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EXHIBIT 3.1
THE COMMONWEALTH OF MASSACHUSETTS
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth FEDERAL IDENTIFICATION
ONE ASHBURTON PLACE, BOSTON, MASS: 02108 NO. 04-2675674
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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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We, Sheldon L. Dinkes , President and
Anthony J. Medaglia, Jr. , Clerk of
Voicetek Corporation
- --------------------------------------------------------------------------------
(Name of Corporation)
located at 19 Alpha Road, Chemlsford, MA 01824
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do hereby certify that the following restatement of the articles of organization
of the corporation was duly adopted at a meeting held on __________, 199__, by
vote of
Common
- --------- shares of ---------------- out of ------------ shares outstanding
(Class of Stock)
Preferred
- --------- 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:
1. THE NAME BY WHICH THE CORPORATION SHALL BE KNOWN IS:
Voicetek Corporation
2. THE PURPOSES FOR WHICH THE CORPORATION IS FORMED ARE AS FOLLOWS:
See continuation sheets attached.
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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 None 1,000,000 $ .01
COMMON 30,000,000 $.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 sheet attached.
*5. THE RESTRICTIONS, IF ANY, IMPOSED BY THE ARTICLES OF ORGANIZATION
UPON THE TRANSFER OF SHARES OF STOCK OF ANY CLASS ARE AS FOLLOWS:
None.
*6. OTHER LAWFUL PROVISIONS, IF ANY, FOR THE CONDUCT AND REGULATION OF
THE BUSINESS AND AFFAIRS OF THE CORPORATION, FOR ITS VOLUNTARY
DISSOLUTION, OR FOR DEFINING, OR REGULATING THE POWERS OF THE
CORPORATION, OR OF ITS DIRECTORS OR STOCKHOLDERS, OR OF ANY CLASS
OF STOCKHOLDERS:
See continuation sheets attached.
* IF THERE ARE NO SUCH PROVISIONS, STATE "NONE".
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Articles of Organization
of
VOICETEK CORPORATION
Continuation Sheet
------------------
Article 2 continued:
The purposes of the Corporation shall be:
To engage in the business of developing, marketing and supplying
interactive communication systems; to make and enter into all kinds of
contracts, agreements and obligations by or with any persons, firms,
associations and corporations in furtherance of such activities, and, generally,
to perform any and all acts connected therewith, or incidental thereto, and all
acts proper or necessary for the purposes of this business.
To carry on any business or other activity which may lawfully be carried on
by a corporation organized under Chapter 156B of the Massachusetts General Laws
(the "Business Corporation Law"), whether or not related to those referred to in
the foregoing paragraph, whether or not related or similar to the activities
described in the preceding paragraph.
To carry on any business, operation or activity through a wholly owned or
partly owned subsidiary.
To carry on any business, operation or activity referred to in the
foregoing paragraphs to the same extent as might an individual, whether as
principal, agent, contractor or otherwise, and either alone or as a partner,
trustee, participant, member or stockholder of or in any form of partnership,
joint venture, corporation, association, trust, limited liability company or
other form of entity or with any individual, and, without limiting the
generality of the foregoing, to be a limited and/or general partner of any
partnership organized to carry on any business or activity of the type described
herein.
To have as additional purposes all powers granted and conferred by the laws
of The Commonwealth of Massachusetts upon business corporations organized under
the Business Corporation Law.
In these provisions, the enumeration of specific purposes or powers shall
not be construed to limit other statements of purposes or powers which this
Corporation may otherwise have under applicable law, all of the same being
separate and cumulative, and all of the same may be carried on, promoted and
pursued, transacted or exercised in any place in the world whatsoever.
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Continuation Sheet
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DESCRIPTION OF CAPITAL STOCK
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Article 4.
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A. AUTHORIZED SHARES. The aggregate number of shares which this
Corporation shall have authority to issue is: 40,000,000 shares of common stock
having no par value per share (the "Common Stock") and 1,000,000 shares of
preferred stock having a par value of $.01 per share (the "Series Preferred
Stock").
