EXHIBIT 3.1
THE COMMONWEALTH OF MASSACHUSETTS
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth FEDERAL IDENTIFICATION
ONE ASHBURTON PLACE, BOSTON, MASS: 02108 NO. 04-2675674
----------
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.
__________
We, Donald H. Benovitz ,President and
Stephen N. Aschettino ,Clerk of
Suburban Ostomy Supply Co., Inc.
- --------------------------------------------------------------------------------
(Name of Corporation)
located at 75 October Hill Road, Holliston, MA 01746
----------------------------------------------------------------------
do hereby certify that the following restatement of the articles of organization
of the corporation was duly adopted by written consent __________, 199__, by
vote of
20,000 shares of Common out of 20,000 shares outstanding
- ----------------------- ---------------------------- --------------------------
(Class of Stock)
_______________________shares of----------------------------out of___________________________shares outstanding, and
(Class of Stock)
_______________________shares of--------------------------- out of___________________________outstanding.
(Class of Stock)
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:
Suburban Ostomy Supply Co., Inc.
2. THE PURPOSES FOR WHICH THE CORPORATION IS FORMED ARE AS FOLLOWS:
See continuation sheets attached.
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
----------------- ----------------
CLASS OF STOCK NUMBER OF SHARES NUMBER OF SHARES PAR VALUE
- ---------------- ---------------- ---------------- ---------
PREFERRED None 66,500 $.01
COMMON 200,000 None
*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 sheet attached.
*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 DEFINING, OR REGULATING THE POWERS OF THE
CORPORATION, OR OF ITS DIRECTORS OR STOCKHOLDERS, OR OF ANY CLASS OF
STOCKHOLDERS:
See continuation sheets attached.
* IF THERE ARE NO SUCH PROVISIONS, STATE "NONE".
Articles of Organization
of
SUBURBAN OSTOMY SUPPLY CO., INC.
Article II continued:
The purposes of the Corporation shall be:
To engage in the business of selling ostomy and other health care products
at wholesale and at retail within and without the continental United States; to
make and enter into all kinds of contracts, agreements and obligations by or
with any persons, firms, associations and corporations in furtherance of such
activities, and, generally, to perform any and all acts connected therewith, or
incidental thereto, and all acts proper or necessary for the purposes of this
business.
To carry on any business or other activity which may lawfully be carried on
by a corporation organized under Chapter 156B of the Massachusetts General Laws
(the "Business Corporation Law"), whether or not related to those referred to in
the foregoing paragraph, whether or not related or similar to the activities
described in the preceding paragraph.
To carry on any business, operation or activity through a wholly owned or
partly owned subsidiary.
To carry on any business, operation or activity referred to in the
foregoing paragraphs to the same extent as might an individual, whether as
principal, agent, contractor or otherwise, and either alone or as a partner,
trustee, participant, member or stockholder of or in any form of partnership,
joint venture, corporation, association, trust, limited liability company or
other form of entity or with any individual, and, without limiting the
generality of the foregoing, to be a limited and/or general partner of any
partnership organized to carry on any business or activity of the type described
herein.
To have as additional purposes all powers granted and conferred by the laws
of The Commonwealth of Massachusetts upon business corporations organized under
the Business Corporation Law.
In these provisions, the enumeration of specific purposes or powers shall
not be construed to limit other statements of purposes or powers which this
Corporation may otherwise have under applicable law, all of the same being
separate and cumulative, and all of the same may be carried on, promoted and
pursued, transacted or exercised in any place in the world whatsoever.
Common Stock
- ------------
The holders of the Common Stock shall have the exclusive right to vote for
the election of directors and on all other matters requiring action by the
stockholders or submitted to the stockholders for action, except as may
otherwise be required by these Articles of Organization or law, and each share
of the Common Stock shall entitle the holder thereof to one vote.
The holders of the Common Stock shall be entitled to receive, to the extent
permitted by law, such dividends as may from time to time be declared by the
directors, subject to the rights of holders of shares of any class or series
having preferential rights to receive distributions or dividends.
