Exhibit 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
GUNTHER INTERNATIONAL LTD.
GUNTHER INTERNATIONAL LTD., a corporation incorporated under the
General Corporation Law of Delaware, hereby amends and restates its Certificate
of Incorporation, which was originally filed with the Secretary of State on
March 22, 1978, so that the same shall read, in its entirety, as follows:
ARTICLE I
Name
The name of the Corporation is:
GUNTHER INTERNATIONAL LTD.
ARTICLE II
Purpose
The purpose for which the Corporation is organized is to engage in any
lawful act or activity for which corporations may be organized under the General
Corporation Law of Delaware.
ARTICLE III
Capital Stock
The total number of shares of all classes of stock which the
Corporation has authority to issue is Sixteen Million Five Hundred One Thousand
(16,501,000) consisting of (i) Sixteen Million (16,000,000) shares of Common
Stock, par value $.001 per share (the "Common Stock"), (ii) Five Hundred (500)
shares of Series B Common Stock, par value $.001 per share (the "Series B Common
Stock"), (iii) Five Hundred Thousand (500,000) shares of Preferred Stock, par
value $.001 per share (the "Preferred Stock"), and (iv) Five Hundred (500)
shares of Class B Senior Non-Convertible Preferred Stock, par value $.001I per
share (the "Class B Preferred Stock"). The number of authorized shams of any
such class or classes may be increased or decreased (but not below the number of
shares then outstanding) by the affirmative vote of the holders of a majority of
the outstanding shares of the Corporation on the basis specified in Part 1,
Section 2 of this Article III.
PART I. COMMON STOCK AND SERIES B COMMON STOCK
Section I
Designation
There is hereby created a class of Common Stock, $.001 par value per
share, designated and known as "Series B Common Stock". The number of authorized
shares constituting such class shall be Five Hundred (500).
Section 2
Voting Rights
The holders of shares of Common Stock and of Series B Common Stock
shall be entitled to one vote for each share so held with respect to each matter
voted on by the shareholders of the Corporation, provided, however, that (i)
until five years from the closing of the initial public offering of the
Corporation's securities, the holders of Series B Common Stock, voting
separately as a class, will be entitled to elect that number of directors equal
to one more than one half of the total number of directors comprising the Board
of Directors of the Corporation, and (ii) the approval of a majority of the
outstanding Series B Common Stock voting separately as a class shall be required
as to any matters proposed for stockholder approval to amend, modify or
terminate the voting rights of Series B Common Stock or to
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create any other class or series of Capital Stock with preferential, senior or
superior voting rights.
Section 3
Liquidation Rights
Subject to the prior and superior right of the holders of Preferred
Stock or Class B Preferred Stock, upon any liquidation, dissolution or winding
up of the affairs of the Corporation, the holders of Common Stock and the
holders of Series B Common Stock shall be entitled, on an equal basis, to
receive all remaining assets of the Corporation as hereinafter provided: the
holders of Series B Common Stock shall be entitled to receive the amount of
$.001 per share of Series B Common Stock held, and the holders of Common Stock
shall be entitled to divide the remaining assets ratably, on the basis of the
number of shares of Common Stock held by each of them.
Section 4
Dividends
Dividends may be paid on the Common Stock as and when declared by the
Board of Directors, subject, however to the prior and superior rights of the
holders of Preferred Stock. Dividends shall not be paid on the Series B Common
Stock.
Section 5
Conversion of Series B Common
Each outstanding share of Series B Common Stock will be converted into
one share of Common Stock on January 1, 1999, or prior to January 1, 1999 (i) at
the option of the holder, (ii) in the event of a transfer of the shares to
anyone other than to the initial shareholders (the "Initial Shareholders") of
the initial holder of Series B Common Stock (the "Initial Holder"), or (iii) in
the event that more than 50% of the outstanding voting securities of the Initial
Holder no longer is owned by the Initial Shareholders.
PART II. THE PREFERRED STOCK
The rights, preferences, privileges and restrictions granted to and
imposed upon each class of the Preferred Stock are as follows:
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A. PREFERRED STOCK
Shares of Preferred Stock may be issued from time to time in one or
more series, and the Board of Directors of the Corporation is hereby authorized,
subject to the limitations provided by law, to establish and designate one or
more series of Preferred Stock, to fix the number of shares constituting each
series, and to fix the designation, powers, preferences and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions thereof, of each series and the variations and the relative
rights, preferences and limitations as between series, and to increase and to
decrease the number of shares constituting each series. The authority of the
Board of Directors of the Corporation with respect to each series shall include,
but shall not be limited to, the authority to determine the following:
(i) The designation of such series, which may be by distinguishing
number or letter.
(ii) The number of shares initially constituting such series.
(iii) The increase, and the decrease to a number not less than the
number of the then outstanding shares of such series, of the
number of shares constituting such series theretofore fixed.
