1
EXHIBIT 3.33
CERTIFICATE OF INCORPORATION
OF
MOORE'S FALLS CORPORATION
The undersigned, in order to form a corporation under and
pursuant to the provisions of the General Corporation Law of the State of
Delaware, do hereby certify as follows:
FIRST: The name of the corporation is
MOORE'S FALLS CORPORATION
SECOND: The registered office of the corporation in
the State of Delaware is located at 100 West 10th Street, in the City of
Wilmington, County of New Castle. The name and address of its registered agent
is The Corporation Trust Company, 100 West 10th Street, Wilmington, Delaware.
THIRD: The nature of the business to be conducted or
promoted and the purposes of the corporation are to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
FOURTH: The total number of shares of all classes of
stock which the corporation shall have the authority to issue is One Thousand
(1,000) shares, all of which shall be of a single class, without par value.
2
The Board of Directors is hereby authorized within the limitations and
restrictions stated in this Article Fourth, to fix by resolution or resolutions
the powers, preferences and relative, participating, optional or other special
rights, and qualifications, limitations or restrictions of each of the
authorized classes of stock, including, without limiting the generality of the
foregoing, such provisions as may be desired concerning the voting, redemption,
dividends, dissolution or the distribution of assets, conversion or exchange,
and other subjects or matters as may be fixed by resolution or resolutions of
the Board of Directors under the General Corporation Law of Delaware.
FIFTH: The name and mailing address of the Incorporator is as follows:
NAME MAILING ADDRESS
W. J. Reif 100 West Tenth Street
Wilmington, Delaware
SIXTH: The powers of the incorporator are to terminate upon the filing of
this certificate of incorporation with the Secretary of State of the State of
Delaware. The names and mailing addresses of the persons who are to
-2-
3
serve as directors of the corporation until the first annual meeting of
stockholders or until their successors are elected and qualified are as
follows:
NAMES MAILING ADDRESSES
----- -----------------
F. C. Dumaine Suite 4500 Prudential Center
Boston, Massachusetts 02199
Dudley B. Dumaine Suite 4500 Prudential Center
Boston, Massachusetts 02199
Henry T. Wiggin Suite 4500 Prudential Center
Boston, Massachusetts 02199
Joseph B. Ely, II Suite 4500 Prudential Center
Boston, Massachusetts 02199
Alan L. Lefkowitz Room 1200, 225 Franklin Street
Boston, Massachusetts 02110
SEVENTH: (a) Except as otherwise required by law, by the
Certificate of Incorporation or by the by-laws of the corporation, as from time
to time amended, the business of the corporation shall be managed by its Board
of Directors, which shall have and may exercise all the powers of the
corporation. The Board of Directors of the corporation is hereby specifically
authorized and
-3-
4
empowered from time to time in its discretion to determine the extent, if any,
to which and the time and place at which, and the conditions under which any
stockholder of the corporation may examine books and records of the
corporation, other than the books and records now or hereafter required by
statute to be kept open for inspection of stockholders of the corporation. The
Board of Directors is expressly authorized to make, alter or repeal the by-laws
of the corporation.
(b) Any vote or votes authorizing liquidation of the
corporation or proceedings for its dissolution may provide, subject to the
rights of creditors and rights expressly provided for particular classes or
series of stocks, for the distribution pro rata among the stockholders of the
corporation of the assets of the corporation wholly or in part in kind, whether
such assets be in cash or other property, and may authorize the Board of
Directors of the corporation to determine the valuation of the different assets
of the corporation for the purpose of such liquidation and may divide or
authorize the Board of Directors to divide such assets or any part thereof
among the stockholders of the corporation, in such manner that every
stockholder will receive a proportionate amount in value (determined as
aforesaid) of cash or property of
-4-
5
the corporation upon such liquidation or dissolution even though each
stockholder may not receive a strictly proportionate part of each such asset.
(c) Election of directors need not be by ballot.
