ARTICLES OF INCORPORATION
OF
EXECUTONE INFORMATION SYSTEMS, INC.
ARTICLE I
The name of the Corporation is EXECUTONE INFORMATION SYSTEMS, INC.
ARTICLE II
The purpose for which the Corporation is formed is to transact any or all lawful
business not required to be specifically stated in these Articles for which
corporations may be incorporated under the Virginia Stock Corporation Act as
amended from time to time.
ARTICLE III
The Corporation shall have the authority to issue 80,000,000 shares of Common
Stock, par value $.01 per share, and 1,000,000 shares of Preferred Stock par
value $.01 per share. The rights, preferences, voting powers and the
qualifications, limitations and restrictions of the authorized stock shall be as
follows:
A. Voting Powers
1. Each share of Common Stock outstanding on the record date shall be
entitled to one vote at the shareholders meeting for which such record date was
fixed.
2. Subject to the right of the Board of Directors to condition
submission of proposed amendments of these Articles, except as otherwise
required in these Articles or any amendment hereto, any corporate action, except
the election of directors, shall, for each voting group entitled to vote on the
matter, be approved at a meeting at which a quorum of the voting group is
present if, for each voting group entitled to vote on the matter, the votes cast
by the voting group favoring the action exceed the votes cast by the voting
group opposing the action. Directors shall be elected by a plurality of the
votes cast by the shares entitled to vote in the election at a meeting at which
a quorum is present.
3. Shareholder approval shall not be required for the issuance of
rights, options or warrants for the purchase of shares of the Corporation to any
director, officer or employee of the Corporation or any of its subsidiaries.
B. Preferred Stock
1. Issuance In Series. The Preferred Stock may be issued from time to
time in one or more series, with such distinctive serial designations, rights
and preferences as shall be stated and expressed herein or in the resolution or
resolutions providing for the issue of shares of a particular series, and in
such resolution or resolutions providing for the issue of shares of such series,
the Board of Directors is expressly authorized to fix:
(a) the annual dividend rate for such series, the divided payment dates,
the date from which dividends on all shares of such series issued shall be
cumulative, and the extent of participation rights, if any;
(b) the redemption price or prices, if any, for such series and other
terms and conditions in which such series may be retired and redeemed;
(c) the obligation, if any, of the Corporation to purchase and retire or
redeem shares of such series as a sinking fund, and the provisions of any such
sinking fund;
(d) the designation and maximum number of shares of such series
issuable;
(e) the right to vote, if any, with holders of shares of any other
series or class and any right to vote as a class, either generally or as a
condition to specified corporate action;
(f) the amount payable upon shares in event of involuntary liquidation;
(g) the amount payable upon shares in event of voluntary liquidation;
and
(h) the rights, if any, of the holders of shares of such series to
convert such shares into other classes of stock of the Corporation and the terms
and conditions of such conversion.
All shares of Preferred Stock of any one series shall be identical with
each other in all respects except, if so determined by the Board of Directors,
as to the dates from which dividends thereon shall be cumulative; and all shares
of Preferred Stock shall be of equal rank with each other, regardless of series,
and shall be identical with each other in all respects except as provided herein
or in the resolution or resolutions providing for the issue of a particular
series. In case dividends on all shares of Preferred Stock for any quarterly
dividend period are not paid in full, all such shares shall participate ratably
in any partial payment of dividends for such period in
proportion to the full amounts of dividends for such period to which they
are respectively entitled.
C. Pre-emptive Rights. No holder of Common Stock or Preferred Stock
shall as such holder have any pre-emptive or preferential right to purchase or
subscribe to (i) any shares of any class of stock of the Corporation, whether
now or hereafter authorized, (ii) any warrants, rights or options to purchase
any such stock or (iii) any obligations convertible into any such stock or into
warrants, rights or options to purchase any such stock.
ARTICLE IV
A. Board of Directors. The number of directors shall be as set forth in
accordance with the Company's Bylaws, provided that any decrease in the number
of directors shall not shorten an incumbent directors term or reduce any quorum
or voting requirements, until such person ceases to be a director.
