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THE COMMONWEALTH OF MASSACHUSETTS EXHIBIT 3.1
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Examiner
WILLIAM FRANCIS GALVIN FEDERAL IDENTIFICATION
Secretary of State
ONE ASHBURTON PLACE, BOSTON, MA 02108 NO. 04-3186647
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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.
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I, Michael Szycher, Ph.D., President and
Clerk of
CardioTech International, Inc.
...............................................................................
(Name of Corporation)
located at 11 State Street, Woburn, Massachusetts 01801
.....................................................................
do hereby certify that the following restatement of the articles of organization
of the corporation was duly adopted May 9, 1996 by vote of
4,964,746 Common Stock 4,964,746
...............shares of...............out of............shares outstanding,
(Class of Stock)
...............shares of...............out of............shares outstanding, and
(Class of Stock)
...............shares of...............out of............shares 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:
C / / 1. The name by which the corporation shall be known is:CardioTech
P / / International, Inc.
M / /
RA / / 2. The purposes for which the corporation is formed are as follows:
(a) To engage in the business of inventing, developing,
acquiring, using, manufacturing, licensing, marketing,
distributing, selling and otherwise commercializing products
and related technology consisting of, in whole or in part,
medical grade polyurethanes.
(b) To carry on any business or other activity which may
lawfully be carried on by a corporation organized under the
Business Corporation Law of the Commonwealth of
Massachusetts, whether or not related to those referred to
in the preceding paragraph.
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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 5,000,000 $.01
Common 20,000,000 $.01
*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 Sheets 4A - 4C herewith.
*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 limiting, defining, or regulating the powers
of the corporation, or of its directors or stockholders, or of
any class of stockholders:
See Continuation Sheets 6A - 6J herewith.
*If there are no such provisions, state "None".
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Continuation Sheet 4A
ARTICLE 4
The authorized classes of capital stock of the Corporation shall be
designated, respectively, the Common Stock, $.01 par value (the "Common Stock")
and the Preferred Stock, $.01 par value (the "Preferred Stock").
Every one (1) share of Common Stock outstanding on March 19, 1996 shall
hereby be changed and reclassified, effective March 19, 1996, but without any
further action on the part of the Corporation or its stockholders, into
fifty-four and seven thousand three hundred and twenty-eight ten-thousandths
(54.7328) fully paid and nonassessable shares of Common Stock. Each person, as
of March 19, 1996, holding of record any issued and outstanding shares of Common
Stock shall receive upon surrender to the Corporation, a stock certificate or
certificates to evidence and represent the number of shares of post-split Common
Stock to which such stockholder is entitled after giving effect to the stock
split.
Every one (1) share of Common Stock outstanding on the date of the filing
of these Restated Articles of Organization shall hereby be changed and
reclassified, effective upon filing of these Restated Articles of Organization,
but without any further action on the part of the Corporation or its
stockholders, into .766453701 of a fully paid and nonassessable share of Common
Stock. Each person, as of the filing of these Restated Articles of
Organization, holding of record any issued and outstanding shares of Common
Stock shall receive upon surrender to the Corporation (i) a stock certificate
or certificates to evidence and represent the number of shares of post-split
Common Stock to which such stockholder is entitled after giving effect to the
reverse stock split and (ii) a cash payment for the fractional share of Common
Stock, if any, which such stockholder would otherwise be entitled to receive in
an amount equal to the fractional share which such stockholder would otherwise
be entitled to receive multiplied by $5.50.
The relative powers, designations, preferences, special rights,
restrictions and other matters relating to such Common Stock and Preferred Stock
are as set forth below in this Article 4.
1. Common Stock
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The Common Stock shall be designated as Common Stock, $.01 par value per
share. Except as otherwise required by law, each holder of shares of Common
Stock shall be entitled to one vote for all purposes for each share of Common
Stock held.
Except for and subject to those rights expressly granted to the holders of
any series of Preferred Stock, and except to the extent otherwise provided in
the Corporation's Articles of Organization or By-Laws or by applicable law, the
holders of Common Stock shall have exclusively all rights of stockholders of the
Corporation under the Massachusetts Business Corporation Law.