EIGHTH: The number of directors of the corporation shall be such
as from time to time shall be fixed by or in the manner provided by the
by-laws, but at no time shall the number of directors be fixed at less than
three.
NINTH: The corporation reserves the right to amend, alter,
change or repeal any provisions contained in this certificate of incorporation
in the manner now or hereafter prescribed by statute, and all rights conferred
upon stockholders are granted subject to this reservation.
TENTH: No contract or transaction between the corporation and
one or more of its directors or officers, or between the corporation and any
other corporation, partnership, association, or other organization in which one
or more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of
the Board or committee thereof which authorizes the contract or transaction, or
solely because his
-5-
6
or their votes are counted for such purpose if:
(1) The material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board or committee in good faith authorized
the contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum; or
(2) The material facts as to his relationship or interest and to the
contract or transaction are disclosed or are known to the stockholders entitled
to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or
(3) The contract or transaction is fair as to the corporation as of
the time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof, or the stockholders.
Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
ELEVENTH: 1. The corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
-6-
7
administrative or investigative (other than an action by or in the right of the
corporation) by reason of the fact that he 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 or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to be the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit, or 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 person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(2) The corporation shall indemnify any person who was or is a party
or is threatened to be made a party to
-7-
8
any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he 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 or other
enterprise against expenses (including attorney's fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the corporation unless and only to
the extent that the Court of Chancery of the State of Delaware or the court in
which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery of the State of Delaware or such other
court shall deem proper.
-8-
9
(3) To the extent that any person referred to in sections 1 and 2 of
this paragraph Eleventh has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to therein or in defense of
any claim, issue or matter therein, he shall be indemnified against expenses
(including attorney's fees) actually and reasonably incurred by him in
connection therewith.
(4) Any indemnification under sections 1 and 2 of this paragraph
Eleventh (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 director, officer, employee or agent is proper in the circumstances because
he has met the applicable standard of conduct set forth in sections 1 and 2 of
this paragraph Eleventh. Such determination shall be made (a) by the Board of
Directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (b) if such quorum is not
obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion or (c) by the
stockholders.
(5) Expenses incurred in defending a civil or criminal action, suit
or proceeding may be paid by the corporation in advance of the final
disposition of such action,
-9-
10
suit or proceeding as authorized by the Board of Directors in the specific case
upon receipt of an undertaking by or on behalf of the directors, officer,
employee or agent to repay such amount unless it shall ultimately be determined
that he is entitled to be indemnified by the corporation as provided in this
paragraph Eleventh.
(6) The indemnification provided by this paragraph Eleventh shall not
be deemed exclusive of any other rights to which those seeking indemnification
may be entitled under any statute, by-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(7) The corporation shall have power to purchase and maintain
insurance 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 or other enterprise, against any liability
asserted against him and incurred by him in any such capacity, or arising out
of his status as
-10-
11
such, whether or not the corporation would have the power to indemnify him
against such liability under the provisions of this paragraph Eleventh.
The UNDERSIGNED, hereby declaring and certifying the facts stated in
this certificate of incorporation are true, hereunto sets his hand and seal
this 8th day of March, 1971.
W. J. Reif
-------------------------
Incorporator
-11-
12
AGREEMENT OF MERGER
OF
MOORE'S FALLS CORPORATION
(a New Hampshire Corporation)
INTO
MOORE'S FALLS CORPORATION
(a Delaware Corporation)
AGREEMENT OF MERGER, dated this 26th day of April, 1971, by and between
MOORE'S FALLS CORPORATION, a Delaware corporation, and MOORE'S FALLS
CORPORATION, a New Hampshire corporation.
