions shall be set forth on one side only of separate
8 1/2 x 11 sheets of paper with a left margin of at least 1 inch. Additions
to more than one article may be made on a single sheet so long as each
article requiring each addition is clearly indicated.
To change the number of shares and the par value (if any) of any type, class or
series of stock which the corporation is authorized to issue, fill in the
following:
The total presently authorized is:
--------------------------------------------------------------------------------
WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
--------------------------------------------------------------------------------
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
--------------------------------------------------------------------------------
Common: Common: 50,000,000 $.01
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Preferred: Preferred: 400,000 $.01
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Change the total authorized to:
--------------------------------------------------------------------------------
WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
--------------------------------------------------------------------------------
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
--------------------------------------------------------------------------------
Common: Common: 75,000,000 $.01
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Preferred: Preferred: 400,000 $.01
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
The foregoing amendment(s) will become effective when these Articles of
Amendment are filed in accordance with General Laws, Chapter 156B, Section 6
unless these articles specify, in accordance with the vote adopting the
amendment, a later effective date not more than thirty days after such filing,
in which event the amendment will become effective on such later date.
Later effective date:
-------------------------
SIGNED UNDER THE PENALTIES OF PERJURY, this 10th day of March, 2000.
/s/ Mitchell G. Tyson , *President
-------------------------------------------------------------------
/s/ Robert L. Birnbaum , *Clerk
------------------------------------------------------------------------
* Delete the inapplicable words.
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
(General Laws, Chapter 156B, Section 72)
================================================================================
I hereby approve the within Articles of Amendment and, the filing fee in the
amount of $25,000 having been paid, said articles are deemed to have been filed
with me this 28th day of March, 2000.
Effective date:
------------------------------
/s/ William Francis Galvin
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
TO BE FILLED IN BY CORPORATION
Photocopy of document to be sent to:
Robert L. Birnbaum
Foley, Hoag & Eliot LLP
----------------------------------------------------------
One Post Office Square
----------------------------------------------------------
Boston, MA 02109
----------------------------------------------------------
<Page>
FEDERAL IDENTIFICATION
NO. 04-2495703
THE COMMONWEALTH OF MASSACHUSETTS
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
One Ashburton Place, Boston, Massachusetts 02108-1512
CERTIFICATE OF VOTE OF DIRECTORS
ESTABLISHING A CLASS OR SERIES OF STOCK
(General Laws, Chapter 156B, Section 26)
We, Mitchell G. Tyson, President
and Robert L. Birnbaum, Clerk
of PRI Automation, Inc.
(EXACT NAME OF CORPORATION)
located at: 805 Middlessex Turnpike, Billerica, MA 01821
(STREET ADDRESS OF CORPORATION IN MASSACHUSETTS)
do hereby certify that at a meeting of the directors of the corporation held
on October 8, 2001, the following vote establishing and designating a class
or series of stock and determining the relative rights and preferences
thereof was duly adopted:
See Continuation Sheet 2A
* DELETE THE INAPPLICABLE WORDS
NOTE: VOTES FOR WHICH THE SPACE PROVIDED ABOVE IS NOT SUFFICIENT SHOULD BE
PROVIDED ON ONE SIDE OF SEPARATE 8-1/2x11 SHEETS OF WHITE PAPER, NUMBERED 2A,
2B, ETC. WITH A LEFT MARGIN ON AT LEAST 1 INCH.
<Page>
CONTINUATION SHEET 2A
PRI AUTOMATION, INC.
VOTED: That, pursuant to the authority vested in the Board of Directors of
the Corporation in accordance with the provisions of the Amended and
Restated Articles of Organization of the Corporation, the Board of
Directors hereby designates and establishes 10,000 shares of its
authorized but unissued Preferred Stock as its Class One
Participating Cumulative Preferred Stock, $.01 par value (the "Class
One Preferred Stock"); that such Class One Preferred Stock shall
have the terms set forth in their entirety in EXHIBIT A to the
Amendment presented to this meeting, and such terms be, and they
hereby are, approved; and that the President or any Vice President
and the Clerk or any Assistant Clerk of the Corporation be, and they
hereby are, authorized to execute a Certificate of Vote of Directors
Establishing a Class or Series of Stock (the "Certificate of Vote of
Directors") setting forth such terms in the name of the Corporation,
and to file the Certificate of Vote of Directors with the Secretary
of State of The Commonwealth of Massachusetts and such other
governmental authorities as may be required by law.