2. Preferred Stock
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The Board of Directors is authorized, subject to limitations prescribed by
law and the provisions of this Article 4, to provide for the issuance from time
to time of the shares of Preferred Stock in one or more series, and, by filing a
certificate pursuant to the applicable law
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Continuation Sheet
Continuation Sheet 4B
of the Commonwealth of Massachusetts (the "Certificate of Designation"), to
establish from time to time the number of shares to be included in each such
series and to fix the designation, preferences, voting powers, qualifications
and special or relative rights or privileges of the shares of each such series.
In the event that at any time the Board of Directors shall have established and
designated one or more series of Preferred Stock consisting of a number of
shares less than all of the authorized number of shares of Preferred Stock, the
remaining authorized shares of Preferred Stock shall be deemed to be shares of
an undesignated series of Preferred Stock until designated by the Board of
Directors as being a part of a series previously established or a new series
then being established by the Board of Directors. Notwithstanding the fixing of
the number of shares constituting a particular series, the Board of Directors
may at any time thereafter authorize the issuance of additional shares of the
same series except as set forth in the Certificate of Designation. The authority
of the Board of Directors with respect to each series of Preferred Stock shall
include, but not be limited to, determination of the following:
(i) the number of shares constituting that series and the distinctive
designation of that series, and whether additional shares of that
series may be issued;
(ii) whether any dividends shall be paid on shares of that series,
and, if so, the dividend rate on the shares of that series;
whether dividends shall be cumulative and, if so, from which date
or dates, and the relative rights of priority, if any, of payment
of dividends on shares of that series;
(iii) whether shares of that series shall have voting rights in
addition to the voting rights provided by law and, if so, the
terms of such voting rights;
(iv) whether shares of that series shall be convertible into shares of
Common Stock or another security and, if so, the terms and
conditions of such conversion, including provisions for
adjustment of the conversion rate in such events as the Board of
Directors shall determine;
(v) whether or not the shares of that series shall be redeemable and,
if so, the terms and conditions of such redemption, including the
date or dates upon or after which they shall be redeemable and
the amount per share payable in case of redemption, which amount
may vary under different conditions and the different redemption
dates; and whether that series shall have a sinking fund for the
redemption or purchase of shares of that series and, if so, the
terms and amount of such sinking fund;
(vi) whether, in the event of a purchase or redemption of the shares
of that series, any shares of that series shall be restored to
the status of
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Continuation Sheet 4C
authorized but unissued shares or shall have such other status as
shall be set forth in the Certificate of Designation;
(vii) the rights of the shares of that series in the event of the
sale, conveyance, exchange or transfer of all or substantially
all of the property and assets of the Corporation, or the merger
or consolidation of the Corporation into or with any other
corporation, or the merger of any other corporation into it, or
the voluntary or involuntary liquidation, dissolution or winding
up of the Corporation, and the relative rights of priority, if
any, of the shares of that series to payment in any such event;
(viii) whether the shares of that series shall carry any preemptive
right in or preemptive right to subscribe to any additional
shares of Preferred Stock or any shares of any other class of
stock which may at any time be authorized or issued, or any
bonds, debentures or other securities convertible into shares of
stock of any class of the Corporation, or options or warrants
carrying rights to purchase such shares or securities; and
(ix) any other designations, preferences, voting powers,
qualifications, and special or relative rights or privileges of
the shares of that series.
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Continuation Sheet 6A
ARTICLE 6
6A. CERTAIN BUSINESS COMBINATIONS
(a) VOTE REQUIRED FOR CERTAIN BUSINESS COMBINATIONS.