WITNESSETH THAT:
WHEREAS, said MOORE'S FALLS CORPORATION (New Hampshire) is a corporation
organized on January 19, 1921 under the laws of the State of New Hampshire,
having an authorized capital stock consisting of 30,000 shares of common stock
without par value, of which 3,010 are presently issued and outstanding, all held
by Amoskeag Company, a Delaware corporation; and
WHEREAS, said MOORE'S FALLS CORPORATION (Delaware) is a corporation
organized on March 8, 1971 under the laws of the State of Delaware, having an
authorized capital stock consisting of 1,000 shares of common stock without par
value, of which 10 shares are presently issued and outstanding, all held by
Amoskeag Company, a Delaware corporation and shall remain issued and
outstanding; and
WHEREAS, The board of directors, officers and stockholder of each of said
corporations deem it advisable and to the benefit of each of said corporations
respectively that MOORE'S FALLS CORPORATION (New Hampshire) be merged into
MOORE'S FALLS CORPORATION (Delaware).
13
NOW, THEREFORE, the corporations, parties to this agreement have agreed and
do hereby agree each with the other that said MOORE'S FALLS CORPORATION (New
Hampshire) shall be merged into said MOORE'S FALLS CORPORATION (Delaware), and
do hereby agree upon and prescribe the terms and conditions of the merger, the
mode of carrying the same into effect and the amount of the capital stock of
said MOORE'S FALLS CORPORATION (Delaware) to be issued to the present holder of
the issued and outstanding capital stock of MOORE's FALLS CORPORATION (New
Hampshire), as follows:
ARTICLE I.
The certificate of incorporation and by-laws of MOORE'S FALLS CORPORATION
(Delaware), as they shall exist on the effective date of this agreement shall be
and remain the certificate of incorporation and the by-laws of the continuing
corporation, until the same may be altered, amended or repealed as therein
provided or otherwise in accordance with the laws of the State of Delaware. The
purposes of the continuing corporation shall be as set forth in said certificate
of incorporation, and the total authorized capital stock shall be as therein set
forth, namely 1,000 shares of common stock, without par value.
ARTICLE II.
The principal place of business of the continuing corporation is and shall
be located at Suite 4500, Prudential Center in the City of Boston, County of
Suffolk, Commonwealth of Massachusetts.
ARTICLE III.
The first board of directors of the continuing corporation after the filing
of this Agreement of Merger shall consist of those
- 2 -
14
persons who are now directors of MOORE'S FALLS CORPORATION (Delaware); their
respective names and addresses are as follows:
NAMES ADDRESSES
----- ---------
F. C. Dumaine Suite 4500, Prudential Center
Boston, Massachusetts 02199
Dudley B. Dumaine Suite 4500, Prudential Center
Boston, Massachusetts 02199
Henry T. Wiggin Suite 4500, Prudential Center
Boston, Massachusetts 02199
Joseph B. Ely, II Suite 4500, Prudential Center
Boston, Massachusetts 02199
Alan L. Lefkowitz Room 1200, 225 Franklin Street
Boston, Massachusetts 02110
The officers of the continuing corporation after the filing of this
Agreement of Merger shall consist of those persons who are holders of the same
respective offices of MOORE'S FALLS CORPORATION (Delaware); their respective
names, addresses and offices are as follows:
OFFICE NAMES ADDRESSES
------ ----- ---------
President Joseph B. Ely, II Suite 4500, Prudential Center
Boston, Massachusetts 02199
Treasurer Henry T. Wiggin Suite 4500, Prudential Center
Boston, Massachusetts 02199
Secretary Dudley B. Dumaine Suite 4500, Prudential Center
Boston, Massachusetts 02199
Assistant Alan L. Lefkowitz Room 1200, 225 Franklin Street
Secretary Boston, Massachusetts 02110
ARTICLE IV.