EXHIBIT A TO THE AMENDMENT
TERMS OF CLASS ONE
PARTICIPATING CUMULATIVE PREFERRED STOCK
OF
PRI AUTOMATION, INC.
Section 1. DESIGNATION AND NUMBER OF SHARES. The shares of such series
shall be designated as "Class One Participating Cumulative Preferred Stock" (the
"Class One Preferred Stock"), $.01 par value. The number of shares initially
constituting the Class One Preferred Stock shall be 10,000; PROVIDED, HOWEVER,
that, if more than a total of 10,000 shares of Class One Preferred Stock shall
be issuable upon the exercise of Rights (the "Rights") issued pursuant to the
Rights Agreement dated as of December 9, 1998, between the Corporation and State
Street Bank and Trust Company, as Rights Agent (the "Rights Agreement"), the
Board of Directors of the Corporation, pursuant to Section 26 of Chapter 156B of
the Massachusetts General Laws, shall direct by resolution or resolutions that a
certificate be properly executed, acknowledged, filed and recorded, in
accordance with the provisions of said Section 26 thereof, providing for the
total number of shares of Class One Preferred Stock authorized to be issued to
be increased (to the extent that the Articles of Organization then permit) to
the largest number of whole shares (rounded up to the nearest whole number)
issuable upon exercise of such Rights.
Section 2. DIVIDENDS OR DISTRIBUTIONS.
(a) Subject to the prior and superior rights of the holders of
shares of any other series of Preferred Stock or other class of capital stock of
the Corporation ranking prior and superior to the shares of Class One Preferred
Stock with respect to dividends, the holders of shares of the Class One
Preferred Stock shall be entitled to receive, when, as and if declared by the
Board of Directors, out of the assets of the Corporation legally available
therefor, (1) quarterly dividends payable in cash on the last day of each fiscal
quarter in each year, or such other dates as the Board of Directors of the
Corporation shall approve (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or a fraction of a share of
Class One Preferred Stock, in the amount of $1,000.00 per whole share (rounded
to the nearest cent) less the amount of all cash dividends declared on the Class
One Preferred Stock pursuant to the following clause (2) since the immediately
preceding Quarterly Dividend Payment Date or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of Class One Preferred Stock (the total of which shall not,
in any event, be less than zero) and (2) dividends payable in cash on the
payment date for each cash dividend declared on the Common Stock in an amount
per whole share (rounded to the nearest cent) equal to the Formula Number (as
hereinafter defined) then in effect times the cash dividends then to be paid on
each share of Common Stock. In addition, if the Corporation shall pay any
dividend or make any distribution on the Common Stock payable in assets,
securities or other forms of non-cash consideration (other than dividends or
distributions solely in shares of Common Stock), then, in each such case, the
Corporation shall simultaneously pay or make on each outstanding whole share of
Class One Preferred Stock a dividend or distribution in like kind equal to the
Formula Number then in effect times such dividend or distribution on each share
of the Common Stock. As used herein, the "Formula Number" shall be 100,000;
PROVIDED, HOWEVER, that if at
any time after December 9, 1998, the Corporation shall (i) declare or pay any
dividend on the Common Stock payable in shares of Common Stock or make any
distribution on the Common Stock in shares of Common Stock, (ii) subdivide
(by a stock split or otherwise) the outstanding shares of Common Stock into a
larger number of shares of Common Stock or (iii) combine (by a reverse stock
split or otherwise) the outstanding shares of Common Stock into a smaller
number of shares of Common Stock, then in each such event the Formula Number
shall be adjusted to a number determined by multiplying the Formula Number in
effect immediately prior to such event by a fraction, the numerator of which
is the number of shares of Common Stock that are outstanding immediately
after such event and the denominator of which is the number of shares of
Common Stock that are outstanding immediately prior to such event (and
rounding the result to the nearest whole number); and PROVIDED FURTHER, that,
if at any time after December 9, 1998, the Corporation shall issue any shares
of its capital stock in a merger, reclassification, or change of the
outstanding shares of Common Stock, then in each such event the Formula
Number shall be appropriately adjusted to reflect such merger,
reclassification or change so that each share of Class One Preferred Stock
continues to be the economic equivalent of a Formula Number of shares of
Common Stock prior to such merger, reclassification or change.