(1) HIGHER VOTE FOR CERTAIN BUSINESS COMBINATIONS. In addition to any
affirmative vote required by law or these Articles of Organization, and except
as otherwise expressly provided in paragraph (b) of this Article 6A:
(i) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with (a) any Interested Stockholder (as
hereinafter defined) or (b) any other corporation (whether or not itself an
Interested Stockholder) which is, or after such merger or consolidation
would be, an Affiliate (as hereinafter defined) of an Interested
Stockholder; or
(ii) any sale, lease, license, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) to or
with any Interested Stockholder or any Affiliate of any Interested
Stockholder of any assets of the Corporation or any Subsidiary having an
aggregate Fair Market Value (as hereinafter defined) equal to or greater
than ten percent (10%) of the combined assets of the Corporation and its
Subsidiaries; or
(iii) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of transactions) of any securities of the
Corporation or any Subsidiary to any Interested Stockholder or any
Affiliate of any Interested Stockholder in exchange for cash, securities or
other property (or a combination thereof) having an aggregate Fair Market
Value equal to or greater than ten percent (10%) of the combined assets of
the Corporation and its Subsidiaries, except pursuant to an employee
benefit plan of the Corporation or any Subsidiary thereof; or
(iv) any reclassification of securities of the Corporation (including
any reverse stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its Subsidiaries or
any other transaction (whether or not with or into or otherwise involving
an Interested Stockholder) which has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding shares of any class
of equity or convertible securities of the Corporation or any Subsidiary
which are directly or indirectly owned by any Interested Stockholder or any
Affiliate of any Interested Stockholder; or
(v) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an Interested
Stockholder or any Affiliate of any Interested Stockholder shall require
the affirmative vote of the holders of at least eighty
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Continuation Sheet 6B
percent (80%) of the voting power of the then outstanding shares of
capital stock of the Corporation entitled to vote in the election of
directors (the "Voting Stock"), voting together as a single class (it being
understood that for purposes or this Article 6A, each share of the Voting
Stock shall have the number of votes granted to it pursuant to Article 4 of
these Articles of Organization). Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that a lesser
percentage may be specified by law or by any other provision of these
Articles of Organization or any Certificate of Designation (as defined in
Article 4 of these Articles of Organization), or in any agreement with any
national securities exchange or otherwise.
(2) DEFINITION OF "BUSINESS COMBINATION". The term "Business Combination"
as used in this Article 6A shall mean any transaction which is referred to in
any one or more of clauses (i) through (v) of subparagraph (a)(1).
(b) WHEN HIGHER VOTE IS NOT REQUIRED. The provisions of paragraph (a) of this
Article 6A shall not be applicable to any particular Business Combination, and
such Business Combination shall require only such affirmative vote as is
required by law and any other provision of these Articles of Organizations, if,
in the case of any Business Combination that does not involve any cash or other
consideration being received by the stockholders of the Corporation solely in
their capacity as stockholders of the Corporation, the condition specified in
the following subparagraph (b)(1) is met, or, in the case of any other Business
Combination, all of the conditions specified in the following subparagraphs
(b)(1) and (b)(2) are met:
(1) APPROVAL BY DISINTERESTED DIRECTORS. The Business Combination shall
have been approved by a majority of the members of the Board of Directors of the
Corporation (the "Board") who are Disinterested Directors (as hereinafter
defined), it being understood that this condition shall not be capable of
satisfaction unless there is at least one Disinterested Director.
(2) PRICE AND PROCEDURAL REQUIREMENTS. All of the following conditions
shall have been met:
(i) The aggregate amount of the cash and the Fair Market Value as of the
date of the consummation of the Business Combination of consideration other than
cash to be received per share by the holders of Common Stock of the Corporation
in such Business Combination shall be at least equal to the higher of the
following:
(A) (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees) paid by
the Interested Stockholder or any of its Affiliates for any shares of
Common Stock of the Corporation acquired by it (1) within the two-year
period immediately prior to the first public announcement of the proposal
of the Business Combination (the "Announcement Date") or (2) in the
transaction in which it became an Interested Stockholder, whichever is
higher; or
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Continuation Sheet 6C
(B) the Fair Market Value per share of Common Stock of the Corporation
on the Announcement Date or on the date on which the Interested Stockholder
became an Interested Stockholder (the "Determination Date"), whichever is
higher.