Upon any voluntary or involuntary liquidation, dissolution or winding up of
the Corporation, the holders of the Common Stock shall be entitled to receive
the net assets of the Corporation, after the Corporation shall have satisfied or
made provision for its debts and obligations and for payment to the holders of
shares of any class or series having preferential rights to receive
distributions of the net assets of the Corporation.
Preferred Stock
- ---------------
The preferences, voting powers, qualifications and special or relative
rights or privileges of the Preferred Stock are as follows:
SERIES A REDEEMABLE PREFERRED STOCK
-----------------------------------
1. Designation and Amount. The shares of such series of Preferred Stock
----------------------
shall be designated as "Series A Redeemable Preferred Stock" (the "Series A
Preferred Stock") and the number of shares constituting such series shall be
66,500.
2. Dividends, Etc.
---------------
(a) In General. No dividends shall be payable on the Series A
----------
Preferred Stock.
(b) Priority. So long as any shares of Series A Preferred Stock
--------
remain outstanding, neither the Company nor any Subsidiary (which shall mean any
corporation, association or other business entity which the Company directly or
indirectly owns at the time more than fifty percent (50%) of the outstanding
voting securities or equity interests) will redeem, purchase or otherwise
acquire any other equity security of the Company now or hereafter outstanding,
including, without limitation, the Common Stock (collectively, the "Junior
Securities"), nor will the Company declare or pay any dividend (including
accrued dividends) other than dividends payable in shares of capital stock or
make any distribution upon any Junior Securities, except for any redemption in
connection with the issuance of the shares of Series A Preferred Stock, without
the consent of the holders of a majority of the shares of Series A Redeemable
Preferred Stock, then outstanding.
3. Liquidation.
-----------
(a) Treatment at Liquidation, Dissolution and Winding Up. In the
----------------------------------------------------
event of any liquidation, dissolution or winding-up of the Company, whether
voluntarily or involuntarily, before any distribution or payment may be made
with respect to any Junior Securities, holders of each share of Series A
Preferred Stock shall be entitled to be paid out of the assets of the Company
available for distribution to holders of the Company's capital stock of all
classes, whether such assets are capital,
-2-
surplus, or capital earnings, an amount in cash equal to $ 1 00 per share of
Series A Preferred Stock (which amount shall be subject to equitable adjustment
whenever there shall occur a stock split, combination, reclassification or other
similar event involving the Series A Preferred Stock) plus an amount equal to a
ten percent (10%) cumulative annual return (computed on the basis of the actual
days elapsed in a year of 360 days) on such $100, compounded annually, since the
date of issuance up to and including the date full payment shall be tendered to
the holders of the Series A Preferred Stock with respect to such liquidation,
dissolution, or winding up (the "Series A Liquidation Amount"). The date on
which the Company initially issues any shares of Series A Preferred Stock will
be deemed to be its "date of issuance" regardless of the number of times
transfer of such share of Series A Preferred Stock is made on the stock records
of the Company, and regardless of the number of certificates which may be issued
to evidence such share of Series A Preferred Stock.
If upon any such liquidation, dissolution or winding up of the Company, the
assets of the Company to be distributed among the holders of the Series A
Preferred Stock are insufficient to permit payment to such holders of the
aggregate amount which they are entitled to be paid, then the entire assets of
the Company to be distributed to such holders will be distributed ratably among
such holders in proportion to the number of shares of Series A Preferred Stock
owned by each holder.
After the payment of the Series A Liquidation Amount shall have been made
in full to the holders of the Series A Preferred Stock or funds necessary for
such payment shall have been set aside by the Company in trust for the account
of holders of the Series A Preferred Stock so as to be available for such
payments, the holders of the Series A Preferred Stock shall be entitled to no
further participation in the distribution of the assets of the Company, and the
remaining assets of the Company legally available for distribution to its
stockholders shall be distributed among the holders of other classes of
securities of the Company in accordance with their respective terms.