(b) The Corporation shall declare a dividend or distribution on the
Class One Preferred Stock as provided in Section 2(a) immediately prior to or at
the same time it declares a dividend or distribution on the Common Stock (other
than a dividend or distribution solely in shares of Common Stock); PROVIDED,
HOWEVER, that, in the event no dividend or distribution (other than a dividend
or distribution in shares of Common Stock) shall have been declared on the
Common Stock during the period between any Quarterly Dividend Payment Date and
the next subsequent Quarterly Dividend Payment Date, a dividend of $1,000.00 per
whole share on the Class One Preferred Stock shall nevertheless be payable on
such subsequent Quarterly Dividend Payment Date. The Board of Directors may fix
a record date for the determination of holders of shares of Class One Preferred
Stock entitled to receive a dividend or distribution declared thereon, which
record date shall be the same as the record date for any corresponding dividend
or distribution on the Common Stock.
(c) Dividends shall begin to accrue and be cumulative on outstanding
shares of Class One Preferred Stock from and after the Quarterly Dividend
Payment Date next preceding the date of original issue of such shares of Class
One Preferred Stock; PROVIDED, HOWEVER, that dividends on such shares which are
originally issued after the record date for the determination of holders of
shares of Class One Preferred Stock entitled to receive a quarterly dividend and
on or prior to the next succeeding Quarterly Dividend Payment Date shall begin
to accrue and be cumulative from and after such Quarterly Dividend Payment Date.
Notwithstanding the foregoing, dividends on shares of Class One Preferred Stock
which are originally issued prior to the record date for the determination of
holders of shares of Class One Preferred Stock entitled to receive a quarterly
dividend on the first Quarterly Dividend Payment Date shall be calculated as if
cumulative from and after the last day of the fiscal quarter next preceding the
date of original issuance of such shares. Accrued but unpaid dividends shall not
bear interest. Dividends paid on the shares of Class One Preferred Stock in an
amount less than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding.
<Page>
(d) So long as any shares of the Class One Preferred Stock are
outstanding, no dividends or other distributions shall be declared, paid or
distributed, or set aside for payment or distribution, on the Common Stock
unless, in each case, the dividend required by this Section 2 to be declared
on the Class One Preferred Stock shall have been declared.
(e) The holders of the shares of Class One Preferred Stock shall not
be entitled to receive any dividends or other distributions except as provided
herein.
Section 3. VOTING RIGHTS. The holders of shares of Class One Preferred
Stock shall have the following voting rights:
(a) Each holder of Class One Preferred Stock shall be entitled to a
number of votes equal to the Formula Number then in effect for each share of
Class One Preferred Stock held of record on each matter on which holders of the
Common Stock or stockholders generally are entitled to vote, multiplied by the
maximum number of votes per share which any holder of the Common Stock or
stockholders generally then have with respect to such matter (assuming any
holding period or other requirement to vote a greater number of shares is
satisfied).
(b) Except as otherwise provided herein or by applicable law, the
holders of shares of Class One Preferred Stock and the holders of shares of
Common Stock shall vote together as one class for the election of directors of
the Corporation and on all other matters submitted to a vote of stockholders of
the Corporation.