(ii) The aggregate amount of the cash and the Fair Market Value, as of the
date of the consummation of the Business Combination, of consideration other
than cash to be received per share by holders of shares of any class of
outstanding Voting Stock other than Common Stock, shall be at least equal to the
highest of the following (it being intended that the requirements of this
subparagraph (b)(2)(ii) shall be required to be met with respect to every class
of outstanding Voting Stock, whether or not the Interested Stockholder has
previously acquired any shares of a particular class of Voting Stock):
(A) (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees) paid by
the Interested Stockholder or any of its Affiliates for any shares of such
class of Voting Stock acquired or beneficially owned by it that were
acquired (1) within the two-year period immediately prior to the
Announcement Date or (2) in the transaction in which it became an
Interested Stockholder, whichever is higher; or
(B) (if applicable) the highest preferential amount per share to which
the holders of shares of such class of Voting Stock are entitled in the
event of any voluntary liquidation, dissolution or winding up of the
Corporation; or
(C) the Fair Market Value per share of such class of Voting Stock on
the Announcement Date or on the Determination Date, whichever is higher.
(iii) The price determined in accordance with subparagraphs (i) and (ii) of
this subparagraph (b)(2) shall be subject to appropriate adjustment in the event
of any stock dividend, stock split, combination of shares or similar event.
(iv) The holders of all outstanding shares of Voting Stock not beneficially
owned by the Interested Stockholder immediately prior to the consummation of any
Business Combination shall be entitled to receive in such Business Combination
cash or other consideration for their shares meeting all of the terms and
conditions of this subparagraph (b)(2) (provided, however, that the failure of
any stockholders who are exercising their statutory rights to dissent from such
Business Combination and receive payment of the fair value of their shares in
exchange for their shares in such Business Combination shall not be deemed to
have prevented the condition set forth in this subparagraph (2)(iv) from being
satisfied).
(v) The consideration to be received by holders of any particular class of
outstanding Voting Stock (including Common Stock) shall be in cash or in the
same form as the Interested Stockholder has previously paid for shares of such
class of Voting Stock. If the Interested Stockholder has paid for shares of any
class of Voting Stock with varying forms of consideration, the form of
consideration to be received per share by holders of such class of
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Continuation Sheet 6D
Voting Stock shall be either cash or the form used to acquire the largest number
of shares of such class of Voting Stock previously acquired by the Interested
Stockholder.
(vi) After such Interested Stockholder has become an Interested Stockholder
and prior to the consummation of such Business Combination: (A) except as
approved by a majority of the Disinterested Directors, there shall have been no
failure to declare and pay at the regular date therefor any full quarterly
dividends (whether or not cumulative) on any outstanding Preferred Stock of the
Corporation; (B) there shall have been (I) no reduction in the annual rate of
dividends paid on the Common Stock of the Corporation (except as necessary to
reflect any subdivision of the Common Stock), except as approved by a majority
of the Disinterested Directors, and (II) an increase in such annual rate of
dividends as necessary to reflect any reclassification (including any reverse
stock split), recapitalization, reorganization or any similar transaction which
has the effect of reducing the number of outstanding shares of the Common Stock,
unless the failure so to increase such annual rate is approved by a majority of
the Disinterested Directors; and (C) neither such Interested Stockholder nor any
of its Affiliates shall have become the beneficial owner of any additional
shares of Voting Stock except as part of the transaction which results in such
Interested Stockholder becoming an Interested Stockholder.
(vii) After such Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder shall not have received the benefit,
directly or indirectly (except proportionately as a stockholder), of any loans,
advances, guarantees, pledges or other financial assistance or any tax credits
or other tax advantages provided by the Corporation, whether in anticipation of
or in connection with such Business Combination or otherwise.