(b) Treatment of Reorganizations. Any merger or consolidation of the
----------------------------
Company with or into another corporation more than fifty percent (50%) of the
common voting securities of which are owned by persons or entities who are not
stockholders (or affiliates or stockholders or partners of stockholders) of the
Company immediately following the closing of the transactions under the Stock
Purchase and Redemption Agreement among the Company and the other parties named
therein dated as of July 3, 1995 ("New Investors"), or the sale of all or
substantially all of the Company's properties and assets to any person or group
of persons at least fifty percent (50%) in interest of which are New Investors
or any transaction or series of related transactions in which more than fifty
percent (50%) of the outstanding common voting securities of the Company is sold
or assigned to New Investors (ally of which events is herein referred to as a
"Reorganization"), shall be regarded as a liquidation, dissolution or winding up
of the affairs of the Company within the meaning of this Section 3 unless the
holders of at least a majority of the then outstanding shares of Series A
Preferred Stock elect to have such events not deemed to be a liquidation,
dissolution or winding up of the Company by giving written notice thereof to the
Company at least IO days before the effective date of such event.
-3-
4. Voting Power. Except as otherwise expressly provided in Section 6
------------
hereof, or as required by law, the holders of the Series A Preferred Stock shall
not be entitled to vote on any corporate matters.
5. Redemption.
----------
(a) Optional Redemption. The Company may at any time redeem all
-------------------
or any portion of the then outstanding Series A Preferred Stock at a redemption
price (the "Redemption Price") for each share of Series A Preferred Stock
redeemed pursuant to this Section 5 (a) equal to the Series A Liquidation
Amount, such amount to be calculated and paid through the date payment is
actually made to the holders of the Series A Preferred Stock with respect to
such redemption. The Company shall give the holders of the Series A Preferred
Stock notice (the "Optional Redemption Notice") at least thirty (30) days prior
to the date fixed for redemption pursuant to this Section 5(a) of its election
to redeem the Series A Preferred Stock. Such election shall be irrevocable on
the part of the Company. The Optional Redemption Price shall be paid on the date
fixed for redemption and specified in the Redemption Notice upon surrender of
certificates as provided in Section 5(d) below.
(b) Mandatory Redemption. In the event the Company does not elect
--------------------
to redeem the Series A Preferred Stock as provided in Section 5(a), the Company-
V shall redeem Pig rata from all holders of the Series A Preferred Stock on June
30 of each of 2000, 2001 and 2002 one-third (1/3) of the shares of Series A
Preferred Stock outstanding on June 30, 2000, or such lesser amount as may be
outstanding on the date of such redemption. In the event shares of Series A
Preferred Stock scheduled for redemption are not redeemed because of a
prohibition under applicable law, such shares shall be redeemed as soon as such
prohibition no longer exists. The number of shares to be redeemed shall be
cumulative, so that any shares which were subject to redemption in a prior year
or years but were not so redeemed shall continue to be subject to redemption in
addition to the shares otherwise redeemable in the current year.
In addition, if a Liquidity Event (as herein defined) occurs, the Company
shall redeem all shares of Series A Preferred Stock outstanding. The term
Liquidity Event shall mean any one or more of the following: (1) a
Reorganization, (11) the liquidation, dissolution or winding up of the Company
or (111) the sale of securities by the Company pursuant to an effective
registration statement under the Securities Act of 1933, as amended; provided,
however, that in the event that the proceeds from the sale of securities by the
Company pursuant to such a registration statement arc insufficient (after giving
effect to required repayments of outstanding debt and the reservation of funds
required for specific corporate needs and projects) to fund redemption in full
of the Preferred Stock then outstanding, then such proceeds shall be applied to
redeem such of the Series A Preferred Stock as can be redeemed at the Redemption
Price (such redemption to be applied to the holders of the Series A Preferred
Stock pro rata, in proportion to the shares owned by each), and the balance of
the Series A Preferred Stock shall be converted into a Series B Preferred Stock
which shall have a dividend rate of not less than IO% per annum, and shall
contain such other rights, terms and privileges as then prevail in the
marketplace with respect to preferred stock investments made in public companies
by unaffiliated third parties. If a Liquidity Event occurs, the Company shall
be required to redeem the
-4-
shares of Series A Preferred Stock concurrently Nvith the closing of the event
constituting the Liquidity Event.
