CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION OF
BASE TEN SYSTEMS, INC.
Base Ten Systems, Inc., a New Jersey corporation, to amend its
Certificate of Incorporation in accordance with Sections 14A:9-2(4) and 14A:7 et
seq. of the New Jersey Business Corporation Act, hereby certifies:
FIRST: The name of the corporation is Base Ten Systems, Inc.
SECOND: Article 6(a) of the Certificate of Incorporation of the
corporation is amended to read in its entirety, as follows:
"(a) This corporation is authorized to issue three classes of shares of
stock to be designated "Class A Common," "Class B Common," and
"Preferred." The total number of shares that this corporation is
authorized to issue is 42,999,500 and the aggregate par value of all
such shares is $42,999,500. Forty million of the shares shall be Class
A Common shares of a par value of $1.00 each. Two million of the shares
shall be Class B Common shares of a par value of $1.00 each. Nine
hundred ninety-nine thousand five hundred of the shares shall be
Preferred shares of a par value of $1.00 each."
THIRD: Article 6(c) of the Certificate of Incorporation of the
corporation is amended to read in its entirety, as follows:
"(c) Except as set forth in this Article 6(c), the Class A Common
shares and Class B Common shares shall be identical in all respects and
shall have equal rights and privileges.
A. Dividends and Distributions
(1) Subject to rights of the Preferred shares granted pursuant to this
Certificate of Incorporation, the corporation may pay dividends to
holders of Class A Common shares and Class B Common shares, as a single
class. If a dividend is paid, the same amount shall be paid in respect
of each outstanding Class A or Class B Common share.
(2) If at any time a distribution is to be paid in Class A Common
shares or Class B Common shares (a "share distribution"), only Class A
Common shares may be paid to holders of Class A Common shares and only
Class B Common shares may be paid to holders of Class B Common shares.
Whenever a share distribution is paid, the same number of shares shall
be paid in respect of each outstanding Class A or Class B Common share.
The corporation shall not combine or subdivide shares of either of such
classes without at the same time making a proportionate combination or
subdivision of shares of the other of such classes.
B. Voting.
(1) The holders of Class A and Class B Common shares shall in all
matters vote together as a single class (subject to voting rights that
may be granted to any holders of Preferred shares pursuant to Article
6(c) of this Certificate of Incorporation), the holders of Class A
Common shares and Class B Common shares are entitled to one vote for
each share. The directors of the corporation elected by the holders of
Class A Common shares and by the holders of Class B Common shares shall
be considered as having been elected by the Class A Common shares and
the Class B Common shares voting together as a single class
notwithstanding that prior to the effective date of the Amendment to
the Certificate of Incorporation inserting this sentence, the directors
may have been elected by a separate class.
(2) The holders of Class A Common shares and Class B Common shares,
voting as a single class, shall be entitled to vote as a separate class
on the removal, for cause, of any director (subject to voting rights of
Preferred shares granted pursuant to Article 6(c) of this Certificate
of Incorporation).
(3) Any vacancy in the office of a director may be filled by a vote of
holders of shares entitled to vote (subject to voting rights of the
Preferred shares granted pursuant to Article 6(c) of this Certificate
of Incorporation) and, in the absence of a stockholder vote, the
vacancy may be filled by the remaining directors as provided in the
By-laws. Any director elected by the Board of Directors to fill a
vacancy shall serve the same remaining term as that of his predecessor
and until his or her successor has been chosen and has qualified. If
permitted by the By-laws, the Board of Directors may increase the
number of directors and any vacancies so created may be filled by the
Board of Directors.
(4) The holders of the Class A Common shares and the holders of the
Class B Common shares shall be entitled to vote as separate classes on
such other matters as may be required by law or this Certificate of
Incorporation to be submitted to such holders voting as separate
classes.
C. Conversion. Each holder of record of Class B Common shares may at
any time or from time to time, in such holder's sole discretion and at
such holder's option, convert any whole number of all of such holder's
Class B Common shares into fully paid and non-assessable Class A Common
shares at the rate (subject to adjustment as hereinafter provided) of
one and one-half Class A Common share for each Class B Common share
surrendered for conversion. Any such conversion may be effected by any
holder of Class B Common shares surrendering such holder's certificate
or certificates for the Class B Common shares to be converted, duly
endorsed, at the office of the corporation or any transfer agent for
the Class B Common shares, together with a written notice to the
corporation at such office that such holder elects to convert all or a
specified number of Class B Common shares and stating the name or names
in which such holder desires the certificate or certificates for such
Class A Common shares to be issued. Promptly thereafter, the
corporation shall issue and deliver to such holder or such holder's
nominee or nominees, a certificate or certificates for the number of
Class A Common shares to which such holder shall be entitled as
aforesaid. Such conversion shall be deemed to have been made at the
close of business on the date of such surrender and the person or
persons entitled to receive the Class A Common shares issuable on such
conversion shall be treated for all purposes as the record holder or
holders of such Class A Common shares on that date.