(viii) A proxy or information statement describing the proposed Business
Combination and complying with the requirements of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and the rules and regulations
thereunder (or any subsequent provisions replacing the Exchange Act or such
rules or regulations) shall be mailed to stockholders of the Corporation at
least thirty (30) days prior to the consummation of such Business Combination
(whether or not such proxy or information statement is required to be mailed
pursuant to the Exchange Act or subsequent provisions). Such proxy or
information statement shall contain, if a majority of the Disinterested
Directors so requests, an opinion of a reputable investment banking firm which
shall be selected by a majority of the Disinterested Directors, furnished with
all information such investment banking firm reasonably requests and paid a
reasonable fee for its services by the Corporation upon the Corporation's
receipt of such opinion, as to the fairness (or lack of fairness) of the terms
of the proposed Business Combination from the point of view of the holders of
shares of Voting Stock (other than the Interested Stockholder).
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Continuation Sheet 6E
(c) CERTAIN DEFINITIONS. For the purposes of this Article 6A:
(1) A "person" shall include any individual, group acting in concert,
corporation, partnership, association, joint venture, pool, joint stock company,
trust, unincorporated organization or similar company, syndicate, or any group
formed for the purpose of acquiring, holding or disposing of securities.
(2) "Interested Stockholder" shall mean any person (other than the
Corporation or any Subsidiary) who or which:
(i) is the beneficial owner, directly or indirectly, of more than
fifteen percent (15%) of the voting power of the then outstanding Voting
Stock; or
(ii) is an Affiliate of the Corporation and at any time within the
two-year period immediately prior to the date in question was the
beneficial owner, directly or indirectly, of fifteen percent (15%) or more
of the voting power of the then outstanding Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to any shares of
Voting Stock which were at any time within the two-year period immediately
prior to the date in question beneficially owned by any Interested
Stockholder, if such assignment or succession shall have occurred in the
course of a transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933, as amended.
(3) A person shall be a "beneficial owner" of any shares of Voting
Stock:
(i) which such person or any of its Affiliates or Associates (as
hereinafter defined) beneficially owns, directly or indirectly, within the
meaning of Rule 13d-3 of the Exchange Act, as in effect on March 13,
1996; or
(ii) which such person or any of its Affiliates or Associates has (A)
the right to acquire (whether such right is exercisable immediately or only
after the passage of time), pursuant to an agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise; provided, however, that a person shall
not be deemed the beneficial owner of securities tendered pursuant to a
tender or exchange offer made by or on behalf of such person or any of such
person's Affiliates or Associates until such tendered securities are
accepted for purchase; or (B) the right to vote pursuant to any agreement,
arrangement, understanding or otherwise; provided, however, that a person
shall not be deemed the beneficial owner of any security if the agreement,
arrangement or understanding to vote such security (I) arises solely from a
revocable proxy or consent solicitation made pursuant to, and in accordance
with, the Exchange Act and (II) is not also then reportable on Schedule 13D
under the Exchange Act (or a comparable or successor report); or
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Continuation Sheet 6F
(iii) which are beneficially owned, directly or indirectly within the
meaning of Rule 13d-3 under the Exchange Act, as in effect on March 13,
1996 by any other person with which such person or any of its Affiliates
or Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting (except to the extent permitted by
the provision of subparagraph (c)(3)(ii)(B) above) or disposing of any
shares of Voting Stock;
provided, however, that in the case of any employee stock ownership plan or
similar plan of the Corporation or of any Subsidiary in which the beneficiaries
thereof possess the right to vote any shares of Voting Stock held by such plan,
no such plan nor any trustee with respect thereto (nor any Affiliate of such
trustee), solely by reason of such capacity of such trustee, shall be deemed,
for any purposes hereof, to beneficially own any shares of Voting Stock held
under any such plan.
(4) For the purposes of determining whether a person is an Interested
Stockholder pursuant to subparagraph (c)(2), the number of shares of Voting
Stock deemed to be outstanding shall include shares deemed owned through
application of subparagraph (c)(3), but shall not include any other shares of
Voting Stock which may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants, or options, or
otherwise.
(5) "Affiliate" and "Associate" shall have the meanings ascribed to such
terms in Rule 12b-2 of the General Rules and Regulations under the Exchange Act,
as in effect on March 13, 1996.