(iv) The rate or rates, and the conditions upon and the times at
which dividends on the shares of such series shall be paid,
the preference or relation which such dividends shall bear to
the dividends payable on any other class or classes or on any
other series of stock of the Corporation, and whether or not
such dividends shall be cumulative, and, if such dividends
shall be cumulative, the date or dates from and after which
they shall accumulate.
(v) Whether or not the shares of such series shall be redeemable
and, if such shares shall be redeemable, the terms and
conditions of such redemption, including, but not limited to,
the date or dates upon or after which such shares shall be
redeemable and the amount per share which shall be, payable
upon such redemption, which amount may vary under different
conditions and at different redemption dates.
(vi) The rights to which the holders of the shares of such series
shall be entitled upon the voluntary or involuntary
liquidation, dissolution or winding up of, or upon any
distribution of the assets of, the Corporation, which rights
may be different in the case of a voluntary liquidation,
dissolution or winding up than in the case of such an
involuntary event.
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(vii) Whether or not the shares of such series shall have voting
rights, in addition to the voting rights provided by law and,
if such shares shall have such voting rights, the terms and
conditions thereof, including, but not limited to, the right
of the holders of such shares to vote as a separate class
either alone or with the holders of shares of one or more
other series of Preferred Stock and the right to have more
than one vote per share.
(viii) Whether or not a sinking or a purchase fund shall be provided
for the redemption or purchase of the shares of such series
and, if such a sinking fund or purchase fund shall be
provided, the terms and conditions thereof.
(ix) Whether or not the shares of such series shall be convertible
into, or exchangeable for, shares of any other class or
classes or any other series of the same or any other class or
classes of stock or any other security of the Corporation or
any other entity and, if provision be made for conversion or
exchange, the terms and conditions of conversion or exchange,
including, but not limited to, any provision for the
adjustment of the conversion or exchange rate or price.
(x) Any other relative rights, preferences and limitations.
B. THE CLASS B PREFERRED STOCK
Section 1
Designation
There is hereby created a class of Preferred Stock designated and known
as "Class B Senior Non-Convertible Preferred Stock". The number of authorized
shares constituting such class shall be five hundred (500), and such number of
authorized shares shall not be changed without the consent of the holder or
holders of all outstanding shares of Class B Senior Non-Convertible Preferred
Stock.
Section 2
Liquidation Rights
(a) Liquidation. In the event of any liquidation, dissolution or
winding up of the affairs of the Corporation, each holder of shares of Class B
Preferred stock shall be entitled to receive, prior and in preference to any
distribution of any of the assets or surplus funds of the Corporation to the
holders of any class or series of Preferred Stock ranking junior to the Class
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B Preferred Stock, or the Common Stock of the Corporation, by reason of their
ownership thereof, $1,000.00 per shares.
(b) Pro Rata Distribution. If the assets or surplus funds to be
distributed to the holders of the Class B Preferred Stock under subparagraph (a)
of this Section 2 are insufficient to permit the payment to such holders of
their full preferential amount, the assets and surplus funds legally available
for distribution shall be distributed ratably among the holders of the Class B
Preferred Stock in proportion to the full preferential amount each such holder
is otherwise entitled to receive.
(c) Class B Preferred Stock Priority. All of the preferential
amounts to be paid to the holders of the Class B Preferred Stock under this
Section 2 shall be paid or set apart for payment before the payment or setting
apart for payment of any amount for, or the distribution of any assets of the
Corporation to, the holders of the any other class or series of Preferred Stock
which is junior to the Class B Preferred Stock or the holders of the Common
Stock or Series B Common Stock in connection with such liquidation, dissolution
or winding up.
Section 3
Redemption
Upon a Redemption Event (as hereinafter defined), each share of Class B
Preferred Stock shall be redeemed at a price of $1,000,000 per share (the
"Redemption Price"), to the extent the Corporation has funds legally available
under the Delaware Stock Corporation Act. The term "Redemption Event" as used
herein shall mean the first to occur of:
(a) six (6) months after the Corporation completes a sale
of its shares which is registered under the Securities Act of 1933, as
amended,
(b) three (3) years after the date on which the
Corporation completes a sale of shares of Class A Preferred Stock for
an aggregate purchase price of $1,500,000.00 or more,
(c) a conveyance of all or substantially all of the
capital stock or assets of the Corporation,
(d) a merger of the Corporation with or into another
corporation (unless, upon consummation thereof, the holders of voting
securities of the Corporation own directly or indirectly greater than
fifty percent (50%) of the voting power to elect directors of the
surviving or acquiring corporation), or
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(e) six (6) months after the Corporation is required to
file reports pursuant to Section 12 of the Securities Exchange Act of
1934, as amended.
The Corporation shall give notice to each holder of Class B Preferred
Stock upon the occurrence of a Redemption Event. Each holder shall surrender his
certificate for the Class B Preferred Stock promptly following the receipt of
such notice. The Corporation shall pay the Redemption Price in three equal
installments due on the third, sixth and ninth months following the Redemption
Event.