B. SERIES PREFERRED STOCK. Shares of Series Preferred Stock may be issued
from time to time in one or more series as may from time to time be determined
by the Board of Directors, each of said series to be distinctly designated. All
shares of any one series of the Series Preferred Stock shall be alike in every
particular, except that there may be different dates from which dividends, if
any, thereon shall be cumulative, if made cumulative. The voting powers, if any,
and the designations, preferences and relative, participating, optional or other
special rights or privileges of each such series, and the qualifications,
limitations or restrictions thereof, if any, may differ from those of any and
all other series at any time outstanding; and, subject to the provisions of
subparagraph 1 of Paragraph D hereof, there is hereby expressly vested in the
Board of Directors of the Corporation the authority to issue one or more series
of the Series Preferred Stock and to fix in the resolution or resolutions
providing for the issue of such stock adopted by the Board of Directors of the
Corporation the Voting powers, if any, and the designations, preferences and
relative, participating, optional or other special rights or privileges, and the
qualifications, limitations or restrictions of such series, including, but
without limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of shares of, the
Series Preferred Stock which shall constitute such series. The
designation of a series of preferred stock need not include the words
"preferred" or "preference" and may be designated "special" or other
distinctive term. Unless otherwise provided in the resolution issuing
such series, the number of shares of any series of the Series
Preferred Stock may be increased or decreased (but not below the
number of shares thereof then outstanding) by the Board of Directors
in the manner prescribed by law;
(2) The rate and times at which, and the terms and conditions upon
which, dividends, if any, on the Series Preferred Stock of such series
shall be paid, the extent of the preference or relation, if any, of
such dividends to the dividends payable on any other class or classes,
or series of the same or other classes of stock and whether such
dividends shall be cumulative or non-cumulative and, if cumulative,
the date from which such dividends shall be cumulative;
(3) Whether the series shall be convertible into, or exchangeable
for, at the option of the holders of the Series Preferred Stock of
such series or the Corporation or upon the happening of a specified
event, shares of any other class or classes or any other series of the
same or any other class or classes of stock of the Corporation, and
the
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terms and conditions of such conversion or exchange, including
provisions for the adjustment of any such conversion rate in such
events as the Board of Directors shall determine;
(4) Whether or not the Series Preferred Stock of such series shall be
subject to redemption at the option of the Corporation or the holders
of such series or upon the happening of a specified event, and the
redemption price or prices and the time or times at which, and the
terms and conditions upon which, the Series Preferred Stock of such
series may be redeemed;
(5) The rights, if any, of the holders of the Series Preferred Stock
of such series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation;
(6) The terms of the sinking fund or redemption or purchase account,
if any, to be provided for the Series Preferred Stock of such series;
and
(7) Subject to subparagraph 5 of Paragraph D hereof, whether such
series of the Series Preferred Stock shall have full, limited or no
voting powers including, without limiting the generality of the
foregoing, whether such series shall have the right, voting as a
series by itself or together with other series of the Series Preferred
Stock or all series of the Series Preferred Stock as a class, to elect
one or more directors of the Corporation if there shall have been a
default in the payment of dividends on any one or more series of the
Series Preferred Stock or under such other circumstances and on such
conditions as the Board of Directors may determine.
C. Common Stock.
------------
(1) After the Corporation has complied with the requirements, if any,
fixed in accordance with the provisions of Paragraph B hereof with
respect to (a) dividends on series of the Series Preferred Stock (in
accordance with the relative preferences among such series), and (b)
the setting aside of sums as sinking funds or redemption or purchase
accounts for series of the Series Preferred Stock (in accordance with
the relative preferences among such series), and subject further to
any other conditions which may be fixed in accordance with the
provisions of Paragraph B hereof, then, and not otherwise, the holders
of Common Stock shall be entitled to receive such dividends (either in
cash, stock or otherwise) as may be declared from time to time by the
Board of Directors out of assets of the Corporation legally available
therefor and the holders of the Series Preferred Stock shall not be
entitled to participate in any such dividends.
(2) After distribution in full of the preferential amount, if any, to
be distributed to the holders of series of the Series Preferred Stock
(in accordance with the relative preferences among such series) in the
event of voluntary or involuntary liquidation,
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distribution, dissolution or winding-up, of the Corporation, the
holders of the Common Stock shall be entitled to receive all of the
remaining assets of the Corporation, tangible and intangible, of
whatever kind available for distribution to shareholders, ratably in
proportion to the number of shares of Common Stock held by them
respectively.