(6) "Subsidiary" means any corporation of which a majority of any class of
equity security is owned, directly or indirectly, by the Corporation; provided,
however, that for the purposes of the definition of Interested Stockholder set
forth in subparagraph (c)(2), the term "Subsidiary" shall mean only a
corporation of which a majority of each class of equity security is owned,
directly or indirectly, by the Corporation.
(7) "Disinterested Director" means any Director of the Corporation who is
not an Affiliate or Associate of the Interested Stockholder and was a member of
the Board prior to the time that the Interested Stockholder became an Interested
Stockholder, and any Director who is thereafter chosen to fill any vacancy on
the Board or who is elected and who, in either event, is not an Affiliate or
Associate of the Interested Stockholder and in connection with his or her
initial assumption of office is recommended for appointment or election by a
majority of Disinterested Directors then serving on the Board.
(8) "Fair Market Value" means: (i) in the case of stock, the highest
closing sale price during the 30-day period immediately preceding and including
the date in question of a share of such stock on the Composite Tape for New York
Stock Exchange-Listed Stocks, or, if such stock is not quoted on the Composite
Tape, on the New York Stock Exchange, or, if such stock is not listed on such
exchange, on the principal United States securities exchange registered
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Continuation Sheet 6G
under the Exchange Act on which such stock is listed, or, if such stock is not
listed on any such exchange, the highest closing bid quotation with respect to a
share of such stock during the 30-day period preceding and including the date in
question on the National Association of Securities Dealers, Inc. Automated
Quotations System or any system then in use, or, if no such quotations are
available, the fair market value on the date in question of a share of such
stock as determined in good faith by a majority of the Disinterested Directors;
and (ii) in the case of property other than cash or stock, the fair market value
of such property on the date in question as determined in good faith by a
majority of the Disinterested Directors.
(9) In the event of any Business Combination in which the Corporation
survives, the phrase "consideration other than cash to be received" as used in
subparagraphs (b)(2)(i) and (ii) of this Article 6A shall include the shares of
Common Stock of the Corporation and/or the shares of any other class of
outstanding Voting Stock retained by the holders of such shares.
(10) For the purposes of determining the "Announcement Date," in the event
that the first public announcement of the proposal of the Business Combination
is made after the close on such date of any securities exchange registered under
the Exchange Act on which any shares of the Voting Stock of the Corporation are
traded, or of the National Association of Securities Dealers, Inc. Automated
Quotations System, or any other system on which any shares of the Voting Stock
of the Corporation are listed, then the Announcement Date shall be deemed to be
the next day on which such exchange or quotations system is open.
(d) POWERS OF THE BOARD OF DIRECTORS. A majority of the Board shall have
the power and duty to determine for the purposes of this Article 6A, on the
basis of information known to them after reasonable inquiry, whether a person is
an Interested Stockholder, which determination shall be conclusive. Once the
Board has made a determination, pursuant to the preceding sentence, that a
person is an Interested Stockholder, then a majority of Disinterested Directors
shall have the power and duty to determine for the purposes of this Article 6A,
on the basis of information known to them after reasonable inquiry, (i) the
number of shares of Voting Stock beneficially owned by any person, (ii) whether
a person is an Affiliate or Associate of another, (iii) whether the assets which
may be the subject of any Business Combination have, or the consideration which
may be received for the issuance or transfer of securities by the Corporation or
any Subsidiary in any Business Combination has, an aggregate Fair Market Value
equal to or greater than ten percent (10%) of the combined assets of the
Corporation and its Subsidiaries and (iv) whether all of the applicable
conditions set forth in subsection (b)(2) shall have been met with respect to
any Business Combination, any of which determinations by a majority of the
Disinterested Directors shall be conclusive. A majority of the Disinterested
Directors shall have the further power to interpret all of the terms and
provisions of this Article 6A, which interpretation shall be conclusive.
(e) NO EFFECT ON FIDUCIARY OBLIGATIONS OF INTERESTED STOCKHOLDERS. Nothing
contained in this Article 6A shall be construed to relieve any Interested
Stockholder of any fiduciary obligation imposed by law.