The amount of the capital stock of the continuing corporation to be issued
to the present holder of the issued and outstanding capital stock of MOORE'S
FALLS CORPORATION (New Hampshire), is One
- 3 -
15
hundred (100) shares of common stock without par value, and the consideration
for the issuance of the shares of said common stock of the continuing
corporation to the holder of the issued and outstanding capital stock of said
MOORE'S FALLS CORPORATION (New Hampshire), is the surrender by it of the
certificates representing shares of the common stock, without par value, of said
MOORE'S FALLS CORPORATION (New Hampshire) now held by them, at the ratio of 30.1
share for each one (1) share of the common stock of the continuing corporation
to be issued to it.
The total number of issued shares of the continuing corporation after this
agreement of merger is filed is 110.
ARTICLE V.
Upon the effective date of the merger, the continuing corporation namely
MOORE'S FALLS CORPORATION (Delaware), shall be possessed of all the rights,
privileges, powers and franchises as well of a public as of a private nature,
and shall be subject to all the restrictions, disabilities and duties of MOORE'S
FALLS CORPORATION (New Hampshire), and all and singular, the rights, privileges,
powers and franchises of said corporation and all property, real, personal and
mixed owned and possessed by said corporation and all debts due to said
corporation on whatever account, as well as all other things in action or
belonging to said corporation, shall be vested in the continuing corporation;
and all property, rights and privileges, powers and franchises and all and every
other interest of said MOORE'S FALLS CORPORATION (New Hampshire), shall be
thereafter as effectually the property of the continuing corporation, and the
title to any real estate, whether by deed or otherwise, vested in said
- 4 -
16
MOORE'S FALLS CORPORATION (New Hampshire), shall not revert or be in any way
impaired by reason of the said merger, provided that all rights of creditors,
and all mortgages and other liens upon the property of said MOORE'S FALLS
CORPORATION (New Hampshire), shall be preserved unimpaired, and all debts,
liabilities and duties of MOORE'S FALLS CORPORATION (New Hampshire), shall
thenceforth attach to the continuing corporation, and may be enforced against it
to the same extent as if said debts, liabilities and duties had been incurred or
contracted by it.
ARTICLE VI.
If at any time the continuing corporation, namely MOORE'S FALLS CORPORATION
(Delaware), shall consider or be advised that any further assignments or
assurances in law or any things are necessary or desirable to vest in said
continuing corporation, according to the terms of this agreement, the title to
any property or rights of MOORE'S FALLS CORPORATION (New Hampshire), the proper
officers and directors of said MOORE'S FALLS CORPORATION (New Hampshire) shall
execute and make all such proper assignments and assurances and do all things
necessary or proper to vest title in such property or rights in the continuing
corporation, and otherwise to carry out the purposes of this agreement of
merger.
The continuing corporation shall pay all expenses of carrying this
agreement into effect and accomplishing the merger.
ARTICLE VII.
If this agreement is approved by the vote of the holders of two-thirds of
each class of stock entitled to vote on a proposal of merger of each
corporation party to this agreement, present in
- 5 -
17
person or represented by proxy at separate meetings duly called for the
purposes, or acting by written consent where allowed by law, this agreement
shall be executed, submitted for approval of the Attorney General or Assistant
Attorney General of the State of New Hampshire, and filed with the Secretary of
State of New Hampshire and with the Secretary of State of Delaware. It shall
become effective upon such filing. As soon as practicable after the effective
date of merger, this agreement shall be recorded in the office of the Recorder
of Deeds of New Castle County, Delaware, and with the register of deeds for each
county in New Hampshire in which MOORE'S FALLS CORPORATION (New Hampshire) owned
real estate prior to the merger.
IN WITNESS WHEREOF, we have hereto signed our names, and affixed the seal
of each respective corporation, this 26th day of April, 1971.