If sufficient funds are not legally available to redeem all of the
shares of Class B Preferred Stock then due to be redeemed, the number of shares
to be redeemed from each holder shall be determined by multiplying such amount
held by each holder by a fraction, the numerator of which is the aggregate
number of shares which may legally be redeemed on such redemption date and the
denominator of which is the aggregate number of shares held by all holders on
such redemption date. Any and all unredeemed shares shall be carried forward and
redeemed to the full extent of funds the Corporation has legally available
therefor at or a later date. The shares of Class B Preferred Stock which are
subject to redemption but which have not been redeemed and as to which the
Redemption Price is not paid or set aside due to insufficient legally available
funds shall continue to be entitled to the dividend, and other rights,
preferences and privileges of the Class B Preferred Stock until such shares have
been redeemed and the Redemption Price has been paid or otherwise set aside with
respect thereto.
The Corporation shall, to the fullest extent permitted by law, do all
things necessary to redeem the Class B Preferred Stock and make the payment
therefor required by this Section 3.
Section 4
Credits; Special Redemption
The Corporation has entered into a Development Agreement effective as
of April 9, 1987 (as amended from time to time, the "Development Agreement")
with Connecticut Innovations, Inc. ("CII"), a copy of which is on file at the
offices of the Corporation. The Development Agreement provides that amounts paid
to the holders of Class B Preferred stock on account of the Class B Preferred
Stock shall be credited against the Corporation's obligations to CII under the
Development Agreement. Notwithstanding any other provision hereof, the
Corporation's obligations to the holders of the Class B Preferred Stock shall be
limited to the amount of the Corporation's obligations to CII outstanding at
such time under the Development Agreement. At such time that the Corporation has
no further obligations to CII under the Development Agreement then, without any
further act or deed, the Corporation may redeem all of the shares of the Class B
Preferred Stock then outstanding for an aggregate purchase price of $1.00, such
redemption to be effective upon the date the Corporation gives such notice.
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Section 5
Miscellaneous
The holders of Class B Preferred stock shall have no right to dividends
nor, except as required by applicable law, to vote upon any matter submitted to
stockholders for a vote.
C. RESIDUAL RIGHTS
All rights accruing to the outstanding shares of capital stock of the
Corporation not expressly provided for to the contrary herein shall be vested in
the Common Stock.
ARTICLE IV
Registered Office and Agent
The address of the Corporation's registered office in the State of
Delaware is 32 Loockerman Square, Suite L-100, in the City of Dover, County of
Kent. The Corporation's registered agent at such address it The Prentice-Hall
Corporation System, Inc.
ARTICLE V
Perpetual Existence
The Corporation is to have perpetual existence.
ARTICLE VI
Board of Directors
Section I
Management
The business and affairs of the corporation shall be managed by the
board of directors.
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Section 2
No Ballot
The directors need not be elected by written ballot unless the Bylaws
of the corporation shall so provide,
Section 3
Indemnification and Liability
To the fullest extent permitted by Delaware General Corporation Law as
the same exists or may hereafter be amended, a director of this corporation
shall be indemnified by the corporation and shall not be personally liable to
the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director.
ARTICLE VII
Meetings; Books
Meetings of stockholders may be held within or without the State of
Delaware, as amy be designated from time to time by the Board of Directors or in
the Bylaws. The books of the corporation may be kept (subject to any provisions
contained in the statutes) outside the State. of Delaware at such place or
places as may be designated from time to time by the Board of Directors or in
the Bylaws of the Corporation.
ARTICLE VIII
Bylaws
In furtherance and not in limitation of the powers conferred by the
laws of the State of Delaware, the board of directors of the Corporation is
expressly authorized to make, alter or repeal the Bylaws of the Corporation.
ARTICLE IX
Compromise or Arrangement
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Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of section 291 of Title 8 of the Delaware Core or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this Corporation , as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of this creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders of class of stockholders, of this Corporation, as the case may be,
an also on this Corporation.
ARTICLE X
Reservation
The Corporation reserves the right to amend or repeal any provision
contained in this Restated Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon a stockholder
herein are granted subject to this reservation.
Adoption
This Restated Certificate of Incorporation has been duly adopted by the
Board of Directors of the Corporation and adopted by the written consent of the
Stockholders of the Corporation in accordance with Section 228 of the Delaware
General Corporation Law and in compliance with the provisions of Section 242 and
245 of the Delaware General Corporation Law, written notice of such action
having been given in accordance with Section 228(d) of such Law.
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IN WITNESS WHEREOF, GUNTHER INTERNATIONAL LTD., has caused this
certificate to be signed by its president and its seal to be affixed hereto and
attested to by its Secretary this 29th day of December, 1993.
GUNTHER INTERNATIONAL LTD.
/s/ William H. Gunther III
-------------------------------------
President
William H. Gunther III
[Seal]
ATTEST:
/s/ Michael M. Vehlies
- ------------------------------------
Michael M. Vehlies
Secretary of the Corporation
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