(3) Except as may otherwise be required by law, each holder of Common
Stock shall have one vote in respect of each share of Common Stock
held by him on all matters voted upon by the shareholders.
D. Other Provisions.
----------------
(1) No holder of any of the shares of any class or series of stock or
of options, warrants or other rights to purchase shares of any class
or series of stock or of other securities of the Corporation shall
have any preemptive right to purchase or subscribe for any unissued
stock of any class or series or any additional shares of any class or
series to be issued by reason of any increase of the authorized
capital stock of the Corporation of any class or series, or bonds,
certificates of indebtedness, debentures or other securities
convertible into or exchangeable for stock of the Corporation of any
class or series, or carrying any right to purchase stock of any class
or series, but any such unissued stock, additional authorized issue of
shares of any class or series of stock or securities convertible into
or exchangeable for stock, or carrying any right to purchase stock,
may be issued and disposed of pursuant to resolution of the Board of
Directors to such persons, firms, corporations or associations
(including such holders or others) and upon such terms as may be
deemed advisable by the Board of Directors in the exercise of its sole
discretion.
(2) The relative powers, preferences and rights of each series of the
Series Preferred Stock in relation to the powers, preferences and
rights of each other series of the Series Preferred Stock shall, in
each case, be as fixed from time to time by the Board of Directors in
the resolution or resolutions adopted pursuant to authority granted in
Paragraph B hereof. The consent, by class or series vote or otherwise,
of the holders of such of the series of the Series Preferred Stock as
are from time to time outstanding shall not be required for the
issuance by the Board of Directors of any other series of the Series
Preferred Stock whether or not the powers, preferences and rights of
such other series shall be fixed by the Board of Directors as senior
to, or on a parity with, the powers, preferences and rights of such
outstanding series, or any of them; provided, however, that the Board
of Directors may provide in the resolution or resolutions as to any
series of the Series Preferred Stock adopted pursuant to Paragraph B
hereof, the conditions, if any, under which the consent of the holders
of a majority (or such greater proportion as shall be fixed therein)
of the outstanding shares of such series shall be require for the
issuance of any or all other series of the Series Preferred Stock.
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(3) Subject to the provisions of subparagraph 2 of this Paragraph D,
shares of any series of the series Preferred Stock may be issued from
time to time as the Board of Directors of the Corporation shall
determine and on such terms and for such consideration as shall be
fixed by the Board of Directors.
(4) Shares of authorized Common Stock may be issued from time to time
as the Board of Directors of the Corporation shall determine and on
such terms and for such consideration as shall be fixed by the Board
of Directors.
(5) The number of authorized shares of Common Stock and of the Series
Preferred Stock, without a class or series vote, may be increased or
decreased from time to time (but not below the number of shares
thereof then outstanding) by the affirmative vote of the holders of a
majority of the stock of the Corporation entitled to vote thereon.
(6) Notwithstanding any other provisions of these Articles of
Organization or the by-laws of the Corporation or the fact that a
lesser percentage may be specified by law, these Articles of
Organization or the by-laws of the Corporation, the affirmative vote
of the holders of at least eighty (80%) percent of the combined voting
power of the outstanding stock of the Corporation entitled to vote
generally in the election of Directors ("Voting Stock"), voting
together as a single class, shall be required to amend, alter, adopt
any provision inconsistent with or to repeal this provision.
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ARTICLE 6. Other lawful provisions 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:
No Director or officer shall be disqualified by his office from dealing or
contracting as vendor, purchaser or otherwise, whether in his individual
capacity or through any other corporation, trust, association or firm in which
he is interested as stockholder, director, trustee, partner or otherwise, with
the Corporation or any corporation, trust, association or firm in which the
Corporation shall be a stockholder or otherwise interested or which shall hold
stock or be otherwise interested in the Corporation, nor shall any such dealing
or contract be avoided, nor shall any Director or officer so dealing or
contracting be liable to account for any profit or benefit realized through any
such dealing or contract to the Corporation or to any stockholder or creditor
thereof solely because of the fiduciary relationship established by reason of
his holding such Directorship or office. Any such interest of a Director shall
not disqualify him from being counted in determining the existence of a quorum
at any meeting nor shall any such interest disqualify him from voting or
consenting as a Director or having his vote or consent counted in connection
with any such dealing or contract.