MOORE'S FALLS CORPORATION
(A Delaware corporation)
By /s/ JOSEPH B. ELY, II
-------------------------------
Joseph B. Ely, II, President
[CORPORATE SEAL]
ATTEST:
/s/ ALAN L. LEFKOWITZ
- ---------------------------------------
Alan L. Lefkowitz, Assistant Secretary
MOORE'S FALLS CORPORATION
(a New Hampshire corporation)
By /s/ JOSEPH B. ELY, II
--------------------------------
Joseph B. Ely, II, President
[CORPORATE SEAL]
ATTEST:
/s/ ALAN L. LEFKOWITZ
- ----------------------------------------
Alan L. Lefkowitz, Assistant Secretary
- 6 -
18
WE, THE UNDERSIGNED, being the Treasurer and a majority of the Board of
Directors of MOORE'S FALLS CORPORATION, a New Hampshire corporation with its
principal place of business in Manchester, County of Hillsborough and State of
New Hampshire, do hereby certify that at a meeting of the stockholders duly
called for the purpose, held on April 26, 1971, in Manchester, New Hampshire,
the following vote was unanimously adopted by a vote of all shares entitled to
vote on the subject, namely:
VOTED: That this corporation merge with MOORE'S FALLS CORPORATION, a
corporation duly organized and existing under the laws of the State of
Delaware, in accordance with the provisions of Chapter 294, section
42, of the New Hampshire Revised Statutes Annotated and of Section 252
of the General Corporation laws of Delaware, and enter into an
agreement of merger upon such terms and conditions all as provided in
said agreement, a copy of which is attached hereto and made a part of
the records of this meeting; and
That the President of MOORE'S FALLS CORPORATION (New Hampshire), be
and he hereby is authorized and directed on behalf of said corporation
to make, execute, and deliver said agreement of merger and that the
treasurer and a majority of the board of directors of the corporation
be and they hereby are authorized and directed on behalf of said
corporation to cause the agreement of merger to be submitted for the
approval of the Attorney General or Assistant Attorney General of the
State of New Hampshire the Secretary of State of the State of
Delaware, and subject to such approval to be filed and recorded in the
office of the Secretary of State of the State of New Hampshire and the
Secretary of State of the State of Delaware, and further to take all
such other action as they may deem necessary or convenient to
effectuate such agreement under the laws of the State of New Hampshire
and the State of Delaware.
We further certify that the agreement of merger, a copy of which is
attached hereto, is the agreement referred to in the preceding vote; and that
said agreement was executed by the respective
- 7 -
19
officers of the aforesaid corporation as indicated thereon.
Dated: April 27, 1971
/s/ HENRY T. WIGGIN
--------------------------------
Henry T. Wiggin, Treasurer
Directors:
/s/ HENRY T. WIGGIN
--------------------------------
H. T. Wiggin
/s/ JOSEPH B. ELY, II
--------------------------------
Joseph B. Ely, II
/s/ ALAN L. LEFKOWITZ
--------------------------------
Alan L. Lefkowitz
COMMONWEALTH OF MASSACHUSETTS)
)
) SS: April 27, 1971
COUNTY OF SUFFOLK )
Then personally appeared the above-named Henry T. Wiggin (Treasurer and
Director), Joseph B. Ely, II and Alan L. Lefkowitz, a majority of the Directors
of MOORE'S FALLS CORPORATION,, a New Hampshire corporation, and made oath that
the foregoing affidavit by them subscribed is true.
Before me,
/s/ ELIZABETH W. HITCHCOCK
--------------------------------
Notary Public
[NOTARIAL SEAL]
My Commission Expires Feb. 23, 1972
- 8 -
20
I, ALAN L. LEFKOWITZ, Assistant Secretary of MOORE'S FALLS CORPORATION, a
corporation organized and existing under the laws of the State of Delaware,
hereby certify, as such Assistant Secretary and under the seal of the said
corporation, that the Agreement of Merger to which this certificate is attached,
after having been first duly signed on behalf of the said corporation and having
been signed on behalf of MOORE'S FALLS CORPORATION, a corporation of the State
of New Hampshire, was duly adopted pursuant to Section 288 of Title 8 of the
Delaware Code of 1953, as amended, by the unanimous written consent of the
stockholder holding all of the issued and outstanding capital stock of the
corporation, which Plan and Agreement of Merger thereby was adopted as the act
of the stockholder of said MOORE'S FALLS CORPORATION (Delaware), and the duly
adopted agreement and act of the said corporation.
