Exhibit 3.2
Form CD-26-5m-8-83
THE COMMONWEALTH OF MASSACHUSETTS
OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE
MICHAEL JOSEPH CONNOLLY, Secretary
ONE ASHBURTON PLACE, BOSTON, MASS. 02108
FEDERAL IDENTIFICATION
NO. 04-2906463
-----------------
CERTIFICATE OF VOTE OF DIRECTORS ESTABLISHING
A SERIES OF A CLASS OF STOCK
General Laws, Chapter 156B, Section 26
---------
We, John F. Geraghty , Vice President, and
Douglas F. Flood , Clerk of
FTP Software, Inc.
located at 100 Brickstone Square, Andover, MA 01810
do hereby certify that at a meeting of the directors of the corporation held on
December 1, 1995, 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 Sheets numbered 2A-2G
NOTE: Votes for which the space provided above is not sufficient should be set
out on continuation sheets to be numbered 2A, 2B, etc. Continuation
sheets must have a left-hand margin 1 inch wide for binding and shall be
8 1/2" x 11". Only one side should be used.
============
CERTIFICATE OF DESIGNATION, PREFERENCES AND
RIGHTS OF JUNIOR
PREFERRED STOCK
of
FTP SOFTWARE, INC.
Pursuant to Chapter 156B Section 26 of the
Massachusetts Business Corporation Law
We, John F. Geraghty, Vice President, and Douglas F. Flood, Clerk, of FTP
Software, Inc., a corporation organized and existing under the Massachusetts
Business Corporation Law, in accordance with the provisions of Chapter 156B
Section 26 thereof (the "Corporation"), DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors (the
"Board of Directors") by the Restated Articles of Organization of the
Corporation, the Board of Directors on December 1, 1995 adopted a vote providing
for the authorization of a series of Preferred Stock, as follows:
RESOLVED, that pursuant to the authority vested in the Board of Directors
of this Corporation in accordance with the provisions of its Restated
Articles of Organization, a series of preferred stock of the Corporation be
and it hereby is created, and that the designation and amount thereof and
the voting powers, preferences and relative, participating, optional and
other special rights of the shares of such series, and the qualifications,
limitations or restrictions thereof are as follows:
Section 1. Designation and Amount. The shares of such series shall be
----------------------
designated as "Junior Preferred Stock" (the "Junior Stock")
and the number of shares constituting such series shall be
500,000. The number of shares of Junior Stock may be increased
or decreased by a vote duly adopted by the Board of Directors,
but may not be decreased below the number of shares of Junior
Stock then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or
warrants or upon conversion of any outstanding securities
convertible into Junior Stock.
Section 2. Dividends and Distributions.
a. Subject to the prior and superior rights of the holders of any
shares of any series of preferred stock ranking prior and
superior to the shares of Junior Stock with respect to
dividends, the holders of shares of Junior
-2-
Stock shall be entitled to receive, when, as and if declared
by the Board of Directors out of funds legally available for
the purpose, quarterly dividends payable in cash on the last
day of March, June, September and December in each year (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 fraction
of a share of Junior Stock, in an amount per share (rounded to
the nearest cent) equal to the greater of (a) $1.00 or (b)
subject to the provision for adjustment set forth in Section 8
hereof, 100 times the aggregate per share amount of all cash
dividends, and 100 times the aggregate per share amount
(payable in kind) of all non-cash dividends or other
distributions, other than a dividend payable in shares of
Common Stock, par value $.01 per share, of the Corporation
(the "Common Stock") or a subdivision of the outstanding
shares of Common Stock (by reclassification or otherwise),
declared on the Common Stock 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 Junior Stock.
b. The Corporation shall declare a dividend or distribution on
the Junior Stock as provided in paragraph (a) of this Section
2 immediately after it declares a dividend or distribution on
the Common Stock (other than a dividend payable in shares of
or a subdivision with respect to Common Stock); provided,
--------
however, that, in the event no dividend or distribution shall
-------
have been declared on the Common Stock during the period
between any Quarterly Dividend Payment Date, a dividend of
$1.00 per share on the Junior Stock shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date.
c. Dividends shall begin to accrue and be cumulative on
outstanding shares of Junior Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares
of Junior Stock, unless the date of issue of such shares is
prior to the record date for the first Quarterly Dividend
Payment Date, in which case dividends on such shares shall
begin to accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment Date
on is a date after the record date for the determination of
holders of shares of Junior Stock entitled to receive a
quarterly dividend and before such Quarterly Dividend Payment
Date, in either of which events such dividends shall be in to
accrue and be cumulative from such Quarterly Dividend Payment
Date. Accrued but unpaid dividends shall not bear interest.