The redemption price of each share of Series A Preferred Stock redeemed
pursuant to this Section 5(b) shall be equal to the Redemption Price provided
for in Section 5(a).
(c) Redemption Notice. The Company shall mail notice (the
-----------------
"Redemption Notice") of any redemption to be effected pursuant to Section 5(b),
not later than 30 days before the date fixed for each redemption pursuant to
Section 5(b) (each of the dates fixed for redemption and the extended redemption
date is hereinafter referred to as a "Redemption Date"), provided, however, that
the Company's failure to give such Redemption Notice shall in no way affect its
obligation to redeem the shares of Preferred Stock or the obligation of the
holders to redeem their shares of Preferred Stock as provided in Section 5(b)
hereof The Redemption Notice shall contain the following information:
(i) the number of shares of Series A Preferred Stock held by
the holder and the total number of shares of Series A Preferred Stock held by
all holders subject to redemption as of such Redemption Date, and
(ii) the Redemption Date and the Redemption Price.
(d) Surrender of Certificates. Each holder of shares of Series A
-------------------------
Preferred Stock to be redeemed under this Section 5 shall surrender the
certificate or certificates representing such shares to the Company at the place
designated in the Redemption Notice, and thereupon the Redemption Price for such
shares as set forth in this Section 5 shall be paid to the order of the person
whose name appears on such certificate or certificates. Irrespective of whether
the certificates therefor shall have been surrendered, all shares of Series A
Preferred Stock which are the subject of a Redemption Notice shall be deemed to
have been redeemed and shall be cancelled effective as of the Redemption Date,
unless the Company shall default in the payment of the applicable Redemption
Price.
6. Restrictions and Limitations.
----------------------------
(a) Corporate Action. Except as exprcssly provided herein or as
----------------
required by law, so long as any shares of Series A Preferred Stock remain
outstanding. the Company shall not, and shall not permit any Subsidiary to,
without the approval by vote or written consent by the holders of at least a
majority of the then outstanding shares of Series A Preferred Stock, voting as a
separate class:
(i) authorize or issue, or obligate itself to authorize or
issue, additional shares of Series A Preferred Stock; or
(ii) authorize or issue, or obligate itself to authorize or
issue, any equity security senior to or on parity with the Series A Preferred
Stock as to liquidation preferences, redemption rights or dividend rights.
-5-
(b) Amendments to Charter. The Company shall not amend its Articles
---------------------
of Organization without the approval, by vote or written consent, by the holders
of at least a majority of the then outstanding shares of Series A Preferred
Stock, if such amendment would adversely amend any of the rights, preferences,
privileges of or limitations provided for herein for the benefit of any shares
of Series A Preferred Stock. Without limiting the generality of the preceding
sentence, the Company will not amend its Articles of Organization without the
approval by the holders of at least a majority of the then outstanding shares of
Series A Preferred Stock if such amendment would:
(i) change the relative seniority rights of the holders of
Series A Preferred Stock as to the payment of dividends in relation to the
holders of any other capital stock of the Company, or create any other class or
series of capital stock entitled to seniority as to the payment of dividends
relation to the holders of Series A Preferred Stock;
(ii) reduce the amount payable to the holders of Series A
Preferred Stock upon the voluntary or Involuntary liquidation, dissolution or
winding up of the Company, or change the relative seniority of the liquidation
preferences of the holders of Series A Preferred Stock to the rights upon
liquidation of the holders of other capital stock of the Company;
(iii) cancel or modify the redemption rights of the holders of
the Series A Preferred Stock provided for in Section 5 herein; or
(iv) cancel or modify the rights of the holders of the Series
A Preferred Stock provided for in this Section 6.