No stockholder shall be disqualified from dealing or contracting as vendor,
purchaser or otherwise, either in his individual capacity or through any other
corporation, trust, association or firm in which he is interested as a
stockholder, Director, trustee, partner or otherwise, with the Corporation or
any corporation, trust, association or firm in which the Corporation shall be a
stockholder or otherwise interested or which shall hold stock or be otherwise
interested in the Corporation, nor shall any such dealing or contract be
avoided, nor shall any stockholder so dealing or contracting be liable to
account for any profit or benefit realized through any such contract or dealing
to the Corporation or to any stockholder or creditor thereof by reason of such
stockholder holding stock in the Corporation to any amount, nor shall any
fiduciary relationship be deemed to be established by such stock holdings.
Meetings of the stockholders of the Corporation may be held at any place
within the United States.
Special meetings of stockholders of the Corporation may be called only by
the Board of Directors, the Chairman of the Board of Directors or the President.
No action required or permitted to be taken at any annual or special
meetings of the stockholders of the Corporation may be taken without a meeting,
unless the unanimous consent of stockholders entitled to vote thereon is
obtained. The Corporation may be a partner in any business enterprise it would
have power to conduct by itself.
The Directors may make, amend or repeal the by-laws in whole or in part,
except with respect to any provision thereof which by law, these Amended and
Restated Articles of Organization or the by-laws requires action by the
stockholders.
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No Director of the Corporation shall be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a Director
notwithstanding any statutory provision or other law imposing such liability,
except for 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 sixty-one or sixty-two of Chapter 156B of the
Massachusetts General Laws, or (iv) for any transaction from which the Director
derived an improper personal benefit.
Classified Board of Directors
(1) The Directors of the Corporation shall be divided into three classes:
Class I, Class II and Class III. Each class shall consist, as nearly as may be
possible, of one-third of the whole number of the Board of Directors. If the
number of Directors is not evenly divisible by three, the Board of Directors
shall determine the number of Directors to be elected initially into each class.
The election of directors at a Special Meeting of stockholders held on March ,
1997 will determine the directors and their respective classes. Thereafter,
Class I Directors will hold office for a term to expire at the first annual
meeting of stockholders thereafter. Thereafter, Class II Directors will hold
office for a term to expire at the second annual meeting of stockholders
thereafter. Thereafter, Class III Directors will hold office for a term to
expire at the third annual meeting of stockholders thereafter. After the March
10, 1997 Special Meeting of Stockholders, the Directors elected to succeed those
whose terms expire shall be identified as being of the same class as the
Directors they succeed and shall be elected to hold office for a term to expire
at the third annual meeting of the stockholders after their election, and until
their respective successors are duly elected and qualified. If the number of
Directors changes, any increase or decrease in Directors shall be apportioned
among the classes so as to maintain all classes as equal in number as possible,
and any additional Director elected to any class shall hold office for a term
which shall coincide with the terms of the other Directors in such class and
until his successor is duly elected and qualified.
(2) Notwithstanding any other provisions of these Articles of Organization
or the by-laws of the Corporation or the fact that a lesser percentage may be
specified by law, these Articles of Organization or the by-laws of the
Corporation, the affirmative vote of the holders of at least eighty (80%)
percent of the combined voting power of the outstanding Voting Stock, voting
together as a single class, shall be required to amend, alter, adopt any
provision inconsistent with or to repeal this provision.