Dividends paid on the shares of Junior Stock in an amount less
than the total amount of such dividends at the time accrued
and payable
-3-
on such shares shall be allocated pro rata on a share-by-share
basis among all such shares at the time outstanding. The Board
of Directors may fix a record date for the determination of
holders of shares of Junior Stock entitled to receive payment
of a dividend or distribution declared thereon, which record
date shall be no more than 60 days prior to the date fixed for
the payment thereof.
Section 3. Voting Rights. The holders of shares of Junior Stock shall
-------------
have the following voting rights:
a. Subject to the provision for adjustment set forth in Section 8
hereof, each share of Junior Stock shall entitle the holder thereof
to one hundred votes on all matters submitted to a vote of the
stockholders of the Corporation.
b. Except as otherwise provided herein or required by applicable law,
the holders of shares of Junior Stock and the holders of shares of
Common Stock shall vote together as one class on all matters
submitted to a vote of stockholders of the Corporation.
c. Except as set forth herein or required by applicable law, holders
of Junior 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 taking any corporate action.
Section 4. Certain Restrictions
--------------------
a. Whenever quarterly dividends or other dividends or distributions
payable on the Junior 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 Junior 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
Junior Stock;
ii. declare or pay dividends on or make any other
distributions on any shares of stock ranking on a
-4-
parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Junior Stock,
except dividends paid ratably on the Junior 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 Junior Stock,
provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any
such parity stock (A) 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 Junior Stock, or (B) in
accordance with subparagraph (iv) of this Section
4(a); or
iv. redeem or purchase or otherwise acquire for
consideration any shares of Junior Stock, or any
shares of stock ranking on a parity with the Junior
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 the
outstanding shares of such stock 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. Reacquired Shares. Any shares of Junior Stock redeemed, purchased
-----------------
or otherwise acquired by the Corporation in any manner whatsoever
shall be
-5-
retired and cancelled promptly after the acquisition thereof. All
such shares shall upon their cancellation become authorized but
unissued shares of Preferred Stock and may be reissued as part of a
new series of preferred stock to be created by vote or votes of the
Board of Directors, subject to the conditions and restrictions on
issuance set forth herein.
Section 6. Liquidation, Dissolution or Winding Up.
--------------------------------------
a. Upon any liquidation (voluntary or otherwise), dissolution or
winding up of the Corporation, no distribution shall be made to the
holders of shares of Common Stock or any other stock of the
Corporation ranking junior (upon liquidation, dissolution or winding
up) to the Junior Stock unless, prior thereto, the holders of shares
of Junior Stock shall have received $100.00 per share plus an amount
equal to all accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such distribution (the
"Junior Liquidation Preference"). Following the payment of the full
amount of the Junior Liquidation Preference, no additional
distributions shall be made to the holders of shares of Junior Stock
unless, prior thereto, the holders of shares of Common Stock (which
term shall include, for the purposes only of this Section 6, any
series of the Corporation's Preferred Stock ranking on a parity with
the Common Stock upon liquidation, dissolution or winding up) shall
have received an amount per share (the "Common Adjustment") equal to
the quotient obtained by dividing the Junior Liquidation Preference
by 100 (as appropriately adjusted as set forth in Section 8 hereof
to reflect such events as stock splits, stock dividends and
recapitalizations with respect to the Common Stock; such number in
this clause (ii), as the same may be adjusted from time to time, is
hereinafter referred to as the "Adjustment Number"). In the event,
however, that there are not sufficient assets available to permit
payment in full of the Common Adjustment, then any remaining assets
shall be distributed ratably to the holders of Common Stock.