(c) If, at the time of any annual meeting of stockholders for the
election of directors, the equivalent of six quarterly dividends (whether or not
consecutive) payable on any share or shares of Class One Preferred Stock are in
default, the number of directors constituting the Board of Directors of the
Corporation shall be increased by two. In addition to voting together with the
holders of Common Stock for the election of other directors of the Corporation,
the holders of record of the Class One Preferred Stock, voting separately as a
class to the exclusion of the holders of Common Stock, shall be entitled at said
meeting of stockholders (and at each subsequent annual meeting of stockholders),
unless all dividends in arrears have been paid or declared and set apart for
payment prior thereto, to vote for the election of two directors of the
Corporation, the holders of any Class One Preferred Stock being entitled to cast
a number of votes per share of Class One Preferred Stock equal to the Formula
Number. Until the default in payments of all dividends which permitted the
election of said directors shall cease to exist, any director who shall have
been so elected pursuant to the next preceding sentence may be removed at any
time, either with or without cause, only by the affirmative vote of the holders
of the shares of Class One Preferred Stock at the time entitled to cast a
majority of the votes entitled to be cast for the election of any such director
at a special meeting of such holders called for that purpose, and any vacancy
thereby created may be filled by the vote of such holders. If and when such
default shall cease to exist, the holders of the Class One Preferred Stock shall
be divested of the foregoing special voting rights, subject to revesting in the
event of each and every subsequent like default in payments of dividends. Upon
the termination of the foregoing special voting rights, the terms of office of
all persons who may have been elected directors pursuant to said special voting
rights shall forthwith terminate, and the number of directors constituting the
Board of Directors shall be reduced by two. The voting rights granted by this
Section 3(c) shall be in
<Page>
addition to any other voting rights granted to the holders of the Class One
Preferred Stock in this Section 3.
(d) Except as provided herein, in Section 11 or by applicable law,
holders of Class One Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent they are entitled to
vote with holders of Common Stock as set forth herein) for authorizing or taking
any corporate action.
Section 4. CERTAIN RESTRICTIONS.
(a) Whenever quarterly dividends or other dividends or distributions
payable on the Class One Preferred Stock as provided in Section 2 are in
arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Class One Preferred Stock
outstanding shall have been paid in full, the Corporation shall not
(i) declare or pay dividends on, make any other distributions
on, or redeem or purchase or otherwise acquire for consideration any
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Class One Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Class
One Preferred Stock, except dividends paid ratably on the Class One
Preferred Stock and all such parity stock on which dividends are payable
or in arrears in proportion to the total amounts to which the holders of
all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Class One Preferred
Stock; PROVIDED that the Corporation may at any time redeem, purchase or
otherwise acquire shares of any such parity stock in exchange for shares
of any stock of the Corporation ranking junior (either as to dividends or
upon dissolution, liquidation or winding up) to the Class One Preferred
Stock; or
(iv) purchase or otherwise acquire for consideration any shares
of Class One Preferred Stock, or any shares of stock ranking on a parity
with the Class One Preferred Stock, except in accordance with a purchase
offer made in writing or by publication (as determined by the Board of
Directors) to all holders of such shares upon such terms as the Board of
Directors, after consideration of the respective annual dividend rates
and other relative rights and preferences of the respective series and
classes, shall determine in good faith will result in fair and equitable
treatment among the respective series or classes.
(b) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under paragraph (a) of
this Section 4, purchase or otherwise acquire such shares at such time and in
such manner.
<Page>
Section 5. LIQUIDATION RIGHTS. Upon the liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, no
distribution shall be made (1) to the holders of shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding
up) to the Class One Preferred Stock unless, prior thereto, the holders of
shares of Class One Preferred Stock shall have received an amount equal to
the accrued and unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment, plus an amount equal to the greater of
(x) $1,000.00 per whole share or (y) an aggregate amount per share equal to
the Formula Number then in effect times the aggregate amount to be
distributed per share to holders of Common Stock or (2) to the holders of
stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Class One Preferred Stock, except
distributions made ratably on the Class One Preferred Stock and all other
such parity stock in proportion to the total amounts to which the holders of
all such shares are entitled upon such liquidation, dissolution or winding up.
Section 6. 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 or any other property, then in any such case the then
outstanding shares of Class One Preferred Stock shall at the same time be
similarly exchanged or changed into an amount per share equal to the Formula
Number then in effect times the aggregate amount of stock, securities, cash or
any other property (payable in kind), as the case may be, into which or for
which each share of Common Stock is exchanged or changed. In the event both this
Section 6 and Section 2 appear to apply to a transaction, this Section 6 will
control.