7. Notices of Record Date. In the event of
----------------------
(a) any taking by the Company of a record of the holders of any
class of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend, distribution, or any right to subscribe for,
purchase or otherwise acquire any shares of stock of any class or any other
securities or property, or to receive any other right, or
(b) any capital reorganization of the Company, any reclassification
or recapitalization of the capital stock of the Company, any merger of the
Company, or any transfer of all or substantially all of the assets of the
Company to any other corporation, or any other entity or person, or
(c) any voluntary or involuntary dissolution, liquidation orxvinding
up of the Company,
then and in each such event the Company shall mail or cause to be mailed to each
holder of Series A Preferred Stock a notice specifying (i) the date on which any
such record is to be taken for the purpose of such distribution or right and a
description of such distribution or right, (ji) the date on which any
-6-
such reorganization, reclassification, recapitalization, transfer, merger,
dissolution, liquidation or winding up is expected to become effective and (iii)
the time, if any, that is to be fixed, as to when the holders of record of
Common Stock (or other securities) shall be entitled to exchange their shares of
Common Stock (or other securities) for securities or other property deliverable
upon such reorganization, reclassification, recapitalization, transfer, merger,
dissolution, liquidation orAinding up. Such notice shall be mailed at least ten
(10) business days prior to the date specified in such notice on which such
action is to be taken.
8. No Reissuance of Series A Preferred Stock. No share or shares of
-----------------------------------------
Series A Preferred Stock acquired by the Company by reason of redemption,
purchase or otherwise shall be reissued. and all such shares shall be cancelled,
retired and eliminated from the shares which the Company shall be authorized to
issue. The Company may from time to time take such appropriate corporate action
as may be necessary to reduce the authorized number of shares of the Series A
Preferred Stock accordingly.
Article VI: Other Lawful Provisions - Continuation Sheets
- ---------------------------------------------------------
The following additional provisions arc hereby established for the
management, conduct and regulation of the business and affairs of the
Corporation, and for creating, limiting, defining and regulating the powers of
the Corporation and of its directors and stockholders:
1. Except as otherwise provided in these Articles of Organization or the
by-laws of the Corporation as from time to time amended, the business and
affairs of the Corporation shall be managed by its board of directors. Without
limiting the foregoing, the board of directors of the Corporation is hereby
specifically authorized from time to time in its discretion to determine the
manner in which the accounts of the Corporation shall be kept, and to detennine
for any purpose and in any manner not inconsistent with other provisions of
these Articles of Organization, the amount of the gross assets, liabilities, net
assets, net earnings, profits and surplus of the Corporation as the same exist
or shall have existed at any time or for any period or periods, and to create,
increase, abolish or reduce any reserve or reserves for accrued, accruing or
contingent liabilities or expenses, including taxes and other charges, and to
determine what amounts, if any, shall be declared as dividends. Unless the
board of directors otherwise specifies, the excess of the consideration received
for any share of its capital stock with par value issued by it over such par
value shall be paid-in surplus. The board of directors may allocate to capital
stock less than all of the consideration received for any share of its capital
stock without par value issued by it, in which case the balance of such
consideration shall be paid-mi surplus. All surplus shall be available for any
corporate purpose, including the payment of dividends.
2. The board of directors shall have full power and authority to
determine the terms and manner of issue, including, but not limited to, the
consideration therefore and to issue or cause the issue of all shares of capital
stock of the Corporation now or from time to time hereafter authorized.
-7-
3. The board of directors is authorized from time to time, in its
discretion, to make, amend or repeal the by-laws, in part or in whole, except
with respect to any provision thereof which by law or the by-laws requires
action by the stockholders.
4. The Corporation may carry on any operation or activity through a
wholly or partly owned subsidiary and may be a partner in any business
enterprise which it would have the power to conduct by itself.
5. Meetings of stockholders may be held outside The Commonwealth of
Massachusetts. The books of the Corporation may be kept (subject to any
provision contained in the Business Corporation Law) outside The Commonwealth of
Massachusetts at such place or places as may be designated from time to time by
the board of directors or in the by-laws of this Corporation. Election of
directors need not be by ballot unless so requested by any stockholder entitled
to vote thereon.