WITNESS my hand and the seal of said MOORE'S FALLS CORPORATION on this 27th
day of April, 1971.
/s/ ALAN L. LEFKOWITZ
--------------------------------------
[CORPORATE SEAL] Alan L. Lefkowitz, Assistant Secretary
COMMONWEALTH OF MASSACHUSETTS)
)
) SS: April 27, 1971
COUNTY OF SUFFOLK )
Then personally appeared the above-named Alan L. Lefkowitz, Assistant
Secretary of MOORE'S FALLS CORPORATION, a Delaware corporation, and made oath
that the foregoing affidavit by him subscribed is true.
Before me,
/s/ ELIZABETH W. HITCHCOCK
--------------------------------------
[NOTARIAL SEAL] Notary Public
My Commission Expires Feb. 23, 1972
- 9 -
21
THE ABOVE AGREEMENT OF MERGER, having been executed on behalf of each
corporate party thereto, and having been adopted separately by each corporate
party thereto, in accordance with the provisions of the General Corporation Law
of the State of Delaware, the President of MOORE'S FALLS CORPORATION (New
Hampshire) and the President of MOORE FALL'S CORPORATION (Delaware) now hereby
do execute the said Agreement of Merger and the Assistant Secretary of each
corporate party thereto now hereby does attest the said Agreement of Merger
under the seal of their respective corporations, by authority of the directors
and stockholders thereof, as the respective act, deed and agreement of said
corporations, on this 27th day of April, 1971.
MOORE'S FALLS CORPORATION
[CORPORATE SEAL] (New Hampshire)
By /s/ JOSEPH B. ELY, II
------------------------------------
Joseph B. Ely, II, President
ATTEST:
/s/ ALAN L. LEFKOWITZ
- --------------------------------------
Alan L. Lefkowitz, Assistant Secretary
MOORE'S FALLS CORPORATION
[CORPORATE SEAL] (Delaware)
By /s/ JOSEPH B. ELY, II
------------------------------------
Joseph B. Ely, II, President
ATTEST:
/s/ ALAN L. LEFKOWITZ
- --------------------------------------
Alan L. Lefkowitz, Assistant Secretary
- 10 -
22
ACKNOWLEDGMENT
Commonwealth of Massachusetts ) ss.
County of Suffolk )
BE IT REMEMBERED, that on this 27th day of April, 1971, personally came
before me, a Notary Public, in and for the aforesaid County and Commonwealth,
Joseph B. Ely, II, President of MOORE'S FALLS CORPORATION, a Delaware
corporation, and he duly executed said Plan and Agreement of Merger before me
and acknowledged said Plan and Agreement of Merger to be his act and deed and
the act and deed of said corporation and the facts stated therein are true; and
that the seal affixed to said Plan and Agreement of Merger and attested by the
Secretary of said corporation is the common corporate seal of said corporation.
/s/ ELIZABETH W. HITCHCOCK
--------------------------------
Notary Public
NOTARIAL SEAL
My commission expires: Feb. 23, 1972
23
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
MOORE'S FALLS CORPORATION
Pursuant to Section 242
It is hereby CERTIFIED for and in behalf of MOORE'S FALLS CORPORATION, a
corporation organized and existing under the laws of the State of Delaware that:
FIRST: The Board of Directors of said corporation, at a meeting duly held
on November 7, 1972, adopted the following resolution setting forth an
amendment to the certificate of incorporation and declared the advisability
thereof:
RESOLVED: That the certificate of incorporation of this corporation
be amended by striking out the first paragraph only of Article
FOURTH and inserting in place thereof -
"FOURTH: The total number of shares of all classes of stock which
the corporation shall have authority to issue is Seven Thousand
(7,000) shares, of which 6,000 shares shall be 8% Preferred Stock
with a par value of $100 each, and One Thousand (1,000) shares
shall be Common Stock without par value."