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Continuation Sheet 6H
(f) AMENDMENT, REPEAL, ETC. Notwithstanding any other provisions of these
Articles of Organization or the By-Laws of the Corporation (and notwithstanding
the fact that a lesser percentage or no vote may be specified by law, these
Articles of Organization or the By-Laws of the Corporation), and in addition to
any affirmative vote of the holders of Preferred Stock or any other class of
capital stock of the Corporation or any series of the foregoing then outstanding
which is required by law or by or pursuant to these Articles of Organization,
the affirmative vote of the holders of eighty percent (80%) or more of the
outstanding Voting Stock, voting together as a single class, shall be required
to amend or repeal, or adopt any provisions inconsistent with this Article 6A.
6B. CERTAIN TRANSACTIONS APPROVED BY THE BOARD OF DIRECTORS
Except as otherwise provided in these Restated Articles of Organization,
the Corporation may authorize, by a vote of a majority of the shares of each
class of stock outstanding and entitled to vote thereon, (a) the sale, lease or
exchange of all or substantially all of its property and assets, including its
goodwill, upon such terms and conditions as it deems expedient, and (b) the
merger or consolidation of the Corporation or any Subsidiary with or into any
other corporation, provided, however, that such sale, lease, exchange, merger or
consolidation shall have been approved by a majority of the members of the
Board.
6C. LIMITATION OF LIABILITY OF DIRECTORS
No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director notwithstanding any provision of law imposing such liability;
provided, however, that this Article 6C shall not eliminate or limit any
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) under Section 61 or 62 of the Massachusetts Business Corporation Law, or
(iv) with respect to any transaction from which the director derived an improper
personal benefit.
The provisions of this Article 6C shall not eliminate or limit the
liability of a director of this Corporation for any act or omission occurring
prior to the date on which this Article 6C became effective, provided, however,
that neither any provision of this Article 6C nor the adoption of this Article
6C shall affect the effectiveness of any predecessor provision of these Restated
Articles of Organization pertaining to the elimination or limitation of the
liability of a director of this Corporation for any act or omission occurring
prior to the date on which this Article 6C shall adversely affect the rights and
protection afforded to a director of this Corporation under this Article 6C for
acts or omissions occurring prior to such amendment or repeal.
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Continuation Sheet 6I
If the Massachusetts Business Corporation Law is subsequently amended to
further eliminate or limit the personal liability of directors or to authorize
corporation action to further eliminate or limit such liability, then the
liability of the directors of this Corporation shall, without any further action
of the Board or the stockholders of this Corporation, be eliminated or limited
to the fullest extent permitted by the Massachusetts Business Corporation Law as
so amended.
6D. RELATED PARTY DEALINGS
The Corporation may enter into contracts or transact business with one or
more of its directors, officers, stockholders or employees or with any
corporation, organization or other concern in which one or more of its
directors, officers, stockholders or employees are directors, officers,
stockholders or employees or are otherwise interested and may enter into other
contracts or transactions in which one or more of its directors, officers,
stockholders or employees are in any way interested. In the absence of fraud, no
such contract or transaction shall be invalidated or in any way affected by the
fact that such one or more of the directors, officers, stockholders or employees
of the Corporation have or may have any interest which is or might be adverse to
the interest of the Corporation even though the vote or action of directors,
officers, stockholders or employees having such adverse interest may have been
necessary to obligate the Corporation upon such contract or transaction.
At any meeting of the Board (or of any duly authorized committee thereof)
at which any such contract or transaction shall be authorized or ratified, any
such director or directors may vote or act thereat with like force and effect as
if he had not such interest, provided in such case that the nature of such
interest (though not necessarily the extent or details thereof) shall be
disclosed or shall have been known to the directors. A general notice that a
director, officer, stockholder or employee is interested in any corporation or
other concern of any kind referred to above shall be a sufficient disclosure as
to the interest of such director, officer, stockholder or employee with respect
to all contracts and transactions with such corporation or other concern. No
person shall be disqualified from holding office as a director or an officer of
the Corporation by reason of any such adverse interest, unless the Board shall
determine that such adverse interest is detrimental to the Corporation. In the
absence of fraud, no director, officer, stockholder or employee having such
adverse interest shall be liable on account of such adverse interest 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, stockholder or employee be accountable on such
ground for any gains or profits realized thereon.