6. Each director or officer of the Corporation shall, in the performance
of his or her duties, be fully protected in relying in good faith upon the books
of account of the Corporation, reports made to the Corporation by any of its
officers or employees or by counsel, accountants, appraisers or other experts or
consultants selected with reasonable care by the directors or officers of the
Corporation or upon other records of the Corporation. Without limiting the
generality of the foregoing, no director or officer of the Corporation shall be
liable to any person on account of any action undertaken by him or her as such
director or officer in reliance in good faith upon information, opinions,
reports or records, including financial statements, books of account and other
financial records, in each case presented by or prepared by or under the
supervision of (i) one or more officers or employees of the Corporation whom the
director or officer reasonably believes to be reliable and competent in the
matters presented, or (ii) legal counsel, public accountants or other persons as
to matters which the director or officer reasonably believes to be within such
person's professional or expert competence, or (iii) in the case of a director,
a duly constituted committee of the board of directors upon which he or she does
not serve, as to matters within its delegated authority, which committee the
director reasonably believes to merit confidence.
7. No director of this Corporation shall be personally liable to the
Corporation or its Stockholders for monetary damages for any breach of fiduciary
duty as a director; provided, however, that to the extent provided by applicable
law this provision shall not eliminate or limit the liability of a director (i)
for any breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) pursuant to Section
61 or Section 62 of the Business Corporation Law, or (iv) for any transaction in
connection with which such director derived an improper personal benefit. No
amendment or repeal of this paragraph shall apply to or have any effect on the
liability of alleged liability of any director of the Corporation for or with
respect to any acts or omissions of such director occurring prior to such
amendment or repeal.
8. Each officer or director or former officer or director of the
Corporation, and each person who shall, at the Corporation's request, have
served as an officer or director of another Corporation or
-8-
as a trustee, partner or officer of a trust, partnership, limited liability
company or association, and each person who shall, at the Corporation's request,
have served in any capacity with respect to any employee benefit plan, whether
or not then in office or then serving with respect to such employee benefit
plan, and the heirs, executors, administrators, and other personal
representatives of each of them shall, to the maximum extent permitted from time
to time under the law of The Commonwealth of Massachusetts, be indemnified by
the Corporation against all liabilities, costs and expenses, including amounts
paid in satisfaction of judgments, in compromise and/or as fines or penalties
and the fees and disbursements of counsel, imposed or reasonably incurred by him
dr them in connection with or arising out of any action, suit, or proceeding,
civil or criminal, in which he, she or they may be involved, or incurred in
anticipation of any action, suit or proceeding, by reason of his or her being or
having been such officer, trustee, partner or director or by reason of any
alleged act or omission by him or her in such capacity or in serving with
respect to any employee benefit plan. Such indemnification may include payment
by the Corporation of expenses incurred in defending any such action, suit, or
proceeding in advance of the final disposition thereof, upon receipt of an
undertaking by the person indemnified to repay such payment if he or she shall
be adjudicated not to be entitled to indemnification under this Section, which
undertaking may be accepted by the Corporation without reference to the
financial ability of such person to make repayment. The foregoing rights of
indemnification shall not be exclusive of other rights to which any such
director, officer, trustee, partner or person serving with respect to any
employee benefit plan may be entitled as a matter of law, and any repeal or
modification of any of the foregoing provisions of this Section shall not
adversely affect any right or protection of such persons with respect to any
acts or omissions that occurred prior to such repeal or modification. These
indemnity provisions shall be separable, and if any portion thereof shall be
finally adjudged to be invalid, such invalidity shall not affect any other
portion which can be given effect.