Following the payment of the full amount of the Junior Liquidation
Preference and the Common Adjustment in respect of all outstanding
shares of Junior Stock and Common Stock, respectively, holders of
shares of Junior Stock and holders of shares of Common Stock shall
receive their ratable and proportionate share of any remaining
assets to be distributed in the ratio of the Adjustment Number to
one (1) with respect to such Junior Stock and Common Stock, on a per
share basis, respectively.
b. In the event, however, that there are not sufficient assets
available to permit payment in full of the Junior Liquidation
Preference and the liquidation preferences of all other series of
Preferred Stock, if any, which rank on a parity with the Junior
Stock, then any remaining assets shall be distributed ratably to the
holders of the Junior Stock and the holders of such parity stock in
proportion to their respective liquidation preferences.
-6-
c. None of the merger or consolidation of the Corporation into or with
any other entity, the sale of all or substantially all of the
property and assets of the Corporation or the distribution to the
stockholders of the Corporation of all or substantially all of the
consideration for such sale, unless such consideration (apart from
the assumption of liabilities) or the net proceeds thereof consists
substantially entirely of cash, shall be deemed to be a liquidation,
dissolution or winding up within the meaning of this Section 6.
d. Each share of Junior Stock shall stand on a parity with each other
share of Junior Stock or any other series of the same class of
preferred stock upon voluntary or involuntary liquidation,
dissolution or distribution of assets or winding up of the
Corporation.
Section 7. Consolidation, Merger, etc. In the case the Corporation shall enter
---------------------------
into any consolidation, merger, combination or other transaction in
which the outstanding shares of Common Stock are exchanged for or
changed into other stock or securities, cash and/or any other
property, then in any such case the outstanding shares of Junior
Stock shall at the same time be similarly exchanged or changed in an
amount per share (subject to the provision for adjustment set forth
in Section 8 hereof) equal to 100 times the aggregate amount of
stock, securities, cash and/or any other property (payable in kind),
as the case may be, into which or for which each share of Common
Stock is changed or exchanged.
Section 8. Certain Adjustments. In the event the Corporation shall at any time
-------------------
declare or pay any dividend on Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in
shares of Common Stock) into a greater or lesser number of shares of
Common Stock, then, in each such case, the amounts set forth in
Sections 2(a) and (b), 3(a), 6(a) and 7 hereof with respect to the
multiple of cash and non-cash dividends, votes, the Junior
Liquidation Preference and an aggregate amount of stock, securities,
cash and/or other property referred to in Section 7 hereof, shall be
adjusted by multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately
prior to such event.
Section 9. Ranking. The Junior Stock shall rank pari passu with (or if
------- ---- -----
determined by the Board of Directors in any vote establishing any
other series of preferred stock, either senior and prior in
preference to, or junior and subordinate to, as the case may be)
each other series of preferred stock with respect to dividends
and/or preference upon liquidation, dissolution or winding up.
-7-
Section 10. Redemption. The shares of Junior Stock may be purchased by the
----------
Corporation at such times and on such terms as may be agreed to
between the Corporation and the redeeming stockholder, subject to
any limitations which may be imposed by law or the Restated
Articles of Organization of the Corporation.
Section 11. Amendment. The Restated Articles of Organization of the
---------
Corporation, shall not be amended in any manner which would
materially alter or change the powers, preferences or special
rights of the Junior Stock so as to affect them adversely without
the affirmative vote of the holders of two-thirds or more of the
outstanding shares of Junior Stock, voting together as a single
class.
Section 12. Fractional Shares. Junior Stock may be issued in fractions of a
-----------------
share which shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights, receive
dividends, participate in distributions and to have the benefit of
all other rights of holders of Junior Stock.
IN WITNESS WHEREOF, this Certificate of Designation was executed on behalf
of the Corporation by its Vice President and attested by its Clerk on December
11, 1995.
By: /s/ John F. Geraghty
----------------------------------------
Vice President
Attest:
By: /s/ Douglas F. Flood
---------------------------------
Clerk
[SEAL]
-8-
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto
signed our names this 11th day of December in the year 1995.
/s/ John F. Geraghty
----------------------------------------------
Vice President
/s/ Douglas F. Flood
----------------------------------------------
Clerk
-9-
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 and, the filing fee
in the amount of $100.00 having been paid, said certificate is
hereby filed this ___ day of December 1995.
MICHAEL JOSEPH CONNOLLY
Secretary of State
TO BE FILED IN BY CORPORATION
Photo Copy of Certificate to be Sent
TO:
David C. Chapin
Ropes & Gray
One International Place
Boston, MA 02110
Telephone: 617-951-7000
-10-