6E. PLACE OF MEETINGS OF STOCKHOLDERS
Meetings of stockholders of the Corporation may be held anywhere in the
United States to the extent permitted by the By-Laws.
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Continuation Sheet 6J
6F. PARTNERSHIP IN ANY BUSINESS ENTERPRISE
The Corporation may be a partner in any business enterprise organized for
the purpose of accomplishing any of the purposes contained in these Restated
Articles of Organization.
6G. MAKING, AMENDING AND REPEALING BY-LAWS OR RESTATED ARTICLES OF ORGANIZATION
The directors of the Corporation shall have the power to make, alter, amend
and repeal the By-Laws of the Corporation in whole or in part, except with
respect to any provision thereof which by law or these Restated Articles of
Organization or such ByLaws requires action by the stockholders, who shall also
have the power to make, alter, amend and repeal the By-Laws of the Corporation.
Any By-Laws made by the directors under the powers conferred hereby may be
altered, amended, or repealed by the directors or the stockholders.
Notwithstanding the foregoing and anything contained in these Restated Articles
of Organization to the contrary, (i) Articles I, II and VI and Section 9 of
Article V of the By-Laws, and (ii) Article 4 with respect to the Undesignated
Preferred Stock and Article 6C and this Article 6G shall not be altered, amended
or repealed by the stockholders, and no provision inconsistent therewith or
herewith shall be adopted by the stockholders, without the affirmative vote of
the holders of at least eighty percent (80%) of the voting power of all shares
of the Corporation entitled to vote generally in the election of directors,
voting together as a single class. In addition, notwithstanding the foregoing
and anything contained in these Restated Articles of Organization to the
contrary, the number of authorized shares of Common Stock or the number of
authorized shares of Preferred Stock set forth in Article 3 shall not be reduced
or eliminated unless approved by the affirmative vote of the holders of at least
eighty percent (80%) of the voting power of all shares of the Corporation
entitled to vote generally in the election of directors, voting together as a
single class.
6H. REMOVAL OF DIRECTORS.
Any director, or the entire Board, may be removed from office at any time,
but only either (a) for cause by the affirmative vote of the holders of at least
eighty percent (80%) of the voting power of all of the shares of the Corporation
entitled to vote generally in the election of directors, voting together as a
single class, or (b) by the affirmative vote of at least three-quarters (3/4) of
the directors then serving, with or without cause. A director may be removed for
cause only after a reasonable notice and opportunity to be heard before the body
proposing to remove him. As used in this Article 6H, "cause" shall mean only (i)
conviction of a felony, (ii) declaration of unsound mind by order of a court,
(iii) gross dereliction of duty, (iv) commission of an action involving moral
turpitude, or (v) commission of an action which constitutes intentional
misconduct or a knowing violation of law if such action in either event results
both in an improper substantial personal benefit and a material injury to the
Corporation.
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*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: Article 4
..............................................................................
(*If there are no such amendments state "None".)
Briefly describe amendments in space below:
Article 4: (1) To give affect to the reverse stock split set forth in the
third paragraph of Article 4, to be effective upon the
filing of these Restated Articles of Organization.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, I have hereto
signed my name this 9th day of May, in the year 1996.
/s/ Michael Szycher President
- ---------------------------------------
/s/ Michael Szycher Clerk
- ---------------------------------------
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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 $ having been paid, said articles are
deemed to have been filed with me this day
of , 19 .
WILLIAM FRANCIS GALVIN
Secretary of State
TO BE FILLED IN BY CORPORATION
PHOTOCOPY OF RESTATED ARTICLES OF ORGANIZATION TO BE SENT
TO: Michael L. Fantozzi, Esquire
Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
One Financial Center
Boston, MA 02111
Telephone: (617) 542-6000
Copy Mailed
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