Notwithstanding the foregoing, no indemnification shall be provided with
respect to any matter disposed of by settlement, consent decree or other
negotiated resolution unless:
a. such indemnification shall have been approved by holders of the shares
of the Corporation's capital stock then entitled to vote for
directors, voting such shares as a single class, by a majority of the
votcs cast on the question exclusive of any shares owned bv an
interested director or officer; or
b. such indemnification and such settlement, decree or resolution shall
have been approved as being in the best interest of the Corporation or
organization or plan or participants served, as the case may be, after
notice that it involves such indemnification, by a majority of the
disinterested directors (or, if applicable, the sole disinterested
director) then in office (whether or not constituting a quorurn); or
c. if no directors are disinterested, a written opinion, reasonably
satisfactory to the Corporation, of independent legal counsel selected
by the Corporation shall have been furnished to the Corporation that
(i) such indemnification and such settlement, decree or resolution are
in the best interest of the Corporation or organization or plan or
-9-
participants served, as the case may be, and (ii) if adjudicated, such
indemnification would not be found to have been prohibited by law.
For purposes of this Section, an "interested" director or officer is one against
whom in such capacity the proceeding in question or another proceeding on the
same or similar grounds is then pendi ing or threatened, and a "disinterested
director" is any director who is not an interested director.
9. The Corporation shall not, however, indemnify any such person, or his
or her heirs, executors, administrators, or other personal representatives, with
respect to any matter as to which he or she shall be finally adjudged in any
such action, suit, or proceeding not to have acted in good faith in the
reasonable belief that his or her action was in the best interests of the
Corporation, or to the extent that such matter relates to service with respect
to an employee benefit plan, in the best interests of the participants or
beneficiaries of such employee benefit plan.
10. The board of directors may purchase and maintain insurance on behalf
of any person who is or was a director, officer, trustee, partner, employee or
other agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, trustee, partner, employee or other agent of
another Corporation, association, trust, limited liability company or
partnership against any liability incurred by him or her in any such capacity or
arising out of his or her status as such, whether or not the Corporation would
have the power to indeninify him or her against such liability.
11. a. The Corporation may enter into contracts and transact business
with one or more of its directors, officers, or stockholders, or in which any of
them is in any other way interested, or with any Corporation, association,
trust, firm, partnership, limited liability company, or other concern in which
ally one or more of its directors, officers or stockholders are directors,
officers, stockholders, trustees, shareholders, beneficiaries, partners or
otherwise interested; and in the absence of fraud no such contract or
transaction shall be invalidated or in any way affected by the fact that such
directors, officers or stockholders of the Corporation have or may have
interests which are or might be adverse to the interests of the Corporation,
even though the vote or action of the directors, officers, or stockholders
having such adverse interests may have been necessary to obligate the
Corporation upon such contract or transaction, if:
i. the material facts as to such person's or
persons'relationship or interest and as to the contract or
transaction arc disclosed or are known to the board of
directors or the committee thereof which authorizes the
contract or transaction, and the board or committee
authorizes, approves or ratifies the contract or transaction
by the affirmative vote of a majority of the disinterested
directors (or, if applicable, the sole disinterested
director) then in office (whether or not constituting a
quorum); or
ii. the material facts as to said person's or persons'
relationship or interest as to the contract or transaction
are disclosed or are known to the stockholders (whether or
not so disinterested) of the Corporation then
-10-
entitled to vote for directors, and such holders
specifically authorize, approve or ratify the contract or
transaction by a majority of the votes cast on the question
stock, voting such shares as a single class; or
iii. the contract or transaction is fair to the Corporation as of
the time it is authorized, approved or ratified by the board
of directors, a committee thereof, or the stockholders.
b. The directors shall have the power to fix from time to time their
own compensation.
c. Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the board of directors or of the committee
which authorizes the contract or transaction. No director or officer shall be
disqualified from holding office as a director or officer of the Corporation by
reason of any such adverse interest. In the absence of fraud, no director,
officer or stockholder having such adverse interest shall be liable 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 for any gains
or profits realized thereon.
d. Any contract or transaction entered into by the Corporation or
act of the board of directors on behalf of this Corporation which shall be
authorized, approved or ratified by the holders of a majority of the outstanding
shares of this Corporation's conmon stock at any special meeting duly called for
that purpose, or at any annual meeting, at which a quorum is present or
represented, or by their consent in writing, shall be as valid and binding as
though authorized, approved or ratified by every stockholder of this
Corporation.