SECOND: That in lieu of a meeting and vote by the stockholder entitled to
vote with respect to such amendment, the holder of all of the outstanding
capital stock entitled to vote thereon, consisting
24
of 110 shares of common stock presently outstanding, has consented in
writing on November 7, 1972 to the adoption of the resolution and effecting
said amendment.
THIRD: That the amendment to the certificate of incorporation of MOORE'S
FALLS CORPORATION provided herein is to become effective on January 2, 1973.
IN WITNESS WHEREOF, MOORE'S FALLS CORPORATION has caused its corporate
seal to be hereunto affixed and this certificate to be signed by Joseph B. Ely,
II, its President, and attested by Frederic P. Melzar, its Secretary, this 11th
day of December, 1972.
MOORE'S FALLS CORPORATION
By: /s/ Joseph B. Ely II
-----------------------------
President
Attest:
By /s/ FREDERIC P. MELZAR
--------------------------
COMMONWEALTH OF MASSACHUSETTS )
) ss:
COUNTY OF SUFFOLK )
BE IT REMEMBERED that on this 11th day of December, 1972, personally
came before me, a Notary Public in and for the County and State aforesaid,
Joseph B. Ely, II, President of Moore's Falls Corporation, a corporation of the
State of Delaware, and he duly executed said certificate before me and
acknowledged the said
25
certificate to be his act and deed and the act and deed of said corporation and
the facts stated therein are true; and that the seal affixed to said certificate
and attested by the Assistant Secretary of said corporation is the common or
corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand the seal of office the
day and year aforesaid.
/s/ ALAN L. LEFKOWITZ
--------------------------------
Notary Public
NOTARIAL SEAL My commission expires: May 4, 1973
26
CERTIFICATE OF REDUCTION
OF CAPITAL
* * * * * *
MOORE'S FALLS CORPORATION, a corporation organized and existing under
the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of Moore's Falls
Corporation duly held on August 21, 1974, resolutions were adopted setting
forth a proposed reduction of the capital of said corporation in the manner and
to the extent hereinafter set forth.
RESOLVED: That it is hereby declared advisable for this corporation to
call for redemption and redeem the 5,120 shares of 8% Preferred Stock
of this corporation now held by Amoskeag Company for a price of $100
per share together with all dividends accrued thereon up to and
including August 31, 1974, the date for which said call is hereby
made, and that an amount sufficient to pay the dividends accrued to
such date be set aside forthwith for the payment thereof. Said
redemption shall be in consideration of the issuance of a promissory
note of this corporation in the principal amount of $512,000,
payable on demand, with interest at 8% per annum.
RESOLVED: That it is hereby declared advisable to eliminate the
capital of this corporation represented by the 6,000 shares of 8%
Preferred Stock with a par value of $100 each presently authorized,
including the 5,120 of such shares issued and outstanding but to be
redeemed pursuant to the foregoing resolution, and that the capital of
this corporation shall be so reduced after such redemption.
27
SECOND: That pursuant to the provisions of Section 244 of The General
Corporation Law of the State of Delaware a reduction of the capital of the
corporation by the amount of Five Hundred Twelve Thousand Dollars ($512,000)
was authorized in the following manner:
By eliminating the capital represented by the shares of capital stock
which have been redeemed and retired pursuant to the foregoing
resolutions, and the shares of capital stock of the corporation, which
are retired in connection with the reduction of capital, are
identified as being Five Thousand One Hundred Twenty (5,120) shares of
the 8% Preferred Stock with a par value of One Hundred Dollars ($100)
per share.
THIRD: That the assets of the corporation remaining after such
reduction are sufficient to pay any debts, the payment of which has not been
otherwise provided for.