Section 7. NO REDEMPTION; NO SINKING FUND.
(a) The shares of Class One Preferred Stock shall not be subject to
redemption by the Corporation or at the option of any holder of Class One
Preferred Stock; PROVIDED, HOWEVER, that the Corporation may purchase or
otherwise acquire outstanding shares of Class One Preferred Stock in the open
market or by offer to any holder or holders of shares of Class One Preferred
Stock.
(b) The shares of Class One Preferred Stock shall not be subject to
or entitled to the operation of a retirement or sinking fund.
Section 8. RANKING. The Class One Preferred Stock shall rank junior to
all other classes and series of Preferred Stock of the Corporation, unless the
Board of Directors shall specifically determine otherwise in fixing the powers,
preferences and relative, participating, optional and other special rights of
the shares of such other class or series and the qualifications, limitations and
restrictions thereof.
Section 9. FRACTIONAL SHARES. The Class One Preferred Stock shall be
issuable upon exercise of the Rights issued pursuant to the Rights Agreement in
whole shares or in any fraction of a share that is one one-hundred-thousandth
(1/100,000th) of a share or any integral multiple of such fraction which shall
entitle the holder, in proportion to such holder's fractional shares, to receive
dividends, exercise voting rights, participate in distributions and to have the
benefit of all other rights of holders of Class One Preferred Stock. In lieu of
fractional shares, the
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Corporation, prior to the first issuance of a share or a fraction of a share
of Class One Preferred Stock, may elect (1) to make a cash payment as
provided in the Rights Agreement for fractions of a share other than one
one-hundred-thousandth (1/100,000th) of a share or any integral multiple
thereof or (2) to issue depository receipts evidencing such authorized
fraction of a share of Class One Preferred Stock pursuant to an appropriate
agreement between the Corporation and a depository selected by the
Corporation; PROVIDED that such agreement shall provide that the holders of
such depository receipts shall have all the rights, privileges and
preferences to which they are entitled as holders of the Class One Preferred
Stock.
Section 10. REACQUIRED SHARES. Any shares of Class One Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and canceled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
Preferred Stock, without designation as to series until such shares are once
more designated as part of a particular series by the Board of Directors
pursuant to the provisions of Article 4 of the Restated Articles of
Organization.
Section 11. AMENDMENT. None of the powers, preferences and relative,
participating, optional and other special rights of the Class One Preferred
Stock as provided herein or in the Articles of Organization shall be amended in
any manner which would alter or change the powers, preferences, rights or
privileges of the holders of Class One Preferred Stock so as to affect them
adversely without the affirmative vote of the holders of at least 66-2/3% of the
outstanding shares of Class One Preferred Stock, voting as a separate class;
PROVIDED, HOWEVER, that no such amendment approved by the holders of at least
66-2/3% of the outstanding shares of Class One Preferred Stock shall be deemed
to apply to the powers, preferences, rights or privileges of any holder of
shares of Class One Preferred Stock originally issued upon exercise of the
Rights after the time of such approval without the approval of such holder.
* * * * *
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SIGNED UNDER THE PENALTIES OF PERJURY, this 22nd day of October, 2001.
/S/ MITCHELL G. TYSON , President
--------------------------------
Mitchell G. Tyson
/S/ ROBERT L. BIRNBAUM , Clerk
---------------------------------
Robert L. Birnbaum
THE COMMONWEALTH OF MASSACHUSETTS
CERTIFICATE OF VOTE OF DIRECTORS
ESTABLISHING A SERIES OF A CLASS OF STOCK
(General Laws, Chapter 156B, Section 26)
==============================================
I hereby approve the within Certificate of Vote
of Directors and, the filing fee in the amount
of $100 having been paid, said certificate is
deemed to have been filed with me this 23rd day
of October, 2001.
EFFECTIVE DATE:
-------------------------------
/S/ WILLIAM FRANCIS GALVIN
----------------------------
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
TO BE FILLED IN BY CORPORATION
Photocopy of document to be sent to:
TO:
Robert L. Birnbaum
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, MA 02109
Telephone (617) 832-1000