12. Except as otherwise provided by law, no stockholder shall have any,
right to examine any property or any books, accounts or other writings of the
Corporation if there is reasonable ground for belief that such examination will
for any reason be adverse to the interests of the Corporation, and a vote of the
directors refusing pennission to make such examination and setting forth that in
the opinion of the directors such examination would be adverse to the interests
of the Corporation shall be prima facie evidence that such examination would be
adverse to the interests of the Corporation. Every such examination shall be
subject to such reasonable regulations as the directors may establish in regard
thereto.
13. The purchase or other acquisition or retention by the Corporation of
shares of its own capital stock shall not be deemed a reduction of its capital
stock. Upon any reduction of capital or capital stock, no stockholder shall
have any right to demand any distribution from the Corporation, except as and to
the extent that the stockholders shall have provided at the time of authorizing
such reduction.
-11-
*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
2, 3, 4, 6.
- ----------
(*If there are no such amendments, state "None".)
Briefly describe amendments in space below:
Article 2. Article 2 has been amended to include additional purposes of
---------
the Corporation.
Article 3. Article 3 has been amended to add a new class of preferred
---------
stock.
Article 4. Article 4 has been added to set forth the preferences,
---------
voting powers, qualifications and special or relative rights
of each class and series of authorized stock.
Article 5. Article 6 has been amended to modify certain general
---------
provisions regarding the management, conduct and regulation
of the business and affairs of the Corporation, including,
without limitation, the provisions regarding indemnification
of directors and officers and limitations on the personal
liability of the directors.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto
signed our names this 30th day of June in the year 1995.
Donald H. Benovitz ______________________________ President
Stephen N. Aschettino ______________________________ Clerk
-12-
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 $600 having
been paid, said articles are deemed to
have been filed with me this 30th day of
June, 1995.
______________________________
William Francis Galvin
Secretary of the Commonwealth
TO BE FILED IN BY CORPORATION
PHOTO COPY OF RESTATED ARTICLES OF ORGANIZATION TO BE SENT
TO:
Susan Forest Barrett
SULLIVAN & WORCESTER
One Post Office Square
Boston, MA 02109
Telephone:(617) 338-2800
-13-
FEDERAL IDENTIFICATION
NO. 04-267564
-------------------
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 Donald Benovitz , *President
---------------------------------------------------------
and Stephen Aschettino , *Clerk
---------------------------------------------------------
of Suburban Ostorny Supply Co, Inc.
------------------------------------------------------------------------
(Exact name of corporation)
located at 75 October Hill Road, Holliston MA 01746
----------------------------------------------------------------
(Street address of corporation in Massachusetts)
certify that these Articles of Amendment affecting articles number:
3
- --------------------------------------------------------------------------
(Number those articles 1,2,3,4,5 and/or 6 being amended)
of the Articles of Organization were duly adopted by written consent, dated
March 21, 1996, by vote of:
40,000 shares of Common Stock of 40,000 shares outstanding,
- ----------- ---------------- --------------
(type class & series, if any)
66,500 shares of Common Stock of 66,500 shares outstanding, and
- ----------- ---------------- ---------------
(type, class & series, if any)
____________shares of __________________of_______________shares outstanding, and
(type, class & series, if any)
/1/** being at least a majority of each type, class or series outstanding and
entitled to vote thereon:
* 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, Chapter 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: 200,000 Common: None
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Preferred: None Preferred 66,500 $.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: 10,000,000 Common: None
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Preferred: None Preferred 66,500 $.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 26th day of March , 1996,
------ -------- --
Donald Benovitz , *President/,
- ------------------------------------------------------------
Stephen Aschettino , *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 $9,800 having been paid,
said articles are deemed to have been filed with me this
10th day of April, 1996
Effective date:_________________________________________
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
TO BE FILLED IN BY CORPORATION
PHOTOCOPY OF DOCUMENT TO BE SENT TO:
Joseph Listengart, Esq.
Hutchins, Wheeler & Dittmar
A Professional Corporation
101 Federal Street
Boston, MA 02110
Tel: (617)951-6600