The number of Class A Common shares into which the Common shares may be
converted shall be subject to adjustment from time to time in the event
of any capital reorganization, reclassification of the stock of the
corporation, consolidation or merger of the corporation with or into
another corporation or sale or conveyance of all or substantially all
of the assets of the corporation to another corporation or other entity
or person. Each Class B Common share shall thereafter be convertible
into such kind and amount of securities or other assets, or both, as
are issuable or distributable in respect of the number of Class A
Common shares into which each Class B Common share is convertible
immediately prior to such reorganization, reclassification,
consolidation, merger sale or conveyance. In any such case, appropriate
adjustments shall be made by the Board of Directors of the corporation
in the application of the provisions herein set forth with respect to
the rights and interests thereafter of the holders of Class B Common
shares, to the end that the provisions set forth herein (including
provisions for adjustment of the conversion rate) shall thereinafter be
applicable, as nearly as reasonably may be, in relation to any
securities or other assets thereafter deliverable on conversion of the
Class B Common shares.
No fraction of a Class A Common share shall be issued on conversion of
any Class B Common share but, in lieu thereof, the corporation shall
pay in cash therefor the pro rata fair market value of any such
fraction. Such fair market value shall be based, in the case of
publicly traded securities, on the last sale price for such securities
on the business day next prior to the date such fair market value is to
be determined (or, in the event no sale is made on that day, the
average of the closing bid and asked prices for that day on the
principal stock exchange on which Class A Common shares are traded or,
if the Class A Common shares are not then listed on any national
securities exchange, the average of the closing bid and asked prices
for that day quoted by the NASDAQ System) or, in the case of other
property, the fair market value on such day determined by a qualified
independent appraiser expert in evaluating such property and appointed
by the Board of Directors of the corporation. Any such determination of
fair market value shall be final and binding on the corporation and on
each holder of Class B Common shares or Class A Common shares.
The corporation shall at all times reserve and keep available out of
the authorized and unissued Class A Common shares, solely for the
purpose of effecting the conversion of the outstanding Class B Common
shares, such number of Class A Common shares as shall from time to time
be sufficient to effect the conversion of all outstanding Class B
Common shares and if, at any time, the number of authorized and
unissued Class A Common shares shall not be sufficient to effect
conversion of the then outstanding Class B Common shares, the
corporation shall take such corporate action as may be necessary to
increase the number of authorized and unissued Class A Common shares to
such number as shall be sufficient for such purposes.
The Preferred shares may be issued from time to time in one or more
series. The Board of Directors is hereby authorized to fix or alter the
designations, preferences, and relative, participating, optional or
other special rights, and qualifications, limitations or restrictions,
of such Preferred shares, including without limitation of the
generality of the foregoing, dividend rights, dividend rates,
conversion rights, voting rights, rights and terms of redemption
(including sinking fund provisions), the redemption price or prices and
liquidation preferences of any wholly unissued series of Preferred
shares, and the number of shares constituting any such series and the
designation thereof, or any of them; and to increase or decrease the
number of shares of that series, but not below the number of shares of
such series then outstanding. In case the number of shares of any
series shall be so decreased, the shares constituting such decrease
shall resume the status which they had prior to the adoption of the
resolution originally fixing the number of shares of such series."
FOURTH: Article 8 of the Certificate of Incorporation of the
corporation is amended to read in its entirety, as follows:
"Any merger, consolidation of the corporation, or sale, lease, exchange
or other disposition of all, or substantially all, the assets of the
corporation, if not in the usual and regular course of its business as
conducted by the corporation, shall require the affirmative vote of
seventy-five percent of the votes cast by holders of shares entitled to
vote thereon."
FIFTH: The amendments to the Certificate of Incorporation set forth in
Paragraphs SECOND, THIRD, and FOURTH of this Certificate were adopted by the
shareholders of the corporation on April 16, 1998.