IN WITNESS WHEREOF, said MOORE'S FALLS CORPORATION has caused its
corporate seal to be hereunto affixed and this certificate to be signed by
Joseph B. Ely, II, its President, and attested by Frederic P. Melzar, its
Secretary this 12th day of September, 1974.
CORPORATE SEAL MOORE'S FALLS' CORPORATION
Attest: By /s/ JOSEPH B. ELY, II
-------------------------
President
By: /s/ FREDERIC P. MELZAR
-------------------------------
Secretary
-2-
28
COMMONWEALTH OF MASSACHUSETTS )
) ss:
COUNTY OF SUFFOLK )
BE IT REMEMBERED that on this 12th day of September, 1974,
personally came before me, a Notary Public in and for the County and State
aforesaid, Joseph B. Ely, II, President of Moore's Falls Corporation, a
corporation of the State of Delaware, and he duly executed said certificate
before me and acknowledged the said certificate to be his act and deed and the
act and deed of said corporation and the facts stated therein are true; and
that the seal affixed to said certificate and attested by the Secretary of said
corporation is the common or corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand the seal of office
the day and year aforesaid.
/s/ HELEN C. FREDRICKSON
-----------------------------------
Notary Public
NOTARIAL SEAL My commission expires: Dec. 17, 1976
-3-
29
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
MOORE'S FALLS CORPORATION
It is hereby CERTIFIED for and in behalf of MOORE'S FALLS
CORPORATION, a corporation organized and existing under the laws of the State
of Delaware that:
FIRST: The Board of Directors of said corporation, at a meeting duly
held on August 21, 1974, adopted the following resolution setting forth an
amendment to the certificate of incorporation and declared the advisability
thereof:
RESOLVED: That the Certificate of Incorporation of this corporation be
amended by striking out the first paragraph only of Article FOURTH and
inserting in place thereof -
"FOURTH: The total number of shares of all classes of stock which the
corporation shall have authority to issue is One Thousand (1,000)
shares, all of which shall be a single class of Common Stock, without
par value."
30
SECOND: That in lieu of a meeting and vote by the stockholder
entitled to vote with respect to such amendment, the holder of all of the
outstanding capital stock entitled to vote thereon, consisting of 110 shares of
common stock without par value and 5,120 shares of 8% Preferred Stock with a
par value of $100 per share, then presently outstanding, has consented in
writing on August 21, 1974 to the adoption of the resolution and effecting said
amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
FOURTH: That a Certificate of Reduction of Capital pursuant to
Section 244(c) of the General Corporation Law of the State of Delaware is
being filed with this Certificate of Amendment.
IN WITNESS WHEREOF, MOORE'S FALLS CORPORATION has caused its
corporate seal to be hereunto affixed and this certificate to be signed by
Joseph B. Ely, II, its President, and attested by Frederic P. Melzar, its
Secretary, this 12th day of September, 1974.
MOORE'S FALLS CORPORATION
By /s/ JOSEPH B. ELY, II
-----------------------
President
Attest:
/s/ FREDERIC P. MELZAR
- ----------------------------
[CORPORATE SEAL]
-2-
31
COMMONWEALTH OF MASSACHUSETTS )
) ss:
COUNTY OF SUFFOLK )
BE IT REMEMBERED that on this 12th day of September, 1974,
personally came before me, a Notary Public in and for the County and State
aforesaid, Joseph B. Ely, II, President of Moore's Falls Corporation, a
corporation of the State of Delaware, and he duly executed said certificate
before me and acknowledged the said certificate to be his act and deed and the
act and deed of said corporation and the facts stated therein are true; and
that the seal affixed to said certificate and attested by the Secretary of said
corporation is the common or corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand the seal of office the
day and year aforesaid.
/s/ HELEN C. FREDRICKSON
------------------------------
Notary Public
My commission expires: Dec. 17, 1976
[NOTARIAL SEAL]
-3-