B. Removal of Directors. Subject to the rights of the holders of any
class or series of Preferred Stock then outstanding, a director may be removed
by the shareholders with or without cause.
ARTICLE V
A. Definitions. In this Article:
"applicant" means the person seeking indemnification pursuant to this
Article.
"expenses" includes counsel fees.
"liability" means the obligation to pay a judgment, settlement, penalty,
fine, including any excise tax assessed with respect to an employee
benefit plan, or reasonable expenses incurred with respect to a
proceeding.
"party" includes an individual who was, is, or is threatened to be made
a named defendant or respondent in a proceeding.
"proceeding" means any threatened, pending, or completed action, suit,
or proceeding, whether civil, criminal, administrative or investigative
and whether formal or informal.
B. Limitation of Liability. In any proceeding brought by or in the right
of the Corporation or brought by or on behalf of shareholders of the
Corporation, no director or officer of the Corporation shall be liable to the
Corporation or its shareholders for monetary damages with respect to any
transaction, occurrence or course of conduct, whether prior or subsequent to the
effective date of this Article, except for liability resulting from such
person's having engaged in willful misconduct or a knowing violation of the
criminal law or any federal or state securities law.
C. Indemnification. To the full extent permitted by the Virginia Stock
Corporation Act, as it exists on the date hereof or as hereafter amended, the
Corporation shall indemnify any person who is or was a party to any proceeding,
including a proceeding brought by a shareholder in the right of the Corporation
or brought by or on behalf of shareholders of the Corporation, by reason of the
fact that (i) he is or was a director or officer of the Corporation, or (ii) he
is or was serving at the request of the Corporation as a director, trustee,
partner or officer of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise against any liability incurred by him
in connection with such proceeding unless he engaged in willful misconduct or a
knowing violation of the criminal law. A person is considered to be serving an
employee benefit plan at the Corporation's request if his duties to the
Corporation also impose duties on, or otherwise involve services by him to the
plan or to participants in or beneficiaries of the plan. The Board of Directors
is hereby empowered, by a majority vote of a quorum of disinterested Directors,
to enter into a contract to indemnify any director or officer in respect of any
proceedings arising from any act or omission, whether occurring before or after
the execution of such contract.
D. Indemnification of Others. The Board of Directors is hereby
empowered, by majority vote of a quorum of disinterested directors, to cause the
Corporation to indemnify or contract to indemnify any person not specified in
subsection (B) or (C) of this Article who was, is, or may become a party to any
proceeding by reason of the fact that he is or was an employee, agent or
consultant of the Corporation, or is or was serving at the request of the
Corporation as an employee, agent or consultant of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise to
the same extent as if such person were specified as one to whom idemnification
is granted in subsection (C) of this Article.
E. Application; Amendment. The provisions of this Article shall be
applicable to all proceedings commenced after the effective date hereof arising
from any act or omission, whether occurring before or after such effective
date. No amendment or repeal of this Article shall have any effect on the rights
provided under this Article with respect to any act or omission occurring prior
to such amendment or repeal. The Corporation shall promptly take all such
actions, and make all such determinations as shall be necessary or appropriate
to comply with its obligation to make any indemnity under this Article and shall
pay or reimburse promptly all reasonable expenses, including attorneys' fees,
incurred by such director or officer in connection with such actions and
determinations or proceedings of any kind arising therefrom.
F. Termination of Proceeding. The termination of any proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not of itself create a presumption that the applicant did
not meet the standard of conduct described in Section (B) or (C) of this
Article.
G. Determination of Availability. Any indemnification under Article V(C)
(unless ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the applicant
is proper in the circumstances because he has met the applicable standard of
conduct set forth in Section (C).
The determination shall be made:
1. By the Board of Directors by a majority vote of a quorum consisting of
directors not at the time parties to the proceeding:
2. If a quorum cannot be obtained under Subsection (1) of this Section, by
majority vote of a committee duly designated by the Board of Directors (in which
designation directors who are parties may participate), consisting solely of two
or more directors not at the time parties to the proceeding:
3. By special legal counsel:
(a) Selected by the Board of Directors or its committee in the
manner prescribed in subsection (1) or (2) of this Section; or
(b) If a quorum of the Board of Directors cannot be obtained under
subsection (1) of this Section and a committee cannot be designated under
subsection (2) of this Section, selected by majority vote of the full Board of
Directors, in which selection directors who are parties may participate; or
4. By the Shareholders, but shares owned by or voted under the control of
directors who are at the time parties to the proceeding may not be voted on the
determination.