Vote Required for Certain Business Combinations
(A) 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 Provision:
1. any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with (a) an Interested Stockholder (as hereinafter
defined) or (b) any other Corporation
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(whether or not itself an Interested Stockholder) which is, or after such merger
or consolidation would be, an Affiliate (as such term is hereinafter defined) of
an Interested Stockholder; or
2. any sale, lease, exchange, mortgage, pledge, grant of a security
interest, transfer or other disposition (in one transaction or a series of
transactions) to or with (a) an Interested Stockholder or (b) or any other
person (whether or not itself an Interested Stockholder) which is, or after such
sale, lease, exchange, mortgage, pledge, grant of security interest, transfer or
other disposition would be, an Affiliate of an Interested Stockholder, directly
or indirectly, of substantially all of the assets of the Corporation (including,
without limitation, any voting securities of a Subsidiary) or any Subsidiary; or
3. 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, or both, to (a) an Interested Stockholder or (b)
any other person (whether or not itself an Interested Stockholder) which is, or
after such issuance or transfer would be, an Affiliate of an Interested
Stockholder in exchange for cash, securities or other property (or a combination
thereof); or
4. 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 an Interested Stockholder; or
5. any reclassification of securities (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 directly or indirectly beneficially owned
by (a) an Interested Stockholder or (b) any other person (whether or not itself
an Interested Stockholder) which is, or after such reclassification,
recapitalization, merger or consolidation or other transaction would be, an
Affiliate of an Interested Stockholder shall not be consummated unless such
consummation shall have been approved by the affirmative vote of the holders of
at least eighty (80%) percent of the combined voting power of the then
outstanding shares of Voting Stock (as hereinafter defined), voting together as
a single class. 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, in these Articles of Organization or in any agreement with
any national securities exchange or otherwise.
(B) The provisions of Paragraph (A) of this Provision shall not be
applicable to any particular Business Combination (as hereinafter defined) and
such Business Combination shall require only such affirmative votes required by
law if the Business Combination shall have been approved by a majority of the
Continuing Directors (as hereinafter defined) or all of the following conditions
shall have been met:
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1. The transaction constituting the Business Combination shall
provide for a consideration to be received by all holders of Common Stock in
exchange for all their shares of Common Stock, and 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 Common Stock 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 in
order to acquire any shares of Common Stock beneficially owned by an Interested
Stockholder (i) within the two-year period immediately prior to the Announcement
Date (as hereinafter defined), (ii) within the two-year period immediately prior
to the Determination Date (as hereinafter defined) or (iii) in the transaction
in which it became an Interested Stockholder, whichever is highest; or
(b) the Fair Market Value per share of Common Stock on the
Announcement Date or on the Determination Date, whichever is higher;
2. If the transaction constituting the Business Combination shall
provide for a consideration to be received by holders of any class or series of
outstanding Voting Stock other than Common Stock, 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 such class or series of Voting Stock shall be at least
equal to the highest of the following (it being intended that the requirements
of this subparagraph 2 shall be required to be met with respect to every class
or series of outstanding Voting Stock, whether or not an 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 in
order to acquire any shares of-such class or series of Voting Stock beneficially
owned by an Interested Stockholder (i) within the two-year period immediately
prior to the Announcement Date, (ii) within the two-year period immediately
prior to the Determination Date, or (ii) in the transaction in which it became
an Interested Stockholder, whichever is highest; or
(b) the Fair Market Value per share of such class or series of
Voting Stock on the Announcement Date or the Determination Date, whichever is
higher; or
(c) (if applicable) the highest preferential amount per share to
which the holders of shares of such class or series of Voting Stock are entitled
in the event of any voluntary or involuntary liquidation, dissolution or winding
up of the Corporation;
3. The consideration to be received by holders of a particular class
or series of outstanding Voting Stock (including Common Stock) shall be in cash
or in the same form as was previously paid in order to acquire shares of such
class or series of Voting Stock which are beneficially
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owned by an Interested Stockholder and, if an Interested Stockholder
beneficially owns shares of any class or series of Voting Stock which were
acquired with varying forms of consideration, the form of consideration for such
class or series of Voting Stock shall be either cash or the form used to acquire
the largest number of shares of such class or series of Voting Stock
beneficially owned by it. The price determination in accordance with
subparagraphs 1 and 2 of this Paragraph (B) shall be subject to appropriate
adjustment in the event of any recapitalization, stock dividend, stock split,
combination of shares or similar event;
4. 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 Continuing
Directors, there shall have been no failure to declare and pay at the regular
date therefor the full amount of any dividends (whether or not cumulative)
payable on any outstanding preferred stock;
(b) there shall have been (i) no reduction in the annual rate of
dividends paid on the Common Stock (except as necessary to reflect any
subdivision of the Common Stock) other than as approved by a majority of the
Continuing Directors and (ii) an increase in such annual rate of dividends as
necessary to prevent any such reduction in the event of 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 Continuing Directors;
(c) such Interested Stockholder shall not have become the
beneficial owner of any additional shares of Voting Stock at a price lower than
that paid in the transaction in which it became an Interested Stockholder.