SIXTH: The designation and number of shares of each class or series
entitled to vote on the amendments to the Certificate of Incorporation set forth
in Paragraphs SECOND, THIRD, and FOURTH of this Certificate, is as follows:
Class or Series Number of Shares
- -------------------------- ----------------
Class A Common Stock 7,854,068
Class B Common Stock 445,121
Series A Preferred Stock 19,000
SEVENTH: The number of shares of each class or series voting together
as a single class (each share of Class A Common Stock having one-tenth of one
vote per share; each share of Class B Common Stock having one vote per share;
each share of Series A Preferred Stock having one-tenth of one vote per share,
calculated as if all shares of Series A Preferred Stock had been converted into
shares of Class A Common Stock on the record date) voted for or against the
amendment to Article 6(a) of the Certificate of Incorporation set forth in
Paragraph SECOND of this Certificate is as follows:
For Against
Class or Series Shares Votes Shares Votes
- ------------------------ ----------------------- -----------------
Class A Common Stock 7,351,462 735,146 258,526 25,853
Class B Common Stock 416,153 416,153 2,618 2,618
Series A Preferred Stock 0 0 0 0
EIGHTH: The vote of (i) the holders of Class A Common Stock, voting as
a class, (ii) the holders of Class B Common Stock, voting as a class, and (iii)
the holders of Class A Common Stock, Class B Common Stock and Series A Preferred
Stock, voting together as a group, was required in connection with the
amendments to Articles 6(c) and 8 of the Certificate of Incorporation set forth
in Paragraphs THIRD and FOURTH of this Certificate. The number of shares of each
class or series (each share of Class A Common Stock having one-tenth of one vote
per share; each share of Class B Common Stock having one vote per share; each
share of Series A Preferred Stock having one-tenth of one vote per share,
calculated as if all shares of Series A Preferred Stock had been converted into
shares of Class A Common Stock on the record date) voted for or against the
amendments to Articles 6(c) and 8 of the Certificate of Incorporation set forth
in Paragraphs THIRD and FOURTH of this Certificate is as follows:
With respect to the amendment of Article 6(c)(C) (Proposal 4(a) of the Notice of
Meeting (the "Notice") changing the conversion ratio of the Class B Common
Stock):
For Against
Class or Series Shares Votes Shares Votes
- -------------------------- ------------------------ ----------------
Class A Common Stock 2,994,407 299,441 238,641 23,864
Class B Common Stock 319,573 319,573 7,762 7,762
Series A Preferred Stock 0 0 0 0
With respect to the amendment of Article 6(c)(B) (Proposal 4(b) of the Notice
changing the voting rights of the Class A Common Stock and the Class B Common
Stock with respect to the election of directors):
For Against
Class or Series Shares Votes Shares Votes
- ------------------------- ------------------------ -------------------
Class A Common Stock 3,055,986 305,599 168,396 16,840
Class B Common Stock 319,041 319,041 8,294 8,294
Series A Preferred Stock 0 0 0 0
With respect to the amendment of Article 6(c)(B) (Proposal 4(c) of the Notice
changing the voting rights of Class A Common Stock):
For Against
Class or Series Shares Votes Shares Votes
- --------------------------- ------------------------ --------------------
Class A Common Stock 3,095,756 309,576 135,513 13,551
Class B Common Stock 319,041 319,041 8,294 8,294
Series A Preferred Stock 0 0 0 0
With respect to the amendment of Article 8 (Proposal 4(d) of the Notice
eliminating a separate vote by Class B Common Stock for certain corporate
transactions):
For Against
Class or Series Shares Votes Shares Votes
- -------------------- ------------------------ -----------------------
Class A Common Stock 3,070,681 307,068 150,450 15,045
Class B Common Stock 319,041 319,041 8,294 8,294
Series A Preferred Stock 0 0 0 0
With respect to the amendment of Article 6(c)(A) (Proposal 4(e) of the Notice
changing the dividend restriction for Class B Common Stock):
For Against
Class or Series Shares Votes Shares Votes
- --------------------- ------------------------ -----------------------
Class A Common Stock 3,056,009 305,601 162,923 16,292
Class B Common Stock 321,568 321,568 5,767 5,767
Series A Preferred Stock 0 0 0 0
With respect to conforming revisions contained throughout Article 6 (Proposal
4(f) of the Notice to make conforming language changes to reflect the changes
set forth in Proposals 4(a) through 4(e) of the Notice):
For Against
Class or Series Shares Votes Shares Votes
- --------------------- ------------------------ -----------------------
Class A Common Stock 7,454,534 745,453 143,798 14,380
Class B Common Stock 415,993 415,993 5,129 5,129
Series A Preferred Stock 0 0 0 0
NINTH: This Certificate of Amendment shall become effective upon
filing.
IN WITNESS WHEREOF, Base Ten Systems, Inc. has caused its duly
authorized officer to execute this Certificate on this 16th day of April, 1998.
BASE TEN SYSTEMS, INC.
THOMAS E. GARDNER
By:_______________________________
Name: Thomas E. Gardner
Title: President and Chief Executive Officer