Any evaluation as to reasonableness of expenses shall be made in the
same manner as the determination that indemnification is appropriate, except
that if the determination is made by special legal counsel, such evaluation as
to reasonableness of expenses shall be made by those entitled under subsection
(3) of this Section (G) to select counsel.
Notwithstanding the foregoing, in the event there has been a change in
the composition of a majority of the Board of Directors after the date of the
alleged act or omission with respect to which indemnification is claimed, any
determination as to indemnification and advancement of expenses with respect to
any claim for indemnification made pursuant to this Article shall be made by
special legal counsel agreed upon by the Board of Directors and the applicant.
If the Board of Directors and the applicant are unable to agree upon such
special legal counsel the Board of Directors and the applicant each shall select
a nominee, and the nominees shall select such special legal counsel.
H. Advances.
1. The Corporation may pay for or reimburse the reasonable expenses incurred
by any applicant who is a party to a proceeding in advance of final disposition
of the proceeding or the making of any determination under Section (G) if the
applicant furnishes the Corporation:
(a) a written statement of his good faith belief that he has met
the standard of conduct described in Section (C); and
(b) a written undertaking, executed personally or on his behalf, to
repay the advance if it is ultimately determined that he did not meet such
standard of conduct.
2. The undertaking required by pararagraph (b) of subsection (1) of this
Section shall be an unlimited general obligation of the applicant but need not
be secured and may be accepted without reference to financial ability to make
repayment.
3. Authorization of payments under this section shall be made by the persons
specified in Section (G).
I. Insurance. The Corporation may purchase and maintain insurance to indemnify
it against the whole or any portion of the liability assumed by it in accordance
with this Article and may also procure insurance, in such amounts as
the Board of Directors may determine, on behalf of any person who is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, against any liability asserted against or incurred by him in
any such capacity or arising from his status as such, whether or not the
Corporation would have power to indemnify him against such liability under the
provisions of this Article.
J. Further Indemnity. Everv reference herein to directors, officers, trustees,
partners, employees, agents or consultants shall include former directors,
officers, trustees, partners, employees, agents or consultants and thier
respective heirs, executors and administrators. The indemnification hereby
provided and provided hereafter pursuant to the power hereby conferred by this
Article on the Board of Directors shall not be exclusive of any other rights to
which any person may be entitled, including any right under policies of
insurance that may be purchased and maintained by the Corporation or others,
with respect to claims, issues or matters in relation to which the Corporation
would not have the power to indemnify such person under the provisions of this
Article. Such rights shall not prevent or restrict the power of the Corporation
to make or provide for any further indemnity, or provisions for determining
entitlement to indemnity, pursuant to one or more indemnification agreements,
bylaws, or other arrangements (including, without limitation, creation of trust
funds or security interests funded by letters of credit or other means) approved
by the Board of Directors (whether or not any of the directors of the
Corporation shall be a party to or beneficiary of any such agreements, bylaws
or arrangements); provided, however, that any provision of such agreements,
bylaws or other arrangements shall not be effective if and to the extent that it
is determined to be contrary to this Article or applicable laws of the
Commonwealth of Virginia.
K. Severability. Each provision of this Article shall be severable, and
an adverse determination as to any such provision shall in no way affect the
validity of any other provision.
ARTICLE VI
Article 14.1 of Chapter 9 of Title 13.1 of the Code of Virginia shall not apply
to the Corporation.
ARTICLE VII
The initial registered office of the Corporation is 707 East Main Street, P.O.
Box 1535, Richmond, Virginia 23212,
physically located in the City of Richmond. The initial registered agent of the
Corporation is Thurston R. Moore, a resident of Virginia and a member of the
Virginia State Bar whose business & address is identical with that of the
Corporation's initial registered office.
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Thurston R. Moore
Incorporator