5. 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 the Corporation, whether in anticipation of or
in connection with such Business Combination or otherwise; and
6. A proxy or information statement describing the proposed Business
Combination and complying with the requirements of the Securities Exchange Act
of 1934, as amended, and the rules and regulations thereunder (or any subsequent
provisions replacing such act, rules or regulations) shall be mailed to the
stockholders of the Corporation, no later than the earlier of (a) thirty (30)
days prior to any vote on the proposed Business Combination or (b) if no vote on
such Business Combination is required, sixty (60) days prior to the consummation
of such Business Combination (whether or not such proxy or information statement
is required to be mailed pursuant to such Act or subsequent provisions). Such
proxy statement shall contain at the front thereof, in a prominent place, any
recommendations as to the advisability (or inadvisability) of the Business
Combination which the Continuing Directors, or any of them, may have furnished
in writing and, if
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deemed advisable by a majority of the Continuing Directors, an opinion of a
reputable investment banking firm as to the fairness (or lack of fairness) of
the terms of such Business Combination, from the point of view of the holder of
Voting Stock other than an Interested Stockholder (such investment banking firm
to be selected by a majority of the Continuing Directors, to be furnished with
all information it reasonably requests and to be paid a reasonable fee for its
services upon receipt by the Corporation of such opinion).
(C) For the purposes of this Provision:
1. "Business Combination" shall mean any transaction which is
referred to in any one or more of subparagraphs 1 through 5 of Paragraph (A) of
this Provision.
2. "Voting Stock" shall mean stock of all classes and series of the
Corporation entitled to vote generally in the election of Directors.
3. "Person" shall mean any individual, firm, trust, partnership,
association, Corporation or other entity.
4. "Interested Stockholder" shall mean any person (other than the
Corporation or any Subsidiary or any person who was a stockholder of the
Corporation on October 10, 1996) who or which:
(a) is the beneficial owner, directly or indirectly, of more
than ten (10%) percent of the combined voting power of the then outstanding
Voting Stock; or
(b) 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 more than ten (10%) percent of the combined
voting power of the then outstanding Voting Stock; or
(c) is an assignee of or has otherwise succeeded to the
beneficial ownership of 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 an Interested Stockholder, unless such assignment or succession shall have
occurred pursuant to a Public Transaction (as hereinafter defined) or any series
of transactions involving a Public Transaction.
For the purposes of determining whether a person is an Interested
Stockholder, the number of shares of Voting Stock deemed to be outstanding shall
include shares deemed owned through application of subparagraph 6 below 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 option, or otherwise.
5. "Public Transaction" shall mean any (a) purchase of shares
offered pursuant to an effective registration statement under the Securities Act
of 1933 or (b) open-market purchase of
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shares on a national securities exchange if, in either such case, the price and
other terms of sale are not negotiated by the purchaser and the seller of the
beneficial interest in the shares.
6. A person shall be a "beneficial owner" of any Voting Stock:
(a) which such person or any of its Affiliates beneficially
owns, directly or indirectly; or
(b) which such person or any of its Affiliates has (i) the right
to acquire (whether such right is exercisable immediately or only after the
passage of time) pursuant to any agreement, arrangement or understanding or upon
the exercise of conversion rights, exchange rights, warrants or options, or
otherwise or (ii) the right to vote or to direct the voting thereof pursuant to
any agreement, arrangement or understanding; or
(c) which is beneficially owned, directly or indirectly, by any
other person with which such person or any of its Affiliates has any agreement,
arrangement or understanding for the purpose of acquiring, holding, voting or
disposing of any shares of Voting Stock.
7. "Affiliate" shall have the meaning ascribed to such term in Rule
12b-2 of the General Rules and Regulations under the Securities Exchange Act of
1934, as in effect on June 27, 1989.
8. "Subsidiary" shall mean any Corporation of which a majority of
any class of equity security (as defined in Rule 12b-1 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect on May 13,
1991) is owned, directly or indirectly, by the Corporation; provided, however,
that for the purposes of the definition of Interested Stockholder set forth in
subparagraph 4, 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.
9. "Continuing Director" shall mean any member of the Board of
Directors of the Corporation who is unaffiliated with, and not a nominee of, an
Interested Stockholder and was a member of the Board prior to the time that such
Interested Stockholder became an Interested Stockholder, and any successor of a
Continuing Director who is unaffiliated with, and not a nominee of, an
Interested Stockholder and is recommended to succeed a Continuing Director by a
majority of Continuing Directors then on the Board.
10. "Announcement Date" shall mean the date of the first public
announcement of the proposed Business Combination.
11. "Determination Date" shall mean the date on which an Interested
Stockholder became an Interested Stockholder.
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12. "Fair Market Value" shall mean: (a) in the case of stock, the
highest closing sale price during the thirty period immediately preceding the
date in question of a share of such stock on the National Market System of the
National Association of Securities Dealers Automated Quotation System or any
system then in use on any national securities exchange or automated quotation
system, or if no such quotations are available, the fair market value on the
date in question of a share of such stock as determined by a majority of the
Continuing Directors in good faith; and (b) in the case of property other than
cash or stock, the fair market value of such property on the date in question as
determined by a majority of the Continuing Directors in good faith.
(D) A majority of the Continuing Directors shall have the power and duty
to determine for the purposes of this Provision, on the basis of information
known to them after reasonable inquiry, all facts necessary to determine
compliance with this Provision, including, without limitation, (1) whether a
person is an Interested Stockholder, (2) the number of shares of Voting Stock
beneficially owned by any person, (3) whether a person is an Affiliate of
another, (4) whether the requirements of Paragraph (B) of this Provision have
been met and (5) such other matters with respect to which a determination is
required under this Provision. The good faith determination of a majority of the
Continuing Directors on such matters shall be conclusive and binding for all
purposes of this Provision.
(E) Nothing contained in this Provision shall be construed to relieve an
Interested Stockholder of any fiduciary obligation imposed by law.
(F) Notwithstanding any other provisions of these Articles of Organization
or the By-laws of the Corporation or the fact that a lesser percentage may be
specified by law, the affirmative vote of the holders of at least eighty (80%)
percent of the combined voting power of the then outstanding Voting Stock,
voting together as a single class, shall be required to amend, alter, adopt any
provision inconsistent with or repeal this Provision.
Redemption of Shares
In accordance with Section 6 of Chapter 110D of the General Laws of the
Commonwealth of Massachusetts, the Corporation by action of its Board of
Directors is authorized, at the option of the Corporation by such Board action
but without requiring agreement of the person who has made a control share
acquisition (as defined in said Chapter 110D), to redeem all but not less than
all shares acquired in such a control share acquisition in accordance with and
subject to the limitations contained in said Chapter 110D including Section 6
thereof.
*We further certify that the foregoing restated articles of organization
effect no amendments to the articles of organization of the corporation as
heretofore amended, except amendments to the following articles
2,3,4,6.
- -------
(*If there are no such amendments, state "None".)
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Briefly describe amendments in space below:
Article 2. Article 2 has been amended to include additional purposes of
---------- the Corporation.
Article 3. Article 3 has been amended to add a new class of preferred
---------- stock.
Article 4. Article 4 has been added to set forth the preferences,
---------- voting powers, qualifications and special or relative rights
of each class and series of authorized stock.
Article 6. Article 6 has been amended(i) to allow for otherwise lawful
---------- transactions between the Corporation and officers, directors
and/or stockholders; (ii) to create a staggered Board of
Directors and (iii) to address business combinations between
the Corporation and interested stockholders.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto
signed our names this __ day of February in the year 1997.
Sheldon L. Dinkes President
--------------------------------------------------------
Anthony J. Medaglia 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
February, 1997.
_____________________________
William Francis Galvin
Secretary of the Commonwealth
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF RESTATED ARTICLES OF ORGANIZATION TO BE SENT
TO:
Joseph Listengart, Esq.
HUTCHINS, WHEELER & DITTMAR
A Professional Corporation
101 Federal Street
Boston, MA 02110
Telephone: (617) 951-6600
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